
    Carran et al. v. Little.
    B., an officer of the city of Cleveland, having a salary payable quarterly, made a draft on E,, the treasurer of the city, for eleven hundred and twenty-five dollars, payable to the order of C., on the eighth day of April, 1874, and directed that the amount of the draft be charged to his salary for the quarter then ending,-and waived demand and protest. The draft was endorsed by C. to D.
    
      Held: The draft was negotiable and created between B. and C. the relation of drawer and endorser.
    Error to the District Court of Cuyahoga County.
    The action in the common pleas was brought by Little, the defendant in error, against Garran as endorser, Everett as drawee, and the administrator of ¥m. C. Bunts, the drawer of a draft, which is as follows:
    “ $1125. Cleveland, August 13, 1873.
    “ On the 8th day of April, 1874, pay to the order of T. J. Carran, Esq., eleven hundred and twenty-five dollars and charge to my quarter’s salary as city solicitor, due at that time, demand and protest waived. Value received and place to account of “W. C. Bunts
    “ To S. T. Everett, Esq., City Treasurer.
    
      “Endorsed: Thomas J. Carran.”
    It was averred in the petition that at the date of the draft, the drawer, Wm. C. Bunts, was the city solicitor of the city of Cleveland and the defendant 8. T. Everett was the treasurer of the city; and that eleven hundred and twenty-five dollars would become due to Bunts on April 8th, 1874, as his salary for the quarter then ending; and that his death occurred some time after January 8th and before April 8th, 1874. Judgment was given for the defendants below on demurrer to the petition. This judgment was reversed by the district court, and the demurrer of the defendant Carran to the petition was overruled. To reverse this judgment a petition in error is filed here.
    
      Thomas J. Garran, for plaintiff in error.
    The paper was not negotiable. The State v. Treasurer of Liberty Township, 22 Ohio St., 144; Porter v. Dunlap, 17 Id., 591; 1 Ohio, 279; Strader v. Batehelder, 8 B. Monroe, 169; Reaside v. Knox, 2 Wharton, 283. To constitute a negotiable bill of exchange or order it must be drawn for a sum of money certain, must be payable at all events and must not be confined to a particular fund. 1 S. and C. Stat., 862; Weidler Carpenter v. Kaufman, 14 Ohio, 455; Cook v. Satterlee, 8 Cow., 108; Gota v. Buck, 7 Mete., 588; Lowery v. Steward, 25 N. Y., 239; Hunger v. Shannon, 61 Id., 251.
    
      Kain,.Sherwood f Bunts, also for plaintiff in error.
    
      Samuel K. Williamson, for defendant in error.
    The law is well settled that an order to pay money out of a particular fund' is not a bill of exchange, and it is equally well settled that an order to pay money is a bill of exchange, although it may designate the fund out of which the drawer may reimburse himself. The only trouble consists in the application of these well known rules to the particular case, and in every instance it is a question of intention to be gathered from the language of the instrument. In Hunger v. Shannon cited in plaintiff’s brief the order was to deduct from a certain fund. There is very little difference in meaning between deduct from and out of. But the instances are too numerous to mention where instruments which directed the drawer to charge to a particular fund have been held to be bills of exchange. See Parsons on Notes and Bills, 44 and notes x and y. The order in this case directs 'the payment absolutely and unconditionalljr, and it does not direct payment out of a particular fund. It merely states to the drawer how he may reimburse himself. It therefore has every essential of a bill of exchange. Kelly v. Brooklyn, 4 Hill, 263.
   McCauley, J.

The principal question in this ease is whether or not the plaintiff in error, Carran, is liable as endorser of the draft on which the plaintiff seeks to recover. This question is to be determined by the character to be given to the draft itself. The claim of the plaintiff in error is that the draft is merely an assignment of an unearned salary for a certain quarter, and being drawn on the city treasurer was payable out of the salary of the drawer, and being thus payable out of a particular fund was not negotiable.

Whether the drawer made an assignment only of his salary, or a bill of exchange depends upon his intention, as it can be ascertained from the paper itself, to make himself personally liable.

An order to pay money out of a particular fund is not a bill of exchange, but an order to pay with directions to the drawee how he may reimburse himself is a bill of exchange. This distinction has been recognized in many cases. Kelly v. Brooklyn, 4 Hill, 263; Caursin v. Ledlie, 31 Pa. St., 506 ; U. S. v. Bank of the Metropolis, 15 Pet., 377.

Is there enough in this draft to indicate the intention of the drawer to make himself liable? He made his draft upon S. T. Everett, directing him to pay the amount of the draft and charge the same to his quarter’s salary for the quarter then ending and waived demand and protest. It is quite clear from the waiver of demand and protest that the drawer contemplated a continuing liability on his part. The bill is really one drawn on Everett. The designation ‘ city treasurer ” is merely deseriptio personce, and the direction to charge to his quarter’s salary is nothing more than a direction to the drawee how to reimburse himself.

The drawer had no authority to draw on Everett as city treasurer, nor had Everett authority by reason of the draft, to pay to any one the amount stated in the -draft, or any amount as the salary of the drawer. His salary could be paid by the drawee only on the order of the proper officer of the city.

The draft is a different thing from an order of an officer authorized by law to draw orders on a treasurer for moneys held by the treasurer officially, as in- the case of State v. The Treasurer, 22 Ohio St., 144, referred to by -plaintiff in error. In that case it was held that such an Order was not negotiable. It was an order drawn in the form required by statute, by an officer authorized to draw on the treasurer, who was authorized to pay — on his order and oñ no other. Not a matter of dealing, but the form required by law to be observed -in the disbursement of public moneys.

The city would he liable only for any money owing upon the salary of the drawer at the commencement of the action, for the quarter ending- at the maturit3r of the draft, not. because of any notice to it or any of its offices of .the nonpayment of the draft, but because it held the fund, or some part of it, appropriated by the draft to its payment, a,nd the action itself would be notice that the money, if any was so-held, was claimed by the holder of the draft.

Judgment affirmed.  