Page:Federal Reporter, 1st Series, Volume 7.djvu/527

 UNION TEtJST CO. OF N. T. V. C. & L. H. E. CO. 515 �oncertain both as to the payorandthe faet of payment. The �mere fact that it is made payable to the order of the payee is �immaterial, unleas the paper is negotiable in its nature. �Railroad Co. y. Howard, 7 Wall. 415; Newbold v. P. e S. R. �Go. 5 Bradw. 367, 375. �It is said by the court in Baird v. Underwood, 74 111. 176, — �" It entera into the definition of a promissory note that themoney must be payable. at all events, net depending upon any contingency either in regard to the event, or the fund out of which payment is to be made, or to the parties by or to whom payment is to be made." See, also, Dcnoke» V. Lorane, 3 Wil. 267. �These characteristics are conspicuously absent in the cer- tificate in question. Indeed, it lacks the most essential ele- ments of commercial paper, and we believe the courts of this country have, without exception, held eertificatea of this nature to be non-negotia;ble. Stanton \. A. ds C. R. Co. 3 Woods, 506; Tumer v. P. e 8. R. Go. 95 111. 134; Bank of Montreal v. G. dt C. R. Go. 48 lowa, 518 ; Newbold v. P. e S. R. Co. 5 Bradw. 367. It results, then, that although the petitioner appears to be a holder for a valuable consideration of the certificate in question, without notice of any facts except 8uch as appear in the order, he took it subject to all the equi- ties between the original parties. The paper was made pay- able to Bowes, or his order, and was delivered to him by the receiver for negotiation and sale; but it appears that Bowes was unfaithful to his trust, and never accounted to the receiver either for the certificate or for the money realized by its sale. It is insisted, however, that the receiver made Bowes his agent to sell the certificate; that Bowes indorsed it, and, therefore, presumptively received the money upon it ; and that such payment to him was in law a payment. to the receiver in his officiai capacity, and a credit to the fund; and that, as it does not appear to whom Bowes transferred it, the presumption is, from his indorse- ment, that he received full value for it. It is material in this connection to inquire whether the receiver had power to delegate his authority to Bowes to sell the certificate and re- ceive the money upon it. If he was vested by the order of June 25th, simply with a personal trust, he had no power to ap- ��� �