This case was tried before Judge Lloyd in the Middlesex Circuit Court without a jury, who gave judgment in favor of the plaintiffs, and defendants appealed.
The record brought up fails to show any request to the trial court, by the appealing party, to make a finding or findings of law or fact, or law and fact, or any exception or objection to the adverse finding made. On this record there is nothing to be reviewed. Blanchard Brothers v. Beveridge, 86 N. J. L. 561. See, also, Webster v. Freeholders of Hudson, Id. 256.
The judgment under review must be affirmed.
For affirmance-THE CHANCELLOR, CHIEF JUSTICE, GARRISON, SWAYZE, TRENCHARD, PARKER, BERGEN, MINTURN, KALISCH, BLACK, VREDENBURGH, WHITE, TERHUNE, HEPPENHEIMER, WILLIAMS, TAYLOR, JJ. 16.
check in settlement thereof is of such a character as to give the creditor notice that it must be accepted in full satisfaction of the claim or not at all, the re- tention and use thereof by the creditor constitutes an accord and satisfaction. Ib.
1. A consideration is necessary to render an accord and satisfac- tion valid. Decker v. Smith & 7. The payment of an amount less Co.,
2. To constitute a valid accord and satisfaction it is essential that the debtor shall have offered what was given, and the creditor shall have accepted it with the intention that it shall operate as a satisfaction. The intention of the parties must be deter- mined from all the circumstances attending the transaction. Ib.
3. Where the debt is liquidated or certain and is due, payment by the debtor and receipt by the creditor of a less sum is not a satisfaction thereof, although the creditor agrees to accept it as such, if there be no release un- der seal or no new considera- tion.
than that for which the debtor is liable does not constitute a valid accord and satisfaction un- less there is a bona fide dispute or controversy as to the debtor's liability, or as to the amount due from him, or unless the dam- ages are unliquidated.
8. Where the evidence is conflicting, or the legitimate inferences aris- ing therefrom are conflicting, as to whether or not there was a bona fide dispute as to the amount of the plaintiff's claim, the question whether there was an accord and satisfaction de- pending upon such dispute, is for the jury. Ib.
Ib. ACTS OF THE LEGISLATURE.
4. Where a claim is unliquidated or 1. Under the procedure authorized
in dispute, payment and accept- ance of a less sum than claimed in satisfaction, operates as an accord and satisfaction. Ib.
5. The acceptance "on account" by a creditor of a check declared by the debtor to be in full pay- ment, when in fact the debt was a liquidated demand concededly due, does not constitute an ac- cord and satisfaction.
by Pamph. L. 1873, p. 27, to have the Supreme Court declare null and void a law or joint resolution, the fact that such law or joint resolution was not duly passed and approved as required by the constitution must be es- tablished by the petitioner by clear and convincing evidence. In re Low, 28
Ib. 2. In determining whether a bill or joint resolution has been duly passed and approved, the jour- nals of the two houses of the
6. Where a claim is disputed or un- liquidated, and the tender of a
from all his provable debts, ex- cept such as (3) have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy." Held, that in a suit against the bankrupt, subse- quent to his discharge, upon a debt existing at the time of the filing of the petition, the produc- tion of a certified copy of the order of discharge makes a prima facie defence, and the burden is cast upon the plaintiff to show that his debt came within the exceptions. Claflin v. Wolff, 308
2. A court of last resort need not hear a party as to a question which could have been, but was 2. In the bankrupt's schedule the not, raised in an intermediate court of appeals, except where] the question goes to the juris- diction of the subject-matter, or where a question of public policy. is involved. State v. Shupe, 610,
judgment creditor and its judg- ment were scheduled as follows: H. B. Claflin & Co., N. Y. City, judgment December 12/89. $1,- 583.72; whereas the evidence showed that the judgment was obtained March 4th, 1898, for $2,300. Held, (1) that whether or not the use of initials and omission of street address are in- sufficient will almost invaria- bly depend upon extrinsic cir- cumstances, and that under the evidence in this case the use of initials and omission of the street address were sufficient; (2) that the erroneous state- ment as to the amount of the judgment and the time of its en- try were of no importance, since it was not pretended that the judgment sued upon and the one scheduled were not identical, and hence they were properly treated as identical by the trial judge. Ib.
face of a record of the United The statute relating to the crime States Court that such notice! was given.
6. When a trustee in bankruptcy rejects any part of the bank- rupt's assets because their ac- ceptance would be a burden to the estate, such action is final and the title thereto remains in! the bankrupt unless the federal court shall compel another course, and the trustee, having rejected any part of the bank- rupt's estate, is divested of any sufficient title upon which to rest
of bigamy, after defining the offence and fixing the penalty declares, in the same section, that nothing in that section should extend to any person in classes particularly described. Held, that in an indictment for bigamy, it was not necessary to aver that the defendant was not within either of the excepted classes. State v. Reilly, 104
an action in trover for the con- 1. In an action brought to recover version of such assets by the bankrupt or his assigns. Mesi- rov v. Innis Speiden & Co., 548|
7. Where a trustee in bankruptcy,| without asserting his claim thereto within a reasonable time, having knowledge of all the cir- cumstances, allows third parties, in the prosecution of their legal rights, to acquire an interest in any part of the unclaimed assets of the bankrupt, he may be held to have waived his claim thereto.' Ib.
A depositor cannot set off a deposit| to his eredit in a bank in the hands of the banking commis- sioner in the process of liquida-| tion, against an indebtedness due the bank upon a promissory note
the amount due upon certain promissory notes, the defendant admitted the making and de- livery of the instruments, but set up want of consideration to the knowledge of the plaintiff as a defence. The plaintiff offered the notes in evidence and rested. The defendant and two other witnesses called by him gave tes- timony which, if believed, showed that the notes in suit lacked con- sideration to support them. witnesses were examined for the plaintiff, and, upon the conclu- sion of the case the trial judge directed a verdict for the de- fendant. Held, that the notes are to be deemed prima facie to have been made for valuable consideration. They gave inher- ent evidence of validity. Because all the individual witnesses who testified gave evidence tending to
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