
    Thomas Bayley and Another versus John Taber and Another.
    Where a statute had made void a certain species of promissory notes, payable to bearer, issued after a certain day, — in an action upon such notes, bearing date before such day, it was held incumbent on the defendants to prove that the notes were within the statute, and that the plaintiff was not bound to prove the delivery to himself.
    This was an action of assumpsit. The declaration contained a number of counts upon promissory notes made by *the defendants, for sums less than five dollars, and [*452] payable to bearer. The counts were in the usual form, containing the common averments.
    On the trial upon the general issue, which was had before Thatcher, J., at the last May term in this county, the notes were produced, all bearing date before the first of April, 1805, not being wholly in writing, but bearing the impression of printers’ types. The defence at the trial was founded on the statute of 1804, c. 58, in which it is enacted that no action shall be maintained in any court of law on any promissory note, for any sum under five dollars, and made payable to bearer or order, which shall bear the impression of plates, types, or printing, if such notes be issued after the first day of April, 1805. Under this statute, the defendants insisted that it was not enough for the plaintiffs to prove the signatures of the defendants, but that they were also bound to prove that the notes were issued on or before the first of April, 1805. The judge directed the jury otherwise. The defendants also insisted that the plaintiffs ought to prove that they were the bearers of the notes before that day. On this point, also, the direction of the judge was against them. And the defendants further insisted, as these notes passed by delivery, that the plaintiffs should prove the delivery to themselves. The direction of the judge was likewise against them on this point. A verdict being returned for the plaintiffs, the defendants filed exceptions to the foregoing directions, and moved for a new trial.
    At this term, Whitman, for the defendants, enforced the points raised at the trial.
    
      Hopkins for the plaintiffs.
   Parsons, C. J.

It is our opinion that the direction of the judge m all the points was right.

When the defendants would avoid their promise by availing themselves of the statute, it is incumbent upon them to prove that the notes are within the statute; and the plaintiffs are [ * 453 ] not obliged to show that the notes are * without the statute. Neither are the plaintiffs bound to prove in what manner they acquired the property of notes payable to bearer, unless the defendants will first show that a former lawful holder of the notes lost them, or that they were unlawfully taken from him ; and then the plaintiffs would recover, if they could prove that they acquired them bona fide, and for a valuable consideration, in the usual course of negotiation, without notice of the manner in which the former holder lost his possession of them.

Let judgment be entered on the verdict  