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Treasurer; the Treasurer could only pay, whether in money or Treasury Warrants, to the person holding the Auditor's warrant, and when the warrant was presented he was bound to pay as Treasurer, and neither the warrant nor the money was held by him in his private capacity. It is a familiar principle that an officer of the State, or any private or public corporation is not bound by contracts made by him in his official character, even where he exceeds his authority, if his official character is known. Bowen v. Morris, 2 Taunt. 374. 1 Durn. & East 172. Brown v. Austin, 1 Mass. 208. Bainbridge v. Downie, 6 Mass. 253. Hodgson v. Dexter, 1 Cranch 105. Gidley v. Ld. Palmerston, 3 B. & B. 275. Freeman v. Otis, 9 Mass. 260, note a. Mann v. Chandler, ib. 335. Davees v. Jackson, ib. 490. 2 Conn. 680. lb. 435. 9 Sm. & Mar. 29. Syme v. Butler, exr., 1 Call 105. Tutt v. Lewis, exr., 3 Call 233. 12 J. R. 444. Perry v. Hyde, 10 Conn. 329. 10 Sm. & M. 398.

Mr. Chief Justice JOHNSON delivered the opinion of the Court. The record sent up in this case raises two distinct questions for our consideration. The first involves the legal sufficiency of those counts which are based upon the acceptance endorsed upon the order considered in the light of bills of exchange; and the second relates to those which are framed upon a supposed special contract.

The declaration contains ten counts, and exhibits two separate orders upon the defendant in favor of the plaintiff and drawn by a certain George B. Hayden. The orders do not differ in any essential particular except as to date and amount. They are both addressed to the defendant in the character of Treasurer of the State of Arkansas, and request him to pay at a future time the respective sums therein specified, to the plaintiff in State Scrip or Treasury Warrants, out of any moneys in his hands due him (Hayden,) for printing the Acts and Journals of the State, and are each signed by Hayden, as printer to the State. This court, in the case of Gwinn v. Roberts, (3 Ark. Ṛəp. 72,) said, "The statute declares that the term 'Bill of Exchange,' as

Wilamouicz vs. Adams.

[ JANUARY used in this act, shall be so construed as to include all drafts or orders drawn by one person on another for the payment of a sum of money specified therein. From the least observation, it will be perceived that the writing in question is neither a bill of exchange, draft, or order for the payment of a sum of money specified therein, because the drawee is not requested thereby to pay any sum of money whatever to the payee or any other person. The defendant simply requests Mr. Sangrain to let Mr. Chambers have merchandize in his store to the value of $32 38, and to charge him, Roberts, with the amount, which was evidently the understanding of the parties, and such is the operation and legal construction of the writing, which cannot be regarded either as a bond, bill, promissory note, draft or order, within the operation of the law merchant, nor any statutory provision whatever in force in this State."

This court, in the case of Hawkins v. Watkins, (5 Ark. Rep. 483-4,) also said that "Bills of exchange derived their negotiable quality from the usages and well established principles of the mercantile law. The negotiability of bills of exchange were confinend to such instruments in that form as were drawn for the direct payment of money; and such is the definition of the term under our statute, p. 151, sec. 13, Rev. Stat. By the common law, therefore, this is not a bill of exchange. Ch. on Bills 152. Rex v. Wilson, Bailey 11. Jones v. Fales, 4 Mass. 245. Liber v. Goodrich, 5 Cowen 186. McCormick v. Trotter, 10 Serg. & Rawle 94. Lunge v. Kohne, 1 M. C. 115, and 3 Ark. Rep. 73, Gwinn v. Roberts. And although bank notes are, for many purposes, equivalent to money, yet a bill or note for the payment of them is not deemed a bill of exchange at common law or a promissory note within the 3 and 4 Ann., chap. 9, and consequently not assignable. Many peculiar and legal qualities belonged to such instruments which distinguished them from choses in action. They were assignable by endorsement so far as to transfer the legal title and property in them and enable the endorsee to sue upon them in his own name. From their commercial character, they imported a consideration, 2 Bl. Com., and

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they raised against the parties to them a legal liability and were sued on as the foundation of an action. These qualities do not belong to the instrument here sued on unless it is aided by the statute upon assignments before referred to. A note for property would be assignable because the payee has a right of action on the privity of contract; but could the payee of this bill have sued Hawkins on his acceptance in this form of action? We think not. The liability of an acceptor is one raised by law applicable to mercantile instruments, and he was never liable as such except upon those instruments. No right of action lay in favor of any party against an acceptor upon the bill itself in any other case; and inasmuch as the statue did not intend to give a right to the original payee, where none in this form subsisted before, it is clear that by the endorsement the assignee acquired no new or better right. We are therefore clear that the instrument in question was never assignable as a bill of exchange at common law, nor embraced within the provisions of our statute." The instrument sued upon in that case was in these words, "You will please pay to the order of Col. L. C. Howell four hundred dollars in Arkansas money of the Fayetteville Branch, it being the balance of the five hundred dollar bill I sent you to exchange, your particular attention to this will greatly oblige." This draft was drawn by L. W. Wallace upon Hawkins, and by him accepted generally. Howell assigned the draft to Watkins, who declared upon it by a simple count in the ordinary form on bills of exchange. The judgment of the circuit court was reversed in that case and sent back, when the plaintiff (Watkins) filed an amended declaration, and in which he counted upon the original consideration and made an exhibit of the order as evidence to be used in the cause, whereupon he obtained a judgment, which was afterwards affirmed by this court. (See 1 Eng. Rep. 291, Hawkins v. Watkins.)

The case of Coyle's executrix v. Satterwhite's adm'rs, p. 124, 5, and reported in 4 Monroe, is directly in point. The declaration was in assumpsit, and set out a demand created by the sale and assignment of a note by the plaintiff's intestate to the testator

Wilamouicz vs. Adams.

(JANUARY of the defendant, for the price of which said testator owed a balance of $400, due in hemp yarn at eight cents per pound, payable on demand. It then set forth that the plaintiff (or rather his predecessor in administration, the then plaintiff being an administrator de bonis non) demanded the yarn, and that the testator of defendants drew an order for it on Thomas H. Pindell, of the following tenor: "Thomas H. Pindell, sir: Please to pay to the executors of William Satterwhite, dec'd, four hundred dollars in yarn, at eight cents per pound, and this shall be deemed your sufficient receipt for the same, agreeably to the contract between you and myself. Lexington, Sept. 10, 1814. C. Coyle." That the representative of Satterwhite presented this order and Pindell would not accept or pay it, of which Coyle had notice; and that Pindell had no funds of the drawer, and that Coyle still refused to pay the yarn. The court in delivering their opinion, said "Upon the trial the principal questions which seem to have arisen, proceeded from the parties' treating this order as a bill of exchange. It was insisted that due diligence was not used. in presenting it, in causing it to be presented and giving notice to the drawer, and that the evidence conduced to prove a reasonable expectation in Coyle that the bill would be honored; and therefore he was warranted in drawing it, and entitled to due diligence and notice. These same questions have been repeated in this court. On one palpable ground, we dismiss the whole of that part of the controversy. This writing is not a bill of exchange. It does not come within the provisions of the law merchant, and none of its doctrines can be applied to it. It is too well settled to need the citation of authority, that it is essential to a bill of exchange that it should be drawn for money, and all drafts or orders drawn for other commodities operate only as an authority to receive the contents, and the holder of them is not bound to apply either the speed or the formalities required in conducting a bill of exchange, and when they sue must resort to the original cause of action; and such was the case of this order. In this view, this controversy is brought down to one of great plainness and no difficulty. The declaration is based on

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the original contract and consideration and demand arising by virtue thereof. So far as it sets out this writing, it can only be considered as showing a good and valid demand of the yarn, and not as taking the order for the base of the action. The evidence concurred to show the original contract and the use made of the draft, established a clear but unsuccessful demand of the yarn." The judgment in that case was therefore affirmed.

The same doctrine as to what is requisite to constitute a bill of exchange, is also laid down by the same court in the case of Breckenridge v. Ralls, p. 534, and Jones v. Overstreet, p. 549, of the same volume. In Chitty on Bills, p. 596, he says, "It is here proper to observe that whenever the bill or note is not declared upon, it is not adduced in evidence as an instrument carrying with it the privileges it would otherwise be entitled to in respect of its bearing internal evidence of a consideration, but it is merely used as a piece of paper or writing to found an inference only in support of the money counts, which inference may be rebutted and destroyed by contradictory evidence on the part of the defendant, in which case the jury must draw from the whole of the evidence the conclusion of fact, whether or not so much money was lent, paid, or had and received, or that an account was stated." It is perfectly clear, from the authorities referred to, as well as numerous others which might be cited, that the instrument declared upon in this case does not possess the requisites of a bill of exchange, as it was not drawn for money, and that consequently the action based upon it cannot be maintained. The plaintiff in framing his declaration, has not thought proper to count upon the original contract or cause of action as between the drawer and drawee of the supposed draft, but on the contrary has elected to declare as upon a special contract, which, as he alleges, was entered into between himself and the defendant. The substance of this special contract is that in consideration that he would purchase the scrip or treasury warrants from Hayden, he (the defendant) promised that he would deliver them to him at a particular time therein specified. The question here presented is whether, admitting all this to be true in point of fact, it is such

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