action is brought by the clerk against his employer, the solicitor cannot file a bill against the clerk to restrain the action. The clerk says here, "I have a claim for 11751. for remuneration; I admit that I have received certain sums, and there is a balance on those sums due to you, which reduces my claim to 11187., and that sum I claim." Surely that is not a ground for filing a bill for an account. I cannot see any thing showing any employment of the Defendant except as clerk. If it had turned on the question whether the Plaintiff had employed Taylor as his agent to collect rents, the allegation being that he was employed as the Plaintiff's agent for that purpose, I should not have been satisfied with the Defendant's explanation; for he does not swear distinctly he did not collect the rents as agent. If then the case turned on agency, I should not have been satisfied; but the allegation is not that the rents were Fluker's rents, but that he employed Taylor as his clerk to collect the rents. That is not a case of principal and agent, but simply of the employment of Taylor as his clerk to do that for him which he would otherwise have done for himself. Then as to complication, no doubt the items may be numerous; but, except in the allegation that the accounts are complicated, I am at a loss to find any thing to show any ground for suggesting complication. The items, as I have said, may be so numerous that a judge at common law will refuse to go into them, but that is not a ground for coming here.

It is difficult to lay down any fixed rule which goes to mark out the line between those cases when an account must be taken in equity, and when it need not. An attempt has been made to lay down such a rule, by saying the accounts must be mutual, that there must be receipts and payments on both sides. Now, even if that were the

1855.

FLUKER

v.

TAYLOR.

1855.

FLUKER

v.

TAYLOR.

rule, this case does not contain any allegation of any receipts by the Plaintiff. But it really appears to me that it would be dangerous to lay down the rule in any such terms. For, take the common case of any gentleman of fortune keeping a mere money account, not a business account, with his banker: he pays money to the banker, and the banker pays his cheques; that is mutual receipt and payment: the banker receives money from the customer, and pays cheques to the customer; and the customer pays money into the banker's, and draws money out. If the rule were as stated, such a case would fall within it, while it is clear in such a case no bill would lie. It is therefore dangerous to say the equity depends on mutual receipts and payments; the equity must depend, in each case, on the nature of the account; it depends on this, whether the account is in its own nature, not merely from number of items, but from its nature, so complicated that this Court will say, such an account cannot be taken in a Court of Law. That is not this case; the main if not the only question, is the claim of 1,175l. for remuneration, and that is not a question of account so complicated that it can be said that a Court of Law cannot deal with it. The motion must therefore be refused with costs.

MANSFIELD, a ship builder, by a deed of the 5th
of January, 1852, mortgaged to Good the hull of a vessel
which he was building. By deed of the 1st of April, 1852,
Mansfield mortgaged the same ship and other stock to
the Plaintiff. The Plaintiff immediately gave notice to
Good as first mortgagee. At that time the ship was in
fact not completed. From that time to December, 1852,
the Plaintiff continued to make advances on his
gage to Mansfield; and Good also, during the
period, made advances to Mansfield up to and beyond
the sum included in his mortgage.

mort

same

In February, 1853, Good transferred his debt to the Defendants Lovibond and Carslake, and Mansfield there

upon executed a bill of sale to them.

Good, at the time when he transferred his security,

1855: 16th Feb.

Ship Registry
Acts.
Notice.

1. A mort

gagee of a ship,

with notice of

a prior unregistered equitable mortgage, registers, the prior equitable mortgagee is postponed to him.

2. The reclusive as to the gistry is conship being in a fit state to be registered under the 8 & 9 Vict. c. 89, although there may be evidence to show

that the ship

was not com

gave notice to Lovibond and Carslake of the Plaintiff's pleted at the claim, and of the deed of April, 1852.

The vessel was not yet launched at the date of the filing of the bill. The ship was registered on the 10th of November, 1852; and the bills of sale of Mansfield to Good, and of Mansfield to Lovibond and Carslake,

time of the
registry.

1855.

COOMBES

were also then registered. The Plaintiff alleged, that he was not aware of that registry till some considerable time after it; and that the registry was premature and inMANSFIELD. valid. The Plaintiff's mortgage deed never was re

บ.

gistered.

The Plaintiff by his bill claimed that, subject to the mortgage to Good and the sum limited by it, he might be paid in priority over Lovibond and Carslake.

Mr. Baily, Mr. Shapter and Mr. F. Morris, for the Plaintiff, contended that the ship was never regularly registered; that at the time she was registered she was not in such a state as is required by the Ship Registry Act (12 & 13 Vict. c. 29, s. 18), and therefore the registry was a nullity; and that, removing the bar of the Registry Acts as conferring a legal title, the equity of the Plaintiff was clear and must prevail.

They referred to Read v. Fairbanks (a), Wood v. Russel (b), Clarke v. Spence (c), Armstrong v. Armstrong (d).

Mr. Glasse and Mr. Giffard, for the Defendants Lovibond and Carslake, referred to the evidence to show, that whatever might be the effect of the registry, the Plaintiff had notice of it; that he actually concurred in it. But whether he did or did not, the law of the case is clear. By the certificate of registry the legal title is complete against all the world: notice or even fraud cannot avoid the title so conferred. It is said, the certificate was irregular, because the ship was not completed; but the certificate was granted after survey

(a) 17 Jur. 918.

(b) 5 Barn. & Ald. 942.

(c) 4 Adol. & Ell. 448.
(d) Weekly Rep. 1853,678.

by the proper officer, and this Court cannot try the regularity of the certificate. [They referred to Goss v. Quinton (a), and the 8 & 9 Vict. c. 89, s. 34.] There cannot be a doubt that if the transfer had been made after the vessel was in a fit state for registry, the registry must have been conclusive. But then it is said, the vessel was not in a fit state, according to the statute, to be registered; that the transfer made before that registry to the Plaintiff was a good conveyance of the chattel; and that Lovibond and Carslake having notice are therefore bound.

side is in our favour.

Wood v. Russel cited on the other This Court must assume that the officer who has to grant the certificate has regularly done his duty. In Armstrong v. Armstrong, none of the cases decided by Lord St. Leonards were cited. [They referred also to Follett v. Delany (b).] That case turned on the 8 & 9 Vict. c. 89, s. 38. M'Calmont v. Rankin (c) also was not cited in Armstrong v. Armstrong. [They referred to Hughes v. Morris (d).] Then consider the 38th section of the act. There is nothing in that section to take out of it the case where a ship was de facto not completed at the time of the registry. It is supposed that Armstrong v. Armstrong is against us; but it is not so. [They referred to the judgment in that case.] As to one of the shares in the ship in that case, the Court refused to interfere. And as to the others in which it did, it is put on the ground of fraud. Therefore, in this case, unless they can show fraud, and notice in us of the fraud, Armstrong v. Armstrong does not apply.

Then as to the facts: the evidence shows that the

1855.

COOMBES

v.

MANSFIELD.