gigantic rebellion. Startling as the suggestion of a war power in the Government, not restricted by the Constitution, would have been to its founders, this is but begging the question, or at most, but justifying the acts with the United States army in time of war. It remains now to be seen whether the Supreme Court of the United States will maintain them. Certainly, if time is an indicator, it has betrayed reluctance in the Abandoned Property Case in point. EDMUND S. MALLORY,

Jackson, Tenn.

Digest of English Law Reports for August, September, Oc

tober and November, 1873.

AGENT.

1. Company Director-Warranty of Authority-Misrepresentation of Fact. The directors of a railway company which had fully exercised the borrowing powers conferred upon it by its special act, in August, 1864, advertised that they were "prepared to receive proposals for loans on mortgage debentures," "to replace loans falling due." W. W. (the plaintiff's testator) offered a loan of £500; and, his offer being accepted, he in the same month, sent his cheque for £500 to the directors, for which he requested that a debenture should be issued to him. In pursuance of a resolution of the directors to that effect, the cheque was handed to II., the contractor for the works, who had been (but then had ceased to be) the holder of seven debenture bonds for £500 each; and H. was requested to transfer one of them to W. W., and it was by the same resolution directed "that such bond be on the 1st of October exchanged for a new one." H. kept the cheque (which was duly honored), but was unable to transfer the debenture; and in pursuance of a resolution of the directors of the 5th of October, a new debenture bond for £500 was sealed and sent to the plaintiff, as executor of W. W. The defendant, a director of the company, was a party to each of the above transactions. By a decree of the Court of Chancery, of the 14th of February, 1868, the above mentioned debenture was declared void, as being for a sum in excess of the borrowing powers of the company. Upon a case stated for the opinion of the Court, without pleadings, and upon the argument of which it was agreed that no question of non-joinder was to be raised: Held, that the defendant was liable as for a breach of warranty; that the directors had power under the circumstances, to issue a debenture, which would be valid and binding upon the company; and that the plaintiff was entitled to recover as against him the £500, together with interest by way of damages: Weeks v. Propert, C. P., vol. viii., 427.

2. Indemnity of Agents-Stock Exchange Usage-Defaulting Broker. The plaintiffs, brokers on the London Stock Exchange, bought for the defendant (who was not a member of the Stock Exchange), certain shares for the account of the 15th of July, 1870, and on that day, by his instructions, carried them over to the account of the 29th of July, and paid differences amounting to £1688. The defendant and various others, principals of the plaintiffs, not having paid the amount due from them in respect of contracts for the 15th of July, the plaintiffs became defaulters, and on the 18th, in conformity with the rules of the Stock Exchange, they were declared defaulters, and their transactions were closed, and accounts were made up, at the prices current on that day. On the closing of the accounts, a further sum became due from them in respect of differences upon the contracts carried over by them for the defendant. In an action to recover this sum and the £1688:

Held (reversing the decision of the Court below), that the defendant was not liable for anything beyond the £1688, there being no implied promise by a principal to his agent to indemnify him for loss caused, not by reason of his having entered into the contracts which he was authorized to enter into by the principal, but by reason of his own insolvency: Duncan v. Hill, Ex. (Ex. Ch.,) vol. viii., 242.

ASSIGNMENT OF ALL DEBTOR'S PROPERTY.

On the 6th of June, 1871, G., a dealer in oil, borrowed £400 of N., his brother-inlaw, the money to be re-paid in a month. The money not having been repaid when due, N. pressed for it, and ultimately placed the matter in the hands of his solicitors, who gave G. till the end of July to pay. On the 1st of August G. asked N. for further time, and N. said he must have a speedy settlement or he should take proceedings. G. said he would do what he could during the week. On the 5th of August he went to N. and said he had no money, but that he had some oil, and that if N. could induce a firm of B. & Co., in which he had formerly been a partner, to buy it, he should be paid out of the proceeds. N. went to B. and explained the circumstances to him, and ultimately B. consented to treat with G. G. then went to B., and in the result, a contract was entered into by B., on behalf of his firm, to buy fourteen casks of oil from G. At this time, G. had, in fact, no oil, but on the 9th of August, he ordered fourteen casks from W. on credit, and this oil was by G.'s direction sent to B. & Co. G. never paid for it, and had no means of doing so when he ordered it. On the 15th of August, G. called at the warehouse of B. & Co. to settle the purchase, and by his order B. & Co. paid to N. the amount of his loan and interest, and paid the balance of the price of the oil to G. On the 6th of April, 1872, G. was adjudicated a bankrupt, the act of bankruptcy being the filing of a petition for liquidation on the 7th of March. The trustee afterwards applied to the County Court to set aside the payment of the £400 to N. as a fraudulent preference and an act of bankruptcy. The case was tried by a jury, who found that when the transaction took place the oil was substantially the whole of the bankrupt's property; that to the knowledge of N. he was insolvent: and that the transfer was not made bona fide, but fraudulently without pressure, with a view of giving N. a preference over the other creditors of G.

The judge thereupon held, that the transaction was void as an act of bankruptcy, and a fraudulent preference, and ordered N. to pay to the trustee the sum which he had received.

On appeal, held, that the purchase of the oil was a bona fide transaction in the ordinary course of trade, and that N. was a payee in good faith, and for valuable consideration; that there was no act of bankruptcy and no fraudulent preference. The order of the County Court Judge was, therefore, discharged.

The proviso in section 92 of the Bankruptcy Act, 1869, in favor of a purchaser, payee, or incumbrancer, in good faith and for valuable consideration, extends to a case where the consideration is the payment of a pre-existing debt.

The court may disregard the finding of a jury if it sees that it is inconsistent with the evidence, and need not direct a new trial to take place: Ex parte Norton, In re Golden; C. J. B., (Eq. cases), vol. xvi., 397.

BILL OF EXCHANGE.

Acceptance- What it Admits-Estoppel-Unauthorized Indorsement by one of two Partners. B., a member of the firm of W. & B., attorneys and solicitors, drew and indorsed for value to the plaintiff in the partnership name, a bill of exchange, payable to the order of W. & B., which the defendant accepted without consideration. The indorsement was in respect of an entirely private matter of business between B. and the plantiff, unconnected with partnership purposes; B. had no authority from W. either to draw or indorse the bill. In an action by the indorsee against the acceptor, the defendant having traversed the indorsement:

Hell, that the defendant was not estopped from showing that there had been no indorsement in fact by the firm: Garland v. Jacomb, Ex., (Ex. Ch.), vol. viii, 216.

BUILDING CONTRACT.

The engineer of a railway company prepared a specification of the works on a proposed railway, and certain contractors fixed prices to the several items in the specifications, and offered to construct the railway for the sum total of the prices affixed to the items. A contract under seal was thereupon made between the contractors and the company, by which the contractors agreed to construct and deliver the railway completed by a certain day at a sum equal to the sum total above mentioned. If the contractors failed to proceed with the works, the company might take possession and proceed with them; in which case a valuation should be made by the engineer, or, if either party required it, by arbitration. The contract contained provisions making the certificate of the engineer conclusive between the parties; and it was provided that all accounts relating to the contract should be submitted to and settled by the engineer; and that his certificate for the ultimate balance should be final and conclusive; it was further provided that all questions, except such as were to be determined by the engineer, were to be referred to arbitration.

The railway was completed and the engineer gave his final certificate as to the balance due to the contractor.

The contractors had assigned their interest in the contract to trustees on trust for their creditors and for themselves, in certain proportions.

The contractors filed a bill against the company, making claims on several grounds, and praying an account and payment:

Held, that the contractors could not, on mere verbal promises by the engineer, maintain against the company a claim to be paid sums beyond the sums specified in the contract under seal:

Held, that, although the amount of the works to be executed might have been understated in the engineer's specification, the contractors could not, under the circumstances, maintain any claim against the company on that ground:

Held, that, in the absence of fraud on the part of the engineer, and where his certificate has been made a condition precedent to payment, his certificate must be conclusive between the parties:

Held, that one of several cestuis que trust, could not, on an allegation that the trustees refused to take proceedings, maintain a suit against a debtor to the trust estate,

Where a contract has provided that the certificate of the engineer or of an arbitrator shall be a condition precedent to payment, the Court does not obtain jurisdiction because of the power to refer to arbitration.

Per Lord Romilly, M. R.: Mere allegations of fraud without facts, from which fraud will be inferred are not sufficient to avoid a demurrer.

Order of the Master of the Rolls affirmed: Sharpe v. San Paulo Railway Company, L. JJ., (Ch. Ap.) vol. viii, 597.

CHARTER-PARTY.

Lump Freight-Loss of part of Cargo by Perils of the Sea without Default of Shipowner- -Deduction from Freight. A charter-party from Riga to London, provided that the ship should load a full and complete cargo of lath-wood, and deliver the same on being paid freight as follows: a lump sum of 3151. There was the usual exception of sea risks, and the freight was to be paid half on arrival, and the remainder on unloading and right delivery of cargo. Part of the cargo, loaded in accordance with the charter-party, was lost by perils of the sea, without any default of the master

or crew:

Held, that the ship-owner was, on delivery of the remainder of the cargo, entitled to the full sum: Robinson v Knights, C. P. vol. viii, 465.

CONDITION.

If the directors of a railway company become, for the purposes of the company, lessees of land, with a privilege to use docks, and agree to pay rent and royalties to the owner of the docks, and enter into other conditions which, by a state of circumstances subsequently created, appear to be unreasonable and impolitic, such stipulations and conditions can not, on that account, be treated as ultra vires of the directors.

Nor can a condition to pay shipping dues, not only for goods actually brought along the railway and shipped at those docks, but for goods brought along the railway to be shipped at other docks, be treated as a covenant in restraint of trade: Taf Vale Railway Company v. Macnabb, (House of Lords, Eng. and I. Appeals,) vol. vi 169.

CONDITIONS OF SALE.

Vendor and Purchaser-Power to rescind. The defendant, in March, 1868, (as surviving devisee in trust), sold by auction to the plaintiff's testator land and tolls (lots 3 and 4) under certain conditions. Condition 3 provided that the vendors were to deliver to the purchaser an abstract of title within seven days from the sale, the purchaser was to make his objections and requisitions within twenty-one days of the delivery of the abstract, and all objections and requisitions not made within that time, were to be taken to be waived; "and, in case any purchaser shall make any objection or requisition on the title of the respective lots, which the vendors shall be unwilling or unable to answer or comply with, the vendors reserve to themselves the option, notwithstanding they may have attempted to answer or comply with such objections or requisitions, or may have partly done so, at any time to rescind the contract for sale of the lot or lots, in respect of which such objections or requisitions shall be made, upon repaying or tendering to such purchaser or purchasers the deposit money, without interest, costs, or expenses, in full of all claims or demands for the investigation of title or otherwise." An abstract was delivered, on which the purchaser made and insisted on two objections, of which one (as to lot 3) was frivolous, and the other (as to lot 4) was an objection as to quantity, in respect of which he was, under another condition, only entitled to compensation, which was offered. The defendant thercupon, on the 24th of July, filed a bill in Chancery for specific performance, and the purchaser, on the 23rd of September, put in an answer, in which he reiterated his objections, and also objected to complete on the ground of certain transactions affecting lot 4 which had not been disclosed by the abstract. These transactions were known to the vendor at the time of the sale, and were intentionally, but bona fide omitted from the abstract, as it was supposed they did not affect the title. The contents of the deeds, relating to these transactions, were first communicated to the plaintiff by an affidavit, made by the defendant in this action under an order for discovery; but the deeds were previously known to his attorney, who had been a clerk in the office were they were prepared. On the 2nd of December, the purchaser died; on the 26th of January, 1869, the vendor's solicitor wrote to the solicitor of the purchaser, requesting particulars of the probate of his will; and, on the 12th of February, the vendor (the now defendant) announced his intention to rescind, and afterwards formerly rescinded the contract, and tendered the deposit. An order was made in the suit that the defendant, the plaintiff in the suit, should revive it, or that the bill should be dismissed without costs, and the suit