simple, can well ignore the subject; and they will be treated of in their logical order. Sections which belong exclusively to this subject will be prefixed by an asterisk (*), which may act as a labor-saver to those who are not interested.

CUSTOM OF MERCHANTS AND THE COMMON LAW

66

We shall use the term common law" as meaning the law of England-that "domestic product which has developed through many centuries, and which stands to-day in all its strength and glory. It is called common " because it is common to the whole country, and is more frequently used in contradistinction to" statute law," or the express and positive will of the Legislature.

"Properly speaking," says Bigelow (Bills and Notes, p. 2), "the law of negotiable instruments is no part of the common law, but is derived from the custom of merchants. During the later part of the Hanseatic League, the commercial towns and cities of England were full of foreign merchants engaged in trade. These merchants brought with them the usages of business on the Continent, whence they had What these foreign merchants brought to England in the way of peculiar usage was negotiability and grace-i.e., the property of circulation, and a short extension of time in ease [accommodation] of the payer."

come.

Aside from these two elements, and the element of consideration (which will be treated

of in its proper place), the law of negotiable instruments in its development to the present day has followed the ordinary course of the English law.

This custom of merchants, with its judicial and statutory additions, has become the law merchant; and, as such, refers to and means the law of bills, notes, and checks.

THE NEGOTIABLE INSTRUMENTS LAW

Previous to October 1, 1897, the law governing negotiable instruments in the United States was practically the law merchant, except as it had been changed by statute. A vast number of decisions from the courts of England and of the United States have fortified it, but in many points the law of England differed from that of the United States, and there was much confusion due to differences between the law as interpreted and enforced in the different States. The law in England was codified into the English Bills of Exchange Act, which went into effect August 18, 1882.

For some years, uniformity of laws has been the cry throughout the United States, and the cry has been heard first in the matter of negotiable instruments. The new law, codified from the common law and the statutes of the States by the commissioners, and largely modeled on the English Bills of Exchange Act, went into effect in New York October 1, 1897, and in that year was adopted by three other States. It has since been adopted in twelve others, making sixteen in all, viz.: Connecticut, Colorado, Florida, Virginia, Maryland, Massachusetts, Washington, Oregon, North Carolina, Utah, Tennessee, Wisconsin, North Dakota, Rhode Island, and the District of Colum

bia. The drafts of the law as enacted in these various States do not differ materially from each other, except in that section numbers may be changed, and section headings introduced, and perhaps some special matters added which are singular to that State.

There have been very few decisions touching the law in New York during the past three years. It is not too much to say that the next few years will see important decisions on the subject, for there are many important changes which must yet receive judicial interpretation before we can be satisfied that the changes are permanent and for the better.

It may be well to state that instruments made before May 19, 1897, when the law was passed in New York, and which have not yet matured, are governed by the old rules of law which obtained previous to that date.

NEGOTIABILITY

Negotiability is the property by which an instrument, or undertaking to pay, is transferred from one person to another in such manner as to constitute the transferee the holder thereof (Sec. 60). In other words, negotiability causes these instruments to pass from hand to hand like money.

A negotiable instrument is one the ownership of which is acquired by every person who takes it in good faith and for value, provided the instrument is such that the true owner could transfer the undertaking therein contained by the simple delivery of the instrument. Properly speaking, a negotiable instrument should pass by delivery only. Custom, as well as statute, has added to this, and said that instruments payable to order, and which therefore require indorsement, are negotiable. While negotiability is a question of law, and for the court to decide, it can be definitely stated that if any other act than delivery, or indorsement and delivery, is required on the part of the true owner, it is not a negotiable instrument. A good illustration of the above may be found in the English case of the London and County Banking Company vs. the London and River Plate Bank (reported in L. R. 20, Q. B. Div. 232), the facts of which