gation or any efficacy whatever. Whereas, if the objection was fatal to the paper as a promissory note, but it was not negotiable, or, if negotiable, not negotiated, or indeed if it had been negotiated, but this question arose between the original parties, though it could not be declared upon as a promissory note, it might still be evidence of an agreement. And a party, by framing his case accordingly, might generally secure all the advantages which would belong to the instrument as a promissory note. But then he would be obliged to aver and to prove a consideration for the promise, and also that the condition had been performed, or that the contingency had occurred on which the promise was made. And if in the actual contract there was such a condition or contingency, and the plaintiff did not state it, the defendant might show it in defence. Whereas if the plaintiff relied upon the written instrument as a promissory note, it would not relieve him from the objection of contingency to aver and prove that the contingency had happened or the condition been performed on which the promise was dependent, because no such event could make a paper so written a promissory note. And on the other hand, if it were on its face free from any such objection, the defendant could not avoid the note by showing that such condition or contingency entered into the bargain; although he might, under certain circumstances, make out a substantial defence on this ground.

SECTION VII.

OF DELIVERY.

THIS is one of the essentials of bills and notes, for although it is often said that a note is made, when all we mean is that it has been written and signed, the note is not made in a legal sense, that is, it is not perfected, and the maker is under no obligation whatever as maker, until it is delivered. (1)

(1) Hopper v. Eiland, 21 Ala 714; Chamberlain v. Hopps, 8 Vt. 94; Lansing v. Gaine, 2 Johns. 300; Marvin v. McCullum, 20 Johns. 288. A indorsed a note, and died before delivery. His executor delivered it. Held that no title passed.. Clark v. Boyd, 2 Ohio, 56; Bromage v. Lloyd, 1 Exch. 32; Clark v. Sigourney, 17 Conn. 511. Otherwise if delivered to a person who had made advances on the faith

Some questions have arisen as to what rights or obligations are created by promissory paper which was completely written and signed, but never actually delivered by the promisor, and was stolen from him, or lost by him and found by another, and by the thief or finder passed to an innocent holder for value. These questions are considered elsewhere.(m)

As a note takes effect only by delivery, so it takes effect only on delivery, and if this delivery be subsequent to the date, it is still to be considered as valid only from that day. (n) In the absence of evidence to the contrary, the law will presume that it was delivered on the day of the date.(0)

If it be made payable in so many days, or weeks, or months, from the date, this period must begin from the date which the paper bears, without reference to the day of actual delivery. For it is perfectly competent for the parties to agree that the money should be payable when they please, and they express their agree. ment on this point by making it payable in so many days from a certain day. Thus, if a note payable in three months from date, were delivered four months after date, it would be payable on demand.

If a note payable on time had no date, the time must be counted from the delivery. And this must be the actual delivery, if that can be proved. If not, then the time will begin from

of the bill.. Perry v. Crammond, 1 Wash. C. C. 100. See Michigan Ins. Co. v. Leav enworth, 30 Vt. 11. Delivery is necessary to an acceptance. Cox v. Troy, 5 B. & Ald. 474, 1 Dow & R. 38, overruling Thornton v. Dick, 4 Esp. 270 The delivery must be to the party as indorsee. Adams v. Jones, 12 A. & E. 455; Marston v. Allen, 8 M. & W. 494; Brind v. Hampshire, 1 M. & W. 365. The date, not the time of delivery, fixes the time from which payment is to be calculated. Bumpass v. Timms, 3 Sneed, 459. So also the time from which the statute of limitations begins to run. Montague v. Perkins, C. B. 1853, 22 Eng. L. & Eq. 516.

(m) See post, chapter on Lost Notes.

(n) De la Courtier v. Bellamy, 2 Show. 422; Hague v. French, 3 B & P. 173; Giles v. Bourne, 6 Maule & S. 73, 2 Chitt. 300. In Powell v. Waters, 8 Cowen, 669, it was held, that a note when delivered takes effect from its date by relation. So also Snaith v. Mingay, 1 Maule & S. 87; Barker v. Sterne, 9 Exch. 684. Hence a note dated on Sunday, but delivered on a week day, is valid. Lovejoy v. Whipple, 18 Vt. 379; Aldridge v. Branch Bank, 17 Ala. 45; Drake v. Rogers, 32 Maine, 524. See Clough v. Davis, 9 N. H. 500. Where a statute made certain kinds of promissory notes, issued after a given day, void, it has been held that the maker may prove a note dated before that day to have been delivered after it Bayley v. Taber, 5 Mass. 286.

(0) Sinclair v. Baggaley, 4 M. & W. 312; Anderson v. Weston, 6 Bing. N. C. 296; Roberts v. Bethell, 12 C. B. 778.

VOL. I.-D

the earliest day at which it can be shown that the holder, or some one from whom the holder derives title, had possession of the paper.(p) For where a note is in possession of a payee, the law will presume that it was delivered to him in accomplishment of the purpose for which it was written. (q) But this presumption is always open to rebutter.(r)

From the presumption of law in favor of possession, a promissor is bound to pay a note when due, in whosever hands it may then be, unless he can show that the holder has no legal right to it; for without this proof, he must presume, as the law presumes, that there had been a lawful delivery of it to the holder:(s)

It has been doubted whether a delivery which gives no interest in the paper can give title or authority to sue it in the name of the holder. We think it can; and that a plaintiff may recover

(p) Camp v. Tompkins, 9 Conn. 545; Woodford v. Dorwin, 3 Vt. 82; Clark v. Sigourney, 17 Conn. 511; Richardson v. Lincoln, 5 Met. 201.

(9) See Woodford v. Dorwin, 3 Vt. 82. In this case it appeared "that in the first of the year 1820 Samuel Hurlburt, Canfield Dorwin, and T. M. Dorwin formed a copartnership in trade, which continued until the 1st of April, 1821, when they dissolved, and settled up their concerns as between themselves. Hurlburt left the country previous to 1828, but at what particular time did not appear. When he left, he deposited his papers in a box, and made it fast. In this box, it is said, the note in question was deposited. The 9th of May, 1828, Hurlburt addressed a letter to J. McNeil, in which it appears that Hurlburt and the Dorwins had money of Jerusha Woodford (one of the plaintiffs), and that the note in question would be found in the box. The two letters which the plaintiffs contend contain evidence of a new promise, or acknowl edgment of the debt, are ambiguous: it does not distinctly appear that the money, which he says was borrowed of Mrs. Woodford, formed the consideration for the note, though it may be inferred. In the first he says: William has written me that Dorwins refuse to do anything about the note signed by them with me to Mrs. Woodford. I have no distinct recollection about my settlement with Dorwins,' etc. Again: 'I had none of the $280 note you went after, which is in with your note in a box nailed up.' He then gives assurances that he will secure the plaintiffs and pay all he owes them shortly. In the other, of December 15, 1828, he says: Some time or other Messrs. C. & T. M. Dorwins and I, had some money of Mother Woodford, for our company's use, and she not wanting it, we kept it until we dissolved; and he says I was to pay that particular debt. and he the others.' At the trial before the county court, the jury were instructed, that there could be no recovery on the note, as it did not appear to have been delivered by the firm to the plaintiffs or any other one, without which the contract was not complete." And the Supreme Court said they were satisfied that the note ought to take effect from the delivery; and as the firm had then long been dissolved, it had no binding effect whatever upon this defendant. Therefore, the judgment of the county court must be affirmed."

་

(r) Woodford v. Dorwin, 3 Vt. 82; Vallett v. Parker, 6 Wend. 615.

(s) Griswold v. Davis, 31 Vt. 390.

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if he produces the note at trial, because it will be presumed, in the absence of evidence to the contrary, that he recovers for the actual owner. We say, therefore, that it is quite enough to maintain the suit, that the owner delivered it to the present holder and plaintiff, for the purpose of an action, if this be not done fraudulently, or to the injury of the defendant.(t)

The presumptions in favor of possession, and the burden of proof which they create, will be more fully considered in a future section.(u)

A note, as well as a deed, may be delivered as an escrow, and the law of escrows is substantially the same in both cases. But the liability of the maker or indorser begins on the happening of the event, or the performance of the conditions for which it was delivered to the depositary, without any actual delivery by him. to the promisee. (v)

A note cannot be delivered directly to the promisee, to be held by him as an escrow. (w) And if it be delivered by the promisor only as an escrow to a depositary, and is by him wrongfully disposed of, and passes into the hands of an innocent holder for value, the fact that it was delivered as an escrow will be no defence against the holder.(x)

(t) Austin v. Birchard, 31 Vt. 589.

(u) For cases on this subject, see Paterson v. Hardacre, 4 Taunt. 114; Solomons v. Bank of England, in notes to 13 East, 135; King v. Milsom, 2 Camp. 5; Cruger v. Armstrong, 3 Johns. Cas. 5; Conroy v. Warren, 3 Johns. Cas. 259; Aldrich v. Warren, 16 Maine, 465; Munroe v. Cooper, 5 Pick. 412; Wheeler v. Guild, 20 Pick. 545. (v) Couch v. Meeker, 2 Conn. 302. See Bradley v. Bentley, 8 Vt. 243.

(w) Badcock v. Steadman, 1 Root, 87. See, however, Jefferies v. Austin, 1 Stra. 674; Goddard v. Cutts, 2 Fairf. 440.

(x) Vallett v. Parker, 6 Wend. 615.

CHAPTER IV.

OF BILLS OF EXCHANGE.

SECTION I.

WHAT THEY ARE.

As a promissory note is a written promise to pay money, so a bill of exchange is a written order for the payment of money. And it has been said that it must contain an order, or direction, and not a mere request as of a favor.(y) But it is difficult to draw a line between some of these cases.

In

There are some particulars in relation to damages, protest, &c., to be considered hereafter, in which the law of bills of exchange is regulated by statute. Even here, however, the statute is little more than a confirmation or equalizing of custom. all other respects the law of bills of exchange is strictly a branch of the law merchant, lex mercatoria, invented and practised by merchants, and adopted and sanctioned by courts after it had become the known usage of merchants, and because it had become this usage. It is, therefore, peculiarly adapted to the wants and use of a mercantile community, or rather of that mercantile public, which, existing all over the world, by their mutual intercourse and the relations and connections growing out of it, constitute in some degree one community, embracing members of various, of distant, and sometimes even of hostile nations.

The bill of exchange is the principal instrument for the transfer of money from place to place. In this respect, it is greatly superior to the promissory note. If, for example, a merchant in New York owed, for goods purchased, one thousand pounds to a merchant in London, he might send him that money in gold or silver; or he might find some one in New York to whom some

(y) See Little v. Slackford, Moody & M. 171; Ruff v. Webb, 1 Esp. 129.