
    WATERS VS CARLETON.
    
      As to orders for the payment of money, not aufhoris* ■ ing an action.
    
    1. A mere request or authority in writing to an attorney, to pay money out of a particular fund, when collected, can not be made the foundation of an action against the drawer.
    2. Such an instrument is not embraced within the statute of 1807, authorising suit by an assignee.
    Charles Carleton, assignee of James K. T. Walker, declared in Montgomery Circuit Court, in trespass on the case, against Philemon Waters, upon a written instrument, in the following words, to wit—
    
      “ Messrs Golthwaite & Campbell,
    “ Pay to James K. T. Walker, two hundred and thirty-eight dollars and forty-eight cents, out of any money you may collect in the case in which Hiram Cheeseborough is plaintiff, and James Pritch-ard is defendant — and this shall he your receipt for the same. P. Waters.”
    . “ January 17, 1833.”
    The declaration averred an acceptance of this writing by the drawers — a failure of the acceptors to pay, and the insolvency of the said Pritchard, from whom the s,aid fund was to be derived. And upon a demurrer to the declaration, judgment was given for the plaintiff.
    
      The defendant., upon writ of error, complained in this Court of the said judgment upon demurrer.
    
      Gollhwaite & Campbell, for plaintiff in error.
    Dargan, contra.
    
      
      Aikin’s Digest 32S.
    
   HITCHCOCK, C. J.

— This was an action of as-sumpsit, founded upon an instrument in writing, of which the following is a copy—

Messrs. Goldthwaile and Campbell :

“ Pay to J. SC. T. Walker, two hundred and thirty-eight dollars and forty-eight cents, out of any monies you may collect in the case, in which Hiram Cheeseborough is plaintiff and James Pritchard is defendant, and this shall be your receipt for the same.

“ (Signed) P. WATERS.

“January 17, 1833.”

The declaration avers the acceptance of the order, iby Goldthwaite and Campbell, according to its terms; its transfer by delivery to the plaintiff; the ¡return of nulla bona, against Pritchard, and notice to the defendant: to which there was a general demurrer, which was overruled, and judgment final for the plaintiff, the défendant having failed to plead over.

The question is, whether this is such an instrument, as is the foundation of an action. It is evident •'that it is not a bill of exchange, which is an order for the payment of money absolutely. By the terms of this instrument, the payment is to depend upon a contingency, which may never happen. The sufficiency of the fund in this case, having failed, the order has become invalid

In a case,the Court held, that the bill being drawn on a particular fund, it would not make the drawer personally liable, and therefore, it is not a bill of exchange within the custom of merchants ; for it is essential'to such a bill, that it depends upon the personal responsibility of the parties whose names are on it.

Neither is it such an -instrument as comes within the statute, relating to the assignment of bonds, bills, &e., which authorised suits, as in cases of inland bills of exchange.

It is, at most, but an appointment, or authority, to the person, to whom it is addressed, to pay so much money out of a particular fund, which, if they refuse to do, no recourse can be had on the instrument itself, against the drawer; but recourse must be had to the original debt, if any such existed, which induced the making of the appointment.

Let the judgment be reversed. 
      
       Chitty on Bills, 42.
     
      
      iBibb503
     
      
      tAik-D 328
     
      
      tiBibb490
     