The opinion of the Court was drawn up by
Barrows, J.Is the instrument declared on negotiable, so that an action may be maintained upon it in the name of an indorsee against either of the prior parties ? What constitutes a negotiable draft ? It must be a written order from one party to another for the payment of a sum certain of money only, and that absolutely and without contingency to a third party or his order or bearer.
It has often been held that a bill or note payable out of a particular limited fund is not negotiable, but there is a difference between making the money payable out of a particular fund, and a mere reference to the fund in the draft to call the attention of the drawee to his means of reimbursement.
In this case, the order requires the drawees to pay to the order of Gr. F. & C. W. Tilden the sum of forty dollars, absolutely and without contingency. A means of reimbursement is indicated to the drawees in the words appended, " and charge the same against whatever amount may be due me for my share of fish,” &e., but the payment of the order is not made to depend upon his having any share of fish, nor is the call limited to the proceeds thereof.
In Reeside v. Knox, 2 Wheaton, 253, cited by defend*434ant’s counsel, the order was' drawn on the Postmaster General of the United States, and in his official capacity. The Court expressly say, " no objection would lie to the form of the bill in the present instance, were the drawee an individual. It is matter of public notoriety that government accepts for no more, and is bound for no more, whatever be the form of th.e acceptance, than it has in its hands, and that it treats a bill drawn on it ás no more than an assignment or order of transfer.” ' In that case, the language of the draft was, "pay to my order five thousand dollars, for value received, and charge the same to my account, for transporting the U. S. Mail.” No substantial difference in form between that order and the one under consideration is observed. Such an order, the Court in that case say, would be negotiable, but for the. fact of its being drawn on a government officer.
According to the agreement of the parties,
The case is to stand for trial.
Appleton, C. J., Cutting, Davis, Kent and Dickerson, JJ., concurred.