The opinion of the Court was delivered by
Stroud, J.The defendant concludes his affidavit with a suggestion that the instrument on which his action is founded is not a bill of exchange, or negotiable, and this broad position has been taken in argument by his counsel. This objection is radical, and if sound, it would be the duty of the court to give it effect, whether noticed in the affidavit or not. Being an opinion and not a fact, it was not necessary that the defendant should swear to it, and he has very properly omitted to do so.
It is said this is not a bill of exchange or negotiable, because the drawee was an officer of the government, and as such has no authority to contract, and having been drawn upon him in his official character, his acceptance did not affect him personally. It is unnecessary to controvert these reasons. But the incapacity to contract of one party to a bill, does not in the slightest degree diminish the responsibility of other competent parties to each other. Chitty on Bills 32. It is true, as a general proposition, if a married woman without the assent of her husband indorse a bill, as her acts are void in law, a holder of the bill subsequent to her could not sue a prior party, because the title of the former must be derived through her ; but her immediate indorsee would be responsible to a more remote party to the bill. Haly v. Lane, 2 Atk. 181.
It was urged, in the second place, that the conditional acceptance of the bill destroyed its negotiable character. This objection was not well considered.
*298But the strength of the objection as (o the character of the instrument was concentrated on this proposition ; that the bill conclu tes “ and charge the same to my account for transporting the United States mailand that the acceptance is special — “ accepted provided the drawer should perform his contract.” Connecting the direction of the drawer with the restricted acceptance, it is argued that the bill was drawn on a particular fund.
It is a mistake to regard the acceptance of a bill as entering into the character of the instrument itself; this is to he determined from its original formation, as it comes from the hands of the drawer. If on its face at that time it falls within the description of a bill of exchange, no form of acceptance can change its legal effect. Thus it i# an essential requisite of a bill of exchange, that it be payable absolutely ; yet a conditional acceptance is common, and strictly mercantile. It, must also be payable in money, yet it may be accepted payable in bills. The instrument in question being then, on its face, a bill of exchange, its restricted acceptance is wholly unimportant.
The effect of the direction of the drawer to the drawee, to charge the amount when paid to the drawer’s account for transporting the United Stales mail, stands alone then, as an objection to the negotiable character of the instrument. This objection is equally unavailing. Bills may be drawn, and so are the most ancient forms, with directions “ put it to my account,” or “ to your account,” or “ to the account of J1 B,” or “as per advice,” &c. See Chitty on Bills 105. Macleod v. Snee, 2 Strange 742, 2 Lord Raym. 1481, was a much stronger case for doubt than the present. There a bill dated May 25th, drawn at one month after date, to pay to the plaintiff’s order 9 pounds 10 shillings, “as my quarterly pay, to be due from the 24th of June to the 27th of September next,, by advance,” was held good. Chilly, in introducing this case, gives the true rule on this subject. “ The statement of a particular fund in a bill of exchange, will not vitiate it, if it be inserted merely as direction to the drawer how to reimburse himself.” And see Haussouillier v. Hartrink, 7 D. & E. 733 ; Sanders v. Bacon, 8 Johns. 485.
As to another point made by tire defendant’s counsel, that the affidavit which has been filed satisfies the requisitions of the act of assembly, it is enough to remark, that inasmuch as an indorsement, to say nothing of the drawing of the instrument, is prima fade evidence of being made for full value, (Riddle v. Mandeville, 5 Cranch *299322,) and as this presumption is not repelled in the affidavit, Hor-back himself, were he the plaintiff, could recover. And in regard to the actual plaintiff, giving to the very surmises of the defendant the validity of facts, no defence has been sworn to.
The plaintiff is therefore entitled to judgment agreeably to the act of assembly.
Rule absolute.