witness, it is considered not an immaterial alteration of a note to cause to be placed thereon as a witness the name of a person who in fact was not a witness to any part of the transaction. Homer v. Wallis, 11 Mass. 312. That is, if there was no other subscribing witness. But the putting the name of a second subscribing witness is not deemed a material alteration of a note in a case where there was previously the name of one subscribing witness who had attested the note as such. Ford v. Ford, 17 Pick. 421. In this case the promisee did not participate in the alteration, and there was no allegation of fraud on his part in the transaction. 7. Writing on the paper, immaterial words. Mere senseless words, written on a subsisting note, complete in itself-not affecting the terms, the effect, or the identity of the contract, and therefore immaterial,-have been held, when it was done without a fraud, not to be such an alteration as would affect the validity of the note. Granite Railway Co. v. Bacon, 15 Pick. 239. CHAPTER XV. WHETHER A CONSIDERATION IS REQUIRED TO SUPPORT A WRITTEN CONTRACT WHEN NOT UNDER SEAL. 1. Of nudum pactum. Lord Mansfield's opinion as to the effect of writing. The expression, nudum pactum, came from the civil law. Ex nudo pacto non oritur actio. Wilmot, J. (in 3 Burr. 1670) refers to Vinnius, lib. 3, tit. De obligationibus, 4to ed. 596; Id. on Justinian, 4to 614; Grotius, lib. 2, ch. 11, De promissis; Puffend. lib. 3, c. 5; Bracton, book 3, c. 1, De actionibus; Plowden 3086. Lord Mansfield asked if any case could be found where the undertaking, holden to be nudum pactum, was in writing. "I take it," he said, "that the ancient notion about the want of consideration was for the sake of evidence only; for when it is reduced into writing, as in covenants, specialties, bonds, &c., there was no objection to the want of consideration." Wilmot, J. concurred with him. "If," he said, "it stood only upon the naked promise, its being in this case reduced into writing is a sufficient guard against surprise; and, therefore, the rule of nudum pactum does not apply in the present case. I cannot find that a nudum pactum, evidenced by writing, has been ever holden bad; and I should think it good; though where it is merely verbal it is bad. Pillans &c. v. Mierop c. 3 Burr. 1668-71. There was another case of an instrument in writing, attested by witnesses, in which the objection of nudum pactum did not prevail. Williamson & wife v. Losh, Chitty on Bills, 73, 4, note. 2. Rule established that notwithstanding contract be in writing consideration is necessary. Whatever may be the rule of the civil law, it is not the law of England that there cannot be a nudum pactum in writing. If a contract be not a specialty, though it be written, the defendant, generally speaking, is not liable unless there be such a consideration as would be sufficient to sustain the con tract if proved by parol evidence. Rann &c. v. Hughes &c. 7 T. R. 346, note; Schoonmaker v. Roosa, 17 Johns. 304. 3. Effect of writing as prima facie evidence of consideration. The law however attributes so much force and effect to the formal written contract, and to the words "value received," as to presume, in the absence of proof, that there was a valuable consideration for the promise; and if the promisor would avail himself of the defence, that it was without consideration, it lays the burden of proof upon him, satisfactorily to show that. But when the facts are disclosed, the burden of proof comes to be of little importance. It has therefore been the established rule of law, that in a suit upon a promissory note, against the promisor, by the promisee, or by an indorsee, without value given, or taking the note under such circumstances as to enable him to stand only upon the rights of the promisee, it is competent for the promisor to show by way of defence, that the promise was gratuitous, and made without any legal consideration. Bliss v. Negus, 8 Mass. R. 46; Hill v. Buckminster, 5 Pick. 393. A contrary doctrine was laid down in Bowers v. Hurd, 10 Mass. R. 427; but it has frequently been stated, and by the judges who decided it, that although the decision of that case might well be supported, yet that the position there laid down, that a written contract could be supported without a legal consideration, could not be mainIt was so intimated in Mills v. Wyman, 3 Pick. 208, but more distinctly in Hill v. Buckminster already cited, in which the same eminent judge who gave the opinion in that case, says, "In coming to this conclusion we undoubtedly overrule some of the expressions in the opinion, as reported, in the case of Bowers v. Hurd." The Court then distinctly lay down the principle, that notwithstanding the formality of a note or written promise, and the deliberation with which it may be presumed to have been made, still if it appear to have been made gratuitously, and without a legal consideration, though it may be binding in foro conscientiæ, it will not support an action; and further, that the common admission of value received" is not conclusive, but may be inquired into, and contradicted by evidence. Shaw, C. J. in Parish v. Stone, 14 Pick. 201, 2. A bill of exchange or promissory note, whether payable to bearer or order, prima facie importing a consideration, the same rule is applied to a check on a bank. Conroy v. Warren, 3 Johns. Cas. 259. 4. Effect when shewn, of want of consideration, either total or partial. Want of consideration, either total or partial, may always be shewn by way of defence to an action on a note as between the original parties; and it will bar the action or reduce the damages from the amount expressed in the note, as it is found to be total or partial respectively. Phoenix Ins. Co. v. Fiquet, 7 Johns. 383; Farnsworth v. Garrard, 1 Camp. 38; Parish v. Stone, 14 Pick. 210. Where the note is given for two distinct and independent considerations, each going to a distinct portion of the note, and one is a consideration which the law deems valid and sufficient to support a contract, and the other not, then the contract shall be apportioned, and the holder shall recover to the extent of the valid consideration and no further. S. C.; Barber v. Packhouse, Peake's R. 61; Darnell v. Williams, 2 Stark. 166; Jones v. Hibbert, Id. 304, 3 Eng. Com. Law Rep. 296 and 356; Nash v. Brown, Chitty on Bills 93; Bayley on Bills (Phillips & Sewall's edi.) 340. CHAPTER XVI. WHAT IS A BILL OF EXCHANGE; NATURE OF THE DRAWER'S CONTRACT. 1. To dispense with stating consideration, bill must be for money, and be payable at all events. In an action on an instrument as a bill of exchange, unless it be a good bill of exchange, drawn according to the custom of merchants, the plaintiff will not be relieved from the necessity of stating a consideration for it. 16 Adol. & El., N. S. 335. What, then, is a good bill of exchange? It is an order to the drawee (who has or is supposed to have effects of the drawer in his hands) to pay. 2 Burr. 674. The order must be for the payment of money only; not in the alternative for goods or the proceeds thereof. Atkinson v. Manks, 1 Cow. 707. On a bill drawn for a sum, as the drawer's "quarterly half pay to be due from 24th June to 27th September next, by advance," an action has been maintained against the acceptor. Macleod v. Snee &c. 2 Str. 762, 2 Ld. Raym. 1481. But an instrument is not a good bill of exchange, unless it be payable at all events. It must not be dependent on any contingency. Cook v. Satterlee &c. 6 Cow. 108. Nor must it be a bare appointment to pay money out of a particular fund. A gentleman who writes to his steward to pay to J. S. a sum of money out of rents or purchase money in his hands, would not be liable to be sued upon this, as upon a bill of exchange. Jocelin v. Lascerre, Fort. 281, 10 Mod. 294, 316; Jenney &c. v. Herle, 2 Ld. Raym. 1361, Str. 591; Haydock v. Lynch, 2 Ld. Raym. 1563; Banbury v. Lessett &c. 2 Str. 1211; Dawkes &c. v. De Lorane, 3 Wils. 212, 13, 2 W. Bl. 782; Smurr v. Forman, 1 Hammond 273. A drawer requests the drawee, 90 days after sight or when realized, of this his the drawer's first bill of exchange, to pay to the payee a specified sum. This is held not a good bill. Alexander v. Thomas, 16 Adol. & El., N. S. 333, 71 Eng. Com. Law Rep. 333, 2 Eng. Law & Eq. 286. A contractor for transporting the U. S. mail draws on the post master general; the draft is in terms payable on a specified day to the drawer's order; it is accepted provided the drawer shall perform his contract; and it is endorsed. This draft-of necessity drawn on a fund-operates only as an as signment or transfer of the fund; it is not a bill of exchange on which an endorsee can sue in his own name. Reeside v. Knox &c. 2 Whart. 233; Strader &c. v. Batchelor, 8 B. Monroe 168. The words "value received," though generally inserted, express only what the law implies. Hatch v. Trayes, 11 Adol. & El. 702, 39 Eng. Com. Law Rep. 207. 2. There must be a drawee. With the exception of Regina v. Hawkes, 2 Moo. C. C. 60, there is no case in which it has ever been decided that an instrument could be a bill of exchange, where there was not a drawer and a drawee. Parke, B., 9 W. H. & G. 415. Alderson, B., who sat in Regina v. Hawkes, thinks that he was wrong on that occasion. The case, he remarks, seems to have been decided on the ground that Gray v. Milner, 8 Taunt. 739, governed it; and the fact was not adverted to, that Gray v. Milner may be thus explained: that a bill of exchange made payable at a particular place or house, is meant to be addressed to the person who resides at that place or house. Therefore in that case the bill was on the face of it directed to some one; and the court held that inasmuch as the defendant promised to pay it, that was conclusive evidence that he was the party to whom it was addressed. But in the case of Regina v. Hawkes, the instrument was addressed to no one. 9 W. H. & G. 416. Martin, B., concurred with his brothers, Parke and Alderson. It seemed to him absolutely essential to the validity of a bill of exchange, that it should have a drawer and a drawee; and except for the case of Gray v. Milner, he should have doubted whether the making a bill payable at a particular place was a sufficient address. Id. 3. Whether drawer's not receiving value will affect payee. Writers upon foreign bills contemplate the existence of four parties-the giver of value, or purchaser of the bill, or remitter as he is often called,-the drawer,-the party to whom the bill is to be paid abroad,-and the drawee. As the sale of the bill may be by the drawer to some person other than the payee, it does not contemplate that the consideration for the bill should necessarily move from the payee to the drawer, or that no person but the drawer should have a right to confer a title to the bill upon the payee. Beawe's Lex. Merc., par. 6, p. 416, par. 14, p. 418; 8 Man. Grang. & Scott 871, 2. |