indorser, because he says that the authorities are unanimous against the discharge of the party accommodated. Undoubtedly that is so, and it is difficult to see how the law could be construed to cover such a case. The law is intended to set out the legal liability on the instrument as such, in the due course of commercial transactions. It could never be held to mean that a party who had paid money for another's accommodation could not, at law, if not on the instrument, recover it back. That is a matter between the parties, entirely outside of the effect of the instrument in the hands of a holder.

Sec. 175 is the same as in the English Act, and whatever may have been the difference in English decisions, it was, doubtless, deliberately adopted, and certainly it seems to be just. One who pays for the honor of the drawer is as much an accommodation party as the accommodation acceptor and has no equity superior to that of the latter. But even if Mr. Chalmers and Mr. Crawford are wrong in preferring the law of Lords Kenyon and Erskine to that of Lord Loughborough, and Malins, V. C., now that Lord Kenyon's ruling is the law of Great Britain, and has been followed in several of the States (see cases cited in note 2, page 499, vol. 4 of second edition of Am. & Eng. Ency. of Law) and as uniformity is one of the main objects of the Negotiable Instruments Law, no mistake is made in leaving Sec. 175 as it stands.

Sec. 186. The objection is that, under Par. 89, upon presentment and dishonor notice must be given to the drawer of a check or he will be discharged. Suppose it is so, technically, with reference to the check itself. What is the harm? The debt is not discharged, except for laches. The holder can sue on his debt just the same as he could have done before the check was given. In some States a check is not held to be enough of a negotiable instrument to sustain an action. It is held as an order, with no promise to pay. The section seems to be harmless in any view.1

1 One would like to accept the challenge on page 244 in the Dean's article on the true theory on which a code on negotiable instruments should be made. Although this to be sure is rather a criticism of Chalmers and Herschell, Selborne and Bramwell, than of Mr. Crawford and the Conference. One would also like to explain why the subject of "Conflict of Laws " and some other subjects suggested by the Dean as omissions, "marring the symmetry of the new code," were properly omitted in so short and compact a statute, which it was hoped would be adopted by all the States and so leave much less inter-State conflict. But the space given me does not permit.

So much by way of comment on the criticisms of the Dean. It is quite possible that on some of the more technical and academic criticisms we have above discussed, the weight of authority or the true theory of the Law Merchant may be on the side of the critic. But let any candid reader carefully go over the "salutary changes" and "settlements of controverted questions", (and he might have added twice as many more) so admirably stated by the Dean in the commencement of his article, and the defects he assumes (if they are defects) are like spots on the sun. It takes an expert to see them, and he must use glasses at that.

In conclusion, our critic remarks that “if the preceding criticisms are well founded, the errors and imperfections in the Negotiable Instruments Law are so numerous and so serious that, notwithstanding its many merits, its adoption by fifteen States must be regarded as a misfortune." May we not say in reply that if the Dean's criticisms are not well founded, especially if, in fact, they have no practical basis at all, its speedy adoption by all of the States would be, as Lord Herschell has expressed it, “a boon to the commercial communities of both nations."

The critic relieves the severity of his adverse conclusion by stating that the Commissioners made a mistake in not securing an abundance of competent criticism, both public and private, from widely different sources, before issuing with their sanction the final draft of the proposed law. It is enough to state in reply that no statute in the English language, so far as I know, has received a tithe of the elaborate work laid out on the Negotiable Instruments Law. I have described before in this journal (6 Yale Law Journal, February, 1897, page 132) how the preparation of the original law involved the work of more than one hundred trained lawyers, the coöperation of the mercantile community for years in its evolution, and its critical consideration by both Houses of Parliament. In this country, it has had the criticism of lawyers in the Commissions from thirty-two States, who had it in consideration for more than a year during its preparation, and of leading text writers and teachers on the subject of bills and notes, including from Massachusetts alone Professors Bigelow, Williston, and Bennett, the well-known law writer, Leonard A. Jones, and the author of " American Statute Law," Mr. F. J. Stimson.

Six months before its adoption, copies were sent to many of the law schools (it was supposed to all), and to all of the known writers on bills and notes in the country. It has been adopted as

a text book in several law schools. It has been recommended for adoption by the Supreme Courts of South Carolina and Rhode Island in their opinions, before it was adopted by their Legislatures, and so far as I know it has yet to meet its first adverse criticism from any of the Courts in the seventeen extensive jurisdictions where it has been adopted. It has been critically examined and thereafter recommended by the very able committees of the New York City Bar Association and the Pennsylvania Bar Association, and by the Judiciary Committees of over twenty States. With this unqualified indorsement of its value, is it unreasonable to anticipate its acceptance before many years by all of the States of the Union?

But wherever passed, it should be passed without any alteration whatever, exactly like the original code recommended by the Commissioners, word for word. Otherwise, the discrepancies of supposed uniformity would be almost as bad as the present diversity. Once passed, it should not be changed until some Court of authority has indicated the desirability of a change, or some convention of bankers or merchants has indicated where the demands of modern business require a change.

LYMAN DENISON BREWSTER.

THE NEGOTIABLE INSTRUMENTS LAW.1
A WORD MORE.

BY JAMES BARR AMES.

UNDER ordinary circumstances Judge Brewster's "Defense of the Negotiable Instruments Act" in the Yale Law Journal for January would be allowed to close the very friendly controversy begun by a criticism of that Act in the December number of this REVIEW. But it is so much wiser and simpler to avoid the commission of legislative errors than to correct them subsequently that the writer deems it his duty to add to his former paper this short supplement by way of meeting some of the arguments of the learned Chairman of the Committee on Uniform Laws, and of reinforcing some of his own criticisms.2

As to the objections to sections 20, 36-2 and 3, 49, 66, 68, 137, and 175 it seems unnecessary to say anything more than that his criticisms still seem to the writer to be valid. In dealing with the other sections criticised, he will follow the order of the Act.

By SECTION 3-2 an order or promise is not rendered conditional by "a statement of the transaction which gives rise to the instrument." These very general words, Judge Brewster tells us, were intended to cover the specific case of a "chattel note," that is, a note stating that it " is given for a chattel which is to be the property of the holder until the note is paid." He tells us further that this subsection could not apply to a note containing the words "Given as collateral security for A's debt to the payee," because such an instrument “contains notice on its face that it is not an unconditional promise to pay." But that is the precise ground upon which "chattel notes" are held to be non-negotiable in Massachusetts. In Sloane v. McCarthy, Field, J., said: "The obligation of the defendant to pay the money is in legal effect

1 Reprinted from 14 Harvard Law Review 442.

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2 Since the sections criticised and the criticisms must stand or fall upon their intrinsic merits or demerits, any allusion to the critic's qualifications by reason of his previous training or experience would seem to be irrelevant. But since the learned Chairman draws therefrom the inference that "a fulness of expression amounting to prolixity" would be demanded, in order to give effect to the writer's strictures upon the Act, it is right to say that the adoption of his proposed amendments would shorten the Act by something more than a dozen lines. 8 134 Mass. 245, 246.

conditional upon the title vesting in him when the money is paid in full, and this condition appears on the face of the contract." The learned Chairman demonstrates, therefore, by his own reasoning, that this subsection must fail to work in the very case for which it was framed.1

SECTION 9-3. Fictitious payee. In his criticism of this provision the writer tried to make it clear that, as a matter of actual experience, one who makes an instrument payable to a fictitious person always indorses it in the name of that person before issuing it, and that such an instrument is in effect, though not in form, the same as one payable to the order of the drawer or maker. By the Revised Statutes of New York, of 1830, a note payable to the order of the maker was declared to be payable to bearer, and was negotiable by delivery merely, without indorsement. This legislation was copied in at least nine states. But it has been repealed in New York, North Dakota, Oregon, and Wisconsin by section. 184 of the Negotiable Instruments Law, which declares that a note payable to the maker's own order "is not complete until indorsed by him." The recommendation of the writer is that a bill or note payable to the order of a fictitious person be dealt with in the same way by enacting that such a bill or note, when indorsed by the drawer or maker in the name of the fictitious person, but only when so indorsed, shall have the effect of paper payable to the order of, and indorsed by, the drawer or maker. Suppose two notes, one payable to the order of a fictitious person and one payable to the order of the maker, but neither of them indorsed, to be lost or stolen and to come to the hands of an innocent purchaser. Where is the logic or the justice in a statute which makes the maker liable in the one case, but not in the other? 3

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1 It may be, as the writer believes it to be, an error to regard a "chattel note as a conditional promise. But courts which commit this error will probably agree with Judge White, the only judge who has passed upon section 3-2, that this provision "has no application" to such a note. On this point Judge White's opinion was not impeached by the reversing opinion in 50 N. Y. Ap. Div. 66.

2 Rand. Neg. Pap. (2d ed.) sec. 153 n., 401.

8 If Judge Brewster's startling suggestion that notes payable to the order of unincorporated associations or the estates of deceased persons are payable to bearer by force of this section 9-3, this provision is far more mischievous than the writer had supposed. Is a note payable to the order of a joint stock company unincorporated, or to the order of John Smith & Co., for a partnership is an unincorporated associa tion, payable to bearer? This is incredible. There is a dictum in Lewisohn v. Kent, 87 Hun, 257, that a note payable to the order of the estate of A is payable to bearer. But surely it is a perversion of language to call the payee in such a note a fictitious or non-existing person. In Shaw v. Smith, 150 Mass. 166; Peltier v. Babillon, 45 Mich.