ing in the said promise and undertaking of the de- appear with sufficient certainty, or at all, from said fendant, on the 1st of August, 1845, at, &c., did counts that the time for accounting for and payment appoint the said John Brinsden to be one of their of the money mentioned therein hath elapsed, acagents for transacting their business in and about cording to the terms and regulations therein stated, the district of Newcastle and other places in that nor what time was thereby appointed for that purvicinity. And that on the day last aforesaid the pose. That the entire contract is not stated in said said John Brinsden received from the plaintiffs in-counts, and that the breach as stated on the part of structions containing the terms and regulations ac- J. B. is uncertain, and is in the alternative. That cording to which, and the times at which he should consistently with the breach, J. B. may have paid, account to the plaintiffs for the moneys which he though not according to the terms and regulations should receive for them, or on their account or be- contained in the instructions. That it does not aphalf as such agent. And that while the said John pear in what respect J. B. departed from or omitBrinsden was so in the employment of the plaintiffs, ted to observe the instructions. The causes of dehe received as such agent sums amounting to £500; murrer to the third count were, that it did not state and that although the time for his accounting for at what time J. B. was to pay the sums in that count and paying the same to the plaintiffs, according to mentioned; that it did not appear that J. B. was the terms and regulations contained in the said in-guilty of any default; that it did not appear with structions so received by him from the plaintiffs has sufficient certainty or at all that J. B. was requested long since elapsed, &c. That the said J. Brinsden to pay the sums in that count mentioned; that no hath not accounted for or paid to the plaintiffs, or special request is stated therein by the plaintiff to in such manner as directed by the said instructions, the defendant to pay; that no breach on the part or at all the said sum of £500, or any part thereof, of J. B. appears or that the defendant had notice and has made default in so doing, although often thereof. Joinder in demurrer. requested by the plaintiffs so to do. Of all which Sir C. O'Loghlen, (with him Mr. D. R. Kane, on the 1st of July, 1847, due notice was given to Q.C.) for the demurrer. We will deal with the third the defendant by the plaintiffs; and although one count first, and we submit that it should have avercalendar month and upwards has elapsed since the red a special request. A count against a surety said notice was given to the defendant, yet the de- cannot be maintained unless a special request is fendant hath not paid the sum of £500, or any part expressly alleged. (Vin. Abr. tit. Action of Assumpthereof to the plaintiffs, nor in any manner indem-sit, A. A. 8; Cro. Jac. 500.) The plaintiffs ought nified the plaintiffs against the loss or damage which to have shewn that the principal had failed, and a has accrued or been occasioned to them by the said demand on the defendant. The action is grounded default of the said John Brinsden as such agent, upon collateral matter, namely, the default of a third although requested by the plaintiffs, but has hitherto party; and the mere general request is not sufficient neglected and refused, and still neglects and refuses where a special request is necessary to be alleged. so to do; and the said sum of £500 remains unpaid The first two counts are bad for uncertainty; the to the plaintiffs. The second count was substantially default of the principal is not stated with sufficient the same. The third count stated that on &c. in con- certainty. The declaration should shew with cersideration that the plaintiffs, at the request of the tainty that the principal was in default. So much defendant, would appoint J. Brinsden to be one of of the instructions ought to be set forth as to shew their agents for &c., the defendant undertook and the time had really elapsed within which the prin promised the plaintiffs to indemnify them against cipal was bound to account. [Blackburne, C. J. any loss or damage which might accrue or be occa--The question is, whether the declaration contains sioned to them by the default or misconduct of the sufficient averments to proceed against the principal said J. Brinsden as such agent. And the plaintiffs himself.] It is a special contract to pay at the time confiding &c. on &c. at &c. did appoint the said J. mentioned in the instructions. It must appear that Brinsden to be one of their agents for &c. And the plaintiffs have a cause of action; the mere averwhile the said J. Brinsden was so in their employment of it by thein is not sufficient. (Com. Dig. ment he received for the plaintiffs sums of money amounting to £500, but did not pay the said sum or any part thereof to the plaintiffs, although the time for paying the same to the plaintiffs has long since elapsed, but has made default in paying the same, although often requested so to do, of all which premises the defendant had due notice, but he did not nor would pay the said monies or any part thereof to the plaintiffs, or indemnify them from the loss or damage which has so accrued to, or been occasioned to them by the said default of the said J. Brinsden as such agent, although then and there requested so to do; and the said sum of £500 still remains due to the plaintiffs. The declaration also contained the money counts. Demurrer to the first and second counts, assigning for causes (inter alia) that the erms and regulations contained in the instructions in said counts are not stated therein. That it does not Pleader, 76;) Clarke v. Gray and others, (6 East. 567, 568.) Here the plaintiffs have set forth the breach, but have not set forth the time within which the contract ought to have been performed. Lord Arlington v. Merricke, (3 Saund. 403; Stephens on Pleading, 384.) We admit that where setting forth a document would lead to long pleading, then it need not be set forth, but the plaintiffs should have set forth sufficient to shew the nature of the instructions, and the time within which the principal was bound to account. Andrews v. Whitehead, (13 East. 102;) Higgins v. Highfield, (Ib. 407.) If we had gone to trial, they might have given in evidence any form of instructions; they were not tied up to any one in particular. Beard v. Foran, (1 L. Rec. 2 S. 164.) Mr. Ormsby, and Mr. Napier, Q.C. contra-A special request was not necessary, and even if it were, we have made one, the words "then and averment in the first and second counts is that the principal received certain instructions containing the terms which he was to follow, and they should have set out the precise regulations which he violated The terms and regulations might be such as he could not carry into effect. The instructions are not put in issue; there is nothing to identify them. They allege that the time limited has expired; the prin cipal was to account according to the instructions, and these are facts peculiarly within the knowledge of the plaintiffs. Lawes v. Shaw, (5 Ad. & Ell. Ñ. S. 322;) Warren v. Bickford (7 Price 550;) Hill v. Montague, (2 M. & Sel. 377;) Parkinson v. Whitehead, (2 Man. & Gr. 329;) Fannin v. Anderson, (7 Ad. & Ell. N. S. 811.) It ought to have been alleged by whom and to whom the special request was made. BLACKBURNE, C. J.-So far as the demurrer ap plies to the third count, it plainly must be overruled, for that count contains a distinct averment, that the plaintiffs then and there requested the defendant to pay the monies or to indemnify them. There was therefore a demand made upon the defendant, and made by the proper persons. With respect to the demurrer to the two first counts it is to be observed that the declaration states the contract, and assigns the breach in the terms of that contract. The con tract was that John Brinsden would pay to the plain tiffs all moneys which he should receive on their be half, at the times mentioned in the instructions which he was to receive from them. The terms and regu lations contained in those instructions were to govern his conduct and his liabilty. The declaration then avers that John Brinsden received sums of mo ney, and that he neither accounted for or paid them to the plaintiffs, as directed by the instructions. It is said that these instructions should have been set forth; we are not told to what extent. Counsel for Mr. D. R. Kane in reply.-No time is stated in the defendant says so much of them should be set the third count within which the principal was bound forth as would avoid prolixity, but the principle to to account, and there is no averment that a reason- be collected from other actions such as actions of able time had elapsed. Sansom v. Rhodes, (6 Bing. covenant, applies to the present one and it is plain N.C. 261.) Nor is there any averment as to the time that these instructions would properly form part of when he was to pay the money, whether within a rea the plaintiffs' evidence at the trial. Upon their prosonable time or at a precise time. They aver that the duction it would then appear whether the general principal received the money, but they do not show a allegations in the declaration could be sustained, request. [Perrin J.-Why should there be a renor can I see that the defendant would in any way quest? the obligation is to pay immediately. Cramp-be prejudiced by such a course of proceeding. For ton J.-The contract is silent as to time.] Upon these reasons I am of opinion that the demurrer to the question of special request we submit, the de- the first two counts of the declaration must also be fendant should have been requested by the plaintiffs, overruled. and they should have averred the time and place, and the person by whom the request was made; the word requested is the material part, and the special request must be shown to have been made by the plaintiffs in proceeding against the surety. The CRAMPTON, PERRIN, and MOORE, J. J., con- curred. ROLLS COURT. GUINNESS v. FITZSIMONS.-April 22nd. A creditor who appears in court to oppose the con- The bill was filed on the 19th of April, 1849, and stated that for several years prior to the year 1848, and until the 3rd of July in that year the plaintiff had carried on the trade or business of a banker, and kept a public shop for his banking business, and for several years paid the regular banker's license, and was known and recognized as a banker of the city of Dublin, and after stating various instances of banking, and the mode of carrying on business, submitted that the plaintiff was a banker within the meaning of the bankers acts, (33 Geo. 2, c. 14, Ir. and 40 Geo. 3, c. 22, Ir.) and stated that he stopped payment on the 3rd of July, 1848, and in pursuance of the said acts had vested his whole, real, and personal estate in Samuel Vignoles, and Edward Berwick as trustees for the payment of his debts, and defraying the expenses of executing the trust, that he had in all things conformed to the provisions of the acts, that the trustees had given a certificate of his conformity, which was signed by more than the number of creditors required by the acts; that on the 20th of December he had presented his petition to the Chancellor to allow and confirm his certificate, which petition was heard on the 3d of Febru ary, 1849, when but two creditors, representing not a fiftieth part of the debts, appeared to oppose, namely Patrick E. Reilly and the defendant. A reference was directed by the Chancellor to Master Litton to inquire whether plaintiff was a banker within the meaning of the Acts, and whether he had in all respects conformed to them. Under the order of reference the plaintiff had filed his charge, and the defendant a discharge, which stated that the defendant, who was an attorney, was a creditor to the amount of about £200, balance of a bill of costs. After the plaintiff's stoppage the defendant was sent notice of the trust arrangement, and called on to prove; he, however, declined doing so, and brought his action in the Court of Queen's Bench, to which the defendant being unable to plead the certificate, put in a plea of the general issue, accompanied by a notice of the proceedings taken to obtain the certificate, and cautioning the defendant from proceeding further at law; the same course was pursued at every subsequent stage of the action, and a trial was ultimately had at the sittings after Hilary Term, when there was a verdict for Fitzsimons. On the first day of term he entered a rule for judgment on the postea, and would be entitled to issue execution on the 21st. The bill stated the various proceedings in the Master's office, the plaintiff pressing on the case, and the defendant retarding it, as the bill alleged, for the purpose of delay, to enable him to issue execution, and prayed that the defendant might be restrained from proceeding to mark judgment on the postea, or, if the same were marked, from issuing execution or taking further proceeding, until the order of the Court should be pronounced on the plaintiff's petition. Mr. Butt, Q.C. moved for the injunction.-In the first place we contend that on the true construction of the 40 Geo. 3, the plaintiff is entitled to complete protection from the moment of the vesting of his property in trustees. [Master of the Rolls-On that construction of the act, you could have pleaded the certificate at law and you have no ground for coming into a Court of Equity.] It was not possible to defend the action at law; and secondly, we contend that the defendant having made himself a party to the proceeding in the petition matter should not be allowed to proceed at law. This is an application of the first impression, but interpleader cases and cases in which a Court of Equity grants an injunction to prohibit pirating with copyrights and patents pending the adjudication of the right before another tribunal are analogous ; [Master of the Rolls-Lord Cottenham states that he is slow to interfere where the question depends on restraining the exercise of a legal right. What position do I place the creditor in if not allowed to issue his execution? the plaintiff may leave the country.] Undoubtedly there are cases in which a Court of Equity interferes to restrain the exercise of a legal right, here the court takes the case out of the plaintiff's control, and it should not allow the defendant to oppose the adjudication in this court to enable him to gain an unjust advantage at law. In Bankruptcy a creditor will not be allowed to oppose the certificate and proceed at law, ex parte Bozannet (1 Rose.) Mr. J. D. Fitzgerald, Q.C. and Mr. Berkeley, contra.-We are at a loss to ascertain the equity to prevent the creditor pursuing his legal remedy; the first ground put forward by the other side is clearly unsustainable, the defence would have been good at law, and when the trustees had signed the certificate there could have been a plea puis darreign continuance. [Master of the RollsThe whole equity turns upon the defendant being a party in the petition matter.] Their remedy is misconceived, they should have applied by motion to the Chancellor. There is a distinction between this case and one in Bankruptcy; we are altogether Mr. Hickey in reply. There is no common injunction now; but, in fact, we could not have come earlier. It appears by the bill that it was agreed at the last meeting before the Master that the defendant should be communicated with, whether he would undertake not to issue execution, and his answer was not given until the 17th. The circumstances of this case require this injunction which is "a writ framed according to the circumstances of the case, commanding an act which this court regards as essential to justice, or restraining an act which it esteems contrary to equity and good conscience." Applying the latter part of this definition, would it not be an unconscientious advantage to allow the defendant to proceed at law and oppose in equity? and unjust for the court to take the administration of Mr. Guinness' affairs out of his hands, and hand him over, divested of every shred of property, to a hostile and perseveringly litigious creditor? If the decision be against the plaintiff, and he is declared not to be a banker, no doubt the defendant may be delayed; but that inconvenience is not comparable to the injury Mr. Guinness would sustain, if, pending the inquiry, and it were to terminate in his favour, he were thrown into prison; in the one case there would be a loss of liberty, in the other but a short delay, (for the court can require security for Mr. Guinness' appearance,) and we have laid at all events a primâ facie case of the plaintiff being a banker, which would entitle us to an injunction until answer. The case put by the other side, that the court does not interfere in creditors' suits until decree, only applies to distinct proceedings by separate creditors, but if a creditor were in any way to make himself a party in any suit by opposition or otherwise so as to accelerate a proceeding of his own, would it be arguable that the court would not have jurisdiction over him? The early cases in Bankruptcy are not applicable, the bankrupt code being at first framed in a spirit of harshness to the debtor; but that has been relaxed, and it is now settled that a creditor cannot oppose under the bankruptcy and arrest at law, and the bankrupt court can order an ad interim protection. The bankers' acts were remedial statutes; the plaintiff has complied with them strictly, his protection is delayed by the act of the court and of the defendant. May 23rd. The MASTER OF THE ROLLS having adverted to the statements in the bill, the appearance of the defendant before the Chancellor, his name being taken down in the order as opposing, the terms of that order of reference of the 3rd of February, the charge of plaintiff, and the discharge of the defendant, in which he not only denied that the plaintiff was a banker within the meaning of the acts, but also that he had conformed to their provisions, and that, pending the reference, the defendant insisted he was entitled to issue execution, and having read the second section of the 40th Geo. 3, cap. 14, stated that it had been argued at great length by counsel for the plaintiff that the certificate of the trustees entitled the plaintiff to protection, although it had not been allowed by the Lord Chancellor, but that it appeared to him that there was no foundation for that argument, that the provisions of the statute nearly corresponded with those in the Irish Bankrupt Act, (11 & 12 Geo. 3, c. 8,) which was passed in the interval between the two bankers' acts, and having referred to the 43rd, 46th, and 49th sects. of the II & 12 Geo. 3, c. 8, (folio edition,) said that the decisions on the English Bankrupt Act were express. Webb v. Marsh, (7 T. R. 227,) where Lord Kenyon said, "As to the certificate being signed, but not allowed, it operates nothing." Tudway v. Bourne,(Bur. C. C. 19,) and Stapleton v. Mucbar, (7 Taunt. 589.) Upon the second branch of the case a question arises whether the defendant, having appeared on the mo tion before the Lord Chancellor, and rendered the reference necessary, should not be bound to await the result, or can be allowed to proceed at law pending this reference. There are two courses in Bankruptcy open to a creditor: having proved under the com mission he may oppose the confirmation of the cer tificate; or he may proceed adversely to supersede the commission; a third course a creditor cannot be allowed to resort to; not having proved, oppose the allowance of the certificate, and take the bankrupt in execution His Honor then referred to Ez parte Bostock, (1 D. & Ch. 383); Ex parte Lord, in re Stephens, (2 Rose, 421); Ex parte Joseph, (1 Rose, 189; S. C. 18 Ves. 340,) and said he con sidered it would be unreasonable to allow the defendant to oppose the certificate, and at the same time to proceed at law, and take the plaintiff in execution. In Ex parte Hardenburgh, (1 Rose, 204,) the bankrupt had obtained his certificate, but whilst it was before the Lord Chancellor for allowance, a creditor who had obtained a judgment for £200, and had not gone in under the commission, presented a petition impeaching the commission, and praying that it might be superseded; upon this petition an inquiry was directed, there was also a sum due for costs to the same creditor, who having issued an attachment for them, arrested the bankrupt, and the latter petitioned for his discharge; the Lord Chancellor, in giving judgment, said, “There is not in this case the difficulty which has been urged on the point of jurisdiction, whether if a creditor comes here merely to remove the commission or certificate out of the way of his proceeding at law, I should consider him as coming in under the commission, and restrain him from proceeding at law, for in this case the creditor goes farther, he prays an inquiry into circumstances impeaching the validity of the commission with a view to supersede it, or in case that the commission should not be superseded that there may be a new choice of assignees, and that be may be permitted to prove; now it seems exceed. ingly clear that pending this inquiry, he himself proposing it, he must abide by the alternative, and stop till the result is ascertained." In the present case the defendant goes farther by his discharge than the opposition to the certificate, for he requires proof of the execution of the deeds vesting the estate in the trustees; he also insists that even if the plaintiff is a banker he has not complied with the requisitions of the statutes, and renders it necessary for the plaintiff to go into evidence to prove this alternative inquiry. If the defendant had not appeared before the Chancellor I might have no jurisdiction, but, having done so, I will grant this injunction. Lib. 285, fo. 334. MASTER'S OFFICE. IN THE MATTER OF R. S. GUINNESS, PETITIONER. A party trading openly as a banker found to be a banker within the meaning of the Acts, 33 Geo. 2, c. 14, and 40 Geo. 3, c. 22, notwithstanding that he carried on another more ostensible business than that of banker. Held that the 33 Geo. 2, c. 14, and 40 Geo. 3, c. 22, extend to all bankers, as well those whose banks are not of issue, as those which are so. The reference was proceeded with before Master Litton, the charge of the petitioner stating nearly the same facts as to banking as those charged in the bill, and averring that he assumed openly, notoriously, and manifestly the character of a banker, kept open shop or place of business, was known by common repute as a banker, received lodgments on accountable unstamped receipts, paid drafts or cheques of persons having banking accounts with his firm, that his drafts were taken in lodgment by other bankers, that he issued letters of credit on bankers in England, and on the continent of Europe, charged the usual banker's commission in his dealings with foreign bankers, discounted bills, paid banking license until the year 1843, when he was informed it was not necessary to pay license except he issued notes, that his name appeared as a banker for several years in the public Directories, and sheet almanacks, that his books were kept strictly as banking accounts, and distinct from his business as Land Agent, that his transactions were very large, exceeding in some years a million sterling, that for some time he acted as agent to the Agricultural Bank, and that his house was the only house in Dublin where their notes could be retired until a change in the law removed the restrictions imposed on Joint Stock Banks. That his house of business was open every day, except Sundays and the usual bank holidays, from 10 to 3. The discharge traversed some of these statements, and stated that the petitioner drew cheques on Messrs. La Touche as a private person and not as a banker, that his house of business had not the appearance of a banking establishment, that he held himself out as a land agent and not as a banker, that he was not at the time of his stoppage duly licensed, that any banking business which he carried on was merely incidental to his business as a land agent, and for the convenience of the parties with whom he was so connected, that after dilligent inquiry the defendant could discover no instance of the plaintiff having acted as a banker, and that he never issued notes. gular business, and from three to four for the payment of bills; that a cashier was always ready to receive and make payments; and 18 witnesses, includ.. ing Mr. Alexander Boyle and Mr. Wm. Digges Latouche, swore, that he was known by common re-. pute as a banker. It was also proved that his. cheques were taken in payment by other bankers and other bankers cheques by him; his books were produced, and there were distinct ledgers for the land agency and banking accounts. Various almanacks, directories, bankers licenses, forms of drafts, receipts, dockets and cheques, which passed through other banks, were also given in evidence. The defendant's witnesses proved that the defendant's firm kept an account with the Bank of Ireland, and that when he opened the account he designated himself as Land Agent and Barrister-at-Law. The secretary to that bank stated that he never directly had any communication with the petitioner or his copartners in the capacity of bankers; that he always understood him to be a Land Agent, and believed that he discounted bills to accommodote some of his friends, and did not think he was known by the public as a banker, and did not believe that the petitioner came under the denomination of a banker. On cross-examination, after examining the various documents used by the petitioner in his business, he stated that if documents similar in form represented bonâ fide transactions, he would say that the firm of R. S. Guinness and Co., were conducting the, business of bankers, and that it was customary for bankers in the city of Dublin to keep accounts with the Bank of Ireland. Two other gentlemen connected with the Bank of Ireland, and Mr. Richard Williams, gave nearly similar evidence in their direct examination, and qualified it on cross-examination. Mr. Henry Beaumont and Mr. Wm. D. Latouche, who were both examined by the defendant swore, both on direct and cross-examination, that they believed the petitioner to have followed the business of a banker, and that he was reputed to be such in the course of business in the city of Dublin. The defendant also gave in evidence the answer of the petitioner to a cross bill, filed by the widow and minor children of his deceased partner, for discovery of the accounts of the partnership, and also the deed of partnership executed in 1838, in which the firm became partners as Land Agents, and the dissolution of that partnership in the Dublin Gazette as Land Agents. It appeared by the answer that it had general reference to partnership transactions, and the petitioner in one passage spoke of his present business as "banker and land agent," and The petitioner examined more than twenty wit-in another of charging interest "according to nesses and the defendant six; several of the former established mercantile custom, and to the usage of proved that they kept Banking and no other ac- bankers." counts with the petitioner, and that they, in fact and truth, believed him to be their banker. It was also proved by a number of witnesses that his house had the appearance of a banking establish ment; that he received lodgments on accountable uustamped receipts, paid drafts or cheques; issued letters of credit; discounted bills in the same way as other bankers; that the forms of dockets, cheques, pass-books were the same as those used by bankers; that his house was open from ten until three for re Mr. Hickey for the petitioner. It will be necessary to prove two points, first, that the bankers' acts apply to banks of deposit as well as banks of issue, and, secondly, that the petitioner was a banker within their meaning, and that his trading was not incidental to his other business, but a distinct, substantial and known occupation. There are three statutes that it will be necessary to refer to: the 8th Geo, 1, c. 14; 33rd Geo. 2, c. 14; 40th Geo. 3, c. 22. In none of them is the word "banker" defined, nor can |