PENNEFATHER, B.-The bill in this cause has been filed by the plaintiff, as a mortgagee, claiming under a deed executed by Labertouche in 1831. On the face of that bill the plaintiff appears entitled to the usual decree; but then the defendants say, that the deed is void as against them and the creditors whom they represent, inasmuch as the mortgagor was a banker within the meaning of the 8 Geo. 1, c. 14, and 33 Geo. 2, c. 14, and the deed was not registered pursuant to those statutes. If that defence were made out, I consider that the defendant might rely thereon, without being driven to a cross bill, for such a defence goes to the very foundation of the plaintiff's title. It is insisted, then, that Labertouche was a banker, and subject to the provisions of these acts. It becomes necessary, therefore, to consider not only the evidence produced to us, but the statutes themselves. It appears to me quite clear, that the statute 8 Geo. 1, c. 14, only contemplated as bankers those persons who issued notes, and who, in the language of the statute, kept shop for the purpose of trading as bankers. If the case rested entirely on that statute, it is plain that the bankrupt, Labertouche, would not be within its provisions; but that act is repealed by the 33 Geo. 2, c. 14, and in it are omitted many of the expressions found in the former act, by which means a considerable doubt arises, as to whether the word "bankers" is to be considered confined to parties issuing notes or not. I do not think that we are in this case called upon to decide that question. If any person assumes openly, notoriously, and avowedly, the character of a banker, I should be very reluctant to hold that he was not within the meaning of that act. But still, to bring him within its scope, he ought to have been openly held out to the world as a banker, and a person carrying on that trade; and if no such character was given to him by himself or the public, it would be very dangerous to allow a bonâ fide creditor to be despoiled of his security, by an allegation subsequently made, that the party was a banker. In the present case the bankrupt, Labertouche, was not only a stockbroker and notary public, but also an extensive merchant; in which latter capacity he would have been liable to heavy penalties, if he were also a banker. This does not shew that he was not a banker; but it shews that neither by himself nor others was he considered to be one, and therefore, in my opinion, that he was not within the mischief or the meaning of the act. He certainly received and kept money for his customers, and paid it out again to them upon cheques; but that appears to have been done in a manner merely incidental to his business as a stockbroker. I consider this case as very like that of the army agent cited from Atkins; the acts of banking were incidental to his other occupation, and, as has been observed by my Lord Chief Baron, a trade used incidentally does not become a man's calling. In this case, Labertouche himself positively swears he never was a banker; while, on the other side, it is only shewn that he occasionally acted like a banker, and not that he ever held himself out to the public as being one. I, therefore, do not consider that he was a banker

within the meaning of the act. Moreover, nearly every act of his is perfectly reconcileable with, and referrable to his calling as a stockbroker; and therefore, in a case where the court should require the defendant strictly to prove his case, I do not think we should be satisfied with the evidence which has been here produced. The defendants themselves are so conscious of the weakness of their case, that they do not even ask for an issue; indeed the court is satisfied without it. On the whole, then, I must say, that it appears to meand rather clearly-that the plaintiff is entitled to the prayer of his bill.

RICHARDS, B.-I was unable to be in court the first day on which this case was argued, but I heard it very fully debated the second day; and nothing was then brought forward which would render it necessary that I should add anything to the learned judgments that have been pronounced, further than to say that in them I fully agree.

LEFROY, B.-I agree with my three brethren, that the defendant in this case has not made out the defence which he set up; he has not proved enough to annul the solemn act of the parties. The principle referred to with regard to acts of trading done incidentally to another, and that the principal occupation, is well established; that is a very important principle, and bears materially on the case; but everything has been said upon it, and I shall pursue it no further. Now, as regards the Act of Parliament itself, I think it is not desirable, unless we are driven to it, to express an opinion upon the application of that act to other banks than banks of issue; but whatever opinion may be formed on that point, whether the act is to be extended to banks of deposit as well as banks of issue, or not, this much is plain, that it was against the acts of persons notoriously and manifestly acting as bankers that the legislature intended, in this manner, to protect the public. For the words of the 8th of Geo. I were, "Where any person shall follow the trade or calling of a banker, by keeping a public shop," the words "keeping a public shop" are dropped in the 33 Geo. 2; but it says, [the learned Baron read the preamble of the act,] which clearly shews, it was to this public banking the legislature meant to direct the act. It is clear, that unless a party has held himself out to the public as a banker, and the public has taken him to be one, he does not come within the scope of the act. No one witness here has shewn that either of these facts existed in this man's case. In the words of Gibbs, C. J., "it was not his known occupation," and it would be hard upon him to fix him with a trade which he never intended to carry on. Moreover, all his acts are referrable to his other trades, which he could carry on without being a banker. If he were a banker, his pursuing some of those callings was clearly illegal. Why, then, are we to imply, when we can suppose him to be acting legally, that he was pursuing an occupation which made other acts of his illegal? There is no similarity between the accounts produced to us and the accounts of a banker. His books were kept as no banker ever kept them. One thing, indeed, he has done like a banker-he

has had cheques drawn on him; but that was done merely incidentally to his other business, and if we were to hold that sufficient, nearly every private agent would be liable to be brought within the scope of these acts. Therefore, without giving any opinion on the Bankers' Act, I may say, that whether it applies more or less extensively, to banks of issue only, or to banks of deposit also, there has been no case to bring this party within it. I therefore concur in the judgment of my learned brethren, that the plaintiff is entitled to the prayer of his bill.

QUEEN'S BENCH.-HILARY TERM.

HORNER v. WILCOCKS.-Jan. 22. Practice-Inter pleader Act-9 & 10 Vict. c. 64. Where a party has, by his own act, placed himself in a situation to be sued, he cannot call on the court for relief, under the Interpleader act, 9 & 10 Vict. c. 64.

This was was an action of assumpsit brought by the plaintiff to recover from the defendant a sum of £86 5s 11d. The circumstances of the case, as disclosed in the affidavits, were as follows:-On the 20th August, 1844, the Rectory of Killeshill, in the Diocese of Armagh, became vacant by the death of the then Incumbent, and on the 14th of the October following, the plaintiff was inducted on the collation of his Grace the Lord Primate. On the 8th November in the same year, the said Rectory was placed under a sequestration, and the defendant appointed sequestrator. In the month of February, 1847, the sequestration was superseded, and a receiver appointed under the Court of Chancery. The defendant, while acting as such sequestrator, levied a rateable proportion of the rentcharge from the 20th August, 1844, to the 1st of November, in the same year. This sum amounted to £86 5s. 11d., and formed the subject of the present action. The defendant did not include this sum in any of the accounts which he passed as sequestrator, and assigned as a reason for not paying it over to the plaintiff, that on the 6th July, 1844, the plaintiff was discharged as an insolvent debtor, and one Henry Speer appointed his assignee; and that the attorney of the said Henry Speer had frequently cautioned the defendant not to make any payment to the plaintiff. also appeared, that since this action was commenced, the defendant was served with a notice in

It

writing, by the attorney of the asssignee, directing him not to pay any sum of money to the plaintiff, and informing him that the assignee was the only person authorised to receive the produce of the estate of the plaintiff, and that he would hold the defendant accountable.

On a former day in this Term, Sterne B. Miller, on the part of the defendant, obtained an order nisi for relief, under the Interpleader Act (the 9th & 10th Vic. c. 64, s. 1), against which

Brewster, Q.C., and J. Murphy, Q.C., for the plaintiff, now shewed cause. The rent-charge, for which this action is brought, accrued due before the sequestration issued, and ought not to have been demanded or received by the sequestrator, Waite v. Bishop (1 Cr. Mee. & R. 507); Egan v. Heenan (3 Ir. Eq. Rep. 50) He has, therefore, by his own act, placed himself in a situation to be sued, and cannot now call on the court to extricate him, Belcher v. Smith (9 Bing. 82, S.C. 2 Mo. & Sc. 184). The assignee of the plaintiff has no right to this money, as it was not payable until after the date of the vesting order.

Napier, Q.C., appeared for the assignee, and contended that it was incumbent on the plaintiff to produce the order for his final discharge, as the assignee would be entitled to the money, unless the vesting order was prior to the month of August, 1844.

Sterne B. Miller, for the defendant, was heard in support of his rule.

BLACKBURNE, C. J.-The defendant in this case calls upon the court to interpose in his behalf, and plead. From his own admission, it appears that to direct the plaintiff and his assignee to inter

the defendant received the sum of £84 18s. 7d. four years ago, and retained it ever since, though he had no right whatever to it. He acted under colour of his authority as sequestrator, but did not include this money in any of his accounts. This is not the case of a person who has become an involuntary stakeholder, or of a public officer acting in the discharge of his duty, but of one who, after wrongfully receiving and retaining a sum of money, now says that he has been served with a notice cautioning him against paying it over. In my judgment, there is strong evidence of collusion between the person who served that notice and the defendant. If the facts of this case were made the subject of a bill in a Court of Equity, a demurrer would lie to it. The cause shewn must be allowed with costs.

The rest of the Court concurred.

Rule discharged.

in cases of fraud or accident; but that the neglect or delay of the solicitor, in proceeding according to these orders of the court, does not constitute a case for relief upon these principles-that as to relieving upon an arbitrary principle of wide discretion, as against these orders, upon the ground of mere neglect, I do not see how it can be sustained. The grounds on which it was urged to the discretion of the court that, in this particular case, these orders ought to be relieved against, appear to me to be founded on the assumption, that it was to be treated as an irreparable mischief and failure of justice, that the party should not be privileged, by amendment, to prosecute the particular cause, whatever may be the neglect of the party, or his solicitor; but it appears to me that this proposition, thus assumed, cannot be at all sustained. It is true that it may be deemed an inconvenience to be avoided as far as practicable, consistently with the maintenance of these orders, which were framed for averting mischievous delays in Equity suits, to subject a party to file a new bill, but the costs of the suit which have been the subject of the neglect and delay will be the only loss imposed on the suitor, and his rights will remain unaffected." That was the view taken by Sir W. Mac Mahon; and, though Lord Plunket reversed the order, there is nothing to shew what view he took of those observations. The question was not on the force of the orders, but on their construction, and that was the view taken. The next case is O'Grady v. Barry (1 I. E. R. 13). Sir M. O'Loghlen said, "I have the authority of the settled practice in England for saying that these general orders, being framed for the general administration of equity, must always give way when it appears to the court that the equity of any particular case requires it." This is not very definite; and, if it means that the court is to put a construction on the orders with reference to the general merits of the case, I cannot agree with it. I cannot think that the orders are to be interpreted in different ways in different suits. I do not think that the general equity of the cause can be at all taken into consideration; but, if it means the mode of conducting the case, I can reconcile it with the words of Sir Wm. Mac Mahon. The next case is Rex v. Lyons (1 Dr. & W. 327, vide p. 333). There Lord Plunket, speaking generally of the rules, seems to take the view that they are flexible, and says, "there is no ground for saying, nor can it be pretended, that these rules the creatures of the court are to become its masters, by assuming a nature so binding as to overrule and control the acts of that very court which gave to them existence." The Vice-Chancellor seems to have taken a similar view in Burrell v. Nicholson (6 Sim. 212). The case of Dycer v. Goulding (2 Ir. E. R. 57), was also before Sir Michael O'Loghlen, and shews that, in his opinion, the case before the court gave a claim for indulgence, although the proper time had passed. He says, "It appears that there have been some communications between the plaintiffs' solicitor and the defendant White, which induced the plaintiffs to delay the prosecution of their suit, and that the defendant, who now seeks to have the bill dismissed for want of prosecution, is represented by

the same solicitor who is concerned in this cause for the defendant White. So that the defendant who is now applying may be supposed to have been apprised of the not unreasonable cause of delay. I have frequently had occasion to notice the evil effect of permitting vague and casual conversations pending a cause to interrupt the regularity of the proceedings in it. However, the court is always unwilling to dismiss a bill for want of prosecution, where there is a reasonable excuse for the delay; and, under the circumstances now disclosed to the court, I think the plaintiff should be at liberty to retain the bill, upon the usual terms of paying the costs of the motion to dismiss it." So it would seem that Sir Michael O'Loghlen took a more favourable view than Sir W. Mac Mahon, of the power of the court over these orders. In Jeffereys v. Goodwin (3 I. E. R. 99), the court gave indulgence on the ground of mere accident. In Smith v. Goold (7 I. E. R. 271), leave was given to amend, long after the time had passed. M'Loughlin v. M'Loughlin (8 I. E. R. 109) came before the late Master of the Rolls (the present Chief Justice). In that case, he refused to admit any departure from the rule, and seems to have taken a strong view of them, stronger than that of Sir M. O'Loghlen, and nearer that of Sir. Wm. Mac Mahon. He says that the only question is, whether the plaintiff has shewn due diligence; and, so far, he takes an indulgent view of the case, in not confining the diligence to enforcing an answer. He says, it is impossible to say that this is a case of diligence, and the necessity of amending the bill cannot take the case out of the rule. Besides, it is plain that the record must be, in fact, reconstructed in the amended bill; so that I feel the less difficulty in granting the application, as the plaintiff may as well file a new bill.” In Davies v. Davies (10 I. E. R. 614), I have stated my opinion on these rules to be in accordance with that of Sir Wm. Mac Mahon, though not going so fully into the cases. The view I took was, that unless there was something in the conduct of the party to put the plaintiff off his guard, I could not relax them. The cases in England do not very clearly raise the question. In Calvert v. Gandy (1 Phill. 519), Lord Lyndhurst says, "The orders of August, 1841, were made by the Lord Chancellor, with the advice and consent of the Master of the Rolls, in pursuance of the 4th Vict. c. 94, and 4 & 5 Vict. c. 52, which provides that all rules, orders, and regulations shall be laid before the Houses of Parliament, and that from and after the making thereof they should be binding and obligatory on the court, and be of like force and effect as if the provisions therein contained had been expressly enacted by Parliament, subject, however to the rights of either house of Parliament to annul them. Those orders have, therefore, the force and effect of an Act of Parliament. I have the power, with the concurrence of any two of the other judges of the court, to rescind them and substitute others; but, without going through the forms prescribed by the act, I have no power to vary them. I should be very glad if I could put a different construction upon the act, for this is certainly a very inconvenient one, but I do not see how I can "In my own orders of 1828,

the first intention was to have annexed them to an Act of Parliament, and I actually brought in a bill for that purpose; but afterwards I felt the very difficulty which has occurred, and accordingly did not carry through the bill, but issued the orders as the orders of the court only." It does not appear why he might not have brought in an act, like the Irish act, which does not contain those stringent clauses, if the omission of them would have lessened the inconvenience. It is said that a late act (8 & 9 Vic. c. 105) was passed to get rid of this difficulty in England, but there is some doubt whether that was the reason, and as to the effect of the act in that respect, Mathews v. Chichester (5 Hare, 202) was argued before the Vice-Chancellor, on an order made under the statute 8 & 9 Vic. when he restored the bill. It does not appear what view of the 8 & 9 Vic. the Lord Chancellor took, but he reversed the Vice-Chancellor's order. That ease is also reported in 11 Jurist, p. 49. In this state of the authorities there cannot be said to be any definite rule. If so, the view taken by Sir Wm. Mac Mahon seems to me to answer all purposes. Before the act passed, the Chancellor had power to make rules; whether or not, to alter them is not now material; he certainly had not, under the act, any power to change them, save with the assent of the Master of the Rolls. As I said before, there has been much fluctuation of opinion as to the cases in which the rules could be relaxed; Sir Wm. Mac Mahon put it as high as fraud. It is not necessary to put it so high; inevitable accident would be sufficient. What degree of mistake would do, I will not now decide. The equity of the cause has nothing to do with it. Whatever is to be considered, must be in the conduct of the cause. Now, in the case before me, what are the facts? The plaintiff filed his bill 10th of February, 1848; so far as relates to this defendant, the case was complete, but by reason of the answer of the insurance Company, the case became incomplete; and though their answer was filed the 3rd of April, it was not, in fact, an answer till the 1st of August; for, having stated documents which were ordered to be produced on the 12th of June, it was not a complete answer till they were produced in August. We all know, that at that time there is not the same facility of considering a case. I do not say that the long vacation is to be left out in considering the rules; if it were to be, the orders should be amended. I do not think the plaintiff precluded from relief. Perhaps, if it had been in the first place before me, I might have taken a stronger view; but, considering the conduct of the cause, not only with reference to its own facts, but to orders made in other cases, I think I can come to no other conclusion than that the Master of the Rolls has taken a right view of the case. Some time elapsed between the answer and the order for the production, and a long time elapsed when the deeds were produced on the 1st of August, and then an amendment of the bill was necessary. I impute no fraud in the case, but there is enough to shew that the plaintiff might, to some extent, consider himself not liable to be stopped by this rule after the delay by the other defendant. I am not satisfied that there was any want of proper diligence. I will

not give any costs, and the appellant must get back his deposit. Chancery Motion Book, p. 212.

ROLLS COURT.

STEELE V. FRAZER.-Jan. 17.
Service deemed good-Subpana-Power of
Attorney.

In a suit for foreclosure and sale of certain lands vested in trustees, upon trust, to sell. R. F., one of the trustees, by power of attorney, authorized R. N. T. to sell these lands. Service of subpœna, to appear and answer, upon R. N. T. deemed good service of R. F.

Reilly, on behalf of the plaintiff, moved that service of the subpoena to appear and answer the bill in this cause, and of the notice pursuant to the 15th General Order, on the defendant, Robert Frazer, by serving same on R. N. Turnbull, the attorney of the said Robert Frazer, be deemed good service on the defendant, Robert Frazer. The bill in this case was filed to raise the amount of a mortgage, and prayed for a foreclosure and sale of certain lands in the county of Dublin. From the affidavit of the plaintiff's solicitor it appeared that by indenture bearing date the 21st of December, 1844, the said lands were conveyed to the said defendant and three other persons, upon trust, by sales or mortgage to raise such sum as should be necessary to pay off the debts therein mentioned, including said mortgage. That Robert Frazer, by a power of attorney, dated the 30th of October, 1848, reciting that there were charges affecting said lands, and that same should be sold for payment thereof, and that he was about to emigrate to Australia, appointed Robert N. Turnbull, his attorney, to grant and release said lands, with full power to convey same to a purchaser.

MASTER OF THE ROLLS.-I will make the order, that service upon Robert N. Turnbull be deemed good service of the defendant Robert Frazer.

NUGENT v. LEYDEN.-Feb. 1st.

Where a bill has been filed contrary to good faith, Semble, the court has, at the instance of a defendant, summary jurisdiction to take the bill off the file.

This was an application by a defendant that the bill might stand dismissed, with costs, on the grounds that same had been filed contrary to good faith, and the agreement of the parties, and without the knowledge of the plaintiff.

It appeared that the late Elizabeth Rumley gave her bond, dated the 14th day of May, 1846, to the plaintiff for the sum of £600, together with warrant of attorney to confess judgment thereon, and on which was endorsed the following defeasance"Memorandum, that the within bond and warrant of attorney is given for securing the payment of the principal sum of £300, with interest, from the within named Elizabeth Rumley, to the within named James Nugent, by half-yearly instalments of £25, payable on every 1st day of November, and 1st day of May, the first payment of £25 to bę