UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY THE LAW RELATING TO SECRET COMMISSIONS AND BRIBES THE LAW RELATING TO SECRET COMMISSIONS AND BRIBES (CHRISTMAS BOXES, GRATUITIES, TIPS, Etc.) THE PREVENTION OF CORRUPTION ACT, 1906 BY ALBERT CREW HI Of Gray's Inn and the South Eastern Circuit, Barrister-at-law ; Lee Prizeman of Gray's Inn; Author of " A Synopsis of Mercantile Law," " Company Law," " The Conduct of and Procedure at Public and Company Meetings," etc. WITH A FOREWORD BY The Right Hon. SIR EDWARD FRY, G.C.B. {formerly Lord Justice of Appeal) London Sir Isaac Pitman & Sons, Ltd., 1 Amen Corner, E.C. Bath and New York 1913 r Printed by Sir Isaac Pitman & Sons, Ltd., London, Bath and New York FOREWORD BY The Right Hon. SIR EDWARD FRY, G.C.B. (formerly Lord Justice of Appeal) I have much pleasure in writing a word by way of introduction to the following pages. They deal with a subject of great import- ance to us as a nation, both in commercial and social life. In the complicated state of society now existing, the temptations to bribery and corruption are manifold, and the forms which they assume are sometimes misleading. I think that the present volume will be found helpful to those who desire, amidst these complications, to follow the path of honesty and to those who are called upon to advise on questions of this nature. I therefore willingly commend the volume to the attention of the public. Edw. Fry. June, 1913. PREFACE The object of the present volume is to deal in a concise, summary form with the law relating to bribery, more particularly as it concerns agents. The Prevention of Corruption Act, 1906, has received more detailed treatment, and some account is given of its history and the results which have followed its operation. The success of this Act has been somewhat thwarted by the necessity of obtaining the fiat of the Attorney-General or Solicitor-General in England or Ireland before commencing a prosecution. A Bill to remedy this defect and to make other changes, was read a second time last session in the House of Commons and was re-introduced to-day. As the question of bribes and secret commissions is one that is of interest and importance to the commercial community, it has been deemed desirable to consider the subject from the practical as well as the legal point of view. The author desires to acknowledge the courtesy of the Benchers of Gray's Inn for permission to use his Lee Prize Essay of 1908, entitled " The Law, Civil and Criminal, of Principal and Agent, so far as it relates to Profits, whether secret or disclosed, made by the Agent in the course of his Agency." He is under considerable obligations to Mr. R. M. Leonard (Secretary of the Secret Commissions and Bribery Prevention League), who has kindly permitted him to use his informative pamphlet, " War against Bribery," in connection with the history and working of the Act of 1906. To his friends, Mr. G. W. H. Jones, LL.B. (Lond.), and Mr. W. C. Nixon, both of Gray's Inn, Barristers-at-Law, the author is also indebted for much valuable advice and useful criticism. A. C. 1 Essex Court, Temple, E.C. 6th May, 1913. VII CONTENTS INTRODUCTION THE RELATION OF PRINCIPAL AND AGENT A. B. C. D. E. F. SECTION I. II. III. IV. V. VI. DEFINITIONS .... THE SOURCE OF THE AUTHORITY . CONSTITUTION OF RELATION OF AGENCY RIGHTS OF AGENTS DUTIES OF AGENTS CLASSES OF AGENTS PART I THE CIVIL LAW RELATING TO SECRET COMMISSIONS AND BRIBES CHAPTER I DUTY OF AN AGENT TO ACCOUNT AGENTS MUST KEEP REGULAR AND PROPER ACCOUNTS GENERAL RULE AS TO AGENTS' REMUNERATION AGENTS MUST NOT PLACE THEMSELVES IN A POSITION IN WHICH THEY MAY TAKE ADVANTAGE OF THEIR PRINCIPALS ....... SURREPTITIOUS DEALING IS FRAUD. AGENTS EMPLOYED TO SELL CANNOT BUY, OR, IF EMPLOYED TO BUY, CANNOT SELL EXCLUSIVE AGENT CANNOT MAKE OUTSIDE PROFITS FOR HIMSELF ....... CHAPTER II CONSEQUENCES WHICH FOLLOW THE TAKING OF SECRET COMMISSIONS OR BRIBES VII. DEFINITION OF SECRET COMMISSION VIII. SUMMARY OF RESULTS WHICH FOLLOW THE TAKING OF BRIBES ....... IX. EFFECT OF BRIBES ON CONTRACTS .... X. EFFECT OF BRIBES ON THE MIND OF AGENT IMMATERIAL 1 2 2 5 5 7 9 13 15 15 16 17 18 18 19 20 IX CONTENTS SECTION XI. XII. XIII. XIV. XV. XVI. XVII. XVIII. XIX. XX. CHAPTER III LIABILITY OF AGENT TO ACCOUNT FOR SECRET COMMISSIONS AND BRIBES PAGE AGENTS MUST ACCOUNT FOR BRIBES ... 24 SOLICITOR AND CLIENT ..... 25 DIRECTORS MUST ACCOUNT FOR SECRET PROFITS . 26 BROKERS MAY NOT MAKE SECRET PROFITS IN REGARD TO THEIR CUSTOMERS' TRANSACTIONS ... 29 PROMOTERS OF COMPANIES ARE NOT ALLOWED TO MAKE SECRET PROFITS ..... 29 THE PLEA OF CUSTOM ...... 30 DUTY OF AGENT TO HAND OVER ANY PROFIT BEYOND AGREED COMMISSION ..... 33 LOSS OR GAIN OF PRINCIPAL IS IMMATERIAL . . 34 TRADE DISCOUNTS ...... 35 AGENTS MUST ACCOUNT TO THEIR PRINCIPALS EVEN WHERE IN ACQUIRING PROFIT THE AGENTS RUN RISK OF LOSS 36 CHAPTER IV EFFECT OF BRIBES ON AGENT'S COMMISSION- ACQUIESCENCE AND DISCLOSURE XXI. EFFECT OF BRIBES ON AGENT' S COMMISSION . XXII. WHEN THE AGENT IS NOT CALLED UPON TO ACCOUNT FOR PROFIT- — THE DOCTRINE OF ACQUIESCENCE . XXIII. EFFECT OF NON-PAYMENT OF AGENT BY PRINCIPAL . XXIV. DISCLOSURE — AGENT CANNOT CHANGE CHARACTER EXCEPT WITH THE FULLEST KNOWLEDGE OF HIS PRINCIPAL ....... 37 38 39 40 CHAPTER V REMEDIES OF PRINCIPAL WHOSE AGENT ACCEPTS BRIBES XXV. SUMMARY OF CIVIL REMEDIES .... XXVI. RECOVERY OF SECRET COMMISSIONS AND REOPENING OF ACCOUNTS ....... XXVII. DISMISSAL OF AGENT WITHOUT NOTICE . 42 42 43 CONTENTS XI SECTION XXVIII. XXIX. XXX. XXXI. XXXII. XXXIII. XXXIV. XXXV. XXXVI. AVOIDANCE OF CONTRACT ..... RECOVERY OF ANY SUM WHICH HAS BEEN PAID UNDER THE CONTRACT WHICH IN CONSEQUENCE OF THE BRIBE WAS IN EXCESS OF THE FAIR OR MARKET PRICE ........ RECOVERY OF ANY SUM PAID, EVEN UNDER PARTLY PERFORMED CONTRACT, WHERE AGENT HAS BEEN BRIBED .....-•• CHAPTER VI THE RECOVERY OF SECRET PROFITS SECRET PROFITS CAN BE RECOVERED AS MONEY HAD AND RECEIVED. ...... WHERE PRINCIPAL MAY NOT RECOVER SECRET PROFITS PRINCIPAL CANNOT " FOLLOW " SECRET PROFITS . RECEIVER OF SECRET PROFITS MAY BE DECLARED TRUSTEE ..... SUB-AGENT MUST ACCOUNT FOR SECRET PROFITS . EFFECT OF STATUTE OF LIMITATIONS PAGE 44 45 48 49 50 50 51 51 52 PART II CRIMINAL LAW RELATING TO SECRET COMMISSIONS AND BRIBES CHAPTER VII COMMON LAW 53 CHAPTER VIII THE PREVENTION OF CORRUPTION ACT, 1906. I. GROWTH OF BRIBERY ..... II. EFFECT OF BRIBES ..... III. FORMS OF BRIBERY ..... IV. GROWTH OF PUBLIC OPINION .... V. OBJECTS OF THE PREVENTION OF CORRUPTION ACT 1906 57 57 57 58 66 Xll CONTENTS CHAPTER IX PAGE TEXT OF THE PREVENTION OF CORRUPTION ACT, 1906 . . . .67 ANALYSIS OF THE PREVENTION OF CORRUPTION ACT 69 CHAPTER X NOTES ON THE ACT OF 1906 VEXATIOUS INDICTMENT ACT, 1859 PROCEDURE SUMMARY JURISDICTION ACT, 1879 BAIL .... APPEALS .... CHAPTER XI CONVICTIONS UNDER THE PREVENTION OF CORRUPTION ACT, 1906 1. TRADE SECRETS . 2. BRIBERY AND CONTRACTS 3. BRIBES AND FRAUD 4. BLACKMAIL 5. TRANSPORT 6. PROFESSIONAL CASES . 7. ATTEMPTS TO BRIBE THE POLICE AND OTHER OFFICIALS 8. SERVICE CASES . 9. " SPORTING " CASES 10. CASES IN WHICH THERE HAS BEEN NO CONVICTION CHAPTER XII AIMS AND RESULTS OF THE ACT OF 1906 CHAPTER XIII CHRISTMAS BOXES SIR EDWARD FRY ON CHRISTMAS BOXES . CHAPTER XIV TIPS AND GRATUITIES . WHEN TIPS ARE LAWFUL . ,, UNLAWFUL . 73 82 85 85 86 88 91 92 92 93 94 94 95 96 97 97 99 103 104 106 106 107 CONTENTS Xlll CHAPTER XV PAGE PREVENTION OF CORRUPTION ACT AMENDMENT BILL . . . .108 CHAPTER XVI WHAT IS BRIBERY ? . 110 1. SCHOOLMASTERS ..... . 111 2. ENGINEERS ..... . 111 3. ARCHITECTS AND CLERKS OF WORKS . . 111 4. COURIERS ..... . 112 5. GOVERNMENT CONTRACTS . 112 6. SALE OF PROPERTY . 112 7. SUBSCRIPTIONS, TESTIMONIALS, AND C ;hristmas BOXES ..... . . 113 8. CO-OPERATIVE STORES . . . 113 9. RAILWAYS ..... . . . 113 10. SHIPPING ..... . . 113 11. ADVERTISEMENTS . . 113 12. SHOP ASSISTANTS . 114 13. EMPLOYMENT .... . . . 114 14. UNDERTAKERS .... . . 114 15. TRADESMEN .... . . . 114 16. BETTING • . 116 SECTION I. II. III. IV. PART III CHAPTER XVII BRIBERY OF PUBLIC OFFICIALS . .117 AT COMMON LAW .... .117 BY STATUTE . . . . . . .119 STATUTES RELATING TO BRIBERY AT ELECTIONS . 122 PUBLIC BODIES CORRUPT PRACTICES ACT, 1889 . . 128 CHAPTER XVIII GERMAN AND AMERICAN LAW . . 133 PROVISIONS TO PREVENT THE BRIBERY OF EMPLOYEES IN GERMANY . . . . . . .134 AMERICAN LAWS AGAINST BRIBERY — 1. NEW YORK ...... 136 2. STATE OF WISCONSIN . . . . .137 XIV CONTENTS CHAPTER XIX COLONIAL AND MANX STATUTES RELATING TO SECRET COMMISSIONS AND BRIBES I. VICTORIA ..... II. THE COMMONWEALTH OF AUSTRALIA III. WESTERN AUSTRALIA IV. TASMANIA . V. ISLE OF MAN VI. SOUTH AUSTRALIA VII. NEW ZEALAND VIII. SOUTH AFRICA (BILL) 139 139 143 145 150 154 156 161 164 TABLE OF STATUTES, ETC. ENGLISH, SCOTCH, COLONIAL, AND FOREIGN PAGE Statute of Purveyors, 1350 (25 Edw. 3, stat. 5, c. 2) .. .. 118 Buying and Selling Offices Act, 1551-2 (5 and 6 Ed. VI, c. 16) . . . . 119 Statute of Frauds, 1676 (29 Car. ii, c. 3) Sec. 4 3 Limitation Act, 1623 (21 Jac. I, c. 16) 51 East India Company Act, 1793 (33 Geo. Ill, c. 52), Sec. 62 . . . . 119 Prevention of the Sale and Brokerage of Offices Act, 1809 (49 Geo. Ill, c. 126) 119 Jurisdiction in General and Quarter Sessions of the Peace, 1842 (5 & 6 Vict., c. 38) Sec. 1 117 Indictable Offences Act, 1848 (11 & 12 Vict., c. 42) .. Sec. 23 86 Summary Jurisdiction Act, 1848 (11 & 12 Vict., c. 43) . . Sec. 11 86 Criminal Procedure Act, 1851 (14 & 15 Vict., c. 100) 83 Corrupt Practices Prevention Act, 1854 (17 & 18 Vict. c. 102) generally 74, 125 Sec. 2 122 Sec. 3 123 Sec. 10 123 Vexatious Indictments Act, 1859 (23 & 25 Vict. c. 17) generally 68, 72, 82 Sec. 1 82 Sec. 2 83, 87 Sec. 3 83 Corrupt Practices at Elections Act, 1863 (26 & 27 Vic. c. 29) . . Sec. 6 127 Summary Procedure (Scotland), Act 1864 (27 & 28 Vic. c. 53) . . Sec. 4 89 Criminal Law Amendment Act, 1867 (30 & 31 Vict. c. 35) . . Sec. 1 84 Representation of the People Act, 1867 (30 & 31 Vict. c. 102) Sec. 49 123 Parliamentary Elections Act, 1868 (31 & 32 Vict. c. 125) .. .. 125 Corrupt Practices (Municipal Elections) Act, 1872 (35 & 36 Vic. c. 60) 126 Public Health Act, 1875 (38 & 39 Vict. c. 55) .. Sec. 193 120 Customs Law Consolidation Act, 1876 (39 & 40 Vict. c. 36) Sec. 217 119 Prosecution of Offences Act, 1879 (42 & 43 Vict. c. 22) 126 Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49) Sec. 17 85, 89 Sec. 31 88 Sec. 33 88 Summary Jurisdiction (Scotland) Act, 1881 (44 & 45 Vict. c. 33) .. 89 Army Act, 1881 (44 & 45 Vict. c. 58) Sec. 117 120 xv XVI TABLE OF STATUTES, ETC. PAGE Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50) .. Sec. 77 123 Sec. 78 123 Sec. 79 123 Sec. 80 124 Sec. 81 124 Sec. 85 125 Corrupt and Illegal Practices Prevention Act, 1883 (46 & 47 Vic. c. 51) generally, 127 Sec. 1 125 Sec. 3 125 Sec. 6 125 Sec. 15 126 Sec. 36 126 Sec. 37 126 Sec. 45 126 Sec. 46 126 Sec. 52 127 Sec. 53 127 Municipal Elections Act (Corrupt and Illegal Practices Act), 1884 (47 & 48 Vict. c. 70) Sec. 2 128 Sec. 30 128 Sec. 35 128 Criminal Procedure (Scotland) Act, 1887 (50 & 51 Vict. c. 35) Sees. 4-15 inclusive, 89 Sees. 58-71 inclusive, 89 Local Government Act, 1888 (51 & 52 Vict. c. 41) . . Sec. 75 128 Factors Act, 1889 (52 cS: 53 Vict. c. 45) Sec. 1 8 Public Bodies Corrupt Practices Act, 1889 (52 & 53 Vict. c. 69) Act referred to generally, 59, 65, 80, 81, 128 Act in extenso 128 et seq. Inland Revenue Regulation Act, 1890 (53 & 54 Vict, c. 21) ..Sec. 10 119 Local Government Act, 1894 (56 & 57 Vict. c. 73) Building Societies Act, 1894 (57 & 58 Vict. c. 47) Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60) London Government Act, 1899 (62 & 63 Vict. c. 14) Sale of Food and Drugs Act, 1899 (62 & 63 Vict. c. 51 ) Secret Commissions and Rebates (South Australia) Act, 1910. Secret Commissions, Rebates and Profits (Commonwealth of Australia) Act, 1905 143 et seq. An Act to prohibit influencing of Servants, State of Wisconsin, 1905. . 136 Corrupt influencing of Agents, State of New York, 1906 .. .. 135 Prohibition of Secret Commissions and Rebates (Western Australia) Act, 1905 145 et seq. Prevention of Secret Commissions (Victoria) Act, 1905 (Edwardi Septimus Regis) .. .. .. .. .. 139 et seq. Street Betting Act, 1906 (6 Ed. VII, c. 43) 95 . . Sec. 48 128 . . Sec. 23 120 Sec. 112 121 . . Sec. 2 128 ..Sec. 16 120 156 TABLE OF STATUTES, ETC. XV11 PAGE Prohibition of Secret Commissions (Tasmania) Act, 1906 .. 150 et seq. Prevention of Corruption Act, 1906 (1 Ed. VII, c. 34) Whole Act referred to generally, 42, 53, 57, 61, 64, 66, 67, 68, 69, 70, 71, 72, 73, 90, 91, 99, 100, 103, 107, 108, 109, 110 Sec. 1 1, 67, 68, 69, 73 Sec. 2 68, 69, 81, 87, 88 Sec. 3 68, 72, 89 Sec. 4 69, 71, 90 Probation of Offenders Act, 1907 (7 Ed. VII, c. 17) 93 Children Act, 1908 (8 Ed. VII, c. 67) 95 Prevention of Corruption (Isle of Man) Act, 1908. . . . . . 154 et seq. Companies (Consolidation) Act, 1908 (8 Ed. VII, c. 69) Sec. 215 12, 28 Act for the Prevention of Corrupt Competition in Germany, 1909 133, 134, 135 Prohibition of Secret Commissions (New Zealand) Act, 1910 .. 161 et seq. Licensing (Consolidation) Act, 1910 (10 Ed. VII and 1 Geo. V, c. 24) 120 Expiring Laws Continuance Act, 1912 (2 & 3 Geo. V, c. 18), . . 1: Rebate and Secret Commissions Prohibition, 1912 (South Africa) Bill Prevention of Corruption Act Amendment Bill, 1913 Sec. Sec. Sec. Sec. 23, 128 164 1 108 2 108 3 109 4 109 -(1520) TABLE OF CASES PAGE Aas v. Benham (1891), 2 Ch. 244 H Adamson, R. v. (1875), 1 Q.B.D. 201 84 Albion Steel Co. v. Martin (1875), 1 CD. 585. . . . . 29 Alt, De Bussche v. (1877), 8 CD. 286; C.A. 47 L.T. Ch.D. 381* 38L.T. 370C.A 7,31,36,39 Andrews v. Ramsay (1903), 2 K.B. 635; 72 L.J. K.B. 865; 89 L.T.456 : 52W.R. 126 37)38 Angehrn & Piel, Federal Supply and Cold Storage Co. v. (1910) 26 T.L.R. 626 43,44 Ansell, Boston Deep Sea Fishing Co. v. (1888), 59 L.T. 345 ; C.A. 39 Ch.D. 339 15,18,26,34,43,44,47 Archer's Case (1892), 1 Ch. 341 ; 65 L.T. 800 ; 8 T.L.R. 90 C.A. . . 26 Arnott. Spain v. (1817), 2 Stark 256 36 Attwood, Small v. (1831) Younge 507 ; (1838), 6 C. & F. 232 . '. 51 Bank of London, Tyrrell v. (1862), 10 H.L. 39 25 Bank of New Zealand, Flemings. (1900), A.C 586 . . . .79 Barber, Kimber v. (1872), L.R. 8 Ch. 56 ; 27 L.T. 526 ; 21 W.R. 65 . 28 Barber and Others, R. v. (1887), 3 T.L.R. 491 53 Barbour, Williamson v. (1877), 9 CD. 529 ; 37 L.T. 703 • 50 L T Ch. 147 43. 78 Baring t/. Corrie (1818), 2 B. & Aid. 148 ; 20 R.R. 383 . . .8 Baring v. Stanton (1876), 3 Ch.D. 502 ; 35 L.T. 652 ; 25 W.R. 237 C.A. 39, 40 Barnes, Gluckstein v. (1898), 2 Ch. 166 ; (1900), A.C. 240 ; 69 L.T.Ch 385 : 82 L.T. 393 : 7 Manson, 321 H.L. . (1846), 12 C. & F. 787 ; 3 C.B. 519 ; 69 R R. 204 56 30 Barnett, Brandao H.L. . Barnett v. South London Tramways Co. (1887), 18 Q.B.D. 81 L.J.Q.B. 452; 57 L.J. 436 ; 35 W.R. 640 ; 3 T.L.R. 611, C.A. Bartramz/. Lloyd (1904), 90 L.T. , 359 ; 20 T.L.R. 281, C.A. . Baxter, Kelner v. (1866), L.R. 2 C.P. 185 ; 36 L.T.C.P., 94 ; 15 LT 213; 15 W.R. 278 Bealv. South Devon Rail Co. (1864), 3 H. & C 337 ; 11 L.T. 184 : 12 W.R. 1115, Ex. Ch Beale, Miller v. (1879), 27 W.R. 403 Beale, K.v. (1798), 1 East 183 Beesby, R.v. (1909), 1 K.B. 849 Benham, Aas v. (1891), 2 Ch. 244 Benson v. Heathorn (1842), 1 Y. & Col. C.C. 326 ; 57 R.R. 351 Bentley v. Craven (1853), 18 Beav. 75 . Bernard, Coggs v., 2 Lord Ray. 909 Bewdley Case, The (1868), 1 O.M. & H. 19 . Bilton, Turpinv. (1843), 5 M. & G. 455 ; 6 Scott, N.R. 447 ; 12L.T.C.P. 167 .5 Blaine, Harsant v. (1887), 56 L.J.Q.B. 511 ; 3 T.L.R. 689, C.A. .' .' 10 Bolton, Hough & Co. v. (1886), 2 T.L.R. 788 . . . . 20, 45 Boston Deep Sea Fishing Co. v. Ansell (1888), 59 L.T. 345 ; 39 Ch. 339, C.A 15, 18, 26, 34, 43, 44, 47 Bowes in re (1886), 33 Ch.D. 586 5 2 41 6 5 . 118 . 86 11 27.34 . 17 5 75 xix XX TABLE OF CASES PAGE Bowler, R. v. (1842), C. & Mar. 559 118 Boyes, R. v. (1860), 2 F. & F. 157 118 Brandao v. Barnett (1846), 12 C. & F. 787; 3 C.B. 519; 69 R.R. 204, H.L. . 5 Bray, R. v. (1862), 3 B. & S. 255 84 British Seamless Paper Box Co., In re (1881), 17 Ch.D. 471 . . 30 Broadwood, Shipway v. (1899), 1 Q.B. 369; 68 L.J.Q.B. 360; 80 L.T. 11, C.A. ... ... 18,21,47,75,110 Brookman, Rothschild v. (1831), 5 Bligh, N.S. 198; 2 Dow & C.L. 188 ; 30 R.R. 147, H.L. 15, 16 Brooks, Ladywell Mining Co. v. (1887), 35 Ch.D. 400 . . 22, 50 Bruster, Nitedals Taendstikfabrick v. (1906), 2 Ch. 674 ; 22 L.T.R. 724 ; 75 L.J.Ch. 798 17, 38 Bulfield v. Fournier (1896), 11 T.L.R. 62, 282, 15 R. 176 . 25, 31, 32, 33 Burchell, Eastland v. (1878), 3 Q.B.D. 435 ; 47 L.J., Q.B. 500 ; 38 L.T. 563; 27 W.R. 290 4 Burdick v. Garrick (1869), L.R. 5, Ch.Ap. 233; 39 L.J.Ch. 369; 18 W.R. 387, Ch.App 51, 52 Burland v. Earle (1902), A.C. 83; 71 L.J.P.C. 1 ; 85 L.T. 553; 50 W.R. 241 ; 9 Manson 17, P.C 50 Burkinshaw, Turner v. (1867), L.R. 2 Ch. 491 ; 15 W.R. 753 . . 10 Burnett, Quarman v. (1840), 6 M. & W. 499 ; 55 R.R. 717 . . .2 Burrell v. Mossop (1888), 4 T.L.R. 270, C.A 25 Bush, Pickering v. (1812), 15 East 43 ; 13 R.R. 364 . ... 3 Cape Breton Co., re (1884), 26 Ch.D. 221 ; 29 Ch.D. 795 ; 13 L.R. 450 C.A 11, 17, 19, 22, 50 Cassano, R. v. (1805), 5 Esp. 231 118 Castel & Latta, Lucifero v. (1887), 3 T.L.R. 371 . . . .31 Cavendish Bentinck v. Fenn (1887), 12 A.C. 652, H.L. . . 13, 19, 22 Chambers, Gaskellw. (1858), 26 Beav. 360 ; 20 L.J.Ch. 385. . . 26 Chambers, R.v. (1896), 60 J. P. 586 ; 18 Cox C.C. 401 . . . .86 Cleasby, Morris v. (1816), 4 M. & S. 516 ; 14 R.R. 531 . . .8 Clegg v. Edmonson (1857), 8 D.M. & G. 787, R.R. 336 .. . 17 Cockranv. Irlam (1813), 2 M. & S. 307 ; 15 R.R. 257. ... 7 Cockshott, R. v. (1898), 1 Q.B. 582 86 Coe v. Southern (unreported). ....... 58 Coggs v. Bernard, 2 Ld. Raymond, 909 ...... 5 Cohen v. Kuschke (1900), 83 L.T. 102, C.A 47 Congreve, Hichens v. (1831), 4 Sim 420 22 Cooper v. Slade (1858), 25 L.J., N.S., Q.B. 330 ; 6 H.L. Cas. 773 . . 74 Corrie, Barings (1818), 2 B. & Aid. 148 ; 20 R.R. 383 . . .8 Costa Rica Rail Co. v. Forwood (1901), 1 Ch. 753 ; 70 L.J.Ch. 385 ; 84 L.T. 279 ; 49 W.R. 337 ; 8 Manson 374, C.A. ... 25, 26 Crabbe, R. v. (1895), 59 J. P. 247 86 Craven, Bentley v. (1853), 18 Beav. 75 17 Crooke, R. v. (1731), 2 Str. 901 77 Cunliffe, Great Western Insurance Co. v. (1874)), L.R. 9 Ch. 525 ; 30 L.T. 661 ; 43 L.J.Ch. 741 .... . . . 32,39 Currie v. Misa (1875), L.R. 10 Ex. 162 79 Davis v. Morton (1913), W.N., April 26th 86 De Bussche v. Alt (1879), 8 CD. 286, C.A. ; 47 L.J.Ch. 381 ; 38 L.T. 370, C.A 7,31,36,39 De Kromme, R. v. (1892), 17 Cox. C.C. 402 53 Dexter Lander & Coates, R. v. (1899), 19 Cox 360 . . . .82 Dixon, R. v. (1814), 3 M. & Sel. 11 77 TABLE OF CASES XXI PAGE Douglas, R. v. (1846), 13 Q.B. 42 119 Dunne v. English (1874), L.R. 18 Eq. 524 ; 31 L.T. 75 . . 21,41 Durant, Keighley Maasted & Co. v. (1901), A.C. 240; 70 L.J.K.B. 662; 84 L.T. 777; 17 T.L.R. 527, H.L 4 Earle, Burland v. (1902), A.C. 83; 71 L.J.P.C. 1 ; 85 L.T. 553; 50 W.R. 241 ; 9 Manson 17, P.C 50 Eastland v. Burchell (1878), 3 Q.B.D. 435; 47 L.J.Q.B. 500; 38 L.T. 563; 27 W.R. 290 Eden v. Ridsdale Rail Lamp, Etc., Co. (1889), 58 L.J.Q.B 61 L.T. 444, C.A Edington v. Fitzmaurice (1885), 29 Ch.D. 483 . Edmonson, Clegg v. (1857), 8 D.M. & G. 787 ; R.R. 336 . Edwards, ~R.v. (1895), 59 J. P. 88 Emma Silver Mining Co. v. Grant (1879), 11 Ch.D. 918 ; 40 L.T English, Dunne v. (1874), L.R. 18 Eq. 524 ; 31 L.T. 75 Erlanger v. New Sombrero Phosphate Co. (1878), 3 App. Cas. 1244 48L.J.Ch. 73; 39 L.T. 269; 27 W.R. 65, H.L. . . . 19,30 579; . 50 . 77 . 17 . 131 804 . 30 21.41 Farrington, R. v. (1811), R. & R. 207 77 Fawcett, Henslowz/. (1835), 3 A. & E. 58 75 Fawcett v. Whitehouse (1829), 1 Russ & My. 132; 8 L.T. 50; 32 R.R. 163; 4 L.J. Ch. 64 10,51 Federal Supply and Cold Storage Co. v. Angehrn & Piel (1910), 26 T.L.R. 626 43, 44 Fenn, Cavendish Bentinck v. (1887), 12 A.C. 652, H.L. . . 13, 19, 22 Fitzmaurice, Edington v. (1885), 29 Ch.D. 483 77 Fleming v. Bank of New Zealand (1900), A.C. 586 . . . .79 Foote, R. v. (1883), 10 Q.B.D. 378 87 Forwood, Costa Rica Rail Co. v. (1901), 1 Ch. 753 ; 10 L.J.Ch. 385 ; 84 L.T. 279 ; 49 W.R. 337 25, 26 Fournier, Bulfield v. (1896), 11 T.L.R. 62 and 282 C.A., 15 R. 176 25, 31, 32, 33 Fourteenth Street Stone, Sinkin v., N.Y. 124 App. Div. 384 . . 137 Garden, Turnbull v. (1869), 20 L.T. 318 . . . 32, 33, 35, 38, 39 Garrick, Burdeck v. (1869), L.R. 5 Ch. Ap. 223; 39 L.J.Ch. 369; 18 W.R. 387 Ch.App 51,52 Gaskell v. Chambers (1858), 26 Beav. 360 ; 20 L.J.Ch. 385. . . 26 General Exchange Bankw. Horner (1869), 9 Eq. 490 ; 39 L.J. Ch. 393; 22 L.T. 693; 18 W.R. 414 27,33 General Iron Screw Collier Co., Grill v. (1866), L.R. 1 C.P. . 6 Gillett v. Peppercorne (1840), 3 Beav. 83 ; 52 R.R. 38 . . .45 Gluckstein v. Barnes (1898), 2 Ch. 166 ; (1900), A.C. 240 ; 69 L.J.Ch. 385 ; 82 L.T. 393 ; 7 Mans. 321, H.L .30 Gold Exploration and Development Syndicate, Grant v. (1900), 1 Q.B.D. 233 ; 69 L.J.Q.B. 150 ; 82 L.T. 5 ; 48 W.R. 280 ; 16 L.T. 86, C.A 46 Grace Smith & Co., Lloyd v. (1912), A.C. 716 1 Graham v. Hart (1908), 45 Sc.L.R. 332, Ct. of Justy. ... 56, 79 Grant, Emma Silver Mining Co. v. (1879), 11 Ch.D. 918 ; 40 L.T. 804 30 Grant v. Gold Exploration and Development Syndicate (1900), 1 Q.B.D. 233 ; 69 L.J.Q.B. 150 ; 82 L.T. 5 ; 48 W.R. 280 ; 16 T.L.R., 86 C.A 46 Gray?;. Haig (1854), 20 Beav. 219; 109 R.R. 396 . . . . 6, 9 Great Western Insurance Co. v. Cunliffe (1874), L.R., 9 Ch. 525 ; 30 L.T. 661 ; 43 L.J.Ch. 741 32, 39 XXII TABLE OF CASES Green, Pearse v. (1819), 1 J. & W. 140 ; 20 R.R. 258. Griffiths v. Williams (1787), 1 T.R. 710 . Grill v. General Iron Screw Collier Co. (1866), L.R. 1 C.P. Haig, Gray v. (1854), 20 Beav. 219 ; 109 R.R. 396 . . . .6,9 Hankey, Russell v. (1794), 6 T.R. 12 6 Harmony Borax Co., Sell's Advertising Agency v. (1896), 13 T.L.R. 23 Harrington v. Victoria Engraving Dock Co. (1878), 39 L.T. 120 ; 3 Q.B.D. 549 ; 47 L.J.Q.B. 594 ; 26 W.R. 740 . .20, 46, 47 Harsant v. Blaine (1887), 56 L.J., Q.B. 511 ; 32 L.R. 689, C.A.. . 10 Hart, Graham v. (1908), 45 Sc.L.R. 332, Ct. of Justy. ... 56, 79 Hartmont, Phosphate Sewage Co. v. (1877), 5 Ch.D. 394, C.A. . 18, 43 Haslam in re (1902), 1 Ch. 765. . 25 Havelock, Thompson v. (1808), 1 Camp 527 ; 10 R.R. 744 . . .6 Hay's Case (1875), L.R. 10 Ch. 601 ; 44 L.J.Ch. 721 ; 39 L.T. 466 11, 26, 27 Heathorn, Benson v. (1842), 1 Y. & C, C.C. 326 ; 57 R.R. 351 . 27, 34 Heiron, Metropolitan Bank v. (1880), 5 Ex.D. 319, C.A. . . 51, 52 Henslow v. Fawcett (1835), 3 A. & E. 58 75 Heydon's Case (1762), 3 Rep. 76 99 Hichens v. Congreve (1831), 4 Sim. 420 22 Higgins, R. v. (1801), 2 East. 14 118 Hill, ex parte (1862), 28 Ch.D. 704 ; 7 L.T. 656 . . . .77 Hill, Lacey w. (1870), L.R. 18 Eq. 182 5 Hill, R. v., 2 Mood C.C. 30 77 Hine, Williamson v. (1891), 1 CD. 393 ; 60 L.J.Ch. 123 ; 63 L.T. 682 ; 39 W.R. 239; T.L.R. 113 14 Hippisleyz/. Knee Bros. (1905), 1 K.B. 9 ; 74 L.J.K.B. 68 ; 92 L.T. 20 ; 21 L.T.R. 5 36,38 Hodgson, Norreys v. (1897), 13 T.L.R. 421, C.A 38 Holden, R. v. (1809), R. & R. 154 78 Holden v. Webber (1860), 29 Beav. 121 106 Holland, Shaw v. (1900), 2 Ch. 305 ; 69 L.J.Ch. 621 ; 82 L.T. 782 ; 48 W.R. 680 ; 7 Manson 409, C.A 29, 50 Horner, General Exchange Bank v. (1869), 9 Eq. 490 ; 39 L.J.Ch. 393 ; 22 L.T. 693 ; 18 W.R. 414 27, 33 Hough & Co. v. Bolton (1886), 2 T.L.R. 788 . . . . 20, 45 Hovenden & Sons v. Millhoff (1900), 83 L.T. 43 ; 16 T.L.R. 506, C.A. 18, 19, 20, 49, 76 Hudson, Yorkshire and Midland Railway v. (1853), 16 Beav. 485 ; 22 L.J.Ch. 529; 96 R.R. 228 33 Hurst, Padwick h. (1854), 18 Beav. 575; 23 L.J.Ch. 657 ... 5 India Rubber, Etc., Telegraph Co., Panama, Etc., Telegraph Co. v. (1875), L.R. 10 Ch. 526 ; 45 L.J.Ch. 121 ; 32 L.T. 517 ; 23 W.R. 583 5, 16, 19, 45, 48 Ipswich Tannery, Swale v. (1906), 11 Com. Cas. 88 . . . .44 Irlam, Cockran v. (1813), 2 M. & S. 307 ; 15 R.R. 257 . . .7 Jackson, North Eastern Railway Co. v. (1870), 19 W.R. 198 . 28, 33 Joliffe, R. v., 1 East. 154 117 Jones, Powell v. (1905), 1 K.B. 11, C.A. ; 74 L.J.K.B. 115; 92 L.T. 430 ; 53 W.R. 277 ; 21 T.L.R. 55 ; 10 Com. Cass. 36, C.A. . 36, 51 Joseph, Mason v. (1804), 1 Smith 408 page . 10 7 6 Keighley Marsted & Co. v. Durant (1901), A.C. 240 84 J.T. 777 ; 17 T.L.R. 527, H.L. . Kelner v. Baxter (1866), L.R., 2 C.P. 185 ; 36 L.J 213; 15 W.R. 278 70 L.J.K.B. 662; C.P. 94 ; 15 L.T. 4 4 TABLE OF CASES XXU1 PAGE Kershaw, R. v., 6 E. & B. 100 79 Kimber v. Barber (1872), L.R., 8 Ch. 56 ; 27 L.T. 526 ; 21 W.R. 65 . 28 Knee Bros., Hippisleyz;. (1905), 1 K.B. 9 ; 74 L.J.K.B. 68 ; 92 L.T. 20 ; 21 T.L.R. 5 36, 38 Knill, R. v. (1822), 5 B. & A. 929 n 74 Kuschke, Cohen v. (1900), 83 L.T. 102, C.A 47 Lacey v. Hill (1870), L.R., 18 Eq. 182 ; 43 L.J.Ch. 551 ; 30 L.T. 484 ; 22 W.R. 586 5 Lady Lincoln, White v. (1803), 8 Vesey 363 ; 7 R.R. 71 . . .9 Ladywell Mining Co. v. Brooks (1887), 35 Ch.D. 400 ; 56 L.J.Ch. 684 ; 56 L.T. 677 ; 35 W.R. 785 ; 3 L.T.R. 546, C.A. ... 22, 51 Lancaster, R. v. (1890), 16 Cox C.C 118 Larking, Ex parte (1876), 4 CD. 566 26 Leask, Pole v. (1860), 33 L.J.Ch. 162 ; 28 Beav. 562 ; 29 L.J.Ch. 888 2, 4 Leeds, Etc., Theatre of Varieties re (1902), 2 Ch. 809 . . . 22 Lever, Mayor, Etc., of Salford v. (1891), 1 Q.B. 168 ; 60 L.J.Q.B. 39 ; 63 L.T. 685 ; 7 T.L.R. 18, C.A 24,45,110,121 Lister & Co. v. Stubbs (1890), 45 Ch.D. 1 ; 59 L.J.Ch. 570 ; 62 L.T. 645 ; 6 T.L.R. 317, C.A 51 Lloyd, Bartram v. (1904), 90 L.T. 359; 20 L.T.R. 281, C.A. . . 41 Lloyd v. Grace Smith & Co. (1912), A.C. 716 1 Long, Oetzmann (1896), The Times, 7th July, 1896 ... 59, 60 Lord Mayor of London, R. v. ex parte Gosling (1886), 16 Cox 77 . 84 Lucifero v. Castel & Latta (1887), 3 T.L.R. 371 . . . .31 Lupton v. White (1808), 15 Vesey 436 ; 10 R.R. 94 . . . .10 Marcus, R. v. (1846), 2 C. & K. 356 78 Martin, Albion Steel Co. v. (1875), 1 CD. 585 29 Mason v. Joseph (1804), 1 Smith 408 7 Mayor, Etc., of Salford v. Lever (1891), 1 Q.B. 168, 60 L.J.Q.B. 39 ; 63 L.T. 685 ; 7 T.L.R. 18, C.A 24,45,110,121 McKay's Case (1875), 2 Ch.D. 1 ; 45 L.J.Ch. 148 ; 33 L.T. 517, C.A. . 24 M'Kenna, Parker v. (1874), 31 L.T. 739 ; L.R. 10 Ch. 96 ; 44 L.J.Ch. 425 ; 23 W.R. 271 15, 18, 34, 73, 76 Meade, Thompsons. (1891), 7 T.L.R. 698 29 Metropolitan Bank v. Heiron (1880), 5 Ex.D. 319, C.A. . . 51, 52 Miller u. Beale (1879), 27 W.R. 403 5 Millhoff, Hovenden & Sons v. (1900), 83 L.T. 43 ; 16 L.T.R. 506, C.A 17, 19, 20, 49, 76 Misa, Currie v. (1875), L.R., 10 Ex. 162 79 Morris v. Cleasby (1816), 4 M. & S. 566 ; 14 R.R. 531 . . .8 Mollett, Robinson v. (1875), 7 H.L. 802; 45 L.J.C.P. 362; 33 L.T. 544, H.L 7, 32 Monatt re (1899), 1 Ch. 831 51 Morison v. Thompson (1874), L.R., 9 Q.B. 486 . . . . 33, 49 Morton, Davis v. (1913), W.N., April 26 86 Mossop, Burrell v. (1888), 4 T.L.R. 270, C.A 25 Municipal Permanent Investment Building Society v. Richards (1889), W.N. 103 121 Murphy v. O'Shea (1845), 2 Jo. & Lat. 422 ; 8 Ir. Eq.R. 329 ; 69 R.R. 337 16, 40 Nash, R. v. (1852), 2 Den. 493 78 New Sombrero Phosphate Co., Erlanger v. (1878), 3 App. Cas. 1244 ; 48 L.J.Ch. 73; 39 L.T. 269; 27 W.R. 65, H.L 19,30 Nitedals Taendstikfabrik v. Bruster (1906), 2 Ch. 674 ; 22 T.L.R. 724; 75 L.J.Ch. 698 17,38 XXIV TABLE OF CASES Noakes, Yewens v. (1880), 6 Q.B.D. 532 . Norreys v. Hodgson (1897), 13 T.L.R. 421, C.A. Northallerton Petition (1869), 1 O'N. & H., p. 1173 Northern Eastern Railway v. Jackson (1870), 19 W.R. 198 North Norfolk Case (1869), 1 O'M. & H., p. 238 . PAGE . 2 . 38 . 75 28,33 . 75 Oetzmann v. Long (1896), The Times, 7th July, 1896 . . 59, 60 Oldham Burgh Case, 1 O'M. & H. 151 119 O'Shea, Murphy v. (1845), 2 Jo. Lat. 422 ; 8 Ir. Eq.R. 329 ; 69 R.R. 337 16, 40 Oxford Building, Etc., Society in re (1886), 35 Ch.D. 502 . .121 Padwick v. Hurst (1854), 18 Beav. 575 ; 23 L.J.Ch. 657 . . .5 Panama, Etc., Telegraph Co. v. India Rubber, Etc., Telegraph Co. (1875), L.R., 10 Ch. 526 ; 45 L.J.Ch. 121 ; 32 L.T. 517 ; 23 W.R. 583 L.R., 10 Ch. 96 Parker v. M'Kenna (1874), 31 L.T. 739 ; 425 ; 23 W.R. 271 Parr, Spain, Queen of v. (1869), 39 L.J. Ch. 73 . Pearse v. Green (1819), 1 J. & W. 140, 20 R.R. 258 . Pearson's Case (1877), 5 Ch.D. 336 . Penn v. Spiers & Pond, Ltd. (1908), 9 K.B. 770 Pender, Salomons v. (1865), 3 H. & C. 643 ; 34 L.J. Ex. 95 ; 13 W.R. 637 Peppercorne, Gillett v. (1840), 3 Beav. 83 ; 52 R.R. 38 Phillips v. Phillips (1852), 9 Hare 473 ; 22 L.J.Ch. 141 Phillips, R. v. (1805), 6 East 464 . Phosphate Sewage Co. v. Hartmont (1877), 5 Ch.D. 394, C.A Pickering v. Bush (1812), 15 East 43 ; 13 R.R. 364 Pitt, R. v. (1762), 3 Burr, 1335 Plympton, R. v. (1742), 2 Ld. Raym. 1377 Pole v. Leask (1860), 33 L.J.Ch. 162, H.L 888 Pollman, R. v. (1809), 2 Com. 229 . Powell v. Jones (1905), 1 K.B. 11, C.A. ; 74 L.J.K.B. 1 430; 53 W.R. 277; 21 T.L.R. 55 ; 10 Com. Cas. 36, C.A. Quarman v. Burnett (1840), 6 M. & W. 499 ; 55 R.R. 717 Quebec Rail Co. v. Quinn (1858), 12 Mos. P.C.C. 232, P.C. 5, 16, 19, 45, 48 44 L.J.Ch. 15, 18, 34, 73, 76 36 10 24, 27, 28 28 Beav. 562 Quinn, Quebec Rail Co. v. (1858), 12 Mos. P.C.C R. v. Adamson (1875), 1 Q.B.D. 201 ; 95 Barber and Others (1887), 3 T.L.R. 491 Beale (1798), 1 East 183 . Beesby (1909), 1 K.B. 13, 849 . Bowler (1842), C. & Mar. 559 . Boyes (1860), 2 F. & F. 157 . Bray (1862), 3 B. & S. 255 Cassano (1805), 5 Esp. 231 Chambers, 60 J. P. 586 . Cockshott (1898), Q.B. 582 . Crabbe (1895), 59 J. P. 247 Crooke (1731), 2 Str. 901 . De Kromme (1892), 17 Co. C.C. 402 Dexter, Lander & Coates (1899), 19 Cox Dixon (1814), 3 M. & Sel. 11 Douglas (1846), 13 Q.B. 42 232, P.C. 360 12 L.T. 267 29 L.J.Ch 5 ; 92 L.T 107 7,37 45 5 77 18,43 3 118 118 2, 4 118 36,51 2 7 7 84 53 118 86 118 118 84 118 86 86 84 77 53 82 77 119 TABLE OF CASES XXV PAGE R.w.Edwards, 59 J. P. 88 130 Farrington (1811), R. & R. 207 77 Foote (1883), 10 Q.B.D. 378 87 Higgins (1801), 2 East 14 »1» Hill, 2 Mood C.C. 30 77 Holden (1809), R. & R. 154 78 Jolliffe, 1 East 154 ........ 118 Kershaw, 6 E. & B. 100 79 Knell (1822), 5 B. & A. 929 n 74 Lancaster (1890), 16 Cox C.C J \\ Lord Mayor of London ex parte Gostling (1886), 16 Cox 77 . 84 Marcus (1846), 2 C. & K. 356 78 Nash (1852), 2 Den 493 78 Philipps (1805), 6 East 464 77 Pitt (1762), 3 Burr 1335 118,119 Plympton (1742), 2 Ld. Raym. 1377 118,119 Pollman (1809), 2 Cam. 229 n "» Sheppard (1810), R. & R. 169 78 Smith (1912), Cambridge Assizes ...... 54 Steward (1831), 2 B. & Ad. 12 118 Vaughan (1769), 4 Burr 2494 I 18 Young (1801), 2 East 14 n8 Ramsay, Andrews v. (1903), 2 K.B. 638 ; 72 L.J.K.B. 865 ; 89 L.T. 450 ; 52 W.R. 126 37 - 38 Richards, Municipal Permanent Investment Building Society (1889), W.N. 103 I 21 Ridsdale Railway Lamp Co., Eden v. (1889), 58 L.J.Q.B. 579; 61 L T. 444 C.A. .....••• **0 Riley, WoodV (1867), L.R., 3* C.P. 26 89 Robinson v. Mollett (1875), L.R., 7 H.L. 802 ; 44 L.J.C.P. 362 ; 33 L.T. 544, H.L 7 - 32 Rothschild v. Brookman (1831), 5 Bligh, N.S. 198 ; 2 Dow & CI. 188 ; 30 R.R. 147, H.L I 5 . i6 Russell v. Hankey (1794), 6 T.R. 12 6 Salomons^. Pender (1865), 3 H. & C. 643 ; 34LJ.Ex. 95; 12 L.T. 267; 13 W.R. 637 I 7 . 37 Salford (Mayor, Etc., of) v. Lever (1891), 1 Q.B. 168; 60 L.J.Q.B. 39; 63 L.T. 658; 7 T.L.R. 18, C.A. . . .24, 45, 110, 120 Sandars, Smart v. (1846), 3 C.B. 380 6 Sell's Advertising Agency v. Harmony Borax Co. (1896), 13 T.L.R. 123 . • • • • .23 Shaw v. 'Holland (1900)', 2 Ch. 305; 69 LJ.Ch. 621 ; 82 L.T. 782; 48 W.R. 680 ; 7 Manson 409, C.A 28, 29, 50 Sheppard, K.v. (1810), R. & R. 169 ? 8 Shipway v. Broadwood (1899), 1 Q.B. 369 ; 68 L.J.Q.B. 360 ; 80 L.T. 11, C.A. . . . . . . • • 18,21,47,75, 110 Sirkin v. Fourteenth Street Store, N.Y., 124 App. Div. 384 . . 137 Slade, Cooper v. (1858), 25 L. J., N.S., Q.B. 330 ; 6 H.L. Cas. 773 . . 74 Slater, Stubbsu. (1910), 1 Ch. 632 C.A. ; 59 L.J.Ch. 570 ; 62 L.T. 645 ; 6 T.L.R. 317, C.A 29 Small v. Attwood (1831) Younge 507 (1838), 6 C. & F. 232 . . 51 Smart v. Sandars (1846), 3 C.B. 380 6 Smith, R. v. (1912), Cambridge Assizes . . . . • .54 Smiths. Sorby (1875), L.R., 3 Q.B.D. 552 19, 20 Sorby, Smiths. (1875), L.R., 3 Q.B.D. 552 19,20 Sothern v. Coe (unreported) .....•••" XXVI TABLE OF CASES PAGE South Devon Railway Co., Bealv. (1864), 3 H. & C. 337 ; 11 L.T. 184 12 W.R. 1115, Ex.Ch South London Tramways Co., Barnett v. (1887), 18 Q.B.D. 817 L.J.Q.B. 452; 57 L.T. 436 ; 35 W.R. 640 ; 3 T.L.R. 611, C.A. . Spain v. Arnott (1817), 2 Stark. 256 Spain, Queen of v. Parr (1869), 39 L.J. 73 ... Spiers & Pond, Ltd., Penn v. (1908), 9 K.B. 770 . Stanton, Barings. (1876), 3 Ch.D. 502 ; 35 L.T. 652 ; 25 W.R. 237, 56 2 2 36 107 C.A. 39, 40 Stevens, Williams v. (1866), L.R., 1 P.C. 359 ; 36 L.J.P.C. 21 ; 4 Mood, P.C.C. (N.S.), 235 ; 15 W.R. 409 36 Steward, R.v. (1831), 2 B. & Ad. 12 118 Stubbs, Lister & Co. v. (1890), 45 Ch.D. 1 ; 59 L.J.Ch. 570 ; 62 L.T. 645 ; 6 T.L.R. 317, C.A 51 Stubbs v. Slater (1910), 1 Ch. 632 ; 79 L.J.Ch. 420 ; 102 L.T. 444, C.A. 29 Swale v. Ipswich Tannery (1906), 11 Com. Cas. 88 . . . .44 Thompson v. Havelock (1808), 1 Camp. 527 ; 10 R.R. 744 . Thompson v. Meade (1891), 7 T.L.R. 698 . Thompson, Morison v. (1874), L.R., 9 Q.B. 486 . Tunman, Wilson v. (1843), 6 M. & G. 236. Turnbulli/. Garden (1869), 20 L.T. 318 . . . .32,33 Turner v. Burkenshaw (1867), L.R., 2 Ch. 491 ; 15 W.R. 753 Turpin v. Bilton (1843), 5 M. & G. 455 ; 6 Scott, N.R. 447 ; 12 L 167 Tyrrell v. Bank of London (1862), 10 H.L. 39 . Vaughan, R. v. (1769), 4 Burr 2494 ... Victoria Engraving Dock Co., Harrington v. (1878), 39 L.T 3 Q.B.D. 549 ; 47 L.J.Q.B. 594 ; 26 W.R. 740 . 6 . 29 33,49 4 35, 38, 39 . 10 J.C.P. 5 . 25 117, 118 120; 20, 46, 47 63 L.T Wason, ex parte (1869), L.R., 4 Q.B. 573. Webber, Holden v. (1860), 29 Beav. 121 . Westminster Case, The (1869), 1 O'M. & H., p. 95 White v. Lady Lincoln (1803), 8 Vesey 363 ; 7 R.R. 71 White, Lupton v. (1808), 15 Vesey 436 ; 10 R.R. 94 . Whitehouse, Fawcett v. (1829), 1 Russ & My. 132; R.R. 163; 4 L.J.Ch. 64 Williamson v. Hine (1891), 1 CD. 393 ; 60 L.J.Ch. 123 39 W.R. 239; 7 T.L.R. 113 Williams, Griffiths v. (1787), 1 T.R. 710 . Williams v. Stevens (1866), L.R., 1 P.C. 359 ; 36 L.J.P.C. 21 ; P.C.C. (N.S.) 235 ; 15 W.R. 409 Williamson v. Barbour (1877), 9 Ch.D. 529 ; 37 L.T. 703 ; 50 147 Wilson v. Tunman (1843), 6 M. & G. 236 . Wood v. Riley (1867), L.R. 3 C.P. 26 ... Yewens v. Noakes (1880), 6 Q.B.D. 532 . Yorkshire and Midland Railway v. Hudson (1853), 16 Beav 22 L.J.Ch. 529; 96 R.R. 228 . . Young R. v. (1801), 2 East 14 . 84 106 75 9 10 8 L.J. 50; 32 10,51 682 Moo .J.Ch 485; 14 7 36 43. 78 4 90 33 118 KEY TO ABBREVIATED REFERENCES TO REPORTS ABBRE- VIATION. REPORTS. DATE. COURT. A.C. . . I App. Cas. ' A. & E. . . B. & A. . I Barn.&Ald. > B. & Ad. . Beav. Bligh B. & S. . Burr. C.A. . . Camp. CD. . . Ch. . . C. & K. . Car. & Kir. CI. & Fin. Cox Cr. Ca. C.P. . . Den. . . East . E. & B. . Eq. . . Esp. . F. & F. . Hare . H. & C. . H.L. . . To. & Lat. J. & W. . J. P. ■ • K.B. . . L.J. . . L.R. . . Ld. Ray. Ld. Ravm. L.T. . . Man. & G. Mac. & G. Macq. Moo. P.C.C. Mood. C.C. M. & Sel. . M. & W. . O'M. & H. Q.B. . . R. . . Rep. . . R.R. . . Russ. & My Sc. L.R. . Sim. . Smith Stra. . . Stark. . T.L.R. . T.R. . . Vesey W.N. W.R. Y. & C. . Appeal Cases Adolphus and Ellis's Reports Barnewell and Alderson's Reports Barnewell and Adolphus' Reports Beavan's Reports . Bligh's Reports Best and Smith's Reports Burrow's Reports . Court of Appeal. Campbell's Reports Carrington and Kirwan's Reports Clark and Finnelly's Reports Cox's Criminal Cases . Denison's Crown Cases East's Reports Ellis and Blackburn .... Equity Cases Espinasse's Reports .... Foster and Finlason's Reports Hare's Reports Hurlstone and Coltman's Reports House of Lords Jones and Latouche's Reports Jacob and Walker's Reports . Justice of the Peace .... Law Journal Law Reports Lord Raymond's Reports . Law Times Manning and Granger's Reports Macnaughten and Gordon's Repts. Macqueen's Appeal Cases (Scotch) Moore's Privy Council Cases . Moody's Crown Cases . Maule and Selwyn's Reports . Meeson and Welsby's Reports O'Mallev and Hardcastle's Cases The Reports Coke's Reports Revised Reports Russell and Mylore's Reports Scotch Law Reporter . . . . Simon's Reports Smith's Reports Strange's Reports Starkie's Reports Times' Law Reports . . . . Term Reports (Durnford and East) Vesey's Reports Weekly Notes L.R Weekly Reporter Younge and Collyer's Reports 1875-1913 J 1835-1842] 1817-1822 1830-1834 1838-1866 1823-1827 1861-1869 1757-1771 1865-1913 1808-1816 1865-1913 1865-1913 1843-1850 1831-1846 1843-1910 1865-1875 1844-1852 1801-1812 1853-1859 1865-1875 1793-1807 1858-1867 1841-1853 1862-1865 1847-1866 1844-1847 1818-1821 1901-1913 1823-1913 1865-1913 1694-1734 1842-1913 1840-1844 1849-1851 1851-1865 1836-1862 1824-1844 1813-1817 1836-1847 1869-1909 1865-1900 1893-1895 1572-1616 1785-1864 1832-1837 1865-1913 1829-1854 1895-1909 1716-1749 1815-1822 1884-1913 1785-1801 1785-1816 1866-1913 1853-1906 J 1833-1841 1 1841-1843 House of Lords King's Bench and Queen's Bench King's Bench King's Bench Rolls Court House of Lords Queen's Bench King's Bench Court of Appeal Nisi Prius Chancery Division Chancery Appeals Nisi Prius House of Lords Crown Cases Common Pleas Crown Cases King's Bench Queen's Bench Equity Nisi Prius Nisi Prius Vice-Chancellor's Exchequer House of Lords Ireland, Chancery Chancery All the Courts King's Bench All the Courts All the Courts King's and Queen's All the Courts Common Pleas Chancery House of Lords Privy Council Crown Cases King's and Queen's Exchequer Election Cases Queen's Bench All the Courts King's and Queen's All the Courts Chancery Court of Session Vice-Chancellor's Election Cases King's and Queen's Nisi Prius All the Courts King's Bench Chancerv All the Courts ti »> tt Exchequer (Equity) Vice-Chancellor's THE LAW RELATING TO SECRET COMMISSIONS AND BRIBES THE PREVENTION OF CORRUPTION ACT, 1906 INTRODUCTION THE RELATION OF PRINCIPAL AND AGENT A. DEFINITIONS. An agent is he who is employed to do anything in the place of another. He has authority to act on behalf of another person called the principal. The relation between him and his principal is called agency, and it arises when the agent has authority, express or implied, to represent or act on behalf of his principal with the object of bringing him into contractual or other legal relations with third parties. The contract of agency is not a mere contract of employment, but is such a contract of employment, the object of which is to bring the principal into legal relations with a third party. The Preven- tion of Corruption Act, 1906, sec. 1, sub-sec. 2, however, provides that the expression " agent " includes any person employed by or acting for another, and the expression " principal " includes an employer. Qui facit per alium facit per se — " He who does a thing through another does it himself." A principal is liable for the acts of his agent within the scope of his authority. A principal is liable for the fraud of his agent acting within the scope of his authority whether the fraud was committed for the benefit of the principal or for the benefit of the agent. (Lloyd v. Grace Smith & Co. (1912), A.C. 716.) l INTRODUCTION Existence of third party is essential. It is necessary that since an agent is employed to bring his principal into contractual or other relations with a third party, that that third party should be in existence or contemplation ; consequently a person selling his own goods cannot be acting as agent because there is no third party with whom to bring his principal into legal relations. " A servant is a person subject to the command of his master as to the manner in which he shall do his work " (Bramwell, L.J., in Yewens v. Noakes, 1880, 6 Q.B.D., at p. 532). He is under the direct control and supervision of his master as to the means and methods of doing his work, and must obey all reasonable orders given to him in the course of his work. (Spain v. Arnott, 1817, 2 Stark. 256.) " His position is to do what he is told, and no person can assume that he has any authority to represent anything at all." (Esher, M.R., in Barnett v. South London Tramways Co., 1887, 18 Q.B.D., at p. 817.) An independent contractor is one who merely undertakes to perform certain specified work subject to the terms and conditions of the contract, entirely independent of any control or interference. A person employing an independent contractor is not generally responsible for the wrongful acts or omissions of such contractor. [Quarman v. Burnett, 1840, 6 M. & W., 499.) B. THE SOURCE OF THE AUTHORITY. The principal must be legally capable of entering into contracts, though the agent need not necessarily have legal capacity to contract for himself, e.g., an infant may be an agent. " No one can become the agent of another except by the will of that other person. His will may be manifested in writing, or orally, or simply by placing another in a situation in which, accord- ing .. . to the ordinary usages of mankind that other is understood to represent and act for the person who has so placed him." (Lord Cranworth in Pole v. Leask, 1860, 33 L.J., Ch., p. 162.) C. CONSTITUTION OF RELATION OF AGENCY. Generally what a man can lawfully do himself he can lawfully do through an agent, except where the circumstances are such INTRODUCTION 3 that his personal services (e.g., which require judgment or discretion) are required. (1) Express agency, i.e., where the authority is expressly given by words or writing, which when determined marks the scope of the authority within whose limits the principal is alone bound. If the agent is appointed to contract under seal, the authority to act must be given by an instrument under seal called a " power of attorney." Agents of a corporation (other than a trading cor- poration) should be appointed under seal except where the matters concerned are of trifling importance, daily necessity, or great emer- gency. If the agency is one that is not capable of being performed within a year it must be in writing (sec. 4 of the Statute of Frauds). An agent appointed to make a lease for more than three years (since such a lease must be under seal) must be appointed under seal, though if the period does not exceed three years he may be appointed orally. A proxy must be appointed in writing. With these chief exceptions there is no particular form required for the appointment of an agent. It is desirable that all the terms of the agency should be in writing — Liter a scripta manet (" The written word remains") — as oral evidence cannot be given to vary a written contract. (2) Implied agency, i.e. authority is to be inferred from the conduct of the principal, e.g., husband and wife. Marriage does not of itself create the relation of agent and principal ; partnership does. In marriage the presumption is prima facie ; in partnership, conclusive. Implied agency may also include agency by estoppel or agency by necessity. (a) Agency by estoppel, where the principal so acts as to hold out that the agent had such authority and induces a third party to deal with him on the faith that it is so, he is estopped from denying the existence of the agency. "If a person authorise another to assume the apparent right of disposing of property in the ordinary course of trade, it must be assumed that the apparent authority is the real authority." (Lord Ellenborough in Pickering v. Busk, 1812, 15 East, p. 43.) Thus, an agent can in certain circumstances exceed his real authority and yet bind his principal. " If a man sends his servant with ready money to buy meat or other goods, and the servant buys upon credit, the master is not chargeable. But if a servant buy 4 INTRODUCTION some things without the master's order, yet if the master were trusted by the trader the master is chargeable." (Per Holt, C.J., 1 Show, 95.) " Where one has so acted as from his conduct to lead another to believe that he has appointed someone to act as his agent, and knows that that other person is about to act on that behalf, then unless he interposes, he will, in general, be estopped from disputing the agency, though in fact no agency really existed." (Lord Cranworth in Pole v. Leask (supra), ) (b) Agency by necessity. E.g., husband and wife. " The author- ity of a wife to pledge the credit of her husband is a delegated, not an inherent, authority. If she binds him she binds him only as his agent. ... If she leaves him without cause and without consent, she carries no implied authority with her to maintain herself at his expense. But if he wrongfully compels her to leave his home he is bound to maintain her elsewhere, and if he makes no adequate provision for this purpose, she becomes an agent of necessity to supply her wants upon his credit." (Lush J. in Eastland v. Burchell, 1878, 3 Q.B.D., p. 435.) (3) Ratification, i.e., the adoption by a principal of the benefits and liabilities of a contract made by his agent on his behalf but without his authority. The agent must contract — (i) As agent. (Keighley, Moisted & Co. v. Durant (1901), A.C., 240.) (ii) For a principal in contemplation. (Wilson v. T unman, 1843, 6 M. & G., 236.) (iii) For a principal in existence. (Kelner v. Baxter, infra.) (iv) For such things as the principal can lawfully do. If these conditions be fulfilled the principal, although the agent has had no authority or has exceeded it, may ratify the contract and make it his own. " The true rule, however, is that . . . persons who contract as agents are generally personally responsible when there is no other person who is responsible as principal. . . . The ratification must be made by an existing person on whose behalf the contract might have been made at the time." (Byles, J., in Kelner v. Baxter, 1866, L.R.,2 C.P., p. 185.) INTRODUCTION 5 D. RIGHTS OF AGENTS. (1) Right to remuneration and indemnity. The principal must— (i) Pay his agent such remuneration or commission as is expressly or impliedly agreed upon. (Miller v. Beale, 1879, 27 W.R. 403.) (ii) Indemnify the agent for acts lawfully done and liabilities incurred in the execution of his authority. (Lacey v. Hill, 1870, L.R., 18 Eg., 182.) (2) Right of Lien. An agent has a possessory lien (which is usually a particular lien) on the goods and chattels of his principal in respect of all lawful claims against his principal, whether for remuneration or for liabilities incurred in the course of his agency, unless there is an agreement inconsistent with the right of lien (Re Bowes, 1886, 33 Ch.D., 586), or where goods and chattels were entrusted to him for special purpose inconsistent with the right of lien. (Brandao v. Barnett, 1846, 12 C. & F. 787.) (3) Right to an account. An agent has a right to have an account taken. If the accounts are of so complicated a nature, they may be taken in a court of equity instead of by an action at law. (Padwick v. Hurst, 1854, 18 Beav. 575 ; Phillips v. Phillips, 1852, 9 Hare, 473.) E. DUTIES OF AGENTS. The agent is appointed to look after his principal's interest, and to get the best bargains he can for him. " Any surreptitious dealing between one principal to a contract and the agent of the other principal is a fraud in equity." (Per James, L. J., in Panama, etc. v. India Rubber, etc., 1875, L.R., 10 Ch., at p. 526), where an agent endeavoured to get a commission from his principal and also from the third party. An agent, though bound to exercise his authority in accordance with all lawful instructions which may be given to him by his principal, is not subject to the direct control or supervision of his principal. (1) Duty to perform the work he has undertaken. When he has received valuable consideration therefor he is bound to use reasonable skill and diligence (Turpin v. Bilton, 1843, 5 M. & G., 455.) An action will not usually lie against a gratuitous agent for non- performances because it is nudum pactum (Coggs v. Bernard, 1704, 2 Ld. Raym., 909), but if he does undertake the work he must 3— (1520) 6 INTRODUCTION exercise such skill as he possesses, and such care and diligence as he would exercise in his own affairs ; unless he has held himself out as possessing skill in which case he must use such care and skill as is reasonably necessary in the circumstances. {Beat v. South Devon Railway Co., 1864, 3 H. & C.,337.) A higher standard of skill, care, and diligence is required when an agent acts for reward. {Grill v. General Iron Screw Collier Co., 1866, L.R., 1 C.P.) (2) " No man should be allowed to have an interest against his duty " (Lord Ellenborough in Thompson v. Havelock, 1808, 1 Camp. 527). An agent is usually chosen on account of the opinion of his principal as to his discretion and trustworthiness. He is not allowed to have interest in the matter of his agency unknown to his principal. (3) It is the duty of an agent to obey implicitly the lawful instruc- tions of his principal and to keep within the limits of his authority. (Smart v. Sandars, 1846, 3 C.B., 380). In the absence of instructions he must conform to the ordinary usages of trade. ( Russell v. Hankey, 1794,6 T.R., 12.) When matters are left to his discretion, in the absence of any usage of trade, he must act in good faith for the benefit of his principal. (Gray v. Haig, 1854, 20 Beav., 219.) (4) Must keep proper accounts separate from his own. ' It cannot be too generally known or understood . . . how severely this Court deals with any irregularities on the part of the agent, how strictly it requires that he who is the person trusted shall act, in all matters relating to such agency, for the benefit of his principal, and how imperative it is upon him to preserve correct accounts of all his dealings and transactions in that respect and that the loss, and still more the destruction of such evidence, by the agent, falls most heavily on himself." (Per Romilly, M.R., in Gray v. Haig, 1854, 20 Beav., at p. 238.) (5) Must not become principal as against his principal, e.g., if employed to buy or sell for his principal he cannot sell to him or buy of him. A custom in a particular market that a broker who has purchased and is purchasing goods of a particular kind, in his own name, may take portions of those goods and supply them to prin- cipals who have employed him in his character of broker to buy such goods for them is one of a peculiar nature, and cannot be INTRODUCTION 7 supported as against a principal not proved to have been acquainted with such custom when he gave his order. (Robinson v. Mollett, 1875, 7 H.L., 802.) See also Chapter I, p. 16.) (6) Must not take any secret profits. (See Chapter II, post, p. 18.) (7) Delegatus non potest delegare. It is the duty of an agent to do the work himself where there is personal confidence reposed or skill required. (Cockran v. Irlam, 1813, 2 M. & S., 301.) Exceptions — (a) Where the usage of trade or the nature of a business allows delegation. (De Bussche v. Alt, infra.) (b) Where delegation is essential for proper performance. (Griffiths v. Williams, 1787, 1 T.R., 710.) (c) Where there is an agreement, express or implied, to permit delegation. (Quebec Railway Co. v. Qainn, 1858, 12 Moo. P.C.C., 232 P.C.) (d) Where the act done is purely ministerial and does not involve confidence or discretion. " As to any mere ministerial act, it is not necessary that he should do it in person, if he direct it to be done, or, upon a full knowledge of it, adopt it " (Lord Ellenborough in Mason v. Joseph, 1804, 1 Smith, p. 408.) There is no privity of contract between principal and sub-agent, whether the sub-agent was appointed with the authority of the principal or not. But if the agent is expressly or impliedly author- ised to constitute the relation of principal and agent between his principal and a sub-agent, and it is the intention of the agent and such sub-agent that such relation should be constituted, then there is privity of contract between the principal and sub-agent. (De Bussche v. Alt, 1877, 8 Ch.D., 286, C.A.) F. CLASSES OF AGENTS. (1) Special agents are those whose authority is limited to one single occasion or for carrying out a particular transaction. The principal is only bound if the agent acts according to his particular commission or authority. (2) General agents are those who are authorised to act for a prin- cipal in all business of a particulai kind or those who, though appointed by a principal to do a particular act, are by occupations agents, e.g., bankers. The principal is bound by all acts done by them within the scope of their employment. 8 INTRODUCTION (3) Universal agents have authority to bind their principal in all matters whatsoever. (4) Mercantile agents, e.g., factors. " The expression ' mercantile agent ' shall mean a mercantile agent having in the customary course of his business as such agent authority either to sell goods, or to consign goods for the purposes of sale, or to buy goods, or to raise money on the security of goods" (The Factors Act, 1889, s. 1). "A del credere agent is a mercantile agent, and is one who, usually for extra remuneration, undertakes to indemnify his principal against loss arising from the non-performance of third parties of contract made by him on his principal's behalf " (Morris v. Cleasby, 1816, 4M. & S., 566.) The principal classes of commercial and other agents are — (1) Factors. " A factor ... is a person to whom goods are sent or consigned, and he has not only the possession, but in consequence of its being usual to advance money upon them, has also a special property in them and a general lien upon them. ..." (2) Brokers. ..." A broker . . . has not possession of the goods. If, therefore, he sells in his own name, he acts beyond the scope of his authority and the principal is not bound " [Holroyd J., in Baring v. Corrie, 1818, 2 B. & Aid., at p. 148.) He is employed by two parties to negotiate a contract between them, e.g., stockbrokers, insurance brokers. (3) Auctioneers. An auctioneer is a licensed agent appointed to sell property or goods at public auctions. He is deemed the agent of both parties. (4) Partners. Each partner is a principal, so far as he himself is concerned, and an agent so far as his co-partners are concerned, for acts done within the ostensible scope of his authority on behalf of the firm. (See also s. 5 of the Partnership Act, 1890.) (5) Masters of Ships. (6) Commission Agents. A commission agent is an agent employed by one party to sell or buy goods. (7) Servants. (8) Bankers. (9) Married Women. A married woman has generally implied authority to pledge her husband's credit. (See p. 3 et seq.) PART I THE CIVIL LAW RELATING TO SECRET COMMISSIONS AND BRIBES CHAPTER I DUTY OF AGENT TO ACCOUNT I. AGENTS MUST KEEP REGULAR AND PROPER ACCOUNTS . (1) Lack of accounts may deprive agents of their remuneration. A confidential agent, in that character bound to keep regular accounts, having neglected to do so, and to preserve vouchers against himself though he had preserved those in his own favour was, on the ground of gross neglect of duty, not allowed a charge in respect of bills of costs for business done as a solicitor. (White v. Lady Lincoln, 1803, 8 Ves., 363.) (2) Agents who are unable to account are disentitled to com- mission. When an accounting party destroys the accounts before the matters have been finally adjusted, and still more pending a litigation, the Court will presume everything most unfavourable to him whenever consistent with the established facts. If an agent, by his own conduct, makes it impossible to ascertain the amount of profit realised, he will be disallowed the commission, which other- wise and according to the contract, he would be entitled to claim. The Court deals severely with any irregularities on the part of an agent, and requires him to act strictly in all matters relating to such agency, for the benefit of his principal. It is imperative upon an agent to preserve conect accounts of all his dealings and transactions ; and the loss, and, still more, the destruction of such evidence by the agent, falls most heavily upon himself. (Gray v. Haig, 1854, 20 Beav., 219.) (3) An agent confounding his principal's property with his own may be charged with the whole except what he can prove to be his 9 10 THE LAW RELATING TO own. " If a man, having undertaken to keep the property of another distinct, mixes it with his own, the whole must, both at law and in equity, be taken to be the property of the other, until the former puts the subject under such circumstances that it may be dis- tinguished as satisfactorily as it might have been before that unauthorised mixture upon his part." (Per Lord Eldon, L.C., in Lupton v. White, 1808, 15 Ves., at p. 436.) (4) Neglect to account on request by principal is a ground for charging interest. The hist duty of an agent is to be constantly ready with his accounts, and neglect in this is a ground for charging him with interest. " If they neglect to account properly, if they violate their duty, the Court, for the sake of compelling them to perfoim it, says they ought to be charged with interest on what they have retained." (Per Plumer, M.R., in Pearse v. Green, 1819, 1 Jac. & W., at p. 140.) (5) Interest is not payable in absence of fraudulent falsification of accounts. " It is the first duty of an agent ... to be constantly ready with his accounts. But this must mean that the agent must be ready to render his accounts when they are demanded. If no demand is made upon him, it is the simple case of an agent retaining money which he ought to pay over, but which he has not been required to pay ; and there is no case of which I am aware, where under such circumstances, without anything more, the agent has been made to pay interest. ... If I could see any wilful withholding of the accounts, or any fraudulent falsification of them I should, of course, consider that the defendant ought to be charged with interest." (Per Lord Chelmsford, L.C., in Turner v. Burkinshaw, 1867, L.R., 2 Ch., at p. 491.) (6) Must be ready to pay over. " The duty of the accounting party is to be constantly ready with his accounts and I should say that if the accounts show that he has money to pay over, he also ought to be constantly ready to pay." (Per Esher, M. R., in Harsant v. Blaine, 1887, 56 L.J. Q. B., 511.) (7) Must account to the uttermost farthing. ' ' From the time when Fawcett v. Whitehouse, 1829, 1 Russ. & My., 132, was decided, down to the present day, .... it has always been held that no agent can in the course of his agency derive any benefit whatever without the sanction or knowledge of his principal. ... I again desire to repeat that this Court will never sanction anything of that kind SECRET COMMISSIONS AND BRIBES 11 and will make the persons who engage in such schemes pay back to the uttermost farthing whatever they had received." (Per James, L.J. in Hay's case, 1875, 10 Ch. at p. 601.) (8) Partner must account for profits in regard to the firm's business. If a member of a partnership firm avails himself of information obtained by him in the course of the transaction of partnership business, or by reason of his connection with the firm, for any purpose within the scope of the partnership business, or for any purpose which would compete with the partnership business, he is liable to account to the firm for any benefit he may obtain from the use of such information ; but if he uses the informa- tion for purposes which are wholly without the scope of the partner- ship business, and not competing with it, the firm is not entitled to an account of such benefit. (Aas v. Benham, 1891, 2 Ch., 244.) (9) Where agent is not bound to account in absence of misrepre- sentation. Where an agent secretly sells to his principal goods which were the property of the agent before the commencement of the agency and the principal declines to rescind the contract or rescission has become impossible, the agent cannot, in the absence of misrepresentation, be called upon to account for the profit made by him upon the transaction or for the difference between the contract price and the market price. (In re Cape Breton Co., 1884, 26 Ch. D., 221.) *' The case has been put on behalf of the appellant in various ways. First, it is said to be a case of secret profit made by an agent, which profit he is therefore bound to hand over to his principal. " Of course, it cannot be doubted that Mr. Fenn, as a director of the company, was in the position of an agent, and undoubtedly if he filled any fiduciary position towards them at the time when he purchased this property, he would be bound to pay to the company the difference between the price at which he purchased it and the price at which it was sold to the company. But here it is beyond question that at the time when the purchase was made, Mr. Fenn and his co-adventurers were none of them in any sort of fiduciary relation to the company, the existence of which was at that time not even contemplated. " Again, there is probably little doubt that if an agent of a company is employed by that company to make a purchase for them ia the market of goods of any description, and instead of making 12 THE LAW RELATING TO that purchase in the market at the market price, he sells to his company goods of the required description which he happens to own, at a price in excess of the market price, he can be made to pay to the company that excess, so as to have their purchase, as it ought to have been, at the market price, according to the obligation which he is under to them. But in the present case the purchase that was made was a purchase of a specific property, it was that specific property alone which the agent, the director, was authorised to purchase ; it was not left to him to purchase, at the best price at which they could be obtained, goods or land of a par- ticular description ; but his agency, so far as it existed at all, was an agency to purchase this specific property in which it is proved he had an interest. " Now I am by no means prepared to say that the argument of the appellant is well founded, that such a case as this is a parallel case to the class of cases I have alluded, where an agent employed to go into the market and buy at the market price sells his own goods to the company at something above the market price. But I do not think it necessary to come to any absolute determination upon that point, because it is of the essence of such a case as this to show that the price at which the property was sold to the company was in excess of what has been called the real price or the true value. " No doubt, where rescission is claimed, if it is shown that a person taking part in the transaction of purchase was himself one of the vendors, the onus would be on him of showing that he made full disclosure. But when an applicant seeks under the 165th section of the Companies Act, 1862 (now s. 215 of the Companies (Consolidation) Act, 1908), to establish a case of mis- feasance, I think it is necessary for him to give evidence of all the elements that go to make up that misfeasance. There is no mis- feasance in a person who has an interest in the property, he being a shareholder in the company which is selling it, nevertheless acting as a director in the purchase of that property for another company. The misfeasance, if it exists at all, must be in this, that he enters into such a transaction without communicating to his co-directors the fact that he has such an interest. It seems to me that it must rest with those who allege the misfeasance to prove that element, which is an essential element to make out misfeasance at all. SECRET COMMISSIONS AND BRIBES 13 " I cannot see the slightest evidence to show that disclosure was not made in the present case, or that the directors were not perfectly well aware of Mr. Fenn's position. " Then it is said that the case may be put in another way, that there was here, at all events, a breach of duty, and that in respect of that breach of duty a claim may be made under the 165th section, the breach of duty, being omission to make full disclosure. There again, I have only to repeat that I fail to see the evidence that there was any such breach of duty committed, and I think that in order to establish a claim to relief, it would be necessary to show not only a breach of duty, but to show a breach of duty which resulted in pecuniary loss to the company. It may be perfectly true that where there is a duty, whether arising out of a contract or otherwise, by one person to another, an action will lie in respect of a breach of that duty, although no substantial damage has been suffered. In an action, nominal damages may be recovered when- ever a breach of duty is shown. But I certainly do not think that any such doctrine can be applied to the 165th section." {Lord Herschell in Cavendish- Bentinck v. Fenn, 1887, 12 A.C., at pp. 658, 661.) " In a case where rescission is asked and it is not denied that at the time when the sale was made the seller failed, in breach of his duty, to disclose his interest, the onus rests upon him to prove, if he desires to maintain the transaction that his interest became known to the purchaser at a subsequent period, and that the purchaser either expressly or by plain implication elected to uphold the transaction. But the case is very different when a defendant is charged with making undue profits in the dark, at the expense of the purchaser, or with fraudulent concealment of facts, which has led to loss on the part of the purchaser. The onus probandi then is upon the plaintiff, the usual rule of law must apply. I know of no case where by implication of law the duty of clearing himself from an imputed fraud rests on the defendant." {Lord Watson in Cavendish- Bentinck v. Fenn, supra at p. 666.) II. GENERAL RULE AS TO AGENTS' REMUNERATION. " When an agent undertakes an agency he undertakes for a remun- eration agreed upon to exercise his skill and give his time to his employer. If the employment is to buy goods, then it is his 14 THE LAW RELATING TO duty to get them cheaply ; if to sell, to get the maximum price. Any difference which goes into the agent's pocket beyond the remuneration which has been agreed upon between him and his principal therefore comes out of the principal's pocket. The agent is not allowed to make any such profit, but must account for it to the principal, or else tell his principal he is making a profit, and obtain his- employer's consent. The rule laid down and strictly enforced by the Courts is that the principal must be informed of all the details of such a transaction and consent to it if it is to be binding on him." (Wright's Principal and Agent.) "A paid agent is bound to discharge all those duties multifarious or otherwise, and onerous or otherwise, which the terms of that agency cover. He must make his own bargain with his principal, and it is his duty to do all that that bargain entails and to be content with his remuneration. If he is called upon to do anything outside the terms of his agency, he is entitled to make a special bargain, or he can decline to do it unless he is remunerated on a special footing ; or he may do the work, and provided everything is fair and above board, he probably would be allowed some fair remuneration according to some recognised measurement of the value. But if he does anything within the terms of his agency, however uncompensated it may seem to him personally, he can neither charge for it in his account nor can he secretly take any commission for it." (Per Kekewich, J., in Williamson v. Hine, 1891, 1 Ch., at p. 393.) (1) Acceptance of profits by agent unknown to principal is a wrongful act and it is immaterial on what grounds such commissions were paid. " Now there can be no question that an agent employed by a principal or master to do business with another who, unknown to that principal or master, takes from that other person a profit arising out of the business which he is employed to transact, is doing a wrongful act inconsistent with his duty towards his master, and the continuance of confidence between them. He does the wrongful act whether such profit be given to him in return for services which he actually performs for the third party, or whether it be given to him for his supposed influence or whether it be given to him on any other ground at all ; if it is a profit which arises out of the transaction, it belongs to his master, and the agent or servant has no right to take it or keep it or bargain for it or to receive it SECRET COMMISSIONS AND BRIBES 15 without bargain, unless his master knows it." (Per Bowen L. J ., in Boston Deep Sea Fishing Co. v. Ansell, 1888, 59, L.T., 345.) (2) It is immaterial whether the principal has lost or not lost by the act of the agent. If the agent makes a profit without the knowledge of the principal in the course and execution of the agency, he is liable to account for that profit to his principal and the Court will not receive evidence as to whether the principal did or did not suffer any injury in fact by reason of the dealing of the agent. (Parker v. M'Kenna, 1874, 31 L.T., 739.) III. AGENTS MUST NOT PLACE THEMSELVES IN A POSITION IN WHICH THEY MAY TAKE ADVANTAGE OF THEIR PRINCIPALS. " If any man who is to be trusted, places himself in a condition in which he has an opportunity of taking advantage of his employer by placing himself in such a situation, whether acting fairly or not, he must suffer the consequence of his situation." (Per Lord Wyndford in Rothschild v. Brookman, 1831, 5 Bli. N.S. at p. 198.) (1) Acceptance of any profit by an agent from third party is a breach of duty and puts him in a position in which he has a temptation not faithfully to perform his duty to his principal. ' If a person, or a managing director, or any person who is authorised to act and is acting for another in the matter of any contract, receives as regards the contract, any sum, whether by way of percentage or otherwise from the person with whom he is dealing on behalf of his principal he is committing a breach of duty. It is not an honest act, and, in my opinion, it is a sufficient act to show that he cannot be trusted to perform the duties which he has undertaken as servant or agent. He puts himself in such a position that he has a tempta- tion not faithfully to perform his duty to his employer." (Per Cotton, L.J., in Boston Deep Sea Fishing Co. v. Ansell, 1888, 39 Ch.D., at p. 357.) IV. SURREPTITIOUS DEALING IS FRAUD. " I take it to be clear that any surreptitious dealing between one principal and the agent of the other principal is a fraud on such other principal cognisable in this Court . . . the defrauded princi- pal, if he comes in time, is entitled at his option to have the contract rescinded, or if he elects not to have it rescinded, to have such other 16 THE LAW RELATING TO adequate relief as the Court may think right to give him." (Per James, L.J., in Panama, etc., Telegraph Co. v. India Rubber, etc., Telegraph Co., 1875, 10 Ch. App., at p. 526.) V. AGENTS EMPLOYED TO SELL CANNOT BUY, OR IF EMPLOYED TO BUY CANNOT SELL. " I take it to be a general principle of law and equity that a man cannot be a seller for me and a buyer of that property himself. . . . The principal had a right to suppose when his agent advised him to buy Prussian bonds that they were bought of other persons ; he had a right to suppose he was not transferring his own bonds to him but that he was making a purchase of other bonds in the market." (Per Lord Wynford in Rothschild v. Brookman, 1831, 5 Bit., N.S., at p. 192.) (1) Purchase or Sale by agent from or to principal will be set aside, however fair the transaction may otherwise be. If in a trans- action between principal and agent it appears that there has been any underhand dealing by the agent, e.g., that he has purchased the estate of the principal in the name of another person instead of his own — however fair the transaction may be in other respects, it has no validity in a court of equity. To set aside a sale from a principal to his agent, it is not necessary to show that it was made at an undervalue. An agent may purchase from his principal provided he deals with him at arm's length, and after a full dis- closure of all he knows with respect to the property. (Murphy v. a Shea, 1845, 2 Jo. & Lat., 422.) (2) An agent who buys or sells from or to principal is not entitled to commission. An agent, employed to sell land, sold it to a company in which he was interested as a shareholder and director. Held that he was entitled to no commission from his employer in respect of the sale. " If then, the seller were permitted as the agent of another to become the purchaser, his duty to his principal and his own interest would stand in direct opposition to each other ; and thus a tempta- tion, perhaps in many cases too strong for resistance by men of flexible morals or hackneyed in the common devices of worldly business, would be held out, which would betray them into gross misconduct and even into crime. This doctrine is well settled at law, but it is acted upon in Courts of Equity to a much larger SECRET COMMISSIONS AND BRIBES 17 extent." (Story on Agency quoted by Martin, B., in Salomons v. Pender, 1865, 3 H. & C. at p. 643.) (3) A partner cannot supply his own goods to his firm without full disclosure. A partner, indeed, virtually embraces the character both of principal and agent (Story). Hence a partner cannot supply his own goods to his firm which he has bought for his own use at a lower price without informing his partners of the facts. (Bentley v. Craven, 1853, 18 Beav. 75). Nor can a partner treat privately behind the backs of his partners for a lease of the premises where the joint trade is carried on. A lease obtained in his own name will be held in trust for the partnership. ( Clegg v. Edmondson, 1857, 8 DM. & G. , 787.) There is a mutual liability to account for any secret profit so long as the affairs of the partnership have not been completely wound up (Partnership Act, 1890, s. 29 (2). ) (4) Where agent is not compelled to account for profit made by sale to principal. If an agent employed by a principal to purchase property for him sells to the principal property of his own which he acquired before the agency existed, concealing from the principal the fact that it is his own property, the principal has a right on discovering the real facts to rescind the contract. But, if he declines to rescind or, if, by reason of intermediate dealings with the property rescission has become impossible, the principal is not entitled to call on the agent to account for the profit which he has made by the sale, i.e., either the difference between the price which he himself gave for the property, and the price which he obtained from the principal, or the difference between the latter price and the market value of the property at the time of the sale to the principal. {In re Cape Breton Co., 1884, 26 Ch.D., 221.) VI. EXCLUSIVE AGENT CANNOT MAKE OUTSIDE PROFITS FOR HIMSELF— THEY MUST BE ACCOUNTED FOR TO HIS PRINCIPAL. " The defendant having agreed not to sell matches made by other firms, has in breach of that agreement sold to the plaintiffs' customers matches made by their competitors in trade. It appears to me that these sales were within the scope of the agency which the defendant had undertaken. I hold therefore, that the defendant must account for all the profits that he has made by these trans- actions." [Per Neville. /., in Nitedals Taendstikfabrik v. Bruster, 1906, 2 Ck., at p. 674.) CHAPTER II CONSEQUENCES WHICH FOLLOW THE TAKING OF SECRET COMMISSIONS OR BRIBES VII. DEFINITION OF SECRET COMMISSION. The general effect of the cases goes to show that the terms " secret commissions " and " bribes " are practically synonymous. A " bribe " usually refers to a single sum, and has not the attribute of varying with the amount of the transaction that is common in the case of a secret commission. " If a gift be made to a confidential agent with the view of inducing the agent to act in favour of the donor in relation to transactions between the donor and the agents' principal, and that gift is secret as between the donor and the agent (that is to say, without the knowledge and consent of the principal) then the gift is a bribe in view of the law." (Per Romer, L.J. in Hovenden & Sons v. Millhoff, 1900, 83 L.T., 43.) VIII. SUMMARY OF RESULTS WHICH FOLLOW THE TAKING OF BRIBES. I. No agent can make any profit for himself in the matter of his agency without the knowledge and consent of his principal. (Hovenden v. Millhoff, supra.) II. Secret gift may be recovered by principal whenever it comes to his knowledge. (Phosphate Sewage Co. v. Hartmont, 1877, 5 Ch.D., 394.) III. The fact that principal did not suffer any loss cannot betaken into consideration. (Parker v. M'Kenna, 1874, L.R., 10 Ch., 96.) IV. If an agent accepts a bribe he may be dismissed even though the gift is not discovered for several years afterwards. (Boston Fishing Co. v. Ansell, 1889, 39 Ch.D., 339.) V. Sale is vitiated (Shipway v. Broadwood, 1899, 1 Q.B., 369). "If a bribe be once established to the Court's satisfaction, then certain rules apply. Amongst them the following are now established, and in my opinion rightly established, in the interests of morality with the view of discouraging the practice of bribery. 18 SECRET COMMISSIONS AND BRIBES 19 " (1) The Court will not inquire into the donor's motive in giving the bribe, nor allow evidence to be gone into as to the motive. " (2) The Court will presume in favour of the principal and as against the briber and the agent bribed, that the agent was influenced by the bribe, and this presumption is irrebutable. " (3) If the agent be a confidential buyer of goods for his principal from the briber, the Court will assume as against the briber that the true price of the goods as between him and the purchaser must be taken to be less than the price paid to or charged by the vendor, by at any rate, the amount or value of the bribe." (Per Romer, L.J., in Hovenden & Sons v. Millhoff, 1900, 83 L.T., 43.) IX. EFFECT OF BRIBES ON CONTRACTS. (1) A contract induced by bribes may be repudiated by principal. " When a person acting as agent for a purchaser, that is to say, for a person who is minded to purchase, receives a gratuity or a bribe of some description from the intending vendor . . . (or) benefits or advantages of any kind . . . (it) is one which can be impeached and which would be set aside in a Court of Equity." (Per Lord Hatherley in Erlangerv. NewSombrero Phosphate Co., 1878, 3 A.C., at p. 1244.) (2) Principal may rescind contract or may affirm it and claim profit made at his option. ( In re Cape Breton, 1884, 26 Ch.D. 221, Cavendish-Bentinck v. Fenn, 1887, 12 A.C., 652, H.L, see p. 11.) In Smith & Sorby (1875, L.R., 3 Q.B.D., 552) the plaintiff sued the defendant for breach of an agreement to supply coals and the defendant pleaded that the agreement was voidable because of fraud and collusion between the plaintiff and the defendant's agent in reference to the agreement. Per Cockburn, C.J., "It is enough for the decision of the present case to say that in my opinion, if a party with whom an agent is negotiating on the part of another agreed to give and does give the agent a secret gratuity and that gratuity does influence the mind of the agent, directly or indirectly, in assenting to anything prejudicial to his employer in making the contract, the contract is vitiated." In Panama, etc. Telegraph Co. v. India Rubber Telegraph Works, 1875, L.R., 10 Ch., 515, the defendant agreed to make and lay a cable for the plaintiffs for a sum payable partly when the cable was begun and partly by instalments payable on certificates by the 20 THE LAW RELATING TO plaintiff's engineer. Subsequently, the plaintiff's engineer was engaged by the defendants to lay the same cable for them for a sum of money to be paid by instalments payable by the defendants when they received the instalments from the plaintiffs. In these circumstances the plaintiffs in discovering the fraud successfully repudiated the contract and obtained repayment of the money they had already paid under it. In Hough & Co. v. Bolton, 1886, 2 T.L.R., 788, the plaintiffs claimed to recover a sum of £3,000 under a verbal agreement between the defendant and plaintiffs for the purchase of a vessel belonging to the plaintiffs. The defendant, however claimed to have the contract rescinded on the ground of such surreptitious dealing between his agent for purchase and the plaintiffs as amounted to fraud. He also count erclaimed £330, a portion of the purchase money already paid to the plaintiff. The facts having been proved, a verdict was found for the defendant both on the claim and counterclaim. Per Field, J. : " When a man employed an agent it was that agent's duty to do the best he could for his employer, and if he accepted a sum of money from the vendor given with the intention of biasing his mind in such vendor's favour it was a fraud upon such employer who would be entitled to rescind any contract made under such circumstances on his behalf by such agent." X. EFFECT OF BRIBES ON THE MIND OF AGENT IMMATERIAL. The fact of giving a bribe is irrefutable evidence that the agent was influenced. (Hovenden v. Millhoff, 1900, 83 L.T., 41.) (1) Immaterial if bribe has no direct connection with particular contract. When a secret gratuity is given to an agent with the intention of influencing his mind, directly or indirectly, in favour of the giver of the gratuity and the agent, on subsequently entering into a contract with such giver on behalf of the principal, is actually influenced by the gratuity in assenting to stipulations prejudicial to the interests of his principal, although the gratuity was not given directly with relation to such particular contract, the transaction is fraudulent as against the principal and the contract is voidable at his option. (Smith v. Sorby, 1875, 3 Q.B.D., 552, n.) Harrington v. Victoria Engraving Dock, 1878, 39 L.T., 120, was an action for commission promised to the plaintiff by the SECRET COMMISSIONS AND BRIBES 21 defendants for superintending the repairs of certain ships belonging to the Great Eastern Railway Co. At the time the plaintiff was in a position of trust in relation to the railway company and the contract between the defendants and plaintiff was made partly in consideration of a promise that the plaintiff would use his influence with the railway company to induce them to accept the defendant's order for the repair of the ships. The jury found that the contract, though calculated to bias the mind of the plaintiff, had not in fact done so, and that he had not in consequence thereof given less beneficial advice to the railway or to the tender than he would otherwise have done. The Court, however, came to the conclusion that he could not maintain the action for commission inasmuch as the commission for the contract was corrupt. ' I entertain no doubt, that where a bribe is given or a promise of a bribe is made, to a person in the employ of another by someone who has contracted or is about to contract with the employer, with a view to inducing the person employed to act otherwise than with loyalty and fidelity to his employer, the agreement is a corrupt one, and is not enforceable at law whatever the actual effect produced in the mind of the person bribed may be. . . . It is quite immaterial that the employer was not in effect damaged." (Per Cockburn, CJ.) " I wish to state again most emphatically that it is immaterial to inquire whether in point of fact a man's mind is or is not affected by a bribe. It would be most dangerous to allow any such inquiry to be made, because no satisfactory conclusion could be arrived at. The vice is in the secrecy of the transaction." (Per Chitty, L.J., in Shipway v. Broadwood, 1899, 80 L.T., 11.) (2) Burden of proof as to disclosure. In Dunne v. English, 1874, L.R., 18 Eq., 524, it was held that where an agent is shown to have an interest in the purchase of the property of his principal, the burden of proof is on him to show that he has made a full disclosure. Per Jessel, M.R., at p. 533. " It is not enough for an agent to tell the principal that he is going to have an interest in the purchase or to have a part in the purchase. He must tell him all the material facts." These decisions indicate that the right of action of the one principal against the other rests on the fact of the defendant having tampered with the fidelity of the plaintiff's agent. It is not 4— (1520) 22 THE LAW RELATING TO necessary for the plaintiffs to prove that the gratuity promised to the agent was actually given to him, or that his mind was in- fluenced by it to the damage of his employer provided the thing given or promised was likely to have that effect. Where, therefore, a principal seeks to avoid a contract of sale on the ground that his agent had an undisclosed interest in the transaction, (a) The burden of proof that the agent has made full disclosure rests on the agent. (b) It is not enough for the agent to have disclosed that he had an interest in the contract, but he must have disclosed the nature of his interest. (c) It is immaterial on the question of rescission, whether the contract be fair or unfair, advantageous or disadvantageous to the principal, or whether the agent has or has not made any profit. (3) When contract may not be rescinded. Often the position of the parties has been so changed that they cannot be put back in their former positions, e.g., when the property in question cannot be returned, when it has been sold to a third party in the interval or when it has been destroyed or so damaged that it cannot be returned in its original state. A principal who, after being aware of the circumstances connected therewith, declines to rescind the contract cannot afterwards claim to have it rescinded. Such election may be shown by writing, words, or conduct. (In re Cape Breton Co., 1884, 26 Ch.D., 221 ; Ladywell Mining Co. v. Brookes, 1887, 35 Ch.D., 400; Hichens v. Congreve, 1831, 4 Sim. 420; Re Leeds, etc. Theatre of Varieties, 1902, 2 Ch., 809.) (4) When principal has not lost his right to rescind, he may (1) Rescind and get back his property or purchase money, or (2) Stand by his bargain and claim an account or return of secret profits made by the agent— which is generally more profitable than (1). (In re Cape Breton Co., 1884, 26 Ch.D., 221.) In addition to the above he may likewise sue his agent in damages for fraud. The principal is entitled to some damages apart from the question as to whether he has or has not sustained any loss or the agents made any profits. (Cavendish- Bentinck v. Fenn, 1887, 12 A.C., 652.) These civil remedies are no doubt still available either optionally or concurrently with a criminal prosecution. (5) Sharing commission negatives "holding out." In Sells SECRET COMMISSIONS AND BRIBES 23 Advertising Agency v. Harmony Borax Co., 1896, 13 T.L.R., 123, it was found as a fact that the principal had given his agent certain ostensible authority to enter into contracts, but that as the agent had been induced to enter into the contracts by a bribe, viz., sharing commission with the agent by the other principal, the Court held that the plaintiff had not relied on the holding out, but on the share of commission in making the contract. CHAPTER III LIABILITY OF AGENT TO ACCOUNT FOR SECRET COMMISSIONS AND BRIBES XI. AGENTS MUST ACCOUNT FOR BRIBES. Where an agent in consequence of a bribe induces his principal to enter into a contract with the person who has paid the bribe and the contract is disadvantageous to the principal, the principal has two distinct and cumulative remedies against his agent. He may recover — (1) From the agent the bribe received; (2) From the agent and the person who has paid the bribe, jointly or severally, damages for any loss which he has sustained by reason of his having entered into the contract, without allowing any deduction in respect of what he has recovered from the agent as a bribe. (Salford (Mayor, etc., of) v. Lever, 1891, 1 Q.B., 168.) The principal may in certain cases also recover, (3) Interest. Where shares were accepted by a director from promoters, the director was chargeable with interest on the highest value of the shares during the time they were held by him, which in this case was assumed to be the nominal value of the shares. {McKay's Case, 1875, 2 Ch.D., 1 ; Pearson's Case, 1877, 5 Ch.D., 336.) (1) Equitable principle that secret profits must be accounted for does not depend upon fraud. " The equitable principle upon which a man in a fiduciary relation who makes what are called ' secret profits ' is bound to give them up to the principal for whom he is acting is a most salutary one, and of general application, and I do not intend in the observations I am about to make, to say anything that will in any way infringe upon that principle. Many people think it a hard principle ; but to those who have experience in such matters, it is found to be a principle of necessary application in order to make sure that people will do their duty when they are acting under circumstances of unusual difficulty. It does not depend upon fraud, and in the present case no imputation is made 24 SECRET COMMISSIONS AND BRIBES 25 of anything approaching to fraudulent conduct on the part of Sir A. Forwood ; but it does not in the least follow that, with perfect honesty of purpose, he may not have done something which, without his being aware of it, was contrary to principle and for which he must be made liable." (Per Rigby, L.J., in Costa Rica Railway Co. v. Forwood, 1901, 1 Ch., at p. 753.) (2) Agent must prove agreement to accept anything beyond his agreed commission. " An agent is entitled to his commission, and unless he is able to prove either an express agreement or cir- cumstances for which a jury can reasonably imply an agreement, he is entitled to no more, and anything else which he gets in the way of abatement he gets for the benefit of his principal to whom he is bound to account for it." (Per Lord Rtissell, C.J., in Bidfield v. Fournier, 1896, 11 T.L.R., 62.) XII. SOLICITOR AND CLIENT. The principle is that the solicitor shall not be permitted to make a gain for himself at the expense of his client. " The client is entitled to the full benefit by the best exertions of the solicitor. The relation of solicitor and client involves, of course, the relation of principal and of agent. ... A solicitor shall not in any way what- ever in respect of the subject of any transactions in the relations between him and his client make gain to himself at the expense of his client beyond the amount of the just and fair professional remuneration to which he is entitled." (Per Lord Westbnry, L.C., in Tyrrell v. Bank of London, 1862, 10 H.L., at pp. 39 and 44.) ' This court would never allow a solicitor, except by the voluntary gift of the client, to derive any benefit from his advice to his client beyond what the law allowed. It was immaterial whether the money was taken before or after the retainer ; it was immaterial whether it was taken under the form of a bet, commission or bribe." (Fry, L.J., in Burrell v. Mossop, 1888, 4 T.L.R., at p. 270.) A solicitor who was retained by A to act for him in negotiations for the purchase of a patent had previously agreed with the owner of the patent to receive commission in the event of a purchaser being found. A purchased the patent and the solicitor with A's knowledge received the commission from the seller. Held, that he was not accountable to A for the commission having made full disclosure thereof. (In re Haslam, 1902, 1 Ch., 765.) 26 THE LAW RELATING TO XIII. DIRECTORS MUST ACCOUNT FOR SECRET PROFITS. A director stands in a fiduciary position towards the company of which he is a director and therefore is bound to use his best endeavours for its advantage. He may not place himself in a position in which his interests will conflict with his duty. Any personal benefit which he may obtain by availing himself of his fiduciary character must be acquired by a dereliction of duty, and will enure for the benefit of the company. (Hay's case, 1875, 10 Ch. 600. Ex parte Larking, 1876, 4 Ch.D. 566.) It makes no difference that the profit is one which the company could not have obtained. The question is not whether the company could have acquired it, but whether the director acquired it while acting for the company. (Boston Co. v. Ansell, infra.) Where directors of a company on the transfer of its business to another company received from the latter a large sum for com- pensation the particulars of which they withheld from their members, it was held that they were trustees of the money and they were directed to pay the same into Court. (Gaskellv. Chambers, 1858, 26 Beav., 360.) " As I understand, the rule is a rule to protect directors, trustees and others against the fallibility of human nature by providing that if they do choose to enter into contracts in cases in which they have or may have a conflicting interest, the law will denude them of all profits they may have thereby, and will do so notwithstanding the fact that there may not seem to be any reason of fairness why the profits should go into the pockets of their cestuis que trust, and although the profits may be such that their cestuis que trust could not have earned them all. With reference to this last point, there is a recent and direct decision that the fact that the profits could not have been earned by the cestuis que trust is wholly immaterial ; and that is a decision of the Court of Appeal in Boston Deep Sea Fishing and Ice Co. v. Ansell." ( Vaughan Williams, L.J., in Costa Rica Ry. Co. v. Forwood, 1901, 1 Ch., at p. 761.) (1) " The director is really a watchdog and the watchdog has no right without the knowledge of his master, to take a sop from a possible wolf." (Bowen, L.J., in Archer's Case, 1892, 1 Ch., at p. 341.) Where a person entered into a secret agreement with a promoter that he should become a director upon the terms that if he should SECRET COMMISSIONS AND BRIBES 27 at any time desire to part with the shares he was to take in order to qualify the promoter should purchase them from him at the price which he should pay for them, it was held that whatever benefit or profit accrued to the director under the indemnity belonged to the company, and that the retention by him of the proceeds of the indemnity occasioned a loss to the company for which he was accountable with interest. (Archer's Case (supra); see also Hay's Case, L.R., 1875, 10 Ch. 593; Pearson's Case, 1877, 5 Ch.D. 336.) (2) Neither directors nor officers can retain any payments in relation to their company unless explained to and approved by the shareholders. " Unless the most open and complete disclosure had been made to the shareholders of the company this transaction could not be allowed to stand." (Romilly, M.R., in General Exchange Bank v. Horner, 1869, 9 Eq., at 490.) " There is no doubt about the rule of this Court, that an agent cannot, without the knowledge and consent of his principal be allowed to make any profit out of the matter of his agency beyond his proper remuneration. It is perfectly settled law that that law applies with peculiar stringency to the directors of joint stock companies who are the agents of the company for effecting the sales or purchases made by the company." (Per Mellish, L.J., in Hay's Case, 1875, 10 Ch. at p. 601.) (3) Director is liable to refund to his company secret profits with interest added thereto. A director of a company established for acquiring and employment of ships who, with the consent of tbe other directors, undertook the office of ship's husband, was compelled to refund to the company, with interest, all sums paid to him for commission and brokerage with interest, such payments being made without the knowledge or consent of the shareholders. (Benson v. Heathorn, 1842, 1 Y. & C, C.C., 326.) A being aware that B wished to obtain shares in a certain com- pany represented to B that he, A, could procure a certain number of shares at £3 a share. B agreed to purchase at that price, and the shares were thereupon transferred, in part to him and in part to his nominees, and he paid to A £3 a share. He afterwards discovered that A was in fact the owner of the shares having just bought them at £2 a share — Held, that, on the facts, A was an agent for B ; and A ordered 28 THE LAW RELATING TO to pay back to B the difference between the prices of the shares. (Kimber v. Barber, 1872, 8 Ch. 56.) A director received from a promoter a number of paid-up shares to qualify as director and then took an active part in carrying out a conditional contract for the purchase by the company of a colliery belonging to the promoter. Director was liable to pay the value of shares, and, in the present case, the value was their nominal amount . (See Companies Consolidation Act, 1908, s. 215; see Shaw v. Holland, p. 29.) " Whether the purchase was or was not an advantageous one for the company, whether the property was or was not worth the increased price that they paid for it, is a question wholly imma- terial for us to consider ; he cannot, in the fiduciary position he occupied, retain for himself any benefit or advantage that he obtained under such circumstances. (Jessel, M.R., in Pearson's Case, 1877, 5 Ch.D., at p. 341.) (5) Director may not charge for professional services without full disclosure to the company. A director is not allowed to make any profits from the business of the company while he is a director, or to receive any other remuneration for his services, professional or otherwise, than such as the resolution of a general meeting shall have sanctioned. (North- Eastern Ry. Co. v. Jackson, 1870, 19 W.R., 198.) Provisional directors are not liable to account for profits in respect of contracts with vendors to company prior to its incorporation, but only after that date. (6) Directors may not take benefit of a contract entered into between himself and his company. " As regards the first part of the case, the plaintiffs say, and say truly, that whether you look upon a director as a trustee or as an agent he cannot take the benefit of a contract entered into between himself and the company, because he is not to make a profit in the case where he is both buyer and seller. That is the simplest principle. He cannot act in both capacities, and do justice to the purchaser if he is a seller, or do justice to the seller if he is the purchaser. Being in a fiduciary position, and having, therefore, a duty to perform to what are commonly called his constituents, that is, the company and the shareholders, he is not entitled to say that he will perform that duty properly in a case where his self-interest would be opposed to the proper performance of the duty. That is an intelligible SECRET COMMISSIONS AND BRIBES 29 principle, and one well understood." (Per Jessel, M.R., in Albion Steel & Wire Co. v. Martin, 1875, 1 Ch.D., at p. 585.) (7) Improper allotment of shares at undervalue. Where the directors of a company had improperly allotted a large number of shares to themselves at an undervalue it was held that they must account to the company for the profits which they had derived from the sale of such of the shares thus allotted as they had disposed of, and that as to the shares which they retained the proper measure of the damages was, under the circumstances, not the highest price at which any shares of the company had been sold during the period for which the directors had held their shares, but the market value of the shares at the dates at which they were respectively allotted to the directors, and that the directors must pay to the company the excess (if any) of that market value above the sums which they had paid to the company for the shares respectively. (Shaw v. Holland, 1900, 2 Ch., 305.) XIV. BROKERS MAY NOT MAKE SECRET PROFITS IN REGARD TO THEIR CUSTOMER'S TRANSACTIONS. A broker instructed by a customer to purchase shares at a price is not entitled to make a profit by purchasing at a lower price and delivering to the customer at the price originally named. ( Thompson v. Meade, 1891, 7 T.L.R., 698.) Usual Commissions. Where there is a custom on the Stock Exchange for a broker to charge commission against his client for carrying over shares and to include it in periodical state- ments, but in such a way that the client is not aware that any commission is included, the client cannot, on discovering the fact, recover such commission as a secret profit in an action against the broker. (Stubbs v. Slater, 1910, 1 Ch., 632, C.A.) XV. PROMOTERS OF COMPANIES ARE NOT ALLOWED TO MAKE SECRET PROFITS. Persons who purchase property and then create a company to purchase from them the property they possess, stand in a fiduciary position towards that company, and must faithfully state to the company the facts which apply to the property and would influence the company in deciding on the reasonableness of 30 THE LAW RELATING TO acquiring it. (Erlanger v. New Sombrero Phosphate Co., 1878, 3 A.C., 1218.) " I quite agree to this, that if promoters make an arrangement to get a profit for themselves out of what is apparently paid to the vendors it is immaterial whether the contract with the vendors is approved of by the directors of the company, who are the promoters, just before the allotment or just after ; in both cases it is intended to cheat the future shareholders ; and of course it makes no difference whatever that the persons who, at the time the allotment was made were in fact the promoters or their nominees, knew of the fraud. You can defraud future allottees as well as present allottees." (Per Jessel, M.R., In re British Seamless Paper Box Co., 1881, 17 Ch.D., at p. 471.) (1) Disclosure must be full and complete. "A promoter of a company, whose duty it is to disclose what profits he has made does not perform that duty by making a statement not disclosing the facts, but containing something which, if followed up by further investigation, will enable the inquirer to ascertain that profits have been made. . . . When there is a duty to disclose a fact no mechanism for concealing it, however ingenious, can avail." (Per Lindley, M.R., in Gluckstein v. Barnes, 1898, 2 Ch., at p. 166.) (2) Estimation of secret profits. When a promoter is liable to account for secret profits, in estimating the amount of such profits he is entitled to be allowed all sums bond fide expended in securing the services of the directors and providing their qualification and in payments to the brokers and officers of the company and to the public press in relation to the company. (Emma Silver Mining Co. v. Grant, 1879, 11 CD., 918.) XVI. THE PLEA OF CUSTOM. Where the practice of the agent being paid by commission is well-known and recognised, e.g., shipbrokers, insurance agents, 1 stockbrokers, the generality of the usage is such that the principal must be presumed to have knowledge of it ; moreover, there is nothing secret or undisclosed about such bond fide trade customs. But when it is alleged that a custom prevails which is opposed to the fundamental doctrine of the law of principal and agent, viz., that in such a fiduciary relationship there must be the utmost good faith, then no plea of custom will be entertained by the Court. 1 See, however, p. 36. SECRET COMMISSIONS AND BRIBES 31 " One matter alleged by the defendant and actually supported by evidence, although in argument admitted to be untenable, ought not to pass without notice and reprobation, namely, an alleged custom or practice in the ports in which the defendant trades for an agent for sale with a minimum limit himself to take at that limit and at his own option, the thing he is employed to sell. We cannot but express a hope that the Court will never again hear of such a contention or have before it such evidence." (Per Thesiger, L.J., in De Bussche v. Alt, 1878, 8 Ch.D., at p. 317.) In Lucifero v. Castel & Latta, 1887, 3 T.L.R., 371, it was held that an agent employed to purchase, whether for an English or a foreign principal, must disclose the true price at which he buys, any business usage to the contrary notwithstanding. Per Grave, J. " Agency means dealing in good faith at prices quoted, and that gives rise to proper commission. But an honest agent ought not to have an interest antagonistic to his principal. Some things have been put down here as customary which, if they exist, I think the sooner they are abolished the better, e.g., putting wrong sums as considerations in bills of sale." In Bulfield v. Fournier, 1895, 15 R., 180, the defendant was a shipper of brandy in France and the plaintiff was his agent for sale in England, who was appointed for a term of four years. Before the end of that period, the defendant terminated the agency and the plaintiff brought an action against him for wrongful dis- missal. The defence was that the plaintiff had made secret profits by selling the defendant's brandy to W, buying it back and selling it to other persons at a profit which he retained for himself ; and that he had received certain discounts and rebates from S who supplied advertisement cards for the business and from certain warehousemen who stored the brandy and had failed to account for the same to the defendant. A verdict and judgment were given in favour of the defendant. Per Russell, C. J. : ' It would be a very bad day for the commercial honesty of this country if the practice on the part of agents of putting profits in their own pockets of which their principal knew not, were to be allowed to pass without the severest reprehension when the matter comes before a Court, and without being visited with the severest con- demnation. An agent is entitled to his commission, and unless he is able to prove either an express agreement, or circumstances from 32 THE LAW RELATING TO which a jury can reasonably imply an agreement, he is entitled to no more, and anything else which he gets in the way of abatement, he gets for the benefit of his principal to whom he is bound to account for it." The Court expressed in strong terms their entire concurrence with the proposition which had been laid down by the judges on many occasions and was by no means new, viz., that an agent is not entitled to anything more than his agreed commission, and that the taking of any secret commission is dishonest and absolutely contrary to law. It was useless to attempt to justify such a practice by offering evidence as to the existence of a custom in any particular trade. {Bui field v. Foumier, 1896, 11 T.L.R., 282.) (1) The plea of custom is only effectual when the custom is well-known and understood by the parties. The principal is usually not bound unless he knows of it. A principal is not bound by a custom of which he has no knowledge. In Robinson v. Mollett, 1874, L.R., H.L., 802, it was decided that the custom in any particular market that a broker who has purchased and is purchasing goods of a particular kind in his own name, may take portions of those goods and supply them to principals who have employed him in the character of broker to buy such goods for them, is one of a peculiar nature, and cannot be supported as against a principal not proved to have been acquainted with it. (2) Usual commissions when not secret profits. ' If a person employs another, who he knows carries on a large business to do certain work for him, as his agent with other persons, and does not choose to ask him what his charge will be, and in fact knows that he is to be remunerated, not by him, but by the other persons, which is very common in mercantile business, and does not choose to take the trouble of inquiring what the amount is, he must allow the ordinary amount which agents are in the habit of charging. (Mellish, L.J., in Great Western Insurance Co. v. Cunliffe, 1874, L.R., 9 Ch., 525.) (3) Universal practice is no excuse. In Tnrnbull v. Garden, 1869, 20 L.T., 318, A requested B to provide an outfit for A's son. B did so, and obtained certain discounts but charged A the full prices. B alleged that this was the universal practice as between tradesmen and army agents, but as A had no knowledge of such practice the discounts were disallowed. SECRET COMMISSIONS AND BRIBES 33 Per James, V.C. : "What appears in this case shows the danger of allowing men the smallest departure from the rule that a person who is dealing with another man's money ought to give the truest account of what he has done, and ought not to receive anything in the nature of a present or allowance without the full knowledge of the principal that he is so acting." XVII. DUTY OF AGENT TO HAND OVER ANY PROFIT BEYOND AGREED COMMISSION An agent must not maKe any secret profits out of his agency, but must account to the principal for any profit he has obtained out of it. If he obtains discounts, he must account for them to his principal (Tumbull v. Garden, 1869, 38 L.J., Ch. 331), and if he does not do so he is liable to be dismissed. (Bui field v. Fournier, 1896, 11 T.L.R., 282.) It is the duty of an agent not only to account to his principal but also to hand over any profits which he may have made in the course of his principal's business. " In our judgment the result of these authorities is, that whilst an agent is bound to account to his principal or employer for all profits made by him in the course of his employment or service and is compelled to account in equity, there is at the same time a duty which we consider a legal duty — clearly incumbent upon him wherever any profits so made have reached his hands, and there is no account in regard of them remaining to be taken and adjusted between him and his employer, to pay over the amount as money absolutely belonging to his employer." (Per Cockbum, C.J., in Morison v. Thompson, 1874, L.R., 9 Q.B., 480, at p. 486.) (1 ) What agent must account for. In accounting to his principal, the agent must account for any profit made out of the agency which the principal has not arranged for. In Yorkshire and Midland Railway v. Hudson, 1853, 16 Beav., 485, the directors had to account for the premium which they received on shares which they had control over for the company and in General Ex. Bank v. Homer, 1869, L.R., 9 Eq., 480, directors had to account for commission which was paid to them by the agent who sold the company's business. Similarly, a solicitor if he is a director cannot charge professional services, for he would have to scrutinise his own bill. (North- Eastern Ry. Co. v. Jackson, 1870, 19 W.R., 198.) 34 THE LAW RELATING TO (2) Interest on secret commissions may be claimed generally at 5 per cent. Where a director sold a vessel to his company as from a stranger, it was held that he must account to the company for the profit made thereby with interest. (Benson v. Heathorn, 1842, Y. & C.C.C. 326 ; Boston Deep Sea Fishing Co. v. Ansell (infra).) (3) Commission from both parties. In Boston Deep Sea Fishing and Ice Co. v. Ansell, 1888, 59 L.T., 345, the defendant was a managing director of the plaintiff company. On behalf of the company, he contracted with shipbuilders for the construction of fishing smacks and received from the shipbuilders a commission of 1 per cent, on the contract unknown to the plaintiff company. He was held liable to repay the commission thus received to the company and his conduct was held to constitute good ground for dismissal without notice. During his directorship, he had also employed certain companies to supply ice and carry fish for the plaintiff company, being himself a shareholder in the companies employed and receiving from them bonuses on the transactions. These bonuses were paid out of surplus profits after payment of dividends of fixed amount, according to the rules of the ice-supplying and fish-carrying companies, and could not have been claimed direct by the plaintiff company which was not a shareholder in the other companies. These bonuses the defendant was held liable to repay to the plaintiff company. " In my opinion, if people have got an idea that such transactions can be properly entered into by an agent the sooner they are disabused of that idea the better." (Per Cotton, L.J.) "If it is a profit which arises out of the transaction, it belongs to his master and the agent or servant has no right to take it . . . unless his master knows it." (Per Bowen, L.J.) XVIII. LOSS OR GAIN OF PRINCIPAL IS IMMATERIAL. In Parker v. M' Kenna, 1874, L.R., 10 Ch., 96, the defendants were directors of a bank. Resolutions were passed at a general meeting (1) for the issue of 20,000 new £50 shares to be offered to shareholders at £25 premium and £5 as first call ; (2) that shares not taken by shareholders should be disposed of by the directors at £30 premium. The directors agreed with S that he should take up the new shares not taken up by old shareholders and they finally allotted him 9,778 shares. On these shares S was to pay down £5 SECRET COMMISSIONS AND BRIBES 35 a share, the bank keeping back the certificates until the whole premiums were paid until which time no transfers were to be registered. S being unable to pay for all shares, the defendants took them from him at £30 a share and afterwards sold them at a profit, the sums of £30 on each share being paid into the bank when transfers to purchasers were registered. An action was subsequently brought on behalf of the bank for the return of the profits thus made by the defendants and they were held liable. " Now, the rule of this Court, as I understand it, as to agents, is not a technical or arbitrary rule. It is a rule founded upon the highest and truest principles of morality. No man can in this Court, acting as an agent, be allowed to put himself into a position in which his interest and his duty will be in conflict. If S had bought these shares, and paid for them and become the absolute owner of them, the directors were as free as any person in the market to go to S and become the purchaser from him of those shares. The agency in that case would have been over, and there would have been no longer any conflict between interest and duty. Here the agency had not terminated. The Court will not inquire and is not in a position to ascertain whether the bank has lost or not lost by the acts of the directors. All that the Court has to do is to examine whether a profit has been made by an agent without the knowledge of his principal in the course and execution of his agency and the Court find, in my opinion, that these agents in the course of their agency have made a profit, and for that profit they must, in my opinion, account to their principal." (Per Lord Cairns, L.C., at p. 118.) XIX. TRADE DISCOUNTS. In Turnbull v. Garden, 1869, 20 L. T., 218, the plaintiff employed the defendant, an army agent, to provide a cavalry outfit for her son. The defendant took large discounts from tradesmen who supplied the articles and charged the plaintiff the full amount in his invoices. These discounts he was compelled to account for and pay over and a plea set up by him that he had acted in accordance with the custom of his trade was scouted by the Court. (1) Discounts must be accounted for, but in the absence of fraud agents are entitled to their stipulated commission. " Auctioneers 36 SECRET COMMISSIONS AND BRIBES received discounts from printers and others and did not account for the same to their principals. There was evidence of a general custom to allow such agents a trade discount, but as they received the discounts without fraud the omission to disclose such discounts did not disentitle them to retain their stipulated commission. If a principal, when contracting for the services of an agent, is told that the agent is going to receive a profit out of the agency beyond the remuneration that the principal is to pay, there can be no possible harm in the agent receiving it ; but unless it has been, in this way, authorised by the principal, the receipt of such a profit is an indefensible act." (Per Kennedy /., in Hippisley v. Knee Bros., 1905, 1 K.B., at p. 9.) (See p. 37 et seq.) (2) Insurance agents and commissions. An agent employed to effect an insurance is bound, in the absence of an agreement to the contrary, to account to his principal for any discount which may be allowed by the insurance office on the premiums paid. (Queen of Spain v. Parr, 1869, 39 L.J., Ch. 73.) (3) Sub-agents. The disability extends to the case of a sub- agent or substitute employed by the agent. (De Bussche v. Alt, 1877, 8 Ch.D. 287.) Even if no privity of contract exists between principal and sub- agent the sub-agent stands in a fiduciary relation to his principal and is therefore accountable for any commissions which he has received from a third party. (Powell v. Jones, 1905, 1 K.B. 11.) XX. AGENTS MUST ACCOUNT TO THEIR PRINCIPALS EVEN WHERE IN ACQUIRING PROFIT THE AGENTS RUN RISK OF LOSS. " Agents must account to their principals for all the benefits which they themselves obtain by virtue of that character or relation. And it is no answer to say that, in the course of acquiring the benefit which has been derived by the agent he incurred a possibility of loss. That may well be ; but if the transaction has resulted in gain, and is one which the agent was in reality enabled to accom- plish what he has done by virtue of his agency, the consequence results that the whole benefit of the transaction belongs to the person whom he must be considered to have represented through- out." (Lord Westbury in Williams v. Stevens, 1866, L.R., 1 P.C., 352, at p. 359.) CHAPTER IV EFFECT OF BRIBES ON AGENT'S COMMISSION — ACQUIESCENCE AND DISCLOSURE XXI. EFFECT OF BRIBES ON AGENT'S COMMISSION. In Salomans v. Pender, 1865, 12 L.T., 267, the defendant employed the plaintiff as his agent to sell land and the plaintiff obtained as a purchaser a company which was in course of pro- motion. When the defendant accepted the offer from the promoters, the plaintiff was a shareholder in the company and before the contract was completed he became a director. When the defendant became aware of the circumstances he refused to pay the plaintiff his commission and the latter brought an action to recover it. It was held in these circumstances that the defendant might have avoided the contract when he discovered that the plaintiff had an interest, but that as he chose to stand by the contract he might nevertheless rightly refuse to pay the commission. (1) The receipt of an unauthorised discount disentitles dishonest agent from getting his commission. An agent sold property for his principal and received a secret profit from the purchaser. It was held that the agent must not only account for that profit to his principal, but also that he was not entitled to any commission from his principal in respect of the transaction. " A principal is entitled to have an honest agent and it is only the honest agent who is entitled to any commission. In my opinion, if an agent directly or indirectly colludes with the other side and so acts in opposition to the interest of his principal, he is not entitled to any commission." (Per Lord Alverstone, C.J., in Andrews v. Ramsay, 1903, 2 K.B., 635, at p. 638.) (2) Where honest and dishonest transactions are severable. Where the transactions between a principal and his agent are severable, and in some of them the agent has been honest, whilst in others he has been dishonest, he is entitled to his commission in all the instances in which he has been honest, but is not entitled to it in all the instances in which he has been dishonest. When an agent, bound to sell only his principal's goods, in breach of his 37 5— (1520) 38 THE LAW RELATING TO duty sells the goods of his principal's competitors in trade, he must account to his principal for the profits he has made on all such sales. The doctrine laid down in Andrews v. Ramsay (supra) does not apply where the transactions in question are severable. (Nitedals Taendstikfabrik v. Bruster, 1906, 2 Ch. 671.) (3) Right of agent to retain commission when secret profit has been received without fraud. " If the Court is satisfied that there has been no fraud or dishonesty upon the agent's part, I think that the receipt by him of a discount will not disentitle him to his com- mission unless the discount is in some way connected with the contiact which the agent is employed to make or the duty which he is called upon to perform." (Lord Alverstone, C.J., Hippisley v. Knee Bros., 1905, 1 KB., \,atp. 8.) XXII. WHEN AGENT IS NOT CALLED UPON TO ACCOUNT FOR PROFIT— THE DOCTRINE OF ACQUIESCENCE. When principal does not pay the agent he cannot usually recover secret profits. When the fact that the agent receives a reward from the third party is, or ought to be well known, there being a custom to that effect, the principal has no right of action. In Norreys v. Hodgson, 1897, 13 T.L.R., 421, it was held that a person who employed an agent to raise money for him was not entitled to the commission the agent received from the insurance company for introducing the loan. But see Turnbiril v. Garden (infra). (1) Nature of acquiescence of principal where agent makes a profit by sale to himself. " It is competent, no doubt, to a principal to ratify or adopt the act of agent in purchasing that which such agent has been employed to sell. . . . Before the principal can properly be said to have ratified or adopted the act of his agent or waived his right of complaint in respect of such acts, it should be shown that he has had full knowledge of its nature and circum- stances; in other words, that he has had presented to his mind proper materials upon which to exercise his power of election, and it by no means follows that, because in a case like the present, he does not repudiate the whole transaction after it has been com- pleted, he has lost a right actually vested in him to the profits derived by his agent from it . . . the evidence by which, in a particu- lar case, it is sought to prove that the principal has waived the protection afforded by those rules should be clear and cogent." SECRET COMMISSIONS AND BRIBES 39 (Per Thesiger, L.J., in De Bussche v. Alt, 1878, 8 Ch.D., 286, at p. 312.) " If a person having a right, and suing another person about to commit or in the course of committing an act infringing upon that right, stands by in such a manner as really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to its being committed, he cannot afterwards be heard to complain of the act. This, as Lord Cottem ham said in the case already cited, is the proper sense of the term " acquiescence," and in that sense may be denned as quiescence under such circumstances as that assent may be reasonably inferred from it, and is no more than an instance of the law of estoppel by words or conduct. But when once the act is completed without any knowledge or assent upon the part of the person whose right is infringed the matter is to be determined on very different legal considerations. A right of action has then vested in him which, at all events as a general rule, cannot be divested without accord and satisfaction, or release under seal. Mere submissions to the injury for any time short of the period limited by the statute for the enforcement of the right of action cannot take away such right, although under the name of laches it may afford a ground for refusing relief under some particular circumstances ; and it is clear that even an express promise by the person injured that he would not take any legal proceedings to redress the injury done to him could not by itself constitute a bar to such proceedings, for the promise would be without consideration and therefore not binding." (Per Thesiger, L.J., in De Bussche v. Alt, 1878, 8 Ch.D., 286, at p. 314.) XXIII. EFFECT OF NON-PAYMENT OF AGENT BY PRINCIPAL. (1) Discounts accountable to principal even if agent gets no remuneration. A requested B to provide an outfit for A's son. B did so and obtained certain discounts but charged the full prices. B must account for them to his principal although he was receiving no commission as agent. (Turnbitll v. Garden, 1869, 20 L.T., 318.) (2) Where principal does not pay agent he cannot recover secret profit if the fact is or ought to be known, as a well-known custom. (Baring v. Stanton, 1876, 3 Ch.D., 502, following G. W. Insurance Co. v. Cunliffe, 1869, L.R., 9 Ch., 525.) 40 THE LAW RELATING TO " But if a person comes and trades in London he must make himself acquainted with the usages in London, and when he employs the Messrs. Baring he must expect the Messrs. Baring to treat him in the way as they treat all their other customers. . . . According to the evidence of Messrs. Baring's clerk, this is the invariable way in which they charge their customers and if Mr. Stanton had inquired before he employed Messrs. Baring what their charges were, they would have told him that these were their charges. But he had confidence in them and he thought that they would charge what was right whether he asked them or not, and cannot now be allowed to open the accounts." (Mellish, L.J., in Baring v. Stanton (supra).) From the foregoing cases the following proposition is established : — Where a principal employs an agent to deal in his (the principal's) behalf with a third person and the agent is not paid by his principal and to the knowledge of that principal or in accordance with a recognised custom he is paid by the third person, then the agent may retain the remuneration so received by him, whether the amount be or be not known to his principal. This is, of course, subject to the proviso that there has been no misrepresentation by the agent to his principal as to the character or amount of the remuneration received by him from the third person. XXIV. DISCLOSURE— AGENT CANNOT CHANGE CHARACTER EXCEPT WITH THE FULLEST KNOWLEDGE OF HIS PRINCIPAL. If, in a transaction between principal and agent it appears that there has been any underhand dealing by the agent, e.g., that he has purchased the estate of the principal in the name of another person instead of his own, however fair the transaction may be in other respects, it has no validity in a court of equity. To set aside a sale from a principal to his agent, it is not necessary to show that it was made at an undervalue. An agent may purchase from his principal, provided he deals with him at arm's length and after a full disclosure of all that he knows with respect to the property. (Murphy v. O'Shea, 1845, 2 Jo. & Lat., 422.) (1) The disclosure must be of all the material facts. " In order to make out a proper confirmation, the plaintiffs must establish a disclosure of all the material facts entitling the defendant to SECRET COMMISSIONS AND BRIBES 41 repudiate, and the disclosure should be such as fairly to bring home to the mind of the defendant a proper appreciation of the facts so as to put him to his election." (Per Romer, L.J., in Bartram v. Lloyd, 1904, 90 L.T., 357, at p. 359.) In this case there was only " half disclosure " and consequently judgment was entered for the defendants. (2) Agent must disclose exact nature of his interest. It is not sufficient to make such statements as would put principal on inquiry. " It is not enough for an agent to tell the principal that he is going to have an interest in the purchase, or to have a part in the purchase. He must tell him all the material facts. He must make a full disclosure." (Per Jessel, M.R., in Dunne v. English, 1874, 18 Eq., S2A, at p. 533.) (3) The burden of proof of proving that a full disclosure was made lies on the agent and is not discharged merely by the agent swearing that he did so, if his evidence is contradicted by the plaintiff and not corroborated. (Dunne v. English, supra.) CHAPTER V REMEDIES OF PRINCIPAL WHOSE AGENT ACCEPTS BRIBES XXV. SUMMARY OF CIVIL REMEDIES. The civil rights of a principal whose agent accepts bribes may be summarised as follows — (a) A master or principal may recover from his servant or agent everything which has been received by him by way of secret com- missions in the course of his service or agency, and if the accounts have been settled between the principal and his agent, and it can be shown in a single instance that the accounts are tainted with fraud or wilful omission, the accounts may be reopened, and the agent be required to restate and verify them by oath. (b) A master or principal may as a general rule dismiss without notice, or without payment in lieu of notice, any servant or agent who has received and not disclosed a bribe. (c) A contracting party may repudiate and rescind any contract entered into through an agent who has received a bribe from the other side. (d) A contracting party may recover from the briber, and the bribed, or either or both of them, any sum which he has paid under the contract, and which in consequence of the bribe was in excess of the fair or market price. (e) A contracting party whose agent has been bribed by the other party during the execution of the contract may, in spite of its being part performed, rescind and recover what he paid, both to the briber and the bribed. The principal may also (/) Take criminal proceedings at common law for fraud (see post, p. 53) or (g) Prosecute under the Prevention of Corruption Act, 1906 (see post, p. 67). XXVI. (a) RECOVERY OF 'SECRET COMMISSION AND REOPENING OF ACCOUNTS. If a principal authorises an agent to pay a certain price for goods and he gets them cheaper, the latter is not allowed to keep the difference. The principal can recover such sum either as money 42 SECRET COMMISSIONS AND BRIBES 43 had and received or by obtaining a declaration in Chancery ordering the money to be paid to him. " Where the account is between persons in a fiduciary relation, and the person who occupies the position of an accounting party, that is, a trustee or agent — is the defendant, it is easier to open the account than it is in cases where the persons do not occupy that position, that is to say that a less amount of error will justify the Court in opening the account. Then I have one other observation to make, which is that, where you show a single fraudulent entry in the case of persons occupying the position of principal and agent or trustee and cestui que trust, the Court has actually opened an account extending over a greater number of years and closed for a much higher period than the account I have before me " (viz., extending over nineteen years and closed for some time). {Per Jessel, M.R., in Williamson v. Barbour, 1877, 9 Ch.D., 529, at p. 532.) (1) Effect of receipt of bribe by agent. Where a servant has, in fact, been guilty of some act of misconduct in his employment, e.g., by taking a secret profit — but the master accepts the servant's denial of guilt and honestly comes to the conclusion that the servant is innocent, then, whatever the master's credulity, the servant is not entitled to rely on condonation, since no man can condone a wrong which he does not believe has been committed upon him. (Federal Supply & Cold Storage Co. v. Angehrn & Piel, 1910, 26 T.L.R., 626.) (2) Principal may recover secret commission when the fact comes to his knowledge. " Commission received by an agent or trustee of a purchaser from a vendor without the knowledge of his principal is a bribe — it is a profit which the principal has a right to extract from the agent, whenever it comes to his knowledge." (Per James, L.J., in Phosphate Sewage Co. v. Hartmont, 1877, 5 Ch.D., 448, at p. 457.) XXVII. (b) DISMISSAL OF AGENT WITHOUT NOTICE. An agent who accepts bribes may be dismissed by his principal even though the act of bribery be an isolated one and may have happened several months previous to dismissal. (Boston Deep Sea Fishing Co. v. Ansell, 1888, 39 Ch.D., 339.) (1 ) The receipt of a bribe by an agent is a good ground for dismissal 44 THE LAW RELATING TO although it happened several months previously and might have been an isolated act. " Where an agent entering into a contract on behalf of his principal receives money from the person with whom he is dealing, he is doing a wrongful act, he is misconducting himself as regards his agency and in my opinion that gives to his employer, whether a company or an individual, and whether the agent be a servant or a managing director, power and authority to dismiss him from his employment as a person who by act is shown to be incompetent of faithfully discharging his duty to his principal. . . . Even if it was an isolated transaction the discovery of that fact did justify his employers in discharging him from the office which he held." (Per Cotton, L.J., in Boston Deep Sea Fishing, etc., Co. v. Ansell, 1888, 39 Ch.D., 339, at p. 357.) Acceptance of secret commissions is misconduct which entitles principal to dismiss agent without notice, although under his contract of service he would otherwise have been entitled to six months' notice of the determination of his employment. (Swale v. Ipswich Tannery, 1906, Com. Cas., 88.) In The Federal Supply & Co. v. Angehrn & Piel, 1910, 26 T.L.R., 626, at p. 627, per Lord Atkinson. " An agent who took a secret commission did a dishonest act, and that act showed he was unfit for a position of trust and confidence. It was the revelation of character which justified dismissal." Burden of Proof. " Once the appellants (principals) had proved a prima facie case of misconduct on the part of the respondents (agents) in taking, in violation of their duty, a secret profit . . . the dismissal stood prima facie justified ; the burden of proof was shifted and it lay upon the respondents as it did upon all agents in a fiduciary position who dealt with their principals to prove the righteousness of the transaction. If they failed to discharge that burden satisfactorily then the prima facie case against them must prevail and their guilt justifying dismissal must be taken to be established." (Lord Atkinson (supra) .) XXVIII. (c) AVOIDANCE OF CONTRACT. " Any surreptitious dealing between one principal and the agent of the other principal is a fraud on such other principal . . . the defrauded principal, if he comes in time, is entitled at his option to have the contract rescinded or if he elects not to have it SECRET COMMISSIONS AND BRIBES 45 rescinded to have such other adequate relief as the Court may think right to give him." (Per James, L.J., in Panama, etc., Telegraph Co. v. India Rubber, etc., Telegraph Works, Co., 1875, L.R., 10 Ch., 515, at p. 526.) In Hough & Co. v. Bolton, 1885, 1 T.L.R., 606, per Field, J. " When a man employed an agent, it was that agent's duty to do the best he could for his employer, and if he accepted a sum of money from the vendor, given with the intention of biasing his mind in such vendor's favour it was a fraud upon such employer, who would be entitled to rescind any contract made under such circumstances on his behalf by such agent." Transactions involving sale by agent to principal without full disclosure are void without consideration of question of fairness of transactions. " Where a man employs another as his agent it is on the faith that such agent will act in the matter purely and disinterestedly for the benefit of his employer and assuredly not with the notion that the person whose assistance is required as agent has himself in the very transaction an interest directly opposed to that of his principal. ... If a person employed as agent on account of his skill and knowledge is to have, in the very same transaction, an interest directly opposite to that of his employer, it is evident that the relation between the parties then becomes of such a nature as must inevitably lead to continued disappointment if not to the continued practice of fraud. ... It has invariably been found that fraud has been the result of such transactions. It is not necessary to them that fraud was intended or that loss afterwards took place in consequence of these transactions, because the defendant, though he might have entertained no intention whatever of fraud was placed in such a situation of trust with regard to the plaintiff that the transaction cannot in the contemplation of this Court be considered valid." (Per Longdale, M.R., in Gillett v. Pepper come, 3 Beav., 78, at p. 83.) XXIX. (d) RECOVERY OF ANY SUM WHICH HAS BEEN PAID UNDER THE CONTRACT AND WHICH IN CONSEQUENCE OF THE BRIBE WAS IN EXCESS OF THE FAIR OR MARKET PRICE. In Mayor, etc., of Salford v. Lever, 1891, 1 Q.B., 168, per Esher, M.R., " The agent has been guilty of two distinct and independent 46 THE LAW RELATING TO frauds ; the one in his capacity of agent, the other by reason of his conspiracy with the third person with whom he has been dealing. Whether the action by the principal against the third person was the first or the second must be wholly immaterial. The third person was bound to pay back the extra price, and he could not absolve himself or diminish the damages by reason of the principal having recovered from the agent the bribe he had received." (1) Right to recover any loss incurred as a result of bribery. The person who bribed and the agent are liable jointly and severally to the principal for any loss incurred by him in consequence of such act of bribery without taking into account the amount of the bribe or part thereof which the principal may have recovered. " Bona fides without disclosure will not suffice to bar rescission ... it follows in principle that where the buyer (principal) elects not to rescind the sale but can nevertheless point to a specific sum over and above what must be taken as between the parties to be the real price which has found its way into the vendor's pocket as a result of a sale so effected, he is entitled to recover it back." (Per Collins, L.J., Grant v. Gold Exploration and Development Syndicate, 1900, 1 Q.B., 233.) (2) It is quite immaterial that the employer was not in fact damaged. " Such a bargain 1 is obviously corrupt. It would plainly be in contravention of the maxim, ex turpi causa non oritur actio (from an immoral cause, i.e., a contract founded on an immoral considera- tion, no right of action can arise), and most mischievous to hold that a man could come into a Court of law and enforce such a bargain on the ground that he was not in fact corrupted. It is quite immaterial that the employer was not in fact damaged. It is sufficient that the consideration upon which the promise was made was intended to be a corrupt one." (Per Cockbarn, C. J., in Harrington v. Victoria Graving Dock Co., 1878, Q.B.D., 549, at p. 551.) (3) It is not necessary that there should be evidence of the principal having to pay an increased price to enable him to recover a bribe. Where a secret commission has been paid to a buyer acting for his principal the amount of such commission can be recovered at the 1 This bargain was accompanied by a bribe. SECRET COMMISSIONS AND BRIBES 47 suit of the principal from the donor, although there is no evidence that the price of the goods has been enhanced by the amount of the commission. (Cohen v. Kuschke, 1900,83 L.T., 102.) (4) Immaterial what effect the bribe had on mind of agent. ' It is an immaterial inquiry to what extent the bribe or the offer of it influenced the person to whom it was given or offered. A con- trary doctrine would be most dangerous, for it would be almost impossible to ascertain what had been the effect of the bribe, and further, the real evil is not the payment of money but the secrecy attending it." (Per Chitty, L. /., in Shipway v. Broadwood, 1899, 1 Q.B., 369, at p. 373.) (5) The reason for giving bribe is quite immaterial. " Now there can be no question that an agent employed by a principal or master to do business with another who, unknown to that principal or master, takes from that other person a profit arising out of the business which he is employed to transact, is doing a wrongful act incon- sistent with his duty towards his master, and the continuance of confidence between them. He does the wrongful act whether such profit be given to him in return for services which he actually performs for the third party or whether it be given to him for his supposed influence or whether it be given to him on any other ground at all ; if it is a profit which arises out of the transaction, it belongs to his master and the agent or servant has no right to take it, or keep it, or bargain for it, or to receive it without bargain, unless his master knows it." (Per Bowen, L.J., in Boston Deep Sea Fishing Co. v. Ansell, 1888, 39 Ch.D., 339, at p. 363.) (6) There is no right of action for promised bribes. ' When a bribe is given, or a promise of a bribe is made to a person in the employ of another by some one who has contracted or is about to contract with the employer with a view to inducing the person employed to act otherwise than with loyalty and fidelity to his employer, the agreement is a corrupt one and is not enforcible at law whatever the actual effect produced in the mind of the person bribed may be. The tendency of such an agreement must be to bias the mind of the agent or other person employed and to lead him to act disloyally to his principal. It is intended by the party who promises the bribe to have that effect, and the other party knows such is his intention." (Per Cockbum, C.J., Harrington v. Victoria Graving Dock, 1878, 2 Q.B.D., at p. 551.) 48 SECRET COMMISSIONS AND BRIBES XXX. (e) RECOVERY OF ANY SUM PAID, EVEN UNDER PARTLY PERFORMED CONTRACT, WHERE AGENT HAS BEEN BRIBED. A contracting party whose agent had been bribed by the other party during the execution of the contract was held to be entitled to have its contract rescinded and to receive back the money which it had paid under that contract in spite of its being partly performed. (Panama Telegraph Co. v. India Rubber Telegraph Works, 1875, L.R., 10 Ch., 515.) CHAPTER VI THE RECOVERY OF SECRET PROFITS XXXI. SECRET PROFITS CAN BE RECOVERED AS MONEY HAD AND RECEIVED. (1) Where there are no accounts to render, secret profits must be paid to principal as money had and received. " Whilst an agent is bound to account to his principal or employer for all profits made by him in the course of his employment or service . . . there is at the same time a duty . . . clearly incumbent upon him whenever any profits have reached his hands and there is no account in regard to them remaining to be taken and adjusted between him and his employer to pay over the amount as money absolutely belonging to his employer." (Per Cockburn, C.J., in Morison v. Thompson, 1874, L.R.,9 Q.B., 480, at p. 486.) (2) The measure of damages is the amount of the bribes. (Hovenden v. Millhof, 1900, 83 L.T., 41.) (3) When an agent has received, by way of a bribe or secret profit, something of a fluctuating value, the principal may claim either the thing itself or the highest value in money to which it has attained during the interval between its receipt by the agent and the time when the principal discovered the fact. A director of a company who received a gift of fully paid-up shares from the promoter at a time when there was a contract between the company and the promoter still in course of being carried out, and without disclosure to the company was held liable to refund it. The Court held that the company was entitled to claim either the thing itself or its highest value between the date of receipt and the date of disclosure to the company. " It is not that the plaintiff intended to defraud his principal, but that he puts himself in a position of temptation, and the law is so scrupulous with regard to the duty of an agent towards his principal, that it will not allow the agent to put himself in that position. The principal may claim from the agent either the thing given or its highest value ; and as the agent ought at once to have disclosed to the principal his breach of duty, the value must be the highest value which the principal might have obtained for the gift at any time between the wrongful 49 50 THE LAW RELATING TO act and the time when it came to the knowledge of the principal." (Per Esher, M.R., in Eden v. Ridsdale Railway Lamp, etc., Co., 1889, 58 L.J., Q.B., 579.) In Shaw v. Holland, 1900, 2 Ch., 305, it was, however, held where directors of a company had improperly allotted a large number of shares to themselves at an undervalue that they must account to the company for the profits derived from the sale of such of the shares thus allotted as they disposed of, and that as to the shares which they retained the proper measure of damages was not the highest price at which any shares had been sold during the period for which the directors had held their shares, but the market value of the shares at the dates at which they were respectively allotted to the directors, and that the directors must pay to the company the excess (if any) of that market value above the sums which they had paid to the company for the shares respectively. XXXII. WHERE PRINCIPAL MAY NOT RECOVER SECRET PROFITS. When an agent secretly sells to the principal property which he acquired before the agency existed, concealing from the principal the fact that it is his own property, the principal has a right on discovering the real facts to rescind, but if he declines or rescission has become impossible, the agent cannot, in the absence of mis- representation, be called upon to account for the profit made by him. (In re Cape Breton Co., 1884, 26 Ch.D., 222.) This decision was followed in Ladywell Mining Co. v. Brooks, 1887, 35 Ch.D. 400, and approved in Burland v. Earle, 1902, A.C., 83, in which a director purchased property without mandate from the company and in such circumstances as did not make him a trustee thereof for the company and thereafter resold the same to the company at a profit and it was held that whether or not the company was entitled to a rescission of the contract of re-sale, it was not entitled to affirm it, and at the same time treat the director as trustee of the profit made. XXXIII. PRINCIPAL CANNOT " FOLLOW" SECRET PROFITS. Relation between principal and agent who has accepted bribes is that of creditor and debtor. Principal cannot follow such bribes. SECRET COMMISSIONS AND BRIBES 51 A principal is not entitled to follow the money into investments made by the agent taken by him by way of bribery, the relation being not that of trustee and cestui que trust but of creditor and debtor, until he has obtained judgment against the agent and obtained an injunction against his dealing therewith. (Lister & Co. v. Stubbs, 1890, 45 Ch.D., 1.) The principal as regards unpaid commission is only entitled to a declaration that the agent will become indebted to the principal for such commission as and when he shaU receive the same. {Powell v. Jones, 1905, 1 K.B. 11.) See also Re Monatt, 1899, 1 Ch. 831. In l Small v. Attwood, 1832, Younge, 407, a purchaser obtaining a decree for rescission of a contract, on the ground of fraud, was allowed to follow the stock in which part of the purchase money had been invested. XXXIV. RECEIVER OF SECRET PROFITS MAY BE DECLARED TRUSTEE. A person employed on behalf of himself and his co-partners in negotiating the terms of a lease is not entitled to stipulate clandestinely with the lessors for any private advantage to himself. Where, therefore, a sum of £12,000 was paid in pursuance of such a stipulation the party receiving it was declared to hold it in trust for the partnership. (Fawcett v. Whitehouse, 1829, 1 Russ & M., 132.) XXXV. SUB-AGENT MUST ACCOUNT FOR SECRET PROFITS. Where a sub-agent was employed by agents with the assent of the principals, such sub-agents being aware that the agents were acting for principals, and without the knowledge of the agents or their principals accepted a secret commission, it was held that there was evidence that the contractual relation of principal and agent had been established between the principals and the sub-agent and that, even if no privity of contract existed between them, the sub-agent stood in a fiduciary relation to the principal and was therefore accountable to them for the commission which he had received. (Powell v. Jones, 1905, 1 K.B., 11, C.A.) XXXVI. EFFECT OF STATUTE OF LIMITATIONS. An agent who stands in a fiduciary relation to his principal cannot set up the Statute of Limitations in bar of a suit for an See, however, (1838) 6 CI. & Fin. 232. 52 SECRET COMMISSIONS AND BRIBES account by his principal. (Burdick v. Garrick, 1869, 5 Ch., 223.) The claim of a principal in regard to a bribe received by his agent is barred by the Statute of Limitations, in equity as in law, after the expiration of six years from the time when the principal discovers the fraud. {Metropolitan Bank v. Heiron, 1880, 5 Ex. D., 319, C.A.) " In the case of a bribe received or other profit made by a person in a fiduciary position, there is no doubt that the cestui que trust who is wronged is not barred by any length of time so long as that wrong is concealed from him by the wrong-doer. But when the cestui que trust knows of the fact or knows that the fact is charged and investigates the case it is for him to make up his mind whether he will bring proceedings . . . and if he allows six years to elapse after he has had full information and knowledge of the alleged wrong before he takes steps to enforce the redress for that wrong, then the person against whom he brings such a suit has ... a clear right to avail himself of the lapse of time against the claim as much as if it had been a mere legal demand." (James, L.J., in Metropolitan Bank v. Heiron, supra.) PART II CRIMINAL LAW RELATING TO SECRET COMMISSIONS AND BRIBES CHAPTER VII COMMON LAW The civil remedies of a principal whose agent has taken bribes are apparently available either optionally or concurrently with a criminal prosecution apart from the Prevention of Corruption Act, 1906. The agent can be indicted for fraud together with the third party for conspiracy to defraud. In R. v. De Kromme, 1892, 17 Cox. C.C. 492, De Kromme was indicted for conspiracy to cheat and defraud by soliciting and inciting D, agent of W, to sell his master's goods at less than authorised prices. It was held that a servant, who, in order to make a profit for himself, sells his master's goods at less than their proper market value thereby defrauds his master of the sum which repre- sents the difference between the value of the goods and the price at which the servant has sold them. Where, therefore, a person was indicted for soliciting a servant to conspire to cheat and defraud his master and it was proved that such person had offered a bribe to the servant as an inducement to him to sell certain goods of his master at less than their value it was held that he might be properly convicted of conspiracy. R.v. Barber and others, 1887, 3 T.L.R., 491, was a criminal trial for conspiracy relating to secret profits made by a promoter. This indictment for conspiracy had been removed from the Central Criminal Court to the Queen's Bench Division by writ of certiorari. The defendants Barber and Marsden were respectively the chairman and one of the directors of the Great Eastern Steamship Co., and the third defendant, Brown, was a ship broker. Brown and the prosecutor, Coombes, were both members of a syndicate formed in October, 1884, for the purpose of chartering the Great Eastern Steamship with the object of sending her out to the New Orleans 53 6 — (1520) 54 THE LAW RELATING TO Exhibition which was opened in December, 1884. In November, 1883, the company had entered into a contract with one Mattos in reference to their vessel. He paid them a deposit of £2,500 and had an option of purchase for £50,000. This contract led to litigation. Mattos claimed to have his deposit returned to him on the ground of breach of contract in having been prevented from properly inspecting the vessel. In October, 1884, the defendant Brown had admittedly been instructed to obtain from the Great Eastern Steamship Co. the best charter he could get of the vessel. The result had been that Brown had really obtained two contracts from the defendants both dated the same day and signed by their secretary. In one contract he was to charter the vessel for the syndicate for twelve months at £500 a month and to receive 5 per cent, in broker- age ; in the other the sum payable for the twelve months' charter was to be £5,000. Brown was to receive from the defendants the balance of £1,000 besides his brokerage. On November 31st the syndicate paid over absolutely a cheque for £1,500 to the Great Eastern Steamship Co., and two days later two cheques were sent by the company's secretary to Brown of which one was for £62 10s. Od. being 5 per cent, brokerage on £1,250 and being made payable to Brown, Woodhouse & Co. This cheque was paid by that firm into their banking account in the usual way, but the second cheque for £250, as representing one-sixth of £1,500, was made payable to Brown only and was cashed by him over the counter. The contract between the company and the syndicate led to nothing, and in February, 1885, possession of the ship had been taken by George, a son-in-law of the defendant Barber in his capacity of one of the mortgagees and a resolution had been passed to wind up the company. The defendants were all found guilty, Barber receiving three months' imprisonment and Marsden and Brown one month — in each case without hard labour. In R. v. Smith (Cambridge Assizes, 1912), Henry Stanley Smith, farmer, Chatteris, was charged with " unlawfully attempting to corruptly interfere with the due course of the law and justice, by unlawfully and corruptly offering unto Robert Lown, he being a constable of the Isle of Ely Police Force, the sum of £1 as a bribe to the said Robert Lown, to neglect and omit to do his duty arising SECRET COMMISSIONS AND BRIBES 55 out of the said Henry Stanley Smith and John Golden being found upon certain premises licensed for the sale of intoxicating liquors situate in Chatteris, and in the occupation of Joseph Waterfield, at Chatteris, on the 2nd June, 1912." The defendant alleged that, understanding no proceedings were to be taken, he said, " I should be very glad to give you a sovereign to the Widows' and Orphans' Fund." For the prosecution, how- ever, it was stated that the accused gave the constable a sovereign, saying, " You must do the best you can for us." The accused pleaded guilty. Darling, J., said that defendant had pleaded guilty to the committing of a very serious offence. The incorruptibility of the police was of the highest importance. They were entrusted with duties which necessitated their protecting those who were innocent and securing to those who were guilty, or who might be guilty, of punishment. It struck at the very root of ad- ministration of justice if people attempted to corrupt the police so that they might not do their duty, and those who deserved punish- ment should escape. He did not care to refer to any place outside England, but if one would take the trouble at this moment to read the news from any other country than this, one would see to what lengths the corruption of police officials might go if cases were not dealt with at an early stage, and adequate punishment be not given to those who attempted to pollute the integrity of public servants. In this case there could be no doubt that the action was intended to prevent the constable from making a report about the conduct which led to defendant's prosecution. It was just as much an offence, although the defendant suggested the money should be given to the widows and orphans, because the object of giving it was that the constable should not make a report which should lead to him being brought before the justices. He was not going to treat this as a case of the enormity of some others. He should not send the accused to prison, as he might do. It could not be too widely known that the people who attempted to interfere with the course of justice by terrorising witnesses, by bribing witnesses, by attempting to induce police officers not to do their duty, were liable, not only to be fined, but to be imprisoned. He should impose upon him a fine ; not one that would break him, but one that would bring it home to him that he had committed a serious offence and make him suffer to some extent. He had been 56 SECRET COMMISSIONS AND BRIBES very eloquently defended, and such arguments as were given on his behalf could not be procured for nothing. In addition to all that, he would pay a fine of £25 and remain in custody till it had been paid. [This prosecution was under the common law. (See Graham v. Hart, p. 79 infra.)] CHAPTER VIII THE PREVENTION OF CORRUPTION ACT, 1906 I. GROWTH OF BRIBERY. With the growth and development of commerce of the nineteenth century there came an army of commission agents. As competition grew keener, business was sought for by devious and crooked ways. Bribes under many guises were given for the purpose of facilitating trade when other and fairer methods were exhausted or ineffective. In course of time, bribes became so usual an accompaniment of certain professions and trades as almost to partake of a custom. Cost fan tutti (so do they all) was a not uncommon defence. II. EFFECT OF BRIBES. " To say whether the bribe has or has not operated on the mind of the recipient is a metaphysical inquiry, which it is difficult for the man himself and often impossible for others, to answer ; to say what is the tendency of a bribe is a matter of no great difficulty ; and in all transactions of this sort, often obscured and embarrassed by the complications of modern commercial life, the true inquiry is : Has the payment (made under whatever name it may be; of gratuity, of Christmas box, of discount, of percentage, of capitation fee) a tendency to blind the eyes of the receiver, to make him less vigilant for his master than he ought to be, or to look with more favour on the giver than on others who are not givers of like gifts ? If this tendency be found to exist, the trans- action is to be condemned — however innocent may have been the intentions of the donor, however untainted may have been the mind of the recipient." (Sir Edward Fry.) III. FORMS OF BRIBERY. The simplest form of bribery was in the nature of a money pay- ment, the worst form of which was a pro rata commission on the business done ; sometimes in the shape of a so-called loan (which, of course, was not intended to be repaid) ; at other times it 1 The author is indebted to Leonard's War against Bribery for much information respecting the events which led to the Act of 1906 and its subsequent developments. 57 58 THE LAW RELATING TO consisted of presents of plate, wine, and other things, and frequently in the form of lavish hospitality and treating. Again, bribes were given in the guise of discounts which were concealed and facilitated by the use of two invoices. In 1877, Jessel, M.R., tried an action brought by a firm of mer- chants at Bombay which complained that their shipping agent in Lancashire had systematically been receiving two invoices, one which he sent out to India, the other, the real invoice, which he retained. He asked if there were any answer to the charge, and the reply was that the practice was universal throughout the whole shipping trade in Lancashire, and prevalent elsewhere. " I have a mass of evidence," counsel said. " There are a large number of most respectable people in court to give evidence in proof that the practice is universal." Sir George Jessel replied : " You can send those respectable people home ; they have come to prove an iniquitous practice, and the sooner they leave the court the better." IV. GROWTH OF PUBLIC OPINION. There were four stages in the development of the movement which resulted ultimately in the Act of 1906. (1) Correspondence in The Times which began in December, 1876, in reference to a theatrical action (Coe v. Sothern) in which it was shown that a stage manager had been recently receiving half the fees paid by actors to agents for securing engagements. The Times in its issue of 13th July, 1877, concisely summed up the correspondence as follows — " First came solicitors accused of betraying the trust of their employers, and leaguing with third parties to divide fees to which they had no sort of just claim. . . . Then followed bankers, auctioneers, architects, insurance agents, and accountants. There does not seem, in short, to be any end to the ramifications of this canker which has grown to such a height as to threaten the ex- tinction of honest plain-dealing altogether. It may be traced, indeed, through a much wider ramification than the correspondence we have published has as yet disclosed, and through all shades of questionableness, from direct bribery of the most corrupt kind, such as that of the architect or engineer who receives douceurs from the contractors and tradesmen whom he is bound to overlook, to the more venal, but still not justifiable, gifts or ' discounts,' SECRET COMMISSIONS AND BRIBES 59 or ' half commissions,' which nominally unpaid agents, such as bankers, may receive from a broker. What is essentially the same kind of thing may be traced in the commissions offered to clergymen and schoolmasters for introducing hymnals or school-books among their congregations or pupils, in the ' discounts ' which tradesmen allow schoolmasters on the bills which they pay for pupils, and generally in the fees exacted or expected in almost every branch of trade for what is called ' introducing ' business. The shipbroking trade is honeycombed with the same evil which pervades stock- broking, and secret discounts are exacted on freights. . . . Look where we will we find traces of the evil more or less pronounced, more or less evincing lax morals, and a corrupt method of doing business. . . . " The next best thing to abolishing the commission system altogether is clearly to make it a public thing in all cases ; and where paid professional agents such as solicitors, engineers, and architects are concerned, it might perhaps be made criminal to take these fees in secret. These suggestions are all more or less feeble, however, in view of the terrible strength of the actual state of things, and we can only hope now that public attention has been roused to the gravity of the mischief it will not go to sleep again till some- thing is done to check its further spread. The commercial prosperity of England is wrapped up in the probity which the practices under review are rapidly making a thing of the past." (2) The Public Bodies Corrupt Practices Act, 1889 of Lord Ran- dolph Churchill, who described it as the direct offspring of the Commission which inquired into the Metropolitan Board of Works. (3) Oetzmannu. Long {The Times, 7th July, 1896), in which the plaintiffs sought to recover damages for the injury sustained by them in consequence of the defendants having corruptly, by bribery, procured contracts for the supply of ivory to the plaintiffs from one of the plaintiffs' buyers in excess of current market prices. " The business of corrupt bargains was a malignant canker ; it was affecting dishonesty in all or in many details of the relations of life and was not confined to commercial relations. It was dishonest to fair dealing ; it was dishonest to the fair employer ; it broke down that principle of morality which ought to be pre- served among men who desire to cultivate and deserve honesty. The legislature had made it a crime to make corrupt bargains with 60 THE LAW RELATING TO persons holding public positions — surveyors, architects, clerks of public bodies and the like, and if the evil which constantly cropped up in courts of justice continued the legislature must attempt the task of cutting out this canker and so far as the matter rested with juries, they must not flinch from their duty." (Per Russell, C.J., in Oetzmann v. Long (unreported). Draper's Record, llth July, 1896.) This case led to some correspondence in The Times initiated by Sir E. Fry, Lord Justice of Appeal. " Bribery in one form or the other riddles and makes hollow and unsound a great deal of business, including transactions in which the professions of engineers and architects are interested. Some- times the bribery is effected by the payment of a single sum, more often under the name of a commission or by way of percentage ; sometimes pickings are secured under the form of a royalty on a worthless patent or stipulations as to the firms from which articles are to be obtained for use in the work to be done. These practices are a disgrace to our civilisation ; they are specially disgraceful in an age which prides itself on its recognition of that social tie between man and man which every one of these practices tends to break or loosen. Is it not possible that the great professions of engineers and architects may bestir themselves and consider whether something cannot be done to check practices which the honourable members of their callings admit and deplore ? Is it too much to hope that the great body of honest and straightforward manufacturers and traders who find themselves hampered and vexed by the dishonest practices of those around them can pluck up heart of grace to expose and put down what I know harass them from day to day." (Sir E. Fry in The Times, 12th September, 1896.) Sir E. Fry further expressed a hope that the Lord Chief Justice would consider the question of legislation by which the giving or taking, the offering or soliciting, of a bribe in any form should be made criminal, the existing remedies being obviously insufficient. In a leading article The Times showed that the test of secrecy in connection with commissions " may very well be taken to determine the moral complexion, as, according to Sir Edward Fry, it appears to determine the legal aspect of the transaction. " There is something to be said for the suggestion that ' the giving or taking, the offering or soliciting, of a bribe in any form SECRET COMMISSIONS AND BRIBES 61 should be made criminal,' though the denning words of such a statute would have, no doubt, to be very carefully considered. All secret commissions are in effect either given as bribes or extorted as blackmail. Fraud of some sort is of their essence and intent, and no reason is obvious why the law should be more tender to them than it is to other and not more mischievous forms of fraud. Of course detection would often be difficult, but the fear of it might compel traders of the baser sort to be honest in spite of themselves." Correspondence ensued between Lord Russell and Sir Edward Fry on the subject, and his lordship wrote that if Sir Edward would draft a Bill, he would introduce it into the House of Lords. Sir Edward Fry, thereupon, drew a draft Bill, which was the basis of all subsequent drafts and of the Act itself. Sir Edward has told us 1 "that often and often the draft was revised: that we met upon the subject repeatedly and corresponded on the matter almost down to his last days. The final touches were given to the draft when the Lord Chief Justice was in France in the summer of 1899, and were subsequently adopted by him." (4) Report of the Special Committee of Secret Commissions of the London Chamber of Commerce, 1899. Lord James of Hereford in 1885 " tried his hand " at a bill for the purpose of stopping the practice of giving illicit commissions. He was unsuccessful, and there is no doubt that this result and the long delay that ensued before the Act of 1906 was passed, were due largely to the fact that the public conscience was lethargic, public opinion indifferent, and the quiet but determined opposition of interested parties. It is always difficult to legislate in advance of public opinion. The question of secret profits is largely one concerning the interests of the mercantile community, and the gradual change in public opinion was strikingly evidenced by the appointment of a committee 2 of the London Chamber of Commerce to consider and report on the question. 1 The Life of Lord Russell of Killowen. 2 This Committee included Sir Edward Fry, Sir J. Lubbock (Lord Avebury), Sir S. B. Boulton, Sir D. Fox, Sir N. Lubbock, Sir A. K. Kollit, Colonel Sir Howard Vincent, Alderman Ritchie, Mayor Flood Page, and Messrs. David Howard (Chairman), H. O. Arnold-Forster, T. F. Blackwell, H. Clarke, W. O. Clough, W. Hazell, W. B. Leaf, Stanley Machin, J. Innes Rogers, H. W. H. Willans, and others. No fewer than twenty of the trade sections of the Chamber were represented on the Committee by either their Chairman or Deputy-Chairman. 62 THE LAW RELATING TO The Committee reported, inter alia, " Your Committee conclude from the evidence before them that secret commissions in various forms are prevalent in almost all trades and professions to a great extent, and that in some trades the practice has increased, and is increasing, and they are of opinion that the practice is producing great evil, alike to the morals of the commercial community and to the profits of honest traders. " Bribes in all forms, including secret commissions, owe their existence sometimes to the desire of the donor to obtain the assist- ance of the donee : sometimes to the demand expressed or implied of the donee that the bribe shall be given. " In the first class of cases your Committee have reason to believe that the bribe is often given unwillingly and with a pang of con- science, as the result of the keen competition in trade, and in the fear, too often well founded, that unless given other less scrupulous rivals will obtain an advantage ; many cases have come before your Committee in which traders have believed (often though not perhaps always without reason) that their entire failure to obtain orders has been due to the want of a bribe. " The second class of cases are those in which the recipient extorts the bribe from those who have established business relations with his principal. This practice is rendered more effective and oppressive by a combination between the blackmailers. The servant or agent who demands a commission and fails to receive it, not infrequently warns his fellows in the same position in the trade against the honest trader, who thus finds himself shut out from dealings with a whole circle of firms. " The bribes given naturally take many forms ; most generally they are given in the simple form of a money payment, the worst form of which is a pro rata commission on the business done ; some- times in the shape of a loan, which places the borrower at the absolute mercy of the lender, who, if he be dissatisfied with the amount of custom he receives, can call in, or threaten to call in, the loan ; sometimes the bribe consists of presents of plate, wine or other things, and not infrequently it is administered in the form of lavish hospitality and treating. " One frequent practice with those who venture to put their offer of bribes on paper, is to describe the sum offered as a SECRET COMMISSIONS AND BRIBES 63 'discount,' though the offer is made, of course, not to the principal but to his agent. " The mass of corruption which the evidence before the Com- mittee shows to exist may appear to some persons so great and complex as to render it hopeless to struggle towards purity. Your Committee do not take this view of the matter. They believe that the discussion of the subject and the publicity of some cases before the Law Courts have already done some good ; and they recall the undoubted fact that corruption formerly existed in this country in regions where it is now entirely unknown ; that there are cases in past times in which bribery threw a stain upon occupants of the Bench ; that at one time a large number of the members of the House of Commons were in the pay of the Crown ; and that com- missions and other secret forms of bribery abounded in Government departments. Your Committee accept the improvement which has taken place in these directions in the last fifty years as a fact full of encouragement for the commercial community of Great Britain." After dealing with the question of legislation the Report continues — " But meanwhile, and independently of legislation, it appears to your Committee that much may be done if only the community will rouse themselves to the task. Your Committee make with this view the following suggestions — " The more frequent enforcement of the civil rights of the principal (see ante, p. 42). " Your Committee further suggest that all professional and trade bodies (such as those representing the medical, legal, artistic, and other professions and trades), be recommended to make an emphatic declaration on the subject of secret commissions, and adopt the course already taken by the Royal Institute of British Architects, the Institution of Civil Engineers, and other bodies, by inserting into their by-laws a stipulation that any member guilty of the pernicious practice will be expelled the Society by the Council. In order to make such a provision effective this would require the aid of the general public, as well as of the members of the several professions and trades. " That traders should make with all with whom they deal a definite agreement, similar to that entered into by the members 64 THE LAW RELATING TO of the Calico Printers' Association undertaking that nothing in the form of a bribe, commission, or present, shall be offered or given by them to any one. x " It would be highly advantageous if masters and principals when entering into engagements with servants and agents would call attention to the subject, and make the refusal of all bribes an express, instead of an implied term of the contract of service or agency. Such an explicit stipulation would probably give moral as well as legal support to servants and agents in resisting the temptation when offered under the pretence of a thing which is always done." This report was widely circulated, and, as the late Duke of Devon- shire said, it came as something of a shock on the public mind. " There is no question," he said, " on which the Chamber of Com- merce of London can speak with greater weight," and there is no doubt that the London Chamber of Commerce was largely instrumental in passing the Prevention of Corruption Act. In acknowledging the work of this Committee, Lord Russell in introducing his bill of 1899 said — " The evil of commissions is not merely the corruption of the person immediately concerned, but it blunts the sense of honour and honesty. All round it is bad. It is carried on to the detriment of those who take part in it and to the disadvantage of those who will have no part in it ; it is demoralising to the community, and unjust and unfair to the men who maintain in this and other matters a high standard of probity and honour." (5) In Parliament. It was on 20th April, 1899, that Lord Russell introduced the Bill which he explained had been drafted " in con- junction with Sir Edward Fry, a man known to this House as one who rendered distinguished judicial service to the country, and who, like a great many others, has been impressed by the necessity of doing something effective at least to mitigate the evil." In an eloquent speech Lord Russell said : " On a question of money, and as affecting trade, it is important ; but that is not the only view presented to my mind. It is a practice that tarnishes the character of lawful commerce ; it blunts the sense of honesty in the man engaged in it ; it is injurious to the honest man trying 1 This is acted upon by the members of the German league against bribery. See Chapter XVII, p. 137. SECRET COMMISSIONS AND BRIBES 6.5 to conduct his business on high and honourable principles, and has a corrupting and degrading influence in ways that I need not formulate or define." Owing to Lord Russell's absence in Paris in connection with the Venezuelan Arbitration, the Bill was not proceeded with. In 1900 it was reintroduced, read a second time, and was referred to a Select Committee, which expressed its unanimous opinion that any requirement as to the consent of the Law Officers before a prosecu- tion could be instituted would impede the working of the Act, and that it was not necessary. Lord Russell at the end of June inti- mated that if Lord Halsbury insisted on this provision he would not feel able to oppose him, not because he approved the fiat, but in order that the Bill, even with this imperfection, might become an Act. Lord Russell died in August, 1900, but in the following year his Bill was reintroduced by Lord Alverstone, the present Lord Chief Justice, with the same explanatory memorandum as before, from which the following sentences may be quoted — " If it should be suggested that no prosecution ought to be allowed under this legislation except with the consent of the Attorney-General, as in the case in the Public Bodies Corrupt Practices Act, 1889, it is submitted that the cases are entirely different ; that in the case of public bodies, the representative of the Crown, i.e., the representative of the public, is the proper person to intervene ; whereas, under the present Bill, private as well as public wrongs are dealt with. It is submitted that the great difficulty of working the Act will consist in the scarcity of evidence, and that attempts to put the Act in force ought to be encouraged in the hope of breaking up the conspiracy of silence as well as of fraud which now exists." This Bill was read a second time, in April, but a month later Lord Halsbury introduced another, having the same object in view, on behalf of the Government, and this naturally took precedence. It would be tedious to dwell on the varying fortunes of the Bill, which on four occasions before it became an Act was passed by the House of Lords. In both Houses the wisdom of insisting upon the introduction of the word " corruptly " was debated, but the chief bone of con- tention was the fiat, and on two occasions a Committee of the House of Commons rejected this clause. However, Lord Halsbury 66 SECRET COMMISSIONS AND BRIBES was an Athanasius contra mundum on this point, and to placate him and secure the passing of the Bill, the condition which experi- ence has proved to be mischievous was retained. The Royal Assent was given in 1906, and the Prevention of Corruption Act came into force on 1st January, 1907. (6) OBJECTS OF THE PREVENTION OF CORRUPTION ACT, 1906. The aim of the Act is to stamp out fraud in commercial dealings and to enforce honesty in business life under the pains and penalties of the criminal law. The objects and effects of the Act may be concisely put in the words of the memorandum of Lord Russell's Secret Commissions Bill, 1899. " The object of the Bill may be shortly stated as an effort to check, by making them criminal, a large number of inequitable and illegal secret payments, all of which are dishonest, and tend to stifle confidence between man and man and to discourage honest trade and enterprise." CHAPTER IX TEXT OF THE PREVENTION OF CORRUPTION ACT, 1906 An Act for the better Prevention of Corruption. 1 Edw. 7, c. 34. (4th August, 1906). Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows — Punishment of corrupt transactions with agents. 1. — (1) If any agent corruptly accepts or obtains, or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gift or consideration as an inducement or reward for doing or forbearing to do, or for having after the passing of this Act done or forborne to do, any act in relation to his principal's affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal's affairs or business ; or If any person corruptly gives or agrees to give or offers any gift or consideration to any agent as an inducement or reward for doing or forbearing to do, or for having after the passing of this Act done or forborne to do, any act in relation to his prin- cipal's affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal's affairs or business ; or If any person knowingly gives to any agent, or if any agent knowingly uses with intent to deceive his principal, any receipt, account, or other document in respect of which the principal is interested and which contains any statement which is false or erroneous or defective in any material particular, and which to his knowledge is intended to mislead the principal ; He shall be guilty of a misdemeanour, and shall be liable on conviction on indictment to imprisonment, with or without hard labour, for a term not exceeding two years, or to a fine not exceeding £500, or to both such imprisonment and such fine, or on summary 67 68 THE LAW RELATING TO conviction to imprisonment, with or without hard labour, for a term not exceeding four months, or to a fine not exceeding £50, or to both such imprisonment and such fine. (2) For the purposes of this Act the expression " consideration " includes valuable consideration of any kind ; the expression " agent " includes any person employed by or acting for another ; and the expression " principal " includes an employer. (3) A person serving under the Crown or under any corporation or any municipal, borough, county, or district council, or any board of guardians, is an agent within the meaning of this Act. Prosecution of offences. 2. — (1) A prosecution for an offence under this Act shall not be instituted without the consent, in England of the Attorney- General or Solicitor-General, and in Ireland of the Attorney-General or Solicitor-General for Ireland. (2) The Vexatious Indictments Act, 1859 (23 & 25 Vict. c. 17) as amended by any subsequent enactment, shall apply to offences under this Act as if they were included among the offences mentioned in section one of that Act. (3) Every information for any offence under this Act shall be upon oath. (4) The expenses of any prosecution on indictment under this Act shall be defrayed as in cases of indictment for felony. (5) A court of quarter sessions shall not have jurisdiction to inquire of, hear, and determine prosecutions on indictments for offences under this Act. (6) Any person aggrieved by a summary conviction under this Act may appeal to a court of quarter sessions. Application to Scotland. 3. — This Act shall extend to Scotland, subject to the following modifications — (1) Section two shall not extend to Scotland. (2) In Scotland all offences which are punishable under this Act on summary conviction shall be prosecuted before the sheriff in manner provided by the Summary Jurisdiction (Scotland) Acts. Secret commissions and bribes 69 Short title and commencement. 4. — (1) This Act may be cited as the Prevention of Corruption Act, 1906. (2) This Act shall come into operation on the first day of January, nineteen hundred and seven. ANALYSIS OF THE ACT OF 1906 I. THE RECEIVING OF BRIBES. It is a misdemeanour — If any agent corruptly (1) Accepts or (2) Obtains or (3) Agrees to accept or (4) Attempts to obtain from any person for (a) Himself or for (b) Any other person any gift or consideration as (1) An inducement or (2) Reward for (a) Doing or (b) Forbearing to do or for having after the passing of this Act (1) Done or (2) Forborne to do any act in relation to his principal's affairs or business, or (1) For showing favour or disfavour or (2) Forbearing to show favour or disfavour to any person in relation to his principal's affairs or business. II. THE GIVING OR OFFERING OF BRIBES. It is a misdemeanour — If any person corruptly (1) Gives or (2) Agrees to give or (3) Offers 7— (1520) 70 THE LAW RELATING TO any gift or consideration as (1) An inducement or (2) Reward for (1) Doing or (2) Forbearing to do or for having after the passing of this Act (1) Done or (2) Foreborne to do any act in relation to his principal's affairs or business or (1) For showing favour or disfavour or (2) Forbearing to show favour or disfavour to any person in relation to his principal's affairs or business. III. THE GIVING OF MISLEADING DOCUMENTS. It is a misdemeanour — If any person knowingly gives to any agent (a) Any Receipt or (b) Account or (c) Other Document (1) in respect of which the principal is interested and (2) which contains any statement which is (a) False or (b) Erroneous or (c) Defective in any material particular and (3) Which to his knowledge is intended to mislead the principal. IV. THE USING OF MISLEADING DOCUMENTS. It is a misdemeanour — If any agent Knowingly uses with intent to deceive his principal (a) Any receipt or (b) Account or (c) Other Document (1) in respect of which the principal is interested and SECRET COMMISSIONS AND BRIBES 71 (2) which contains any statement which is (a) False or (b) Erroneous or (c) Defective in any material particular and (3) which to his knowledge is intended to mislead the principal. V. PENALTIES. (1) On conviction on indictment. (a) To imprisonment with or without hard labour for a term not exceeding two years or (b) To a fine not exceeding £500 or (c) To both such imprisonment and such fine. Or (2) On Summary conviction. (a) To imprisonment with or without hard labour for a term not exceeding four months or (b) To a fine not exceeding £50 or (c) To both such imprisonment and such fine. VI. INTERPRETATION OF TERMS. For the purposes of this Act — (^"Consideration" includes valuable consideration of any kind. (2) "Agent " includes any person employed by or acting for another. (3) "Principal " includes an employer. (4) A person is an agent within the meaning of this act when serving under (a) The Crown or (b) Any Corporation or (c) Any Municipal, Borough, County or District Council or (d) Any Board of Guardians. VII. PROSECUTION OF OFFENCES. (1) A prosecution for an offence under this Act shall not be instituted without the consent (a) In England of the Attorney-General or Solicitor-General, and (b) In Ireland of the Attorney-General or Solicit or -General for Ireland. 72 SECRET COMMISSIONS AND BRIBES (2) The Vexatious Indictments Act, 1859, 22 & 23 Vict. c. 17, as amended by any subsequent enactment shall apply to offences under this Act as if they were included among the offences mentioned in s. 1 of that Act. (3) Every information for any offence under this Act shall be upon oath. (4) The Expenses of any prosecution on indictment under this Act shall be defrayed as in cases of indictment for felony. (5) A Court of Quarter Sessions shall not have jurisdiction to inquire of, hear, and determine prosecutions on indictments for offences under this Act. (6) Any person aggrieved by a summary conviction under this Act may appeal to a Court of Quarter Sessions. VIII. APPLICATION TO SCOTLAND. This Act shall extend to Scotland, subject to the following modifications — (1) Section 2 shall not extend to Scotland. (2) In Scotland all offences which are punishable under this Act on summary conviction shall be prosecuted before the Sheriff in manner provided by the Summary Jurisdiction (Scotland) Acts. IX. SHORT TITLE. The Prevention of Corruption Act, 1906. X. COMMENCEMENT. This Act shall come into operation 1st January, 1907. CHAPTER X NOTES ON THE ACT OF 1906 1 THE PREVENTION OF CORRUPTION ACT, 1906. 6 Ed. VII, C. 34. 4th August, 1906. An Act for the better Prevention of Corruption. Punishment of corrupt transactions with agents. Sec. 1. — (1) If any agent corruptly accepts or obtains, or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gift or consideration as an inducement or reward for doing or forbearing to do, or for having after the passing of this Act done or forborne to do, any act in relation to his principal's affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal's affairs or business ; or If any person corruptly gives or agrees to give or offers any gift or consideration to any agent as an inducement or reward for doing or forbearing to do, or for having after the passing of this Act done or forborne to do any act in relation to his principal's affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal's affairs or business. An agent must account to his principal for every benefit or profit obtained in the course or by means of his agency and pay over to the principal such benefit or profit if acquired without the principal's knowledge and consent. (Parker v. M'Kenna, 1874, 10 Ch., 96.) This includes cases where such benefit is obtained without the knowledge or privity of the third party, cases which it is opined are not within the scope of the Act of 1906 (supra). Therefore an agent who obtains secret profits with the knowledge or privity of the third party must account to his principal therefor. Whether such profits are corrupt depends on the particular circumstances of each case ; the principal, however, has always a civil remedy. The word corruptly has not been defined by the Act and it is not a word which admits of an exact definition. " Corrupt " means 1 Hereinafter referred to as the Act of 1906. 73 74 THE LAW RELATING TO being perverted from uprightness and fidelity in the discharge of duty, influenced by bribery and the like. (Murray.) Whether the doing of an act is corrupt or not depends largely upon the particular circumstances of each case. Intention and motive for doing the act can be inferred from all the surrounding circumstances of each case (See R. v. Knill, 1822, 5 B. & A., 929) and are the two main factors which govern a corrupt act. The intent need not necessarily be fraudulent. The interpretation of the word " corruptly " is, therefore, of some difficulty — a difficulty also experienced in connection with the German Law of 1909 against unfair competition [post, p. 138). The act to be an offence under the Act must be a corrupt one, hence the importance of considering the word " corruptly." (1) Judicial observations on the word " corruptly " arising out of election petitions in connection with the Corrupt Practices Prevention Act, 1854. This act was intended to comprehend almost everything that could by any possibility happen in the way of treating at an election, governed, however, entirely by the word " corruptly." It is the prohibition of the act that makes the doing of the pro- hibited act corrupt. " We agree with the learned judge that the pravity or honesty of intention of the plaintiff in error is immaterial if he does the thing prohibited ; but we think the word corruptly has a definite meaning." (Per Alderson, B., in Cooper v. Slade, 1856, 25 L.J., N.S., Q.B., at p. 330.) "I think the word 'corruptly' in this statute (Corruption Practices Prevention Act, 1854), means not dishonestly, but in purposely doing an act which the law forbids as tending to corrupt voters, whether it be to give a pecuniary inducement to vote or a reward for having voted in any particular manner. Both the giver and the receiver in such a case may be said to act corruptly. The word ' corruptly ' seemed to be used as a designation of the act of rewarding a man for having voted in a particular way as being corrupt, rather than as part of the definition of the offence." (Per Willes, /., in Cooper v. Slade, 1858, 6 H.L. Cas. at p. 773.) " Corruptly ' ' means such conduct as it was evidently the intention of the Legislature to discountenance. " As to this word ' corruptly ' the true construction of the Act is that which was stated by Mr. Justice Willes in giving his opinion in the House of Lords in the case SECRET COMMISSIONS AND BRIBES 75 of Cooper v. Slade, namely, that corruptly here does not mean wickedly, or immorally or dishonestly or anything of that sort, but with the object and intention of doing that which the Legislature plainly means to forbid." {Blackburn, /., in The Bewdley Case, 1869, 1 O'M. & H. at p. 19.) " All the judges have considered that the word ' corruptly ' governs the whole and that it means, with the object and intention of doing that thing which the statute intended to forbid." {Per Blackburn, J., in The North Norfolk Case, 1869, 1 O'M. & H. at p. 238.) " When I say a promise is of a corrupt character, I call everything of a corrupt character which has a tendency to influence a man's vote with reference to mere lucre instead of honest considerations." {Per Willes, J., in the Northallerton Petition, 1869, 1 O'M. & H. at p. 173.) (2) Immaterial whether object for which the bribe is intended is carried out or not. " Now it has been decided to be immaterial whether the party, to whom the money is given or promised, vote or not, and even whether he have or have not a right to vote . . . the offence of corrupting is complete, whenever one party gives or promises money for the purpose of inducing the other to vote or forbear from voting, and that other professedly accepts for that purpose the promise or money so made or given. Thus the offence is complete by the one giving with such intention and the other professedly accepting with such intention." {Per Coleridge, J., in Henslow v. Fawcett, 1835, 3 A. & E. at p. 58.) (3) Corrupt notion in the mind of bribed person of no importance. The question is as to the intention of the person who bribes. ' The question is not which is the motive that operated upon the mind of the voter. The mind of the voter has nothing to do with it ; the question is, the intention of the person who furnished the bribe. Probably there is no man who ever was bribed but would swear that the bribe had not influenced his vote." {Per Martin, B., in the Westminster Case, 1869, 1 O'M. & H. at p. 95.) (4) It is immaterial to inquire what effect the bribe had on the mind of the agent. {Shipway v. Broadwood, 1899, 1 Q.B., 369.) If it be found as a fact that such an act has been done which the Legislature has forbidden to be done, it is immaterial to inquire into the motive underlying such act. Such an act would be corrupt. The offence is in the intention to break the law and the 76 THE LAW RELATING TO Court will not inquire into the motive of the vendor in giving the bribe and there is an irrebutable presumption that the agent was influenced by the bribe. (Hovenden v. Milhoff, 1900, 83 L. T., 43.) (5) It is immaterial that principal has or has not suffered any injury by a corrupt transaction. (Parker v. M'Kenna, 1874, L.R., 10 Ch., 96.) (6) Characteristics of corruption. The characteristics of a corrupt act are secrecy and a desire by the parties to conceal all the cir- cumstances of the particular transaction from the principal — the latter would often be evidence of a corrupt intention. (7) Apparently within the meaning of sec. I, sub-sec. i the following acts are corrupt — (1) Where an agent wilfully and deliberately acts with a view of obtaining some benefit from a third party either for himself or for another without the consent and knowledge of his principal. (2) Where a third party wilfully and deliberately induces or attempts to induce an agent to act in a particular manner or to reward him for having so acted as above stated. In many cases where there is a doubt as to the corrupt nature of the transaction a civil remedy is generally available. (8) Three questions may also be considered in determining whether the act is a corrupt one or not. Was the gift intended as a reward or inducement ? Would the agent be accountable to the principal for any benefit he had received ? Would the gift, if actually received by the agent, be legally the property of the principal in accordance with the rule that secret profits made in course of the agency are recoverable by the principal ? Whether the mere fact of an agent being accountable for the secret profit would in itself be sufficient to make a transaction corrupt is doubtful. Sec. 1(1) contd. If any person knowingly gives to any agent, or if any agent knowingly uses with intent to deceive his principal, any receipt, account, or other document in respect of which the principal is interested, and which contains any statement which is false or erroneous or defective in any material particular, and which to his knowledge is intended to mislead the principal ; he shall be guilty of a misdemeanour, and shall be liable on con- viction on indictment to imprisonment, with or without hard labour, for a term not exceeding two years, or to a fine not exceeding five hundred pounds, or to both such imprisonment and such fine, or SECRET COMMISSIONS AND BRIBES 77 on summary conviction to imprisonment, with or without hard labour, for a term not exceeding four months, or to a fine not exceeding fifty pounds, or to both such imprisonment and such fine. The third clause of sub-section (1) section 1 makes it criminal — (1) For any person knowingly to give any agent, or (2) for any agent (a) knowingly to use, (b) with intent to deceive, (c) and which to his knowledge is intended to mislead his principal, any receipt, etc. The prosecution must therefore prove these three facts. Intent means the act or fact of intending or proposing ; the purpose (formed in the mind). The intent is probably the dominant intent which has influenced the act of the agent. The state of mind both of the person giving the false receipt and also of the agent using it must be ascertained and proved. " The state of a man's mind is as much a fact as the state of his digestion. It is true that it is very difficult to prove what the state of a man's mind at a particular time is, but if it can be ascertained it is as much a fact as anything else." (Per Bowen, L.J., in Edington v. Fitzmanrice, 1855, 29 Ch.D., at p. 483.) " It is an exceedingly difficult thing ... to arrive at an opinion as to what is the dominant or operative motive of a man doing a particular act. But if we are to consider whether amongst all the shadows which pass across a man's mind, some view as well as the dominant view influenced him to do the act, we shall be embarking on a dark and unknown voyage across an exceedingly misty sea." [Per Bowen, L.J., in ex parte Hill, 1883, 23 Ch.D., at p. 704.) It is open to the magistrates or a jury to infer from the sur- rounding circumstances an intention to deceive or to mislead. (R. v. Hill, 1838, 2 Mood, C.C., 30.) Intention is not capable of positive proof, it can only be implied from overt acts, and every man is supposed to intend the necessary and reasonable conse- quences of his own acts. (R. v. Dixon, 1814, 3 M. & ScL, 11 ; R. v. Farrington, 1811, R. & R., 207.) Therefore if it cannot be implied from the act and circumstances which, together with it, constitute the offence, other acts of the defendant from which it can be inferred by the magistrates or jury must be proved. (See R. v. Philipps, 1805, 6 East, 464.) It is not necessary to prove that any person was actually defrauded (R. v. Crooke, 1731, 2 Str., 901), if from the circum- stances the magistrates or jury can infer that it was the defendant's 78 THE LAW RELATING TO intention to defraud, for where the intent to defraud exists in the mind of the defendant, it is sufficient, though from circumstances of which he is not apprised, he could not in fact defraud the prosecutor (R. v. Holden, 1809, R. & R., 154), or though the party to whom the forged instrument is uttered believes that the defend- ant did not intend to defraud him (R. v. Sheppard, 1810, R. & R., 169), nay, even, as it seems, though in fact no person could have been defrauded (R. v. Nash, 1852, 2 Den., 493, 503), but per Cresswell, J., in R. v. Marcus, 2 C. & K., 356, there must be a possibility of some person being defrauded. (Archbold's Criminal Pleading at p. 808.) " It is impossible for a judge to dive into the recesses of the mind of any man ; he cannot tell what his theory of words may be, or to what extent his conscience may have been corrupted by a long course of bad habits. He must suppose that reasonable men — men carrying on business — must understand their own acts and must be prepared to take the consequences. When we find an agent buying goods, paying one price and invoicing them at a higher price we must take him to know he is committing a breach of his duty as agent ; that he has taken from out of the pocket of his employer a sum which belongs to the employer, and that unless it were done on a single occasion by accident or mistake he cannot treat that overcharge as being properly described by any other term than a fraudulent overcharge." (Per Jessel, M.R., in Williamson v. Barbour, 1878, 37 L.T., at p. 703.) This clause is intended to thwart and punish those dishonest transactions by which improper receipts are given, generally by not showing the discount allowed to the agent or the issue of double invoices, one intended for the agent and the other for the principal, each containing different amounts. The principal is thus deceived by the suppression of material facts. It is, as above stated, immaterial whether the principal is in fact deceived or not. The receipt, account, or document must be one — (1) In which the principal is interested, and (2) Which contains some statement which is false or erroneous or defective in any material particular, and (3) Which to the agent's knowledge is intended to mislead his principal. In Scotland the equivalent of misdemeanour is a crime and offence. SECRET COMMISSIONS AND BRIBES 79 Sec. 1. (2) For the purpose of this Act the expression "con- sideration ' ' includes valuable consideration of any kind ; the expression " agent ' ' includes any person employed by or acting for another; and the expression "principal" includes an employer. (3) A person serving under the Crown or under any corporation or any municipal, borough, county or district council, or any board of guardians, is an agent within the meaning of this Act. " Consideration " is practically synonymous with " advantage " (q.v. in the Public Bodies Corrupt Practices Act, 1889, s. 7). (See post, p. 162.) " A valuable consideration in the sense of the law may consist either in some right, interest, profit, or benefit accruing to the one party or some forbearance, detriment, loss or responsibility, given, suffered or undertaken by the other." (Per Lush, J., in Currie v. Misa, 1875, L.R., 10 Ex., 162.) " This definition has been constantly accepted as correct. Their Lordships so treat it." (Per Lord Lindley in Fleming v. Bank of New Zealand, 1900, A.C., 586.) An agent is he who is employed to do anything in the place of another. He is a person who has authority to act on behalf of another person, called the principal, with the object of bringing such principal into legal relations with third parties. The con- tract is called agency ; it is not a mere contract of employment, but is such a contract of employment which brings the employer into legal relations with a third party. (See ante, p. 1.) By the Act of 1906 the expression " agent " includes any person employed by or acting for another, and the expression " principal " includes an employer. This section probably extends the definition of agent and principal to employee and employer respectively. " The word ' include ' is used by way of extension." (Per Erie, J., in R. v. Kershaw, 1856, 6 E. & B., at p. 1007.) Graham v. Hart (1908) 45 Sc. L.R., 332, Ct. of Justy. A police constable is an " agent " within the meaning of sec. 1 of the Act of 1906. " The contention of the appellant in this case, as stated at the bar, is based upon the view that the words of the statute ' affairs of business ' must relate to mercantile affairs and cannot be applied to employment for state or municipal duties in which no question 80 THE LAW RELATING TO of business in the ordinary sense is involved. I am quite unable to accept any such view of the statute for the Prevention of Cor- ruption. That view is excluded by the 3rd sub-sect, of section 1. . . . A police constable is therefore plainly in the position of a person to whom the Act may apply. ... I cannot doubt that the magistrate was entitled to hold on the facts which he found proved in law, the constable was acting for the Chief Constable and therefore in the sense of the Prevention of Corruption Act, 1906, was an agent." (Per Lord Stormoath Darling at p. 335.) Sec. 2. — (1) A prosecution for an offence under this Act shall not be instituted without the consent, in England, of the Attorney- General or Solicitor-General, and in Ireland of the Attorney-General or Solicitor-General for Ireland. This sub-section was doubtless intended to safeguard persons against malicious or vexatious prosecutions and as a preventative to blackmail. There is a similar clause in the Public Bodies Corrupt Practices Act, 1889, section 4, sub-section (1), " A prosecution for an offence under this Act shall not be instituted except by or with the consent of the Attorney-General. Sub-section 2 of the Act of 1889 also enacts that the expression " Attorney- General " as respects Scotland means the Lord Advocate. In the Act of 1906 no reference is made to the Lord Advocate as regards Scotland. In Scotland private prosecution for grave offences is unknown, and the Lord Advocate controls every criminal prosecution. (See p. 89.) Probably nothing tends to thwart the operations of this Act so much as the necessity of obtaining the fiat of the Attorney-General. This view is supported by the following opinion of Sir Edwaid Fry— " The enactment which requires the fiat of a Law Officer of the Crown before instituting a prosecution is injurious in many ways, and beneficial in none. The notion that it in any way diminishes the possibility of blackmail or that there is more probability of blackmailing in prosecutions of this kind than in any other, seems to me to be groundless. The great difficulty of the working of the Act consists in the scarcity of evidence, and I think that attempts to put the Act in force should be relieved from the burden of two trials, the one in camera before the Law Officer of the Crown, and the other before the Justices, with the possibility of a committal to the Assizes. The necessity of putting evidence before the Law SECRET COMMISSIONS AND BRIBES 81 Officer increases the expense and also causes delay, which in this case is especially serious. " But the most weighty objection of all to this condition arises from this : that it vests in the Law Officer of the Crown for the time being a real dispensing power ; that is, that it places in his hands the capacity of preventing the enforcement of the law of the land, and the mischief which might be done by a narrow, though honest, interpretation of the Act, might be incalculable. " Furthermore, the provision is one which is, I believe, previously entirely unknown to our law, with the single exception of the Public Bodies Corrupt Practices Act, 1889, but there the condition may possibly be justified on the ground that in the case of public bodies, the representative of the Crown, i.e., of the public, is the proper authority to intervene, whereas under the Act of 1906, private as well as public wrongs are dealt with. " One more observation may be made : the discussions which have taken place in the incubation of this Act in the Houses of Parliament have demonstrated the great weight of authority that existed against this clause. Lord Russell of Killowen and Lord Alverstone, in the memoranda which they prefixed to their Bills, deprecated the insertion of the clause. The present Lord Chan- cellor, the present Lord Advocate, and other distinguished lawyers voted against it in a Committee of the Commons, the late Lord James of Hereford, the late Lord Davey, and Lord Avebury spoke against it in the Lords. At a later date the [present] Lord Chan- cellor [Lord Loreburn] said that his objection to the Attorney- General's fiat being required was, that having held that office, he knew how slight was the opportunity of the Attorney-General himself to inquire into the matter. Against this phalanx of authority stood Lord Halsbury alone. I earnestly hope that the necessity for the fiat may be removed." Up till 1912 the fiat to prosecute had been withheld in England and Wales twelve times out of eighty applications, and in Ireland twice out of eight applications— say 16 per cent, of refusals for the two countries. The Attorney-General in England had thrice refused the Secret Commissions and Bribery Prevention League permission to prosecute — • In one case a furniture remover was alleged to have bribed in order to obtain a removal contract ; 82 THE LAW RELATING TO In another a game food maker was alleged to have offered a gamekeeper a secret discount on purchases ; In a third a solicitor was alleged to have attempted to bribe certain directors of a limited company. It is apparently sufficient to lodge the fiat with the clerk of the Court of trial, and it is not necessary to produce or prove the Attorney-General's fiat for the presentment of an indictment under the Vexatious Indictments Act, 1859, or at the trial. (R. v. Dexter, Lander, and Coates, 1899, 19 Cox, 360.) A bill to amend the law relating to the Prevention of Corruption (see post, p. 107) for the purpose inter alia of abolishing the fiat has been read a first time in the House of Commons. Sec. 2. — (2) The Vexatious Indictments Act, 1859, as amended by any subsequent enactment, shall apply to offences under this Act as if they were included among the offences mentioned in section 1 of that Act. Considerable misapprehension seems to have arisen in regard to the construction of this sub-section, and it has been suggested that it is an illusory provision and contradictory to the preceding section. The fiat as provided for in sub-section (1) is a condition precedent to prosecution, but where the magistrate refuses to commit or in the case of the presentment of an indictment under the Act, then the Vexatious Indictments Act applies, i.e., no bill of indictment in such circumstances can be presented unless one of the require- ments of that Act be complied with, which includes the consent of the Attorney-General. The fiat of section 2 (1) is merely to commence a prosecution, and does not enable a prosecutor to present an indictment forthwith. At common law any person was able to prefer a bill of indictment before a grand jury against another for any indictable offence without any previous inquiry before a justice of the peace. This right has been modified by the Vexatious Indictments Act, 1859. VEXATIOUS INDICTMENTS ACT, 1859. Section 1 . "No Bill of Indictment for any of the offences following, viz. : Perjury, subornation of perjury, conspiracy, obtaining money or other property by false pretences, keeping a gambling- house, keeping a disorderly house and any indecent assault [and offences under the Prevention of Corruption Act, 1906] shall be SECRET COMMISSIONS AND BRIBES 83 presented to or found by any grand jury unless the prosecutor or other person presenting such indictment has been bound by recog- nisance to prosecute or give evidence against the person accused of such offence, or unless the person accused has been committed to or detained in custody, or has been bound by recognisance to appear to answer to an indictment to be preferred against him for such offence, or unless such indictment for such offence, if charged to have been committed in England, be preferred by the direction or with the consent in writing of a judge of one of the superior courts of law at Westminster (i.e., now of the High Court of Justice) or of his Majesty's Attorney-General or Solicitor-General for England, or unless such indictment for such offence, if charged to have been committed in Ireland, be preferred by the direction or with the consent in writing of a judge of one of the superior courts of law in Dublin (i.e., now of the Supreme Court of Ireland), or of his Majesty's Attorney-General or Solicitor-General for Ireland, or (in the case of an indictment for perjury) by the direction of any court, judge, or public functionary, authorised by the Criminal Procedure Act, 1851 (14 & 15 Vict. c. 100), to direct a prosecution for perjury." Section 2. " Where any charge or complaint shall be made before any one or more of his Majesty's justices of the peace that any person has committed any of the offences aforesaid within the jurisdiction of such justice, and such justice shall refuse to commit or to bail the person charged with such offence to be tried for the same, then in case the prosecutor shall desire to prefer an indictment respecting the said offence, it shall be lawful for the said Justice, and he is hereby required, to take the recognisance of such prosecutor to prosecute the said charge or complaint, and to transmit such recognisance, information and depositions, if any, to the court in which such indictment ought to be preferred, in the same manner as such justice would have done in case he had committed the person charged to be tried for such offence." Section 3 provides that the Act shall not extend to Scotland. When a prosecutor bona fide prefers before a justice and within his jurisdiction, a charge or complaint in respect of an offence within the Vexatious Indictments Act, 1859, and the justice dis- misses it for want of evidence, such dismissal is equivalent to a refusal to commit and the prosecutor is entitled to require the justice to take his recognisance to prosecute the charge or complaint 84 THE LAW RELATING TO by way of indictment. (R. v. Lord Mayor of London, ex parte Gostling, 1886, 16 Cox, 77.) A magistrate, if he refuses to commit or bail the person charged, is bound under the Act of 1859 to take the recognisance of the prosecutor if the information discloses any of the offences men- tioned in the Statute, but he has a discretion to refuse if no indictable offence is disclosed. (Ex parte Wason, L.R., 1869, 4 Q.B. 573.) Where a justice refuses to grant process (or to commit) for an offence within the Act of 1859 the prosecutor may — (1) Obtain the fiat of the Attorney-General to prefer a bill of indictment. (2) Obtain the consent of a judge of the King's Bench Division to prefer a bill (Ex parte application). (R. v. Bray, 1862, 3 B. & S. 255.) (3) Apply for an order to the justice to hear and determine the application according to law. (R. v. Adamson, 1875, 1 Q.B.D. 201 ; Archbold's Criminal Pleading, p. 95.) It was found that delay and inconvenience were frequently caused by the Act of 1859 in that objections were often taken that the prisoner before the magistrate had not been charged with the precise offence as preferred in the indictment. This was remedied by the Criminal Law Amendment Act, 1867, section 1 of which enacts that the said provisions of the said first section of the said Act shall not prevent the presentment to or finding by a grand jury of any bill of indictment containing a count or counts for any of the offences mentioned in the said Act if such count or counts be founded in the opinion of the court in or upon the facts or evidence disclosed in any examinations or depositions taken before a justice of the peace in the presence of the person accused or proposed to be accused by such bill of indictment. Where a magistrate has committed a defendant to take his trial on some allegations and refused to commit on others, the prosecutor cannot add counts to the indict- ment containing allegations on which the magistrate refused to commit unless he has been bound over to prosecute the dismissed charges. (R. v. Crabbe, 1895, 59 J. P. 247.) (3) Every information for every offence under this Act shall be upon oath. This is a safeguard against frivolous or malicious prosecution. SECRET COMMISSIONS AND BRIBES 85 PROCEDURE, (1) Facts constituting the alleged offence must be laid before the Attorney-General or Solicitor-General in order to obtain his consent i.e., the fiat, section 2 (1) of the Act of 1906. Up to the present many of the prosecutions under the Act have been done through the Secret Commissions and Bribery Preventive League (post, see p. 9l). The facts are carefully investigated by the League, and if a good primd facie case is established application is made for the fiat, which is rarely refused in the case of League prosecutions, (2) Proceedings are commenced by information on oath laid before a magistrate. (Section 2 (3) of the Act of 1906.) (3) When the alleged offence is being investigated before a magis- trate the defendant (who must be present) must be informed at the beginning of his right to trial by jury if he so wishes, otherwise a conviction will be bad. SUMMARY JURISDICTION ACT, 1879. Sec. 17 (1) provides : "A person when charged before a court of summary jurisdiction with an offence in respect of the com- mission of which an offender is liable on summary conviction to be imprisoned for a term not exceeding three months . . . may, on appearing before the Court, and before the charge is gone into, but not afterwards, claim to be tried by a jury." Sec. 17 (2) : "A court of summary jurisdiction before the charge is gone into in respect of an offence to which this section applies for the purpose of informing the defendant of his right to be tried by a jury in pursuance of this section shall address him to the following effect : ' You are charged with an offence in respect of the commission of which you are entitled, if you desire it, instead of being dealt with summarily, to be tried by a jury ; do you desire to be tried by a jury ? ' with a statement, if the court think such statement desirable for the information of the person to whom the question is addressed, of the meaning of being dealt with summarily, and of the assizes or sessions (as the case may be) at which such person will be tried if tried by a jury." Where a person appears before a court of summary jurisdiction, charged with an offence to which section 17 of the Summary Jurisdiction Act, 1879, applies the Court, ought, in pursuance of sub-section 2, to inform him of his right to be tried by a jury before he pleads to the charge. If he be B— {1520) 86 THE LAW RELATING TO not informed of that right and, after the charge has been gone into, pleads guilty, the conviction is bad." Semble : It is immaterial whether or not he knew of his right to be tried by a jury and immaterial whether or not the Court knew, before the proceedings commenced, that he meant to plead guilty in the course of the case. (R. v. Cockshott, 1898, 1 Q.B. 582.) In R. v. Beesby, 1909, 1 K.B. 13, 849, a woman was charged before justices with an offence in respect of which, if it was a first offence, she was liable on summary conviction to be imprisoned for a term not exceeding three months. In the course of the hearing, evidence was given by the prosecution that the defendant had been previously convicted of a like offence, thereupon she became liable on conviction to be imprisoned for a term exceeding three months. The justices, without giving her the option prescribed by the above section convicted the defendant and sentenced her to three months' imprisonment. Held by Walton and Jelf J J. (Lord Alverstone dissenting) that the justices had no jurisdiction to treat the case as one of a first offence ; that the words " before the charge is gone into " mean in such a case " before the charge in its altered character is proceeded with," and that, as the justices had not, upon the evidence of the previous conviction being given, asked the defendant if she wished to be tried by a jury, the conviction was bad. (See also Davis v. Morton, W. N., April 26th, 1913.) It is not requisite to show upon the indictment that defendant claimed this right. (R. v. Chambers, 1896, 60 J. P. 586.) (4) If the case be sent for trial it must go to the Assizes (or Central Criminal Court). (Section 2 (5) of the Act of 1906.) (5) Any person aggrieved by a summary conviction under this Act may appeal to a court of quarter sessions (see post, p. 88). (6) LIMITATION OF TIME In all cases where no time is specially limited, such complaint shall be made or information laid within six calendar months from the time when the matter of it arose (section 11 of the Summary Jurisdiction Act, 1848). (See amending Bill, post, p. 108.) BAIL. The Indictable Offences Act, 1848, section 23 : " In all cases where a person charged with any indictable offence shall be SECRET COMMISSIONS AND BRIBES 87 committed to prison to take his trial for the same, it shall be lawful, at any time afterwards and before the first day of the sitting or session at which he is to be tried or before the day to which such sitting or session may be adjourned for the justice or justices of the peace who shall have signed the warrant for his commit- ment in his or their discretion to admit such accused person to bail." This section does not apply to bail on remand but only where the accused is committed for trial. Where the justices refuse bail in felony or misdemeanour when the party is in custody, application must be made in the first instance to the judge in chambers for a writ of habeas corpus or to show cause why the defendant should not be admitted to bail, either before a Judge in Chambers or before a justice of the peace in such amount as the judge may direct. (Crown Office Rules, 1906, p. 111.) The King's Bench Division (by summons before a Judge in Chambers) has jurisdiction to admit to bail persons charged with any crime, not only in cases where the charge was originally before them but also in cases when bail has been refused by the justices. If judge at chambers refuses bail, a further application may be made to a divisional court or any other branch of the High Court or the Lord Chancellor, not by way of appeal but de novo. No appeal lies on a refusal of bail on indictment for misdemeanour from the Divisional Court to the Court of Appeal. (R. v. Foote, 1883, 10 Q.B.D., 378.) Sec. 2. — (4) The expenses of any prosecution on indictment under this Act shall be defrayed as in cases of indictment for felony. By the Costs in Criminal Cases Act, 1908, sec. 1, the costs in pro- secutions for felony may be paid out of the county rates. When the prosecutor, after a refusal by a magistrate to commit or bail the person charged has proceeded with the prosecution as provided by section 2 of the Vexatious Indictments Act, 1859, and the person so charged is subsequently acquitted, the prosecutor may be ordered by the Court to pay all the costs of the defence (sec. 6 (2), Costs in Criminal Cases Act, 1908). Sec. 2. — (5) A court of quarter sessions shall not have urisdiction to inquire of, hear, and determine prosecution on indictments for offences under this Act. A court of quarter sessions has no jurisdic- tion in prosecutions on indictment for offences under this Act, but 88 THE LAW RELATING TO appeals may be made to it by any person aggrieved by a summary prosecution under the Act. Sec. 2. — (6) Any person aggrieved by a summary conviction under this Act may appeal to a court of quarter sessions. APPEALS. i. Generally. By Summary Jurisdiction Act, 1879, section 31, which provides that where any person is authorised to appeal from the conviction or order of a court of summary jurisdiction to a court of general or quarter sessions, he may appeal to such court subject to such conditions and regulations as stated in the sub-sections of section 31 inter alia. (a) Appeal must be to the next practicable Court of Quarter Sessions having jurisdiction in the county, borough, or place for which the Court of Summary Jurisdiction acted, and the court must be holden not less than fifteen days after the day on which the decision was given upon which the conviction or order was founded (section 31 (1) ). (b) Notice of appeal must be given in writing, and served on the other side and on the Clerk of the Court of Summary Jurisdiction within seven days after the day on which the said decision of the Court was given (section 31 (2) ), stating also the grounds of the appeal. (c) Appellant must then attend before any Court of Summary Jurisdiction within the prescribed time, or if no time is prescribed, within three days after the day on which he gave the said notice of appeal and gives security either by deposit or recognisances to appear at the hearing of the appeal and to abide by result (section 31 (3))- (d) Notice of appeal may be sent by registered letter, when it shall be deemed to have been served at the time it would be delivered in the ordinary course of post (section 31 (7) ). After recognisances have been entered into, a copy of the notice of appeal should be sent to the Clerk of the Peace. 2. Special Case. By Summary Jurisdiction Act, 1879, section 33 (1), " Any person aggrieved who desires to question a conviction, order, determination, SECRET COMMISSIONS AND BRIBES 89 or other proceeding of a Court of Summary Jurisdiction on the ground that it is erroneous in point of law, or is in excess of juris- diction, may apply to the Court to state a special case, setting forth the facts of the case and the ground on which the proceeding is questioned, and if the Court decline to state the case, may apply to the High Court of Justice for an order requiring the case to be stated." Sub-section (2) provides that the application shall be made and the case stated within such time and in such manner as prescribed by the Rules of Court. Time for stating case. Rule of March 20, 1906, in substitution of Rule 18 of SJ. Rules, 1886. An application to a Court of Summary Jurisdiction under the above section to state a. special case shall be made in writing and shall be left with the clerk of the. Court at any time within seven clear days from the date of the proceeding to be questioned and there shall also be left with him a copy of such application for each of the justices constituting such court, which shall be duly forwarded by him to each of the said justices. The case shall be stated within three calendar months after the date of the application, and after the recognisance shall have been entered into. Sec. 3.— This Act shall extend to Scotland, subject to the following modifications : (1) Section 2 shall not extend to Scotland ; (2) In Scotland all offences which are punishable under this Act on summary conviction shall be prosecuted before the sheriff in manner provided by the Summary Jurisdiction (Scotland) Acts. The Acts are as follows (a) Summary Procedure (Scotland) Act, 1864, section 4, provides that proceedings are to be instituted by complaint, as in Schedule. (b) Summary Jurisdiction (Scotland) Act, 1881. (c) Criminal Procedure (Scotland) Act, 1887, sections 4 to 15 inclusive, and 58 to 71 inclusive and Schedule A. " The fact that persons implicated in such offences reside in Scot- land will not necessarily prevent them from being tried in England or Ireland. Their offence may have been committed when there, or by making some communication which had no virtue, or rather vice, until it reached English or Irish territory. Of course, the converse would equally hold." (Wilton.) 90 SECRET COMMISSIONS AND BRIBES Sec. 4. — (1) This Act may be cited as the Prevention of Corruption Act, 1906. (2) This Act shall come into operation on the first day of January, nineteen hundred and seven. Although section 1 refers to transactions taking place after the passing of the Act, i.e., August 4th, 1906, it would not be held to justify a prosecution for anything done before January 1st, 1907, when the Act came into operation (sections (4), (2). {Wood v. Riley, 1867, L.R., 3 C.P., 26.) CHAPTER XI CONVICTIONS UNDER THE PREVENTION OF CORRUPTION ACT, 1906 TRADE SECRETS. 1 The managing director of a chemical manufacturing company in Switzerland sought to obtain secrets in connection with the manufacture of silica, offering bribes to the employees of a British company engaged in the industry. He was sentenced to six months' hard labour, and a friend who aided him and one of his commercial travellers were also sent to prison — the former for four months and the latter for one month, hard labour being ordered in each case. The trial took place at Newcastle Assizes, and both the longer sentences were appealed against unsuccessfully. (Feb. 27th, 1911.) A young German was charged at Manchester with giving money to the employees of some textile printers and velvet embossers carrying on business at Leeds, in order to discover a secret process of printing velvet. He was fined £50 and costs, in addition to £100 which he offered as compensation to the Leeds company. (Mar. 26th, 1912.) A chemical worker was fined at North wich £20, or two months' imprisonment, for offering bribes to obtain trade secrets and drawings of apparatus. For receiving stolen documents he was also fined £5, or one month's imprisonment. (Dec. 28th, 1912.) At Reading a quantity clerk formerly employed by a firm of boiler setters asked a contractor employed by the firm for informa- tion as to any new trade inquiries made by his former employers, so that he also might tender in competition for the work. A fine of £5 and £5 costs was imposed. (Jan. 17th, 1912.) At Hull a commercial traveller was fined £10 for offering bribes to a boy to give him confidential information about his employer's business. (Mar. 31st, 1909.) A youth employed by a clean towel company, for promising to pay boys for a list of the customers of a rival company, was found 1 Convictions upon indictment. 91 92 THE LAW RELATING TO by the magistrate at Westminster to have committed a breach of the Act. He was ordered to pay £2 2s. costs. (July 2nd, 1910.) A tailor's traveller, for offering a porter at a London hotel 3d. for the name of each visitor staying in the hotel, was fined £5 and £10 10s. costs. (Jan. 11th, 1909.) BRIBERY AND CONTRACTS. The managing director of a London printing company was in the habit of paying a secret commission to a clerk employed by the Gramophone and Typewriter Co., Ltd., whose monthly account for printing averaged at the time upwards of £100. The clerk took the printing from one firm, and gave it to the company whose principal bribed him, and it was stated that the Gramophone and Typewriter Company effected a saving by the change. The clerk himself received some £40. When the case came before the magis- trate at Old Street Police Court, the magistrate pointed out that the payments to the clerk were fraudulent before the passing of the Act, and he expressed his regret that he was compelled to impose so very inadequate a penalty. He fined the printer the maximum £50 with £10 10s. costs, and ordered the clerk to pay £50 and £2 2s. costs. (Oct. 8th, 1907.) The secretary of a boot manufacturing company in the country, for attempting to bribe the manager of the boot department of some stores in London, with a view to obtaining orders, was fined £10 and £5 5s. costs. (Feb. 8th, 1910.) A butcher at Newmarket sent a joint to the cook of one of his customers as " discount," and was fined £2. (June 25th, 1907.) BRIBES AND FRAUD. X A metal broker at Birkenhead, who bought under contract certain metal residues, gave money to workpeople so that the residues might be enriched with valuable material and also under- weighed. At the Chester Assizes he was sentenced to nine months' imprisonment in the second division. A clerk at Swansea who supplied the broker with money, ostensibly for bribery, had pre- viously been sent to prison for defrauding his employers of this money, and the broker's crime was discovered in some incriminating correspondence. (Oct. 24th, 1912.) A general dealer living at Wakefield was fined £30 and costs 1 Convictions upon indictment. SECRET COMMISSIONS AND BRIBES 93 for bribing a packer to describe wrongly, and to enter falsely, certain goods. The amount actually paid to the packer's employers for ten consignments was £103 whereas their proper value was £300. The dealer's son for similar offences, was fined £5 and costs — the costs in the two cases amounting to £15 15s. (Oct. 10th 1909.) A farmer at Hanley supplied a pottery with straw. He bribed the workpeople to overstate the weight of the straw which he delivered and was fined £25 and £5 103. 6d. costs. (Nov. 21st, 1910.) At Shepton Mallet a hay and straw dealer, for bribing a weigh- bridge keeper to give a wrong weight note, and the keeper for accepting the bribe, were each fined £6 and £4 costs. (Feb. 25th, 1910.) A carman was charged at Highgate with offering money to boys to overstate the number of bundles of wood which he had delivered. In consideration of his good character, and of his dismissal from his situation, the man was bound over under the Probation of Offenders Act. (Feb. 24th, 1909.) A man employed at some tile works at Ochiltree, N.B., allowed some men to take away material from the premises accepting a gift of Is. 3d. For this he was fined £1 10s. (Sept. 7th 1910.) At Aldershot a motor spirit dealer was convicted of giving a receipt for more petrol than he actually supplied to a motor driver. He was fined £5 5s. and £5 19s. costs. (Dec. 23rd, 1912.) A works manager at Birmingham was charged with taking secret commissions from a gun-block forger and stamper. He was fined £5 and court costs. (March 6th, 1913.) A commercial traveller at Leicester employed by soap manu- facturers, sent 10s. 6d. to an employee at dye works. He was fined £20 and £5 5s. court costs and witnesses' costs. (March 19th, 1913.) 1 At the Central Criminal Court, a blouse manufacturer (female) was indicted for offering as an inducement to obtain work a share of profits to the employees of a firm of drapers. She was released on entering into recognisances to come up for judgment if called upon. (April 10th, 1913.) BLACKMAIL. A publisher's stock-keeper for accepting commissions from a wood turner, who worked for his employer was at Clerkenwell fined 1 Convictions upon indictment. 94 THE LAW RELATING TO £5 and £2 2s. costs. It appeared that the defendant had exacted commissions amounting to £11. (Nov. 18th, 1910.) TRANSPORT. A cloth merchants' clerk at Manchester gave a carrier employed by the Lancashire and Yorkshire Railway company a shilling to take a bundle to a customer. He was fined £1 and £1 9s. costs, and £10 10s. extra costs. (April 5th, 1907.) A warehouseman in London gave a carman employed by Messrs. Pickfords, Ltd., two shillings to carry parcels, and the man stated that he performed the errands in his dinner hour. The carman was fined at the Guildhall £l, and the man who bribed him was ordered to pay £10 and £10 10s. costs. (Aug. 7th, 1907.) A Sutton Coldfield coal merchant gave a shilling to a clerk employed by the London and North Western Railway Co. to induce him to undercharge certain siding rents. He was fined £5 and £3 costs. (Dec. 17th, 1907.) PROFESSIONAL CASES. A London solicitor w T as charged with corruptly obtaining from an architect employed by him on behalf of a client a portion of his fee for a valuation, and also with using with intent to deceive his client a document false in a material particular, inasmuch as it did not disclose the correct amount of the sum actually paid for the valuation. On both counts he was fined the maximum amount possible in a police court, namely, £50 and £21 costs, or £142 in all. The Law Society reported the conviction to the High Court, which made no order, the Lord Chief Justice observing that it by no means followed that such a lenient course would be taken in the case of any solicitor offending against the Act in future. (March 10th, 1909.) 1 A hotel valuer carrying on business at Dover was indicted for offering £10 10s. to a solicitor so as to secure the valuation of pro- perty belonging to the solicitor's client. The trial at the Assizes lasted two days, and the defendant was fined £10 and ordered to pay the costs. (July 14th, 1911.) 1 A general merchant in London offered a solicitors' clerk, who called to collect a debt, £5 to inform his employers' clients that he had gone away or was bankrupt and had no assets. Committed 1 Convictions upon indictment. SECRET COMMISSIONS AND BRIBES 95 for trial, the merchant was sentenced at the Central Criminal Court to six months' hard labour without the option of a fine. An appeal that the sentence might be altered to imprisonment in the second division was dismissed on the ground that the prisoner was simply a common swindler. (Jan. 13th, 1909.) The keeper of an emigrants' outfitting shop at Liverpool offered some money, and sent £2 to the doctor on one of the White Star liners in order that some intending emigrants might be allowed to pass the medical examination, although possibly diseased. The offender, a foreigner, was fined £50 and £10 10s. costs, sentenced in addition to one month's hard labour and recommended for deportation. (October 24th, 1908.) ATTEMPTS TO BRIBE THE POLICE AND OTHER OFFICIALS. A Glasgow woman in order that the police might desist from watching her son, suspected of committing offences under the Street Betting Act, offered a police constable a bribe of £2 5s. She was fined £10. (May 22nd, 1907.) This conviction was appealed from on the ground that the relation of principal and agent did not subsist between the Chief Constable and the police constable in question, but was unanimously confirmed by the Justiciary Appeal Court consisting of seven judges. (See ante, p. 79.) At Glasgow a betting man tried to bribe the police not to watch him or report to the Chief Constable. He was fined £25. (March 4th, 1912.) At Glasgow a metal broker bought three farthings' worth of metal from a child under sixteen years of age. Realising that he had offended against the Children Act he gave two police constables 10s. not to report him, and for this he was fined £1. (June 30th, 1910.) At Old Street Police Court, London, a Spitalfields grocer, proved to have tried to bribe a police sergeant, who informed him that he would be reported for a summons for street betting, was fined £30 and £5 5s. costs. (Aug. 22nd, 1912.) At Croydon a bookmaker's tout, for giving 10s. to a police sergeant, who was engaged in keeping observation on street betting, was sent to prison for three months without hard labour. (Nov. 30th, 1912.) 96 THE LAW RELATING TO At Lambeth a chauffeur, when seen by a police constable in regard to a charge of driving in a dangerous manner, offered £1 "to square it." For this attempted bribery he was fined £5. (Aug. 30th, 1912.) A woman managing certain properties offered an inspector employed by the Housing Committee of the Birmingham City Council £1 so that certain sanitary alterations might not be insisted upon, and she was fined £5 and costs. (Jan. 1st, 1909.) At Wolverhampton a greengrocer's book-keeper offered to send to the clerk of the Board of Guardians an occasional brace of pheasants if the contract for supplying the Union went to his employer. He was sent to prison for one month with hard labour. (Nov. 13th, 1912.) A Chinese boarding-house manager at Liverpool offered a mer- cantile marine officer at Clydebank £2 in order that four Chinamen who had failed to pass the language test might be allowed to go to sea. He was fined £2. (Sept. 23rd, 1910.) At Stony Stratford a motor-car demonstrator driving at an excessive pace offered 3s. to a police constable. Fined £5 including costs. (March 14th, 1913.) At Consett a bookmaker was fined £5 and costs for attempting to bribe two police constables in connection with a charge under the Street Betting Act, 1906. (April 28th, 1913.) SERVICE CASES. A contractor at Croydon, engaged in pulling down some buildings at Chatham Barracks, offered £5 to a lieutenant in the Royal Engineers, who was acting as inspector of works. A fine of £25 including costs was imposed. (Oct. 10th, 1910.) A grocer at Walmer sent a cheque for £5 to a sergeant in the Royal Marines, whose duty it was to buy groceries for the recreation rooms at the Deal depot, another tradesman having recently been given all orders. The gift was reported to the Admiralty, and at the Cinque Ports petty sessions the grocer was fined £10 and 12s. 6d. costs. (March 16th, 1908.) At Weymouth a provision dealer, convicted of giving money to a canteen manager on H.M.S. Hindustan, was fined £5 and £5 costs. (April 3rd, 1912.) For attempting to bribe a non-commissioned officer at Fethard, SECRET COMMISSIONS AND BRIBES 97 Ireland, in order that he might obtain an Army contract, a local bootmaker was bound over under the Probation of First Offenders Act. (Sept. 27th, 1909.) The manufacturer of an automatic machine was convicted at Birmingham of offering to the hon. secretary of a Miniature Rifle Club a secret commission if his apparatus were ordered for the club. The offer was conveyed on a printed slip gummed to the catalogue, and sent in an open envelope stamped with a halfpenny stamp to the hon. secretary's private address. He was fined £2 and £10 14s. 6d. costs. (Nov. 6th, 1911.) "SPORTING " CASES. A coal dealer at Wigan was convicted of offering money to two professionals employed by the local football club, in order that they might not play their best at a forthcoming match. The sum he offered was £20 and half whatever he might make by betting. He was sent to prison with hard labour for two months. (Nov. 11th, 1908.) At Bristol a bookmaker, suspected of breaking his contract for a telegraphic service of racing news, offered the local manager of the company a sovereign. He was fined £10 and £10 costs. (June 6th, 1912.) CASES IN WHICH THERE HAS BEEN NO CONVICTION. An architect at Wakefield ; charged with having used a false receipt intended to mislead the West Riding County Council. Dismissed on the ground of insufficient evidence, but without costs. (Nov. 25th and Dec. 9th, 1908.) A woman cashier in same town, employed by a firm of litho- graphers : charged with giving the false receipt. No evidence offered. (Nov. 25th and Dec. 9th, 1908.) (Both defendants were also charged under the common law with conspiracy, but these charges were dismissed on the ground of insufficient evidence.) A coal merchant at South Shields : charged with having offered to supply a brewer with coal for his private use, on the understanding that the employers of the brewer should be credited with the cost. The magistrates disagreed on both occasions, and the prosecution was therefore abandoned. (April 30th and May 12th, 1909.) 98 SECRET COMMISSIONS AND BRIBES A contractor at Dungannon : charged with attempting to bribe the clerk of works employed by the local Rural Council, to forbear compelling him to take out the foundations of some labourers' cottages, condemned by the clerk and by the Council's architect as insecure. Dismissed by a majority of the magistrates. (June 28th, 1909.) A motor-car dealer at Epping : charged with offering a secret commission to a chauffeur. Dismissed for reasons not stated ; no order as to costs. (July 16th, 1909.) A nurseryman and his traveller at Manchester Assizes : charged with having given a gallon of whisky to a gardener. Found not guilty. (April 16th, 1910.) A bootmaker's superintendent at Aldershot : charged with giving boots and discount to a regimental master shoemaker. Dismissed ; no order as to costs. (May 12th, 1910.) A hotel proprietor at Mayo Assizes : charged with offering £2 to a surveyor in connection with an urban council's contract. Found not guilty. (March 16th, 1910.) A coal merchant at Perth : charged with giving money to firemen to forbear from informing their employers that coals supplied were not as contracted for. Not proven (i.e., the object with which the gifts were made) ; no order as to costs. (June 16th, 1910.) A brewer at Bradford : charged with offering Is. to a Bradford municipal sanitary inspector. Dismissed ; there being '* an element of doubt " as to the defendant's " intention and purpose." (Oct. 5th, 1910.) A brickmaker at Bolton : charged with offering a gift (3s.) to a workman at some tile works, and offering a gift to a second workman. Summons withdrawn, the defendant expressing regret and agreeing to pay costs, estimated at £52 10s. (Oct. 31st, 1910.) A director of a firm of golf ball makers, was alleged to have corruptly offered the secretary of a golf club, golf balls, in return for a list of the names and private addresses of the members of the club. Dismissed apparently on the ground that as it was no part of the secretary's duty to supply addresses of members, he was not being asked to do anything as an agent of his employers. (March 9th, 1913.) CHAPTER XII AIMS AND RESULTS OF THE ACT OF 1906 There is little doubt that the remedy, namely the Act of 1906, which Parliament " hath resolved and appointed to cure the disease of the commonwealth " of secret commissions and bribes has been effective and salutary. " The office of all the judges is always to make such construction (of the Act) as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief pro private commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act pro bono publico." {Hey don's Case, 1584 3 Rep. 76.) No Act of Parliament can succeed if it is in advance of public opinion, and no one can deny that bribery is not always regarded with the reproach which the crime deserves. As Sir Edward Fry has pointed out, " There is a considerable number of persons who speak leniently, almost kindly, of the evil in question for various reasons, some due to a personal interest, and some to a kind of stupid good nature, which thinks more of the gratification of the recipient than of all the evils resulting from the practice." The object of the Act " was to check a far-reaching mischief — mischief of the bribery of servants and agents (under the name of commission, gratuity or allowance, or similar phrases) by persons with whom the employer of the servant or agent happens to be dealing in the way of business. . . . The ramifications of this form of corruption under the influence to a considerable extent of the growing intensity of commercial competition, had widely spread, and had a foothold alike in the private household and in the big business office. It is obviously a dangerous and a seductive form of immorality : it is difficult to detect, for it is in the interest alike of the giver and the receiver of the corrupt gift to keep the thing secret ; its ugliness can easily be disguised under the mask of generosity or gratitude ; and it had become at the time of the passing of this Act so notoriously a common practice that I verily believe that not infrequently both the guilty parties had persuaded 99 100 THE LAW RELATING TO themselves, or almost persuaded, themselves that they were not doing anything which was really deserving of serious reproach. . . I hope that the Statute of 1906 has already done, and will continue to do, much to effect a needed information, not only by the deterrent effect of its penalties, but also by the still more potent influence for good which such legislation, in a free country like ours, incidentally and silently exists by conforming and even to some extent creating public sentiment against a malpractice to which the nation, in Parliament, has in this solemn fashion affixed the stamp of national condemnation." (Kennedy L.J. at the Gloucester Diocesan Conference, 12th October, 1907.) " No one will suppose that every form of wrong-doing contem- plated by the Act will cease out of the land, any more than that laws and police can entirely put down vulgar theft. But it is clear enough that the Act is capable of reaching many corrupt practices previously thought safe, and therefore, by many people, innocent ; and that the knowledge that it can be, and will be, enforced will not only deter many from doing forbidden things, but will powerfully educate public opinion to regard them, not merely as forbidden, but as essentially dishonest and wrong." — The Times. Notwithstanding some interested opposition, the public conscience has been aroused on the subject of secret commissions and unques- tionably there is a better and improving tone of public opinion. It is being realised among the mercantile community that the plea of custom as regards bribes is untenable and that the taking or receiving them is dishonest, corrupt, and criminal. The value of legislation of this character consists not in the actual number of convictions secured, but in the extent to which it acts as a deterrent to potential offenders. Prosecutions under the Act have been numerous and have gener- ally resulted in conviction and drastic sentences or heavy penalties (see ante, p. 91). Fear of the Act has probably deterred many from offering or receiving bribes. The mind of the dishonest tradesman or servant is only operated on by fear of prosecution and its consequences. Yet the position of the trader who wishes to be honest is in fact very difficult. If he gives a bribe he commits an offence ; if he does not, he may lose trade. If he takes steps to see that the Act is enforced he may lose his customers, and if he complains to the principals the latter may, SECRET COMMISSIONS AND BRIBES 101 and do argue, that the trader must have bribed heavily in the past, and thereupon close their accounts. It is significant, therefore, of the desire of the mercantile com- munity to rid itself of the incubus of bribes that it has formed a league — The Secret Commissions and Bribery Prevention League — for the chief purpose of seeing that the Act of 1906 is effective and is enforced, by instituting a large number of prosecutions under the statute. " Decrees, without an organisation which enforces them and thereby awakens a lasting fear of the law, are to a certain extent only a knife without a blade." Practically all the leading bankers, merchants, and traders are members of this organisation, and its influence on public morality in reference to bribes must be wide-reaching and of great importance. The League has, notwithstanding the drawback of obtaining the fiat, successfully prosecuted a large number of offenders under the Act. Most of these have been convicted and have received drastic sentences. It may be truly said that the Act of 1906 is achieving its object, owing to the changed tone of public opinion, the admirable work of the Secret Commissions and Bribery Prevention League, and also to the fact that judges and magistrates have generally shown no leniency towards offenders but have meted out severe punish- ment, which has doubtless acted as a deterrent to many others. The unwelcome publicity and heavy penalties or imprisonment which usually follow a prosecution under the Act have had an enor- mous but unseen influence in making trade freer of corrupt practices. Bribes are given and will be given, notwithstanding the efforts of judges and magistrates to suppress the mischief, and advance the remedy as provided by an Act of Parliament — an Act which has the keen support and influence of a powerful League, and the sanction and moral force of public opinion. Why do agents (including servants) so often offer or receive bribes ? Principals can largely prevent or minimise bribery, and so obtain the impartial judgment and whole-hearted services of their agents and in consequence ensure better value for their money. The evil of bribery is, in many instances, due to lack of adequate and reasonable remuneration for the work done by agents. Men in responsible positions and subject to many temptations too often eke out inadequate earnings by accepting bribes, and thereby have an interest against their duty. 9— (1520) 102 SECRET COMMISSIONS AND BRIBES Lack of supervision and control on the part of principals is another preponderating cause of bribery, especially when it is accompanied by ignorance or incompetency. Principals who have to rely absolutely on technical and professional advisers and pay them inadequate remuneration are often victims of the canker of corrup- tion. It does not, of course, follow that proper remuneration will make agents honest, but it will have a great influence in preventing agents accepting bribes — at all events it will tend to reduce temptation. CHAPTER XIII CHRISTMAS BOXES The question of the lawful giving and receiving of Christmas boxes (like that of tips and gratuities to which also these considerations apply) presents some difficulties. A Christmas box has been described as a mischievous red herring on the trail of more important game. The following questions should be carefully considered — (1) What is the amount of the Christmas box ? (2) What is the object or motive underlying the gift ? (3) Is the gift intended to serve as an inducement or reward ? (4) Is the gift secret ? (5) Would either agent or third party object to the principal knowing of the gift and the whole circumstances connected therewith ? Christmas boxes may, in certain cases, be given in a spirit of good- will and that largeness and openness of heart which is supposed to be specially in evidence at that period of the year, or they may be mere rewards for past favours and/or as an inducement for further favours to come. In fact, they are often deferred bribes. The amount is often indicative of the object and motive underlying the gift, and if the gift is substantial and disproportionate it is always suspicious and generally unlawful. If the intentions of the parties to the Christmas box are corrupt, i.e., the corruptly giving or accepting something as an inducement or reward for showing favour in relation to the affairs of the reci- pient's employer, then the acceptance or proffer will be criminal, and the parties will be subject to the penalties of the Prevention of Corruption Act, 1906, even although in fact the employer has not suffered any loss and has received all the benefits he contemplated. One of the chief characteristics of a corrupt gift is its secrecy. Why are Christmas boxes given ? The tradesman may tip the servants of his customers because he looks upon a Christmas box as a legitimate form of exchange of human sentiment by one class of people to another, or because he likes the servant, but more often because of favours extended to him in the past or because he hopes 103 104 THE LAW RELATING TO to induce the servant to regard him with favour in the future. The danger in giving and receiving such gifts is that they consciously or unconsciously do predispose the servant to the tradesman and thus tend to give him undue preference. This must ultimately be of some disadvantage to the employer. The servant, in such circumstances is often unwilling or unable to protect his employer's interest, and in the case of defect or omis- sions in the goods supplied by the tradesman, is disinclined to make any effective complaint. Any gift which is given in proportion to the amount spent by the employer is invariably corrupt and therefore illegal. The Christmas box may be ostensibly given or offered to a servant partly as a token of goodwill at a festive season, but really as an inducement for showing favours either in the past or present, and usually in the future. The Prevention of Corruption Act, 1906, inter alia, provides that such a gift corruptly given to an agent (servant) as an inducement or reward for doing or forbearing to do some act in relation to his principal's (customer's) affairs or business, or for showing favour or forbearing to show disfavour renders the giver and recipient liable to be prosecuted under the Act. In these circumstances, the less tradesmen have to do with Christ- mas boxes the better. These gifts are difficult to explain away, and when known to the customers invariably awake suspicions as to their motive and effect. These Christmas boxes have to be paid for by someone, and the cost thereof is often passed on to the customer directly or indirectly ; resulting, on discovery, in loss of trade and occasionally followed by criminal prosecution. SIR EDWARD FRY ON CHRISTMAS BOXES. " There is, in my opinion, no doubt that most Christmas boxes given by tradesmen to servants are given as inducements to show favour to the tradesmen. So plainly is this thought to be the case that those tradesmen who hesitate to make these presents are wont to declare that unless they break the law they will lose their custom : and thus they complain of the painful dilemma between honesty and gain. It is equally clear to me that a gift made as an induce- ment to a servant to show favour to a person dealing with his master, and made without that master's assent, is corruptly given ; for the very essence of the servant's duty is to serve his master SECRET COMMISSIONS AND BRIBES 105 without favour or disfavour to any third person, and therefore the gift tends to lead the servant astray, and so corrupt him. " It follows that the only safe course for those who wish to make Christmas gifts to servants is to do so with the express consent of the master, if such consent can be obtained ; and if it be not obtained, then to abstain from making the gift. Some dealers, acting upon this view, have issued circulars to the servants of their customers, pointing out the danger of continuing the habit of giving Christmas boxes, and inviting the servants to procure their masters' signature to an enclosed form assenting to the payment of the gift. Wherever a master thus assents to the receipt of a present by his servant, it is obvious that the payment and receipt are not corrupt, and not therefore within the meaning of the Act. " There remains a moral question. Ought a master to consent to the receipt by his servant of a donation from the dealer ? It is in my opinion generally unwise to do so, and it is especially unwise when the gift is proportioned to the amount of the dealings. The evil of such payments is that they tend to place the servant in a difficulty — to create an obligation or an inclination to act in the interests of a stranger when he ought to act with a single eye to his master's benefit. Suppose a gardener is paid 5 per cent, on the amount of the orders given for the garden ; he is placed under a direct inducement to order more than is needful, whereas his duty to his master requires him to order only what is needful ; he is placed under a like inducement not to point out any faults in the goods supplied, whereas his duty requires that he should be vigilant in respect of all defects. " To those masters who are willing to allow their servants to receive Christmas boxes I would suggest that they should confine their consent to gifts of a fixed and limited amount, and that they should consent not generally, but only from year to year." The Attorney-General (Sir Rufus Isaacs) has stated that the essence of a corrupt payment was its secrecy. " Whenever a man feels any doubt as to whether or not the payment he has been in the habit of making — and the doubt must occur to many business men who give presents, call them Christmas boxes, presents, or com- missions — at this season of the year is legitimate, the safest thing is to make it perfectly clear what he is doing, by giving notice to the employer of the person to whom he is making it." CHAPTER XIV TIPS AND GRATUITIES There is no distinction in law between the giving and the receiving of a commission or tip or gratuity. The giving of tips and gra- tuities is generally of an occasional character, and has not usually that regularity which commissions possesses. As a rule tips and gratuities are smaller in amount than commissions or profits, but none the less their giving and receipt may have a corrupt motive which renders the bribed and briber amenable to the law. WHEN TIPS ARE LAWFUL. As in other profits of a more regular and systematic nature, tips, if given openly to the agent with the principal's knowledge, or where the habitual giving and receiving is open and notorious and sanctioned by the employer, are legal, e.g., tips given to waiters. Acceptance of a commission or a gift or tip by an agent where the giving of the commission or tip is not secret but is open and known to the principal or within his knowledge, is quite lawful. When the principal is aware that the agent is getting some allowance or commission and there is no attempt at deception, the agent may keep it. " There also appears to be that which I cannot call a custom (a word which has a legal and technical meaning), but rather a practice ... of giving . . . remuneration in the shape of com- mission on the price of the work to be done. Now, whether it is a gift or calculated as commission is a matter of very little import- ance, but that this practice prevails and that the plaintiff knew it prevailed and was himself in the habit of acceding and conforming to it, is, in my opinion, established by the evidence in this case. I think he must have known what occurred in that respect or must have had good reason to believe, if he had turned his attention to the subject, that such was the course adopted here. ... I mean to express nothing which can be construed into an encouragement of the practice I have alluded to." (Romilly, M.R., in H olden v. Webber, 1860, 29 Beav. at p. 121.) 106 SECRET COMMISSIONS AND BRIBES 107 Where the employment is of such a nature that the habitual giving and receiving of tips is open and notorious and sanctioned by the employer, the money thus received with his knowledge and approval must be brought into account in estimating the average weekly earnings in respect of which compensation has to be awarded. " To avoid misconception, we desire to state that nothing in this judgment extends to tips or gratuities (a) which are illicit ; (b) which invoke or encourage a neglect or breach of duty on the part of the recipient to his employer ; or (c) which are casual and sporadic and trivial in amount. But where the employment is of such nature that the habitual giving and receiving of ' tips ' is open and notorious and sanctioned by the employer so that he could not complain of the retention by the servant of the money thus received, we think the money thus received with his knowledge and approval ought to be brought into account in estimating the average weekly earnings. . . . It is notorious that ' tips ' are given to waiters and the employers could not pretend to be ignorant of the custom." (Per Cozens- Hardy, M.R., in Penn v. Spiers & Pond, Ltd., 1908, 1 K.B., at p. 770.) WHEN TIPS ARE UNLAWFUL. Tips when given without the principal's knowledge for the purpose of influencing the agent in relation to his principal's affairs, even if the principal did not suffer any injury, are illegal. As in the case of other secret bribes, the remedies of a principal are — (1) Civil — To recover amount of tips. (2) Criminal — At Common Law or by the Prevention of Corruption Act, 1906 — To prosecute agent. CHAPTER XV PREVENTION OF CORRUPTION ACT AMENDMENT BILL A BILL for the amendment of the Act of 1906 was read a first time in the House of Commons on Tuesday, May 6th, 1913, and was then put down for second reading upon Tuesday, June 3rd, 1913. Its text with the accompanying memorandum is as follows — Memorandum The object of this Bill is to allow any prosecution for an offence under the Prevention of Corruption Act, 1906, to be instituted with- out the necessity of first obtaining the consent in England of the Attorney-General or Solicitor-General, and in Ireland of the Attorney- General or Solicitor-General for Ireland. Under the Act of 1906 informations by which proceedings for offences against it are commenced must be laid upon oath, and the Vexatious Ind ctments Act, 1859, is made applicable to proceedings on indictment. The Bill further provides for an offender being committed for trial before a jury, where the Court of Summary Jurisdiction thinks it desirable that he should be so tried and even where the accused has not exercised his option of a trial upon indictment. It also extends the time in which offences may be dealt with summarily from six months to two years. The text is as follows — A Bill to Amend the Law relating to the Prevention of Corruption Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows — i. Sub-section (1) of section two of the Prevention of Corruption Act, 1906, is hereby repealed. 2. — (1) When proceedings are taken against any person for an offence against the Prevention of Corruption Act, 1906, with a view to obtaining a summary conviction of such person before a court of 108 SECRET COMMISSIONS AND BRIBES 109 summary jurisdiction or in Scotland before the sheriff, such pro- ceedings may, notwithstanding the provisions of the Summary Jurisdiction Act, be commenced at any period before the expiration of two years next after the commission of the offence or before the expiration of one year next after the first discovery thereof by the prosecution, whichever expiration first happens. (2) The court before which proceedings are taken with a view to obtaining a summary conviction for an offence against the Preven- tion of Corruption Act, 1906, may at any stage of the hearing if it thinks fit, having regard to the circumstances of the case, commit the person accused for trial upon indictment for such offence instead of proceeding to deal with such person summarily. 3. This Act may be cited as the Prevention of Corruption Act Amendment Act, 1913, and this Act and the Prevention of Cor- ruption Act, 1906, shall be read together and may be cited together as the Prevention of Corruption Acts, 1906 to 1913. 4. This Act shall come into operation on the first day of January nineteen hundred and fourteen. CHAPTER XVI WHAT IS BRIBERY ? " Turn from the glittering bribe thy scornful eye. Nor sell for gold what gold could never buy." — Johnson. " They are bribe-takers. Nowadays they call them gentle rewards. Let them leave their colouring, and call them by their Christian name — bribes. ... He that took the silver basin and ewer for a bribe, thinketh that it will never come out. But he may not know that I know it, and I know it not alone ; there be more beside me that know it. Oh, briber and bribery ! He was never a good man that will so take bribes. ... It will never be merry in England till we have the skins of such. For what needeth bribing where men do their things uprightly ? " — Bishop Latimer. " Commissions sometimes cover a multitude of sins." (Per Esher, M.R., in Mayor, etc., of Salford v. Lever, 1891, 1 Q.B., at p. 175.) " The real evil is not the payment of money but the secrecy attaching to it." (Per Chitty, L.J., in Shipway v. Broadwood, 1899, 1 Q.B., at p. 373.) "Is it right that the wolf should give a sop to the watch-dog without his master's leave?" (Per Bowen, L.J., in Archer's Case, 1892, 1 Ch.D., at p. 333.) It is often difficult to decide whether a gift is a bribe and whether the giving of such bribe falls within the Act of 1906, or may be dealt with by a civil action. There are two determining factors in this connection : is the person who receives a gift or bribe an agent, and is there evidence of corruption ? With regard to the second point, the very best evidence of corruption is the secrecy characterising the transaction. Then again there is often a diffi- culty in interpreting the word " corruptly " which apparently is experienced in the German Law of 1909 against unfair competition (see p. 138). Some idea of the ramifications of the giving of bribes and com- missions, which is the bane of many business houses, and hardly less of many private householders, may be judged by the following 110 SECRET COMMISSIONS AND BRIBES 1 1 1 illustrations which are founded on fact — most of them having been reported to the Secret Commissions and Bribery Prevention League. All the practices here detailed are objectionable and improper, whether they all come within the civil or criminal law is open to doubt. The particular circumstances of each case have to be considered as to whether or not the gift or inducement is corrupt. In many instances, civil proceedings would probably prove successful. SCHOOLMASTERS. Schoolmasters do not always disclose the fact that they have had any discount on their pupils' bills, although required to do so by the Act of 1906. ENGINEERS. Manufacturing engineers return a specification to a consulting engineer, quoting a net price. In a covering letter it is stated that this price covers a commission of five per cent, to the consulting engineer, who of course is, or should be, paid by his clients. An inventor obtains permission to demonstrate at certain works the value of his patent, which, it is claimed, would replace machinery already installed. The engineer is bribed by the manufacturers of the old plant to spoil the test. An engineer-in-charge complains to his employer that A's lubricating oil is unsatisfactory and inferior to B's. His employer privately changes the receptacles for the oil, and the engineer then praises A's oil under the impression that it is B's. ARCHITECTS AND CLERKS OF WORKS. An art metal firm offers an architect a secret commission of ten per cent, out of its profits in return ostensibly for services rendered in the way of tracings, details, suggestions, etc. The private house of a clerk of works is supplied with gas fittings, free of charge, by a firm doing work for the architect who employs the clerk. A manufacturer, despairing of getting some structural work done by a certain date, bets the clerk of works -£10 to Is. that the work will not be ready by the desired date. 112 THE LAW RELATING TO COURIERS. West End shopkeepers bribe a courier to bring tourists to their shops. A courier demands commission on the amount of purchases made by his various temporary employers, and on being refused threatens to take the tourists to rival places of business. GOVERNMENT CONTRACTS, ETC. Regimental bandmasters ask for secret commissions from musical instrument makers. A bootmaker provides a soldier with boots for himself and his family without charging for them, so that he may obtain favour when army work is given out. A non-commissioned officer is able on more than one occasion to exchange from one regiment to another, although the cost is considerable, and wherever he goes he manages to secure orders for the same brewery. Non-commissioned officers, and in one case a commanding officer — a colonel — receive payment at regular intervals from army con- tractors. The amount apparently received by the colonel, now retired, was £300 a year. An engineering firm tender for certain work for a Government department. They refuse to give a minor official, who calls on them, to make unnecessary inquiries, the bribe for which he asks, after stating that the contract is theirs. The firm do not obtain the contract. The officer of a local authority obtains for a firm in which he is financially interested a contract for printing, no tenders being advertised for. SALE OF PROPERTY. The agent of a company who advertises certain property for sale is offered a secret commission to advertise in another newspaper. The secretary of a company owning house property, which is in great demand, is offered a bribe by a person anxious to take a house so that the latter's application may be taken out of turn. SECRET COMMISSIONS AND BRIBES 113 SUBSCRIPTIONS, TESTIMONIALS AND CHRISTMAS BOXES A subscription to a firm's outing or beanfeast is asked for, and if it is not given an account of long standing is closed. In another case a subscription to a trader's pet charity is demanded, and has to be paid by those who wish to do business with the trader. A well-known public man is offered a bicycle below cost price if he will write a testimonial which the manufacturers can publish. Manufacturers of accessories spend large sums on Christmas presents, including money orders (the value one year was some thousands of pounds), dispatched to the private addresses of engineers and others who may be able to influence business. CO-OPERATIVE STORES. The secretary of a Co-operative Society is offered for himself, or for any member of the Management Committee, a bicycle at a specially reduced rate. Directors of a Co-operative Society receive gifts from trading firms as an inducement to place orders for goods. RAILWAYS. Preferential treatment is accorded to certain privately owned coal wagons, the railway clerks being bribed. Excess luggage weighers are tipped at railway stations to under- charge. A railway company's official has his house furnished free of cost by a contractor. SHIPPING. Clerks in a shipping office are bribed by some emigration agents to supply the names and addresses of intending emigrants who happen to make inquiries. ADVERTISEMENTS. A newspaper offers a secret commission to professional men who may induce their clients to advertise. 114 THE LAW RELATING TO SHOP ASSISTANTS. The manager of a branch shop asks for a commission, and requests that any correspondence may be addressed c/o the Post Office, " to avoid any unpleasantness." A shopman who orders for customers articles not in stock exacts from the manufacturer a secret commission. EMPLOYMENT. A firm offers a man already in employment a superior position if before changing situations he brings them certain details as to the business of his present employers. An indentured apprentice is offered higher wages by a rival firm so that he shall break his articles. A foreman who has the engaging of workmen will only take on those who pay him Is. to 2s. in the £ of their wages, and if they pay this no regard is had to their capability. UNDERTAKERS. Where coroner's inquiries are necessary, the coroner's officer is bribed to give the work of removing the body to a public mortuary to a certain firm of undertakers, which in most cases also secures the funeral. It is not infrequent for the officer to receive back the whole fee for removal, and the officer is known to advise the under- takers before even making inquiries of the dead person's friends. Undertakers bribe the servants of an infirmary so that they shall recommend them to the friends of patients who die in the institution ; they also pay secret commissions to nurses in private practice. Cemetery officials exact secret commissions from undertakers, and vice versa. TRADESMEN. A coal merchant offers firemen money to prevent them reporting that the coal he is supplying is not that contracted for. Bailiffs and gardeners, in paying bills, ask for a receipt in full and for themselves a discount which is not to be shown. A coachman is told by a firm of harness polish makers that each box contains a coupon, a number of which will entitle him to a watch or other prize. A similar circular is sent out by the manufacturers of a proprietary SECRET COMMISSIONS AND BRIBES 115 article of food, addressed to canteen managers, asking them to use their influence with the canteen contractors. 1 Shop assistants are offered coupons to press certain articles on their employers' customers. A gardener writes to a firm of nurserymen that his bulbs and seeds have not grown well of late, adding that his private address is A man-servant calls at a large London stores and asks for a gift, alleging that he can prevent his master transferring his custom to a rival establishment. A man-servant calls at the shop of a tailor, who specialises in servants' liveries, leaves a suit to be cleaned, and asks the tailor to send in a bill to be paid by the master, for a new suit of livery. Ladies' maids ask for dress lengths occasionally for a dress or for some other article of wearing apparel for their personal use. Dressmakers' employees who match goods at wholesale houses demand a gratuity. A coachman calls at a saddler's, gives orders for minor repairs to be done, and asks that a bill for new harness may be sent in. Motor-car makers allow chauffeurs a bonus ostensibly for exercising care in looking after the cars bought from them ; Harness makers make a similar offer to coachmen in respect of harness ; And nurserymen do the same to gardeners in respect of fruit, vegetables and flowers. An employee in a motor-car works writes to the makers of accessories stating that he has recommended their goods, enclosing his private address, and asking to be remembered. A motor-car dealer offers a chauffeur a secret commission on all petrol bought of him, and on all repairs entrusted to him. A chauffeur gives an order for so many gallons of petrol and asks for, and receives, a receipt for double the quantity, in order that the difference may be paid to him. Shop-keepers have under lock and key private ledgers for goods supplied for servants' personal use, for which bills are not rendered. A caterer's manager admits receiving a joint every week from meat contractors, against whom afterwards an action for breach of 1 The Admiralty in 1912 forbade the sale in canteens of any kind of goods with which prize coupons are given away. 116 SECRET COMMISSIONS AND BRIBES contract was brought for not supplying the quality of meat contracted for. A butcher offers a bribe to a cook to spoil in cooking the joints supplied by another butcher, who has hitherto given satisfaction. Acook asks a butcher to supply his master's shooting-box with meat ; to send so many joints, to charge for a larger number, and to make up the difference in weight by using a great quantity of ice packing. A dairyman supplies a large public school. On being taxed by an auditor with paying sums to the cooks at Christmas time, he confesses that to put matters right he charges the school houses with a few extra pounds of butter above what they receive. A tradesman sends servants Christmas boxes of whisky which are forwarded in plain cases with plain labels. A visitor, staying in an hotel, which he supplies with wine, gives the head waiter a heavy tip, £5 or so. The manager of a hotel receives a circular relating to electric light fittings, and is promised 5 per cent, for himself if the goods are ordered for the hotel. The hall porter at a boarding-house is paid at a local wine-shop 2d. for every bottle of wine he buys for visitors at the house. The porter of some flats is given a commission on the amount of washing sent by the occupiers to a certain laundry, his wife contriving that articles are quite unnecessarily sent to the wash. In another case a porter levies a commission on all tradesmen who supply the flats with goods. A laundry company offers a servant a bribe to soil the linen in its passage from the premises of a rival firm. A servant in a country house writes to a laundry asking for a commission, and promising to increase the amount of washing sent. A firm of game food dealers, not content with giving lavish prizes at a gamekeepers' dog show, also pays the railway fares and the hotel expenses of the keepers. Keepers are bribed by manufacturers of sporting goods to influence orders from guests shooting or fishing. BETTING. A tipster offers a bribe — the money to be hidden under a stone in a certain place — to a stable lad for information as to the private trials of horses. PART III CHAPTEP XVII BRIBERY OF PUBLIC OFFICIALS i. AT COMMON LAW. An Act to define the Jurisdiction in General and Quarter Sessions of the Peace, 1842, s. 1, 5 &6 Vict. c. 38, s. 1. Bribery at common law is not triable by Justices in General or Quarter Sessions. (1) Privy Councillors and Ministers of the Crown. A person who attempts to procure an office by offering a bribe to a Privy Councillor or Minister of the Crown is guilty of a misdemeanour at common law. (R. v. Vaughan, 1769, 4 Burr. 2494.) (2) Judicial Corruption. Everyone who gives or offers to any person holding any judicial office and every person holding any judicial office who accepts any bribe commits a misdemeanour. Every gift or payment made in respect of or in relation to any business having been, being, or about to be transacted before any such person in his office is a bribe, whether it is given in order to influence the judicial officer in something to be done, or to reward him for something already done, and whether the thing done or to be done is itself proper or improper. (Stephen.) A judge, magistrate, or other judicial officer who accepts a bribe and the person who offers or gives such a bribe is guilty of a misdemeanour. " Bribing in a large sense is sometimes taken for the receiving or offering of any undue reward by or to any person whatsoever, whose ordinary profession or business relates to the administration of public justice, in order to incline him to do a thing against the known rules of honesty and integrity ; for the law abhors even the least tendency to corruption in those who are in any way concerned in its administration, and will not endure their reward for the doing a thing which deserves the severest of punishments.' (1 Hawk, P.C., c. 27, s. 2, at p. 415.) " If a party offers a bribe to a judge, meaning to corrupt him in a case depending before him, and the judge taketh it not, yet this 117 -(i5»o) 118 THE LAW RELATING TO is an offence punishable by law in the party that offers it." (Lord Mansfield in R. v. Vaughan, 1769, 4, Burr, at p. 2500.) " It is said, that, at common law, bribery in a judge, in relation to a cause depending upon him, was looked upon as an offence of so heinous a nature that it was sometimes punished as high treason before the Statute of 25 Edward 3 ; and at this day it is certainly a very high offence and punishable not only with the forfeiture of the offenders' office of justice, but also with fine and imprisonment." (1 Hawk, P.C., c. 27 s. 6, at p. 416.) (3) Jurymen. R. v. Young cited in R. v. Higgins, 1801, 2 East., 14. It is immaterial whether the bribe were given or only offered. (4) Corruption of other public officers. Every one commits a misdemeanour who bribes any public officer not being a judicial officer, where the object of the bribe is to persuade or induce such officer to do or omit to do any act which the offender knows to be a violation of such officer's official duty. (Stephen.) A conspiracy to obtain money by procuring from the Lords of the Treasury the appointment of a person to an office in the Customs is a misdemeanour at common law. (R. v. Pollman, 1809, 2 Camp. 229.) Clerks in public offices, R. v. Beale, cited in R. v. Gibbs, 1801, 1 East, 183, in which a clerk took bribes in order to procure the exchange of French prisoners out of their turn. (See also R. v. Bowler, 1842, C. and Mar. 559, and R. v. Boyes, 1860, 2 F. and F. 157.) (5) Custom House officer. Attempt to bribe is indictable. (R. v. Cassano, 1805, 5 Esp. 231.) (6) Elections. Bribery at a parliamentary (R. v. Pitt, 1762, 3 Burr. 1335) or municipal (R. v. Plympton, 1742, Ld. Ray en, 1377) election is a misdemeanour at common law, and proceedings may be taken either by indictment (R. v. Lancaster, 1890, 16 Cox, C.C.), or by information (R. v. Pitt, supra.) " The nature of the office is immaterial so long as it is for the public good." (Wills, J., in R. v. Lancaster, infra.) Bribery in the election of an alderman who by virtue of his office is a justice of the peace (R. v. Steward, 1831, 2 B. and Ad. 12), and endeavouring to procure the appointment of certain persons to be overseers of the poor with a view to derive a private advantage to the party are misdemeanours. (R. v. Joliffe, 1800, 1 East 154 n.) SECRET COMMISSIONS AND BRIBES 119 " Bribery at elections for members of Parliament must undoubt- edly be said to have always been a crime at common law, and consequently punishable by indictment or information." (Per Lord Mansfield, R. v. Pitt, 1762, 3 Burr., at p. 1338.) (7) Municipal Elections. Bribery at municipal elections is indictable at common law. " To bribe persons, either by giving money or promises, to vote at elections of members of corporations which are created for the sake of public government, is an offence for which an information will lie." (R. v. Plympton, 1742, 2 Lord Raym, at p. 1379.) Votes are struck off register when the voter is proved to have been bribed. (Oldham Borough Case, 1869, 1 O'M. 6- H. 151.) II. BY STATUTE. (1) Public officers, (a) An Act Againste buyinge and Sellinge of Offices, 1551-2. (5 & 6 Ed. VI, c. 16.) (b) An Act for the further prevention of the Sale and Brokerage of Offices, 1809. (49 Geo. Ill, c. 126.) (c) An Act for Continuing in the East India Co. for a further term the possession of the British territories in India, 1793. (33 Geo. 3, c. 52, s. 62.) Section 62 provides that receiving gifts is to be deemed to be an extortion and a misdemeanour, and that such gifts or presents so received or the full value thereof shall be forfeited. (And see R. v. Douglas, 1846, 13 Q.B.D. 42.) (d) Custom and Inland Revenue Officers. Customs Laws Con- solidation Act, 1876, section 217, imposes penalties on officers and persons making collusive seizures or taking bribes, and on persons offering them. (39 & 40 Vict. c. 36.) Inland Revenue Regulation Act, 1890, section 10, imposes penalties on persons entering into collusive agreements as regards officers of inland revenue. (53 & 54 Vict. c. 21.) These offences are not indictable. On Jan. 13th, 1909, at the Thames Police Court, an engineer was charged under the Customs Consolidation Act, 1876, with smuggling and offering a bribe to a Customs officer. He was convicted and fined for smuggling only. At the North London Police Court an Italian confectioner was fined £5 for attempting to bribe a Customs and Excise officer. 120 THE LAW RELATING TO (e) Sale of Food and Drugs Acts, 1899. Section 16 : Any person . . . who by any gratuity, bribe, promise or other inducement, prevents, or attempts to prevent, the due execution by such in- spector or officer of his duty, under those Acts shall be liable on sum- mary conviction to a fine not exceeding £20 for the first offence, £50 for the second offence, and £100 for any subsequent offence. (/) The Licensing (Consolidation) Act, 1910. Section 78: The holder of a justice's licence shall not . . . bribe or attempt to bribe any constable. Penalty. Fine not exceeding £10 for first offence, and in case of any subsequent offence, £20. (g) Public Health Act, 1875. Sec. 193. Officers or servants appointed or employed under this Act by the local authority shall not in any wise be concerned or interested in any bargain or contract made with such authority for any of the purposes of this Act. If any such officer or servant is so concerned or interested or, under colour of his office or employment, exacts or accepts any fee or reward whatsoever other than his proper salary, wages, and allowances, he shall be incapable of afterwards holding or con- tinuing in any office or employment under this Act, and shall forfeit and pay the sum of fifty pounds which may be recovered by any person, with full costs of suit, by action of debt. (2) Soldiers. Army Act, 1881, section 117, provides that any person lawfully ordered by a constable to furnish a carriage, animal or vessel, who refuses or neglects to provide the same, or bribes the constable or any officer or non-commissioned officer, is liable to a penalty of not less than £2 nor more than £10. Building Societies Gifts, etc., not to be accepted by officials. Building Societies Act, 1894, section 23, provides : " No director, secretary, surveyor, solicitor, or other officer of a society under the Building Societies Acts shall, in addition to the remuneration prescribed or authorised by the rules of the society, receive from any other person any gift, bonus, commission or benefit for or in connection with any loan made by the society and any person paying or accepting any such gift, bonus, commission, or benefit shall be liable on summary con- viction to a fine not exceeding £50, and in default of payment to be SECRET COMMISSIONS AND BRIBES 121 imprisoned with or without hard labour for any time not exceeding six months, and the person accepting any such gift, bonus, com- mission, or benefit, shall, as and when directed by the Court by whom he is convicted, pay over to the society the amount of value of such gift, bonus, commission, or benefit, and in default of such payment shall be liable to be imprisoned with or without hard labour for any time not exceeding six months. Apart from statute, directors being agents of the society, would be liable at common law if they accept bribes. " If an agent (e.g., director) takes a bribe from. a third person, whether he calls it a commission or by any other name, for the performance of a duty, which he is bound to perform for his prin- cipal, he must give up to his principal (e.g., society) whatever he has by reason of the fraud received beyond his due." (Mayor of Salfordv. Lever, 1891, 1 Q.B., at p. 176.) Building Societies. In Municipal Permanent Investment Building Society v. Richards, W.N., 1889, 103 where directors received sums of money from a borrowing member when advances were made to him it was held that such sums had been paid as bonuses, and the directors were jointly and severally liable to the society for the sums so received. In In re Oxford Building, etc., Society, 1886, 35 Ch.D., 502, where directors without the knowledge of the shareholders, voted and paid themselves out of funds of a company a commission on certain purchases and sales, and entered such payments in the books of the company, but made no mention of it in their report or balance sheets, it was held that they were jointly and severally liable to repay the amount with interest at 5 per cent. Shipping Merchant Shipping Act, 1894. 112.— (1) A person shall not demand or receive directly or indirectly from a seaman or apprentice to the sea service or from a person seeking employment as a seaman or apprentice to the sea service, or from a person on his behalf, any remuneration whatever for providing him with employment other than any fees authorised by this Act. (2) If a person acts in contravention of this section, he shall for each offence be liable to a fine not exceeding five pounds. 122 THE LAW RELATING TO i. STATUTES RELATING TO BRIBERY AT ELECTIONS. (1) The Corrupt Practices Prevention Act, 1854. Section 2 : The following persons shall be deemed guilty of bribery and shall be punishable accordingly — (1) Every person who shall, directly or indirectly, by himself or by any other person on his behalf, give, lend, or agree to give or lend, or shall offer, promise, or promise to procure or to endeavour to procure, any money or valuable consideration to or for any voter, or to or for any person on behalf of any voter, or to or for any other person in order to induce any voter to vote or refrain from voting, or shall corruptly do any such act as aforesaid on account of such voter having voted or refrained from voting at any election. (2) Every person, who shall directly or indirectly by himself or by any other person on his behalf, give or procure or agree to give or procure or offer promise or promise to procure or to endeavour to procure, any office, place or employment to or for any other person in order to induce such voter to vote or refrain from voting or shall corruptly do any such act as aforesaid on account of any voter having voted or refrained from voting at any election. (3) Every person who shall, directly or indirectly, by himself or by any other person on his behalf, make any such gift, loan, offer, promise, procurement, or agreement, as aforesaid to or for any person in order to induce such person to procure or endeavour to procure the return of any person to serve in Parliament or the vote of any voter at any election. (4) Every person who shall, upon or in consequence of any such gift, loan, offer, promise, procurement, or agreement procure or engage, promise or endeavour to procure the return of any person to serve in Parliament or the vote of any voter at any election. (5) Every person who shall advance or pay, or cause to be paid, any money to or to the use of any other person, with the intent that such money or any part thereof shall be expended in bribery at any election or who shall knowingly pay or cause to be paid any money to any person in discharge or repayment of any money wholly or in part expended in bribery at any election. Provided always, that the aforesaid enactment shall not extend or be construed to extend to any money paid or agreed to be paid for or on account of any legal expenses bona fide incurred at or concerning any election. SECRET COMMISSIONS AND BRIBES 123 Section 3 : The following persons shall also be deemed guilty of bribery and shall be punished accordingly — (1) Every voter who shall, before or during any election, directly or indirectly, by himself or by any other person on his behalf, receive, agree, or contract for any money, gift, loan or valuable considera- tion, office, place, or employment, for himself, or for any other person, for voting or agreeing to vote, or for refraining or agreeing to refrain from voting at any election. (2) Every person who shall, after any election, directly or indirectly by himself or by any other person on his behalf, receive any money or valuable consideration on account of any person having voted or refrained from voting, or having induced any other person to vote or refrain from voting at any election. Section 10: No indictment for bribery . . . shall be triable before any Court of Quarter Sessions. This Act is a temporary one, and is annually continued by the Expiring Laws Continuance Act. {See 2 & 3 Geo. 5, c. 18.) (2) Representation of the People Act, 1867, Section 49 provides that any person, directly or indirectly, corruptly paying any rate on behalf of any ratepayer for the purpose of enabling him to be registered as a voter, thereby to influence his vote at a future election . . . shall be guilty of bribery and be punished accordingly. (3) Municipal Corporation Act, 1882. Section 77 : In this Part " Bribery," " treating," " undue influence," and " personation," including respectively anything done before, at, after, or with respect to a municipal election which if done before, at, after, or with respect to a parliamentary election would make the person doing the same liable to any penalty, punishment, or disqualification for bribery, treating, undue influence, or personation, as the case may be, under any Act for the time being in force with respect to parliamentary elections. " Corrupt practice " means bribery, treating, undue influence, or personation. Section 78 : A person guilty of a corrupt practice at a municipal election shall be liable to the like actions, prosecutions, penalties, forfeitures and punishments as if the corrupt practice had been committed at a parliamentary election. Section 79.— (1) Where it is found by the report of an election court that a corrupt practice has been committed by or with the 124 THE LAW RELATING TO knowledge and consent of a candidate at a municipal election, that candidate shall be deemed to have been personally guilty of a corrupt practice at the election, and his election, if he has been elected, shall be void ; and he shall (whether elected or not) during seven years from the date of the report, be subject to the following disqualifications — He shall be incapable of — (a) Holding or exercising any corporate office or municipal franchise, or being enrolled or voting as a burgess ; (b) Acting as a justice of the peace or holding any judicial office : (c) Being elected to or sitting or voting in Parliament ; (d) Being registered or voting as a parliamentary voter ; (e) Being employed by a candidate in a parliamentary or municipal election ; (/) Acting as an overseer or as guardian of the poor. (2) If any person is on indictment or information found guilty of a corrupt practice at a municipal election or is in any action or proceeding adjudged to pay a penalty or forfeiture for a corrupt practice at a municipal election, he shall, whether he was a candidate at the election or not, be subject during seven years from the date of the conviction or judgment to all the disqualifications mentioned in this section. (3) If after a person has become disqualified under this Part of the Act any witness on whose testimony he has become dis- qualified is, on his prosecution, convicted of perjury in respect of that testimony, the High Court may, on motion, and on proof that the disqualification was procured by means of that perjury, order that the disqualification shall cease. Section 80 : If it is found by an election court that a candidate has by an agent been guilty of a corrupt practice at a municipal election or that any offence against this Part has been committed at a municipal election by a candidate or by an agent for a candidate with the candidate's knowledge and consent, the candidate shall during the period for which he was elected to serve, or for which if elected, he might have served, be disqualified for being elected to and for holding any corporate office in the borough, and if he was elected his election shall be void. Section 81 : A municipal election shall be wholly avoided by such SECRET COMMISSIONS AND BRIBES 125 general corruption, bribery, treating, or intimidation at the election as would by the common law of Parliament avoid a parliamentary election. Section 85 : The votes of persons in respect of whom any corrupt practice is proved to have been committed at a municipal election shall be struck off on a scrutiny. (4) Corrupt and Illegal Practices Prevention Act, 1 883. Section 1 : Whereas under section four of the Corrupt Practices Prevention Act, 1854, persons other than candidates at Parliamentary elections are not liable to any punishments for treating, and it is expedient to make such persons liable ; be it therefore enacted in substitution for the said section four as follows — (1) Any person who corruptly by himself or by any other person, either before, during, or after an election, directly or indirectly gives or provides or pays wholly or in part the expense of giving or providing, any meat, drink, entertainment or provision to or for any person, for the purpose of corruptly influencing that person or any other person to give or refrain from giving his vote at the election or on account of such person having voted or refrained from voting or being about to vote or refrain from voting, at such election, shall be guilty of treating. (2) And every elector who corruptly accepts or takes any such meat, drink, entertainment or provision shall also be guilty of treating. Section 3 : The expression " corrupt practice " as used in this Act means any of the following offences ; namely, treating and undue influence as defined by this Act, and bribery and personation as defined by the enactments set forth in Part III of the Third Sche- dule to this Act, and aiding, abetting, counselling, and procuring the commission of the offence of personation and every offence which is a corrupt practice within the meaning of this Act shall be a corrupt practice within the meaning of the Parliamentary Election s Act, 1868. Section 6 : (1) A person who commits any corrupt practice other than personation . . . shall be guilty of a misdemeanour, and on con- viction on indictment shall be liable to be imprisoned with or without hard labour for a term not exceeding one year or to be fined any sum not exceeding £200. (3) A person who is convicted on indictment of any corrupt 126 THE LAW RELATING TO practice shall in addition ... be not capable during a period of seven years from the date of his conviction — (a) of being registered as an elector or voting at any election . . . whether it be a parliamentary election or an election for any public office within the meaning of this Act ; or (b) of holding any public or judicial office within the meaning of this Act, and if he holds any such office the office shall be vacated. (4) Any person so convicted . . . shall be incapable of being elected ... to the House of Commons, and if ... he has been elected . . . his election shall be vacated. Section 15 : Any person who corruptly induces or procures any other person to withdraw from being a candidate at an election in consideration of any payment or promise of payment shall be guilty of illegal payment, and any person withdrawing, in pursuance of such inducement or procurement, shall also be guilty of illegal payment. Section 36 : Every person guilty of a corrupt or illegal practice or of illegal employment, payment, or hiring at an election is prohibited from voting at such election, and if any such person votes his vote shall be void. Section 37 : Every person who, in consequence of conviction or of the report of any election court or election commissioners under this Act, or under the Corrupt Practices (Municipal Elections) Act, 1872, or under Part IV of the Municipal Corporations, 1882, or under any other Act for the time being in force relating to corrupt practices at an election for any public office has become incapable of voting at any election, whether a parliamentary election or an election to any public office, is prohibited from voting at any such election, and his vote shall be void. Section 45 : Where information is given to the Director of public prosecutions that any corrupt or illegal practices have prevailed in reference to any election, it shall be his duty subject to the regula- tions under the Prosecution of Offences Act, 1879, to make such inquiries and institute such prosecutions as the circumstances of the case appear to him to require. Section 46 : Where a person has, either before or after the com- mencement of this Act, become subject to any incapacity under the Corrupt Practices Prevention Acts or this Act by reason of a con- viction, or of a report of any election court or election commissioners, SECRET COMMISSIONS AND BRIBES 127 and any witness who gave evidence against such incapacitated person upon the proceeding for such conviction or report is convicted of per- jury in respect of that evidence, the incapacitated person may apply to the High Court, and the Court, if satisfied that the conviction or report so far as respects such person, was based upon perjury, may order that such incapacity shall thenceforth cease and the same shall cease accordingly. Section 52 : Any person charged with a corrupt practice may, if the circumstances warrant such finding, be found guilty of an illegal practice (which offence shall for that purpose be an indictable offence), and any person charged with an illegal practice may be found guilty of that offence, notwithstanding that the Act con- stituting the offence amounted to a corrupt practice and a person charged with illegal payment, employment or hiring, may be found guilty of that offence, notwithstanding that the Act constituting the offence amounted to a corrupt or illegal practice. Section 53 : (1) Sections ten, twelve, and thirteen of the Corrupt Practices Prevention Act, 1854, and section six of the Corrupt Practices Prevention Act, 1863 (which relate to prosecutions for bribery and other offences under those Acts) shall extend to any prosecution on indictment for the offence of any corrupt practice within the meaning of this Act, and to any action for any pecuniary forfeiture for an offence under this Act, in like manner as if such offence were bribery within the meaning of those Acts, and such indictment or action were the indictment or action in those sections mentioned, and an order under the said section ten may be made on the defendant ; but the Director of public prosecutions or any persons instituting any prosecution in his behalf or by direction of an election court shall not be deemed to be a private prosecutor, nor required under the said sections to give any security. (2) On any prosecution under this Act, whether on indictment or summarily, and whether before an election court or otherwise, and in any action for a pecuniary forfeiture under this Act, the person prosecuted or sued, and the husband or wife of such person may if he or she think fit, be examined as an ordinary witness in the case. (3) On any such prosecution or action as aforesaid, it shall be sufficient to allege that the person charged was guilty of an illegal practice, payment, employment, or hiring within the meaning of 128 THE LAW RELATING TO this Act, as the case may be, and the certificate of the returning officer at an election that the election mentioned in the certificate was duly held, and that the person named was a candidate at such election, shall be sufficient evidence of the facts therein stated. This Act is continued annually by the Expiring Laws Continuance Act. (See 2 & 3 Geo. V, c. 18.) The Corrupt and Illegal Practices Prevention Act, 1883, originally only applied to parliamentary elections, but was extended to — Municipal elections (Municipal Elections Act, 1884, ss. 30 and 35) ; County Council elections (Local Government Act, 1888, s. 75) ; District or Parish Councils and Boards of Guardians (Local Government Act, 1894, s. 48) ; Metropolitan Borough elections (London Government Act, 1899, s. 2). (5) Municipal Elections (Corrupt and Illegal Practices Act), 1884. Section 2 : (1) The expression " corrupt practice " in this Act means any one of the following offences, namely . . . bribery. IV. PUBLIC BODIES CORRUPT PRACTICES ACT, 1889. An Act for the more effectual Prevention and Punishment of Bribery and Corruption of and by Members, Officers, or Servants of Corporations, Councils, Boards, Commissions, or other Public Bodies. [30th August, 1889.] Whereas it is expedient more effectually to provide for the prevention and punishment of bribery and corruption of and by members, officers, or servants of corporations, councils, boards, commissions, and other public bodies ; Be it therefore enacted by the Queen's most excellent Majesty by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in the present Parliament assembled and by the authority of the same, as follows : 1. — (1) Every person who shall by himself or by or in conjunction with any other person, corruptly solicit or receive or agree to receive, for himself, or for any other person, any gift, loan, fee, reward, or advantage whatever as an inducement to, or reward for, or otherwise on account of any member, officer, or servant of a public body as in this Act defined, doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in SECRET COMMISSIONS AND BRIBES 129 which the said public body is concerned shall be guilty of a misdemeanour. (2) Every person who shall by himself or by or in conjunction with any other person corruptly give, promise, or offer any gift, loan, fee, reward, or advantage whatsoever to any person, whether for the benefit of that person or of another person, as an inducement to or reward for or otherwise on account of any member, officer, or servant of any public body as in this Act defined doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which such public body is concerned, shall be guilty of a misdemeanour. 2. Any person on conviction for offending as aforesaid shall at the discretion of the court before which he is convicted— (a) be liable to be imprisoned for any period not exceeding two years, with or without hard labour, or to pay a fine not exceeding five hundred pounds, or to both such imprisonment and such fine ; and (b) in addition be liable to be ordered to pay to such body and in such manner as the court directs the amount or value of any gift, loan, fee, or reward received by him or any part thereof ; and (c) be liable to be adjudged incapable of being elected or ap- pointed to any public office for seven years from the date of his conviction, and to forfeit any such office held by him at the time of his conviction ; and (d) in the event of a second conviction for a like offence he shall, in addition to the foregoing penalties, be liable to be adjudged to be for ever incapable of holding any public office, and to be incapable for seven years of being registered as an elector, or voting at an election either of members to serve in Parliament or of members of any public body, and the enactments for preventing the voting and registration of persons declared by reason of corrupt practices to be incapable of voting shall apply to a person adjudged in pursuance of this section to be incapable of voting ; and (e) if such person is an officer or servant in the employ of any public body upon such conviction he shall, at the discretion of the court, be liable to forfeit his right and claim to any com- pensation or pension to which he would otherwise have been entitled. 130 THE LAW RELATING TO 3. — (1) Where an offence under this Act is also punishable under any other enactment, or at common law, such offence may be pro- secuted and punished either under this Act, or under the other enact- ment, or at common law, but so that no person shall be punished twice for the same offence. (2) A person shall not be exempt from punishment under this Act by reason of the invalidity of the appointment or election of a person to a public office. 4. — (1) A prosecution for an offence under this Act shall not be instituted except by or with the consent of the Attorney-General. (2) In this section the expression " Attorney-General " means the Attorney or Solicitor-General of England, and as respects Scotland means the Lord Advocate, and as respects Ireland means the Attorney or Solicitor-General for Ireland. 5. The expenses of the prosecution of an offence against this Act shall be defrayed in like manner as in the case of a felony. 6. A court of general or quarter sessions shall in England have jurisdiction to inquire of, hear, and determine an offence under this Act. 7. In this Act — The expression " public body " means any council of a county or council of a city, or town, any council of a municipal borough, also any board, commissioners, select vestry, or other body which has power to act under and for the purposes of any Act relating to local government, or the public health or to poor law or otherwise to administer money raised by rates in pursuance of any public general Act, but does not include any public body as above defined existing elsewhere than in the United Kingdom. The expression " public office " means any office or employment of a person as a member, officer, or servant of such public body. The expression " person " includes a body of persons corporate or unincorporate. The expression " advantage " includes any office or dignity and any forbearance to demand any money or money's worth or valuable thing, and includes any aid, vote, consent, or influence, or pretended aid, vote, consent, or influence, and also includes any promise or procurement of or agreement or endeavour to procure, or the holding out of any expectation of any gift, loan, fee, reward, or advantage, as before defined. SECRET COMMISSIONS AND BRIBES 131 8. In the application of this Act to Scotland the sheriff and sheriff substitute shall have jurisdiction to try any offence under this Act ; and The expression " misdemeanour ' : shall mean " crime and offence," and The expression " municipal borough " shall mean any " burgh." 9. The provisions of the Criminal Law and Procedure (Ireland) Act, 1887, shall not apply to any trial under the provisions of this Act. 10. This Act may be cited as the Public Bodies Corrupt Practices Act, 1889. In R. v. Edwards, 1895, 59 J. P. 88, E tried to obtain money on the pretext that he would forbear himself or induce someone else to forbear from giving evidence on an application for a music hall licence ; E had been in the employ of the London County Council and had given evidence on a previous application. Held — It was not necessary to prove that E was an officer of the Council at the time of the commission of the offence. At the Central Criminal Court, 1907, members and officers of the West Ham Board of Guardians were sentenced for corrupt practices and conspiracy. Two received the maximum sentence of two years, and of the others one had eighteen months ; two, fifteen months ; two, nine months ; and two, six months ; all with hard labour. They were further adjudged incapable of being elected or appointed to any public office for seven years from date of imprisonment. At the Central Criminal Court, 1908, the following Guardians of the Poor for Poplar, a tailor and a decorator, were each sentenced to twelve months' hard labour ; a licensed victualler and a general foreman to nine months' hard labour ; the secretary of a progressive club to nine months' imprisonment without hard labour ; a coal merchant to six months' hard labour ; and a widow, in whose favour the jury made a recommendation, to three months' imprisonment in the second division. In a return made in 1908 it appears that twenty-seven persons were convicted in the London district for corrupt municipal adminis- tration during the preceding two years ; five were workhouse offi- cials, three contractors, and the remainder were mostly small tradesmen or persons in somewhat poor circumstances. At the Dublin City Sessions on 14th July, 1910, a builder was 132 SECRET COMMISSIONS AND BRIBES indicted for corruptly giving £2 to a servant of the Dublin Corpora- tion as a reward to him for expressing his approval of certain work done in which the Corporation was concerned, and also as reward for refraining from condemning the work as defective. It was proved that the work was in fact properly done. Defendant was fined £50 and the sum of £2 was handed over to the Corporation. At the Liverpool Assizes on November 5th, 1912, Joseph Boughey, a member of the Wallasey Town Council, was found guilty on a charge, under the Public Bodies Corrupt Practices Act, of soliciting a bribe of £105 from a surveyor, who was engaged in some land transactions with the Wallasey Council. Coleridge J., having deferred sentence for a day, stated that if the prisoner had gone further, and in fact exercised corrupt influ- ence upon his fellow members of the Council, or if he had in fact voted for the proposed purchase of land, he should have found it necessary to award a sterner punishment than that he now must do. The purity of men in public life must be cherished and upheld. The accused would be imprisoned for three months in the second division. The Judge further pronounced Boughey to be adjudged to forfeit the public office of town councillor which he held, and to be incapable of being elected or appointed to any public office for a space of seven years. An application was made that the prisoner should be allowed out on bail pending the hearing of an appeal which would be lodged, but this the judge declined. At Munster Winter Assizes on December 4th, 1912, a farmer was convicted and sentenced to six months' imprisonment for having attempted to bribe a council official, so that he might forbear to report a person for whom the prisoner was security for a contract with the council, and who had made default in the performance of the contract. At the Surrey Assizes, on December 4th, 1912, a dairyman was sentenced to three months' imprisonment for having corruptly given £5 to a council inspector of weights and measures, and also for corruptly promising a fee or reward to the said inspector. CHAPTER XVIII GERMAN AND AMERICAN LAW As in England, bribery can also be dealt with in Germany by criminal law. Whoever purposely or inadvertently offends against the law relating to corrupt gifts is bound to make compensation for the injury, and any profit which the employee has made forms, uncon- ditionally, part of the damage sustained by the employer. There is no German equivalent to the Prevention of Corruption Act, but clauses were introduced into the Act for the Prevention of Corrupt Competition (by which an earlier Act of 1896 was repealed), passed in 1909 as the result of a few months' agitation and negotiation. This Act is not aimed against bribery in what might be called private life. The Verein gegen das Bestechungsunwesen (Society against the Bribery Evil) has already secured one conviction, and some thirty actions are now pending. In Germany there are, of course, Public Prosecutors in every district. If these officials see fit to undertake the prosecution, then the Verein is relieved of any expense, whatever the result. If the public prosecutor will not take charge, then it is open to the Verein to bring proceedings, and it has to pay the costs if the charge is not proved. The liability of the Verein is limited to the property of the Verein, so that no individual risk is run in any litigation. The pertinent clause (paragraph 12) of the German Act is as follows — " Anyone who in commercial intercourse for purposes of compe- tition shall offer, promise, or give gifts or other advantages to an employee or an agent of a commercial undertaking, in order through the corrupt conduct of the employee or agent to obtain for himself or for a third party any preference in connection with the purchase of goods or industrial undertakings, shall be punished with imprison- ment up to one year, and with a fine up to 5,000 marks, or with one of these penalties, unless in accordance with other provisions he may have become liable to a heavier penalty. The same penalty shall be applied to the employee or agent of any commercial under- taking who shall demand, accept the promise of, or receive, gifts 133 ii — 1520) 134 THE LAW RELATING TO or other advantages in commercial intercourse with a view corruptly to procure in course of competition any preference for another party in connection with the purchase of goods or industrial under- takings. In the verdict it shall be declared that whatever has been received or its equivalent shall be forfeited to the State." Proceedings may be brought by any manufacturer in the same trade or by an association for the promotion of industrial interests. The Act provides that the conviction may be ordered to be publicly advertised at the expense of the guilty party ; in case of acquittal the Court may order the result also to be publicly advertised at the expense of the State, if the duty has not been imposed upon the private prosecutor or person giving the information. It may be added that a still heavier penalty is incurred if the bribery has resulted in goods of an inferior quality or showing defective workmanship being supplied. An employee who accept a bribe may be dismissed without notice, even if his employer has benefited by the transaction. Thus, the German law of 1909 against unfair competition in paragraph 12 provides — (a) Penalty and/or imprisonment in the case of wrongfully bribing employees for the purposes of competition. (b) The same penalty and/or imprisonment to be inflicted upon an employee accepting bribes. The Act only concerns bribery in business as regards unfair competition, e.g., the domestic servant receiving gifts from the butcher is not included under the law. PROVISIONS TO PREVENT THE BRIBING OF EMPLOYEES IN GERMANY. The provisions of the law in this respect were an innovation in 1909, and have been passed to put an end to the abuse of " greasing " (Schmiergelder). As to the necessity of this provision industrial circles disagreed. On the whole, the small traders denied that there was any need for it ; the representatives of the larger industrial concerns, on the other hand, clamoured for protection against a system which had become unbearable. The principle underlying paragraph 12 has been explained to amount to this, that a bribe which is not made for the purpose of competition or which has no corrupt purpose is SECRET COMMISSIONS AND BRIBES 135 not visited by the law, but that a bribe made for corrupt purposes with a view to competition is punishable, even if the employee has not failed in his duty to his employer. There was an intention not to interfere with the system of " innocent " poitrboires, but it is admitted that it will in practice often be difficult to draw the distinction between a corrupt bribe and an innocent gift. Paragraph 12. — " Whoever in the course of business and for the purposes of competition offers, promises or grants presents or other advantages to an employee or agent of a business concern with the intention of obtaining for himself or a third party through the cor- rupt behaviour of such employee or agent a preferential treatment in the matter of goods or industrial services is liable to imprisonment not exceeding one year and (or) to a fine not exceeding 5,000 marks, unless under some other law a heavier punishment is incurred. ' The same punishment is inflicted upon the employee or agent of a business who in the course of business demands or accepts presents or other advantages for the purpose of obtaining for another in competition a preferential treatment with reference to goods or industrial services. ' Whatever has been received or its value is by the judgment in such cases forfeited to the State." The grant and acceptance of presents for the purpose of prefer- ential treatment in competition against another is not itself a corrupt practice, for the law has expressly added that the gift must pass " corruptly." If, for instance, it is a recognised practice of trade that the employee receives from the seller a gratuity, such gratuity cannot be said to pass " corruptly." A reward paid after the contract is concluded is not a bribe unless previously promised, directly or by implication. The interpretation of the word " cor- ruptly " has offered considerable difficulty, and the law in its present form is deemed unsatisfactory — so much so that a society has been formed the members of which have agreed to prohibit gratuities of any kind. The provisions of the above paragraph apply also when the employer has suffered no loss or injury by the offence, which is one against fair competition. The paragraph was an innovation of the law of 1909 ; it had been inserted under great pressure from the industrial community. It is then all the more remarkable that practically no cases were 136 THE LAW RELATING TO brought before the courts under this paragraph, in spite of the admittedly wide existence of the evil of bribery, until, towards the middle of 1911, a " Society against the Abuse of Bribery " had been started with the determined purpose of attacking the evil. There had been a general disinclination on the part of competitors, who are granted the right of action under the law, to put paragraph 12 into operation, because the competitors, when merchants, admitted that any such action would seriously affect their business. Since the formation of the society, however, legal proceedings have become more frequent. Thus, on its initiative, a case was tried at Torgau in June, 1912. The society had moved the Public Prosecu- tor against a buyer on behalf of a limited company which had given preference to two firms, in one case by changing the cheaper offer of another firm, for which preference the buyer had in all received bribes amounting to 4,800 marks. The said " buyer " was sentenced to three months' imprisonment and a penalty of 1 ,350 marks. His two accomplices, who represented the firms which had obtained the unfair preference, were condemned in penalties amounting to 1,600 and 750 marks respectively. In its first annual report the " Society against the Abuse of Bribery " complains that the judgments of the Reichsgericht are inclined to apply paragraph 12 only if the employer has been financially damaged by the acceptance of a bribe on the part of his employee ; furthermore, that, according to a judgment given by the Reichsgericht (the Supreme Court of the Empire), on February 8th, 1912, it is to be regarded as a criterion of the offence whether the person accepting the bribe has sufficient influence to procure a preference in favour of the person bribing. To attack further the offence of bribing, the society has decided to support in every possible way any civil action for damages taken under paragraph 12 by any of its members. 1 AMERICAN LAWS AGAINST BRIBERY. Below will be found the text of two State laws in force in the United States — 1 XT ... l. New York Section 439 : Penal Law. State of New York. Corrupt influencing of agents, employees, or servants. 1 From a consular report by Sir Francis Oppenheimer, His Majesty's Commercial Attache for Germany, published in January, 1913. SECRET COMMISSIONS AND BRIBES 137 " Whoever gives, offers, or promises to an agent, employee or servant, any gift or gratuity whatever, without the knowledge and consent of the principal, employer or master of such agent, employee or servant with intent to influence his action in relation to his principal's, employer's or master's business ; or an agent, employee or servant who without the knowledge and consent of his principal, employer or master, requests or accepts a gift or gratuity or a promise to make a gift or to do an act beneficial to himself, under an agreement or with an understanding that he shall act in any particular manner to his principal's, employer's or mas- ter's business ; or an agent, employee or servant, who, being author- ised to procure materials, supplies or other articles either by purchase or contract for his principal, employer or master receives directly or indirectly, for himself or for another, a commission, discount or bonus from the person who makes such sale or contract, or furnishes such materials, supplies or other articles, or from a person who renders such service or labour ; and any person who gives or offers such an agent, employee or servant such commission, discount or bonus shall be guilty of a misdemeanour, and shall be punished by a fine of not less than ten dollars nor more than five hundred dollars, or by such fine and by imprisonment for not more than one year." It is believed that the only decision under the Act is to this effect : " Where a sale is affected by the bribery of the agent for the purchaser, the seller cannot, after the delivery of the goods, recover the purchase price." (Sirkin v. Fourteenth Street Store, 124 App. Div. 384.) 2. State of Wisconsin Chapter 129. An Act to Prohibit Influencing of Agents, Employees or Servants. The people of the State of Wisconsin, U.S.A., represented in Senate and Assembly do enact the following — Influencing of agents, employees or servants prohibited. Penalty. Section 1. Whoever corruptly gives, offers or promises to an agent, employee or servant any gift, or gratuity whatever, with intent to influence his action in relation to his principal's, employer's 138 SECRET COMMISSIONS AND BRIBES or master's business, or an agent, employee or servant who corruptly requests and accepts a gift or gratuity, or a promise to make a gift or to do an act beneficial to himself under an agreement or with an understanding that he shall act in any particular manner in relation to his principal's, employer's or master's business, or an agent, employee or servant, who, being authorised to procure materials, supplies or other articles, either by purchase or contract for his principal, employer or master, or to employ service or labour for his principal, employer or master, receives directly or indirectly for himself or for another, a commission, discount or bonus from the person who makes such sale or contract, or furnishes such materials, supplies or other articles, or from a person who under such service or labour, and any person who gives or offers such an agent, employee or servant such commission, discount or bonus, shall be punished by a fine not less than ten dollars or more than five hundred dollars, or by such fine and by imprisonment for not more than one year. Witness not excused from testifying because testimony may incriminate. Section 2. No person shall be excused from attending, testifying or producing books, papers, contracts, agreements and documents before any Court having jurisdiction of the misdemeanour on the ground or for the reason that the testimony or evidence documentary or otherwise required of him, may tend to incriminate him, or to subject him to a penalty or forfeiture. But no person shall be liable to any suit or prosecution civil or criminal for or on account of any transaction, matter or thing, concerning which he may testify or produce evidence, documentary or otherwise before said Court, or in obedience to its subpoena, or in any such case or proceeding, provided that no person so testifying or producing any such books, papers, contracts, agreements or documents, shall be exempted from any prosecution and punishment for perjury committed in so testifying. Section 3. This Act shall take effect and be in force from and after its passage and publication. Approved April 29th, 1905. CHAPTER XIX COLONIAL & MANX STATUTES RELATING TO SECRET COMMISSIONS AND BRIBES I. VICTORIA. Anno Quinto EDWARDI SEPTIMI REGIS. No. 1974. An Act for the Prohibition of Secret Commissions. [6th October, 1905.] Be it enacted by the King's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say) : — 1. (1) This Act may be cited as the Secret Commissions Prohibition Act, 1905. (2) This Act shall come into operation on the first day of January One thousand nine hundred and six. 2. If any agent corruptly receives or solicits from any person for himself or for any other person any valuable consideration — - (a) as an inducement or reward for or otherwise on account of doing or forbearing to do or having done or forborne to do any act in relation to his principal's affairs or business ; or (b) the receipt or any expectation of which would in any way tend to influence him to show or to forbear to show favour or disfavour to any person in relation to his principal's affairs or business ; or if any person corruptly gives or offers to any agent any valuable consideration — (a) as an inducement or reward for or otherwise on account of doing or forbearing to do or having done or forborne to do any act in relation to his principal's affairs or business ; or (b) the receipt or any expectation of which would in any way tend to influence him to show or to forbear to show favour or disfavour to any person in relation to his principal's affairs or business — ■ he shall be guilty of a misdemeanour. 3. (1) Any valuable consideration given or offered to any parent, husband, wife or child of any agent or to his partner, clerk or employe, or at the agent's request to any person by any person having business relations with the principal of such agent shall be deemed to have been given or offered to the agent. 139 Short title and commence- ment. of Receipt or solicitation secret com- mission by an agent a misdemeanour. Gift or offer of secret com- mission to an agent a mis- demeanour. Secret gifts to parent, wife, child, partner, &c, of agent deemed gifts to agent. 140 THE LAW RELATING TO Secret gifts received by parent, wife, child, partner, &c, of agent deemed received by agent unless the contrary is proved. Giving to agent or agent receiving using or giving to principal false or misleading receipt or account a misdemean- our. Gift or receipt of secret commission in return for advice given. Offer or solicitation of secret commission in return for advice given or to be given. Secret com- mission to trustee in return for substituted appointment. (2) Any valuable consideration received or solicited by any parent, husband, wife, or child of any agent or by his partner, clerk, or employe from any person having business relations with the principal of such agent shall be deemed to have been received or solicited by the agent, unless it be proved that the valuable consideration was so received or solicited without the consent, knowledge, or privity of the agent. 4. If, with intent to deceive or defraud the principal, any person gives to any agent or any agent receives or uses or gives to the principal any receipt, invoice, account or document in respect of which or in relation to a dealing, transaction, or matter in which the principal is interested and which — (a) contains any statement which he knows to be false or erroneous or defective in any important particular or is in any way likely to mislead the principal ; or (b) omits to state explicitly and fully the fact of any com- mission, percentage, bonus, discount, rebate, repayment, gratuity or deduction having been made, given or allowed, or agreed to be made, given or allowed — he shall be guilty of a misdemeanour. 5. (1 ) Whenever any advice is given by one person to another, and such advice is in any way intended to induce or influence the person advised — (a) to enter into a contract with any third person ; or (b) to appoint or join with another in appointing or to vote for or to aid in obtaining the election or appointment or to authorise or join with another in authorising the appointment of any third person as trustee — ■ and any valuable consideration is given by such third person to the person giving the advice without the assent of the person advised, the gift or receipt of the valuable consideration shall be a misdemeanour, but this sub-section shall not apply when the person giving the advice was, to the knowledge of the person advised, the agent of such third person, or when the valuable consideration was not given in respect of such advice. (2) Any offer or solicitation of a valuable consideration in respect of any advice given or to be given by one person to another with a view to induce or influence the person advised- — (a) to enter into a contract with the person offering or solicited ; or (b) to appoint or join with another in appointing, or to vote for, or to aid in obtaining the election or appointment, or to authorise, or join with another in authorising, the appointment of the person offering or solicited as trustee — and with the intent that the gift or receipt of such valuable consideration is not to be made known to the person advised shall be a misdemeanour, but this sub-section shall not apply when such first-mentioned person is the agent of the person offering or solicited. 6. If any person offers or gives any valuable consideration to a trustee, or if any trustee receives or solicits any valuable consideration for himself or for any other person without the assent of the persons beneficially entitled to the estate, or of a Judge of the Supreme Court, as an inducement or reward for appointing, or having appointed, or for joining, or having joined with another in appointing, or for authorising, or having author- ised, or for joining or having joined with another in authorising SECRET COMMISSIONS AND BRIBES 141 any person to be appointed in his stead or instead of him and any other person as trustee he shall be guilty of a misdemeanour. 7. Any person who, being within Victoria, knowingly aids, abets, counsels, or procures, or who attempts or takes part in or is in any way privy to — (a) doing any act or thing in contravention of this Act ; (b) doing any act or thing outside Victoria, or partly within and partly outside Victoria, which if done within Victoria would be in contravention of this Act — shall be guilty of a misdemeanour. 8. Any director, manager, or officer of a company or any person acting for another who knowingly takes part in or is in any way privy to doing, or who attempts to do any act or thing without authority which if authorised would be in contravention of any of the provisions of this Act shall be guilty of a misdemeanour. 9. Any person on conviction of a misdemeanour under any of the provisions of this Act shall — (a) be liable if a corporation to a penalty not exceeding Five hundred pounds and if any other person to be imprisoned for any period not exceeding two years with or without hard labour or to pay a penalty not exceeding Five hundred pounds or imprisonment and penalty as aforesaid : and (b) in addition be liable to be ordered to pay to such person and in such manner as the court directs, the amount or value according to the estimation of the court of any valuable consideration received or given by him or any part thereof, and such order shall be enforceable in the same manner as a judgment of the court. 10. Upon the trial of a person for any offence under this Act if it appears to the court that the offence charged is in the par- ticular case of a trifling or merely technical nature, or that in the particular circumstances it is inexpedient to proceed to a conviction, the court may in its discretion, and for reasons stated on the application of the accused, withdraw the case from the jury, and this shall have the same force and effect as if the jury had returned a verdict of not guilty except that the court may, if it think fit, make the order mentioned in the last preceding section. 11. A person who is called as a witness in any proceedings shall not be excused from answering any question relating to any offence under this Act on the ground that the answer thereto may criminate or tend to criminate him — Provided that — - (a) a witness who, in the judgment of the court or justices, answers truly all questions which he is required by the court or justices to answer, shall be entitled to receive a certificate from the court or justices stating that such witness has so answered ; and (b) an answer by a person to a question put by or before the court or justices in any proceeding under this Act shall not except in the said proceeding, or in the case of any criminal proceedings for perjury in respect of such evidence be in any proceeding, civil or criminal, admissible in evidence against him. 12. When a person has received a certificate as aforesaid and any criminal proceeding is at any time instituted against him in respect of the offence which was in question in the proceeding Aiding and abetting offences within or without Victoria. Liability of directors, &c, acting without authority. Penalty on conviction. Court ma> order with- drawal of trifling or technical cases. Protection of witness giving answers crimi- nating himself. Stay of proceedings against such witness. 142 THE LAW RELATING TO Custom of itself no defence. Burden of proof that gift not secret commission. Limit of time for prosecu- tion. Consent of Attorney- General to prosecution. Prosecution of offences. Interpreta- tions. in which the said person was called as a witness, the court or justices having cognisance of the case shall on proof of the certificate and of the identity of the offence in question in the two cases stay the proceedings. 13. In any prosecution under this Act it shall not amount to a defence to show that any such valuable consideration as is mentioned in this Act is customary in any trade or calling. 14. For the purposes of this Act where it is proved that any valuable consideration has been received or solicited by an agent from, or given, or offered to an agent by any person having business relations with the principal without the assent of the principal the burden of proving that such valuable consideration was not received, solicited, given, or offered in contravention of any of the provisions of this Act shall be on the accused. 15. No prosecution for an offence under this Act shall be com- menced after the expiration of two years next after the com- mission of the offence or six months next after the first discovery thereof by the principal or the person advised as the case may be whichever expiration first happens. 16. No prosecution for an offence under this Act shall be commenced without the consent of the Attorney-General. 17. Every information for any offence under this Act shall be upon oath. 18. In the construction of this Act the following provisions shall apply : — (1 ) the word " agent " shall include any corporation or other person acting or having been acting, or desirous or intending to act for or on behalf of any corporation or other person whether as agent, partner, co-owner, clerk, servant, employe, banker, broker, auctioneer, architect, clerk of works, engineer, barrister and solicitor, surveyor, buyer, salesman, foreman, trustee, executor, administrator, liquidator, trustee in an insolvency or in liquidation or of a deed of arrangement as defined in the Insolvency Acts, receiver, director, manager, or other officer or member of committee or governing body of any corporation, club, partnership or association, or in any other capacity either alone or jointly with any other person, and whether in his own name or in the name of his principal or otherwise, and a person serving under the Crown is an agent within the meaning of this Act : (2) the word " principal " shall include a corporation or other person for or on behalf of whom the agent acts has acted or is desirous or intending to act : (3) the word " trustee " shall include trustee, executor, administrator, liquidator, trustee in an insolvency or of a deed of arrangement as defined in the Insolvency Acts, receiver, director, committee of the estate under the Lunacy Acts, person having power to appoint a trustee or person entitled to obtain probate of the will or letters of administration to the estate of a deceased person : (4) the words " valuable consideration " shall include any money, loan, office, place, employment, agreement to give employment, benefit or advantage whatsoever, and any com- mission or rebate, deduction or percentage, bonus or discount or any forbearance to demand any money or money's worth or valuable thing, and the acceptance of any of the said things shall be deemed the receipt of a valuable consideration : (5) the words " valuable consideration " when used in SECRET COMMISSIONS AND BRIBES 143 connection with the offer thereof shall include any offer of any agreement or promise to give, and every holding out of any expectation of valuable consideration : (6) the words " valuable consideration " when used in connection with the receipt thereof shall include any acceptance of any agreement, promise or offer to give, and of any holding out of any expectation of valuable consideration : (7) the word " contract " shall include contract of sale or of employment or any other contract whatever : (8) any act or thing prohibited by this Act is prohibited whether done directly or indirectly by the person mentioned or by or through any other person : (9) the words " solicit any valuable consideration " and " valuable consideration solicited " and words to the like effect shall be construed with the following direction, namely : —That every agent who shall divert, obstruct or interfere with the proper course of business or manufacture, or shall impede, or obstruct, or shall fail to use due diligence in the prosecution of any negotiation or business with the intent to obtain the gift of any valuable consideration from any person interested in the said negotiation or business, or with intent to injure any such person shall be deemed to have solicited a valuable consideration from a person having business relations with the principal of such agent : (10) the words " person having business relations with the principal " shall include every corporation or other person whether as principal or agent carrying on, or having carried on, or desirous or intending to carry on any negotiation or business with, or engaged, or having been engaged, or desirous or intending to be engaged in the performance of any contract with, or in the execution of any work or business for, or in the supply of any goods or chattels to any principal and shall also include any agent of such corporation or other person : (11) the words " in relation to his principal's affairs or business" shall imply the additional words " whether within the scope of his authority or course of his employment as agent or not " : and (12) the words " advice given " and words to the like effect shall include every report, certificate, statement and sug- gestion intended to influence the person to whom the same may be made or given, and every influence exercised by one person over another. II. THE COMMONWEALTH OF AUSTRALIA. SECRET COMMISSIONS. No. 10 of 1905. An Act relating to Secret Commissions, Rebates, and Profits. [Assented to 16th November, 1905.] Be it enacted by the King's Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia as follows : — 1. This Act may be cited as the Secret Commissions Act, Short title. 1905. 2. This Act applies to trade and commerce with other countries Application. 144 THE LAW RELATING TO Definition*. Secret gifts accepted by or offered to agent as inducement or reward. False account given to or received or used by agent and among the States, and to agencies of and contracts with the Commonwealth or any Department or officer thereof. 3. In this Act- Agent " includes any corporation, firm, or person employed by or acting or having been acting or desiring or intending to act for or on behalf of any other corporation, firm, or person, whether as agent, partner, factor, broker, servant, trustee, director, or in any other capacity, and whether he acts in the name of the principal or in any other name, and in the case of a firm includes a member of the firm. It also includes a person serving under the Crown. " Agency " has a meaning corresponding with that of " agent." " Consideration " means valuable consideration of any kind, and particularly includes discounts, commission and rebates, bonuses, deductions and percentages, and also employment or an agreement to give employment in any capacity. " Full knowledge " means knowledge of all material facts and circumstances. Principal " includes a corporation, firm, or person who employs the agent or for or on behalf of whom the agent acts or has been acting or desires or intends to act. 4. (1 ) Any person who, without the full knowledge and consent of the principal, directly or indirectly — (a) being an agent of the principal accepts or obtains or agrees or offers to accept or obtain from any person for himself or for any person other than the principal ; or (b) gives or agrees to give or offers to an agent of the prin- cipal or to any person at the request of an agent of the principal any gift or consideration as an inducement or reward. — (i) for any act done or to be done, or any forbearance observed or to be observed, or any favour or disfavour shown or to be shown, in relation to the principal's affairs or business, or on the principal's behalf ; or (n) for obtaining or having obtained or aiding or having aided to obtain for any person an agency or contract for or with the principal shall be guilty of an indictable offence. Penalty : In the case of a corporation, One thousand pounds ; in the case of any other person, two years' imprisonment or Five hundred pounds, or both. (2) A gift or consideration shall be deemed to be given as an inducement or reward if the receipt or any expectation thereof would be in any way likely to influence the agent to do or to leave undone something contrary to his duty. 5. Any person who — (a) gives to an agent ; or (b) being an agent receives or uses, with intent to deceive the principal, any receipt, account, or document in respect of which the principal is interested, or in relation to a dealing, transaction, or matter in which the principal is interested, the receipt, account, or document being false, erroneous, or defective in any material particular, or likely in any way to mislead the principal, shall be guilty of an indictable offence. Penalty : In the case of a corporation, One thousand pounds ; SECRET COMMISSIONS AND BRIBES 145 in the case of any other person, two years' imprisonment or Five hundred pounds, or both. 6. Any agent who, without the full knowledge and consent of the principal, buys from or sells to himself, or any firm of which he is a partner, or any company of which he is a director, manager, officer, or employee, or in which he or any person for him or on his behalf is a shareholder, any goods for or on behalf of his principal, shall be guilty of an indictable offence. Penalty : In the case of a corporation, One thousand pounds ; in the case of any other person, two years' imprisonment or Five hundred pounds, or both. 7. (1) Where any gift or consideration has in contravention of this Act been given by any person to an agent, the principal may, in any court of competent federal jurisdiction, recover the amount or the money value thereof either from the agent or from the person who gave the gift or consideration to the agent. (2) No conviction or acquittal of the defendant in respect of an offence under this Act shall operate as a bar to proceedings under this section. 8. No person shall in any civil or criminal proceeding be excused from answering any question, put either viva voce or by interrogatory, or from making any discovery of documents, on the ground that the answer or discovery may criminate or tend to criminate him in respect of an offence against this Act ; but his answer shall not be admissible in evidence against him in any criminal proceeding, other than a prosecution for perjury. 9. In any civil or criminal proceeding under this Act evidence shall not be admissible to show that any such gift or con- sideration as is mentioned in this Act is customary in any trade or calling. 10. Whoever aids, abets, counsels or procures or is in any way directly or indirectly knowingly concerned in or privy to— (a) the commission of any offence against this Act ; or ■ (b) the commission outside Australia of any act, in relation to the affairs or business on behalf of a principal residing in Australia, which if committed in Australia would be an offence against this Act, shall be deemed to have committed the offence and be punishable accordingly. 11. Every information (other than an indictment) for any offence under this Act shall be upon oath. Agent secretly buying from or selling to himself. Principal may recover amount of secret gift. Incriminating answers and discovery. Evidence. Aiding and abetting offences. Cf. 50 &. 51 Vict. c. 28 s. Information upon oath. III. WESTERN AUSTRALIA. Anno Quinto EDWARDI SEPTIMI REGIS, XIII. No. 13 of 1905. An Act for the Prohibition of Secret Commissions and Rebates. [Assented to 23rd December, 1905.] Be it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of Western Australia, in this present 146 THE LAW RELATING TO Short title. Receipt or soli- citation of secret com- mission by an agent a mis- demeanour. V. 1905, No. 1974. »• 2- Gift or offer of secret com- mission to an agent a mis- demeanour. Ibid. Secret gifts to parent, wife, child, partner, etc., of agent deemed gifts to agent. Ibid., s. 3. Secret gifts received by parent, wife, child, partner, etc., of agent deemed received by agent. Ibid. Giving to agent false or misleading receipt or account a mis- demeanour. Ibid., s. 4. Gift or receipt of secret com- mission in return for advice given. Ibid., s. 5 (1). Parliament assembled, and by the authority of the same, as follows : — 1. This Act may be cited as the Secret Commissions Act, 19U5, and shall come into operation on the first day of April, One thousand nine hundred and six. 2. If any agent corruptly receives or solicits from any person, for himself or for any other person, any valuable consideration- — (a) as an inducement or reward for, or otherwise on account of, doing or forbearing to do or having done or forborne to do any act in relation to his principal's affairs or business : or (b) the receipt or any expectation of which would in any way tend to influence him to show or to forbear to show favour or disfavour to any person in relation to his principal's affairs or business, he shall be guilty of a misdemeanour. 3. If any person corruptly gives or offers to any agent any valuable consideration' — (a) as an inducement or reward for, or otherwise on account of, doing or forbearing to do or having done or forborne to do any act in relation to his principal's affairs or business ; or (b) the receipt or any expectation of which would in any- way tend to influence him to show or to forbear to show favour or disfavour to any person in relation to his principal's affairs or business, he shall be guilty of a misdemeanour. 4. (1) Any valuable consideration given or offered to any parent, husband, wife, or child of any agent, or to his partner, clerk, or employee, or at the agent's request to any person by any person having business relations with the principal of such agent, shall be deemed to have been given or offered to the agent, (2) Any valuable consideration received or solicited by any parent, husband, wife, or child of any agent, or by his partner, clerk, or employee, from any person having business relations with the principal of such agent shall be deemed to have been received or solicited by the agent, unless it be proved that the valuable consideration was so received or solicited without the consent, knowledge, or privity of the agent. 5. If, with intent to deceive or defraud the principal, any person gives to any agent, or if any agent receives or uses or gives to the principal, any receipt, invoice, account, or docu- ment in respect of which or in relation to a dealing, transaction, or matter in which the principal is interested and which- — (a) contains any statement which is false or erroneous or defective in any important particular, or is in any way likely to mislead the principal ; or (b) omits to state explicitly and fully the fact of any com- mission, percentage, bonus, discount, rebate, repayment, gratuity, or deduction having been made, given, or allowed or agreed to be made, given, or allowed, he shall be guilty of a misdemeanour. 6. Whenever any advice is given by one person to another, and such advice is in any way likely or intended to induce or influence the person advised — (a) to enter into a contract with any third person ; or (b) to appoint or join with another in appointing, or to vote for or to aid in obtaining the election or appointment, or to authorise or join with another in authorising the appointment, of any third person as trustee, SECRET COMMISSIONS AND BRIBES 147 and any valuable consideration is given by such third person to the person giving the advice without the assent of the person advised, the gift or receipt of the valuable consideration shall be a misdemeanour, but this section shall not apply when the person giving the advice was, to the knowledge of the person advised, the agent of such third person, or when the valuable consideration was not given in respect of such advice. 7. Any offer or solicitation of a valuable consideration in respect of any advice given or to be given by one person to another with a view to induce or influence the person advised- — ■ (a) to enter into a contract with the person offering or solicited ; or (b) to appoint or join with another in appointing, or to vote for or to aid in obtaining the election or appointment, or to authorise or join with another in authorising the appointment, of the person offering or solicited as trustee, and with the intent that the gift or receipt of such valuable consideration is not to be made known to the person advised, shall be a misdemeanour, but this section shall not apply when such first-mentioned person is the agent of the person offering or solicited. 8. If any person offers or gives any valuable consideration to a trustee, or if any trustee receives or solicits any valuable con- sideration for himself or for any other person, without the assent of the persons beneficially entitled to the estate, or of a Judge of the Supreme Court, as an inducement or reward for appointing or having appointed or for joining or having joined with another in appointing, or for authorising or having authorised or for joining or having joined with another in authorising any person to be appointed in his stead or instead of him and any other person as trustee he shall be guilty of a misdemeanour. 9. Any person who, being within Western Australia, knowingly aids, abets, counsels, or procures, or who attempts or takes part in or is in any way privy to — (a) doing any act or thing in contravention of this Act ; (b) doing any act or thing outside Western Australia, or partly within and partly outside Western Australia, which if done within Western Australia would be in contravention of this Act ; shall be guilty of a misdemeanour. 10. Any director, manager, or officer of a company, or any person acting for another, who knowingly takes part in or is in any way privy to doing or who attempts to do any act or thing without authority which, if authorised, would be in contraven- tion of any of the provisions of this Act shall be guilty of a misdemeanour. 11. Any person, on conviction of a misdemeanour under any of the provisions of this Act, shall — (a) be liable, if a corporation, to a penalty not exceeding Five hundred pounds, and if any other person, to be im- prisoned for any period not exceeding two years, with or without hard labour, or to pay a penalty not exceeding Five hundred pounds or imprisonment and penalty as aforesaid ; and, (b) in addition, be liable to be ordered to pay to such person, and in such manner as the court directs, the amount or value, according to the estimation of the court, of any valuable consideration received or given by him or any part thereof ; Offer cr solicitation of secret commission in return for advice given. Ibid., s. 5 (2). Secret com- mission to trustee in return for substituted appointment. Ibid., s. 6. Aiding and abetting offences within or outside Western Australia. Ibid., s. 7- Liability of directors, etc., acting without authority. Ibid., s. 8. Penalty on conviction. Ibid., s. 9. 148 THE LAW RELATING TO Court may order with- drawal of trifling or technical cases. Ibid., s. 10. Protection of witness giving answers criminating himself. Ibid., s. ii. Stay of proceedings against such witness. Ibid., s. 12. Custom of itself no defence. Ibid., s. 13. Burden of proof that gift not secret commission. Ibid., s. 14. Limit of time for prosecu- tion. Ibid., s. 15. Consent of Attorney- General to prosecution. Ibid. s. 16. Prosecution of offences. Ibid., s. 17. Interpreta- tions. Ibid., s. ib. and such order shall be enforceable in the same manner as judgment of the court. 12. Upon the trial of a person for any offence under this Act, if it appears to the court that the offence charged is in the particular case of a trifling or merely technical nature, or that in the particular circumstances it is inexpedient to proceed to a conviction, the court may in its discretion, and for reasons stated on the application of the accused, withdraw the case from the jury, and this shall have the same force and effect as if the jury had returned a verdict of not guilty, except that the court may, if it think fit, make the order mentioned in the last preceding section. 13. A person who is called as a witness in any proceedings shall not be excused from answering any question relating to any offence under this Act on the ground that the answer thereto may criminate or tend to criminate him — Provided that — (a) a witness who, in the judgment of the court or justices, answers truly all questions which he is required by the court or justices to answer shall be entitled to receive a certificate from the court or justices stating that such witness has so answered ; and (b) an answer by a person to a question put by or before the court or justices in any proceeding under this Act shall not, except in the case of any criminal proceedings for perjury in respect of such evidence, be in any proceeding civil or criminal admissible in evidence against him. 14. When a person has received a certificate as aforesaid, and any criminal proceeding is at any time instituted against him in respect of the offence which was in question in the pro- ceeding in which the said person was called as a witness, the court or justices having cognisance of the case shall, on proof of the certificate and of the identity of the offence in question in the two cases, stay the proceedings. 15. In any prosecution under this Act it shall not amount to a defence to show that any such valuable consideration as is mentioned in this Act is customary in any trade or calling. 16. For the purposes of this Act, where it is shown that any valuable consideration has been received or solicited by an agent from or given or offered to an agent by any person having business relations with the principal, without the assent of the principal, the burden of proving that such valuable consideration was not received, solicited, given, or offered in contravention of any of the provisions of this Act shall be on the accused. 17. No prosecution for an offence under this Act shall be commenced after the expiration of two years next after the commission of the offence, or six months next after the first discovery thereof by the principal or the person advised, as the case may be, whichever expiration first happens. 18. No prosecution for an offence under this Act shall be commenced without the consent of the Attorney-General. 19. Every information for an offence under this Act shall be upon oath. 20. In the construction of this Act, the following provisions shall apply : — (1) The word "agent" shall include any corporation or other person acting or having been acting or desirous or intending to act for or on behalf of any corporation or other SECRET COMMISSIONS AND BRIBES 149 person, whether as agent, partner, co-owner, clerk, servant, employee, banker, broker, auctioneer, architect, clerk of works, engineer, solicitor, surveyor, buyer, salesman, foreman, trustee, executor, administrator, liquidator, trustee in bank- ruptcy or of a deed of arrangement, receiver, director, manager, or other officer or member of committee or governing body of any corporation, club, partnership, or association, or in any other capacity, either alone or jointly with any other person, and whether in his own name or in the name of his principal, or otherwise ; and a person serving under the Crown is an agent within the meaning of this Act : (2) The word " principal " shall include a corporation or other person for or on behalf of whom the agent acts, has acted, or is desirous or intending to act : (3) The word " trustee " shall include trustee, executor, administrator, liquidator, trustee in bankruptcy or of a deed of arrangement, receiver, director, committee of the estate of an insane person, having power to appoint a trustee, or person entitled to obtain probate of the will or letters of administration to the estate of a deceased person : (4) The words " valuable consideration " shall include any money, loan, office, place, employment, agreement to give employment, benefit, or advantage whatsoever, and any commission or rebate, deduction, or percentage, bonus, or discount, or any forbearance to demand any money or money's worth or valuable thing ; and the acceptance of any of the said things shall be deemed the receipt of a valuable consideration : (5) The words " valuable consideration," when used in connection with the offer thereof, shall include any offer of any agreement or promise to give, and every holding out of any expectation of valuable consideration : (6) The words " valuable consideration," when used in connection with the receipt thereof, shall include any accept- ance of any agreement, promise, or offer to give, and of any holding out of any expectation of valuable consideration : (7) The word " contract " shall include contract of sale or of employment or any other contract whatever : (8) Any act or thing prohibited by this Act is prohibited whether done directly or indirectly by the person mentioned or by or through any other person : (9) The words " solicit any valuable consideration," and " valuable consideration solicited," and words to the like extent shall be construed with the following direction, namely : — That every agent who shall divert, obstruct, or interfere with the proper course of business or manufacture, or shall impede or obstruct, or shall fail to use due diligence in the prosecution of any negotiation or business with the intent to obtain the gift of any valuable consideration from any person interested in the said negotiation or business or with intent to injure any such person shall be deemed to have solicited a valuable consideration from a person having business relations with the principal of such agent : (10) The words " person having business relations with the principal " shall include every corporation or other person, whether as principal or agent, carrying on or having carried on or desirous or intending to carry on any negotiation or business with or engaged or having been engaged or desirous I 2 — (1520) 150 THE LAW RELATING TO or intending to be engaged in the performance of any contract with or in the execution of any work or business for or in the supply of any goods or chattels to any principal, and shall also include any agent of such corporation or other person : (11) The words " in relation to his principal's affairs or business " shall imply the additional words " whether within the scope of his authority or course of his employment as agent or not " : and (12) The words " advice given " and words to the like effect shall include every report, certificate, statement, and sug- gestion intended to influence the person to whom the same may be made or given, and every influence exercised by one person over another. IV. TASMANIA. 1906. Short title and commence- ment. Receipt or solicitation of secret com- mission by an agent a mis- demeanour. Vic, 1905, Xo. 1974, s. 2. U.A., 1905, No. 13, s. 2. Gift or offer of secret commission to an agent a mis- demeanour. Ibid. (Vic), s. 2. Ibid. (W.A.), s. 3. Secret gifts to parent, wife, child, partner, etc , of agent deemed gifts to agent Ibid. (Vic), s. 5. Ibid. (W.A.), ». 4. ANNO SEXTO EDWARDI VII. REGIS, No. 21. An Act for the Prohibition of Secret Commissions. [8 November, 1906.] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly of Tasmania, in Parliament assembled, as follows : — 1. (1) This Act may be cited as " The Secret Commissions Prohibition Act, 1906." (2) This Act shall come into operation on the First day of January, One thousand nine hundred and seven. 2. If any agent corruptly receives or solicits from any person for himself or for any other person any valuable consideration — I. as an inducement or reward for, or otherwise on account of, doing or forbearing to do or having done or forborne to do any act in relation to his principal's affairs or business : or II. the receipt or any expectation of which would in any way tend to influence him to show or to forbear to show favour or disfavour to any person in relation to his principal's affairs or business — he shall be guilty of a misdemeanour. 3. If any person corruptly gives or offers to any agent any valuable consideration — I. as an inducement or reward, for or otherwise on account of, doing or forbearing to do or having done or forborne to do any act in relation to his principal's affairs or business : or II. the receipt or any expectation of which would in any way tend to influence him to show or to forbear to show favour or disfavour to any person in relation to his principal's affairs or business — he shall be guilty of a misdemeanour. 4. (1) Any valuable consideration given or offered to any parent, husband, wife, or child of any agent, or to his partner, clerk, or employee, or at the agent's request to any person by any person having business relations with the principal of such agent, shall be deemed to have been given or offered to the agent. SECRET COMMISSIONS AND BRIBES 151 (2) Any valuable consideration received or solicited by any parent, husband, wife, or child of any agent, or by his partner, clerk, or employee, from any person having business relations with the principal of such agent, shall be deemed to have been received or solicited by the agent, unless it be proved that the valuable consideration was so received or solicited without the consent, knowledge, or privity of the agent. 5. If with intent to deceive or defraud the principal, any person gives to any agent, or any agent receives or uses or gives to the principal, any receipt, invoice, account, or document in respect of which or in relation to a dealing, transaction, or matter in which the principal is interested, and which — I. contains any statement which is false or erroneous or defective in any important particular or is in any way likely to mislead the principal : or II. omits to state explicitly and fully the fact of any com- mission, percentage, bonus, discount, rebate, repayment, gratuity, or deduction having been made, given, or allowed, or agreed to be made, given, or allowed- — he shall be guilty of a misdemeanour. 6. Whenever any advice is given by one person to another, and such advice is in any way likely or intended to induce or influence the person advised — i. to enter into a contract with any third person : or ii. to appoint or join with another in appointing, or to vote for or to aid in obtaining the election or appointment, or to authorise or join with another in authorising the appointment of any third person as trustee — and any valuable consideration is given by such third person to the person giving the advice without the assent of the person advised, the gift or receipt of the valuable consideration shall be a misdemeanour ; but this Section shall not apply when the person giving the advice was, to the knowledge of the person advised, the agent of such third person, or when the valuable consideration was not given in respect of such advice. 7. Any offer or solicitation of a valuable consideration in respect of any advice given or to be given by one person to another with a view to induce or influence the person advised — I. to enter into a contract with the person offering or solicited : or ii. to appoint or join with another in appointing, or to vote for or to aid in obtaining the election or appointment, or to authorise or join with another in authorising the appointment, of the person offering or solicited as trustee — and with the intent that the gift or receipt of such valuable consideration is not to be made known to the person advised, shall be a misdemeanour ; but this Section shall not apply when such first-mentioned person is the agent of the person offering or solicited. 8. If any person offers or gives any valuable consideration to a trustee, or if any trustee receives or solicits any valuable consideration for himself or for any other person, without the assent of the persons beneficially entitled to the estate, or of a Judge of the Supreme Court, as an inducement or reward for appointing or having appointed or for joining or having joined with another in appointing, or for authorising or having author- ised or for joining or having joined with another in authorising Secret gifts received by parent, wife, child, partner, etc., of agent, deemed received by agent unless the contrary is proved Giving to agent or agent receiving, using, or giving to principal false or misleading receipt or account a mis- demeanour. Ibid. (Vic), Ibid. (W.A.), s. 5- Gift or receipt of secret commission in return for advice given. Ibid. (Vic), s. 5., ss. i. Ibid. (W.A.), s. 6. Offer or solicitation of secret com- mission in return for advice given or to be given. Ibid. (Vic), s. 6., SS. 2. Ibid. (W.A.), s. 7- Secret com- mission to trustee in return for substituted appointment. Ibid. (Vict.), s. 6. Ibid. (W.A.), s. 8. 152 THE LAW RELATING TO Aiding and abetting offences within or without Tasmania. Ibid. (Vic), s. 7- Ibid. (W.A.), s. 9. Liability of directors, etc., acting without authority. Ibid. (Vic), s. 8. Ibid. (W.A ), s. 10. Penalty on conviction. Ibid. (Vic), 9- Ibid. (W.A.), s. 11. Court may order with- drawal of trifling or technical cases Ibid. (Vic), s. 10. Ibid. (W.A.), s. 12. Protection of witness giving answers criminating himself. Ibid. (Vic), s. 11. Ibid. (W.A.), s. 13. Stay of pro- ceedings against such witness. Ibid. (Vic), s. 12. Ibid. (W.A.), s, 14. any person to be appointed in his stead or instead of him and any other person as trustee, he shall be guilty of a misdemeanour. 9. Any person who being within Tasmania knowingly aids, abets, counsels, or procures, or who attempts or takes part in or is in any way privy to — 1. doing any act or thing in contravention of this Act : 11. doing any act or thing outside Tasmania, or partly within and partly outside Tasmania, which, if done within Tasmania, would be in contravention of this Act- — ■ shall be guilty of a misdemeanour. 10. Any director, manager, or officer of a company, or any person acting for another who knowingly takes part in or is in any way privy to doing or who attempts to do any act or thing without authority which, if authorised, would be in con- travention of any of the provisions of this Act, shall be guilty of a misdemeanour. 11. Any person, on conviction of a misdemeanour under any of the provisions of this Act, shall — I. be liable if a corporation to a penalty not exceeding Five hundred pounds, and if any other person, to be imprisoned for any period not exceeding two years, with or without hard labour, or to pay a penalty not exceeding Five hundred pounds or imprisonment and penalty as aforesaid : and II. in addition, be liable to be ordered to pay to such person and in such manner as the Court directs, the amount or value, according to the estimation of the Court, of any valuable consideration received or given by him or any part thereof ; and such order shall be enforceable in the same manner as a judgment of the Court. 12. Upon the trial of a person for any offence under this Act, if it appears to the Court that the offence charged is in the particular case of a trifling or merely technical nature or that in the particular circumstances it is inexpedient to proceed to a conviction, the Court may in its discretion, and for reasons stated on the application of the accused, withdraw the case from the jury, and this shall have the same force and effect as if the jury had returned a verdict of not guilty, except that the Court may, if it think fit, make the order mentioned in last preceding Section. 13. A person who is called as a witness in any proceedings shall not be excused from answering any question relating to any offence under this Act on the ground that the answer thereto may criminate or tend to criminate him. Provided that — I. a witness who in the judgment of the Court or Justices answers truly all questions which he is required by the Court or Justices to answer shall be entitled to receive a certificate from the Court or Justices stating that such witness has so answered : and II. an answer by a person to a question put by or before the Court or Justices in any proceeding under this Act shall not, except in the said proceeding or in the case of any criminal proceedings for perjury in respect of such evidence, be in any proceeding civil or criminal admissible in evidence against him. 14. When a person has received a certificate as aforesaid, and any criminal proceeding is at any time instituted against him in respect of the offence which was in question in the proceeding in which the said person was called as a witness, the Court or SECRET COMMISSIONS AND BRIBES 153 Justices having cognisance of the case shall on proof of the certificate and of the identity of the offence in question in the two cases stay the proceedings. 15. In any prosecution under this Act it shall not amount to a defence to show that any such valuable consideration as is mentioned in this Act is customary in any trade or calling. 16. For the purposes of this Act, where it is proved that any valuable consideration has been received or solicited by an agent from or given or offered to an agent by any person having business relations with the principal without the assent of the principal, the burden of proving that such valuable consideration was not received, solicited, given, or offered, in contravention of any of the provisions of this Act shall be on the accused. 17. No prosecution for an offence under this Act shall be com- menced after the expiration of Two years next after the com- mission of the offence, or Six months next after the first discovery thereof by the principal or the person advised, as the case may be, whichever expiration first happens. 18. No prosecution for an offence under this Act shall be commenced without the consent of the Solicitor-General. 19. Every information for any offence under this Act shall be upon oath. 20. In the construction of this Act the following provisions shall apply : — (1) The word "agent" shall include any corporation or other person acting or having been acting or desirous or intending to act for or on behalf of any corporation or other person whether as agent, partner, co-owner, clerk, servant, employee, banker, broker, auctioneer, architect, clerk of works, engineer, barrister, solicitor, surveyor, buyer, salesman, fore- man, trustee, executor, administrator, liquidator, trustee in bankruptcy, or of a deed of arrangement, receiver, director, manager, or other officer or member of committee or governing body of any corporation, club, partnership or association, or in any other capacity, either alone or jointly with any other person, and whether in his own name or in the name of his principal or otherwise ; and a person serving under the Crown is an agent within the meaning of this Act : (2) The word " principal " shall include a corporation or other person for or on behalf of whom the agent acts, has acted, or is desirous or intending to act : (3) The word " trustee " shall include trustee, executor, administrator, liquidator, trustee in bankruptcy, or of a deed of arrangement, receiver, director, committee of the estate of an insane person, having power to appoint a trustee, or person entitled to obtain probate of the will or letters of administration to the estate of a deceased person : (4) The words " valuable consideration " shall include any money, loan, office, place, employment, agreement to give employment, benefit, or advantage whatsoever, and any com- mission or rebate, deduction, or percentage, bonus or discount, or any forbearance to demand any money or money's worth or valuable thing, and the acceptance of any of the said things shall be deemed the receipt of a valuable consideration : (5) The words " valuable consideration," when used in connection with the offer thereof, shall include any offer of any agreement or promise to give and every holding out of any expectation of valuable consideration : Custom of itself no defence. I nd. (Vic), s. 13. Ibid. (W.A.), s. 15. Burden of proof that gift not secret commission. Ibid. (Vic), s. 13. Ibid. (W.A.), s. 15. Limit of time for prosecu- tion. Ibid. (Vic), s. 15. Ibid. (W.A.), s. 17. Consent of Solicitor- General to prosecution, Ibid (Vic), s, 16. Ibid. (W.A.), s. 18. Prosecution of offences. Ibid. (Vic), s. 17. Ibid. (W.A.), s. 19. interpreta- tions. Ibid. (Vic), s. 18. Ibid. (W.A.t, s. 20. 154 THE LAW RELATING TO (6) The words " valuable consideration," when used in connection with the receipt thereof, shall include any accept- ance of any agreement, promise, or offer to give, and of any holding out of any expectation of valuable consideration. (7) The word " contract " shall include contract of sale or of employment or any other contract whatever : (8) Any act or thing prohibited by this Act is prohibited whether done directly or indirectly by the person mentioned or by or through any other person : (9) The words " solicit any valuable consideration " and " valuable consideration solicited " and words to the like effect shall be construed with the following direction, namely : — That every agent who shall divert, obstruct, or interfere with the proper course of business or manufacture, or shall impede or obstruct, or shall fail to use due diligence in the prosecution of any negotiation or business with the intent to obtain the gift of any valuable consideration from any person interested in the said negotiation or business, or with intent to injure any such person, shall be deemed to have solicited a valuable consideration from a person having business relations with the principal of such agent : (10) The words " person having business relations with the principal " shall include every corporation or other person whether as principal or agent carrying on or having carried on or desirous or intending to carry on any negotiation or business with or engaged or having been engaged or desirous or intending to be engaged in the performance of any contract with or in the execution of any work or business for or in the supply of any goods or chattels to any principal, and shall also include any agent of such corporation or other person : (11) The words "in relation to his principal's affairs or business " shall imply the additional words " whether within the scope of his authority or course of his employment as agent or not " : and (12) The words " advice given " and words to the like effect shall include every report, certificate, statement, and sugges- tion intended to influence the person to whom the same may be made or given, and every influence exercised by one person over another. V. ISLE OF MAN. THE PREVENTION OF CORRUPTION ACT, 1908. Isle of Man Passed Uth April, 1908. to Wit. Promulgated 6th July, 1908. An Act for the better Prevention of Corruption in the Isle of Man. We, your Majesty's most dutiful and loyal subjects, the Lieu- tenant-Governor, Council, Deemsters, and Keys, of the said Isle, do humbly beseech your Majesty that it may be enacted, and be it enacted, by the King's Most Excellent Majesty, by and with the advice and consent of the Lieutenant-Governor, Council, Deemsters, and Keys, in Tynwald assembled, and by the authority of the same, as follows (that is to say) : — SECRET COMMISSIONS AND BRIBES 155 1. This Act may be cited as " The Prevention of Corruption Act, 1908." , t n 2. In this Act, if not inconsistent with the context, the following terms have the meanings hereinafter respectively assigned to them (that is to say) :■ — " Valuable consideration " includes valuable consideration of any kind : " Principal " includes an employer : " Indictment " includes information : " Agent " includes any person employed by or acting for another, or any person serving under the Crown, or under the Insular Government, or under any local authority, corporation, company, Board of Guardians of the Poor, School Board or other educational authority ; or any Board the members, or any of the members, of which are appointed by, or whose appointment requires the approval of the Tynwald Court : " Local authority " means, for the borough of Douglas, the Mayor, Aldermen, and Burgesses of the said borough ; and otherwise, for a town, or village district, or parish district, the Commissioners of the district under the Local Government Act, 1886, and any Act amending the same : " Summary conviction " means a conviction before a high- bailiff or two justices. 3. (1) If any agent corruptly accepts or obtains, or agrees to accept or attempts to obtain, from any person, for himself, or for any other person, any gift or consideration as an induce- ment or reward for doing or forbearing to do, or for having, after the passing of this Act, done or forborne to do, any act in relation to his principal's affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principals' affairs or business ; or (2) If any person corruptly gives or agrees to give, or offers, any gift or consideration to any agent, as an inducement or reward for doing or forbearing to do, or for having, after the passing of this Act, done or forborne to do, an act in relation to his principal's affairs or business or for showing or forbearing to show favour or disfavour to any person in relation to his principal's affairs or business ; or (3) If any person knowingly gives to an agent, or if any agent knowingly uses, with intent to deceive his principal, any receipt, account, or other document in respect of which the principal is interested, and which contains any statement which is false, or erroneous, or defective in any material particular, and which, to his knowledge, is intended to mislead the principal, he shall be guilty of a misdemeanour, and shall be liable, on conviction on indictment, to imprisonment, with or without hard labour, for a term not exceeding two years, or to a fine not exceeding five hundred pounds, or to both such imprisonment and such fine ; or, on summary conviction, to imprisonment, with or without hard labour, for a term not exceeding four months, or to a fine not exceeding fifty pounds, or to both such imprisonment and such fine. 4. (1) A prosecution under this Act may be at the suit of any person aggrieved, or of an inspector of police. (2) A prosecution for an offence under this Act shall not be instituted without the consent of the Attorney-General. (3) Every information for an offence under this Act shall be upon oath. Short Title. Interpretation of certain terms in this Act. Punishment of corrupt transactions with agents. Prosecution of offences. 156 THE LAW RELATING TO (4) Any person aggrieved by a summary conviction under this Act may appeal to the Staff of Government Division of the High Court of Justice in manner provided by section 14 of the Petty Sessions Act, 1864. Note. — Up to the present there have been no prosecutions under this Act. Short title and com- mencement Interpretation. Tas. Act. 2i, 1906, s. 20 . Vic. Act 1974, 1905, s. 18, adapted. VI. SOUTH AUSTRALIA. ANNO PRIMO GEORGII V REGIS. a.d. 1910. No. 1006. An Act relating to Secret Commissions and Rebates. [Assented to, November 23rd, 1910.] Be it Enacted by the Governor of the State of South Australia, with the advice and consent of the Parliament thereof, as follows : 1. This Act may be cited as " The Secret Commissions Act, 1910," and shall come into operation on a day to be fixed by Proclamation. 2. In the construction of this Act the following provisions shall apply, unless inconsistent with the context or other provisions of this Act : — " Agent " includes any corporation or other person acting or having been acting or desirous or intending to act for or on behalf of any corporation or other person, whether in the capacity of agent, attorney, partner, co-owner, clerk, servant, employee, banker, broker, auctioneer, architect, clerk of works, engineer, barrister, solicitor, proctor, surveyor, buyer, sales- man, foreman, trustee (as hereinafter denned), liquidator, receiver, director, or manager, or in any of such capacities, or as any other officer or as a member of any committee or governing body of any corporation, club, partnership, or association, or in any other capacity, either alone or jointly with any other person, and whether in his own name or in the name of his principal, or otherwise ; and a person serving under the Crown is an agent within the meaning of this Act " Contract " includes contract of sale or of employment and any other contract whatever : Full knowledge " means knowledge of all material facts and circumstances : " Principal " includes a corporation, club, partnership, firm, or other person or persons for or on behalf of whom the agent acts, has acted, or is desirous or intending to act : ' Trustee " includes trustee, executor, administrator, liquidator, trustee in insolvency or bankruptcy or under any composition or scheme of arrangement with creditors or any assignment for the benefit of creditors, receiver, director, guardian, committee or guardian of any lunatic or person of unsound mind or of his estate, and person entitled to obtain probate of the will or letters of administration to the estate of a deceased person : " Valuable consideration " includes any — Money, loan, office, place, employment ; SECRET COMMISSIONS AND BRIBES 157 Agreement to give employment, benefit, or advantage whatsoever ; Commission or rebate, deduction or percentage, bonus or discount ; Forbearance to demand any money or money's worth or valuable thing or to exercise any right or enforce any claim ; Property right or claim of money's value ; Subject matter of any such property right or claim ; and the acceptance of any of the said matters or things shall be deemed the receipt of a valuable consideration : The words " valuable consideration," when used in con- nection with the offer thereof, include any offer of any agree- ment or promise to give, and every holding out of any expectation of, valuable consideration : The words " valuable consideration," when used in connec- tion with the receipt thereof, include any acceptance of any agreement, promise, or offer to give, and of any holding out of any expectation of, valuable consideration : The words " solicit any valuable consideration," and " valuable consideration solicited," and words to the like extent shall be construed with the following direction, namely : — That every agent who diverts, obstructs, or interferes with the proper course of business or manufacture, or impedes or obstructs or fails to use due diligence in the prosecution of any negotiation or business, with the intent to obtain the gift of any valuable consideration from any person interested in the said negotiation or business, or with intent to obtain or retain for his own use any moneys or property for which in the ordinary course of his duty he ought to account to any such person, shall be deemed to have solicited a valuable consideration from a person having business relations with the principal of such agent : The words " person having business relations with the principal " include every corporation, club, partnership, firm, or other person or persons, whether as principal or agent, carrying on or having carried on or desirous or intending to carry on any negotiation or business with, or engaged or having been engaged or desirous or intending to be engaged in the performance of any contract with, or in the execution of any work or business for, or in the supply of any goods or chattels to, any principal, and also include any agent of such corporation or other person : The words " in relation to his principal's affairs or business " imply the additional words " whether within the scope of his authority or course of his employment as agent or not " ; and The words " advice given " and words to the like effect include every report, certificate, statement, and suggestion, whether written or not, intended to influence the person to whom the same is made or given, and ever}' influence exercised by one person over another. Provided that when in this section it is stated that any word or expression includes as in this section stated, such statement is not to be taken to curtail the meaning of such word or expression. Any act or thing prohibited by this Act is prohibited whether done directly or indirectly by the person mentioned or by or through any other person. 3. (1) Any valuable consideration given or offered to any parent, husband, wife, or child of any agent, or to his partner, Secret gifts to parent, wife, child, partner, etc., of agent deemed gifts to agent. 158 THE LAW RELATING TO Tas. Act, s. 4 (i). Vic. Act. s. 3 (i). Secret gifts received by parent, wife, child, partner, etc., of agent deemed received by agent. Tas. Act, s. 4 (a). Vic. Act, s. 3 (2). Receipt or solicitation of secret com- mission by an agent a mis- demeanor. Tas. Act, s. 2. Vict. Act, s. 2. Gift or offer of secret com- mission to an agent a mis- demeanor Tas. Act, s. 3. Vict. Act, s. 2. Giving to agent false or misleading receipt or account a mis- demeanor. Tas. Act, s. 5. Vict. Act, s. 4. Gift or receipt of secret commission in return for advice given. Tas. Act, s. 6. Vict. Act, s. 5 (I). clerk, or employe, or at the agent's request to any person, by any person having business relations with the principal of such agent, shall be deemed to have been given or offered to the agent. (2) Any valuable consideration received or solicited by any parent, husband, wife, or child of any agent, or by his partner, clerk, or employe, from any person having business relations with the principal of such agent shall be deemed to have been received or solicited by the agent, unless it is proved that the valuable consideration was so received or solicited without the consent, knowledge, or privity of the agent. 4. If any agent corruptly receives or solicits from any person, for himself or for any other person, any valuable consideration — (a) As an inducement or reward for, or otherwise on account of, doing or forbearing to do or having done or forborne to do any act in relation to his principal's affairs or business which he ought in the ordinary course of his duty to do or have done or forbear or have forborne from doing ; or (b) The receipt or any expectation of which would in any way tend to influence him to show or to forbear to show favour or disfavour to any person in relation to his principal's affairs or business ; he shall be guilty of a misdemeanour. 5. If any person corruptly gives or offers to any agent an) 7 valuable consideration — (a) As an inducement or reward for, or otherwise on account of, doing or forbearing to do or having done or forborne to do any act in relation to his principal's affairs or business ; or (b) The receipt or any expectation of which would in any way tend to influence him to show or to forbear to show favour or disfavour to any person in relation to his principal's arfairs or business : he shall be guilty of a misdemeanour. 6. If, with intent to deceive or defraud the principal, any person gives to any agent, or any agent receives or uses or gives to the principal, any receipt, invoice, account, or document in respect of which, or in relation to a dealing transaction or matter in which, the principal is interested, and which — (a) Contains any statement which is false or erroneous or defective in any important particular, or is in any way likely to mislead the principal ; or (b) Omits to state explicitly and fully the fact of any com- mission, percentage, bonus, discount, rebate, repayment, gratuity, or deduction having been made, given, or allowed or agreed to be made, given, or allowed : such person or agent shall be guilty of a misdemeanour. 7. Whenever any advice is given by one person to another, and such advice is in any way likely or intended to induce or influence the person advised — (a) To enter into a contract with any third person ; or \b) To appoint or join with another in appointing, or to vote for or to aid in obtaining the election or appointment, or to authorise or join with another in authorising the appoint- ment, of any third person as trustee : and any valuable consideration is given by such third person to the person giving the advice without the assent of the person advised, the gift or receipt of the valuable consideration shall be a misdemeanour, but this section shall not apply when the SECRET COMMISSIONS AND BRIBES 159 person giving the advice was, to the knowledge of the person advised, the agent of such third person, or when the valuable consideration was not given in respect of such advice. 8. Whenever any person offers to another person any valuable consideration in respect of any advice given or to be given by such other person to a third person, or whenever any person solicits from another person any valuable consideration in respect of any advice given or to be given by the person soliciting to a third person, such advice, in either case, being with a view to induce or influence the person advised or to be advised — (a) To enter into a contract with the person offering or solicited, as the case may be ; or (b) To appoint or join with another in appointing, or to vote for or to aid in obtaining the election or appointment, or to authorise or join with another in authorising the appoint- ment of the person ottering or solicited, as the case may be, as trustee : and such offer or solicitation is made with the intent that the gift or receipt of such valuable consideration is not to be made known to the person advised or to be advised, then in every such case the offer or solicitation shall be a misdemeanour : Provided that this section shall not apply when the person who gave or is to give the advice is the agent of the person offering or solicited, and is not the agent of the person advised or to be advised. 9. If any person offers or gives any valuable consideration to a trustee, or if any trustee receives or solicits any valuable consideration for himself or for any other person, without the assent of the persons beneficially entitled to the estate or of a Judge of the Supreme Court, as an inducement or reward for appointing or having appointed or for joining or having joined with another in appointing, or for authorising or having authorised or for joining or having joined with another in authorising the appointment of, any person as trustee in his stead or in the stead of him and any other person, he shall be guilty of a misdemeanour. 10. Any person who, being within South Australia, aids, abets, counsels, procures, or attempts to take part in or is in any way directly or indirectly knowingly concerned in or privy to the- — (a) Doing of any act or thing in contravention of this Act : [b) Doing of any act or thing outside South Australia, or partly within and partly outside South Australia, which if done within South Australia would be in contravention of this Act: shall be guilty of a misdemeanour. 11. Any director, manager, or officer of a company, or any person acting for another, who knowingly takes part in or is in any way directly or indirectly concerned in or privy to doing, or who attempts to do, any act or thing without authority which, if authorised, would be in contravention of any of the provisions of this Act, shall be guilty of a misdemeanour. 12. Any person, on conviction of a misdemeanour under any of the provisions of this Act, shall — (a) Be liable, if a corporation, to a penalty not exceeding Two hundred and fifty pounds, and, if any other person, to a penalty not exceeding One hundred pounds ; and (b) In addition, be liable to be ordered to pay to such person, and in such manner as the Court directs, the amount or value, according to the estimation of the Court, of any valuable Offer or solicitation of secret commission in return for advice given. Tas. Act, s. 7- Vic. Act, s. 5 (2) Secret com- mission to trustee in return for substituted appointment. Tas. Act, s. 8. Vict. Act, s. 6. Aiding and abetting offences within or out- side South Australia. Tas. Act, s. 9. Vict. Act, s. 7. Liability of directors, etc., acting without authority. Tas. Act, s. 10. Vict. Act, s. 8. Penalty on conviction. Tas. Act. s. 11. Vict. Act, s. 9. 160 THE LAW RELATING TO Court may order with- drawal of trifling or technical cases. Tas. Act, s. 12. Vict. Act. s.io. Protection of witness giving answers criminating himself. Tas. Act, s. 13. Vict. Act, s.n. Stay of proceedings against such witness. Tas. Act, s. 14. Vict. Act, s. 12 Custom of itself no defence. Tas. Act, s. 15. Vict. Act, s. 13. Burden of proof to be on accused that gift not secret commission. Tas. Act, s. 16. Vict. Act, s. 14. Limit of time of prosecution. Tas. Act, s. 17. Vict. Act, s. 15. Consent of Attorney- General to prosecution. Tas. Act, s 18. Vict. Act, s. 16. Prosecution for offences. Tas. Act, s. 19. Vict. Act.s. 17. consideration received or given by him or any part thereof ; and such order shall be enforceable in the same manner as a judgment of the Court. 13. Upon the trial of a person for any offence under this Act, if it appears to the Court that the offence charged is in the par- ticular case of a trifling or merely technical nature, or that in the particular circumstances it is inexpedient to proceed to a con- viction, the Court may in its discretion, and for reasons stated on the application of the accused, withdraw the case from the jury, and this shall have the same force and effect as if the jury had returned a verdict of not guilty, except that the Court may, if it thinks fit, make the order mentioned in the next preceding section. 14. A person who is called as a witness in any proceedings shall not be excused from answering any question relating to any offence under this Act in respect of the particular charge on which he is being examined on the ground that the answei thereto may criminate or tend to criminate him — Provided that — (a) A witness who, in the judgment of the Court, answers truly all questions which he is required by the Court to answer, shall be entitled to receive a certificate from the Court stating that such witness has so answered ; and (b) An answer by a person to a question put by or before the Court in any proceedings under this Act shall not, except in the case of any criminal proceedings for perjury in respect of such evidence, be in any proceeding, civil or criminal, admissible in evidence against him. 15. When a person has received a certificate as aforesaid, and any criminal proceeding is at any time instituted against him in respect of the offence which was in question in the proceedings in which the said person was called as a witness, the Court or Justices having cognisance of the case shall, on proof of the certificate and of the identity of the offence in question in the two cases, stay the proceeding. 16. In any prosecution under this Act it shall not amount to a defence to show that any such valuable consideration as is mentioned in this Act is customary in any trade or calling. 17. For the purposes of this Act, where it is proved that any valuable consideration has been received or solicited by an agent from or given or offered to an agent by any person having business relations with the principal, without the assent of the principal, the burden of proving that such valuable consideration was not received, solicited, given, or offered in contravention of any of the provisions of this Act shall be on the accused. 18. No prosecution for an offence under this Act shall be com- menced after the expiration of two years next after the com- mission of the offence, or of six months next after the first discovery thereof by the principal or the person advised, as the case may be, whichever expiration first happens. 19. No prosecution for an offence under this Act shall be commenced without the consent of the Attorney-General. 20. Every information for an offence under this Act shall be upon oath or affirmation. In the name and on behalf of His Majesty, I hereby assent to this Bill. Day H. Bosanquet, Governor. SECRET COMMISSIONS AND BRIBES 161 VII. NEW ZEALAND. 1910, No. 40. An Act for the Prohibition of Secret Commissions. [3rd December, 1910.] Be it enacted by the General Assembly of New Zealand in Parliament assembled, and by the authority of the same, as follows : — 1. This Act may be cited as the Secret Commissions Act, 1910, and shall come into operation on the first day of January, nineteen hundred and eleven. 2. In this Act, unless a contrary intention appears, — " Agent " includes any person who is or has been, or desires or intends to be, employed by or acting for any other person, whether as agent, servant, broker, auctioneer, architect, solicitor, director, or in any other capacity whatever, either alone or jointly with any other person : " Principal " includes any person by whom an agent is or has been, or intends or desires to be, employed, or for whom an agent acts or has acted, or intends or desires to act : "Consideration" means valuable consideration of any kind ; and particularly includes discounts, commissions, rebates, bonuses, deductions, percentages, employment, pay- ment of money (whether by way of loan, gift, or otherwise howsoever), and forbearance to demand any money or valuable thing. 3. (1) Every person is guilty of an offence who corruptly gives, or agrees or offers to give, to any agent any gift or other consideration as an inducement or reward for doing or forbearing to do, or for having done or forborne to do, any act in relation to the principal's affairs or business (whether such act is within the scope of the agent's authority or the course of his employ- ment as agent or not), or for showing or having shown favour or disfavour to any person in relation to the principal's affairs or business. (2) Any gift or other consideration given or offered or agreed to be given to any parent, husband, wife, or child of any agent, or to his partner, clerk or servant, or (at the agent's request or suggestion) to any other person, shall be deemed for the purposes of this section to have been given or offered or agreed to be given to the agent. 4. (1) Every agent is guilty of an offence who corruptly accepts or obtains, or agrees or offers to accept or attempts to obtain, or solicits from any person, for himself or for any other person, any gift or other consideration as an inducement or reward for doing or forbearing to do, or for having done or forborne to do, any act in relation to the principal's affairs or business (whether such act is within the scope of the agent's authority or the course of his employment as agent or not), or for showing or having shown favour or disfavour to any person in relation to the principal's affairs or business. (2) Every agent who diverts, obstructs, or interferes with the proper course of the affairs or business of his principal, or fails to use due diligence in the prosecution of such affairs or busi- ness, with intent to obtain for himself or for any other person any gift or other consideration from any person interested in such affairs or business, shall be deemed to have corruptly solicited a consideration within the meaning of this section. Title. Short title and com- mencement. Interpretation. Gifts to agent without con- sent of principal an offence. Acceptance of such gifts by agent an offence. 162 THE LAW RELATING TO Duty of agent to disclose pecuniary interest in contract. Giving false receipt, invoice, etc., to agent an offence. Delivery of false receipts, etc., to principal an offence. Receiving secret reward for procuring contracts an offence. 5. (1) Every agent is guilty of an offence who makes a contract on behalf of his principal and fails to disclose to his principal, at the time of making the contract or as soon as possible there- after, the existence of any pecuniary interest which the agent has in the making of the contract, unless to the knowledge of the agent the existence of such pecuniary interest is already known to his principal. (2) For the purposes of this section any pecuniary interest which a parent, husband, wife, child, or partner of the agent has in the making of the contract shall be deemed to be the pecuniary interest of the agent, unless he proves that he had no knowledge of that interest at the time when he made the contract. (3) For the purposes of this section an agent shall not be deemed to have any pecuniary interest in the making of a con- tract by reason merely of the fact that he or any person men- tioned in the last preceding subsection is a shareholder in an incorporated company having more than twenty members. 6. Every person is guilty of an offence who, with intent to deceive the principal, gives to any agent, or signs or otherwise authenticates for the use of any agent, any receipt, invoice, account, or other document of any nature whatsoever in relation to the affairs or business of the agent or his principal which contains any statement which is false, defective, or misleading in any material particular, or which omits to state explicitly and fully the fact of any commission, percentage, bonus, dis- count, rebate, repayment, gratuity, or deduction having been made, given, or allowed, or agreed to be made, given, or allowed, in relation to the matters referred to in that document. 7. Every agent is guilty of an offence who delivers or presents to his principal any receipt, invoice, account, or other document of any nature whatsoever in relation to the business or affairs of his principal which to the knowledge of the agent is false or defective in any material particular, or is in any way likely to mislead the principal, or which to the knowledge of the agent omits to state the fact of any commission, percentage, bonus, discount, rebate, repayment, gratuity, or deduction having been made, given, or allowed, or agreed to be made, given, or allowed, in relation to the matters referred to in that document, or which to the knowledge of the agent omits to disclose the fact of any gift or other consideration having been received by or promised to the agent in respect of those matters, unless in any such case the fact which is not disclosed is, to the knowledge of the agent, already known to the principal at the time when the said document is so delivered or presented to him. 8. (1) Every person is guilty of an offence who advises any person to enter into a contract with a third person and receives or agrees to receive from that third person, without the know- ledge and consent of the person so advised, any gift or con- sideration as an inducement or reward for the giving of that advice or the procuring of that contract, unless the person giving that advice himself acts as the agent of the third person in entering into the contract, or is to the knowledge of the person so advised the agent of that third person. (2) For the purposes of this section a person shall be deemed to advise another person to enter into a contract if he makes to that other person any statement or suggestion with intent to induce him to enter into the contract. SECRET COMMISSIONS AND BRIBES 163 9. Every person is guilty of an offence who aids, abets, coun- sels, or procures, or is in any way directly or indirectly knowingly concerned in or privy to the commission of any offence against this Act, or the commission outside New Zealand of any act in relation to the affairs or business of a principal residing or carrying on business in New Zealand which if committed in New Zealand would be an offence against this Act. 10. Every person is guilty of an offence who, with or without authority, does on behalf of any other person who is an agent any act which if done by that agent himself would be an offence against this Act. 11. (1) Nothing in this Act contained shall be deemed to prohibit or render illegal any recognised practice or usage of any trade or calling existing at the time of the passing of this Act if the Court before which the matter of such practice or usage is in question shall be satisfied that such practice or usage is honest and reasonable ; and, in so determining, the said Court may have regard to the circumstance that the commissions, rebates, or allowances paid or made by the third party to the agent under such practice or usage were prior to this Act lawfully receivable by the agent without any breach of his duty towards his principal ; or the circumstance that the said commissions, rebates, or allowances so paid or made would not in any case be paid or allowed by such third party to the principal ; or the circumstance that the same were paid or allowed in respect of services lawfully rendered by the agent to such third party without injury or loss to the principal and without any breach by the agent of his duty towards his principal. (2) Except as provided by this section, evidence shall not be admissible in any proceeding for an offence against this Act to show that any such gift or consideration as is mentioned in this Act is customary in any trade or calling, nor shall the customary nature of any such gift or consideration be any defence in such proceedings. 12. (1) No prosecution for an offence against this Act shall be commenced without the leave of the Attorney-General ; and the Attorney-General shall, in granting leave to institute a prosecution, determine whether the offence shall be dealt with as an indictable offence or as one punishable on summary conviction, and the prosecution shall take place accordingly and not otherwise. (2) The leave of the Attorney-General may be granted without notice to the defendant, and it shall not be necessary in any information or indictment to state that such leave has been granted, or the terms thereof. Objections to an information or indictment for want of such leave or for want of conformity to the terms thereof shall be taken before the Magistrate, or by motion to quash the indictment, before the defendant is given in charge to the jury upon his trial, and not otherwise ; and if the Magistrate or Judge is satisfied that such leave has not been granted, or that the terms thereof have not been conformed to, the information or indictment shall be dismissed or quashed, as the case may be. 13. (1) Any person convicted on indictment of an offence against this Act is liable, if a corporation, to a fine not exceeding one thousand pounds ; and if any other person, to imprison- ment with or without hard labour for any period not exceeding two years or to a fine not exceeding five hundred pounds. Aiding and abetting offences. Offences by persons acting on behalf of agents. Except as provided in this section, customary nature of gift to be no defence. Consent of Attorney- General neces- sary for prosecution. Penalty on conviction. 164 THE LAW RELATING TO Proceedings to be before Magistrate only. Incriminating answers and discovery. Persons deemed to be agents within the meaning of this Act. (2) Any person convicted summarily of an offence against this Act is liable, if a corporation, to a fine not exceeding one hundred pounds ; and if any other person, to imprisonment with or without hard labour for any period not exceeding three months or to a fine not exceeding fifty pounds. 14. An information under the Justices of the Peace Act, 1908, for an offence against this Act, whether the proceedings are by way of summary conviction or otherwise, shall be taken and heard before a Magistrate only. 15. No person shall in any civil or criminal proceedings be excused from answering any question put either viva voce or by interrogatory, or from making any discovery of documents, on the ground that the answer or discovery may criminate or tend to criminate him in respect of an offence against this Act ; but his answer shall not be admissible in evidence against him in any criminal proceedings for an offence against this Act. 16. (1) For the purposes of this Act — (a) Every officer of a corporation and every member of a governing body of a corporation shall be deemed to be an agent of the corporation : (b) Every officer or member of any local authority, Board, Council, committee, or other body of persons, whether incor- porated or unincorporated, charged by statute with any public functions shall be deemed to be an agent of that local authority, Board, Council, committee, or other body : (c) Every person in the service of the Crown, or acting for or on behalf of the Crown, or holding any office in the public service, shall be deemed to be an agent of the Crown : (d) Every partner in a firm shall be deemed to be an agent of the firm : (e) An executor, administrator, or trustee shall be deemed to be an agent of the beneficiaries under the will, intestacy, or trust : (/) The committee of the estate of a person of unsound mind shall be deemed to be the agent of that person : (g) An arbitrator, umpire, or valuer shall be deemed to be an agent of every party to the arbitration or valuation : (h) A liquidator of a company shall be deemed to be an agent of the company. (2) If by virtue of the provisions of this Act any agent is deemed to be the agent of two or more principals in respect of the same matter, this Act shall apply to each of those principals in the same manner as if he was the sole principal. (3) Nothing in this section shall be so construed as to restrict in any manner the meaning of the terms " agent " or " principal " as used in this Act. VIII. SOUTH AFRICA. A Bill, introduced by Mr. P. A. Silburn, to prohibit the giving of rebates and secret commissions in mercantile transactions, has been read a second time in the House of Assembly of the Union of South Africa, but hitherto it has shared the fate of so many excellent measures in being shelved on account of pressure of other legislation. The text is as follows — (1) Notwithstanding anything to the contrary in any law in force in the Union, or in any Province thereof, it shall not be lawful for any person, from and after the passing of this act, to SECRET COMMISSIONS AND BRIBES 165 give, offer, or promise, whether acting as principal or agent, to any other person any rebate, refund, discount or reward upon condition that such other person shall purchase or otherwise obtain, or in consideration of such other person having purchased or otherwise obtained, goods, wares or merchandise from any particular person to the exclusion of any other person. (2) Any person contravening the provisions of this Act shall be guilty of an offence and liable on conviction to a fine not exceeding fifty pounds or, in default of payment, to imprisonment with or without hard labour for a period not exceeding three months, or to both such fine and imprisonment. (3) This Act may be cited for all purposes as the Rebate Prohibition Act, 1912. 13— (1520) INDEX The author is much indebted to Mr. J. B. Welson of Gray's Inn, Barrister- at-Law, for the preparation of the Index and Tables. Acceptance of profits, 14, 15 Account — must account to uttermost farthing, 10, 33, 36 neglect to account ground for charging interest, 10 re-opening of, 42 unable to account disentitled to commission, 9 vouchers must be produced, 9 when not bound to account, 11,17 when liable to account, 10 Accounts — agent must keep accounts, 6, 9 agent must be ready to produce, 1 amount of profit shown, 9 destroyed, 9 falsification of, 10 irregularities in, 9 lack of accounts may deprive agents of remuneration, 9 Act of 1906 (see Prevention of Corruption Act, 1906), 67 (see also Table of Statutes) Acts of Parliament cited (see Table of Statutes) Acquiescence, doctrine of, 38 Agency — authorising another to assume apparent right, 3 by estoppel, 3 by necessity, 4 constitution of, 2 contract of, not mere contract of employment, 1 definition of, 1 express, 3 implied, 3 not to be performed in one year, 3 ratification of, 4 third party essential, 2 Agent — acceptance of profits by, 14, 15 account, must (see account) appointment of, 3 auctioneers, 8, 35 brokers, 8 cannot change character, 40 cannot become agent except by will of another, 2 Agent — (contd.) capability of, 2 classes of, 3, 7 commission from both parties, 37, 38 commission, effect of bribes on, 37 corporation, 3 definition of, 1, 71, 80 delegation by, 7 discretion of, 7 dismissal of, 18, 42, 43 duties of, 5 duty to hand over profits, 33 duty to perform work undertaken, 5 effect of bribes on mind of, 20, 47, 75 employed to sell cannot buy, 16,45 exceeding real authority, 3 exclusive agent cannot make outside profit, 17 factors, 8 fiduciary position of, 26 for such things as principal can lawfully do, 2, 4 fraud of, 1, 15 general, 7 gratuitous, 5, 39 indemnity of, 5 insurance, 36 interest against duty, 6 liability of for non-performance, 5 liable for interest, 10 lien of, 5 mercantile, 8 must account, 10, 33, 36 must account for bribes, 24, 73 must be ready to pay, 10 must contract as agent, 4 must contract for principal in existence or contemplation, 4 must disclose nature of interest, 41 must disclose true price, 31 must get best bargain he can, 5 must keep separate accounts, 6, 9 must keep within limits of authority, 6 must not become principal as against principal, 6 must obey instructions, 5, 6 must not make secret profits, 18 167 168 INDEX Agent — (contd.) must not place himself in position to take advantage of principal, 15 must not take two commissions, 6, 7, 25 non-payment of by principal, 39 not allowed to have interest against his duty, 6 not compelled to account for profit, 11, 17 personal responsibility of, 4 purchase or sale from or to principal, 16, 45 relation with principal, 1 et seq. rights of, 5 right to an account, 5 remuneration of, 13, 25 sale or purchase to or from principal, 16, 45 servant, 2, 8 special, 7 sub-agents, 7, 36, 51 universal, 8 where not compelled to account for profit, 11, 17 who buys or sells from or to principal not entitled to com- mission, 16 who does not receive remunera- tion, 5, 39 writing orally or implied, ap- pointed by, 3 Amendment of Act of 1906 (see Prevention of Corruption Amendment Bill), 82, 108 American laws against bribery, 133, 136 Apparent authority, 3, 4 Appeal, 88 et seq. Appointment of Agent, form of, 2 Attorney, power of, 3 Auctioneer, 8, 35 Authority — express, 3 implied, 3 oral, 3 source of, 2 Avoidance of Contracts, 19, 22, 44 Bail, 84, 86 Banker, 8 Bill of Costs, 9, 33 Blackmail, publisher, 93 Books of Account, 6, 9 Bribery, Acts of — Automatic machine manufacturer, 97 Bribery, Acts of — (contd.) Architect, 97, 1 111 Blouse manufacturer, 93 Boarding-houses keeper, 116 Boiler setters, 91 Bookmaker, 95, 96, 97 Boot manufacturer, 92 Bootmaker, 98, 1 112 Brewer, 97\ 98, 1 112 Brickmaker, 98 1 Building society officials, 120 Builder, 96, 98 1 Butcher, 92, 116 Carman, 93 Chauffeur, 115 Chemical Manufacturers, 91 Chemical works, 91 Clean Towel Co., 91 Clerks in public offices, 118 Cloth merchant, 94 Coal dealer, 97 l Coal merchant, 94, 97, » 98, 1 1 14 Commercial traveller, 91, 92, 93 Constable, 95, 96, 120 Council inspectors, 96 Council officials, 98 1 Couriers, 112 Custom and Inland Revenue officers, 118, 119 Dairyman, 116 Election officers, 118 Engineers, 111, 112, 113 Farmers, 93 General dealer, 92 General merchant, 94 Golf ball manufacturers, 98 1 Gramaphone manufacturers, 92 Greengrocer, 96 Grocer, 95, 96 Guardians, Board of, 96 Gun manufacturer, 93 Hay and straw dealer, 93 Hotel proprietor, 98 1 Hotel valuer, 94 Inspectors, 96 Judges, 117 Judicial officers, 117 Jurymen, 118 Laundry proprietor, 1 16 Lithographers, 97 1 Local authority, 112, 120 Magistrates, 118 Medical men, 95 Metal broker, 92, 95 Ministers of Crown, 117 Motor-car dealer, 98, 1 115 Motor spirit dealer, 93 Musical instrument makers, 45 1 No conviction. INDEX 169 Bribery, Acts of — (contd.) Nurseryman, 98 1 Outfitter, 35, 95 Pickfords, 94 Police, 95, 96 Poor Law officers, 96 Poor Law guardians, 96 Printers, 92, 112 Privy councillors, 1 17 Property owner, 96, 112 Provision dealer, 96 Publicans, 120 Public officers, 96, 117, 118, 119 Publisher, 93 Schoolmaster, 1 1 1 Shipping officers, 113, 121 Soap manufacturers, 93 Soldiers and sailors, 96, 112, 120 Solicitor, 94 Tailors, 1 15 Tile works, 93, 98 1 Town councillors, 132 Undertakers, 1 14 Warehousemen, 94 Wood dealer, 93 Bribery — growth of, 57 penalties for, 68, 71, 100, 134 what is, 1 10 et seq. Bribes — agent must account for, 18 burden of proof as to disclosure, 21 due to inadequate remuneration, 101 effect of on agent's commission, 21 , 37, 38 effect of on mind of agent, 20, 47, 75 effects of, 19, 37, 43, 57 forms of, 57, 110 et seq. immaterial if no injury suffered, 34, 46, 76 immaterial whether object carried out, 75 intention of person who bribes, 75 77 interest on, 10, 34 reason for giving immaterial, 47 recovery of, 24, 42, 43, 45, 46, 49, 50, 52, 76 results of taking, 18 right of action for promised bribes, 47 synonymous with secret com- missions, 18 universal practice no excuse, 32 want of supervision, 102 Broker — binds both parties, 8 definition of, 8 may not make secret profits, 29 use of commissions, 29 Building Societies, bribery of officials, 120, 121 Burden of Proof {see Proof, burden of), 21, 41, 44 Capacity of Agent, 2 Certiorari, Writ of, 53 Christmas Boxes, 103 Civil Remedies (see Remedies), 42 Clerks in public offices, bribery of (see Bribes), 118 Client (see Solicitor), 25 Colonial Statutes, 139 et seq. Commission Agent (see Agent), 8 Commissions — from both parties, 34 usual, 29, 32 Common Law, as to bribes, 53 Company, effect of bribes on, 37 Conduct (see Estoppel), 4 Consideration, definition of, 71, 79 Constitution of Relation of Agency, 2 Contracts — avoidance of, 12, 19, 22, 44 effect of bribes on, 12, 19, 20, 48 Contractor, definition of, 2 Contracts and bribery (see Acts of Bribery) Convictions, 91 et seq. Conviction (see Summary Conviction) Co-Partners, 8 Corporation, appointment of agents of, 3 Corruption — acts of, 73 characteristics of, 76 Corrupt transactions, 59, 73, 76 Corruptly — definition of, 65, 73 judicial observations on the word, 74 Corrupt practices at elections, 122 Cost fan tutte, 57 Criminal Remedies (see Remedies), 42 Criminal prosecutions at Common Law, 53 Crown, Ministers of, 117 Custom House Officers, bribery of (see Bribes), 118, 119 Custom of Trade (see Trade), 6, 7, 30, 32, 39 Custom, Plea of, 29, 30, 32 1 No conviction. 170 INDEX Damage, measure of is amount of bribes, 49 Damage to employer not material, 46 Definition of terms — agency, 1 agent, 1, 71, 80 attorney, power of, 3 consideration, 71, 79 contractor, 2 corruptly, 65, 73 express agency, 3 implied agency, 3 power of attorney, 3 principal, 1, 71 secret commission, 18 servant, 2 Defective Statement, 76 Del Credere Agent, 8 Delegation by agent (see Agent), 7 Delegatus non potest delegare, 7 Directors liable to refund secret profits with interest, 27 may not charge for professional services without full disclosure, 28, 33 may not take benefit of contract, 28, 29 must account for secret profits, 26 Disclosure, 21, 30, 31, 40 Discounts, 35, 36, 37, 39 Discretion of Agent (see Delegation), 7 Disfavour, 73 Dismissal of Agents (see Agents), 18, 42,43 Documents, misleading, 67, 70, 76 Duties of Agent, 5 Election Court, 124 Elections — bribery at Municipal elections, 123 bribery at Parliamentary elections, 122 Employees, 2 Employer, 2 Estoppel, 3, 4 Excess price (see Recovery), 45 Express agency, 3 Ex turpi causd non oritur actio, 46 Factor, 8 False, 78 Falsification of accounts (see Fraud), 10 Fiat, 68, 71, 80, 82, 84 Firm's profits (s^Partnership), 11 Following Secret Profits (see Profits), 22 Forbearance, 67, 73 Fraud and bribes (see Acts of Bribery) Fraud — agent's, principal liable for, 1 agent's, 15 falsification of accounts, 10 surreptitious dealing, 5, 15 Fraud, ground for charging interest, 10, 34 Fry, Sir Edward, 57, 60, 64, 80, 99, 104 Future Company (see Promotors), 29 General Agent, 7 German law, 64, 133 Gift, 106 Gratuities (see also Tips), 106, 107 Gratuitous Agent, 5, 39 Holding out, 4, 22 Husband and Wife — agency of wife, 3, 8 pledging credit by wife, 8 Implied Agency, 3 Indemnity of Agent, 5 Independent Contractor (see Con- tractor), 2 Indictment, vexatious, 82 Inducement, 67, 73 Infant, 2 Information, 84 Instructions, 5 Insurance broker (see Broker), 8 Interest, agent liable for, 10, 34 Interpretation of terms, 71 Ireland, 68, 71, 80 Judges, corruption of, 117 Judgment of Agent (see Delegation), 7 Judicial corruption, 117 Jurisdiction (see Summary Juris- diction) Jurymen, bribery of, 1 18 Kennedy, L.J. at Gloucester Diocesan Conference, 100 Knowledge of bribes, 76, 77 Laches of Principal prevent recovery, 44 Leases, agents appointed to make, 3 Leonard, R. M., 57 Liability of agent, 5, 10 Lien, 5 Limitation (see Statute of), 51 INDEX 171 Limitation of time (see Time), 86, 89 Litera scripta mancet, 3 London Chamber of Commerce, report of committee of, 61 et seq. Loss, due to bribe, recovery of, 46 Magistrates, bribery of, 118 Magistrates (see Summary Juris- diction), 85, 88 Manx statute, 154 Market Customs (see Trade Customs), 6, 7, 30, 32 Market price, 42, 45 Married Women (see Husband and Wife), 8 Master of ship, 8 Measure of Damages (see Damages) , 49 Misleading document, 76 Mixing property (see Property), 9 Money paid, recovery of where agent bribed, 49 Municipal Council, 132 Neglect to account (see Account), 10 Nudum pactum, 5 Oath, information on, 84 Officials, 96, 117, 118, 119 Officials Public (see Public Officials), 96, 117, 118, 119 Oral Evidence (see Evidence) Parliament, briber incapable of sitting in, 124 Partner cannot supply own goods to firm, 17 Partnership — agency, 8 profits, 1 1 Pay, agent must be ready to, 10 Plea of Custom (see Custom), 30, 32 Police, attempts to bribe, 95, 96 Poplar Guardians, 131 Power of Attorney (see Attorney), 3 Prevention of Corruption Act, 1906 — aims of, 99 analysis of, 69 definition of agent, 1, 79 expenses of prosecution, 72, 87 notes on the Act, 73 objects of, 66 penalties under, 71 prosecutions under, 68, 71, 80, result of, 99 [100 text of, 67 Prevention of Corruption Amend- ment Bill, 82, 108 Price, evidence of increased price not necessary, 45 Principal — acquiescence of, 38 cannot follow profits, 50 capability of, 2 definition of, 1 immaterial whether he loses by act of agent, 14, 18, 34, 46, 47 liable for fraud, 1 may claim profit, 18 may get back property, 42 may rescind or repudiate con- tract, 19, 22, 42 may ratify though he gave no authority, 4 may recover loss due to bribe, 46 non-payment by, effect of, 5, 39 privity of contract with sub- agent, 17, 36, 51 recovery of bribes, 18, 42, 49 remedies of, 18, 22, 42, 46, 49 when cannot recover commission, 17, 50 Privity of Contract between principal and sub-agent, 7, 36, 51 Privy Councillors, bribery of, 117 Procedure, 80, 85 Professions, bribery — Hotel valuer, 94 Medical men, 95 Solicitor, 94 Profits- secret, 7, 24 directors must account for, 26 disclosure of, 21, 30, 31 estimation of, 30 following secret profits, 22 fraud not essential, 24 must be accounted for, 24 principal cannot follow, 50 receiver of may be declared trustee, 51 secret, recovery of, 22, 24, 49, 50 sub-agent must account for, 51 when need not be accounted for, 17 Promoters, 29 Proof, burden of, 21, 41, 44 Property, confounding principal's property with agent's, 9 Prosecutions under Act of 1906, 71 et seq. expenses of, 81, 87 fiat to be first obtained, 80 offences, 87 Prosecutions at Common Law, 54 172 INDEX Proxy, 3 Public body — bribery in elections of, 117, 128 meaning of, 130 Public Bodies Corrupt Practices Act, 1889, 59 Public Officials, bribery of (see Bribes), 96, 117, 118, 119 Public opinion as to bribery, growth of, 58 Quarter Sessions, 72, 87 Qui facit per alium facit per se, 1 Ratification (see Agency, ratifica- tion of), 4 Receipt, 67, 70, 76 Recovery of excess price, 45 Remedies of Principal, 42, 53 Remuneration, 101 Results of taking bribes, 18 Rights. 5 Rules of particular markets (see Trade Custom), 6, 7, 30, 32 Russell, Lord of Killowen, 61, 64, 81 Sale, vitiated by bribe, 18 Scotland, application of Act to, 72, 89 Seamen, bribes for providing em- ployment for, 121 Secrets (see Trade Secrets), 91 Secret Commissions (see also Bribes) — agent must prove agreement to accept, 14 definition of, 18 must be accounted for, 24, 73 recovery of, 18, 42, 43 Secret Commissions and Bribery Protection League, 101 Secret Profits (see Profits), 22 Servant (see Agent) — definition of, 2 Service, cases of bribery, 96 Severable transaction, 37 Shareholders must approve of directors retaining payments, 27 Sharing commission negativing hold- ing out, 22 Ship masters, 8 Skill, 5 Soldiers, bribery of, 96 Solicitor, 25, 33 South African bill, 164 Special case, 88 Sporting cases bribes, 97 Statutes cited (see Table of Statutes) Statute of Limitations, effect of, 51 Sub-agent, 7, 36, 51 Summary Conviction, 67, 71, 77, 88 Summary Jurisdiction Act, 1879, 85, 88 Surreptitious dealing, (see Fraud), 5, 15 Third Parties, Existence of Essential, 2 Time, limitation of, 86, 89 Tips — prosecution for receiving, 107 recovery of, 107 when lawful, 106 when unlawful, 107 Trade Discount (see Discount), 35 Trade Secrets — Boiler setters, 91 Chemical manufacturers, 91 Commercial traveller, 91 Tailor, 92 Textile printers, 91 Towel company, 91 Trade, usage or custom of, 6, 7, 30, 32 Transport bribes — Cloth merchant, 94 Coal merchant, 94 Warehouseman, 94 Treating, 58 Trustees, 17, 26, 43, 51 Unauthorised mixture of property (see Property), 9 Universal practice, 32 Usage of Trade (see Trade), 6, 7, 30, 32 Usual Commissions, 29, 32 Vexatious Indictments Act, 1859, 82 Votes struck off for bribery, 12^ Vouchers (see Accounts), 9 Wallasey Town Council case, 132 West Ham Guardians case, 131 Wife (see Husband and Wife), 8 Writing, 3 Xmas boxes, 103 Printed by Sir Isaac Pitman & Sons, Ltd., Bath (1520) rci Pitman's Business Handbooks A Series of Practical Guides for Business Men and Advanced Students CONTENTS 16 10 9 6 7 PAGE ADVERTISING AS A BUSINESS FORCE 15 ADS AND SALES . ACCOUNTS OF EXECUTORS ACCOUNTANCY .... AUDITING, ACCOUNTING, AND BANK ING .... BALANCE SHEETS BANK ORGANISATION, MANAGEMENT AND ACCOUNTS . . .5 BANKRUPTCY AND BILLS OF SALE 10 BILLS, CHEQUES, AND NOTES . 7 BOOK-KEEPING, COMPLETE . . 9 BOOK-KEEPING AND ACCOUNTS, HIGHER . . . . .9 BOOK-KEEPING, DICTIONARY OF . 9 BUSINESS MAN'S GUIDE . . 3 CARRIAGE, LAW OF . .12 CHAIRMAN'S MANUAL . . .4 " COLE " CODE DICTIONARY . . 16 COLLIERY OFFICE ORGANISATION . 6 COMPANY ACCOUNTS . . .9 COMMERCIAL ENCYCLOPEDIA . 2 COMPANIES AND COMPANY LAW . 12 CONSULAR REQUIREMENTS . .15 COST ACCOUNTS . . .9 COUNTING HOUSE AND FACTORY ORGANISATION . . . .4 DICTIONARY, ENGLISH-FRENCH . 14 DICTIONARY, ENGLISH-GERMAN . 14 DICTIONARY OF BANKING . . 6 DICTIONARY OF COMMERCIAL COR- RESPONDENCE . . .14 DICTIONARY, PORTUGUESE AND ENGLISH . . . .13 DICTIONARY (ABRIDGED), POR- TUGUESE AND ENGLISH . .14 DICTIONARY OF SECRETARIAL LAW 8 DICiloNARY OF THE WORLD'S COM- MERCIAL PRODUCTS . . .13 DRAPERY BUSINESS ORGANISATION 5 ECONOMICS FOR BUSINESS MEN . 16 FARM ACCOUNTS . . .10 FARM LAW . . . .12 GROCERY BUSINESS ORGANISATION 5 GOLD MINE ACCOUNTS . . .10 GUIDE FOR THE COMPANY SECRETARY 7 GUIDE TO BUSINESS CUSTOMS HANDBOOK OF LOCAL GOVERNMENT LAW HOUSEHOLD LAW HOW TO TAKE MINUTES INCOME TAX LAW INSURANCE INSURANCE OFFICE ORGANISATION, ETC. ..... LAW RELATING TO SECRET COM- MISSIONS, ETC. LAW OF EVIDENCE LAW OF REPAIRS .... LICENSING, GUIDE TO THE LAW OF LECTURES ON BRITISH COMMERCE LOCAL GOVERNMENT CASE LAW MARINE LAW .... MECHANICAL TRACTION, LAW OF MERCANTILE LAW MONEY, EXCHANGE, AND BANKING OFFICE ORGANISATION OUTLINES OF THE ECONOMIC HISTORY OF ENGLAND .... PERSONAL ACCOUNTS PRINCIPLES OF PRACTICAL PUBLICITY PRACTICAL BANKING PRACTICAL SALESMANSHIP PROSPECTUSES .... PUBLIC MAN'S GUIDE . PSYCHOLOGY OF ADVERTISING RAILWAY REBATES CASE LAW SECRETARY'S HANDBOOK SHIPPING OFFICE ORGANISATION, ETC. SOLICITOR'S OFFICE ORGANISATION, ETC. ..... STOCK EXCHANGE STOCK-BROKER'S OFFICE ORGANI- SATION ..... SYSTEMATIC INDEXING TRAMWAY RATING VALUATIONS TRANSFER OF STOCKS AND SHARES THEORY AND PRACTICE OF ADVER- TISING ..... THEORY AND PRACTICE OF COM- MERCE ..... WORLD'S COMMERCIAL PRODUCTS . PAGE . 13 11 12 8 12 4 12 13 13 1 1 3 11 11 10 11 6 4 16 10 15 7 15 8 3 15 11 7 5 5 10 6 16 16 8 15 13 13 LONDON SIR ISAAC PITMAN & SONS, LTD., i AMEN CORNER, E.C. BATH AND NEW YORK O 6 PITMAN'S BUSINESS HANDBOOKS PITMAN'S COMMERCIAL ENCYCLOPEDIA AND DICTIONARY OF BUSINESS. A reliable and comprehensive work of refer- ence on all commercial subjects, specially designed and written for the busy merchant, the commercial student, and the modern man of affairs. Edited by J. A. Slater, B.A., LL.B. (Lond.). Of the Middle Temple and North- Eastern Circuit, Barrister-at- Law. Author of " Mercantile Law," "Commercial Law," etc., etc. Assisted by upwards of 50 specialists as contributors, including : W. Valentine Ball, M.A. ; James 0. Cheetham, B.Com. ; Sidney W. Clarke ; Arthur Coles, A.C.I.S. ; A. C. Connell, LL.B. (Lond.) ; EmilDavies; Frank Dowler; J.Alfred Eke ; J. B. Eland ; R. A. Fletcher ; A. J. Lawford Jones ; G. H. Knott, M.A. ; Samuel Moses, M.A. ; W. Nicklin, A.S. A. A. ; E. 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" The compilation is most carefully done, and it is safe to say that no man who is interested in business affairs can afford to be without this work."— The Review of Reviews. " The magnificent and most useful Commercial Encyclopedia .... the business man will have an authoritative guide to practically every question that concerns his enterprise ; while for the encouragement and training of his office and warehouse staffs the work can be highly recommended." — The Commercial Review. PITMAN'S BUSINESS HANDBOOKS PITMAN'S BUSINESS MAN'S GUIDE. Fifth Revised Edition. With French, German, and Spanish equivalents for the Com- mercial Words and Terms. Edited by J. A. Slater, B.A., LL.B. (Lond.), of the Middle Temple, Barrister-at-Law, and author of " The Commercial Law of England." The " Business Man's Guide " is a volume of handy size, designed to be of permanent usefulness in the office of the merchant, the banker, the broker, and the trader, and to all members of the staff from the manager, secretary, or cashier, to clerks of all kinds. The information is of such a character as will assist a business man in an emergency, and will clear up doubts and difficulties of every-day occurrence. The work includes over 2,000 articles. In crown 8vo, in cloth cover of special design, 497 pp. 3s. 6d. net. " An admirable specimen of the new type of business instruction book. In nearly 500 closely printed pages, with subjects arranged alphabetically, it packs away a great amount of information of the kind frequently required and not easily obtained by business men of many kinds. The fulness of the technical phraseology, with foreign equivalents, is one of the best features of the book. One may search any ordinary dictionary in vain for explanations of such phrases as ' bottomry bond,' ' hypothec,' ' quintal,' or ' fittage.' The summarised information of trade customs, of foreign practice, and of commercial law, is given with great lucidity. Altogether it is a book that can be heartily recommended." — Daily Mail. PITMAN'S PUBLIC MAN'S GUIDE. A Handbook for all who take an interest in questions of the day. Edited by J. A. Slater, B.A., LL.B. (Lond.). The object of this book is to enable its readers to find within a comparatively compact compass informa- tion on any subject which can possibly bear upon matters political, diplomatic, municipal, or imperial. In crown 8vo, 444 pp., cloth gilt, 3s. 6d. net. " Comprehensive and concise are the two adjectives which best describe the ' Public Man's Guide,' to which might be added indispensable." — Westminster Gazette. " Such a volume as this, giving a great mass of carefully selected and condensed information on a wide range of subjects, is exactly what is needed. The volume is, in fact, a miniature encyclopaedia, not for the student, but for most general readers — one might say for ' the man in the street.' " — Glasgow Evening News. LECTURES ON BRITISH COMMERCE, including Finance, Insurance, Business and Industry. By the Rt. Hon. Frederick Huth Jackson, G. Armitage-Smith, M.A., D.Litt., Robert Bruce, C.B., Douglas Owen, W. E. Barling, J. J. Bisgood, B.A., Allan Greenwell, F.G.S., James Graham. With a Preface by the Hon. W. Pember Reeves. In demy 8vo, cloth gilt, 295 pp., 7s. 6d. net. Contents. — -The Bank of England — The British System of Taxation — The London Postal Service — London as a Port — The Machinery of Marine Insurance — British Shipping — Fire Assurance, Life Assurance — Industrial Life Assurance, Personal Accident and Sickness Insurance, Workmen's Compensation Assurance, Motor-Car Insurance, Burglary Assurance, etc.— The Economic Position of the Coal Industry of the United Kingdom — The Woollen Industry. PITMAN'S BUSINESS HANDBOOKS THE CHAIRMAN'S MANUAL. Being a guide to the manage- ment of meetings in general, and of meetings of local authorities, with separate and complete treatment of the meetings of public companies. By Gurdon Palin, of Gray's Inn, Barrister-at- Law, and Ernest Martin, F.C.I. S. In crown 8vo, cloth gilt, 192 pp., 2s. 6d. net. " We only wish that it were a sine qua non that no chairman should be allowed to occupy thai position unless he could show that he had carefully perused this little book. We strongly urge all our readers to obtain a copy." — Accountant's Journal. INSURANCE. A Practical Exposition for the Student and Business Man. By T. E. Young, B.A., F.R.A.S., ex-President of the Institute of Actuaries. Second Edition, Revised. In demy 8vo, cloth gilt, 408 pp. 5s. net. " It is enough to say of the second edition of this well-known work that it retains all the valuable features of the first edition, and includes additional information of an important character. In particular the chapters upon fire, marine, and accident insurance have, on the invitation of Mr. Young, had the advantage of revision and approval by several well-known experts in these departments. We can cordially commend this work to all students of insurance." — Local Government Journal. INSURANCE OFFICE ORGANISATION, MANAGEMENT, AND ACCOUNTS. By T. E. Young, B.A., F.R.A.S., and Richard Masters, A.C.A. Second Edition, Revised. In demy 8vo, cloth gilt, 150 pp., 3s. 6d. net. " The need of a suitable text-book, dealing in a clear and comprehensive manner with the various aspects of life assurance both from the theoretical and the practical standpoint, has probably been felt by every student of this great branch of finance. A text -book admirably adapted to supply this want has now been prepared by Mr. T. E. Young. His long and varied experience as a practical manager and actuary, and his intimate associations for years with actuarial students have rendered him eminently qualified for undertaking such a work." — The Insurance and Finance Chronicle. OFFICE ORGANISATION AND MANAGEMENT. Including Secretarial Work. By Lawrence R. Dicksee, M.Com., F.C.A., and H. E. Blain, Tramways Manager, County Borough of West Ham. In demy 8vo, cloth gilt, 306 pp., 5s. net. " We have scarcely ever seen an office manual so complete and reliable as this one. The chapters on office management are compact with useful information, the ripe fruit of experience." — Manchester City Xews. " An enormous amount of useful information is comprised in the 300 pages of which the work consists." — Accountant. COUNTING HOUSE AND FACTORY ORGANISATION. A Practical Manual of Modern Methods applied to the Counting House and Factory. By J. Gilmour Williamson, Holder of Business Diploma of the Heriot-Watt College, Edinburgh, etc. In demy 8vo, cloth gilt, 182 pp., 5s. net. " The volume deals exhaustively with the subject from all aspects, in some seven- teen chapters, an 1 discusses the work of the various departments of a business house from a practical standpoint. Theories are rightly eschewed. The work will undoubt- edly receive a welcome from manufacturers who are aiming at efficiency, and who are anxious to inaugurate system or reorganise on reliable and tried lines, and there are doubtless not a few who are on the look out for a comprehensive volume containing practical hints." — Hardwar ■ Trade Journal. PITMAN'S BUSINESS HANDBOOKS SHIPPING OFFICE ORGANISATION, MANAGEMENT, AND ACCOUNTS. A comprehensive Guide to the innumerable details connected with the Shipping Trade. By Alfred Calvert. In demy 8vo, cloth gilt, 203 pp., with numerous forms, 5s. net. "This is the most practical handbook on the subject that we have seen. Jt is in the presentation line by line, in any part of the book, of the subject-matter treated, that the author shows his complete and intimate knowledge of the practice of the shipping trade. There is nothing dead or too theoretic about Mr. Calvert's book, and his method of explanation is eminently clear and forcible. We can confidently recommend the work. The book fully answers and makes good its title." — Manchester Guardian. SOLICITOR'S OFFICE ORGANISATION, MANAGEMENT, AND ACCOUNTS. By E. A. Cope and H. W. H. Robins. In demy 8vo, cloth gilt, with numerous forms, 5s. net. " The volume is rendered complete by the publication of numerous forms and diagrams, and the authors are to be congratulated on the thoroughness with which they have performed their task. We have no doubt whatever that the book will be extremely useful to the parties for whom it is intended." — Birmingham Chamber of Commerce Journal. GROCERY BUSINESS ORGANISATION AND MANAGEMENT. By C. L. T. Beeching, Organising Secretary of the Institute of Certificated Grocers. With Chapters on Buying a Business, Grocers' Office Work and Book-keeping, and a Model set of Grocers' Accounts. By J. Arthur Smart. In demy 8vo, cloth gilt, about 160 pp., with illustrations, 5s. net. " The authors can speak with authority of the things of which they write, and they give us of their best. The book has twenty chapters, the topics of which extend from ' buying a business ' to ' trading results.' Mr. Smart deals fully with the grocer's office work and book-keeping, and gives an admirable set of grocer's accounts . . . the work is well done throughout ... it will be read with profit and pleasure." — Grocer. DRAPERY BUSINESS ORGANISATION AND MANAGEMENT. By J. Ernest Bayley. In demy 8vo, cloth gilt, 300 pp., 5s. net. " The author has evidently spared no pains to make his work interesting, and in this be has so well succeeded that it can be read with advantage by both beginners and experts in the dry goods trade." — Financial Timet,. BANK ORGANISATION, MANAGEMENT. AND ACCOUNTS. By J. F. Davis, D.Lit., M.A., LL.B. (Lond.). Lecturer in Banking and Finance at the City of London College. In demy 8vo, cloth gilt, with forms, 5s. net. " It is concisely and clearly written, and the many examples of rulings of books and specimens of vouchers and forms in use form admirable illustrations to the text. The work should fulfil a useful purpose in providing the general survey of banking which has hitherto been lacking." — Financial Times. 6 PITMAN'S BUSINESS HANDBOOKS STOCKBROKER'S OFFICE ORGANISATION, MANAGEMENT AND ACCOUNTS. By Julius E. Day, Manager to an Inside Firm of Stockbrokers on the London Stock Exchange. In demy 8vo, cloth gilt, 243 pp., 7s. 6d. net. " Without doubt there is a distinct need for this book, for it deals lucidly with many puzzling points of interest to the investor . . . The author is to be con- gratulated upon his achievement in grappling so successfully with a difficult task, for the book will prove an asset of considerable value to the beginner, and a work of undeniable interest to ' The rr>aninThrogmortonStreet.' " — Joint Stock Companies' Journal. COLLIERY OFFICE ORGANISATION AND ACCOUNTS. By J. W. Innes, F.C.A. (Swithinbank Innes & Co., Chartered Accountants), and T. Colin Campbell, F.C.I., for many years Managing Clerk to a large Colliery Company, and now a principal Book-keeper at one of the largest Collieries in England. In demy 8vo, cloth gilt. 5s. net. This book is intended to be a Guide not only to Officials in a Colliery Office, but to students and others who take interest in our Coal Trade. It sets forth the main lines upon which the organisation of work in a Colliery Office should be laid down, and traces the financial history of a ton of Coal from Mother Earth to the consumer. The treatise is divided into three parts, the first dealing with the different channels through which the sales are effected. Part II deals with the Costs. Part III treats of the Trading or Revenue Account and of the Balance Sheet. The book has been compiled for practical use by practical men, and is the result of long years of experience. It is fully illustrated by diagrams. MONEY, EXCHANGE, AND BANKING, in their Practical, Theoretical, and Legal Aspects. A complete Manual for Bank Officials, Business Men, and Students of Commerce. By H. T. Easton, of the Union of London and Smith's Bank, Ltd., Associate of the Institute of Bankers. Second Edition, Revised. In demy 8vo, cloth gilt, 312 pp., 5s. net. " Mr. Easton's book can be commended to every one desiring guidance and instruc- tion in the mysteries of money and exchange, and the theory and practice of banking." — Truth. DICTIONARY OF BANKING. A Complete Encyclopaedia of Banking Law and Practice. By W. Thomson, Bank Inspector. In crown 4to, half-leather gilt, 563 pp., 21s. net. " Mr. Thomson has written a book which has been wanted for a long time and he has written it well . . . covers the whole ground of banking law and practice."' — Journal of the Institute of Bankers. " Since the publication some years ago of Sir lnglis Palgrave's famous ' Dictionary of Political Economy ' we have been favoured with no work of reference so useful to bankers as the one which has just been compiled by Mr. Thomson. Mr. Thomson has succeeded in his object of compiling a work which shall be of use both to the banking student and to the practical banker who requires information in a hurry." — Bankers' Magazine. AUDITING, ACCOUNTING AND BANKING. By Frank Dowler, A.C.A., and E. Mardinor Harris, Associate of the Institute of Bankers. In demy 8vo, cloth gilt, 5s. net. This work is a practical guide for the evergrowing host of students of Book-keeping, Accounting and Banking, and it should also prove of great utility to practising accoun- tants and business men generally. It covers the syllabus of the Royal Society of Arts in Accounting and Banking, and gives considerable attention to the subject of Auditing. PITMAN'S BUSINESS HANDBOOKS PRACTICAL BANKING. Including Currency. A Guide to Modern Banking Practice and the Principles of Currency. By J. F. G. Bagshaw, Associate of the Institute of Bankers, and C. F. Hannaford, Associate of the Institute of Bankers, Examiner in Banking and Currency to the London Chamber of Commerce. In demy 8vo, cloth gilt, 320 pp. 5s. net. This work is specially addressed to students of banking, to those engaged in com- mercial work in which a knowledge of Banking is necessary, and to bank officials, especially those in the early years of their careers. The Authors have had varied practical Banking experience, and they have successfully dealt with the subjects in a clear and simple manner, and have combined clearness of definition with com- prehensiveness of matter. The book will be found extremely useful to candidates preparing for the Examinations of the Institute of Bankers, the London Chamber of Commerce, etc. PITMAN'S BILLS, CHEQUES, AND NOTES. A Handbook for Business Men and Lawyers. Together with the Bills of Exchange Act, 1882, and the Bills of Exchange (Crossed Cheques) Act, 1906. By J. A. Slater, B.A. LL.B. (Lond.), Barrister-at-Law. In demy 8vo, cloth gilt, 206 pp., 2s. 6d. net. PITMAN'S GUIDE FOR THE COMPANY SECRETARY. A Practical Manual and Work of Reference with regard to the Duties of a Secretary to a Joint Stock Company. By Arthur Coles, A.C.I. S. With Introduction by Herbert E. Blain. In demy 8vo, cloth gilt, 344 pp., with 54 facsimile forms, 5s. net. "The title is sufficiently explanatory of the contents, but the book constitutes a manual for reference by secretaries of joint stock companies. The work seems to include every branch of secretarial duty, and to be excellently well done."— Money Market Review. COMPANY ACCOUNTS. By the same Author. (See page 9.) THE COMPANY SECRETARY'S VADE MECUM. A Manual of information on matters relating to Limited Liability Com- panies, for Directors, Secretaries, etc. In fcokcap 8vo, cloth, Is. 6d. net. PITMAN'S SECRETARY'S HANDBOOK. A Practical Guide to theWork and Duties in connection with the Positionof Secretary to a Member of Parliament, a Country Gentleman with a landed estate, a Charitable Institution, with a section devoted to the work of a Lady Secretary and a chapter dealing with Secretarial work in general. Edited by H. E. Blain. In demy 8vo, cloth gilt, 168 pp., 3s. 6d. net. BALANCE SHEETS. How to Read and Understand Them. A Complete Guide for Investors, Business Men, Commercial Students, etc. By Philip Tovey, F.C.I.S. With 26 inset balance sheets. In foolscap 8vo, cloth, Is. net. 8 PITMAN'S BUSINESS HANDBOOKS PROSPECTUSES : HOW TO READ AND UNDERSTAND THEM. By the same Author. In demy 8vo, cloth gilt, Is. 6d. net. PITMAN'S DICTIONARY OF SECRETARIAL LAW AND PRACTICE. A Comprehensive Encyclopaedia of Information and Direction on all matters connected with the work of a Company Sacretary. Fully illustrated with the necessary forms and documents. With Sections on special branches of Secretarial Work. Edited by Philip Tovey, F.C.I. S. With contributions by nearly 40 eminent authorities on Company Law and Secretarial Practice, including : G. N. Barnes, M.P. ; F. Gore-Browne, K.C., M.A. ; A. Crew, F.C.I.S. ; J. P. Earnshaw, F.C.I.S. ; M. Webster Jenkinson, F.C.A. ; F. W. Pixley, F.C.A. In one handsome volume, half leather gilt, gilt top, 774 pp., 25s. net. This work makes a verv wide appeal. It explains in detail the duties and liabilities of a Secretary from the inception of a Company until the completion of its winding up, should such a course be necessary. Each stage in the history of a Limited Company, whether it be private or public, is fully dealt with ; every important decision in Companv Law has been embodied in the text ; and for the benefit of the close student a synopsis of the leading cases is given in a large number of instances. Promoters and Directors will find in the pages of this work much valuable and interesting information. Careful and accurate expositions of their legal position are given, and their duties and liabilities are fully defined. Accountants, Financiers, Shareholders, Managers, and Students of Commerce, and, indeed, all who are directly or indirectly interested in Limited Companies, may consult the Dictionary with confidence on all matters appertaining to Company Law and Administration. Other important branches of the profession have not been overlooked; and adequate treatment has been given to the duties and responsibilities of Private Secretaries, Lady Secretaries, Secretaries to Trade Unions, and other organisations. THE TRANSFER OF STOCKS, SHARES, AND OTHER MARKETABLE SECURITIES. A manual of the law and practice By F. D. Head, B.A. (Oxon). Late Classical Exhibitioner of Queen s College, of Lincoln's Inn, Barrister-at-Law . Second edition, revised and enlarged. In demy 8vo, cloth gilt, 220 pp., 5s. net. " The practising secretary is to be congratulated on the addition to his working library of this excellent text-book on one of the most complicated and difficult sub- jects with which he has to deal. Admirable alike in design and execution, this exposi- tion of the law and the practice relating to the transfer of securities in joint stock companies is a complete and reliable handbook on transfers, to which the secretary may turn with confidence in the expectation of finding all the difficulties of the subject dealt with, and not slurred over in the far too usual manner." — The Secretary. HOW TO TAKE MINUTES. Being a Reliable Guide to the best method of noting and recording the Minutes of a Business Meeting. With Table A of the Companies (Consolidation) Act, 1908. In demy 8vo, cloth, 80 pp., Is. 6d. net. " The author has endeavoured to place the reader in possession of information which will enable him to take and record minutes in a methodical and businesslike manner." — Joint Stock Companies' Journal. PITMAN'S BUSINESS HANDBOOKS PITMAN'S COMPLETE BOOK-KEEPING. A thoroughly com- prehensive text-book, dealing with all departments of the subject, and embracing practically every kind of account. With about 20 facsimiles of Company Forms, etc. Enlarged Edition. In crown 8vo, cloth gilt, 424 pp., 3s. 6d. PITMAN'S HIGHER BOOK-KEEPING AND ACCOUNTS. Com- plete with Answers to all the exercises. By H. VV. Porritt and W. Nicklin, A.S.A.A. In crown 8vo, cloth, 304 pp.. with many up-to-date forms, and facsimile documents, 2s. 6d. PITMAN'S DICTIONARY OF BOOK-KEEPING. An entirely new and unique work for teachers, students and practitioners providing in dictionary form information and guidance upon any point in Book-keeping and Accountancy. By R. J. Porters, Book-keeping Master at Pitman's School. In demy 8vo, cloth gilt, with many facsimiles, 780 pp., 5s. Let. ACCOUNTANCY. By F. W. Pixley, F.C.A., of the Middle Temple, Barrister-at-Law, Ex-President of the Institute of Chartered Accountants. In demy 8vo, cloth gilt, 318 pp., 5s. net. " The work constitutes a very successful attempt to treat accountancy on a scientific basis. The author gives valuable advice on the construction of books and state- ments of account, and suggests rulings which are set out, not in column form, but in a series of lines indented and numbered. He divides accountancy into three branches — constructive, recording, and analytical — and deals with each of the three branches at considerable length. The work is of a practical nature, and should be of the greatest value and assistance to intending practitioners. A particularly valuable chapter is that on the construction of the balance sheet." — Money Market Review. " A careful practical treatise." — Times. COST ACCOUNTS in Principle and Practice. By A. Clifford Ridgway, A.C.A. In demy 8vo, cloth gilt, with 40 specially prepared forms, 3s. 6d. net. " This treatise deals exhaustively with its subject, and discusses the questions involved from the point of view both of principle and practice. Manufacturers especially should find it of great service." — Financial Times. COMPANY ACCOUNTS. By Arthur Coles, A.C.I.S. With a Preface by Charles Comins, A.C.A. In demy 8vo, cloth gilt, 300 pp., 5s. net. In this very comprehensive work the Author deals with the application of the principles of practical book-keeping to the requirements of industrial, retail, financial, and other companies. He takes the accounts of a company in the first stages of its existence, and discusses the purchase or other acquirement of the business, the appli- cation for and allotment of shares, calls, debentures, the Registers, transfers, adjust- ments of registers for dividends, etc., etc. Practical examples are given of the organi- sation of books of account for large or small companies, with examples of different classes of business. Cost and stores accounts as subsidiary to the general financial accounts, depreciation, reserve and sinking funds, goodwill, leaseholds, inter-audits, dividend lists, income tax assessment, liquidation accounts — " voluntary " and " compulsory "—etc., are all dealt with. The work will be invaluable alike to the practitioner and th? advanced student. 10 PITMAN'S BUSINESS HANDBOOKS GOLD MINE ACCOUNTS AND COSTING. A Practical Manual for Officials, Accountants, Book-keepers, etc. By G. W. Tait (of the South African staff of a leading group of mines). In demy 8vo, cloth gilt, 93 pp., 5s. net. " The author of this book has had many years' practical experience in account keeping on the mines in South Africa, and the method he sets out will be found of considerable use to those keeping accounts of mines of all classes and in all parts of the world." — Capitalist. THE ACCOUNTS OF EXECUTORS, ADMINISTRATORS AND TRUSTEES. With a Summary of the Law in so far as it relates to Accounts. By William B. Phillips, A.C.A. (Hons. Inter, and Final), A.C.I.S., formerly Lecturer on the subject to the Manchester Evening School of Commerce, and the Manchester Chartered Accountants' Students' Society. In demy 8vo, cloth gilt, 3s. 6d. net. PERSONAL ACCOUNTS. By W. G. Dowsley, B.A., Lecturer in Book-keeping on the Modern Side! St. Andrew's College, Grahamstown. Size 15|in. x 9|in., half-leather, 106 pp., with interleaved blotting-paper, 6s. 6d. net. FARM ACCOUNTS. By the same Author. Size 15£ in. by 9$ in., half leather, 106 pp., interleaved blotting-paper. 6s. 6d. net. THE HISTORY, LAW, AND PRACTICE OF THE STOCK EXCHANGE. By A. P. Poley, B.A., of the Inner Temple and Midland Circuit, Barrister-at-Law ; and F. H. Carruthers Gould, of the Stock Exchange. Second edition revised and brought up to date. In demy 8vo, cloth gilt, 348 pp. 5s. net. " It is possible to hail with something more than merely passing gratitude on our part, and we trust also on the part of members of the Stock Exchange, a new edition of a work which, on its first appearance, met with a reception commensurate with its merits . . . worth double the price the Publishers ask for it." — Financier. BANKRUPTCY AND BILLS OF SALE. An " A B C " of the Law. By W. Valentine Ball, M.A., of Lincoln's Inn, and the North Eastern Circuit, Barrister-at-Law. In demy 8vo, cloth gilt, 386 pp., 5s. net. Second edition, enlarged and brought up to date. " Mr. Ball has elucidated an abstruse subject so clearly that the non-expert may consult wit h understanding and profit, but he has also kept in view the special require- ments of chartered accountants. The 'ABC' arrangement is a novel feature, but a welcome one, in a work of this kind, for it permits of easy reference on a point without any break in the sequence of a closely reasoned work that embodies authoritative decisions on the many points involved." — Financier. THE LAW OF HEAVY AND LIGHT MECHANICAL TRACTION ON HIGHWAYS IN THE UNITED KINGDOM. By C. A. Montague Barlow, M.A., LL.D., M.P., and W. Joynson Hicks, M.P. In demy 8vo, cloth gilt, 318 pp., 8s. 6d. net. " An excellent book. The manner in which the subject is treated is quite admirable, and the various decisions dealing with the subject are well classified and rendered perfectly clear, as in fact are the entire contents of the book. Certainlv the best practical handbook that we have seen on the subject-" — Motor Traction. PITMAN'S BUSINESS HANDBOOKS 11 PITMAN'S MERCANTILE LAW. By J. A. Slater, B.A.,LL.B. A practical exposition for law students, business men, and advanced classes in commercial colleges and schools. Second Edition, Revised. In demy 8vo, cloth gilt, 448 pp., 5s. net. " We are not surprised that a second edition should have been called for. Business men will find it a book of reference which will provide them with the rules of law upon general subjects in a short and clear form, and the law student, too, will find it of considerable assistance." — Law Times. PITMAN'S HANDBOOK OF LOCAL GOVERNMENT LAW Specially designed for all engaged in the offices of Local Author- ities in England and Wales, and for Public Men. By J. Wells Thatcher. Of the Middle Temple, Barrister-at-Law. In crown 8vo, cloth gilt, 250 pp., 3s. 6d. net. LOCAL GOVERNMENT CASE LAW. By Randolph A. Glen, M.A., LL.B. (Cantab.), Barrister-at-Law, of the Middle Temple and Western Circuit . In three volumes. Vol. I (1910), 176 pp., demy 8vo, cloth gilt, 5s. net. Vol. II (1911), about 350 pp., demy 8vo, cloth gilt, 7s. 6d. net. Vol. Ill (1912), in demy 8vo, cloth gilt, 10s. net. In these three volumes over 1,200 cases (English, Scottish, and Irish), decided in 1910, 1911 and 1912, are collected for the use of Clerks to Local Authorities, Members of the Legal Profession, Justices of the Peace, local authorities and other municipal workers. ENCYCLOPAEDIA OF MARINE LAW. By Lawrence Duckworth, of the Middle Temple, Barrister-at-Law. Second Edition. Revised. In demy 8vo, cloth gilt, 386 pp., 5s. net. " The object of this volume is to place before a shipowner or anyone connected with maritime commerce, in well-digested form, the essence of the law and the full meaning of words connected therewith. The advantage of such lucid condensation of a library of books in a single volume will, we venture to believe, be appreciated by busy men of commerce." — Shipping Wt'ld. PITMAN'S GUIDE TO THE LAW OF LICENSING. The hand- book for all Licence-holders. By J. Wells Thatcher. Barrister-at-Law. In demy 8vo, cloth gilt, 200 pp., 5s. net. This guide has been specially written for the use of licence-holders. The various subjects are treated in alphabetical order, and will be found easy for instant reference. The alphabetical arrangement of the titles will be of service, both to " The Trade," and to the trained minds of the legal profession, for it gives a short and accurate summary of each subject of the law of licensing. RAILWAY (REBATES) CASE LAW. By Geo. B. Lissenden, Author of " Railway Trader's Guide," etc., etc. In demy 8vo, cloth gilt, about 400 pp. 10s. 6d. net. In this book something new has been attempted, i.e., to provide for all those interested a handy collection of the numerous test cases on the subject of Railway Rebates. Hitherto — owing to the fact that the necessary books have been very costly, and legal opinion much more so — it has been an extremely expensive matter for the layman even to ascertain precisely what the law is on this subject, but now, for a purely nominal fee, every railway trader will be able to have a leading counsel always at hand to consult at will. Obviously, too, this work, owing to its nature, will appeal very strongly to both railway officers and the legal profession — in short, all those who have anything to do either directly or indirectly, with railway consignments. 12 PITMAN'S BUSINESS HANDBOOKS HOUSEHOLD LAW. By J. A. Slater, B.A., LL.B. (Lond.). In demy 8vo, cloth gilt, 316 pp., 5s. net. " The scheme of this book is quite admirable. It covers almost every phase of a householder's existence, and continues it even to the winding up of his estate." — Morning Post. COMPANIES AND COMPANY LAW. Together with the Com- panies (Consolidation) Act, 1908. By A. C. Connell, LL.B. (Lond.), of the Middle Temple, Barrister-at-Law. In demy 8vo, cloth gilt, 344 pp., 5s. net. " The volume before us will afford great assistance to all persons who are at any time brought into contact with joint stock companies. The numerous points of company law will be found to be lucidly explained, and copies of all the more iir portant forms are set out." — Law Times. FARM LAW. By M. G. Johnson. This is a handy volume which cannot fail to be of the greatest use to farmers, land agents, surveyors, and all other persons who have to deal with land and landed interests. In demy 8vo, cloth gilt, 160 pp., 3s. 6d. net. "' This work is a very successful attempt to supply in clear and simple language a summary of the law relating to the farm and the agricultural holding." — Land Agents' Record. THE LAW OF CARRIAGE. By J. E. R. Stephens, B.A. Ot the Middle Temple, Barris-ter-at-Law. In demy 8vo, cloth gilt, 324 pp., 5s. net. " It deals with the subject in a clear, concise manner, and should undoubtedly appeal to those persons for whom it is intended. Practically the whole of the cases on this branch of the law are referred to in the volume." — Law Times. INCOME TAX AND INHABITED HOUSE DUTY LAW AND CASES. A Practical Exposition of the Law, for the use of Income Tax Officials, Solicitors, Accountants, etc. By W. E. Snelling, of the Inland Revenue Department. In demy 8vo, cloth gilt, 278 pp., 5s. net. " Mr. Snelling has done his work as compiler extremely well The numerous sections are models of clearness and brevity, while in most instances they are illustra- ted and supported by references to the decisions of high legal authorities upon the particular points concerned. There are three useful appendices and a copious index." — Morning Post. THE LAW RELATING TO SECRET COMMISSIONS AND BRIBES (CHRISTMAS BOXES, GRATUITIES, TIPS, ETC.) THE PREVENTION OF CORRUPTION ACT, 1906. By Albert Crew, of Gray's Inn, and the South Eastern Circuit, Barrister- at-Law ; Lee Prizeman of Gray's Inn ; author of " A Synopsis of Mercantile Law," " Company Law," etc. In demy 8vo, cloth gilt. 5s. net. PITMAN'S BUSINESS HANDBOOKS 13 THE LAW OF REPAIRS AND DILAPIDATIONS. By T. Cato Worsfold, M.A., LL.D. In crown 8vo, cloth gilt, 3s. 6d. net. THE LAW OF EVIDENCE. By W. Nembhard Hibbert, LL.D. (Lond.), Barrister-at-Law of the Middle Temple. In crown 8vo, cloth gilt, 3i. 6d. net. THE WORLD'S COMMERCIAL PRODUCTS. A descriptive account of the Economic Plants of the World and of their Commercial Uses. By W. G. Freeman, B.Sc, F.L.S., Super- intendent, Colonial Economic Collections, Imperial Institute, London, and S. E. Chandler, D.Sc, F.L.S., Assistant, Colonial Economic Collections, Imperial Institute, London. With contributions by numerous Specialists. In demy 4to, cloth gilt, 400 pp., 420 illustrations from photographs and 12 coloured plates and maps, 10s. 6d. net. DICTIONARY OF THE WORLD'S COMMERCIAL PRODUCTS. With Equivalents in French, German, and Spanish. Second Edition, Revised. In demy 8vo. cloth gilt, 164 pp., 2s. 6d. THE THEORY AND PRACTICE OF COMMERCE. Being a Complete Guide to Methods and Machinery of Business Edited by F. Heelis, F.C.I.S., Author of " How to Teach Business Training," " Questions and Answers in Business Training," etc. Examiner in Business Training to the Lancashire and Cheshire Union of Institutes, the West Riding County Council, and the Midland Union of Institutes. Assisted by Specialist Con- tributors. In demy 8vo, cloth gilt, 620 pp., with many facsimile forms, 4s. 6d. net. Also in 2 vols., each price 2s. 6d. net. Complete index post free. PITMAN'S GUIDE TO BUSINESS CUSTOMS AND PRACTICE ON THE CONTINENT. By Emil Davies. In crown 8vo, cloth gilt, 154 pp., 2s. 6d. net. A NEW DICTIONARY OF THE PORTUGUESE AND ENGLISH LANGUAGES. Based on a manuscript of Julius Cornet, by H. Michaelis. In two Parts. First Part : Portuguese-English. Second Part : English-Portuguese. Colloquial, commercial, and industrial terms have been plentifully introduced throughout the book and irregularities in the formation of the plural and in the conjugation of verbs have been carefully noted. Second Edition. Two volumes, each 15s. net. 14 PITMAN'S BUSINESS HANDBOOKS ABRIDGED DICTIONARY OF THE PORTUGUESE AND ENGLISH LANGUAGES. Including Technical Expressions of Commerce and Industry, of Science and Arts. By H. Michaelis. The present Dictionary is an abridgment of the author's larger Portuguese and English Dictionary, its whole construction and principal features being the same as those of the larger work. In two Parts. I. Portuguese-English. II. English-Portuguese- Both Parts in one vol. In crown 8vo, cloth. 15s. net. PITMAN'S DICTIONARY OF COMMERCIAL CORRESPON- DENCE IN FRENCH, GERMAN, SPANISH AND ITALIAN. Second, Revised, and cheaper Edition. In demy 8vo, cloth, 502 pp., 5s. net. " Nine hundred columns are occupied by the dictionary, and in an appendix of more than fifty pages we have specimen letters dealing with the most important phases of commercial life. They are practical models which can easily be adapted. Care has been taken throughout to give the student the essentials of a good style of commercial correspondence in a clear and helpful fashion, and as a work of reference the volume is invaluable." — Manchester Courier, ENGLISH-FRENCH AND FRENCH-ENGLISH DICTIONARY OF BUSINESS WORDS AND TERMS. In this work an effort has been made to bring together a great many terms used in commercial correspondence which are not contained in the dictionaries in ordinary use. Size 2\ by 6| ins., cloth, 2s. 6d. net ENGLISH-GERMAN AND GERMAN-ENGLISH DICTIONARY OF BUSINESS WORDS AND TERMS. A new pocket English- German and German-English Dictionary, with a list of Abbrevia- tions in general use, by Fritz Hundel. Size 1\ by 6£ in., rounded corners, roan, 2s. 6d. net. PITMAN'S INTERNATIONAL MERCANTILE LETTERS. A Collection of Actual Letters arranged in Groups illustrating modern mercantile methods, and forming models for the Foreign Correspondent. Five volumes. Each of the new volumes contains a very large and widely varied collection of business letters, arranged in groups and in series, and dealing at length with (a) Business in Goods ; (b) Banking, etc. ; (c) Commission and Consignment Business ; and (d) The Transport and Insurance of Merchandise. In each of the five volumes there are Additional Exercises for practice, and a useful List of Business Abbreviations in two or more languages, arranged in parallel columns. Each in crown 8vo, cloth gilt, 250 pp. English . . . . 2s. 6d. English-French . . 2s. 6d. English-German . . 2s. 6d. English-Italian . . 3s. Od. English-Portuguese . . 3s. 6d. PITMAN'S BUSINESS HANDBOOKS 15 CONSULAR REQUIREMENTS FOR EXPORTERS AND SHIPPERS TO ALL PARTS OF THE WORLD. By J. S. Nowery. In crown 8vo, cloth. With exact copies of all forms of Consular Invoices. 2s. 6d. net. THE THEORY AND PRACTICE OF ADVERTISING. By Walter Dill Scott, Ph.D., Director of the Psychological Laboratory of North Western University, U.S.A. The Author of this work has made advertising the study of his life and is acknowledged as one of the greatest authorities on the subject in the United States. In large crown 8vo, cloth, with 61 illustrations, 240 pp., 6s. net. THE PSYCHOLOGY OF ADVERTISING. A Simple Exposition of the Principles of Psychology and their Relation to Successfu 1 Advertising. By the same Author. In this book, Professor Dill Scott does not merely state principles and theorize upon them— he furnishes characteristic examples and appropriate illustrations in explanation and support of his views. In large crown 8vo, cloth, with 67 illustrations, 282 pp., 6s. net. THE PRINCIPLES OF PRACTICAL PUBLICITY. " The Art of Advertising." By Truman A. de Weese. The Author was in charge of Special Publicity for the Louisiana Purchase Exposi- tion at St. Louis (1904), and is Director of Publicity for one of the largest advertising firms in America. The book will be found a comprehensive and practical treatise covering the subject in all its branches, showing the successful adaptation of advertising to all lines of business. In large crown 8vo, cloth, with 43 full-page illustrations, 266 pp., 7s. 6d. net. ADVERTISING AS A BUSINESS FORCE. A Compilation of Experience Records. By P. T. Cherington, Instructor in Commercial Organisation in the Graduate School of Business Administration, Harvard University. In demy 8vo, cloth gilt, 586 pp., 7s. 6d. net. " Prof. Cherington's book is incomparably the best and most authoritative work on the general subject of advertising that has yet been issued. Here, at last, we have a book that represents advertising in the way its most advanced exponents see it ; that illustrates it with instances drawn from the field of actual occurrences. Theories and principles, in this manner, emerge naturally from the concrete cases adduced and stand out as verdicts ; they are not special pleading in advance of the evidence. Nothing like this book has been given to the advertising world before."- " Printers' Ink" (U.S.A.). PRACTICAL SALESMANSHIP. A treatise on the Art of Selling Goods. By N. C. Fowler, Jnr. Assisted by twenty-nine Expeit Salesmen, Sales managers, and prominent business men. In crown 8vo, cloth, 337 pp., 3s. 6d. net. 16 PITMAN'S BUSINESS HANDBOOKS ADS AND SALES. A study of Advertising and Selling from the standpoint of the new principles of Scientific Management. By Herbert N. Casson. In demy 8vo, cloth, 6s. net. SYSTEMATIC INDEXING. By J. Kaiser. In royal 8vo, cloth gilt, with 32 illustrations and 12 coloured plates. 12s. 6d. net. " Every bit of his book is worth reading ; he not only shows what should be done, but why it should be done, and the reason that some other method should not be adopted. He not only guides in the right path, but also takes care to erect frequent warnings which are designed to prevent a wandering in other directions. He gives very frequent illustrations to amplify his text, and a careful perusal of his views will enable the ordinary business man to quickly seize upon the essentials in useful indexing." — Liverpool Journal of Commerce. THE " COLE ' ' CODE, OR CODE DICTIONARY. Size 7£ in. by 10 in., 272 pp., cloth. 15s. net. This book contains a simple, safe, and economical method of cabling verbatim commercial, technical, and social messages, complete and up to date, with unlimited facilities for extensions to suit any kind of business, including cabling from books, catalogues, price lists, etc. There are also two extra vocabularies of 10,000.000 words each, arranged in alphabetical and numerical order. OUTLINES OF THE ECONOMIC HISTORY OF ENGLAND. A Study in Social Development. By H. O. Meredith, M.A., M.Com., Fellow of King's College, Cambridge; Professor of Economics, Queen's University, Belfast. In demy 8vo, cloth gilt, 376 pp., 5s. net. " Beginning with the Economic development of Britain during the Roman occupa- tion, the work traces the progress made down to the present day, in the course of which Mr. Meredith discusses such interesting subjects as the genesis of capitalism, money and ta:*ation, the growth of trade and industry, the trade union movement, the law and the wage-earning classes, finance and national welfare, etc. To the student and busy man it affords an excellent introduction to the study of one of the most complex questions of the day." — Chamber oj Commerce Journal. ECONOMICS FOR BUSINESS MEN. By W. J. Weston, M.A. (Lond.), B.Sc. (Lond.j. In crown 8vo, cloth, Is. 6d. net. COMMERCIAL TRAVELLING. A Guide to the Profession for present and prospective Salesmen " on the road." By Albert E. Bull. In crown 8vo, cloth gilt, 2s. 6d. net. THE ECONOMICS OF TELEGRAPHS AND TELEPHONES. By John Lee, Traffic Manager, Pest Office Telegraphs. In crown 8vo, cloth gilt, 2s. 6d. net. TRAMWAY RATING VALUATIONS AND INCOME TAX ASSESS- MENTS. By F. A. Mitcheson, Accountant, Manchester Corporation Tramways. In demy 8vo, cloth gilt, 2s. 6d. net. '• This compact little volume should prove of very great value to tramway officials and others."— The Cqynty and Municipal Record. UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. DEC 3 1 1977 41585 t™^ 0L cr LAW m- VNlVERSn Y OP CALIFORNIA •IVX a MmniiBS ML LIBRARY FACILITY AA 000 688 544