sufficient to give the paper this transferable quality, and instruments payable to a person or holder, or assigns, and the like, have been held negotiable.*

Sec. 769. CONCERNING THE CONSIDERATION FOR THE NOTE OR BILL.-Walker gives as the sixth essential of a negotiable instrument that it must import a consideration, so as to preclude the necessity of inquiry and proof. (Am. Law, Sec. 180.) This statement does not mean that the consideration must be stated in the paper, or that as between the original parties the question of consideration can never be raised. The words so commonly used in notes and bills, "for value received," are not essential to the negotiability of the instrument, a consideration for the making or transfer is presumed, but as between the immediate parties it may be shown that there was no consideration given, and this whether the words "for value received" are used or not. But holders of negotiable instruments who are not original parties, and who have taken paper in the usual course of business are protected against a failure of the consideration between prior parties. (Riley v. Johnson, 8 Ohio 526; Conklin v. Vail, 31 Ill. 166; Jordan v. Pate, 19 O. St. 586.) And under certain circumstances to be discussed later the maker

*Raymond v. Middleton, 29 Pa. St. 530; Wilson County v. Natl. Bank, 103 U. S. 776; Douglass v. Wilkeson, 6 Wend. 637.

In construing the State statute in Illinois it is held that a note payable to a person or bearer is not negotiable. (Garvin v. Wiswell, 83 Ill. 218.)

of a note or bill or bond is precluded from showing a want or failure of consideration.*

Sec. 770. CONCERNING THE PLACE OF PAYMENT.-The name of the town or place where commercial paper is executed is customarily written with the date as in the forms given: "Conneaut, Ohio,” etc., but this does not make it the duty of the holder to go to the place mentioned to demand payment. The contract being construed according to the laws where made, this mention of the place of execution is evidence tending to show by what law the parties meant to be governed. It may also be stated in the body of the instrument that the payment shall be made at a given place, and it is held that the holder need not make demand at the named place to render the maker or acceptor liable for non-payment, unless it is made payable at the given place "only and not elsewhere.' (Cox v. Natl. Bank, 100 U. S. 714; Hills v. Place, 48 N. Y. 520.) But if the place of payment is expressly stated in the instrument the holder must make demand at this place in order to hold indorsers and others secondarily liable on the instrument. (Bank of the U. S. v. Smith, 11 Wheat. 171.) And by statute in some States it is made a requisite to the negotiability of a note or bill that the place of payment must be specified in the body of the instru

*By the law merchant words importing consideration received were deemed essential to bills of exchange, but they are not necessary now in negotiable instruments in the United States, unless, as in Missouri, the State statute requires the words "value received" to be inserted in all promissory notes. (Tiedeman, Com. Paper, Sec. 31; Bailey v. Smock, 61 Mo. 213.)

ment. In the absence of a statute to this effect the place of payment need not be stated in the paper. (Rominger v. Keyes, 73 Ind. 376; Oates v. Natl. Bank, 100 U. S. 239; Tiedeman, Com. Paper, Sec. 30.)

Where no place of payment is mentioned in the paper, it is payable at the place of business of the maker or acceptor or at his residence in case he has no place of business. But in case the note is made payable at a named place it is best to make the demand at the place stated, though it is not absolutely necessary to hold the maker or acceptor.

Sec: 771. THE EFFECT OF A SEAL.-An instrument under seal, though possessing all essential features of commercial paper, is not negotiable in the absence of a statute authorizing it. The rule grows out of the fact that by the law merchant the custom was to execute commercial paper without seals, and also that the common law forbade the assignment of sealed instruments, hence the seal is held to indicate an intention that the instrument shall not be negotiated. The rule formerly applied to the paper of a corporation executed under the corporate seal, but the tendency at present is to hold such paper negotiable on the ground that the seal of a corporation does not of itself indicate an intent to execute a specialty. (Tiedeman, Com. Paper, Sec. 32; Rand v. Dovey, 83 Pa. St. 280.)

Sec. 772. WITNESSES, DELIVERY, ETC.-It has been seen in a previous section, that the signature of the maker need not be attested by a witness even when the signature is by mark. Such witness is

only a help in proving the execution, and may be replaced by other competent evidence. Where there is such a witness he must be called to prove the execution of the paper unless he cannot be produced, when the execution may be shown by proof of the witness' signature. (Tiedeman, Sec. 33; Greenleaf on Ev., Sec. 575.)

There must be a delivery of the instrument to the payee to make it binding on the maker or drawer. Until delivered it is of no effect and is considered a nullity. (Roberts v. Bethel, 12 C. B. 778.) By delivery is meant the actual or constructive transfer of the instrument to the payee. When an actual transfer of the paper is made to the payee no question can arise as to its sufficiency, but where the paper is given to an agent to be delivered to the payee it may be recalled by the maker at any time before delivery. (Devries v. Shumate, 53 Md. 216.) Where the custodian of the instrument is instructed to hold it for the payee or to deliver to him or his indorsee, it is held a sufficient constructive delivery. (Fisher v. Bradford, 7 Greenl. 28.) The delivery may be made to the payee, or to any person for his benefit with his consent. It may be sent to the payee by post, and if done with his express or implied consent constitutes a good delivery though lost in the mail. While in transit to the payee, a maker or indorser may exercise the right of stoppage in transitu under the rules applicable to the case of vendor and vendee.

A bona fide holder of an instrument is not protected in case there has been no delivery to the payee. (Richards v. Darst, 51 Ill. 141; Freeman v. Ellison, 37 Mich.

459.) The paper becomes operative only from the time of its delivery, and if a date is stated in the paper the delivery is presumed to be made on that date, and before the day of maturity. But parol evidence is admissible to show the true date of delivery, and this governs, unless the instrument is written to mature at a certain time after date, when it will be considered as operating from the day of the date. (Tiedeman, Com. Paper, Sec. 34b; Powell v. Waters, 8 Cow. 669; Lovejoy v. Whipple, 18 Vt. 379.)

By the common law there is no prohibition of the making of contracts or doing work on Sunday, or the first day of the week; but in most of the States there are statutes forbidding all labor on this day and invalidating all contracts made on it. The execution and indorsement of negotiable paper comes within these statutes, and no suits can be brought on paper so made or indorsed.* But the paper may be dated and formulated on Sunday, and will be valid if delivered on some other day. (Drake v. Rodgers, 32 Me. 524.) And paper made and delivered on Sunday may be subsequently re-delivered and so ratified as to make it valid or authorize the recovery of the consideration for which it was given. (Sayre v. Wheeler, 31 Ia. 112.) †

*Tiedeman, Com. Paper, Sec. 34c; Benson v. Drake, 55 Me. 555; State Capital Bank v. Thompson, 42 N. H. 370; Smith v. Case, 2 Ore. 190.

"The court will take judicial notice of the fact that the date of the paper is a Sunday, and all parties to the contract are charged with notice of that fact. Where, however, the paper is delivered on Sunday, but bears a different date, the paper is