Stewart v. Desha, Sheppard & Co.

ORMOND, J. There is nothing in the objection to the affidavit made to the deputy clerk in order to obtain the order for a deposition. The statute, (Clay’s Dig. 146, § 19,) gives the deputy “ power and authority to transact all business in the absence of the principal, which the principal could do were he present, and performed the same himself,” he is therefore, in the absence of the clerk, substituted for him, and it is certainly proper that when he acts, it should appear it was done before him as deputy. It is not necessary his appointment should be in writing. This case has previously been before this court, Desha, Sheppard & Co. v. Stewart, 6 Ala. 852, where it was held, that although they were drawees of the bill, they might un [848] der certain circumstances, having refused to accept it, sue upon it as indorse/'s, after its dishonor. The only questions now presented by the record, grow out of the omission of the plaintiffs to notify the defendant of the dishonor of the bill. A drawer, who has no funds in the hands of the drawee, is not entitled to notice of the dishonor of a bill, because he cannot be prejudiced by want of notice; but it is insisted that this bill was drawn by Stewart, for the accommodation of Harrison, and he was therefore entitled' to notice of its dishonor. It has been held by a very eminent judge, that although no consideration passes between the payee and drawer of a bill of exchange, it is not to be considered as an accommodation bill, as to the latter, if there was a consideration- be? tween the payee and acceptor. [Scott and others v. Lifford, 1 Camp. 247.] The facts of that case were, that one Agar, having an acceptance due to the plaintiffs, begged to have it renewed, which they agreed to, if the defendant would draw a bill upon him for the amount, which he should accept. A bill was accordingly drawn by Lifford, payable to Scott and others, and accepted by Agar. The payee having brought suit on the bill, against Lifford, the drawer, Lord Ellenbo-rough held, the bill was not to be considered as an accommodation bill, there having been a consideration, as between the payees and the acceptor. The facts of that case, and the principle to be extracted , from it, are strikingly analagous to this. Harrison, to pay a debt he owes the plaintiffs, procures Stewart to draw this bill in his favor on the plaintiffs, which it appears he then indorse es, and delivered up to them. They occupy in this transaction, the same attitude Scott & Co. did in the case cited. The design of the transaction was, to pay their debt due from Har- ■ rison, and if the bill had been drawn On Harrison, payable to the plaintiffs, the case would have been identical with the one at bar. But in our opinion, the inference from the facts in proof, is, that Stewart was indebted to Harrison, and by drawing [849] the bill, undertook to pay the,money he owed Harrison, to the plaintiffs. No other construction can be put upon the testimony, considered in reference to the purpose the parties had in view, the payment of the debt of Harrison to the plaintiffs, and the willingness of Stewart to execute his note for the payment of the money at the time the bill was drawn. If the fact was not so, and Stewart was merely lending his name to Harrison, he should have proved it. From this view it results, that it was his duty to provide the funds for the payment of the bill, and not having done so, he cannot be prejudiced for want of notice of the dishonor of the bill, that being a fact of which he must have been cognizant: Let the judgment be affirmed.