The defendant in error brought suit against the plaintiff in error, declaring, as on a bill of exchange made by one Joseph Riddle, by which he requested the plaintiff in error to pay the said Flack five hundred dollars on the first of January, 1837, “ out of the notes left in your hands by me (Riddle) for collection. Yan Yacter accepted generally. The declaration contains no averment that the notes, out of the proceeds of which the • bill was to be paid, had been collected, and for this and other causes, the defendant below demurred, which was overruled, and final judgment given for the plaintiff.

The instrument declared on, is nota bill of exchange, because it is payable out of a particular fund. In England, the law is well settled against its validity as a bill of exchange, and there is no reason to give such a construction to our statute as to embrace it. The decisions are numerous on similar instruments, and in no instance, that we are aware.of, have they been held to be bills of exchange. Ohitty on Bills, (Barbour’s ed.) 157-8, and notes. This case is distinguishable from that class of cases in which the particular fund is mentioned merely as a direction to the drawer how he may reimburse himself. This bill is predicated exclusively on a particular fund, not stated to be in hand, but to arise out of notes left for collection. The understanding of the parties must have been, that the payment of the order depended on the collection of these notes. It is like the case referred to in the note to Ohitty, lb. 158 (n. 1,) of an order drawn by a client on his attorney, to pay out of moneys collected. The acceptance was general, and must be understood only as an engagement to pay out of that particular fund, if it should come to hand by the time appointed for payment. On this acceptance, an action may be maintained, but it can only he done by averring and proving the collection of the fund. The decla*399ration contains no such averment, and was, therefore, defective, as it shows on its face that the order was payable out of the proceeds of notes left for collection. The court then erred in overruling the demurrer and in giving judgment for the plaintiff. The'judgment must be reversed and the cause remanded, in order that the plaintiff may obtain leave to amend.