
    
      J. W. Coachman, Commissioner in Equity for Georgetown district, vs. Benjamin F. Hunt.
    
    The assignee of a bond is not compelled, by the Act of 1798, to sue thereon in his own name ; he may sue in the name of the assignor.
    Where a Commissioner in Equity sues on a bond payable to himself or his predecessor, he is not bound to shew air order of the court of equity authorizing him to sue thereon.
    
      Before Evans, J. at Charleston, Fall Term, 1845.
    The report of his Honor the presiding Judge, is, amongst other things, as follows :
    “ The action was debt on a bond, dated February 6, 1826, conditioned for the payment of 4,053 dollars, with interest annually, in three instalments. The plaintiff, Coachman, had written a letter to the attorney, Mr. Mitchell, disclaiming the action, and directing its discontinuance, which was refused. The defendant’s counsel then gave notice, that at the trial he would require the production of the power of attorney, which was accordingly done. It appeared, from certain proceedings in equity, that one Cutino, who was the administrator of Savage Smith, had sued this bond as far back as 1832, and- that an order had been made by a Chancellor, enjoining- the action at law. In 1842, this action was brought on the. same bond ; attempts had been made to revive the old order for injunction, but it had finally been refused, on the ground that no injunction bond had ever been given. It was clear that the commissioner had parted from this bond as far back as 1832. The delivery of it without assignment, was an authority to sue in the name of the commissioner, which Mr. Coachman, the successor.'of the then commissioner, could not revoke. I therefore decided that the plaintiff’s counsel was not bound to produce any authority, or to regard Mr. Coachman’s order. It appeared, at a subsequent stage of the case, that Heriot, to whom the bond was payable, as commissioner, had assigned this bond, with others, to Cutino, administrator of Savage Smith, on the 13th December, 1826.”
    The defendant, under pleas of solvit ad diem and sol-vit post diem, proved that he had paid large sums of money on account of the estate of Savage Smith, which he contended should be regarded as payments on this bond. His Honor, however, thought that they could not be regarded at law as payments, and that they were the subject of equity jurisdiction. The plaintiff had a verdict, and the defendant appealed, on the grounds, inter alia—
    1st. Because the plaintiff’s attorney should have been required to produce his warrant of attorney.
    2d. Because no order had been made by the court of equity, authorizing the plaintiff to put this bond in suit.
    
      Memminger if Hunt, for the defendant.
    
      Mitchell if Yeadon, contra.
   Curia, per Evans, J.

The first objection of the defendant is, that the plaintiff, Coachman, had disclaimed the action and directed its discontinuance. This turns out to be a mistake. Mr. Mitchell, to whom Coachman’s letter was addressed, was not present at the trial on circuit; the letter was not produced, and evidence of its contents was received ; but in this court the letter has been produced, and it turns out to be nothing more than a direction to continue the case, as the injunction had been revived. But independent of this, I apprehend that Coachman had no control over the action. If the bond had been delivered ■without a written assignment by Heriot to Cutino, the delivery would have carried along with it the right to sue in Heriot’s name, or in the name of whomsoever, by law, the legal right of action existed. In this case, it appears that Heriot, on the 13 December, 1826, assigned this bond with others to Cutino, who represented the estate of Savage Smith. Under this assignment, Cutino might have sued in his own name as assignee. The Act of the Legislature, authorizing assignees of bonds to sue, does not make it imperative ; it only permits them to bring the action in their own names, without restraining them from suing in the name of the obligee, as they were obliged to do before the Act. The second objection is, that the commissioner in equity cannot sue the bonds which he has taken in the exercise of his official duties, without an order from the court directing the collection. This may be so, and if so, that court would no doubt restrain its officer, on application for that purpose ; but in this court we look only to the legal rights of the parties. The bond is in the name of the commissioner and is payable to him and his successors. He is the payee, and at law has a right to sue whenever there is a breach of the condition. Motion refused.

O’Neall, Butler and Wardlaw, JJ. concurred.

Frost, J. did not hear the case, because he had been engaged in it whilst at the bar.  