
    The Bank of Newberry, South Carolina, vs. Walker & Glenn, and Others.
    
      Assignment /or Benefit of Creditors — Acceptance—Payment.
    
    An assignment for the benefit of creditors, provided that any creditor, desiring to avail himself of the provisions of the assignment, should, within six months, accept its provisions in writing, and in consideration thereof, release the debtors from liability: — Held, that payments made by the assignee to a bond creditor did not amount to an acceptance, according to the terms of the assignment, so as to discharge the obligors from liability for the balance of the bond which remained unpaid.
    BEFOBE O’NEALL, J„ AT NEWBEBBY, FALL TEBM, 1859.
    The report of his Honor, the presiding Judge, is as follows :—
    “ In this case, the defendant relied on an alleged acceptance, under the assignment of Walker & Glenn, in discharge of their liability under a bond of $35,000.
    “ The assignment provides, ' and it is further a provision of this assignment, that any creditor desiring to avail himself of the provisions herein made, shall, within six months from the date hereof, accept, in writing, the provisions so made, and shall, in consideration thereof, release all claim which he may then hold against Walker & Glenn, or either of the partners individually.’
    “ The bank made no acceptance in writing. .
    The cashier of the bank received from the assignee, at four different times — 13th November, 1858, 8th December, 1858, 3d March, 1859, 5th July, 1859 — partial payments of the bond, to the amount $6,100.
    
      “ These were relied on as evidences of an acceptance in writing. I ruled and held that they could have no such effect. The jury found accordingly.”
    The defendants appealed and now moved this Court for a new trial, upon, the grounds:
    1. Because his Honor erred in ruling and holding that there was no legal and valid acceptance of the assignment referred to in the pleadings; whereas, the defendants submit that the acts done by the bank did, in law, amount to an acceptance, and so his Honor should have ruled.
    2. Because the question of acceptance or non-acceptance, on the part of the bank, was a question of fact, and, as such, should have been submitted, to the jury, which was not done.
    Fair, Thompson, for appellants.
    Baxter, contra.
   The opinion of the Court was delivered by

O’Nball, J.

This Court concurs in the ruling below. It is not perceived that the bank did any act which can be construed into an acceptance of the assignment. The payments received from the assignee were merely .in part payment of a debt due by Walker & Glenn, and secured by the other defendants.

It certainly cannot have the effect to discharge the obligors, that a sum less than the principal was paid, unless it could be shown that this was accord and satisfaction, and thereupon that the debt was released.

There was no such proof.

There was certainly nothing to go to the jury. For-if they could have been persuaded that the receipts of payments on the bond, from the assignee, was án acceptance of the assignment, such a finding could not have been sustained against the words of the deed, which require an acceptance in writing.

The motion is dismissed.

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

Motion dismissed.  