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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

ACCESSION.

See PROPERTY.

ACTION.

See OFFICE AND OFFICER.

AGENT.

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

2.

3.

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

571

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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.

id

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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

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BANKRUPTCY.

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.

3.

id

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.

BANKS AND BANKING.

id

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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

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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,

479

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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.

id

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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

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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,

442

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