The most striking characteristic of both bills and notes at the present day is their negotiability. This quality, however, did not exist at first.20

16 King vs. Hamilton, 12 Fed Rep., 478.

17 Souther vs. Wallace, 20 Nova Scotia, 509; 16 Can. Sup. Ct., 717.

18 Am. & Eng. Ency. of Law, Vol.

IV, p. 105.

19 Chryster vs. Renois, 43 N. Y., 209.

20 "It now becomes necessary to begin again near the same point of departure and trace the gradual recognition of the transferability of bills of exchange. Hitherto we have observed no traces of a custom to make bills of exchange payable to order or bearer. Just when this custom originated cannot be stated with certainty. It embodied a happy thought. That the bill of exchange should become negotiable was indispensable to growing commerce. Hartmann, a late German writer on bills of exchange, states that the first known instance of the endorsement of these instruments occurs in the Neapolitan Pragmatica of 1607. Savary is said by the French writer, M. Nougier, to have assigned it to a later date, to-wit, 1620. In England the law of bills was somewhat less advanced than on the continent, and we have good evidence that bills were never, in England, made payable to order or bearer until after 1622."

"John Marius published, in 1651, a small treatise concerning bills of exchange. It was republished about 1670 with some emendations and additions. In the preface to this edition he says his work is the fruit of twenty-four years' experience as a Notary Public in the Royal Exchange of London."

"It is to be inferred from his preface that the usage and practice concerning bills of exchange were substantially the same in 1651 and 1670, and whatever advances in theory his treatise shows over Malynes's earlier essay (1622) belongs to the period between 1622 and 1651, rather than to the period from 1651 to 1670. This inference is corroborated by what we learn from other sources."

"The striking feature of the bill of exchange in Marius's pages is that words of negotiability have been inserted. He gives us a dozen specimens, all dated 1654. Each contains the words 'to A or order,' or 'to A or assigns.' The idea seems to be that 'or assigns' should be used if the rights consequent upon transfer are likely to be Even today, "while negotiability is the characteristic quality of bills and notes, it is not essential to their validity.21 Non-negotiable instruments may be declared upon as bills and notes,22 have been held to import a consideration,23 and are entitled to days of grace.24 By indorsing such an instrument the payee becomes liable to the indorsee,25 but the latter questioned in England. The other phrase belongs to bills going into foreign parts or drawn in a foreign language."

"Another equally striking feature is that the custom of merchants now includes bills drawn in England upon another city within the realm. Marius describes himself as a notary of twenty-four years' standing for both inland and outland bills. In 1608, John Trenchant had observed in his arithmetic, printed at Lyons, that real exchange could only take place between cities subject to different lords. Neither does Malynes give recognition to inland bills. Marius takes some pains to vindicate their right to be placed upon the same footing as foreign bills. "A bill of exchange which shall be made for moneys taken up in Edinborough, York, Bristol, Exon, Plymouth, Dover, or any other part of England or Scotland, and payable at London, is in all things as effectual and binding as any bill of exchange made beyond the seas and payable here in England. * * * The inland and outland bills ought to be esteemed of equal worth and the custom of merchants on both equally observed."

"Both classes of bills being made payable to order or assigns, they were now transferable by indorsement, or, as he calls it in both cases, by assignment. He gives the following illustration of assignment by two successive holders: 'Pay the contents on the other side hereof to Mr. Humfrey N., or assigns, value of Mr.

Joseph B., Rotterdam, Oct. 4, 1654. Roger C The second indorsement is briefer: 'Pay the contents hereof to Mr. John D. (Signed) Humfrey N.'

"He carefully states the effect of an indorsement in blank. It was sufficient to pass the title and authorize the holder to write a special indorsement to himself or a receipt in full over the signature.

"The effect of the absence of words of negotiability is stated in these terms: 'If the bill be made payable positively to such a man, and not to such, a man or his assigns, or order, then an assignment on the bill will not serve the turn, but the money in the strictness of the letter must be immediately paid to such a man in person, and he must be known to be the same man mentioned in the bill of exchange, so that the money may not be paid to a wrong party, and so the acceptor forced to pay it twice. And if the bill be made payable positively to such a man as hath been said, such a man's name written on the back side of the bill in blank, is no sufficient warrant for another man to come (as in his name) to receive the money, but the man himself, to whom the bill is payable, must appear in person." Street's Foundations of Legal Liabilities, Vol. II, pp. 354 et seq.

21 Coursin vs. Ledlie, 31 Pa. St., 506.

22 Kendall vs. Galvin, 15 Me., 131; 52 Am. Dec, 141.

23 Arnold vs. Sprague, 34 Vt., 402.

24 Reed vs. Murphy, 1 Ga., 236.

25 Bristol vs. Warner, 19 Conn., 7.

cannot, independently of statute, sue the maker or drawer."26 27

In the case of Arnold vs. Sprague28 the Court said: "It is not essential to the validity of a bill of exchange or promissory note that it should be negotiable. The advantages arising from the negotiability of such instruments were originally the reason why they were held to be exceptions to the general rule of the common law that cases in action were not assignable; hence it was once considered that negotiability was essential to such instruments. But for a long time, both in this country and in England, it has been held, and is now settled law, that they need not be negotiable."