2 Whart. 233 | Pa. | 1837
The opinion of the Court was delivered by
The first and more important point is disposed of in the opinion of the court in West v. Simmons; and I shall confine myself to the question, whether the affidavit disclosed an effective defence, or, to express it differently, whether the instrument filed as the cause of action, is a valid bill of exchange. If it be not, the defendant below is not liable.
It is certainly not an insuperable objection to a bill, in every case, that the government is a party to it. In Dugan v. The United States, (3 Wheat. 172,) it was held that the government might recover as the holder; and the principle seems to have been conceded in The United States v. Barker’s Administatrix, (4 Wash. C. C. Rep. 468.) Neither would an objection lie to the form of the bill in the present instance, were the drawee an individual; for the direction to charge the drawer’s account, is only an indication of the means of reimbursement. I lay that circumstance, and the conditional acceptance of the treasurer, out of the question, and consider the bill as if it were drawn and accepted absolutely. Now an indispensable element in the constitution of these instruments, is an absolute and entire freedom from contingency of payment depending on the happening of an event, or the solvency of a fund. But in contemplation of law, is not every bill on government drawn on a fund, whether it be so expressed or not 1 It is a matter of public notoriety, that government accepts for no more, and is bound for no more, whatever be the form of acceptance, than it has in its hands; and that it treats a bill drawn on it as no more than an assignment or order of transfer. In the present instance, the condi
Judgment reversed.