of the means whereby it had been effected; and the following resolution was then passed:-"That the Loyd's bonds, amounting to 70004., given as a secuy for the liability of the chairman under the bill for 95001, held by the Union Bank, be redeemed, and hat his expenses in raising that money be paid by he company out of the first moneys in the hands f the company." The company, however, having absequently refused to pay the first half-year's inrest on the bonds, the plaintiff (who had meanwhile etermined his connexion with the company) brought e present action, not only to recover the amount of e half-year's interest, but also to test the validity of be tords. The plaintiff had a verdict for 1531., leave eing reserved to move to set aside the verdict, and nter a nonsuit.

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A rule was accordingly obtained; against which Brill, Q. C., and L. Kelly shewed cause.-' -The inarents in question, commonly known as Lloyd's nds," are valid, and the plaintiff is entitled to rever upon them. Under sect. 8 of their act of incorration (23 & 24 Vict. c. clxxv), the company are powered "to borrow, on mortgage of their undering, any sums of money, not exceeding in the whole sum of 185,0007., but no part of that sum is to be rowed until the whole of the said capital of 555,000l. have been subscribed for, and until they shall ve to the justice who is to certify, under the proSons contained in the 40th section of the Compaies Clauses Consolidation Act, 1845, before he so ties that all such capital has been subscribed for fide, &c., and until one-half of such capital shall ve been paid up," &c. To these restrictions another superadded, by sect. 38 of the Companies Clauses nsolidation Act, 1845 (8 & 9 Vict. c. 16), which | quires the sanction of a general meeting of a comy to the exercise of their borrowing powers under special act. These sections, it will be argued the other side, render these bonds in question and void, as having been issued by the company a vires; and, if applicable, no doubt this would be but inasmuch as sect. 8 of the defendants' special has reference to borrowing on mortgage only, it is ar that this, which is a transaction of a totally difent nature, is not within the restrictions imposed. Cruick v. Parry, 7 Exch. 355). Moreover, the law not prohibit directors of a company to acknowde a debt due from them; and if this be the case, by may they not do so under seal? And why (seeing at if they gave a bond, and suffered judgment thereon by default, their property would be available for satisfaction of the debt) should they not be sued on such an instrument? [Blackburn, J.-Your arment is, that an incorporated company may borrow bond, unless such mode of borrowing be expressly bidden; but the question seems rather to be, whe, looking at the general scheme of the statutes in estion, such mode of borrowing is not by implicaa forbidden.] Bateman v. The Mayor, &c. of Ashler-Lyne (3 H. & Norm. 323) is an authority at a corporation is as much bound by their contracts er seal as an individual, unless it appears by the This provisions of their act of incorporation, or by sary inference (which is not the case here), that 3 contract was ultra vires. In Payne v. The Mayor Procon (3 H. & Norm. 572) a municipal corporation re held bound by their covenant to repay money towed, although the money was not dedicated to purposes to which the borough fund was applie; and, notwithstanding that the covenant was tained in a mortgage deed, entered into contrary to the provisions of an act of Parliament; and to the me effect are the decisions in Pallister v. The Mayor of Gravesend (9 C. B. 774) and Kerrison v. Cole (8

East, 231), in which latter case it was held, that though a mortgage of a ship was void under a certain statute, yet that a covenant in the same instrument for payment of the mortgage money was good. Bill v. The Darenth Valley Railway Company (1 H. & Norm. 305; S. C., 2 Jur., N. S., 595) is also in favour of the plaintiff. To the same effect are a series of decisions in equity. (Troup's case (In re The Electric Telegraph Company of Ireland), 29 Beav. 353; Hoare's case, 30 Beav. 225; White v. The Carmarthen and Cardigan Railway Company, 33 L. J., Ch., 93). Then, further, it is submitted, that the circumstances of this case do not constitute a borrowing by the company. The borrowing was not by the company, but by the plaintiff, and the money raised never came to the hands of the company at all.

Lush, Q. C., and C. W. Wood, in support of the rule. —This amounts, to all intents and purposes, to a borrowing by the company; and that being so, the bonds are void, the loan having been effected without the fulfilment of the conditions imposed upon the companies, by the combined operation of the general act and their act of incorporation. These companies are the creatures of the Legislature, constituted for the carrying out of particular objects, and public policy requires that their powers should be accurately defined, and strictly followed. The amount of their capital is fixed by act of Parliament, and if securities of this kind are to be issued by them at pleasure, the consequence would be, the introduction of a new and strange element into the currency-a state of things which the Legislature obviously never contemplated. It was with the object of preventing railway companies from raising money by unauthorised means that the 7 & 8 Vict. c. 85, was passed, prior to which there was no general act applicable to the purpose. Sect. 19, after reciting that such companies have raised money, contrary to the provisions of their acts of incorporation, "upon loan notes, or other instruments purporting to give security for the repayment of the principal sums borrowed at certain dates" (which expressions include bonds), and that such loan notes and other securities "have no legal validity," enacts, that from and after the passing of the act any company issuing "any loan note, or other negotiable or assignable instrument," as a security for money advanced, otherwise than under the provisions of some act of Parliament authorising the raising of such money, and the issuing of such security, shall for every offence forfeit a sum equal to the amount for which such instrument purports to be a security; with a proviso for the renewal of such loan notes, &c. as should have been issued prior to the passing of the act. The imposition, then, by the section of a penalty in respect of the offences therein mentioned, is equivalent to a prohibition; and this becomes the more manifest when it is considered that a principal end and object of the statute was the prevention of unauthorised loans. [Crompton, J.-The words of the section are, “any loan note or other negotiable or assignable instrument." It may be that a distinction is implied between such and non-negotiable and non-assignable instruments.] Sect. 8 of the defendants' special act (which is to be read in conjunction with sect. 38 of the general act) empowers them to borrow on mortgage; this is an enabling clause, which must be strictly followed; and the maxim "expressio unius est alterius exclusio," is applicable. [Crompton, J.-The argument on the other side seems to be, that by restricting the power of the company to borrow on mortgage, the Legislature impliedly permits them to raise money at pleasure in any other way.] Another objection to these bonds arises under sect. 45 of the general act, which provides for the keeping by the secretary of a

register of mortgages and bonds; and it is clear that the instruments in question, not being in compliance with the company's act of incorporation, could not be so registered. Next, assuming that the defendants were empowered to borrow upon bond, it is undisputed that they have done so without fulfilling the conditions imposed by sect. 8 of their act of incorporation; the affixing of the seal of the companny to these bonds by the directors was, therefore, an improper act, and ultra vires. (The South Yorkshire Railway and River Dun Company v. The Great Northern Railway Company, 9 Exch. 55, where the law upon the point is correctly laid down by Parke, B., in delivering judgment (p. 84)).

CROMPTON, J.-I am of opinion that this rule should be made absolute. The question is one of great importance, and has been well argued on both sides; we have had, moreover, opportunity for consideration during the time which has elapsed since the adjournment of the case; we are, therefore, in a condition to give judgment at once, which in a matter of such moment is highly desirable. The law as laid down by Parke, B., in The South Yorkshire Railway and River Dun Company v. The Great Northern Railway Company does not appear to be questioned, and seems to me applicable to the present case:-" Corporations, which are creations of the law, are, when the seal is properly affixed, bound, just as individuals are, by their own contracts, and as much as all the members of a partnership would be by a contract in which all concurred." This is undoubtedly true of corporations generally; but as Mr. Lush has observed, railway companies are the creatures of an act of Parliament; and the question is, how far provision has been made for conferring upon them borrowing powers, which are said to have been exercised in the present case. "But," proceeds Parke, B., "where a corporation is created by an act of Parliament for particular purposes, with special powers, then, indeed, another question arises; their deed, though under their corporate seal, and that regularly affixed, does not bind them, if it appear by the express provisions of the statute creating the corporation, or by necessary or reasonable inference from its enactments, that the deed was ultra vires-that is, that the Legislature meant that such a deed should not be made." This, as it appears to me, touches the very question before us, and moreover, seems to convey the notion, that directors of a railway company are in the nature rather of special than general agents of the company they represent. They have the custody of the seal of the company, but they have not the power to affix it to instruments which the Legislature has declared to be ultra vires; and should this be done, the company are not bound. The question, then, being whether the present transaction on the part of the company be valid or not, our attention, first of all, has been called to sect. 19 of the 7 & 8 Vict. c. 85, which, after reciting "that many railway companies have borrowed money in a manner unauthorised by their acts of incorporation, or other acts of Parliament relating to the said companies, upon the security of loan notes, or other instruments purporting to give a security for the repayment of the principal sums borrowed at certain dates, and for the payment of interest thereon; and that such loan notes and other securities, issued otherwise than under the provisions of some act or acts of Parliament, have no legal validity, and that it is expedient that the issue of such illegal securities should be stopped, but such loan notes, &c. having been issued and received in good faith, as between the borrower and the lender, and for the most part for the lawful purposes of the undertaking, and in ignorance of their legal invalidity," &c., goes on to enact,

"that after the passing of the act, any railway con pany issuing any loan note, or other negotiable assignable instrument purporting to bind the ex pany, shall for every such offence forfeit to her jesty a sum equal to the sum for which such loan or other instrument purports to be such securit with a proviso enabling the company to renew loan notes, &c. issued prior to the passing of the for periods not exceeding five years. Now, it to me monstrous to say, that borrowing is not impliedly forbidden. Why should loan notes "no legal validity," unless it was the intention Legislature, that borrowing should be illegal? || act then goes on to impose a penalty, and, asi pears to me, such uncertainty as exists arises from the somewhat ambiguous nature of the employed for this purpose. It may be argued the penalty would not attach, if the loan no other instruments were not made assignable; but I think, upon consideration, cannot be the inter inasmuch as they are expressly spoken of as secu "between the borrower and the lender." The of the act, then, appears to be this—that a com may not borrow, unless in conformity with the of their special act; and this brings us to the tion-what, in the present case, are the powers company, under sect. 8 of their special act? are thereby authorised, as soon as a certain amou capital shall have been raised (which has not yet done), to borrow the sum of 185,000l. upon mor and it is urged upon us, that the section is in cable, having reference only to loans on marig whereas the loan in question is one on bond which there is no prohibition, and into which security the company may enter at any time. In confess, that this seems to me a strange costru of the act. It is tantamount to saying, that the striction imposed upon the borrowing powers company is, in fact, an extension of them, and I the more natural construction contended for Lush; that this is an enabling power; that it ma strictly followed; and that the directors can. fore, bind the company in no other way. If otherwise; if they were authorised to raise mon any time upon bond or other security, the powe ferred upon them by their special act, of borr upon mortgage, would be simply idle and nug The bonds in question, known as "Lloyd's bond called from the eminent gentleman whose conce they are, were originally intended to enable c nies to hand over to contractors to whom they be indebted for works performed under their re tive acts of Parliament, something, which if not m was its equivalent-something, in fact, upon money might be realised. It is as though the pany issuing them said to the contractor, "W liable to you for work done under our act of P ment, and our object in giving you this bod enable you to raise upon it the sum therein se These bonds, therefore, seem, in effect, to ame an account stated, and a promise to pay, under and so long as they are used for the for wh they were originally intended, it may be that the nothing objectionable in them. But here the be are issued by the directors for the purpose money to discharge liabilities into which the plais had entered on behalf of the company, of which was chairman; and this is, to say the least of it, indirect mode of borrowing, and beyond the pot conferred upon the company under their act, point was also put to us during the argument, whet the prohibition to borrow was to be held as extens to the raising of small sums for the immediate sities of a newly-started company; and to this

purpose

of rais

as the action for the assault could clearly have been brought in the inferior court, and the plaintiffs had failed in proving any claim of title, they were not entitled to a certificate under the act. (Lloyd v. Jones, 6 C. B. 81).

ERLE. C. J.-I am of opinion that this rule should be made absolute. The action was for an assault to the wife of the plaintiff, and for trespass to land. The pleas traverse the title of the plaintiff to the premises, and justify the assault upon the wife; and there is a new assignment, that the assault was in excess. On this the jury have given a verdict for the plaintiff for 40s., but the other issues have been found for the defendant. The learned judge has granted a certificate to the plaintiffs under the County Courts Act, by which they may have their costs, on the ground that the cause of action was one for which a plaint could not have been brought in the county court, there being a question of title to land in dispute. I think that, taking the whole record, the certificate has not been granted in accordance with the result of the case. Nominally there were three causes of action; in fact, there was only one, and that was the excess in the assault. For this, which was the true cause of action, a plaint might have been brought in the county court. The plaintiff says, that a claim of title to land came in question. But I am of opinion that the rule is, that where there are two separate causes of action in a declaration, and the pleadings distinctly apply to each, the two are to be taken as separate actions. This being the case here, the two actions are not to be treated as one for the purpose of increasing the plaintiff's costs.

WILLIAMS and WILLES, JJ., concurred. KEATING, J.-The only real cause of action is the assault on the wife of the plaintiff; the other had no

foundation in fact.-Rule absolute.

EASTER TERM.

[Before ERLE, C. J., WILLES and BYLES, JJ.] Re An Arbitration between BROOK, DEL COMYN, and BADART.-April 30.

Arbitration-Mercantile usage-Deciding without hearing the other side.

No custom or usage can justify an arbitrator or umpire in deciding on evidence laid before him without the knowledge of the party against whom he decides, and without giving him an opportunity of being heard.

This was a rule calling on T. W. Brook and F. and J. Badart to shew cause why an award should not be set aside, on the ground that the umpire had exceeded his authority, and had not afforded Messrs. Del Comyn any opportunity of being heard, or of inspecting the samples which he had received from the other side.

It appeared from the affidavits, that on the 16th July, Messrs. Del Comyn sold to Messrs. Badard a cargo of Danish rape seed, to be shipped from one of the Danish ports in August or September, warranted to be, at the time of shipment, in sound dry mercantile condition, any dispute arising out of the contract to be settled by arbitration in London in the usual way. The cargo arrived at Rochester from Randers in the ship Iris, on the 6th October, and on the 8th the discharge of the cargo was commenced, and continued "without prejudice;" Brook, to whom Messrs. Badart had previously sold it, contending that it was in bad condition, and could not have been shipped in accordance with the contract. As Del Comyn insisted that the damage was occasioned by stress of weather during the voyage, an arbitration was agreed upon, and the following memorandum signed by the parties

concerned:

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We, the undersigned, having a dispute about the cargo of rape seed, per Iris, arrived at Rochester, he by agree, in accordance with our respective contrac to have the dispute settled by arbitration, and to aleda by the decision of the arbitrators (Mr. Cramer, on t half of Messrs. F. & A. Del Comyn, and Mr. Bevar behalf of Mr. T. W. Brook); but in case they do agree, we undertake to abide by the final decision the umpire mutually chosen by the two arbitrators "THOS. W. BROOK. "F. & A. DEL COMEN "BADART FRERES.

"London, Oct. 30, 1863." The arbitrators, being unable to agree, appoin an umpire in the following terms:

"The undersigned referees, appointed to decid dispute arising out of the sale of Danish rape seed Iris, arrived from Randers, not being able to am the same, hereby appoint Mr. John A. What 50, Mark-lane, to be their umpire, and agree to by his decision.

"London, Dec. 4, 1863."

"T. C. D. BEVA "T. A. CRAMER

Each arbitrator prepared a statement of fat sent it to the umpire, with such other docum evidence as he had in his possession; but the never appointed any meeting, and the parties appear before him. It appeared that he had communication with Brook, and received samples him, but this was without the knowledge of D myn. On the 11th December he made the foll award:

"Dear Sirs,-Having been appointed by you pire in an arbitration upon a cargo of rape seed ped at Randers, per Iris, for Rochester, and now in granary at Stroud, in a very damaged state, heating on the voyage, and having carefully conside the statements and certificates made on behalf buyer and seller, I have no hesitation in decid the said cargo was not in a sound, dry, chantable condition when shipped, as warra the contract; and that the damage does n from sea water; that the said contract is conseg broken, and that the seller must take back the and repay the purchaser the amount of invoice charges.

"JOHN A. WHEALT

"To T. C. D. Bevan and T. A. Cramer, Esqrs'

The following statement of custom in the seed trade was contained in the affidavits of mercantile men :—

"It is the usual and ordinary practice in the seed trade (and likewise, so far as my knowl experience extends, in mercantile arbitrati rally) for an umpire, in case he see fit so to dal out any communication with the other side, arbitrator, to inspect samples produced on al one of the parties, and referred to in his art statement furnished to the umpire; and also umpire, in case he sees fit so to do, without not any of the parties, and in their absence, to pat into direct communication with any one or m the witnesses who have surveyed the cargo, and reports or certificates may be before him; and & for an umpire to receive from each arbitrator & ten statement regarding the dispute and certificat and also for the umpire, in case he sees fit so to de make his award without giving the parties or trators an opportunity of being heard. In carry out an arbitration and umpirage in the oil and trade (and also, so far as my knowledge and exp