(dissenting.) This is an action on a written instrument alleged to'haye been made by the testator of the defendants in the words and figures following: “Quarryville, September 2d, 1871. Thirty days after death I promise to pay to Cornelius W. Cam right fifteen hundred dollars, with interest. Samuel P. Freligh.” Freligh died June 21,1888. The answer denies the making of the writing, and alleges, also, that there was no consideration. The jury found a verdict for plaintiff of $3,395.75. After the plaintiff had given evidence tending to show that the writing was in the handwriting of the testator, he rested. The defendant moved for a nonsuit, among other grounds, that the plaintiff had not proved that there was any consideration. The court denied the motion. Evidence was then given by the defendants tending to show that the writing was not that of the testator. Some evidence was given on each side as to the condition of the plaintiff; as to the possibility or probability of his having the amount of money, and being able to lend the same tó the testator, and as to disagreements between plaintiff and the testator. The defendants again moved for á nonsuit, insisting that the writing recited no consideration; and also that the burden of proof of consideration had been now shifted to the plaintiff, and that he could not recover without showing such consideration. This was denied. The court charged the jury that the writing, if found to be that of testator, imported a consideration; that no proof of consideration was required to sustain it; that the burden rested on defendants to overcome this presumption by a preponderance of evidence, and by showing that the writing was without consideration. To this the defendants excepted. It was proved, on the trial, that plaintiff was a son-in-law of •the testator, married in 1863; that he lived for some time in testator’s family, till soon after the death of plaintiff’s wife in 1871; that testator’s first wife died in 1869;'and that he married again in 1871. There was evidence that about this time an alienation of feelings arose between plaintiff and testator, and continued, so that there was little intercourse. There was evidence that plaintiff, in 1879 and since, had been a stone measurer, at $15 per week; that, in 1877, he gave to testator his note for $50, which does not appear to have been paid by plaintiff. There was also evidence that testator was a lender of money, and that, at the date of the alleged writing, he had $4,392 on deposit to his credit in a savings bank. It was shown that, in 1866, the father of plaintiff conveyed to him and his wife a lot of land, the consideration expressed in the deed being $1,500; and that a few months afterwards, October 6, 1866, plaintiff and his wife conveyed the same to one Steenburgh, the consideration expressed in the deed being $4,500. Ho other proof of the consideration of the deeds was given. The plaintiff gave evidence of a conversation between the testator and one Gillespie two or three years after the death of plaintiff’s wife. In that conversation, testator is said to have stated that he loaned his daughter $1,500 when the farm was bought, and that she had brought back the money to him. This alleged-conversation must have taken place about 1874. The recollection of the witness is very indistinct and vague. The matters thus briefly stated are substantially the only proof tending to show an actual consideration for the written promise in suit. It was *282the general rule of the common law that no one could sue on a contract, but the original party. The custom of merchants first, and the statute law after-wards, made the exception that a promissory note, payable to a person or his order, or to bearer, might be indorsed, and the indorsee could sue in his own name. It followed, too, as part of that custom of merchants, that defenses, good against the original party, were not good against the indorsee. A want of consideration was no defense against the indorsee. Hence, as against the indorsee, it was immaterial whether any consideration was expressed in the note by the words, “value received,” or otherwise. As against the payee, a want of consideration could be shown. But as it was not necessary to show consideration, even prima facie, against the indorsee, and as the words “value received” were therefore unimportant as to him, it was naturally said generally that, as to negotiable notes, those words were not necessary. The negotiable character of the writing showed that it was made to be transferred if the payee desired. Inasmuch as the words “ value received” or other prima facie evidence of a consideration were immaterial when the note passed to the indorser, it readily followed that they should be considered unnecessary in the hands of the payee. But this arose from the fact that the note was negotiable, and from no other fact whatever. If it were not negotiable on its face, the reason ceased. Reference is afterwards made to the statute of Anne, (3 & 4 Anne, c. 9.) The preamble is, “Whereas, it has been' held” that notes in writing, etc., payable to order, “ were not assignable or indorsable over withinthecustom of merchants,” etc. Then the.statute enacts that they “shall be assignable and indorsable over in the same manner as inland bills of exchange,” etc., declaring also that the indorsee may maintain his action in like manner as on inland bills. Hence, it appears that the object of that statute was to secure the negotiability of notes,—a matter which had been doubted, (Buller v. Crips, 6 Mod. 29; Clerke v. Martin, 2 Ld. Raym. 757,)—and it is not disputed that no notes are negotiable which have not the word “order” or “bearer,” although, having the words “value received,” they may be valid instruments, and entitled to days of grace. 3 Kent, Comm. 77.
It has become the law now that the assignee of any contract may sue in his own name. We may therefore lose sight of the fact that negotiability was the principal peculiarity of notes by the custom of merchants, and by the law establishing that custom. Chitty, Bills, 195. Of course negotiability de-. pends on the words “order”or “bearer” in the note. McMullen v. Rafferty, 89 N. Y. 456; Cromwell v. Hewitt, 40 N. Y. 491. The statute of our state is as follows: “All notes in writing made and signed by any person, whereby he shall promise to pay to any other person or his order, or to the order of any other person, or unto the bearer, any sum of money therein mentioned, shall be due and payable as therein expressed.” 1 Rev. St. marg. p. 768, § 1. This includes three classes of notes—First, notes payable to A. B. or order; second, notes payable to the order of A. B.; third, notes payable to bearer. Ho other notes are included. A note payable to A. B., without the word “order” or “bearer,” is not included. This is evident from the rest of the section, which is: “And shall have the same effect, and be negotiable in like manner, as inland bills of exchange according to the custom of merchants.” How, as it is settled that a note without the word “order” or “bearer” is not negotiable, it is evident that this section does not includeany note which does not contain "one of those words. The same is seen in the following section 4, which gives the right to maintain actions .against makers and indorsers on a “note payable to them or their order,” “as in case of inland bills of exchange, and not otherwise.” How the indorser oñ a nonnegotiable note may be held as maker or guarantor, and is not entitled to notice of demand or non-payment. Cromwell v. Hewitt, ut supra. Therefore he is not held as in case of inland bills, because in case of such bills there must be notice of demand and non-payment. Whatever may be the proper *283construction of the statute of Anne, or of the present English statute, (45 & 46 Vict. c. 61, § 83,) we must be governed by the Revised Statutes of our state. The plaintiff urges that section 1 is to be construed to include— First, a promise to pay to any other person; second, a promise to pay to his (the payee’s) order; third, a promise to pay to the order of any other person; and, fourth, a promise to pay to bearer. This cannot be correct, for the second would be the same as the third. And, further, such a construction would make a note negotiable which had neither the word “order” nor the word “ bearer. ” A reference also to chapter 33, Laws 1788, and to chapter 48, Laws 1794, (which are the basis of our Revised Statutes,) will show that the notes there mentioned are “assignable or indorsable, ” and the indorsees may maintain actions thereon. This shows that these statutes also had reference exclusively to negotiable, and not to non-negotiable, notes. The proper construction of our statute then is, as above stated, that the words “or his order” are connected with the preceding words “to any other person,” and do not form a description of another kind of notes. The present note, then, is not a writing described by our statute. Daniel, Keg. Inst. § 162. Now it is the general rule that there cannot be a recovery on an alleged contract without proof of consideration. The words “for value received” in a note are prima facie evidence of a consideration. Prindle v. Caruthers, 15 N. Y. 425; Blackman v. Cavin, 21 Wkly. Dig. 445; Daniel, Neg. Inst. § 163. It has been shown abovfe why, in a negotiable note, these words are not necessary, as is held in 3 Kent, Comm. 77. But where the note is not negotiable, it is a mere contract between the original parties, not intended for transfer, and a consideration must be shown. So it was held in Edgerton v. Edgerton, 8 Conn. 6. Again, in Bristol v. Warner, 19 Conn. 7, there was a note: “On demand after my decease I promise to pay J. W. B., or order, $800;” and the court held that it imputed a consideration, because it was in form negotiable, and cited the preceding case. “Kotes not negotiable by statute, or upon which no action of debt is authorized by statute, remain as at common law, and not importing a consideration; it must be alleged and proved." Daniel, Neg. Inst. § 162. In Parsons on Notes & Bills (page 227) it is said that, in non-negotiable notes, if there are no such words as “value received,” in some states, the presumption of consideration would be denied, in others, perhaps admitted. It will be seen that Chancellor Kent says that, without negotiable words, the note is a valid instrument; is entitled to grace, and may be declared on as a note. And this is what is meant by the common statement that a non-negotiable promise is a note under the statute of Anne, above cited. 3 Kent, Comm. 77. But immediately following these words he speaks, as above cited, of the words “value received, ” and says that “they are unnecessary, and value is implied in every negotiable bill, note, ” etc. Thus he limits his remark, as to these words, to negotiable paper, as he had previously explained it.
The case of Kimball v. Huntington, 10 Wend. 675, was on a due-bill: “Due A. B. $325 payable on demand.” The defendant had pleaded a release puis darrein continuance. The court said that this waived all former pleas, and that the question whether the due-bill was a promissory note could not be raised on the trial. In fact, on the trial plaintiff proved the loan of money, and that the bill was given therefor. Therefore, the question of the necessity of proof of consideration could not arise. But, obiter, the court said that the words “value received” were not needed to bring this paper under the statute. The word “due” admits an indebtedness existing. The court cited President, etc., v. Hurtin, 9 Johns. 217. That was an action on a promissory note by which defendant promised to pay plaintiff $125 “for five shares of the capital stock of said company,” and the court said that the note expressed the consideration, as it plainly did. The court cited also Downing v. Backenstoes, 3 Caines, 137, decided on demurrer to the declaration. It does not appear whether or *284not the words “ value received” were in the note. In Dean v. Carruth, 108 Mass. 242, the note contained the words “value received.” In Underhill v. Phillips, 10 Hun, 591, it does not appear that the note was not negotiable. Cock v. Fellows, 1 Johns. 143, was an action on a due-bill, and it was also held the plaintiff could not recover. Luqueer v. Prosser, 1 Hill, 256, was an action on the guaranty of a note payable to bearer, and therefore negotiable. It does not seem, therefore, that there is any controlling decision which holds that in a non-negotiable note it is not necessary to show a consideration, either in the note itself or by extrinsic evidence. Certainly this must be the rule upon principle. The plaintiff, in order to show the defendant’s liability, must show a promise made on a good consideration. That rests upon him as a part of his affirmative case. There has been sometimes an attempt to hold that a consideration was not necessary in case of a written promise. Pillans v. Van Mierop, 3 Burrows, 1663. But that is not the rule of our law. There must always be a consideration. This view is especially applicable to a writing like the present, payable after the maker’s death, and therefore from his estate; a writing which, without a consideration, would be an attempt to make a testamentary disposition. Earl v. Peck, 64 N. Y. 596; Worth v. Case, 42 N. Y. 362. It cannot be doubted that, between the original parties, the question of consideration is open, and the matter thus far discussed is really whether the defendant must prove the negative. For certainly the note contains no admission by the maker that his promise was made on any consideration. It is very possible for one to make a written promise without any actual consideration. Then, however, he is not legally to be compelled to fulfill. If he admits a consideration, that admission is prima facie evidence against him. But if he make no admission, the plaintiff is put to other proof. But, further, it will be seen that, on the trial, evidence was given by defendant tending to show that the plaintiff did not have this amount of money to loan, and, in rebuttal, evidence was given by the plaintiff tending to show that he had property. It is plain that this evidence on each side was given on the question whether or not there was a consideration. Because, if the note was entirely without consideration, the writing might nevertheless be genuine, and the note might have been intended as a gift. Therefore, the evidence that the plaintiff had no money to loan the deceased' was evidence, so far as it went, on the point of consideration, and not on the genuineness of the writing. The writing might have been genuine, although no consideration passed to the deceased. On this point the court charged that “it is upon the defendant that the onus rests of assailing the consideration to overcome the presumption by a preponderance of evidence and showing that it was without consideration.” In Perley v. Perley, 144 Mass. 104, 10 N. E. Rep. 726, there was no question as to the form of the note. On proving the signature, the plaintiff rested. Evidence was then given by each party in regard to the actual consideration; which evidence was conflicting. The court held that the burden of proving a consideration still remained with the plaintiff, notwithstanding the presumption arising from the note itself, and that if there was any evidence in the case on this point on behalf of defendant, the plaintiff must show by a preponderance of the whole evidence that the note was given for a valuable consideration. This same rule is stated in Delano v. Bartlett, 6 Cush. 364; Simpson v. Davis, 119 Mass. 269; and Powers v. Russell, 13 Pick. 69. These are cases in which a consideration was expressed in the notes by the words “ value received.” Yet the court held, evidence on both sides having been given on the question of consideration, that the onus of proving consideration was upon the plaintiff on the whole case. In this respect I think that injustice was done to the defendants. Assuming now that the writing could be given in evidence without proof of consideration, still the fact of a consideration was a part of plaintiff’s case. And the burden of that proof was on him-. If by a preponderance of evidence on the *285whole case he failed to show a consideration, he could not recover. In the case of Delano v. Bartlett, the plaintiff’s counsel, relying on the note which purported a consideration, and thus making out & prima facie ease, requested the court to charge that the burden of proof was on defendants, to establish a want of consideration. Biit the court refused, and charged that the burden of proof was throughout on plaintiff, to satisfy tile jury on the whole evidence of the fact of consideration, and this was held to be correct. I think that this is a sound principle, and therefore that it was incorrect, in any view of the note, to charge that the burden rested on the defendant, of showing that the note was without consideration.
A further point is urged by defendant, viz., that the verdict is against the weight of evidence. Ordinarily, we are not disposed to interfere with a verdict-given on conflicting evidence, but this case is peculiar. There is no direct evidence to the fact of the execution of the note by the testator. The only testimony is that of witnesses who had seen the testator write, and who believed the note to be in his handwriting. Now such testimony, of course, means only that there is a very great resemblance between the writing in question and other writing which the witnesses know to have been that of the testator. The opposing testimony is of a similar character. But, under the present law of the state, a great number of specimens of the handwriting of the testator were produced, and the jury were allowed .to compare them with the disputed note. Now, on such a comparison, the jury have no advantage over the appellate court. The appellate court is just as able as the jury to determine whether a disputed handwriting is like other and undisputed specimens. There is no judging of the integrity and truthfulness of witnesses. And every one must see that the opinion of witnesses, as to the genuineness of handwriting, is only an opinion as to resemblance. In the present case, one witness for the plaintiff testified to his belief that three notes were in the testator’s handwriting, which were proved to have been written by another person a few days before the trial. An unusual opportunity of comparison was given in this case by the production of an assessment roll of 1870, containing 80 foolscap pages, all written by the testator, in which some 3,000 names are written, including the testator’s, and including his surname many times. There is thus an unusually full opportunity for the appellate court to examine, in detail, the testator’s mode of making nearly all the letters of the alphabet, capitals and small hand. There has also been exhibited to us on the appeal, a great number of notes drawn up by the testator, payable to himself or his order, and which were originally signed by persons owing him. I have given all these papers a very careful examination. I ought not to comment upon them in detail, lest I prejudice the parties on another trial. But I have come to the conclusion that, taking into consideration these papers and all the testimony in the case, the verdict should be set aside on the evidence. There is, I may remark, no evidence of any dealings between the parties which tends to give probability to the genuineness of the note, or to show a consideration therefor; and, although the complaint alleges that this note was given for money lent by the plaintiff to the testator, nothing of that kind was shown by the slightest evidence. For these reasons the judgment and order should be reversed, and new trial granted, costs to abide event.