Ball v. Allen ( 1819 )

Parker, C. J.

The paper writing declared on is not a note payable to bearer; for it is in the form of an order, and, not being for value received, does not import, on the face of it, any obligation on the part of the defendant to pay ; nor can it be converted into a promise, on the part of the plaintiff, without some evidence tending to show that such was the intent of the defendant in subscribing it.

In the cases which have been most discussed, it was proved that the party claiming the money had come fairly by the paper, and had paid a valuable consideration for it. In this case, no such evidence exists; but the plaintiff rests his claim wholly upon the bare possession of the paper. This would be enough to entitle him to recover, if it were a note payable to bearer; unless suspicious circumstances should require further evidence on his part. But the mere possession of a paper drawn in form of an order, there being no drawee in existence, we think cannot entitle the possessor to an action in any form; for the paper may have been carelessly dealt with as imperfect, and may have come to the possessor by finding.

It is enough for the purposes of justice, that the holder of such a paper may entitle himself to recover, merely by showing that he paid for it, or that he came otherwise fairly by it; for it can rarely happen, that he will be unable to produce the person from whom he received it. If the circumstances are such as induce him to decline producing evidence of the manner in which the paper came to him, * no probable harm will be the result of his loss of the money, ^(a)

Plaintiff nonsuit.

(a) Vide Ellis & Al. vs. Wheeler, 3 Pick. 18. — Cushing vs. Gore & Al . ante, 69