
    Sullivan Ball versus James Allen.
    One possessed of an order for the payment of money to bearer, addressed to no particular person as drawee, can maintain no action thereon against the person subscribing it, without showing that he came fairly by it, for a valuable con sideration.
    Assumpsit on a writing in the following words and figures, viz..
    
    
      
    
    The said paper was a common printed check on the Union Bank; the word Union being cancelled.
    
      *The declaration contained a special count, as upon a promissory note, subscribed by the defendant, for 100 dollars, payable to No. 100 or bearer, and averring that the plaintiff, for a valuable consideration, became the bearer, that the defendant had notice, and in consideration thereof promised, &c. The common money counts were also added.
    It was agreed by the parties, that the defendant subscribed the said paper; and that, if the plaintiff could legally offer it in evidence to the jury, on the trial of the general issue, on any one count in his declaration ; and if he would be entitled to a verdict and judgment thereon, without proving that he gave a valuable consideration for the same, or that he had any title to it, excepting that he had the same in his possession, it not having been presented to an.y one, — the defendant should be defaulted, and the plaintiff have judgment for 100 dollars, and interest from the purchase of his writ; otherwise, the plaintiff should be nonsuit, with costs for the defendant.
    
      jRand, for the defendant.
    The paper is imperfect, and is not evidence of a promise to pay to any one. It is neither a check, a promissory note, nor a bill of exchange. No one would receive such an instrument in discharge of a debt, or give any value for it. It is to be presumed that the plaintiff picked it up accidentally in the street, and the burden is on him to show a good title to it, and a valuable consideration paid by him for it.  But if this is a promise to pay money, it is a conditional one, and the condition has not been performed. To recover under the money counts, the plaintiff must prove a consideration paid, and how he became possessed of the paper. 
    
    
      Minot, for the plaintiff.
    This is a negotiable engagement for the payment of money, within the statute of Anne. No particular form of words is necessary for such an instrument. The only effect of the words “ for value received ” is, that it precludes the defendant from showing a want of consideration. The paper being payable to bearer makes it negotiable, and differs it from a bare order or appointment, * as does also its being directed to no person as drawee. The holder of such a promise can be no more held to show the consideration paid for it, than the endorsee of a common promissory note payable to order, and endorsed in blank. It is for the defendant to show that no consideration was given for it. If this is a negotiable promissory note, it is well declared on in the first count; or judgment may be rendered on one of the money counts, without inconvenience to the uefend ant, for under those he might still have impeached the considera tian. 
    
    
      
       13 Mass. Rep. 158.— Brown vs. Gilman.
    
    
      
       1 Camp. 173. — 2 B. & P. 78. — 3 Burr, 1516.
    
    
      
      
        2 Ld. Raym. 930, and the cases cited m Brown vs. Gilman.
      
    
   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,

Plaintiff nonsuit. 
      
      
         Vide Ellis & Al. vs. Wheeler, 3 Pick. 18. — Cushing vs. Gore & Al . ante, 69
     