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Wilamouicz vs. Adams

[JANUARY

WILAMOUICZ VS. ADAMS.

An order drawn by the public printer upon the Treasurer of the State, for a specified sum, payable out of any scrip in the hands of the Treasurer, that might be due the drawer for printing the Acts and Journals, is not, by the law merchant, a bill of exchange or draft, and the acceptance thereof, by the Treasurer, cannot be made the foundation of an action.

Such order could amount to nothing more than an authority from the drawer to the payee to receive the scrip, when legally issued, and if not delivered to him, he would have to resort to an action for the consideration paid by him for the order. The Treasurer can only issue scrip to the person having the Auditor's warrant, and an agreement by him to deliver it to another, is illegal and void-Hence where the Treasurer agreed with W. that if he would purchase scrip to be issued to the public printer in future, he would deliver it to him, W., the agreement was illegal, and could not be made the foundation of an action.

Writ of Error to Pulaski Circuit Court.

This was an action of assumpsit, brought by Ignatius Wilamouicz against Samuel Adams, in Pulaski Circuit Court, founded on Adams' acceptances of the following instruments:

$375.

LITTLE ROCK, Feb. 12, 1849.

SIR: On the first day of July next, please pay to I. Wilamouicz, or order, the sum of three hundred and seventy-five dollars, in State Scrip or Treasury Warrants, out of any monies in your hands due me for printing the Acts and Journals of the State. Yours, &c.. G. B. HAYDEN,

To Hon. SAMUEL ADAMS,

Treasurer of the State of Arkansas.

Printer to the State.

Endorsed "I accept the within order, this 12th Feb., 1849.

$1,200.

SAMUEL ADAMS, Treasurer."

LITTLE ROCK, Feb. 13, 1849.

SIR: On the first day of August next, please pay to I. Wilamouicz, or order, the sum of twelve hundred dollars in State

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Scrip or Treasury Warrants, out of any money in your hands due me for printing the Acts and Journals of the State of Arkansas, for value received of him.

Yours, &c.,

To Hon. SAMUEL ADAMS,

G. B. HAYDEN,

Printer to the State.

Treasurer of the State of Arkansas.

Endorsed "I accept the within order, this 13th Feb., 1849, payable after paying your preceding order.

SAMUEL ADAMS, Treasurer."

There are ten counts in the declaration. The 1st, 2d, and 3d counts are upon the acceptance of the first, and the 5th, 6th, 7th, 8th, and 9th upon the acceptance of the second instrument above copied. They are declared on as orders, or drafts, and it is alleged in all these counts that at the time the orders were to have been paid, Adams had in his hands and under his control, a sufficient amount of scrip belonging to Hayden, and issued to him for printing the Acts and Journals, to have paid the orders, but neglected and refused, &c. The 4th and 10th are special counts, and similar in substance. The 10th is as follows:

That on the 13th Feb., 1849, the defendant, in consideration that plaintiff would purchase of Hayden the sum of twelve hundred dollars in Warrants issued by the Treasurer of the State

payment of debts due by said State, according to the statutes for such purpose made and provided, commonly called State Scrip or State Treasury Warrants, to be delivered and paid by the said Hayden on the 1st day of August, 1849, then and there faithfully promised the plaintiff that he, the defendant, would pay and deliver to the plaintiff, or his order, on the said first day of August, 1849, the said sum of twelve hundred dollars in such State Scrip or Treasury Warrants out of any money in his, the defendant's hands, due said Hayden for printing the Acts and Journals of the General Assembly of the State, to be paid by the defendant after paying the preceding orders of said Hayden: and plaintiff in fact says that afterwards, to wit: on the day and year last aforesaid, upon faith and in consideration of the said promise of the defendant, the plaintiff did purchase of the said

Wilamouicz vs. Adams.

[JANUARY Hayden, and then paid and advanced to him a valuable consideration therefor, the said sum of twelve hundred dollars in such Scrip or Treasury Warrants, to be paid and delivered to plaintiff on the 1st day of August, 1849: and plaintiff avers that after said promise was so make by defendant, he, the defendant, had in his hands and under his control an amount of such Scrip or Treasury Warrants belonging to, and issued in favor of, said Hayden on account of money due him for printing the said Acts and Journals, not only sufficient to have paid all preceding or previous orders drawn by said Hayden upon said fund, and accepted by said defendant, but also sufficient to have paid, and out of and with which defendant might and ought to have paid the said last mentioned sum of twelve hundred dollars in State Scrip or Treasury Warrants; by means whereof the said defendant then and there became liable to pay to said plaintiff the said sum of twelve hundred dollars in such Scrip or Treasury Warrants, according to the tenor and effect of his said promise and undertaking; and being so liable, defendant afterwards in consideration thereof, undertook and promised, &c. The value of the

scrip is then alleged, as it is in all the counts.

General breach of non-payment in scrip or otherwise, &c. The defendant demurred to the declaration, and assigned for causes of demurrer to the 1st, 2d, 3d, 5th, 6th, 7th, 8th, and 9th counts, the following:

1st. That said orders, checks or drafts in said counts described are not, by law, negotiable instruments, and therefore said supposed acceptances thereof are not by law binding or obligatory upon defendant.

2d. Said orders, checks, or drafts are drawn, not for the payment of money, but for State Scrip or Treasury Warrants, and therefore said supposed acceptances thereof by defendant, are not, in law, binding upon him, and constitute no liability against him upon which an action will lie.

3d. Said orders, checks or drafts are drawn upon a particular fund, and therefore said pretended acceptances thereof by defendant constitute no actionable liability against him in law.

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4th. They are drawn upon a contingent fund, or liability of the State to said Hayden, and therefore said pretended acceptances by defendant are not obligatory.

5th. They were drawn by Hayden as a prospective official creditor of the State upon said defendant in his official capacity as Treasurer of the State, and said pretended acceptances thereof, if made at all by defendant, were made in his official character, and were contrary to law, public policy, and are therefore null and void.

6th. Said counts show no legal liability on the part of defendant upon said pretended acceptances-show no cause of action against him.

7th. Said orders, checks or drafts amounted to nothing more than mere directions given by Hayden to defendant as public Treasurer to pay scrip to plaintiff, which might thereafter become due to Hayden from the State, and were revocable at the pleasure of Hayden.

8th. The defendant as public Treasurer could only pay a debt due by the State upon the Auditor's warrant, and only to the person presenting such warrant-any acceptance or agreement made by him to pay another, would not be binding, nor could he, by law, comply therewith. There is no allegation in the declaration that plaintiff obtained the warrants of the Auditor.

9th. Defendant could not bind himself to deliver scrip to become due to a public creditor to any other person than such creditor.

10th. No consideration is disclosed or alleged in said counts, which would make said pretended acceptances binding in law upon said defendant.

11th. Said counts are bad in substance and in form.

For causes of demurrer to the 4th and 10th counts in the declaration, defendant assigned:

1st. That said counts do not allege that said Hayden directed or authorized defendant to deliver said scrip or treasury warrants to plaintiff.

2d. No such consideration is disclosed in said counts as would

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in law, render the said pretended promises and undertakings of defendant to deliver said scrip to plaintiff binding.

3d. Defendant had no legal power or right to bind himself to deliver to plaintiff, scrip, which was to become due from the State to Hayden, and a promise to do so, if any such was made by him, is not binding in law.

4th. Defendant could not bind himself to pay to plaintiff a debt due by the State to Hayden.

5th. Said pretended promises were illegal (which plaintiff was bound by law to know,) and are not obligatory.

6th. Said counts disclose no cause of action against defendant; and are bad in substance and form.

The court sustained the demurrer, final judgment for defendant, and writ of error by plaintiff.

WATKINS & CURRAN, for the plaintiff.

ENGLISH, and PIKE & CUMMINS, contra. All the counts in the declaration which charge the defendant by virtue of the orders and acceptances, treating them as bills of exchange, are clearly bad. A bill of exchange must be payable in money, and if payable in property or any paper medium, it is void as a bill, (Story on Bills, sec. 43. Hawkins v. Watkins, 5 Ark. 482. Ch. on Bills, 132, 3. 1 Mc Cord 115. 4 Mass. 245. 10 Serg. & Rawle 94,) and must be payable absolutely and not out of a particular fund or upon conditions. Story on Bills, sec. 46. Hamilton v. Myrick et al., 3 Ark. 541. Henry v. Hazen, 5 Ark. 401. Ch.

on Bills, 132, 133, 134, &c. Dawkins & wife v. De Lorane, 3 Wils. 207. Gwinn v. Roberts, 3 Ark. 72. Jenny et al. v. Herle, 2 Ld. Raym. 1361. Haydock v. Lynch, ib. 1563. Carlos v. Fancourt, 5 ib. 482. Watkins v. Hawkins, 5 Ark. 481.

The defendant in this case was Treasurer of the State when the orders were drawn and accepted. Hayden was State Printer, and upon performance of the work was entitled to draw compensation for the printing, from the State Treasury, upon a voucher filed in the Auditor's office, and an Auditor's Warrant upon the

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