Haviland v. Simons

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 *343the 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.