Commercial Bank v. Bobo

43 S.C.L. 31

• Court: Court of Appeals of South Carolina
• Decided: December 15, 1855
• Status: Published

Opinion

Curia, per

O’Neal, J.

This Court is satisfied that nothing like payment is established by the facts relied upon by the defendant,

To constitute anything else than money a payment, it must be accepted as such, or payment in fact must result from it.

This is so well understood that it is scarcely necessary to cite authority in support of it.

The case of Peters vs. Barnhill, 1 Hill, 236, a, was a case where a note was set up as payment, and the Court held, if it was accepted as such it might be so regarded.

In Costello vs. Cave, 2 Hill, 528, 531, Judge Harper said, “ the rule of law is perfectly well settled, that if a note or bill be given on account of a previous debt though by open account or other simple contract, this is no payment, unless it be expressly accepted as payment, or produce payment.”

The case before us is concluded by these authorities; for there is nothing in it which will rank higher than a note or bill. The orders drawn by the defendant directing the Sheriff to pass over the execution No. 1, in favor of the execution of the Commercial Bank vs. Leitner, and give precedence to it, by applying to it any money raised by the sale of, Leitner’s property to which No. 1 would be otherwise entitled, is no more than a draft on the Sheriff in favor of the Commercial Bank. Until paid it was and is no satisfaction of the defendant’s liability, unless the Bank had accepted it as payment.

Beyond all doubt there is no proof of that: — all that the Bank has done has been a prompt endeavor to get the money from the Sheriff.

Failing in that they had the right to look to the defendant, the indorser of Leitner.

The motion is dismissed.

Wardlaw, Withers, Whitner, Glover, and Munro, JJ., concurred.

Motion dismissed.