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DIGEST OF AMERICAN CASES.

[Selections from Harrington's (Delaware) Reports, vol. 3; Slade's (Vermont) Reports, vol. 15; Speers' Equity (South Carolina) Cases, vol. 1.]

ACTION. (Money had and received against administrator.) An action will not lie against an administrator in his representative capacity, for money had and received by him to the plaintiff's

use.

Quære. When does the right to road damages become complete? Wilson v. Harvey, 3 Harr. 500. ANIMALS. (Liability of owner of vicious animal.) The owner of a cow, accustomed to hook-the vicious propensity being known to her owner-is liable for damage done by her, although it be done in the highway against the land of her owner, and while going to her usual watering place.

If the injury, in such case, is occasioned by the negligence of the owner of the animal injured, he will not be entitled to recover. Coggswell v. Baldwin, 15 Vermont 404.

ASSUMPSIT. (When indebitatus assumpsit will lie-When performance of condition must be averred.) No action will lie on an open agreement to recover as for a part performance; but where the agreement, though special, has been performed on one side, and nothing is to be done on the other but a money payment, this may be enforced in an action of indebitatus assumpsit.. The performance in such cases is a condition precedent, which must be averred and proved.

Where the mutual promises or covenants go to the whole consideration on both sides, they are mutual conditions, and conditions precedent. Bayard v. M'Lane, 3 Harr. 139. ATTORNEYS AT LAW. (Legal right to compensation.) A fair, bona fide and reasonable contract between an attorney and his client, for a part of the matter in suit, as a compensation for his services, is not unlawful.

The common law offence of maintenance does not prohibit lawyers from advocating suits.

The old common law offence of champerty never existed in the state of Delaware.

The English statutory offence of champerty (to which the earliest Delaware laws on this subject refer) is maintenance not merely for a part, but at the expense of the champertor.

An attorney at law can recover a reasonable fee either on the ground of contract, or upon a quantum meruit.

There is nothing in the policy of our law which prohibits such contracts between attorney and client.

There is no distinction in grade between attorney and counsel. In such contracts the situation, circumstances, character and objects of the parties must be considered in the construction. Ib.

2. (Extent of his power to bind client.) The power of an attorney is confined to the prosecution of a suit and the incidents properly 'connected therewith; and does not extend to the compromising and discharging of his client's cause of action, without receiving his full claim. Vail v. Conant, adm., 15 Vermont 314. ARBITRAMENT. (Award when good.) An award may be of other matters than the mere payment of money.

Where the parties referred all matters at variance between them, an award that one should pay the other a sum certain, and that each party should be equally bound to pay certain debts due to third persons, was held to be good. Coulter v. Hitchens, 3 Harr.

70.

BAIL. (Right to arrest principal.) Special bail may arrest his principal anywhere.

He may depute others to do it; but the arrest must be by such deputy, or others assisting him.

An arrest must be without violence, unless there be resistance. The State v. Mahon, ib. 568.

BAILMENT. (Liability of depositary.) On a bailment to keep, without an interest, the bailee is liable only for gross negligence.

If with an interest, he is bound to reasonable diligence; and he is liable for slight negligence on a special undertaking. Chase v. Maberry, ib. 266.

BILLS OF EXCHANGE AND PROMISSORY NOTES. (Rights of bona fide holder-Negotiability.) Where a negotiable note

is taken in the usual course of trade, before maturity, by an inno cent party bona fide, and for a valuable consideration, without notice; neither fraud nor want of consideration as between the original parties, can be set up as a defence against the indorsce. The payment of an antecedent debt is a good consideration for the assignment.

A note payable "to A. B., trustee or order," is negotiable. Bush v. Peckard, ib. 385.

2. (Alteration.) A party cannot recover on an altered note, without explaining the alteration.

But he may recover on the common counts as for money lent. Warren v. Layton, ib. 404.

3. (Notice of protest how to be given.)

Notice of protest through the post-office is not sufficient, if the indorser reside in the same town, unless there be a penny-post by which he is in the habit of receiving his letters.

The notice ought to be personal, or by writing left at his house or place of business. Brindley v. Barr, ib. 419.

CHANCERY. (When it will not relieve against judgment at law.) Chancery will not relieve against a judgment at law, when the matter set up, would have been a good defence, and would have been established by the same evidence at law, and when the orator has suffered a judgment to pass without attempting to avail him self of such defence. Briggs v. Shaw et al., 15 Vermont 78. 2. (Jurisdiction in cases of mere trespass.) A court of chancery will not interfere by injunction, to prevent a mere trespass, when the impending injury is remediable by the recovery of damages at law.

Injuries to timber, ore, monuments, ornamental trees, coals, and quarries, have been held exceptions to this rule.

In a case of breach of contract, the court of chancery will not interfere, where the remedy at law is adequate. Smith v. Pettingill, ib. 82.

3. (Practice-When answer is traversed.) Where the answer sets up matter of defence in avoidance of the bill, and the answer is traversed, this matter must be proved, independent of the answer. Lane v. Marshall et al., ib. 85.

4. (Construction of writings-Consideration.) Courts of chancery adopt the same rules in the construction of writings, where there is no mistake or fraud, as courts of law.

E. sold to H. certain articles of personal property, in considera. tion that H. had bound himself, in a bond, to support D. and his wife, during their natural lives:

Held, that this was an executed consideration.

Chancery will not interfere where there is a remedy at law. Deveraux v. Cooper, ib. 88.

5. (Operation of answer in-When decree will be opened.) The right of a defendant in chancery to have his answer taken as evidence, is co-extensive with his obligation to answer.

When defendant, in answer to a bill, set forth a certain proposition in writing, made by him, and then stated conversations and facts to obviate and avoid the effects of the same, such conversations, &c. must be proved.

A court of chancery will open a decree of foreclosure when the failure of the mortgagor to pay, according to the decree, was not through his negligence or default, but in consequence of propositions of settlement and payment, to be carried into effect after the time of payment had expired, and the failure to perform was on the part of the mortgagee.

While a bill is pending to be relieved from the forfeiture for not paying the first instalment, the failure of the mortgagor to pay a second instalment, falling due while the bill is pending, is no obstacle to his obtaining relief. Pierson v. Clayes et al., ib. 93. 6. (Bar from lapse of time in equity.) In cases where courts of law and equity have concurrent jurisdiction, and a claim is barred at law, it will not be suffered to be revived in a court of equity.

An account rendered and acquiesced in for a considerable time, will be conclusive upon the parties, the same as an account stated. Tharp v. Tharp, ib. 105.

The well established doctrine of this court, based on the English chancery, is, that the statute of limitations will not bar a demand growing out of a direct trust, but will a demand arising out of a trust raised by implication of law. And whether it is in obe

dience to the positive enactment of the legislature, or a rule of court, founded upon a supposed analogy to the statute, is now immaterial, as it is followed implicitly. Vide Alexander v. Williams, 2 Hill 522; Massey v. Massey, 2 Hill Ch. Rep. 496; Tucker v. Tucker, 1 M'Cord Ch. Rep. 176; Miller v. Mitchell, 1 Bailey Eq. 437. Buchan v. James et al., 1 Speers' Eq. Rep. 375. 7. (Parties in, stand or fall by their own allegations.) The orator must stand or fall upon the case made by his bill. The answer of the defendant cannot aid the bill, nor can the prayer for a specific relief, though, upon different allegations, the orator might be entitled to the relief prayed for. Thomas v. Warner, 15 Ver

mont 110.

8. (Set-off in chancery—Assignment of chose in action.) If demands are, in reality, mutual, though not nominally so, and equity requires a set-off to be made, chancery will make it.

The assignee of a chose in action takes it subject to all the equity existing at the time, in the original obligor or debtor.

A negotiable note assigned by parol, after it has ceased to be current, is subject to the same rule.

A promise, without consideration, by the obligor to the assignee, after assignment, to pay the demand, and which had, in no way, been made the basis of action, or an occasion of prejudice to the assignee, cannot, as matter of law, estop or conclude the obligor from setting up an equitable set-off against the assignee, which existed against the assignor, at the time of the assignment.

Before accounts can be set off in chancery, they must be liquidated.

Where the assignee of a note instituted a suit on it in the name of the payees, and the maker filed a declaration on book, in off-set, against one of the payees, to whom the note belonged, and from whom the assignee claimed, and there was a judgment to account, and a trial before the auditors, at which the assignce appeared and defended, it was held that the report of the auditors, which had been returned to, and accepted by the court, was a sufficient liquidation of the account of the maker of the note, to make it the basis of a set-off in chancery, against the assignee. Ketchum v. Foot, ib. 258.