
    
      E. G. Randolph, for B. F. Porter, Assignee of Staats Fox, vs. the Planters' and Mechanics' Bank of So. Ca.
    
    E. R. purchased from an agent of the Bank a draft on the Bank, and indorsed it to S. E. The Bank refused payment: — Held, that E. R., notwithstanding the transfer, might recover the amount he had paid for the draft, in an action against the Bank for money had and received.
    The draft had been indorsed and sent to S. E. to pay a debt which E. it. owed him which debt S. E. had assigned to P.j and P. presented the draft to the Bank for payment. The refusal of the Bank to pay, was because S. E. was largely indebted to them, and they claimed the right to retain the amount of the draft, as his creditors:— Held, that this was no defence to the action of E. R., who sued for the use of P.
    
      Before O’Neall, J., at Charleston, Spring Term, 1853.
    The report of his Honor, the presiding Judge, is as follows:
    “This was an action of assumpsit, for money had and received, to the use of the plaintiff.
    “The facts are, that Staats Fox had an account against (most probably) the plaintiff, for $215.18. He assigned to Porter his estate, and in his schedule describes the debt as due to him by G. E. Randolph. The assignment was made in Charleston, 17th May, 1850. On the 18th of May, 1850, the plaintiff purchased, at Winnsborough, So. Ca., from Samuel G. Barkley, agent of the Planters’ and Mechanics’ Bank, a draft, payable to his own order, for $215.18, and endorsed it to Staats Fox.
    “ It was presented to the Bank, on the 23rd May, for payment, and protested for non-payment.
    “ The plaintiff here rested. The defendant moved for a non-suit, on the ground that the draft had been passed by endorsement to Staats Fox, and therefore the plaintiff could not sustain this action. I thought otherwise. The action was not on the draft; the refusal of the Bank to accept it, remitted the plaintiff to his action for the money paid for it, of which it is the evidence. The defence of the Bank, ahd the reason of the refusal to pay, appear to be that Staats Fox drew a draft, for a large sum, on Alexander Fox, of New-York, on the 11th of May, 1850, payable ten days after sight. It was noted for protest for non-acceptance 17th May; it was protested for nonpayment 30th May. This belonged to the Bank (
      
      ).
    
    
      “ I thought, and so instructed the jury, that the plaintiff could recover for the money paid for the draft, with interest, and that the defence of the defendants could not avail. For as against the plaintiff, they could have no defence; but, if this were looked at as an action by the assignee of Staats Fox, still, if the jury believed that the debt of G. E. Randolph' was in truth the debt of E. G. Randolph, the Bank had no claim. The debt of Randolph was properly passed to the assignee; the draft was for its payment. Apply this draft, or the money, to the payment of Staats Fox’s debt to the Bank, and the result would be that the debt of the plaintiff to the assignee would be unpaid. This of bourse, showed the propriety of the money being recovered, by the plaintiff, for the use of the assignee, so that his debt might thereby be paid.
    
      “ The plaintiff had a verdict of $208.18, with interest from the 23rd May, 1850.”
    The defendants appealed, and now moved for a non-suit, on the ground:
    Because the testimony, offered in behalf of the plaintiff, was not sufficient to maintain the action for money had and received, as the check or draft of Samuel G. Barkley, the agent, upon the Bank, had been specially indorsed by him to Staats Fox, by which indorsement Staats Fox alone was entitled to receive the amount of the check, and the money in the Bank, to answer the draft, became, by virtue of the plaintiff’s indorsement, the money of Staats Fox, and ceased to be that of the plaintiff.
    And failing in that motion, then they moved for a new trial:
    1. Because, at the presentation of the check or draft, at the Bank, with a special indorsement to Staats Fox, the Bank had a right to consider the said Staats Fox as entitled to receive the money drawn for, and might fairly.offer to set off any claim they had against the said Staats Fox.
    
      2. Because his Honor erred in charging the jury that the refusal to pay the money to Staats Fox, or his assignee, (notwithstanding the reason assigned by the Bank,) was a refusal to accept the draft, whereas it is insisted it was a virtual acceptance, as it was a recognition of the right of the drawer to draw on them, as it admitted the'right of Staats Fox to the money drawn for, and only refused to pay it because he was their debtor.
    3. Because the duty to accept springs from the relation between the drawer and the drawee, and wherever the drawee admits the right of the payee or his endorser, to the money drawn for, the drawee thereby recognizes the right of the drawer to draw, which amounts to, and is, in fact, an acceptance'of the draft, and an appropriation of the money according to the intent of the drawer.
    4. That the draft, in this case, required no formal acceptance, as it was payable on presentation at the Bank, and when the Bank claimed to hold the amount, as the creditors in possession, of the special endorsee, Staats Fox, they, in fact, offered to pay the check, as they admitted the right of the drawer to transfer so much money in the Bank to the use of the endorsee of the payee.
    McCrady, for appellants.
    
      Yeadon, contra.
    
      
      
        (a) The refusal of the Bank to pay, was, as stated in the Notary’s protest, “ Because we have a claim, for a large sum, against Staats Box, the indorsee on a hill of exchange, drawn and negotiated to us by Mm, and now under protest for non-acceptance. We claim to hold the amount of this draft upon our Bank as creditors in possession.”
    
   The opinion of the Court was delivered by

O’Neall, J.

It is perfectly plain to my mind, that the verdict below is right, and ought to be sustained.

The plaintiff was the debtor of Staats Fox; he assigned to Por-, ter, on the 17th of May, 1850. To pay this debt, the plaintiff, on the 18th, purchased from the agent of the defendant, at Winnsboro’, a draft on itself, and remitted it. The assignee presented the draft for payment, on the 23rd. The Bank refused to.pay it, alleging that Staats Fox was their debtor.

But in point of fact, he was not fixed for their debt, until the 30th of May, when his bill was protested for non-payment. So that, in that point of view, the Bank would be without defence. Let it, however, be assumed that he was their debtor, to an amount largely beyond the amount of the draft, still I do not think the Bank can be protected.

There is nothing like payment, without the consent of creditor and debtor, actual, or implied. In this case, let it be supposed that Staats Fox himself had presented the draft, and the Bank had said, No, Mr. Fox, we cannot pay you the money, but we will place it to your credit.” Could he not have said, “I will not have it so?” Unquestionably. He could have restored the draft to the plaintiff, and what would then have followed ? The plaintiff, unquestionably, could have said to them, “ Give me back my money.” The Bank must have complied, for that which had been given to him, in place of his money, had failed of its purpose.

Is not the case much strengthened when the draft is presented by the assignee, and the Bank refuses to pay? The draft was sent to pay the account of the plaintiff assigned to Porter before it (the draft) reached Charleston. It was right and proper that it should be turned over to the assignee. It is true, it was indorsed to Staats Fox ; but that does not alter the case, for the equitable right of the assignee to collect it, in the name of Fox would prevent the Bank’s defence, if the party had thought proper to resort to that form. But they might consider the draft as failing in its purpose, not having procured the money, and go back to Randolph, and say, “Here is your draft — it does not answer our purpose — take it, and collect your money for our use.” Could there be any difficulty about the case, all these facts being proved ? Certainly not. They are the same as proved; for the party, like the holder of a promissory note given for goods sold, money had and received, money lent, may, on bringing it (the note) into Court, proceed on the original com sideration, and recover.

The action is on the consideration. The plaintiff put his money in the hands of the defendant’s agent; that was the same if it had been placed in the Bank’s till. His draft on the Bank was the same as a draft by the Bank on itself. It thus became an acknowledgment, that that much money was in their hands, which he could apply. He orders it to be paid one way : this is refused. He brings the draft into Court, as evidence of the deposit of his money, and says, Give me'back the same. How can it be refused ? It was money received for his use, and must be paid.

The motion is dismissed.

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

Motion dismissed.  