
    *Montgomerie against Ivers.
    Where the <le-fendanf travo in 1 ho piaintnF a written memorandum, at tin* bottom oftthtrh he promise! to pay to the plam-t¡t]', or or-h r. the MÜ11 Specified, boina- for t nine m a protested biii.&c.,addnn?, •* The above sum is to be paid out of my one halt of proceeds jinn. ¡■'ions dre-Me. of ad-ío Hancock * M'Cnr-Evil, {&. Croix,) after deductin'? your HIE'1' that whether the writing' was a firomissnrij note or not, it was good c\ ¡doñee lo support a count on an in-shnul cotnp/jfp\-smf ; that the clause providing’ for the payment out. of the proceeds of provisions, ¿fee, \uis a qualified assignment of thee proceeds, and an authority to //. ⅝ M, to apply them to the discharge of the plaintiff's debt • but that the plaintiff was not entitled to recover against the defendant personally, without showing- either that there was no such fund as the one designated, or that it was insufficient to pay the faction out of it. debí, or thal he had applied to 4e holders of the fund, and had not obtained satis
    THIS was an action of assumpsit, tried at the IS cw-York sittings, in April, 1819, before Mr, Justice Yates.
    
    At the trial, the plaintiff produced, and read in evidence, a memorandum in writing, signed by the defendant, as fallows :
    “ Bill for.. Damages 10 per cent. Half per cent, protest, &,c. . . . Interest, 1 per cent, per month £'120 10 8 1 0 2 10 0 50 Í) 3 ¿ó!') ! i 11
    I promise to pay unto Robert Montgomerie, or order, 515'. 1 J.s. lid. sterling, being protested bill, interest from 31st of January last till paid, say 515/. 1 Is. lid. sterling, being for value in my bill protested on Messrs. Robert Burke & Co. of Corle, liable to a special court, St. C'-oit. 16th of May. 1810. (The above is to be paid out of my one half proceeds of provisions and lumber, addressed to Messrs. Hancock & M' Connie!;, Bass .End, after deducting your account.)
    O\VKX FdVF.RA-
    Upon the back of which memorandum, was an endorsement signed by the plaintiff, in the following words:
    
      St. Croir, 1st of July, 181 1, 200/. sterling being the whole amount of the balance; in my hands, is-hereby acknowledged as part payment of the within obligation.
    ROÍÍKHT MOXTCOMERIE."
    *The declaration contained four counts; the first upon the memorandum as a promissory note ; the second upon the memorandum as a special agreement; the third being the usual money counts, and the fourth an insimul computasscnt. The second count contained an averment in these words : “ And the said Robert Mmtgomerie. avers, that the said Owen leers's one half of the proceeds of the said provisions and lumber, specified in the said memorandum or agreement, after deducting the said account therein also referred to, afterwards, amounted to the sum of 200/. sterling, to wit, on the first day of July, in the year of our Lord one thousand eight hundred and eleven, at the city of New- York, and in the county of Ne,co-York, aforesaid, whereof the said Owen Ivers, afterwards, to wit, on the same day and year last aforesaid, there had notice.” 
      George Hoope, a witness for the plaintiff, testified, that ho had been a merchant established in St. Croix, and that the regular legal rate of interest there established is six per cent, a year, except upon protested bills of exchange, upon which it is twelve per cent, a year.
    The defendant, thereupon, moved fora nonsuit; 1. Because, there was a variance between the name signed to the memorandum and that mentioned in the declaration, the one being “ Eivers,” and the other “ Ivers.”
    
    2. Because, the said memorandum being by the tenor thereof made liable to a special court in St. Croix, (where both parties resided, as appeared bv the opening of the plaintiff’s counsel,) was intended to be confined to the jurisdiction of said special court, and was not, therefore, cognizable in this court.
    •3. Because, by the tenor of the memorandum, the money therein mentioned, was payable out of a particular fund in the hands of Messrs. Hancock &f M’ Cormick, of Bass End, St. Croix; and that the memorandum could not, therefore, be declared on as a negotiable note, within the statute, but was a special agreement; and that it was incumbent on the plaintiff to prove that a demand had been made where the funds mentioned in the memorandum were deposited, or that the funds were insufficient for the payment of said sum. And *the plaintiff having averred, in his declaration, that the said funds were insufficient, was bound to prove that fact.
    4, Because the memorandum not being a negotiable note within the statute, could not, without proof of consideration, be given in evidence under the money counts. The judge stated it as his opinion, that the memorandum was payable out of a particular fund, and that it was, therefore, incumbent on the plaintiff to prove a demand, or that the said funds were insufficient.
    By consent, a verdict was taken for the plaintiff, subject to the opinion of the court, on a case to be made, for 2,349 dollars and 60 cents damages, and six cents costs, being for the balance due upon the memorandum after deducting the amount of the endorsement, calculating the interest at the rate of six per cent, per annum, which verdict the plaintiff elected to take upon the two last counts of the declaration.
    The case was submitted to the court, on the points stated by the counsel, without argument.
   Per Curiam.

Admitting the writing given in evidence in this case not to be a promissory note, (and we think it is not,) yet it is good evidence in support of the count on an insimul computassent: even an award, void as such, is, in some instances, admissible as evidence of an account stated. The amount due to the plaintiff is ascertained and liquidated between the parties, and the defendant promised to pay it. This amount, to be sure, is to be paid out of a particular fund, to which the plaintiff was bound, in the first instance, to look ; but suppose no such fund existed, the plaintiff is not to lose his debt. Whether or not, a fund is mentioned, as limiting the claim of the plaintiff, or as only directing the application of the fund by the person in whose hands it is, is a question of construction, with respect to which every case rests upon its own foundation. The clause in the written agreement in this case, providing for the payment of the balance out of the proceeds of the provisions and lumber, operates as a qualified assignment of such proceeds, and is an authority to the holders, Hancock & 31’ Cormick, to apply them to the discharge of the plaintiff’s debt; but we are of opinion, that the plaintiff, before he can have recourse to *'the defendant personally, must show, either that there was no such fund, or that it was insufficient to pay his debt, or that he had applied to the holders of it, and had not obtained satisfaction out of it. He ought, in fact, to show that the fund to which he was, by the terms of the memorandum, primarily to look, had failed, and of this the endorsement on the memorandum made by the plaintiff, is not evidence. Under the circumstances of this case, however, we direct a judgment of nonsuit to be entered against the plaintiff, instead of a judgment for the defendant generally.

Judgment of nonsuit.  