Comparet v. Burr

5 Blackf. 419 | Ind. | 1840

Dewey, J.

Comparet sue'd Burr in trover. The declaration contains one count for the trover and conversion of three “ drafts or bills of exchange,” one of which is stated as follows: “ Wabash and Erie canal, Aug. 18, 1834. $399. 02. Commissioners of the Wabash .and Erie canal. — At sight, pay to Daniel M.cGillicuddy & Co., or order, three hundred and ninety nine dollars and two cents, for work done on section No. 7, feeder line, as per estimate of J. L. Williams, Engineer, bearing even date and number -herewith. D. Burr, Commissioner of Contracts. To J. B. Johnson, Fund Commissioner of the Boa}'d.” The second instrument is described to be like the first, except that it is stated to be'drawn by Burr without naming the capacity in which he drew it, omitting the consideration for which it was given, and also the direction to J. B. Johnson. The third bill of exchange corresponds substantially with the first. All the instruments are averred to be transferred from McGillicuddy & Co. to the plaintiff by indorsement. General demurrer to the whole declaration sustained, and final judgment for the defendant.

■The counsel for the defendant attempts to sustain the decision of the Circuit Court on three grounds.

1. That the instruments described in the declaration are not biüs»of exchange, because they are drawn, as he alleges, on a particular fund.' Did the instruments purport on their face to be payable out of a particular fund, i’t is true, they would not be negotiable by the law-merchant, nor could'they be declared on as bills of exchange, but it would by no means 'follow that they would be of no value. ■ They would still be evidences of debt, and the subjects of trover and conversion. But the counsel is mistaken in point of fact. They are not limited to any particular fund; they leave the drawees at liberty to pay -out of any fuhd they please.

2. That the instruments appear to be drawn by government agents, and that therefore no action will lie for their conversion. And Jones v. Le Tombe, 3 Dall. 384, is cited in support of this position. ' That case contains no such doctrine. It simply decides that a certain -contract was entered into by a public agent officially in behalf of his government, and that, therefore, he was not himself personally liable upon it. ’ One of the bills of exchange in the case before us is not described as being drawn by Burr in his official capacity, and if it were, it would make no difference. There is no reason why trover should not lie for an instrument which binds the good faith of government.

3. That the indorsee of these instruments cannot maintain the action, though the indorsers might, because they are not negotiable by the law-merchant, nor by our statute. But we conceive they are negotiable by both; and that the tion. is sufficient.

D. H. Colerick and W. H. Coombs, for the plaintiff. H. Cooper, for the defendant.- Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.