Public-domain · open source
OpenJurist

10 S.C.L. 187

Printems v. Helfried

Supreme Court of South Carolina

Decided January 15, 1818

Supreme Court of South Carolina · decided 1818-01-15

This was an action of replevin, tried before Mr. Justice Smith, Charleston, January Term, 1816. The defendant was bailiff of the landlord, and distrained for rent in arrear. The plaintiff produced a receipt in full for the rent, that is, a receipt for an order on Ool. Magwood, who was called as a witness, and proved that it had not been paid by him, because the funds of the drawer had been taken out of his hands. No notice of nonpayment was proven.

Decided 1818-01-15

¶1The opinion of the Court was delivered by

Colcock J.

¶2There can be no doubt, that the order was not a discharge of the original debt.1 An insufficient security cannot be considered as payment. 1 Esp. 245. 7 T. R. 243-58. Markle v. Hatfield, 2 John. Rep. 455. If then, the original debt was not extinguished by the receipt of an order on a person not in funds for the drawer, it follows, that the right to distrain was not lost by the acceptance of the order, and the receipt given. The law has pointed out an expeditious and summary mode for the recovery of rent; but it would be easy to defeat the purpose, if such a proceeding were supported.

¶3The second ground states, that notice was necessary.2 Where an order is drawn on a person not in funds, notice is not necessary. What is the object of notice ? To put the drawer on his guard, and to enable him to take his effects out of the hands of the drawee. Now if he drew on one who has no funds, there can be no necessity for this; for the object of the notice is not to be accomplished. Chitty, 152-3.

¶4The plaintiff must fail on both his grounds.

¶5The motion is discharged.

Oheves, Nott and Johnson, JJ., concurred.

¶6 3 McC. 485.

¶7 2 N. & McC. 251; 3 Strob. 312.

/10/scl/187 · .json · Public domain