contributions to the subject in which we are all concerned. It is very gratifying to find they have interested you since their delivery has been a very great pleasure to me, in the discussion of these questions before so learned and critical a body. I have not considered that I possessed any gifts as a law lecturer; such experience as I have had, being confined to instructions to juries, a species of lecture addressed to purely involuntary listeners, whose appreciation of fine legal distinction is a fiction still indulged in by the law. The favor, therefore, which you have shown to remarks hastily prepared with the object of entertaining as much as instructing, I feel to be complimentary in the highest degree.

JOSEPH F. DALY.

VERMONT SIDE JUDGES.

The good old state of Vermont still retains the assistant or side judge and the County Court bench is occupied by two side judges and one judge of the Supreme Court. The side judge recalls the time when jurors came from the vicinage and were chosen because of their knowledge of the case and parties. No legal training is necessary for the office; the two must come from the county and are usually elected from the farming class. As the vote of any two on the bench carries a point, many odd things happen during the course of trial, especially in divorce cases, and consequently the side judge is not beloved by the profession.

At a recent will contest, one of the side judges slept complacently in his chair while counsel were engaged in a tilt over the admission of a former will as evidence. He was awakened only when his vote was necessary and at once settled back for another nap. After court, one of the counsel said, "Yes, we've got 'em and don't like 'em, but they feel the honor and as a rule do what the judge tells them to do. Then, too, they gave us something to joke about."

A year or two ago, the members of the state legislature during a slack spell concluded to enliven matters by holding a mock session. One of the first resolutions was that side judges be made of bass-wood and painted in colors suitable to the decorations of the several courtrooms of the state. A lawyer spoke strongly against the resolution contending that the present side judge was fully as good as bass-wood and saved the paint. The resolution was lost.

THE NEGOTIABLE INSTRUMENTS LAW:

A REPLY TO THE CRITICISMS OF PROFESSOR James
BARR AMES.

BY JOHN LAWRENCE FARRELL,

OF THE NEW YORK BAR.

In the December number of the Harvard Law Review appeared an article by Professor James Barr Ames, dean of the Harvard law school, which severely criticises many of the provisions of the Negotiable Instruments Law that became a part of the law of New York in 1897 and was adopted in its entirety by many other States. Professor Ames says that it is much to be regretted that the commissioners did not realize the necessity of abundant criticism of the proposed code before submitting it to the legislature.

The act in question was the result of conference among the commissioners appointed by the legislatures of several states for the promotion of uniformity of legislation in the United States. It was the first general effort in this country to codify the law. On account of the nature of the subject of commercial paper, which had been selected as the initial step, it was deemed wise and prudent that abundant opportunity for the expression of views and opinions should be given, not only to judges and members of the profession generally, but also to bankers and other business men of prominence in the commercial world, so that the framers of the act might have the benefit of their knowledge and experience. Therefore, after the proposed draft had been prepared by the sub-committee appointed for that purpose, copies were printed and widely distributed and criticism and suggestions invited, and it was only after each section had been discussed in all its details and every point brought out by such criticisms and suggestions considered thoroughly, and a corrected draft prepared, that the bill was

finally reported and passed. I think, therefore, that Professor Ames is hardly justified in saying that sufficient opportunity for criticism was not afforded.

Perfect codification is, of course, practically impossible. In attempting to codify the law on any subject the draftsman will encounter points which are doubtful and which must be settled and determined by him before proceeding further. Again, although the law as laid down in the numerous decisions covers a wide area, gaps will appear here and there, which the framer, if he contemplates that the code shall be complete, must span. The theory of our law is that there exists a complete set of principles applicable to every imaginable state of facts, and no matter what the subject, the law on which is sought to be codified, gaps will appear, due to the fact that the particular combination of circumstances had not theretofore presented itself. In such a case, the draftsman must necessarily lay down the law arbitrarily, without judicial precedent for guidance, and the language used in such instances must, in the very nature of things, be literally construed, consistently, of course, with the principles of the common law and the law merchant.

Except in the above-named instances, the provisions of a code should be interpreted in the light of judicial precedent, on the theory that codification is simply a reproduction of existing law, representing merely improvement in form, while leaving the substance unchanged.

In a work of this kind, brevity, without sacrifice of accuracy, is the great desideratum, but it is expected by the framers that the test as to its accuracy shall be applied by those learned in the law. In the course of his criticism, Professor Ames has, in many instances, interpreted the language of the sections literally, instead of taking a natural, reasonable view of its import, measured by his knowledge of the common acceptance of the phrase or term by the legal profession. In other instances his objections appear to be due to misapprehension or oversight or is the result of giving undue weight to certain decisions which seem to support his contentions, as against others of greater weight which sustain the opposite. Again, codifiers cannot provide for every possible contingency, as that would

require perfection, and the perfect man is out of place on this sphere; his home is above.

Much as I may dislike to disagree with so eminent an authority as the dean, himself the author of a well-known work on commercial paper, I cannot consistently allow his attack upon the Negotiable Instruments Law to pass unchallenged, knowing as I do that the knowledge among the profession in general that many so-called defects therein had been pointed out by so high an authority as he, would cast a cloud upon it and re sult, perhaps, in amendments being made thereto; and once the process of amending is begun there is no telling when or where it will end.

I shall briefly set out the several sections or sub-sections against which his criticism is directed, and at the same time point out wherein I believe he has overlooked certain points or decisions or has placed an improper construction upon the language.

SECTION 3-2 provides that an order or promise is not rendered conditional by the addition of "a statement of the transaction which gives rise to the instrument." Professor Ames inquires what these words mean. The clear meaning is, a

statement of the transaction which is the consideration for the giving of the instrument; but in the case supposed by the dean, the words "given as collateral security for A's debt to the payee," on their face show that they do not represent the consideration for the note, which is given merely as collateral security, and upon payment of the debt by A, the instrument would cease to have any binding effect.

Mr. Crawford, the draftsman, says that the subsection applies to the case of a note containing a statement that it is given for a chattel, title to which remains in the owner until the note is paid. As a basis for criticism, Professor Ames names three states the courts of which, he says, hold that such a note is not negotiable and that therefore this subsection would change the law if Mr. Crawford's construction be the correct one.

It must be expected that in attempting to codify the law, so as to make it uniform throughout forty-five states, each of which has heretofore had its own laws and in the interpretation of which

a diversity of opinion often existed even among the judges of the several courts of each state, there must necessarily be some conflict, but the principle "the greatest good to the greatest number" must prevail if the beneficent effects and the great convenience of having the whole of the general principles of the law on that subject embodied in a single act of two or three hundred sections, are to be enjoyed, and to that end each of the states should be willing to make some concession for the common good.

SECTION 36—2 and 3. An indorsement is restrictive which either "(1) constitutes the indorsee the agent of the indorser, or (2) vests the title in the indorsee in trust for or to the use of some other person." Professor Ames suggests that inasmuch as the "agent of the indorser " has the right, under section 37, to bring suit in his own name on the instrument, for the benefit of the indorser, he is in reality a trustee and not a mere agent, and that therefore the two subsections should be consolidated as follows: "An indorsement is restrictive which vests the title in the indorsee in trust for the indorser or some third person."

But an indorsement which constitutes the indorsee the agent of the indorser is but the creation of a power and not a contract of indorsement. The indorser retains title and The indorser retains title and may reclaim the instrument at any time before collection, the indorsee being a mere agent to receive or enforce payment, and the authority given him by section 37 is not at all inconsistent with his position as agent, being deemed within his delegated power. And in many jurisdictions he is allowed to sue in his own name. This is on account of the great favor shown by the law to commercial paper.1 Of course there is always more or less of a trust relation between an agent and his principal, but the agent is not a trustee in the strict sense of the term, as where one holds the legal title in trust for a cestui.

Where the indorsement is from A to B for the use of C, it is clearly apparent that A intended to and actually did part with the title when he made the indorsement, and B at once became vested with the title in trust for C.

1 Boyd v. Corbitt, 37 Mich. 52; Moore v. Hall, 48 Mich. 143; Wilson v. Tolson, 79 Ga. 137. See also Lawrence v. Fussell, 77 Pa. St. 460.