By the Court.

delivering opinion.

£1.] The plaintiff has declared on this instrument as a draft or bill of exchange, and not as a contract. He alleges in his writ no consideration, but treats it as importing one — as a commercial paper. Can he deny it ? If so, and his objection to it be good, he must go out of Court; for his writ is fatally defective for the reason stated.

*426But we think plaintiff’s Counsel took the right view'of the' nature of this paper, when he sued on it.

Eindlay draws' on the' Messrs. Hines for $200, on account' of claims in their hands. It is not necessarily to be inferred that the payment was restricted to this fund and no other ? and that was' contingent on their collection. But these are technical difficulties. The main question being, was the transaction between Scattergood, Eindlay & Hines, as the agent of Scott, Carhart & Go. a payment ? The Jury, under a proper charge from the Court as to the law, have found, that it was, and we are satisfied with the verdict.