It was suggested in several cases in the latter part of the eighteenth century that the requirement of consideration was for the sake of evidence only, and that therefore written contracts needed no consideration.7 This notion, however, was promptly overthrown by the House of Lords which held that "if contracts be merely written and not specialties they are parol and a consideration must be proved;" 8 and except as a consequence of statutes, it is everywhere law that the same rules of consideration apply to written as well as to oral contracts.9

In some States which have by statute changed the rules of the common law in regard to sealed instruments, written contracts have been partially elevated to the position of specialty agreements.10

4 In Ward v. Goodrich, 34 Col. 369, 82 Pac. 701, 2 L. R. A. (N. SO 201,114 Am. St. Rep. 167, the court said: "white it is settled that the promising to do, or the doing of that which the promisor is already legally bound to do, does not as a rule constitute consideration for a reciprocal promise, or support a reciprocal undertaking given by the promisee, it by no means follows that such promise may not be enforced against such promisor by the promisee, although its enforcement compels the performance of that which was already a legal obligation."

5 Yerkes v. Richards, 170 Pa. 346, 32 Atl. 1089; Bowker v. Harris, 30 Vt. 424.

6Detroit R. Co. v. Forbes, 30 Mich. 165.

7 This suggestion was first made by Lord Mansfield in Pillans v. Van.

Mierop, 3 Burr. 1663. Lord Mansfield was trained in the Civil Law; and the Common Law doctrine of Consideration was evidently distasteful to him. This is shown not simply by his suggestion in regard to written contracts but by his support of the doctrine of moral consideration. The suggestion in Pillans c. Van Mierop was followed in Williamson v. Loan, Chitty on Bills (9th ed.), 75 n. Langdell Cas. Coct. 186.

8 Rann v. Hughes, 7 T. R. 350, n. (a). See also Brown v. Adams, 1 Stew. (Ala.) 51, 18 Am. Dec. 36; Cook v. Bradley, 7 Conn. 57, 18 Am. Dec. 79; Thacher v. Dinsmore, 5 Mass. 299, 4 Am. Dec. 61; People v. Shall, 9 Cow. 778; Clark v. Small, 6 Yerg. 418; Bev-erleys v. Holmes, 4 Munf. 95.

9See cases in this chapter, passim.

Sec.106. The Promises In Negotiable Paper Require Consideration Between A Promisor And His Immediate Promisee

The rule of the common law was well settled prior to the enactment of the Negotiable Instruments Law in accordance with the statement at the head of this section, so that a drawer or maker was not liable to the payee if he proved that the instrument was given without consideration;" 11 nor was an indoreer liable to his immediate indorsee; 12 nor either drawer, maker or indoreer even to a remote holder who was neither himself a bolder for value, nor a successor to the rights of such a holder.13 But the promise of an acceptor of a bill even though made subsequent to the plaintiff's acquisition of the instrument is regarded as supported by the consideration received by the drawer.14 The Negotiable Instruments Law 15 was doubtless intended to codify the common law on the subject, and in the main unquestionably does so. There are, however, distinctions both at common law and under the statute between negotiable paper and ordinary simple written contracts with reference to consideration even as between immediate parties. In the first place "every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value," 16 though when evidence is introduced tending to show that no consideration was given some courts hold that the ultimate burden of establishing its existence is upon the holder.17 Further, though any consideration sufficient to support a simple contract is also sufficient for a promise on a negotiable instrument,18 some things are sufficient to support a promise on negotiable paper which are not sufficient consideration for other promises. Thus an ordinary oral or written promise to pay an antecedent debt does not create a new obligation;19 but a negotiable instrument is unquestionably sufficiently supported by an agreement to receive it in discharge of an antecedent debt.20

10See infra, Sec. 218.

11 Holliday v. Atkinson, 5 B. A C. 501, a. c, 8 Dowl. & R. 163; Abbott v. Hendricks, 1 M. & G. 701; Simpson Centenary College v. Tuttle, 71 Iowa, 596, 33 N. W. 74; Loudermilk v. Loo-dernnlk, S3 Ga. 443, 21 S. E. 77; Mader v. Cool, 14 Ind. App. 299, 42 N. E. 915, 56 Am. St. Rep. 304; Klein v. Keyes, 17 Mo. 326; Clement v. Reppard, 16 Pa. St. 111. Many de-canons holding the gift of the maker's own check or note ineffectual are collected in 27 L. R, A. (N. S.) 308. A contrary decision where the court failed to observe the distinction between an attempted gift of the donor's own note and a gift of a third person's note is Harman v. Barman's Est., 167 Ia. 106, 149 N. W. 72.

12Hoopes d. Northern Nat. Bank, 102 Fed. 448, 460, 42 C. C. A. 436; Platt v. Snipes, 43 Ark. 21; Peale v. Addicks, 174 Pa. 543, 34 Atl. 201; Bank of the Ohio Valley v. Lockwood, 13 W. Va. 392, 425, 31 Am. Rep. 768.

13Rubs Lumber, etc., Co. v. Muecup-iabe Land, etc., Co., 120 Cal. 521, 52 Pao. 995, 65 Am. St. Rep. 186; Skinner v. Raynor, 95 Iowa, 536, 64 N. W. 601; Hale v. Aldaffer, 5 Kan. App. 40, 47 Pac. 320, 52 Pac. 194.

14Spurgin p. McPheeters, 42 Ind. 527; National Park Bank p. Saitta, 127 N. Y. App. Div. 624, 111 N. Y. Supp. 927.

15 Sees. 24-28. See infra, Sec. 1146.

Whether an instrument, or a signature on an instrument, given to secure a prior debt of a third party is binding if the creditor makes no agreement to extend or discharge the indebtedness or to forbear action upon it is not clear from the words of the statute.21 If under the statute such a instrument or signature is binding, the law to that extent has been changed; for prior to the enactment of the statute it was clear that after a negotiable instrument had been delivered for sufficient consideration, one who subsequently signed was not liable without new consideration; unless it was part of the agreement, made when the original consideration was given, that he should so sign. Another possible distinction from ordinary simple contracts should be observed. Whatever may be the rule in regard to such contracts as to the person from whom consideration must move, there is no doubt that an obligation upon a negotiable instrument may be supported by consideration received by the obligor from some one other than the obligee,23 as well as by consideration furnished to some one other than the obligor.24

16 N. I. L., Sec. 24, infra, Sec. 1146; Garter v. Butler, 264 Mo. 306, 174 S. W. 399; First Nat. Bank v. Stallo, 160 N. Y. App. Div. 702, 145 N. Y. Supp. 747; Murphy v. Skinner's Estate, 160 Wis. 654, 152 M. W. 172.

17 Lombard v. Byrne, 194 Mass. 236, 238, 80 N. E. 489; Connors Bros. v. Sullivan, 220 Mass. 600,108 N. E. 603; Abrahamson v. Steele, 176 N. Y. App. D. 865, 163 N. Y. S. 827; Ginn v. Dolan, 81 Ohio St. 121, 90 N. E. 141, 135 Am. St. Rep. 761; First Nat. Bank v. Paff, 240 Pa. 513, 87 Atl. 841. In these cases the Negotiable Instruments Law was not cited. There are, however, contrary decisions. In re Cbis-more's Est., 175 Iowa, 495, 496, 157 N. W. 139; Finer v. Brittain, 165 N. C. 401, 81 S. E. 462; State Bank v.

Morrison, 85 Wash. 182, 147 Pac. 875; and under Sees. 24 and 28 of the Negotiable Instruments Law it seems clear that whatever the law may have been previously, the burden is now thrown upon the defendant not only of introducing some evidence of lack of consideration, but of ultimately establishing such lack by a preponderance of evidence. See infra, Sec. 1146.

18 N. I. L., Sec. 25, infra, Sec. 1146.

19 Though doubtless formerly it did. See infra, Sec. 143.

20N. I. L. Sec. 25, infra, Sec. 1146; Wallabout Bank v. Peyton, 123 N. Y. App. Div. 727, 108 N. Y. 42; infra, Sec.1922.

21 See In re Thompson, 165 Cal. 290, 131 Pac. 1045, also infra, Sec. 1146, for a discussion of the point.

It has sometimes been supposed that the modern doctrine concerning the requirement of consideration for negotiable paper between immediate parties is an innovation and that formerly a bill or note, like a covenant under seal, needed no consideration even between immediate parties.25 It is clear, however, though the question may not have arisen with sufficient frequency before the nineteenth century to establish the law beyond dispute, the modern rule of law is no novelty. It was stated in 1722, in words that might be repeated to-day.26

22Savage v. First Nat. Bank, 112 Ala. 508, 20 So. 398; Tenney v. Prince, 4 Pick. 385, 16 Am. Dec. 347; Went Coast Co. v. Bradley, 111 Minn. 343, 127 N. W. 6; Howard v. Jones, 13 Mo. App. 606; Bank of Carrollton v. Lat-ting, 37 Okla. 8,130 Pac. 144, 44 L. R. A. (N. S.) 481; Ryan v. McKerral, 15 Ont.Rep.460. See also Crofts v. Beale, 11 C. B. 172.

23See infra, Sec. 114.

24 Bridges v. Vann, 88 Kan. 98, 127 Pac. 604; Seager v. Drayton, 217 Mass. 571, 105 N. E. 461. This is true of ordinary simple contracts as well as negotiable instruments. Underwood v. Lovelace, 61 Ala. 155; Mulcrone v. American Lumber Co., 55 Mich. 622,22 N.W.67. See infra, Sec.113.

25 Blackstone makes a statement in 2 Comm. 446, which is hard to interpret as having any other meaning, and largely on the strength of this Profes-sor Ames believed that the requirement of consideration was a modern innovation. 2Cas. Bills and Notes, 876.

26 Brown v. Marsh, Gilbert's Eq. Rep. 154, two judges there were of the opinion that the consideration of a note "was not enquirable no more than the consideration of a bond." "The other two Judges thought there was a great Difference between a Note and a Bond, notwithstanding the Statute [of Anne which declared promissory notes negotiable like bills of exchange); for in the Case of a Bond, where there were Solemnities of contracting, viz. the Sealing and Delivery, if there was no Consideration, yet if there was no Fraud in obtaining the Bond, the Money was a Gift in Law to the Obligee; but the Note was no more than a Simple Contract, and notwithstanding the Statute says, that the Money shall be due and payable by Virtue of the Note, that only makes the Nate itself Evidence of the Consideration, which it was not before the Statute." The