
    
      Haviland, Risley & Co. vs. W. F. Simons.
    
    The Clerk of the City Court of Charleston has authority to issue commissions for the examination of -witnesses.
    Where a bill of exchange is payable to and indorsed by firm, the indorsee, in declaring upon it against the acceptor, need not set forth the names of the members of the jwm.
    
    The subsequent indorsee of a bill of exchange may give the same in evidence and recover against the acceptor on a count for money had and received.
    
      In the City Court of Charleston, February Term, 1850.
    The report of his Honor, the Recorder, is as follows:'
    “This was an action by plaintiffs (as indorsees) of a bill of exchange for $300, payable to Wm. J. White & Co., drawn by one -Simons on the defendant, and accepted by him. The declaration stated the bill to be payable to Wm. J. White &, Co. and to have been indorsed by them to the plaintiffs. The declaration did not set out the names of the persons, individually, who composed the firm of Wm. J. White <fc Co. . The plaintiffs'offered in evidence the testimony of one James H. Ray, taken by commission sent from this court, and executed in New York. The defendant made the objection, stated in his first ground of appeal, to the reception and reading of the evidence offered, to wit: — “ because the commission was granted by the clerk, and not the Recorder, and that it was not under the seal of the court.” It was argued by the defendant’s counsel, that the Act of the Legislature of 1836 gives power to the Recorder to issue a commission, and it should, therefore, appear to have been issued or granted by him, as it were personally, and not by the clerk. I did not recognize the force of this objection, and regarded the commission, issued under the seal of the court and signed by the clerk, as, perhaps, the most proper and highest evidence that it was in fact and in law issued by the Recorder. But, independently of this, the Act of 1842 expressly directs that all writs and process in this court shall be issued from it, tested in the name of the clerk of the court, in the same way as they are required to be in the State courts. With regard to the objection to the seal, I thought it sufficient, if the court, on inspection, recognized it, as it did, as giving all necessary authenticity to the writ, and as the seal of the court. For these reasons I overruled the objection, and the testimony was read.
    “"The proof was, in substance, that one-White, whom witness -knew to be a partner in the concern of Wm. J. White & Co. indorsed the bill, by signing the name of Wm. J. White & Co. on the bill.
    “The plaintiffs, in their declaration, had. set forth the bill as being transferred to them directly by the payees; but, on inspection of the bill, on the trial, there appeared several indorsements subsequent to that of the payees. The genuineness of these in-dorsements was also proved by the same witness. All these in-dorsements were in blank.
    “ The plaintiffs closed, and the defendant’s counsel moved for a nonsuit, on the second and third grounds taken in his notice of appeal.
    “As to the second ground, I decided that, in declaring on a note or bill, as the indorsee of a firm, it is not necessary to set forth the names of the members of the firm. If authority is needed to sustain this position, I wquld refer to Chitty on Bills, 580-1 (Am. ed. of 1839); Cochran vs. Scott (3 Wend. 229). See also Chitty on Plead. 3 vol. 35, (Am. ed. of 1818,) citing 2 Campb. Rep. 604; 4 lb. 78.
    “ As to the third ground, I decided that, notwithstanding the subsequent indorsements to that of Wm. J. White &. Co. appearing on the bill, the plaintiffs might still recover as the immediate indorsees of Wm. J. White & Co. on the special count on the bill, upon striking out these subsequent indorsements, or, without doing this, upon the count for money had and received, which I understood to be contained in the declaration.
    “ As to the right of the indorsee to recover against the acceptor, claiming title under the first indorsement, although there appeared subsequent indorsements on the bill, on striking out those indorsements on the trial, I would refer to Chitty on Bills, (Am. ed. of 1839,) p. 588. As to the right of the indorsee to recover, in such case, against the acceptor, on the count for money had and received, the subsequent indorsements being proved to be genuine, which was done in this case, (although there appears to be some conflict in the English cases on this subject) I would refer to the case of Rockefeller vs. Robison, (17 Wend. Kep. 206,) as a case directly in point; also to the case of Penn vs. Flack & Cooley, (3 Gill and Johnson’s Rep. 369,) cited in Chitty on Bills (same edition); the first case at p. 594, the second at p. 595 (a). The principle involved and apparently sustained by these cases, would seem to be that, by the acceptance of the bill, the acceptor acknowledges so much money in his hands as the bill calls for, which he engages to pay according to the terms of the bill, to the payee or his order; or, in other words, and in effect, to any bona fide holder, into whose possession the bill may come in the regular course of transfer and indorsement. These transfers being all proved, entitles the remotest holder, as well as the first indorsee, and upon the same reason, to claim payment of the amount of the bill, from the acceptor, as so much money had and received to his use; or as so much money which, ex eqao et bono, the acceptor is bound and ought to pay to the holder, and which is properly recoverable, in that aspect, under this count.”
    The defendant appealed, and now moved this court for a new trial or nonsuit, on the grounds:
    1. Because it is submitted that his Honor should not have allowed the commission sued out in this case to be read, because it was granted by the cleric, and not the Recorder, and not under the seal of the court.
    2. Because his Honor held that the names of the members of ■the firm of W. J. White & Co. under whom plaintiffs claimed, need not be set forth in the declaration.
    3. Because the plaintiffs alleged that Wm. J. White & Co. indorsed the bill of exchange to the plaintiffs, but the copy of the bill filed with the declaration, and the proof offered by the plaintiffs, showed it was not, in fact, indorsed by Wm. J. White &. Co. to the plaintiffs, but by some other holder.
    
      Kunhardt, for the motion.
    
      Brewster, contra,
    cited, on the first ground, the 2d section of the Act of 1842, (11 Stat. 238). On the 2d ground, he cited 3 Wend. 229; 8 Wheat. 642; 3 Chit. PI. 35. On the 3d ground, he contended that, in an action by an indorsee against the acceptor of a bill of exchange, the bill is at least 'prima facie evidence of money had and received by the defendant to the use of the plaintiff: that the plaintiffs in this case, therefore, were entitled to retain their verdict under the count for money had and received. Bail, on Bills, 392; 3 T. R. 174, 182; Weston vs. Penniman, 1 Mason, 306; Wallace vs. McConnell, 13 Peters, 136; 12 Johns. R. 90; 3 Bur. 1516; 17 Wend. 206 j 
      Hughes vs. Wheeler, 8 Cowen, 77; 5 Wend. 490; Cole vs. Cushing, -8 Pick. 48 ; 11 Pick. 316; 4 Pick. 241; 12 Mass. R. 172; 4 Wend. 411; Stark. Ev. part 4, p. 302; Green. Ev. § 112, 117; Story on Bills, § 268; 2 Arch. N. P. 67 ; 2 Wheat. 385.'
   Curia, per

Frost, J.

It is scarcely necessary to add any thing to the report of the Recorder, on the several grounds of appeal.

The authority of the Clerk of the City Court to issue commissions to take the depositions of -witnesses, residing out of the city, is affirmed for the reasons assigned by the Recorder.

It is to be inferred from the report, that the objection to the seal of the court, attached to the commission, was, that the impression of the device of the seal was not visible. That objection was overruled in the case of the State vs. McElmurray, (3 Strob. 33.)

In addition to the authorities cited in the report, on the second ground of appeal, may be added, the judgment of the Supreme Court, delivered by Story, J. in Childress vs. Emory, 8 Wheat. 670.

In Bailey on Bills, 392, it is affirmed - that an acceptance is, prima fade, evidence of money had and received by the acceptor to the use of the holder; and of money paid by the holder to the use of the acceptor. The position is confirmed by Tatlock vs. Harris, 3 T. R. 174, and Vere vs. Lewis, 3 T. R. 182. In Raborg vs. Peyton, 2 Wheat. 385, Judge Story says that, in point of law, every subsequent holder, in respect to the acceptor of the bill of exchange and maker of a note, stands in the same predicament as the payee. An acceptance is just as much evidence of money had and received, by the acceptor, to the use of such holder, and of money paid by such holder, to the use of such acceptor, as if he were the payee. The theory of a bill of exchange is, that it is an assignment to the payee of a debt, due by the acceptor to the drawer; and the acceptance imports that the acceptor is a debtor, to the drawer, to the amount of the bill. Hence it has been said, that the effect of the transaction is, to appropriate, by an agreement between the parties, so much money to the account of the holder.

The motion is dismissed.

O’Neall, Evans, Waedlaw, Withers and Whitnek, JJ. concurred.

Motion dismissed.  