chased an annuity granted by the debtor after the date of the trust deed. The trustee died. His representatives sought to enforce the annuity against the grantor. It was held that they could not do so, and a decree of the court of session affirming their right was reversed. Hamilton v. Wright, 9 C. & F. 111. VENDOR AND PURCHASER. (Misdescription not causing loss.) A manor was described in the advertisements and the particulars of sale as a manor in which the fines were arbitrary; adding, that the clear profits on an average of the last eight years had been 1501. a year; and it was one of the conditions of sale, that if there should be any error or misstatement in the particulars, the vendors or purchaser, as the case might happen, should pay or allow a proportionate value, according to the average of the whole purchase money, as a compensation either way. After the sale it was found that by the custom of the manor arbitrary fines were payable only on alienation, and that on the death of a tenant, his customary heir paid, upon admittance, a small fixed sum, and the widow was admitted to her free-bench without any payment. It was also found that the clear profits exceeded 2001. a year: Held, (reversing a decree made on a bill, which was filed by the purchaser for specific performance, with compensation in respect of the misstatement as to the fines,) that there was no such misdescription as would entitle the purchaser to compensation, inasmuch as the annual profits far exceeded the amount stated. White v. Cuddon, 8 C. & F. 766.

2. (Sale by trustee-Compensation.) Semble, that in a case of misdescription, a court of equity would not enforce against trustees specific performance with compensation, as being prejudicial to the cestui que trust. White v. Cuddon, 8 C. & F. 766. WILL. (Construction—Description of subject.) A. being seised of certain lands at K., in the county of C., demised them to B. for three lives; B. agreed to assign the lease for lives to C., and C. entered into possession of the lands, and obtained from A. a lease of the same lands for 999 years at a peppercorn rent during the continuance of the lease for lives, and afterwards at 100l. a year. C., having these interests in the lands, made his will, in which was the following clause: "I order all my freehold interests in the county of C., &c., except my interest in K., which I hold 38

VOL. II.

under A., to be sold, and the money arising, &c., to be divided:" Held, affirming the decree of the court of chancery of Ireland, that C.'s interest in the lease for lives was disposed of by this clause in the will. Gurly v. Gurly, 8 C. & F. 743.

APPEALS ON REPORTED CASES.

ANNUITY. Haworth v. Bostock, 4 Yo. & Col. 1. The decree in this case, dismissing the bill for arrears of the annuity, varied by retaining the bill for twelve months, with liberty to plaintiff to bring action. 9 C. & F. 59.

HUSBAND AND WIFE. Jones v. Waite, 5 Bing. N. C. 341. The judgment of the court of exchequer chamber, establishing an agreement by a third party, made in consideration of husband executing a deed of separation, affirmed. 9 C. & F. 101. RAILWAY ACT. Simpson v. Lord Howden, 2 P. & D. 714, 731. The judgment of the court of exchequer chamber, establishing an agreement under seal by railway company to give an exorbitant price to lord Howden for his land, affirmed, the question of fraud not being raised by the pleadings. 9 C. & F. 61.

WILL. Collison v. Curling, 4 M. & C. 63. The decision of the

lord chancellor, declaring the legacy not adeemed by change of investment, affirmed. 9 C. & F. 88.

441

DIGEST OF AMERICAN CASES.

[Selections from 4 Metcalf's (Massachusetts) Reports; 4 Weston's (Vermont) Reports; 2 M'Lean's (U. S. Circuit Court) Reports; 11 Gill & Johnson's (Maryland) Reports.]

ACTION. (Debt on bond payable by instalments.) On a bond payable by instalments, debt cannot be sustained until they shall all become due; but if the payment be secured by a penalty, debt may be brought. When there is no penalty covenant is the proper action for the instalments on a bond, or assumpsit, if the instalments be due by simple contract. Fontaine v. Aresta, 2 M'Lean 127.

AGENT. (Lien of factors.) A factor has a lien on the property of the principal in his hands for all advances made, and for any balance that may be due; also for responsibilities incurred by the factor for the principal in the general course of their business. But this lien is put an end to by a voluntary delivery of the property. The factor or agent cannot stop property in transitu, where he has voluntarily delivered up the possession of it, on any pretence that he has a lien upon it for advances made on account of the principal. Having parted with the possession of the property he has relinquished his lien and cannot reassert it. Matthews et al. v. Menedger, ib. 153.

2. (When factor not liable for solvency of purchaser.) A factor

sold goods of his principal to several different purshasers, on credit, and also sold his own goods, on credit, to one of the same purchasers, and took a note payable to himself for the amount of his own goods and those of the principal: He rendered an account of sales to his principal, stating at the foot thereof that the balance would be "due by average, if collected," on a certain day, and directed the principal to charge him "with sales due on" that day, the amount of the balance of said account: He afterwards made advances to the principal, and gave him a negotiable note, payable on demand, for the balance of the account as before rendered:

The purchaser, of whom the factor took a note, as aforesaid, failed before the term of credit had expired, and paid nothing for the goods for which his note was given: Held, in a suit on the note thus given by the factor, that these facts did not show conclusively, that he was bound to pay the note in full, as they did not show a final settlement and payment of the account; but that, on these facts, so much of the consideration of the note as included the debt of the insolvent purchaser, had failed, and that, for so much of the note the factor was not liable. Hapgood's executors v. Batcheller, 4 Metcalf 573.

3. (Liability of agent in contract for his principal.) In simple contracts, executed by agents, if the agent exceed his authority, he thereby binds himself, although he execute the contract in the name of the principal. So, too, if the credit is given to the agent, and he expressly consent to bind himself. But if he have authority to bind the principal, and the credit is given to the principal, and the pronise is made on behalf of the principal, the agent is not liable. Where the agent exceeds his authority, in contracts under seal, in many cases, the more appropriate remedy is by a special action on the case. Roberts v. Button et al., 14 Vermont

195.

ASSUMPSIT. (When indebitatus assumpsit lies.) If the plaintiff fails to prove the special contract laid in his declaration, or the contract has been performed on his part, and a duty is imposed on the defendant to pay the amount due in money, the plaintiff may recover on the general counts. Ames v. Le Rue, 2 M'Lean 216.

2. (Same.) No recovery can be had in the action on book where the contract is executory, and unrescinded, though in part executed. Smith v. Smith, 14 Vermont 440.

3. (Use and occupation.) A. made an oral agreement for the purchase of B.'s house, advanced the purchase money, and took possession. Before A. obtained a deed, the house was destroyed by fire, and he thereupon vacated possession of the ground, refused to accept a deed which B. tendered him immediately after the fire, and commenced a suit against B. in which he recovered back the purchase money: Held, that A. during his occupation of the house, was tenan at will, and that he was liable to B. in an action of

assumpsit for use and occupation: Held also, that A., by refusing to accept a deed from B., determined the tenancy at will, and was no longer liable to him for use and occupation. Gould v. Thompson, 4 Metcalf 224.

4. (Consideration.) The compromise of a doubtful claim or defence is a sufficient consideration for a promise. Barlow v. Ocean Ins. Co., ib. 270.

BANKRUPT LAW. (Operation on state insolvent law.) The act of congress to establish a uniform system of bankruptcy throughout the United States does suspend the operation of the law of this commonwealth, entitled "an act for the relief of insolvent debtors and for the more equal distribution of their effects," as to all persons and cases that are within its provisions. Judd v. Ives, ib. 402.

This consequence of the act is limited to cases instituted under the insolvent law subsequent to the period when the bankrupt law went into operation, and it cannot supersede or suspend proceedings rightfully commenced under the insolvent act prior to the time of its going into operation. Ib. BILLS OF EXCHANGE AND PROMISSORY NOTES. (Negotiability.) To bring a note within the statute of Anno, which has been generally adopted in this country, it must be payable in money, and not in stocks, funds or current paper, and must be for a sum certain, subject to no conditions. Therefore a note executed in Michigan, payable in New York, in New York funds or their equivalent, is not negotiable. Hasbrook et al. v. Palmer et al., 2 M’Lean 10.

2. (Same.) An order in this form-"Pay J. or order $300, if the same may be due him from me on his and my settlement, out of the last payment due from you to me, on houses which I am now building for you"-and accepted by the drawee, cannot be declared on as a bill of exchange: But the drawee, in order to maintain an action thereon against the acceptor, must aver and prove that, before action brought, there was due to the drawee, upon a settlement with the drawer, $300 or some other sum, and also that a sum of money was due from the acceptor out of the last payment to be made by him to the drawer on the houses mentioned in the order. Jackman v. Bowker, 4 Metcalf 235.