only more conservative than the English act, but it is so laid down in the text-books. As to the doctrine of the illustration itself, to wit, that the estate of one deceased is regarded as a fictitious payee, the only point about that was that it was convenient in such cases to use a fictitious name.

"How far afield a figure sometimes leads."

Is section 40 inconsistent with sub-section 9-5?
Sub-section 9-5 reads as follows:

"The instrument is payable to bearer when the only or last indorsement is an indorsement in blank."

Section 34 is:

"A special indorsement specifies the person to whom, or to whose order, the instrument is to be payable; and the indorsement of such indorsee is necessary to the further negotiation of the instrument. An indorsement in blank specifies no indorsee, and an instrument so indorsed is payable to bearer and may be negotiated by delivery."

Section 40 is :

"Where an instrument, payable to bearer, is indorsed specially, it may nevertheless be further negotiated by delivery; but the person indorsing specially is liable as indorser to only such holders as make title through his indorsement."

How, giving the language of section 34 its legitimate effect, there is any repugnancy between sub-section 9-5 and section 40, I have never been able to perceive. Without rediscussing whether the critic was justified in changing the language of section 40, in the first article, or whether the substantive "negotiation" in section 34 applies to the verb "negotiated" in section 40, I much prefer to refer the reader to the full and clear exposition of the whole matter in the new Norton Hornbook, pages 110 to 118. Mr. Tiffany's paraphrase of section 40 on page 116 assumes that the words "indorsed in blank" are equivalent to the words "payable to bearer," and is as follows:

"An instrument which is originally payable to bearer, or which has been indorsed in blank, though afterwards specially indorsed, is still payable to bearer; except as to the special indorser, who on such an instrument, after such an indorsement, is only liable on his indorsement to such parties as make title through it."

But what is the result of this interpretation? In the new Norton Hornbook, not only do 9-5 and 40 stand as good law, but after

1 Daniel, 119; Randolph, 169; Tiedeman, sec. 243.

going over all the cases on pages 116-17-18, and after stating that the application of the rules "is somewhat confusing to the student," Mr. Tiffany sums up as follows:

"The rule is well settled that if a note or bill be once indorsed in blank and afterwards indorsed in full, it will still, as against the drawer, payee, and prior indorsers, be payable to bearer, though, as against the special indorser himself, title must be made through his indorsee."

In other words, Mr. Tiffany finds no inconsistency at all. Subsection 9-5 and section 40 stand in perfect harmony. In fact, one is the complement of the other.

As to section 22, the Dean's claim is that some members of the committee informed him that they interpreted the section differently from the interpretation given in the Yale Law Journal. I can only say that I never heard of any other interpretation, nor was any such intimated when the committee reported to the conference that they found none of the Dean's criticisms tenable.1

Section 29. Accommodation Paper. One hardly knows what language to use in characterizing the serene self-confidence with which the Dean reiterates his conviction that everybody is wrong in defining accommodation paper as paper without consideration. Having shown in the answer that not only all the cases, all the text-writers, and all the encylopedias, the law dictionaries, and the ordinary English lexicons, are against him, and all give the same definition as the Negotiable Instruments Act, his only reply is that "the conference erred in good company." It is the Dean against the world. Therefore so much the worse for the world. This eccentric heresy of the Professor makes his illustrations referring to accommodation parties utterly meaningless. The contestants are not using the same yardstick.

The original criticism on section 34 was "that it nowhere stated that an indorsement is an order, and nowhere defined the difference between a guaranty and an indorsement." Our answer was that it was for the court rather than for a code on negotiability to settle questions outside of negotiable instruments. The new criticism is that "it is unfortunate that an excellent opportunity to unify the law was neglected." Yet in his first note the Professor prides himself on the fact that the adoption of his proposed amendments would shorten the act by something more than a dozen lines. One ventures to say that if this "excellent opportunity to unify

1 For the fair interpretation of section 22 see the new edition of Norton's Hornbook, 220, and note 15 therewith.

the law" by laying down the law of assignments and guaranty were embraced, and the omissions which the Dean recommends at the end of his first article were also added, the Negotiable Instruments Law would have contained fifty instead of thirty-six pages.

Section 37 is an exact copy of the English Act. The fact that no trouble has arisen under it in England sufficiently indicates that the immunity the Dean claims for the solvent indorser "A" does not exist. Equity would take care of that.

Section 64. Anomalous Indorsers. One must answer the algebraic illustration of the supposed misapprehension of the present writer on the Dean's first criticism by giving a Roland for an Oliver. For the lamentable fact is that the Dean seems to have misapprehended the answer already given and the reasons stated why his first proposed substitute would defeat the purpose of the act. In the careful examination of this section by Mr. Tiffany,1 the editor says, after referring to the previous "chaos of conflicting authorities," and speaking of the rule laid down in the Negotiable Instruments Law, as "an important step toward uniformity on this subject," "that it has the further advantage that it abolishes so-called 'presumptions,' lays down definite rules of liability; and that it probably gives expression as nearly as possible to the actual intentions of the parties in such cases." As the Dean's definition of accommodation paper includes paper for value received, his new illustration has no meaning, if the illustration makes "B" an accommodation indorser.

65-4. The Dean claims the doctrine quoted in the answer from his Leading Cases, that an indorsee without recourse is liable to subsequent holders on his warranty of genuineness, was "a youth. ful indiscretion" committed in his "callow days," and adds that neither now nor then did he ever entertain the heresy that there was any difference between the obligation of a qualified indorser and that of a transferrer by delivery. In addition to former quotations from Daniel and Norton on this subject we beg to refer him to the following quotation from the very able article on Bills and Notes in the 4th American and English Encyclopedia of Law, 2d edition, page 281 :

"Indorsement considered as a transfer of title. (1.) Generally. The liabilities of an indorser as a vendor or transferrer of the instrument are identical with those of a transferrer by delivery, with this exception, that while a transferrer by delivery is liable only to his immediate transferee,

1 Norton's Hornbook, pages 138-143.

an indorser, being a party to the instrument, is liable to all subsequent bona-fide holders."

As both this article and the code were published simultaneously, neither could have borrowed from the other. The critic has no need to blush for a "youthful indiscretion" adopted by four of the best American authorities.2

Sections 70 and 119-4 add nothing to what have already been discussed. Reiteration does not advance the argument.

Section 120-3 declares that a person secondarily liable on the instrument is discharged by the discharge of a prior party. The critic's arbitrary reply to the answer in regard to this section almost eclipses his remarks on section 29. It had been said in answer to the Dean's strictures on section 120-3 that the context clearly showed that his rendering was a misinterpretation of the meaning of that section, that none of the learned authors who have discussed the Negotiable Instruments Act since it was enacted interpreted it as he did, that the commissioners from thirty-two states whose special duty it was, in reporting the Negotiable Instruments Law for adoption, to mention every change, never suggested any change from the existing law in that section, that it was the language generally given in the text-books, and that the ordinary rule of construction of codes reaffirming the common law was never to assume any change unless imperatively demanded by the language used. The only reply to all these points made in the answer is that the Dean entertains a different opinion. Why he should do so he does not inform us, except by reference to the Vagliano case.

8

To be sure the Vagliano case refused to add the words "to the

1 To the same effect is Tiedeman, section 244, note 5; Norton, 167.

2 It may be pardonable to repeat here a note on this section from our answer in the Yale Law Journal, January number, page 93, although that note is perhaps more pertinent to some other sections in which the Norton Hornbook is freely quoted ::

"On this point I have cited chiefly the new Norton Hornbook, on Bills and Notes, just edited by Mr. Francis B. Tiffany, not only because it is one of the ablest and most interesting discussions on this special point, but because the editor seems to have taken most of the new matter in the book equally from the Negotiable Instruments Law and Professor Ames's Leading Cases on Bills and Notes. The preface says: 'The present editor wishes to express his great obligation to Professor Ames, whose Index and Summary at the end of the cases, unquestionably the most important contribution to the subject that has been made in America, he has constantly consulted.' It is, hence, doubly reassuring to note that with so orthodox an authority for 'constant' reference, as the Leading Cases on Bills and Notes, Mr. Tiffany quotes a score of definitions, bodily, from the Negotiable Instruments Law, and so far as I have observed does not seem to disagree with its statement of law on any point."

* Norton, 260 and 308.

knowledge of the acceptor" to the section of the English Act relating to fictitious payees; but why? Because, as the court says in the case of Shipman et al. v. Bank of the State of New York,1 it is apparent the code "intended to make the change and did make the change," but with such extreme reluctance and dissent as to strengthen rather than weaken the doctrine we had cited in Sutherland and Endlich, that in codes restating the common law, "no change is presumed except by the clearest and most imperative implication." In point of fact the Dean practically seeks to read into this sub-section (120–3) the words "by operation of law."

The Dean further claims this paragraph, when interpreted as everybody else interprets it, as meaning "a discharge by the holder," could apply to "no possible case." Then what "possible" harm could it do, except in releasing that extraordinary accommodation indorser, always in reserve, who haply indorsed it "for value received?"

Section 186. But the most truly academical criticism in the whole list is the objection to section 186. The section reads thus:

"A check must be presented for payment within a reasonable time after its issue or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay."

Copied from the English Act, repeated in the text-books since the first edition of Byles on Bills, with no reported case to the contrary, this section, at least, would seem to be solid. But, no! In section 89, treating of notice of dishonor generally, the Dean detects a hidden danger, and insists that under the combined operation of the two sections, the drawer of a check would escape liability if no notice of dishonor were given. To be sure, section 89 also is in the English Act and in all the text-books, but what of that? Section 186, the critic says, taken with section 89, establishes a rule "opposed alike to justice and to well established law." How or why the joint effect of the same two statements of law should be one thing at the common law or the law merchant and totally and mischievously different when put in a code, does not appear. If what the Dean means is that section 186 is orthodox enough, but that section 89 is not sufficiently guarded by its own expression and by sections 70, 114, 185, and other kindred sections (as I believe it is), that raises another very different question not heretofore discussed. Although both the English and American

1 126 N. Y. 318, 335.