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new trial was unquestioned ; its rightful exercise was another matter, which
could only be inquired into on the final determination of the case ; perhaps

both parties might be satisfied with the next verdict. Ib.
7. See Habeas Corpus, for appeal in.

ARBITRATION,

See Award.

ASSIGNMENT, DEED OF.

See Deed and Fraud.

ASSIGNOR AND ASSIGNEE.
See Bills of Exchange and Promissory Notes.

ASSUMPSIT.
A mere equitable right cannot be recovered under the common counts; the
plaintiff, as in other actions at law, must have a legal right.

Dowell v. Brown,

43.

ATTACHMENT AT LAW.
1. An attachment will be sustained by summoning a debtor of the defendant,
without an actual levy on property, real or personal.

Bryan v. Lashley, 284.
2. The return on an attachment at the suit of B. against L., “Garnisheed M. in

the presence of J., March 2d, 1849,” is equivalent to a return that M. had
been summoned to answer as garnishee of L., the debtor in the attachment,

and is sufficient to uphold the attachment. Ib.
3. The sheriff need not return how he has executed an attachment; it is suffi-

cient if he return it generally "executed,” or “summoned ” as to the

garnishee. lb.
4. The attachment law is to be construed liberally for the benefit of creditors.

Ib.
5. An affidavit of proof of publication in an attachment suit at law against an ab-

sconding debtor, which publication the law required to be made for four
weeks successively, stated that “ the order of publication had been published
in the county for four weeks successively, once every week, commencing on
the 24th of April last, and ending on the 5th day of May, in the Woodville
Republican : " Held, that the statement in the affidavit, that the publication
had been made for four weeks successively, was a compliance with the terms
of the statute, and was as much as was required ; and that the subsequent
part of the affidavit was mere surplusage, in all probability was a mistake,
and could not vitiate the previous part, which was good and sufficient.

Swayze et al. v. Mc Crossin, 317.
6. Where a judgment has been rendered in an attachment suit at law against an

absconding debtor, which is levied upon land, the proper process to issue,
under the statutes, to enforce the judgment, is an execution commanding the
sale of the specific land levied on ; yet if an ordinary fieri facias issue, gen-
eral in its terms, and the specific land attached be sold under it, the pur-
chaser will, in the absence of proof that he had any notice of the irregu-

larity in the process, acquire a good title. 16.
7. If an attachment at law be regularly sued out against an absconding debtor or

one removing his property, and the bond and affidavit before their return to the
circuit court, while in the custody of the magistrate who issued the attach-
ment, be accidentally destroyed by fire, the attachment will not, on proof of
these facts, be quashed for want of the affidavit and bond “taken and re-

turned,” as required by the statute. Wheeler v. Slavens, 623.
8. The attachment law is to be construed “ in the most liberal manner, for the

advancement of justice and the benefit of creditors ; ” it was held, therefore,
that though that law required the “bond and affidavit” of the creditor to be
taken and “returned” to the court, or the attachment to be dismissed,
it did not embrace the case of the accidental destruction of such bond and
affidavit duly taken, before their return; the bond having been once taken, the
debtor could have the same remedy upon it after as before its destruction. 16.

ATTACHMENT IN CHANCERY.

See Chancery.

ATTACHMENT FOR CONTEMPT.
1. Whether an attachment of the person of a defendant may issue only on motion

to commit, and notice thereof to the defendant or his solicitor, or upon motion
for an order nisi, which order also must be served ; or whether, upon service
of an injunction, an attachment may issue in the first instance, is a mere
question of practice, and it is not material which is pursued. This court
must presume that the chancellor followed the rule of practice as it existed
in his own court, and this court will not interfere, because he chose to follow
the modern, instead of the ancient rule of practice.

Lewis et al. v. Miller, 110.
2. The high court has no power to discharge one who is in custody for a con-

lempt of another court. Correction for contempt and commitment by a court

of competent authority, is conclusive. 16.
3. If an attachment at law be regularly sued out against an absconding debtor,

or one removing his property, and the bond and affidavit before their return to
the circuit court, while in the custody of the magistrate who issued the attach-
ment, be accidentally destroyed by fire, the attachment will not, on proof of
these facts, be quashed for want of the affidavit and bond “taken and re-

turned,” as required by the statute. Wheeler v. Slavens, 623.
4. The attachment law is to be construed " in the most liberal manner for the

advancement of justice and the benefit of creditors; " it was held, therefore,
ruptcy; a subsequent promise, therefore, by the bankrupt, to pay a debt
from which he has been thus discharged, though in writing, is void for want
of consideration. Ib.

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that though that law required the “bond and affidavit of the creditor” to be
taken and “ returned” to the court, or the attachment should be dismissed, it
did not embrace the case of the accidental destruction of such bond and affida-
vit duly taken, before their return; the bond having been once taken, the cred-
itor could have the same remedy upon it after as before its destruction. Ib.

ATTORNEY AT LAW.
In an action against an attorney at law for money collected by him for his

client, he may plead the statute of limitations; and it will be no answer to
the plea, that he did not notify his client of the collection of the money.

Cook v. Rives, 328.

AWARD.
1. A guardian ad litem cannot bind his wards by submitting the suit in their name

to arbitration, and approving the award ; they can only conduct the suit

under the directions of the court. Fort v. Battle, 133.
2. A husband cannot bind his wife by submitting to an arbitration questions

affecting her separate property; he may submit to arbitration any thing that
he can dispose of in right of his wife; but as respects property which he
cannot alien, he cannot submit to an award which would give that property

to another. Ib.
3. An award may be binding on a portion of the parties, and not on the residue ;

as where adult and minor heirs, the latter acting by their guardian ad litem,
submitted with the administrator the latter's course of administration to ar-
bitrators, and approved of their award; the adults will be bound, and not
the minors, by the award. Ib.

BANKRUPT LAW.
1. A note given by an applicant for a discharge in bankruptcy from his debts

under the act of Congress, to a creditor resisting his discharge on the
ground of a fraudulent concealment of his assets, the note being executed
on condition that the creditor would withdraw his opposition, is void, though
executed after the bankrupt's discharge; the consideration being illegal,
and the transaction in fraud of the policy of the act of Congress.

Rice v. Maxwell, 289.
2, The debts of a discharged bankrupt are annihilated by the decree in bank-

BANKS.
1. Banks of necessity carry on their business through the medium of agents, who

bind the bank to the extent of their authority; where, therefore, a bank has
several agents, to whom separate and distinot duties are intrusted, notice to

one of them in regard to a matter not pertaining to his duties cannot affect

the bank. Goodloe v. Godley, 233.
2. Knowledge, therefore, on the part of a clerk in a bank of the residence of a

party to negotiable paper protested by the bank, will not prevent the holder
of the paper, in a suit against this party to it, from availing himself of the

ignorance of the proper officer of the bank of the residence of the party. 16.
3. A note executed by a stockholder in the Commercial Bank of Natchez, payable

to the bank and discounted by it for the purpose of paying a call by the
bank on his subscription for stock, after the first and several other calls on
his stock had been paid, is a valid obligation on the maker of the note ;
which

may be enforced after a judgment of forfeiture against the bank, under
the act of 1843, by the trustee appointed by the court.

Lewis v. Robertson, 558.
4. The trustee of a bank, under the act of 1843, succeeds to all the rights of the

bank; he is to collect all debts due to the bank, and apply them to the pay-
ment of debts due from the bank ; and an amount due for stock in the bank is

as much a debt as any other liability. 16.
5. However it might be if there were no creditors of the bank, it is clear the

stockholders are bound to pay up all the arrearages due for stock, if neces-

sary to form a fund for the payment of the debts of the institution. Ib.
6. It seems that an assignment by a bank of its choses in action and other prop-

erty, to trustees, for the benefit of its creditors, made pending a writ of quo
warranto against it, for the purpose of preserving its assets from extinguish-
ment, is not a dissolution of a corporation, or a surrender of its franchises.

State v. Commercial Bank of Manchester, 569.
7. It is the settled doctrine of this court, that a bank may make a general assign-

ment of its property and effects, and such assignment, if in other respects

fair, will be sustained. Ib.
8. It is a part of the common law of the land, annexed as a tacit condition to the

creation of every private corporation, that it may lose its franchises by a

misuser or nonuser of them. Ib.
9. While an assignment by a bank of its property and effects, to trustees for its

creditors is not a misuser of its franchises, yet it may place it out of the
power of the bank to comply with the terms and fulfil the purposes, and
perform the conditions upon which its charter was granted, and thus prove a

ground of forfeiture for nonuser. Ib.
10 The furnishing of a sound and convertible medium of currency, is the primary

object in the incorporation of banks; the accommodation of those who deal
with them, and the benefit of the stockholders are the secondary objects; in
regulating, therefore, the management of its monied affairs, a reasonable
discretion must, of necessity, be allowed the corporation; and it is therefore
difficult to define the boundary between legitimate acts of prudence and those
which would be an abuse of its franchises ; each case must rest somewhat on
its own circumstances. Ib.

11. While a continued suspension of the principal corporate franchises, and a

failure to perform the implied conditions on which the charter of a bank was
granted, will amount to a nonuser, and so be ground of forfeiture; yet a mere
assignment of the property and effects of a bank nearly out of debt to trus-
tees to pay the debts due, and the residue to divide among the stockholders,
made pending a quo warranto with the view of saving the assets, the bank in
the meanwhile keeping up its corporate existence by the election of its offi-
cers, is not a misuser nor a nonuser of its franchises; yet it seems if, after
the decision in its favor of the quo warranto, the trustees make no reassign-
ment to the bank, and the latter omit the exercise of its usual corporate
franchises for a continued period, it would amount to a nonuser, and be cause

of forfeiture. Ib.
12. B. & D. were sureties of C. upon a note held by a bank, on which suit was

instituted against all the parties ; C. becoming insolvent, B. and D. proposed
to execute their separate notes each for half the sum due, with sureties on
each, and take up the note sued on with these new notes ; in February, 1841,
B. made his note with sureties for his portion, and delivered it to the bank for
his half of the debt sued on ; the bank retained the note, but whether at once
it agreed to the proposal was not clear; in August, 1841, B. informed one of the
directors of the bank that he did not wish the note discounted by the bank, and
applied to the bank for it; in October, 1841, the suit upon the note of C. was
dismissed, and the bank subsequently sued B. and his sureties on the note
given by him for his half of the other debt: Held, on these facts, that B., and
his sureties were liable on that note ; the holding of the note for so long a time
by the bank, without an offer to return it, might of itself be regarded as an
acceptance of the proposition of B.; and it would be unjust to allow B. to
escape the payment of the note made by him, without putting the bank back
in the condition in which it was before the dismissal of the suit on the first

note. Commercial Bank of Manchester v. Bonner, 649.
13. In an action on the note of B., the court was asked by the bank to instruct the

jury, " that if any demand were ever made by B., of the note, unless said
demand was made of some legally authorized agent of the bank, it was
of no avail, and is not evidence of B.'s disagreement to the transaction :"
Held, that this instruction propounded the law correctly, and should have been

given. Ib.
14. The court was further asked by the bank, to instruct the jury, “ that a bank

can receive notes, and agree to propositions at the board, without any entry
upon the records, but the same may be entered at a subsequent time; and if
any agreement to a former proposition, it will relate back to the time of
receiving the original proposition : " Held, that this also should have been

given. Ib.
15. See Deed, for deed of assignment by. See Lim., Stat. of, for how far the

injunction clause in the act of 1843 stops running of. See Scire Facias, as
to revival of judgment in favor of.

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