Graydon, Esq., has taken proceedings by civil bill against several of the tenants of the lands over which the receiver in this cause has been appointed for the recovery of several promissory notes passed by said tenants on or after the 6th of March, 1848, for rent, and arrears of rent, due by said tenants on the 1st of November, 1847, and it also appearing that the order of reference for the appointment of the receiver was made on the 15th of February, 1848, before said notes were passed, and that T. H. Graydon had full notice of said order when he took such promissory notes from the tenants, and it further appearing that A. H. Graydon had notice of such order, for the appointment of said receiver, before the said notes were endorsed to him, and had also notice, before such endorsement, of the consideration for which such notes were passed, and has, notwithstanding, served civil bill processes to recover such promissory notes. Let an attachment issue in this cause against said A. H. Graydon for his contempt in interfering with, and disturbing, the possession of the said receiver in this cause, such attachment not to issue till further order; and let A. H. Graydon pay to plaintiffs, and to the receiver, their costs of this motion, when taxed and ascertained, and refer it to one of the Taxing Masters of this court to tax said costs."Lib. 278, fol. 217.

WYSE V. WATERS.-Jan. 18. Bill filed by an uncertificated bankrupt to raise the arrears of an annuity, making the assignee a defendant, and charging that the arrears due amounted to £646, that of the creditors who proved under the commission all had signed a composition deed save one, to whom the sum of £130 was due, and also charging specific collusion between the assignee and the debtor. Demurrer by the assignee allowed without

costs.

The bill in this case was filed to raise the arrears of an annuity, and stated that in the year 1790 Thomas Wyse married F. M. Bagge, and had issue three sons, Thomas, George, and Francis, the plaintiff. That one Francis Wyse having devised certain lands to Thomas the elder, same were conveyed to the use of P. C. Dalton and J. Scully, their executors, administrators, and assigns for 100 years, upon trust, in case the said F. M. Bagge survived her husband, to pay an annuity of £100 per annum, late Irish currency, for every younger child of the said T. Wyse the elder, for their support and maintenance, during their lives, provided their mother should so long live. That in July, 1835, Thos. Wyse the elder died, leaving Frances, his wife, surviving him, who died on the 28th of October, 1842. That on the 21st of September, 1833, a commission of bankruptcy, on the petition of T. M. Waters, issued against the plaintiff, and said T. M. Waters and R. Greene were appointed assignees of plaintiff's estate. That R. Greene went to reside in America, where he then was. That in January

1842, plaintiff instituted certain proceedings in the Court of Common Pleas against the said T. M. Waters, and that a compromise was entered into, by which the said T. M. Waters and certain other creditors agreed to release all claims against plaintiff, to aid him in superseding the commission of bankruptcy, and execute a release which would permit plaintiff to possess and enjoy any property which he then might have in possession or expect ancy, or then vested in his assignees, and in consideration thereof plaintiff agreed to pay a composition of one shilling in the pound, one moiety upon the execution of the release and agreement, and the other at the expiration of twelve months. That on the 8th of June, 1844, an indenture of agreement and release was executed between the parties, by which the assignee and all the creditors of plaintiff who proved their debts under the commission, save one, and some of the creditors who had not proved, released all claims against the plaintiff, and executed a consent that said commission should be superseded. That plaintiff paid to his creditors one moiety of said composition, and executed his promissory notes for payment of the residue, which were duly paid. That only three creditors proved under said commission, and to one of them, being the firm of Powell, Brothers & Co., the sum of £130 was due, which was the only outstanding debt due by plaintiff to any of his creditors who had proved. That T. M. Waters, the assignee, by sale of plaintiff's property, received various sums of money, more than sufficient to pay all the creditors who proved under the com mission, including the claim of the said Powell and Co. That the release of the said T. M. Waters from responsibility, on account of such receipts, was one of the considerations which induced him to sign the deed of June, 1844. That after the payment of every debt due and payable by plaintiff under the commission, a large surplus of his estate would legally and properly belong to him; that at the time of his mother's death, in 1842, there was on foot of plaintiff's annuity of £100 Irish, due to the plaintiff, or to his estate, or to his assignee, upwards of £646, which had not been paid by T. Wyse the younger, who, at the death of his father, entered into possession of the lands charged therewith, but which was then due to the plaintiff or to his estate,-or, at all events, to the residue thereof over and above the sum of £130, which he was willing should be paid to said Powell and Co., plaintiff's sole remaining creditor. Plaintiff claimed as his own property the surplus of £516 and upwards. That plaintiff called upon said T. M. Waters, as his assignee under the commission of bankruptcy, which had not been superseded, to proceed for the recovery of the said sum. That about the 25th of August, 1848, having gone to London to urge the said T. M. Waters to adopt such proceedings, he explained to him the danger of delaying beyond the month of October then next, when the statute of limitations might bar such claim, and plaintiff offered to pay all costs of same, and to secure said T. M. Waters by such valid security as counsel should approve of. That the said T. M. Waters refused to comply with such applications, alleging

that he possessed no possible personal interest in such proceeding, and that being on terms of special intimacy and friendship with the said Thomas Wyse, he would not undertake or aid in any such proceeding, which, on the part of the said T. M. Waters, would appear ungracious and unkind towards the said T. Wyse. That plaintiff solicited said T. M. Waters to institute such proceedings, as his assignee, as would prevent the operation of the statute of limitations, with which he refused to comply, whereupon he served notice in writing requiring him to proceed, and offering to indemnify him, but said T. M. Waters neglected to take such proceedings as were necessary to preserve the rights of plaintiff. That said T. M. Waters was acting in collusion with the said T. Wyse. That plaintiff presented a petition to the Lord Chancellor, who directed that he should be at liberty to surrender to the said commission, and that the commissioner should be at liberty to direct the said T.M. Waters, the assignee, to take proceedings to recover said demand, plaintiff indemnifying said assignee. That on the 24th of October, 1848, plaintiff surrendered to the said commission, and the security to be given to T. M. Waters was measured to £400, for which plaintiff was unable to procure sureties and give the indemnity required. The bill then prayed that the said sum of £646 might be decreed well charged on the lands subject thereto; that T. Wyse might be directed to pay same; that a receiver might be appointed, and that said sum might be paid to plaintiff after deducting therefrom what might appear due to plaintiff's only outstanding creditors, Powell & Co., and for an account. To this bill the defendant, T. M. Waters, demurred for want of equity, and that it appeared said plaintiff was a bankrupt, and that at the time of his becoming a bankrupt, and previously thereto, he was entitled to said annuity, and that said commission of bankruptcy never was superseded. That it did not appear that said plaintiff ever obtained a certificate, and that the subject matter of said suit was never divested from said assignees, but was then vested in them.

Mr. Hughes and Mr. C. Leach, for the demurrer. This is a bill by an uncertificated bankrupt, and can. not be sustained. There are but few cases in which a bankrupt can file a bill; he may for discovery, but not for relief, or for his own personal protection, or for the abatement of a nuisance. In Lowndes v. Taylor. (1 Mad. 423,) the bill was for a discovery in aid of defence to an action at law. By the 150th section of 6 W. 4, c. 14, a bankrupt is entitled to any surplus which remains after payinent in full of all creditors; but in this bill there is no statement that all the creditors have been paid. In Hammond v. Atwood, (3 Mad. 158) it was held a bankrupt could not sue. Counsel also referred to Bailey v. Vincent, (5 Mad. 48); Yewens v. Robinson, (11 Sim. 105); Tarleton v. Hornby, (1 Y. & C. Ex. 162); Benfield v. Solomons, (9 Ves. 82); Spragg v. Bink, (5 Ves. 583; 1 Dan. Ch. Pr. 56; 1 Mit. E. P. 81, note, last ed.); Heath v. Chadwick, (2 Phil. 649); Ferguson v. Levingstone, (9 I. E. R. 212)

Jan. 19.—Mr. F. Fitzgerald, and Mr. Thomas O'Hagan, in support of the bill-If there be a

clear surplus, and collusion between the assignee and a third party, this bill can be maintained. In Hammond v. Atwood there was a statement that the commission was invalid, and the court could not determine that question; also in Kelly v. Dowling, (cited in the note to 2 Moll. 433,) it is stated that Hammond v. Atwood had been overruled. In Bailey v. Vincent, (5 Mad. 48,) the bill sought to impeach the commission. In Yewens v. Robinson, (11 Sim. 101,) the bill was objectionable, as requiring the assignees to account. Counsel also distinguished Spragg v. Binks, Benfield v. Solomons, Heath v. Chadwicke, Latour v. Holcombe, (8 Sim. 76,) shews that under certain circumstances an uncertificated bankrupt can sue. In Barton v. Jayne, (7 Sim. 24,) a charge of collusion was held sufficient to maintain the bill. In Utterson v. Mair, (4 B. C. C.) it would appear there was no charge of collusion. Preston v. Wilson, (5 Hare 185, S. C. 11 Jur. 201). In the present case there is a clear statement of collusion by the assignee, and that there is a surplus; and, if relief is not granted, there will be a failure of justice. The statement in this bill is, that only three creditors proved under the commission; that two who signed the deed have been paid their compositions, and the sum due to the other is not to be ascertained by an account.

MASTER OF THE ROLLS.-In this case a bill has been filed to raise the arrears of an annuity, amounting to between £600 and £700, which determined on the 6th of October, 1842. On the 28th of October, 1848, this bill was filed, and the demand would seem to be barred by the statute of limitations, unless that objection is got rid of by something which does not as yet appear; however, it is not necessary to consider that point. The question now is, whether a bill filed by an uncertificated bankrupt can be sustained, and it has been admitted that the general rule is against the plaintiff. However, in various cases attempts have been made to take them out of this rule by the statement of particular circumstances, but these cases do not appear to apply to the question before the court, and the latest which have been referred to would seem to be those in which the commission of bankruptcy itself has been impeached, and such bills could not be sustained, for the validity of the commission is to be ascertained by petition to the Lord Chancellor to supersede it, or by action against the assignee. Therefore a bill will not lie to try that question, and those cases were decided on that plain ground. As a general rule, an uncertificated bankrupt cannot take any proceeding against his assignee; for instance, a bill for an account will not lie, for matters of this nature can be investigated in as satisfactory manner by means of the statutable jurisdiction of the Court of Bankruptcy, as in the Court of Chancery, and this jurisdiction is considered to be exclusive, as stated by V. C. Wigram in Preston v. Wilson, (5 Hare 185). The effect of the bankrupt law is to exclude the jurisdiction of this court, in cases to which it would otherwise extend. To take cases out of this rule, into some bills the statement has been introduced that there would be a surplus to which the bankrupt would be entitled, and in others the

charge of collusion has been made against the assignee, but the effect of all the decisions taken together would seem to show that if the surplus is to be ascertained by an account, a court of Equity will not interfere; and it is well settled that the refusal of an assignee to sue will not, of itself, give this court jurisdiction. In the case of Kaye v. Fos. brooke, (8 Sim.,) both circumstances occurred; there was the allegation of a surplus, and a refusal by the assignee to sue, yet it was held insufficient. As to the case of Barton v. Jayne, (in 7 Sim.) referred to as an authority, I do not think I would be justified in acting upon it after the observations by Lord Cottenham in the case of Heath v. Chadwicke. He says:" Barton v. Jayne, and the case under appeal are the only decisions I am aware of holding that such bills can be maintained." The authority of Barton v. Jayne I consider is much affected, if not overruled by that case. It is plain the fact of there being a surplus is not sufficient, and a refusal to sue will not take the case out of the rule. The present bill, however, is sought to be sustained on the ground that there are distinct charges to shew that there is a surplus ascertained, and also collusion on the art of the assignee, who refuses to sue. The bill also states that Thomas M. Waters (the assignee) being on terms of intimacy and friendship with the said Thos. Wyse would not undertake or aid in any proceeding such as was then proposed to him, and which would appear ungracious and unkind towards the said Thomas Wyse. Thus, there is a statement of an ascertained surplus, and specific collusion. The authorities on this point cannot be considered as well settled until the opinion expressed by Lord Cottenham in the case referred to, and from the great authority of his decisions I cannot easily be induced to decide against any opinion clearly expressed by him. It is to be remarked, however, that there is not a single case referred to by Lord Cottenham in his judgment which has decided this question. In Kaye v. Fosbrooke there was no charge of collusion, while in the case before Lord Cottenham there was such a charge, therefore it is not an authority on the point. In Spragg v. Binkes (5 Ves.) there was no charge of collusion. In Hammond v. Atwood, (3 Mad. 158,) the bill sought to impeach the commission, and could not be sustained on that ground. The most important case upon the subject was that of Tarleton v. Hornby, in the Court of Exchequer, and was not alluded to by Lord Cottenham in his judgment. In that case it was decided that an uncertificated bankrupt cannot file a bill for an account, and, if the bill is not maintainable independently of the collusion, such a charge is not sufficient to sustain it. The existence of a surplus, with a statement of collusion, is not sufficient to enable this court to assume jurisdiction, and take the case out of the Bankruptcy Court. It is said, however, that the effect of there being an ascertained surplus distinguishes this case, but I do not think the allegation of a surplus is sufficiently clear to distinguish this case from the one before Lord Cottenham. As to the fact of there being a specific surplus, it appears an arrangement was made by the plaintiff with his creditors who proved, and a composition entered into, save as to one person,

who did not execute the deed, to whom the sum of £130 was due. Now, the bill contains no allegation that there were no other creditors, and, if there were, it is impossible to treat that surplus as ascertained by deducting this sum of £130 from the arrears, to recover which this suit is instituted. I cannot come to the conclusion that this allegation of a surplus, and a friendly feeling of the assignee to T. Wyse, will take this case out of the general rule. With the exception of the case of Barton v. Jayne, which must now be considered as almost overruled by the case of Heath v. Chadwicke, there is no authority to show that this bill is maintainable, and I do not think I can so decide consistently with the high authority of Lord Cottenham. I will therefore allow this demurrer without costs. In Preston v. Wilson, (11 Jur. 201, 5 Hare,) the assignee submitted to act as the court should direct, and the reasonable course in the present case would have been for the assignee to leave the matter to be settled between the plaintiff and the principal defendant, for the assignee has not the slightest personal interest in the matter. The amount of security for using his name has been settled, but the plaintiff is unable to give it, and has been driven to file this bill himself. If this suit had been instituted before Heath v. Chadwicke, there would be some ground for holding that the bill was maintainable. In Kaye v. Fosbrooke it appears that if collusion had been charged, the bill would have been sustained. The analogy suggested between the case of an executor and of an assignee does not exist; there is a special jurisdiction in the latter case. If an assignee refuse to discharge his duty, the course is not to file a bill against him, as it would be against an executor; the proper course is to apply to the Lord Chancellor sitting in bankruptcy, and obtain an order directing the assignee to sue, upon an offer to indemnify, the very course which has been taken in the present case. If the demand is not barred by the statute of limitations, there will be a sum of £516 to which the plaintiff will be entitled, there being only one debt of £130; and though, for the purpose of this demurrer, I may have considered it probable there may be other creditors, still, with a view to costs, I may reasonably infer there are none. The assig nee should have submitted to the court, and not have endeavoured to assist his friend, as appears from the statements in the bill, and, as in the case of Preston v. Wilson, (5 Hare) should have submitted to the jurisdiction of the court, and have aided the plaintiff in the recovery of this sum.

Allow this demurrer without costs.

EX PARTE JOHNSON IN THE Matter of the INCUMBERED ESTATES ACT.-Feb. 10.

In this case Mr. Lawson moved that the Master, on an undertaking being lodged in his office, might set the house and lands of Donnybrook. A petition had been presented for a sale, and a receiver appointed.

MASTER OF THE ROLLS.-It never was contemplated that proceedings under this act should be delayed; and in this case, it appears, there are only four incumbrances, and there is no reason why

a sale cannot be had immediately. I will, therefore, say, no rule on this motion.

Feb. 12.-Mr. Lawson, on this day, baving stated that the rental of the lands amounted to only £400 per aunum, and there were incumbrances to the amount of £5,600, besides an annuity affecting them; and that, under those circumstances, it was matter of considerable importance not to press for a sale at present, the depreciation of landed property being so great.

MASTER OF THE ROLLS.-The object of the legislature, in passing this act, was to bring the proceedings to as speedy a conclusion as possible. In this case, however, there may be some reason for not proceeding to a sale, and the present depression in value of property may be sufficient to justify the delay. I will, therefore, make this

order.

EQUITY EXCHEQUER. HILARY TERM. STAFFORD v. HENRY.

33 Geo. 2, c. 14-Incidental Trading-Banker. A., being a stockbroker and notary public, received money on deposit and paid it out on cheques, like

a banker, and in some other respects acted as a banker; he did not, however, hold himself out to the public as a banker, nor did it appear he was generally believed to be one; and in his books the alleged banking accounts were mixed with others, as a stockbroker and trader. Held, he was, not a banker within the provisions of 33 Geo. 2, c. 14, requiring the enrolling and registering of bankers' deeds.

Qu.-Does that act apply to banks not issuing

notes?

This was a suit to raise the amount of a mortgage made in the year 1831, by Abel Labertouche. Shortly before the filing of the bill, Labertouche had become bankrupt, and the defendants, as his assignees, were entitled to the equity of redemp. tion. The defendants, in answer to the plaintiff's claim, alleged that Labertouche, at the time of the execution of the mortgage, was a banker within the meaning of the 8 Geo. 1, c. 14, and 33 Geo. 2, c. 14, and that the deed of mortgage, not having been enrolled and registered in the manner required by those statutes (which was admitted), was void as against them, as creditors of Abel Labertouche. The whole question in the cause, therefore, was, whether or not Abel Labertouche, in 1831, was a banker within the meaning of the above acts. The evidence went to shew that Labertouche, at the time of the execution of the deed of mortgage, was a stockbroker and notary public; and it was shewn, to some extent, that he received deposits of money from his customers, which he paid out again to their order that he occasionally discounted bills-that he also collected them and that he was engaged extensively in trade. On the production of his books, they apppeared to contain entries of transactions similar to those of a banker, mixed, in several instances, with others referring to his other callings as stockbroker and trader.

J. D. Fitzgerald, Q.C., for plaintiff, contended that Labertouche did not come within the scope of

these acts. The 8 Geo. 1, c. 14, is entirely repealed by the 33 Geo. 2, c. 14; but the latter act expressly refers to “such" bankers as came within the former, and that was wholly directed against bankers issuing notes. Moreover, from the 16th section of 33 Geo. 2, c. 14, it would appear as if the legislature contemplated, all through, the issuing of notes by the "bankers" referred to by the acts. The 29 Geo. 2, c. 16, which imposes a penalty on bankers using any other trade, also appears to contemplate bankers issuing notes; but no where has the word "banker" been defined, although there are a good many statutes relating to them. In the old Bankrupt Acts, the word " scrivener" is used along with the word "banker;" and it is agreed that a scrivener was a person receiving a deposit of money, and paying it out on requisition; so that a banker was something different, or it would have been unnecessary to insert the word. It is settled that an army agent is not a banker, although he keeps money to be paid out in cheques. Moreover, it is not sufficient to prove that Labertouche was a banker in the popular sense; he must be shewn to be within the acts; and upon the face of those acts they appear to apply only to bankers issuing notes. His rehis trade as a stockbroker-it is the constant pracceiving and disbursing money may be referred to tice of stockbrokers. The case of the army agent is accurately in point. Moreover, on the act 33 Geo. 2, the defendant is not entitled to this defence; for the bankrupt has not been shewn to have failed as a banker, but as a stockbroker. proceedings have been taken against him as a banker. Besides, this deed is valid, at any rate, against the bankrupt; and his assignees, who stand in his shoes, ought not be suffered to impeach it. (Pennefather, B.-Are they not trustees for his other creditors? Pigot, C. B.-It has been settled by Sir E. Sugden they are creditors.) They should, at any rate, have filed a cross bill impeaching the deed, and not have indirectly attacked it in this manner. Counsel referred to and commented on Hayden v. Rivers (3 Ridg. P. C. 545); Vincent v. Hackett (2 Law Rec. O. S. 258); Faucett v. Hodgens; Atkinson v. Hodgens (3 Ir. Eq. Rep.); Wilson's case (1 Atk. 218); Coote v. O'Reilly (7 Ir. Eq. 359).

(

No

Brewster, Q.C., for defendants-This deed is void against us, and we may make this defence without cross bill. For though this deed may have a prima facie validity between the parties, the act declares that, as against us who represent the creditors, it shall, if the party were a banker, be void. It is contended, at the other side, the acts only contemplated bankers who issued notes; but the court will hesitate before it agrees to such a construction. It appears on evidence that this man traded in every way in money. A banker is a person receiving money on deposit and paying it out to order, and discounting bills with it, as this man did. Certainly the 8 Geo. 1, c. 14, appears only to apply to bankers issuing notes; but the terms of the 33 Geo. 2 extend to all bankers: and there is, moreover, a clause in the first section expressly saying that nothing in the first act shall limit or confine the operation of the second—an