15. It is not necessary that the debt due to the attaching creditor should be proved by the affidavits of the wit- nesses. It is enough if they show the non-residence of the debtor, where he is proceeded against as a non-resi- dent. Per JEWETT, C. J. id
1. An agent appointed to "take care" of personal property and to give his principal notice of the existence of liens upon it, has no authority to make an agreement with a third person to purchase the property on account of his principal at a sale to which it is exposed to satisfy rent under a dis- tress warrant. Brisbane v. Adams, 129
Where a partnership is indebted to an individual for services, and an agent of the firm on adjusting the ac- count gives to the creditor a written acknowledgment that a certain a- mount is due "on settlement" for the services, signing it with his own name and adding thereto the designation of "agent;" quere, whether this is a promissory note, either of the firm or of the agent. Davis v. Allen, 168
But although the instrument be re- garded as a promissory note, it is no discharge of the previous indebtedness
from the order would lie to this court Dunlop v. Edwards, 341
3. The third section of the "act to facil- itate the determination of existing suits," giving a right of review in certain cases, does not authorize an appeal where the suit was terminated by judgment before the code took ef- fect. id
4. The "final orders," from which that section authorizes an appeal to this court, are, it seems, orders made in special proceedings, or upon summary application after judgment; and in the latter case the application, it seems, must concede the validity of the judgment, and seek relief upon matter arising subsequently.
2. And in such a case the consignee, where he is a mere agent, having no interest in the goods, is a competent witness for the consignor. id
3. The consignee is presumptively the owner of the property shipped, but this presumption may be rebutted. id
4. Where the master of a vessel signs a bill of lading which states that the property is "shipped in good order," in an action against the owners for an injury thereto, the burden is on the defendants to show that the inju- ry happened before the goods came to their hands. id
1. A discharge in bankruptcy under the late act of congress operates upon a judgment obtained against the bank- rupt intermediate the commencement of the proceedings and the granting of the discharge, where the judgment is founded on a debt existing at the time the proceedings were commenced. Clark v. Rowling, 216
2. Accordingly where a creditor brought a suit against his debtor, and pending the suit the debtor instituted proceed- ings to be discharged as a bankrupt, but the discharge was not obtained until after judgment was recovered; held, that the discharge was a good defence to a bill in equity subsequent- ly filed by the creditor for the purpose of collecting the judgment out of the equitable property of the debtor. The cases of Thompson v. Hewitt, (6 Hill, 254,) and Kellogg v. Schuyler, (2 Denio, 73,) commented on and ex- plained.
id 4. The costs included in a judgment for the recovery of a debt, are considered as accessory to the debt, so as to be discharged by bankruptcy when the debt itself is discharged.
3. And further held, that a trust deed executed by the bank at the same time, transferring property and effects of the association to trustees for the purpose of securing the payment of id the notes, was illegal and void.
4. An engagement of a banking associ- ation in the form of a certificate of
5. Where a banking association formed under the general law, being insol- vent, transferred to one of its direct- ors certain Arkansas bonds in ex- change for shares of its own stock, held, on bill filed by the receiver of the bank subsequently appointed, that the transaction was illegal and void under the statute (1 R. S. 589)" to prevent the insolvency of moneyed cor- porations and to secure the rights of creditors," and that the receiver might reclaim the bonds for the benefit of creditors. Gillet v. Moody,
ter of advice from the consignor to the consignee do not, it seems, ope- rate as a specific appropriation of the proceeds of the goods to the payment of the bill. Cowperthwaite v. Shef- field, 243
2. On a shipment of cotton from Mobile to Glasgow, the shipper drew bills on the consignee against the proceeds and advised him thereof. The bills being presented before the cotton ar- rived, acceptance was refused. The cotton was received and sold by the consignee, and by a subsequent ar- rangement between him and the ship- per the proceeds were deposited with a third party, to be paid over to the shipper when his creditors should as- sent thereto; the shipper intending to apply such proceeds to the payment of the bills. The holder of the bills in England, who also held other de- mands against the shipper, got pos- session of the fund (which was suffi- cient to pay the bills) by a judicial proceeding founded on the bills and his other demands. In an action against the indorser of the bills, held that the bills and letter of advice did not operate as an appropriation of the proceeds of the cotton to the pay- ment of the bills, and therefore that the facts stated did not sustain the defence of payment.
5. A bank in New Orleans drew a bill at sight upon the plaintiffs' bank in New-York for $105, payable to "J. Durand."
After it was issued the bill was fraudulently altered to a bill for $1005, payable to "J. Bonnet," and indorsed with that name. The plaintiffs, at sight, paid the bill to the defendants' bank in New-York, which had received it for collection from a bank in Charleston. Held, that the plaintiffs, on ascertaining the forgery, were entitled to recover back the mo- ney, the jury having found that they were not guilty of any negligence in not discovering the forgery before pay- ing the bill, and notice of the forgery having been given as soon as discov- ered. id
6. Where, in an action against the in- dorser of a bill the defendant moved for a nonsuit without stating any specific objection to the notice of pro- test, and the motion was denied, held, that on a motion for a new trial on a bill of exceptions, the sufficiency of the notice could not be inquired into. Cowperthwaite v. Sheffield, 213
7. In an action against the drawer of a bill of exchange, the notary who had protested the bill testified that he made "diligent inquiry" for the draw- er's place of residence, and that his reputed residence was at the place to which the notice was sent; but the witness did not state what in partic- ular the inquiries were. There was no objection to the evidence. Held, that the court below committed no
error on the trial in submitting the evidence to the jury upon the ques- tion whether the drawer had been duly charged. Carrol v. Upton, 272
8. In order to charge the drawer of a bill of exchange it is not sufficient to send notice of protest to the place where the bill is dated, if in fact the drawer resides at another place, and due inquiry for his residence be not made. id
9. The question of due diligence in charging a party to a bill of exchange
10. A note was payable at the plaintiffs' bank in the town of W., where the defendant, the indorser, received his letters and did his post office business. The defendant resided in an adjoining town, where the notice of protest was sent to him by mail from W. Held a sufficient service, the defendant_not having specified any other place where the notice was to be left or sent, and it not appearing that the plaintiffs were informed that he received his letters at W. The Seneca County Bank v. Neass,
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