
    Charles Ellis et al. versus Elisha Wheeler.
    V band fide bolder for a valuable consideration of a check payable to bearer, addressed to no particular person, may recover in an action against the drawer for money had and received.
    Assumpsit upon a memorandum in writing as follows : — “ Memdm. State Bank. No. 100 Dolls. cts. May 29, 1819. Pay to Capt. Cazneau or bearer one hundred dollars. Elisha Wheeler. To the cashier.” The word State was cancelled by a line drawn through it. The declaration contained the usual money counts ; also counts upon the memorandum as upon a promissory note, and as upon a bill of exchange. It was proved at the trial, that the memorandum came to the hands of the plaintiffs for a valuable consideration, about five years after it was made. A verdict was taken for the plaintiffs, subject to the opinion of the Court.
    
      B. Parsons now contended,
    that the action could not be sustained upon either of the counts, and he cited Saxton v. Johnson, 10 Johns. R. 418 ; Hodges v. Steward, 1 Salk. 125 ; Harris v. Huntbach, 1 Burr. 373 ; Ball v. Allen, 15 Mass. R. 433; Brown v. Gilman, 13 Mass. R. 158 ; Waynam v. Bend, 1 Campb. 175 ; Johnson v. Collings, 1 East, 98 ; Barlow v. Bishop, ibid. 434 ; Whitwell v. Bennett, 3 Bos. & Pul. 559 ; Houle v. Baxter, 3 East, 177 ; Chitty on Bills (6th ed.), 364 et seq.
    
    
      Gay, contra,
    
    cited Bayley on Bills, 6 ; Shuttleworth v. Stephens, 1 Campb. 407; Tatlock v. Harris, 3 T. R. 174; Grant v. Vaughan, 3 Burr. 1516 ; Ball v. Allen, 15 Mass. R. 433.
    
    
      
      
        Cushing v. Gore, 15 Mass. R. 69; Franklin Bank v. Freeman, decided at March term 1835, in Suffolk.
      An instrument for the payment of money, not payable to any particular person or to bearer, is not negotiable; and it was accordingly held that a memorandum, made by a payee of a note for $2500, on the back thereof, in these words, “ Mr. Olcott, pay on within $750,” did not authorize a recovery on the money counts, by the holder against the payee. Douglass v. Wilkeson, 6 Wendell, 637.
    
   The Court,

without expressing an opinion in regard to the special counts, held, upon the authority of Grant v. Vaughan ln particular, that the action was sustainable upon the count for money had and received, and they referred to Bullard v Bell, 1 Mason, 243, and the cases there cited, in corrobo ration of their decision. See also Pierce v. Crafts, 12 Johns R. 90.

Judgment according to the verdict.  