
    Thornton vs. Moody & al.
    
    A promissory nolo, when offered in evidence in an action brought thereon, by the payee against the makers, liad an indorsement upon it of the plaintiff's name, with the words “ without recourse to me— Held, that such indorsement, though remaining uncancellcd, constituted no objection to the plaintiff’s recovery.
    In such action the officer who served the writ being a witness, and stating that his orders in regard to the service were in writing, which he had not then in his possession, was not permitted to testify what those orders were.
    This was assumpsit on a promissory note of hand, given by Edmund Moody, Joshua Moody, and Waldo Hill, to the nominal plaintiff. Hill died after the commencement of the action, and Joshua Moody was defaulted: hut Edmund Moody defended, on the ground that the note had been paid by the two last named defendants, and that the suit was prosecuted for their benefit.
    
      The officer who served the writ, on being inquired of, as to whose orders he acted under in making such service, stated that he acted under the orders of Messrs. J. Sf E. Shepley, and of Moody &r Hill, two of the defendants — that the orders of the latter were in writing, and that they were not then in his possession— whereupon the presiding Judge, on objection made, ruled that no testimony could be received from the officer in regard to the contents of said writing.
    The note produced as the basis of the action had the following indorsement thereon, viz. “ Without recourse to me, James B. Thornton.” And' it appeared that the note had been left by said Thornton with the Cashier of a Bank, for collection, and that on the 29th of November, 1833, after the note was due, he received orders from Thornton to deliver the note to Messrs. J. &/• E. Shepley, but before doing it, to write over his name, which was then on the back of the note, the words “without recourse to me.” The Cashier made the indorsement and delivered the note as directed.
    The counsel for the defendant contended, that while such in-dorsement remained uncancelled, the action could not be maintained. But the Chief Justice ruled otherwise, and the case came up on exceptions to his opinion.
    
      Fairfield,, for the defendant,
    contended that the special indorsement and delivery of the note, under the circumstances proved, in connection with the fact that the officer serving the writ was acting under the orders of persons other than the nominal plaintiff, were sufficient to show an actual sale and transfer of the property in the note. Or at all events, that the plaintiff was bound to explain these circumstances —■ to repel the inference of law by proof.
    He also contended, that the proof of the circumstances accompanying the indorsement of the note, and service of the writ, the action could not be maintained while the indorsement remained uncancelled. In Theed v. Lovell, 2 Strange, 1103, the report of the case is thus: “ When the note was delivered in, the plaintiff’s name was upon it, and the Chief Justice permitted it to be ' stricken out in Court, it being only an indorsement in blank.”
    
      Here it seems the indorsement was an obstacle which it was necessary to remove before a recovery could be had.
    So also in Norris’ Peake, 340, citing a case from 2 Dallas, 144, it is said, “ In an action by the indorser against the acceptor of a bill of exchange which had been indorsed several times, the mere possession of the bill was not considered evidence that the indorser had paid the subsequent indorsee, which must be proved to entitle him to recover.” On the authority of this case then, if Thornton had the possession of this note, (which is denied, the mere bringing the action in his name being no proof of it,) still he is not entitled to recover, without showing payment to the subsequent indorsee, (for an indorsement necessarily supposes an indorsee) or at least that the indorsement had been cancelled by right or by wrong.
    He also cited Piniard v. Tackington, 10 Johns. 104; Ells-worth v. Brewer, 11 Pick. 320.
    
      J. Sf E. Shepley, for the plaintiff.
   Mellen C. J.

This case presents two questions: 1. Was the parol evidence, offered to prove the contents of the paper mentioned by the officer, properly excluded; and 2. Did the Judge decide correctly in declining to give the instructions requested.

As to the first point there seems to be no room for doubt. Starkie, vol. 1, page 102, says, “There is but one rule of policy, which operates as a general principle of evidence — ’this rule or principle consists in requiring the best evidence to be adduced which the case admits of; or rather, perhaps, more properly speaking, in rejecting secondary and inferior evidence, when it is attempted to be substituted for evidence of a higher and superior nature.” Again, page'390, he says, “ It is a universal rule that the contents of a writing cannot be proved by a copy; still less by mere oral evidence, if the writing itself be in existence and attainable.” In the present case, the officer said the writing was in existence and in his possession at home. It might have been in Court, had the defendant taken proper measures to obtain it. Even if the officer had proved that it was in the plaintiff’s possession, parol evidence of its contents could not have been admitted, unless notice to produce it on trial had been seasonably given. The first objection is overruled. As to the second point, there seems to be as little doubt as there is respecting the first. “ A note indorsed in Hank is like one payable to bearer, and passes by delivery, and the holder may constitute himself, or any other person, assignee of the bill.” 3 Kent’s Com. 59. “ In the case of blank indorsements, possession is evidence of title,” 60. “ An indorsement in blank, is made by the mere writing of the in-dorsor’s name on the back of the bill, without the mention of the name of any person in whose favor the indorsement is made. It has been adjudged that such an indorsement does not transfer the property and interest in the bill to the indorsee, without some further act, but it gives him, as well as any other person to whom it is afterwards transferred, the power of constituting himself as-signee of the beneficia] interest, by filling it up payable to himself, which he may do at the time of trial. Chitty on Bills, 117, Ed. of 1807. In the case of Clerk v. Pigot, 12 Mod. 192, it appears that Dunning drew a bill on Pigoi, payable to Clerk or order; Clerk indorsed his name thereon and sent it to Kean to present it for acceptance ; and for nonpayment, according to the acceptance, the action was brought. The defendant contended that the action could not be maintained in the name of Clerk, because by his indorsement, the property of the bill had been transferred to Kean. The Court did not sustain the objection. Kean not having filled up the indorsement, was considered as acting as the agent of Clerk; and the action was maintained. In Theed v. Lovell, 2 Strange, 1103, the note declared on, when offered, appeared to have the plaintiff’s name indorsed upon it; and it was erased by leave of Court — it being only an indorsement in blank. “ Upon a transfer, whether by indorsement or bare delivery, the bill must, of course, be delivered to the assignee.” Chitty on bills, 121. Let us now apply these principles to the facts of the case before us. In the first place, it does not appear that the name of Thornton was on the note when the action was commenced, or when, or for what purpose it was placed there. It was never filled up as an indorsement to any one, claiming any interest in the note. In the next place, it does not appear to have been delivered to any one as assignee or indorsee. In the next place, it does appear that the note was lying in the bank for sometime after the suit was commenced; and was withdrawn from thence by the order of the plaintiff, and delivered to his attorneys for the further prosecution of the action; and they produced it on trial. We have no scintilla of proof that any person has an interest in the note, derived from Thornton. If, when a note, indorsed in blank, is in possession of a third person, such possession is evidence of his title, why is not the possession of the note by the person whose name is so indorsed upon it, evidence of his continued title to it ? Unless such be the case, on what principle can a court of law be authorized to allow the name of the indorser to be erased, as was done in the above case of Theed v. Lovell 1 Yet no objection lies against such a proceeding. The authorities cited by the defendant’s counsel do not seem to have any special application, inasmuch as no contract has been created by the act of writing the name of the plaintiff on the back of the note, he still holding it in his possession and under his control. Two persons, at least, are nécessary to the formation of a contract. In the case before us we can discover only one. We are of opinion that the Judge was correct in declining to give the requested instruction, and accordingly there must be

Judgment on the verdict.  