Printems v. Helfried

10 S.C.L. 187

Opinions

The opinion of the Court was delivered by

Colcock J.

There 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.

The 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.

The plaintiff must fail on both his grounds.

The motion is discharged.

Oheves, Nott and Johnson, JJ., concurred.

1

3 McC. 485.

2

2 N. & McC. 251; 3 Strob. 312.