
    E. H. Martin vs. S. P. Maner.
    B. was indebted to S. his factor by book account, and S. was indebted in the same way, but in a smaller sum, to A. A., through B. her agent, directed S. to transfer the amount due her to B.’s credit, to which S, assented, but neglected to make the transfer on his books: — Held, that a transfer on the books was not necessary to the completeness of the transaction — that, by the agreement and assent of the parties, the indebtedness of S. to A. was ipso facto extinguished, and, pro tanto, the indebtedness of B. to S.
    BEFORE WHITNER, J., AT BEAUFORT, SPRING TERM, 1856.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    “ Tbis was a suggestion filed by tbe plaintiff, an attaching creditor of Samuel Solomons, against tbe defendant, as garnishee. There was a small balance ascertained by tbe parties themselves to be still due tbe attaching creditor, and which would have been included in tbe payment made into Court, but for an error in calculation. Tbis was reported to me as agreed on between tbe parties, as seventy-one dollars and thirteen cents, but which, from tbe data furnished, I make twenty-one dollars and fifteen cents.
    
      “ Tbe matter really in controversy, however, and that gave rise to tbe present issue, is whether the defendant, S. P. Maner, shall be charged with the further sum of one thousand one hundred and seventy-eight dollars and eighty-seven cents. In discharge of his admitted indebtedness to Solomons, he had paid into Court the sum of six hundred and sixteen dollars and forty-six cents, and was entitled to retain as creditor in possession as conceded, five hundred and sixty-eight dollars and sixty-eight cents, making in the whole (the sums paid over and retained), one thousand one hundred and eighty-five dollars and fourteen cents.
    “ The following facts appeared on the trial. Samuel Solo-mons was a factor in the city of Savannah, Georgia, and did the business of the defendant and his mother, Mrs. Catharine Maner, the business of the latter being conducted entirely through the agency of different sons of Mrs. Maner, one of whom was this defendant. Samuel Solomons failed in business 27th March, 1854.
    “ The plaintiff lodged his writ in foreign attachment, March 29th, 1854, in the sheriff’s office for Beaufort district, a copy of which was served on this defendant as garnishee, 30th March, 1854. On the books of Mr. Solomons, 30th March, 1854, there was standing to the credit of Mrs. Catharine Maner, the sum of one thousand one hundred and seventy-eight dollars and eighty-seven cents, and to the debit of this defendant, S. P. Maner, two thousand three hundred and eighty-five dollars and sixteen cents.
    “Sometime in January preceding, there seems to have been an understanding between the parties that a change should be made in these accounts. Accordingly, on or about the 7th January, 1854, S. P. Maner instructed Mr. Solomons to transfer to his credit the amount which was due to his mother, Mrs. Catharine Maner. This transfer was in fact made March 31st, 1854, as of date, however, 10th March, 1854. Mr. Solomons was .examined in reference to this transaction, admitted these instructions, stated that such were the relations between these parties that he felt no hesitation in regarding this defendant as fully authorized to give them, and designed so to transfer the accounts. That there was no special reason for his neglect or delay, supposing as he did that it might be done at any time. Mr. Solomons knew of no consideration moving to this arrangement between S. P. Maner and Mrs. Catharine Maner.
    “Mr. J. G. Lawton had been authorized to procure a similar transfer as to tbe account of Miss’ Maner, about tbe same time, and bad given bis note to'Miss Maner for amount to be passed to bis credit. That bearing of tbe failure of Solomons, be went immediately (31 March) to see if tbe transfer was made. Finding that it bad, be inquired also if tbe other transfer was made as between S. P. Maner and Mrs. Maner, and was informed it bad been forgotten. It was then made, however, as above stated. This witness knew nothing of anything passing between Mrs. M. and her son, but bad taken it for granted their matter was to be arranged as bis bad been. He proved fully tbe fact that Mrs. Maner’s business bad been always transacted through tbe agency of her sons, especially this defendant, S.' P. Maner. Mr. Solomons said tbe omission was accidental, and if S. P. Maner bad been an irresponsible man, be bad no doubt be (Solomons) would have been more prompt in making tbe transfer.
    “ As there-seemed to be no controversy about tbe fact, and no question as to tbe bona fides of tbe transaction to be settled by tbe jury, I suggested tbe propriety of counsel preparing a special verdict, which being agreed to, tbe case was passed to give time. On tbe next day, however, at tbe moment of adjourning tbe Court for tbe term, it was found that tbe counsel could not agree upon some point, and tbe case was committed to tbe jury without argument, who, on my instructions, perhaps without leaving their box, returned a verdict for tbe actor in tbe suggestion for tbe sum of one thousand three hundred and seventy-nine dollars and forty-two cents, being for tbe admitted balance due by S. P. Maner, of seventy-one dollars and thirteen cents, or twenty-one dollars and fifteen cents, as tbe case may be, and tbe amount of this credit carried into tbe books subsequent to tbe attachment, one thousand one hundred and seventy-eight dollars and eighty-seven cents, and interest, being a factor’s account for advances from 30 March, 1854, one hundred and sixty-nine dollars and forty cents.”
    
      The defendant appealed, and now moved this Court for a new trial, on the grounds:
    1. Because the instructions given by the authorized agent of Mrs Catharine Maner, to Solomons, the factor, on the seventh day of January, 1854, to transfer the balance on his book in favor of Mrs. Maner to the account of S. P. Maner, was binding on the factor, and the entry in the books, though made afterwards, ought to be taken as having been made on that day, and his Honor erred in charging, and the jury in finding otherwise.
    2. Because the neglect of the factor to obey the instruction of Mrs. Maner, through her authorized agent, was a fraud upon Mrs. Maner by the factor, from which neither he, nor his creditors, can derive any legal benefit, and his Honor erred in charging, and the jury in finding otherwise.
    3. Because the instructions of the agent to the factor, and not the entry in the books, constituted the disposition of the fund, and his Honor erred in charging, and the jury in finding otherwise.
    4. Because the service of a copy of attachment upon the defendant created no lien upon his debt to the defendant in attachment.
    5. Because the charge of his Honor, and the verdict of the jury was in other respects contrary to law and the evidence.
    Fielding, for the motion.
    The creditors of Solomons can have no rights which he did not have. They cannot avail themselves of his neglect, to make the transfer any more than he could; and surely if he were plaintiff he could not recover.
    
      
      Tillinghast, contra.
    This was only an agreement to transfer wMcb bad not been, consummated wben the attachment was served. The service, therefore, created a lien upon the debt. McBride vs. Floyd, 2 Bail. 209.
   The opinion of the Court was delivered by

Muetro, J.

In Tattock vs. Karris, 3 T. E. 180, Buller, J., puts this case: “ Suppose A. owes B. one hundred pounds and B. owes C. one hundred pounds, and it is agreed between them, that A. shall pay C. the one hundred pounds. B.’s debt is extinguished, and C. may recover that sum against A.” And in Izard vs. Douglas, 1 H. Black. 239, A. being indebted to B., and B. indebted to C. gives an order to A. to pay to C. the sum due to him from A.; the order was accepted by A. and on his refusal to comply with the order, C. may maintain an action for money had and received against him. Gould, J., said: “The case is like that of a man having money due me in his. hands, which I order him to pay to another. Now if I pay money to you for another person, it is money had and received by you to his use. But where is the real and substantial difference, whether I in fact pay money to you for a third person, or whether I give you an order to pay so much money to which you expressly assent. In reason and sound law, it is money had and received to the use of such third person. If my debtor tenders me money, which I give back to him, and tell him to pay it to another, he then in point of fact receives money to the use of the other. But is there any difference between such a case, and the present.” See also Chitty on Contracts, 532, where the whole doctrine is discussed, and the authorities cited.

Nay, so far have Courts of law gone in maintaining equitable assignments, that they have held, when an order is drawn on a particular fund, that, after notice to the drawee, it binds the fund in his hands. Robbins vs. Bunscome, 3 Greenleaf, 546; 5 Wheaton, 277.

Let us apply the principle to the case in hand. As the defendant’s agency has not been controverted; suppose, that instead of directing the amount which was due to his principal by Solomons, to be transferred to his own credit, he had drawn the fund out of Solomons’ hands, and paid it back to him in part payment of his own debt ? As the authorized agent of his mother, it was entirely competent for him to have done so; and where it may be asked is the difference between his receiving the money himself, and paying it back to his creditor, and directing its appropriation by the debtor of his principal, either to the payment of his own debt, or to any other .purpose.

All that was necessary to constitute a legal transfer of the debt, was the direction fox its appropriation by the creditor, and the assent of the debtor; the moment the latter assented to it, the transfer was complete; and neither the omission, or neglect of the debtor, to enter the transfer in his books, could operate to defeat an arrangement, that had been dictated by the creditor, and assented to by himself.

It is beyond all controversy then, that by the operation of the agreement between Solomons, and the defendant, acting as the lawfully constituted agent of his mother, the interest of the latter in the fund in question was extinguished, and became completely vested in the defendant; and it was quite immaterial, so far as- concerned the validity of the transfer, whether a formal entering of the transaction had ever been made in the books of Solomons or not.

The plaintiff is therefore directed to enter a remittitur on the record for so much as the verdict exceeds seventy-one dollars and thirteen cents, the amount admitted to be due by-the defendant; and on this being done, the motion is dismissed; but if he should neglect, or refuse to enter such remittitur on or before tbe first day of March, next, then the motion is granted.

O’Neall, Wardlaw, Withers, and Whitner, JJ., concurred.

Motion granted.  