
    Jonas H. Brown versus Abigail H. Gilman and Another.
    A writing was made thus — “ Good foi--dollars on demand. A. B. ” In an action thereon it was held to import no promise to the holder, without evidence to show that it was actually given to him, or some subsisting connexion shown, from which that fact might be fairly inferred ; and the plaintiff was nonsuit.
    Assumpsit in several counts, all founded on a writing in the following words and figures, namely, “ Boston, 15th May, 1810. Good for one hundred and twenty-six dollars on demand. Gilman Hoyt.'’
    
    
      It was admitted, at the trial, which was bad before the Chief Justice, at the last November term in this county, that the said writing was made and signed by Hoyt, one of the defendants ; and that, at the time it bears date, he was in copartnership with Abigail H. Gil-man, the other defendant, they keeping an English goods retail shop in Cornhill, Boston. The plaintiff also kept a similar shop in the same neighbourhood.
    No evidence, other than the writing itself, was produced by the plaintiff; and, it having been proved by the defendant ‘Gilman, that the said Hoyt, before the time of signing said writing, was in habits of gaming for money, and that he had been seen gaming for money with the plaintiff, and, further, that he had given, for money lost at play, papers similar to that on which this action was brought, * signed with his own name only, although he had not been known to sign the name of the firm ; and it appearing, also, that the said Hoyt had been absent for several years past, being in low circumstances, and there being no evidence of any demand upon the defendant Gilman, although she had been ever since in business and able to pay; the plaintiff was called on for evi dence that the writing in question was given to him, and for some consideration ; which he failing to do, a nonsuit was directed, which was to be set aside, and a new trial granted, if the nonsuit was not properly ordered.
    
      Rand, for the plaintiff,
    contended, that this writing might be considered as a promissory note, payable to the plaintiff, within the statute, which prescribes no form of such a note, nor - is it necessary that it should have the words order or bearer in it. The want of the name of the payee may be supplied by showing the intention ; or the plaintiff, being in possession of it, has a right to insert his own name as promissee. 
    
    The note may be supported as one payable to bearer ; nor is it distinguishable from one payable to a fictitious person. The possession of it by the plaintiff is sufficient evidence of his property in it, without showing a delivery. If the defendants would disprove the plaintiff’s right, it is incumbent on them to show to whom it was made. 
    
    If this is considered a note within the statute, it is not incumbent on the plaintiff to prove a consideration, which the law will presume. 
    
    
      Or, lastly, if it is not a note within the statute, it is good evidence of money advanced to the defendants, and of a consequent debt. 
    
    
      Gallison, for the defendants.
    The statute applies only to notes payable to order or bearer. This cannot, then, be within the statute. To support it as such would be going much beyond any of the cases cited for the plaintiff, and, indeed, beyond any in the books.
    It is necessary, at any rate, to show from whom the consideration arose ; and, # strictly, this ought to appear from the writing itself. The paper produced in this case contains in itself no contract, to which two parties are necessary. There is nothing, in this paper, to show to whom any promise was made. 
    
    It cannot be good, as a note payable to bearer. 
    
    Nor is it sufficient of itself, and without other evidence, to support any of the money counts. 
    
    
      
      
        Howard vs Approbert, Lit. Rep. 85. — Sharpe vs. Rust, Poph. 181. — S. C., Cro. Car. 77. — Mayo vs. Harding, 6 Mass. Rep. 300. — Dyer, 22, a. — Chitty on Bills, 243.
    
    
      
      
        Tatlock vs. Harris, 3 D. & E. 177. — Collis vs. Emett, 1 H. Black. 313.— Gib. son & al. vs. Minet & al., Ibid. 587. — 2 Campb 5, 440. — Collins vs. Martin, 1 Bos. & Pul. 651__1 Pothier, 399. — Bayley & al. vs. Taber & al., 6 Mass. Rep. 451.
    
    
      
      
        Bull. N. P. 275. — 2 Campb. 596. — 1 Bos. & Pul. 651.
    
    
      
       2 Freem. 257. —Meredith vs. Chute, 2 L. Ray. 759. —Ford vs. Hopkins, 1 Salk. 283. — S. C.,\Holt, 119. — Duffield vs. Creed, 5 Esp. 52. — Eldridge vs Knott, Cowp. 216. — Bridges & al. vs. Chandos, 2 Burr. 1075.
    
    
      
      
        Chitty on Bills, 56. — 1 H. Black. 608 — Green vs Horne, 1 Salk. 197. — Cro Eliz. 848. — 8 Co. 155. — Plowd. 162. — Stackpole vs Arnold, 11 Mass Rep. 27.— 3 Bro. Ch. Rep. 311.
    
    
      
      
        Tyler vs. Binney, 7 Mass. Rep 479. — 2 Comyn on Contracts, 536. — 2 Dall Rep. 144.— Peake’s N. P. 25. — 2 Day's Esp. 524 —1 L. Raym. 743. — Chitty, 363 -3 D. & E. 187.
    
    
      
      
         Saxton & al. vs. Johnson, 10 Johns. 418.
    
   Parker, C. J.,

delivered the opinion of the Court. The question in this case is, whether the plaintiff can recover, without showing any title to the promise declared upon ; or any relation or connexion with the debtor, from which a presumption might be drawn, that the promise declared on was made to him. We put out of the case the circumstances proved at the trial, which probably had some influence in producing the nonsuit. Those circumstances were proper for the consideration of the jury, if it were necessary to give them a*y weight. We determine altogether upon the character of the paper, upon the production of which the plaintiff is willing to rest his cause.

It is not a negotiable promissory note. If it were, and had the name of the promissee on the back, the possession of it would be sufficient prima facie evidence of the plaintiff’s title.

It is not a note payable to bearer ; which would be sufficient evidence of a promise to pay the holder, unless suspicion was thrown upon his title by the maker.

It is not, then, any contract known in the law, which ex proprio vigore constitutes a promise to whomsoever shall produce it.

Its legal effect is nothing more than that of a memorandum between the parties to it, to operate as a promise to pay money, as a receipt for money, or as proof of a sum of money to be accounted for, according to the evidence offered, to show the intention of both parties when it was made. On a count for money lent, money had and received, &c., it would be conclusive evidence of so much due, unless the party signing it should prove that it was * given with a different intent. The present plaintiff has not shown that it was given to him. It may have been picked up in the street; or he may have purloined it from the right iul owner.

Authorities have been read, to show, that where a contract in writing has been made and signed, but the name of the party con traded with omitted, the omission may be supplied by extrinsic evidence. Of this we have no doubt, where the name was omitted by mistake, or a wrong name inserted. And the authorities go no further. This paper was never intended to contain the name of any one but the signer. It was a personal acknowledgment between him and the person to whom it was delivered. That person alone can maintain an action upon it.

It is not expedient to widen the field of negotiable paper. Certainly none can be considered as such, but that which has acquired the quality by statute, by usage, or by the terms of the contract; and this paper, in the form in which it is-now sued, has not the sanction of either of these sources of authority.

A contract expressed in this form, “I. O. U.” was held, in England, not to be a promissory note, until an evasion of the stamp duties caused a different determination.

Much learning has been shown in the argument, by the counsel on both-sides ; but the case does not seem to require it; since, according to known rules, and the common understanding of mercantile contracts, this imports no promise to the holder, without evidence to show, that it was actually given to him, or, at least, some subsisting connexion shown, from which that fact might be fairly inferred.

The motion to set aside the nonsuit is overruled. 
      
      
        Fisher vs. Leslie 1 Esp. Rep. 426.
     