
    J. Printems v. J. Helfried.
    The right to distrain for rent is not destroyed by the acceptance of an order drawn on a person not in funds, and notice of non-payment is not necessary.
    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.
    The presiding judge was of opinion that this was a bar to the right, of distress, and charged the jury to find for the plaintiff. The verdict was for the avowant-
    *A motion for a new trial was made on the following grounds, and submitted without argument:
    1. That the right to distrain for rent in arrear was destroyed by the acceptance of an order on Simon Magwood for the amount due, and giving a receipt in full for the same.
    2. If the receipt be not considered as a satisfaction for the rent, still the landlord was bound to prove due notice of the nonpayment of the order.
   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. 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. 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.

Gantt, J.,

dissented, as follows: I think the remedy by distress, was taken away in this case, under existing circumstances. 
      
       3 McC. 485.
     
      
       2 N. & McC. 251; 3 Strob. 312.
     