he is entitled to compensation in damages, and relief by injunction. Hirst v. ham, V.-C. B., 542.

TRANSFER. See CUSTOM OF STOCK EXCHANGE.

TRANSFER OF BILLS OF LADING.

Den

Corn merchants in California agreed to send cargoes of wheat to a miller in Enland, the reimbursement to be by his acceptance against bill of lading. The corn merchants shipped a cargo, and made out the bill of lading in six parts. Three parts with corresponding bills of exchange drawn on the miller for the price of the cargo, were indorsed by the corn merchants, and transferred to a Californian bank for valuable consideration. These bills of exchange were, with the bills of lading annexed, accepted by the miller. One indorsed part of the bill of lading was inadvertently sent by the corn dealers to the miller, and by him transferred to an English bank for valuable consideration. The bills of exchange were not met by the miller:

Held, that the corn merchants were entitled to deal as they did with the cargo by transferring the bills of lading; that the English bank could not, under the circumstances, claim as holders of the bill of lading without notice, and that the English bank had no priority.

Quare, whether the miller might not have refused to accept the bills of exchange unless the bills of lading were delivered to him.

Decree of the Master of the Rolls affirmed. Gilbert v. Guignon, L. C., 16.

TRESPASSER.-See ADJOINING COAL MINES.

TRUSTEES.-See INVESTMENT BY TRUSTEES.

USAGE OF TRADE.-See SHIP OR SHIP'S POLICY.

WILL.-See APPOINTMENT BY WILL; LEGACY CHARGED AS A DEBT,

SELECTED DIGEST OF STATE REPORTS.

[For this number of the Review selections have been made from the following State Reports: 8 Bush, (Kentucky;) 21 Grattan, (Virginia;) 35 Indiana; 106 Massachusetts; 16 Minnesota; 49 Missouri; 66 North Carolina; and 68 Pennsylvania.]

ACCORD AND SATISFACTION.

The principle is too well established and too long acquiesced in to be disturbed, that an agreement by a creditor to receive a part in discharge of the whole of a debt due to him by a single bill, is without consideration, and therefore void. To this rule, there are exceptions, as if: 1. A less sum is agreed upon and received before the day of payment. 2. Or at a different place. 3. Or money's worth. 4. Or where a general composition is agreed upon. McKenzie v. Culbreth, 66 N. C., 534.

ACCOUNT STATED.

Upon a complaint on an account stated by defendants as partners, for services performed by plaintiff, it is sufficient to show the partnership of defendants, that plaintiff performed services for them as partners, and that an account therefor was stated as alleged in the complaint. Under a general denial of such complaint, the defendants cannot be permitted to attack the correctness of the items of which the account stated is composed. Warner v. Myrick, 16 Minn., 91.

ACTION.

1. The Minnesota Central University, a corporation, was indebted to the plaintiff in over $800, which he had expressed his willingness to cancel for $400, in such payment and at such times as the friends of the University might choose. The defendant, at its next annual meeting, voted to raise $3,300 in three equal-annual installments, $400 whereof to be paid in satisfaction of said account, and notified the plaintiff "of the acceptance of his proposition to receive $400 in full for his claim, and that they would pay it in three annual installments, to which the plaintiff assented." The defendant thereafter proceeded during three years next ensuing, to collect money from various Baptist churches and individuals, for its general purposes among which was the payment of said $400, to an amount exceeding $1,100 in each year, by voluntary subscriptions and contributions, mostly at public meetings.

Held, that the defendant was not liable to the plaintiff in an action for money had and received, for said 400, or any part thereof. That whether or not it be true, that on a promise made by A. to B., for the benefit of C., an action lies for C against A., it is not applicable to this case, for the donations were voluntary-the defendants vote gratuitous-the plaintiff's agreement nudum pactum-being simply to accept a less sum in full of an ascertained debt to a larger amount, and the undertaking of the defendant, upon which the moneys were contributed, being deemed, in law, to have been made for the benefit of the University, not the plaintiff. Van Hoesen v. Minn. Bap, State Convention, 16 Minn., 96.

2. In an action based upon a contract of loan of money between plaintiff and defendant, it is not material whether a prior agreement between the plaintiff and a third person under which the money loaned to the defendant was paid to the plaintiff as a part of its consideration, is against public policy or not. Wintermute v. tinson, 16 Minn., 468.

3. The defendant may, after judgment, by appropriate suit, assert any cause of action he may have had against the plaintiff, notwithstanding the fact, that he might have used such cause of action as a set-off or counter-claim to prevent the recovery against him, but failed to do so. Emmerson's Admr. v. Herriford., 8 Bush., 229. 4. A Confederate officer may maintain an action, for the value of the use of his real estate, against a party who acquired and held possession thereof during and after the war, through the form of a purchase under an illegal judgment. L & N. R. R. Co., v. Buckner., Ib, 277.

5. The holder of an unaccepted check on bankers may maintain an action against them for non-payment on presentation and demand, it being made to appear that the drawer had sufficient deposit to pay the check at the time it was drawn, and notice thereof given to the bankers that it was drawn upon funds in their hands belonging o the drawer. Lester & Co. v. Given, Jones & Co., Ib., 357.

6. Money fraudulently co-erced by judgment, and paid after being replevied, can e recovered in equity without awarding a new trial of the common law action, or etting aside judgment therein. Etlis v. Kelly, Ib., 621.

7. When a party by some act or declaration out of the record lulls his opponent nto a false security, or by any other means deceives him, and thereby obtains a judg ment or decree to his prejudice, the judgment or decree thus obtained is fraudulent, and may be impeached on that ground. Ib.

8. A demand of possession must be made of a tenant, or quasi tenant, before an action for the recovery of the land can be maintained. But this doctrine does not apply when the party in possession claims the fee, and there was no contract, express or mplied, between him and the claimant Sale v. Crutchfield, &c., Ib., 636.

9. One cannot maintain an action for a wrong done him in common with other members of the community (the remedy being by a public prosecution), but he may sue for any special damage done to himself.

In this case the complaint alleged that plaintiff was carrying on a tannery at a certain place on the Wolf River; that during May, June and July, 1867, he was compelled to procure the bark necessary for said tannery at a point sixty miles further up the stream, and that was the only place and mode he had for obtaining the same, and that defendant totally obstructed the river with logs, etc., for six weeks from the first of June in that year, and thus wholly prevented plaintiff during that time from getting the bark necessary for his tannery, and delayed him in the manufacture of leather at least four weeks, during which time the price of leather fell a specified amount, and also compelled him to keep his employees in idleness, at great expense to himself, etc., etc.

Held, that a good cause of action for special damages was stated. Enos v. Hamilton, et, al., 27 Wis., 156.

10. The owner of personal property can not take it by violence from the peaceable, though wrongful, possession of another. Huppert v. Morrison, Ib., 365.

11. A conspiracy to obtain from a master mechanic, whose business requires the employment of workmen, money which he is under no legal liability to pay, by inducing or threatening to induce workmen to leave his employment, and deterring or threatening to deter others from entering it, so as to render him reasonably apprehensive that he cannot carry on business without making the payment, is illegal, and in an action of tort he may recover the sum so paid, and damages for the injury of his business by the acts of the conspirators; but whether he can recover back the sum paid, in an action of contract, as money had and received to his use, quære: Carew v. Rutherford, 1, 106 Mass.

12. By maintaining a building with a roof constructed so that snow and ice col lecting on it from natural causes will naturally and probably fall into the adjoining highway, the owner of the building is liable, without other proof of negligence, to a person injured by such a fall upon him while traveling on the highway with due care, and it is immaterial that all the rooms in the building are occupied by tenants, if he retains control of the roof. Shipley v. Fifty Associates, Пb., 194.

ACTS OF ASSEMBLY.

1. The Legislature may direct the time for paying damages assessed for taking property for public use. Haley v. Philadelphia, 45, Penn., 68.

2. Where the words and intention of an act are so plain that a court had not been appealed to to declare their meaning, the Legislature cannot, by a retrospective law, put a construction on them contrary to their true intent and meaning. Ib. ACTUS DEI.

1. A carrier must use reasonable expedition, but is not bound to use extraordinary exertions or extra expense to surmount obstacles not caused by his own default, by the weather, or other act of Providence. Empire Co. v. Wallace, 302. 68 Penn. 2. The established route of a carrier was by rail to Philadelphia, and by water to Boston. He was not bound to send goods by rail from Philadelphia when there was an obstruction in the water communication. Ib.

ADMINISTRATION.

1. Final settlement of executors, administrators and guardians, when regularly ap proved, have the force of judgments, and can only be attacked by fraud; but such fraud may be positive and actual, with intent to cheat and wrong those interested, or may consist in any improper act or concealment which operates as a fraud and results in loss, whatever the motive. Clyce v. Anderson, ex'r, etc., 37, 49, Mo.

2. Executors and administrators are not to be charged with interest upon the inven tory and sale bill of the trust estate, as of course. Where interest has not been actually collected, it is matter of discretion with the Probate Court whether to charge those officers with it or not; and in proceedings to set aside final settlements by them on the ground of fraud, this Court will not review such discretionary action by the Probate Court. lb.

3. Joinder as Defendants.-The administrator de bonis non, and not the creditor, is the proper person to pursue the estate. But this principle cannot authorize a creditor to join both parties defendant in a proceeding to set aside their several settlements for fraud. If the action be well grounded, the judgment should be to set aside the old settlement, in whole or in part, and order a new one. But neither in setting aside the old settlement nor making the new one, can any judgment be rendered against the administrator de bonis non. So far as a proceeding to set aside their settlements are concerned, their accounts are separate and independent, and there is no reason why they should not be joined. Kerrin v. Roberson, 252; Ib.

4. Payment of a note by a surety extinguishes the note and gives him the right to sue for the money paid. His right of action accrues from the date of the payment, and the statute of limitations under the administration law commences running from that time. Burton v. Rutherford, adm'r, etc., 255; Ib.

ADMINISTRATORS AND EXECUTORS.

1. Where a father is indebted to his children, and gives them property or money at their maturity or marriage, the presumption is that this is a payment of the debt and not an advancement. This presumption, however, is liable to be rebutted by the facts in the case. Haglar v. McCombs, 345, 66, N. C.

2. If money is given to a son-in-law, under similar circumstances, or paid by the father-in law, as surety, the same rule applies. Ib.

3. If a father, while acting as executor, receives into his possession a number of slaves bequeathed to his children, and afterwards sells one of them, and retains and controls the others until their emancipation:

Held, that in an action for the hire of said slaves, etc., it shall be determined, as a fact, whether he converted, or intended to convert, the slaves to his own use, or whether he held them as trustee or bailee for his children. If the former, a debt is established, and the presumption above referred to applies-otherwise it does not. Ib. 4. A trustee is generally entitled to commissions, but when a person is a trustee by reason of his being executor, and voluntarily assumes control of a fund willed to minor children, he not being their guardian, he is not entitled to commissions. Ib. 5. A father is bound to support his children if he has ability to do so, whether they have property or not, and he is not entitled to any credit for such support, in a settlement of accounts between them and himself. Ib.

6. In an action for an account, against an executor, the personal representative, and not the children of a deceased legatee, should be made a party. Ib.

7. The rights of an administrator, de bonis non, relate to the death of the intestate, and he is bound only by such lawful acts of the previous administrator as were done in due course of administration, for any devastavit on the part of the former administrator, the administrator de bonis non ought to recover the value of the goods wasted, by an action on the bond of his predecessor; but where the sureties on the bond are insolvent, such action would be unavailing, and therefore unnecessary. It is the duty of the administrator, de bonis non, to complete the administration of the estate by collecting the unadministered assets, applying them in payment of debts, and when there are no personal effects, to obtain license to sell the real estate. Badger v. Jones, Ib., 305.

8. Where an administrator sold land of his intestate for the payment of debts, and previous to the sale an agreement was made between him and the creditor of the estate, "that if he would buy the land he should have credit on certain claims and notes over which he had control, and which were due from the intestate, to the amount that he (the administrator) could pay pro rata;" and the creditor on the faith of such agreement bought the land:

Held, that in an action on the bond given for the purchase money, the defendant had a right to give in evidence the agreement, and was entitled to credit according to its terms: Held, further, that such agreement need not be reduced to writing, and that it was not contrary to the policy of the law. Norton v. Edwards, Ib., 367.

9. If a simple contract creditor receives payment of the executor, a bond creditor can not afterwards, either at law or in equity, compel the simple contract creditor to refund, for both are creditors, and the creditor first paid may, with good conscience, retain the money, and leave the bond creditor to his action as for a devastavit. Nor is this principle varied by the receipt of property in satisfaction instead of money; provided, the property is taken at a full price, bona fide, and without notice that the executor is contriving to defeat the priority of the bond creditor.

CASE: The daughter of a decedent being very solicitous to cause his debts to be paid, on being assured by the executor that her own and his (the executor's) debts are the only ones outstanding, buys from the executor certain property, and executes her notes to certain persons, creditors of the executor, and it afterwards appears that the testator owed other persons:--

Held, that these facts warrant a rescission of the transaction.

In the case thus stated, our Courts have refused to adopt the doctrine of the En