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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.

Fo reversal-None.

INDEX.

ABATEMENT AND REVIVAL.]

See PLEADING, 2, 3, 4.

ACCORD AND SATISFACTION.

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.,

630

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.

Ib.

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

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Bankruptcy.

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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,

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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.

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face of a record of the United The statute relating to the crime
States Court that such notice!
was given.

10.

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

BILLS AND NOTES.

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.

BANKS AND BANKING.

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

No

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