acts define checks to be bills of exchange for the sake of convenience, in point of fact this is not strictly true.1 And the courts doubtless, in construing the Negotiable Instruments Act, would recognize the distinction between the two, and construe section 89 accordingly, with reference to the ordinary law on demand paper and checks, and practically hold the drawer primarily liable, as he is, in fact, the principal debtor. But however that may be, instead of section 186 aiding the supposed unjust effect of section 89, in discharging the drawer of a check if notice of non-payment is not given, its effect is exactly contrary to that.

For, since the only penalty for delay in presentment (186) is the loss occasioned by delay, and not a discharge, the natural inference therefrom would be that the same exceptional exemption as to checks would continue in case of non-payment, namely, that the only penalty would be the loss occasioned by the delay, and not any absolute discharge, as claimed by the Dean. It is sufficient here to add, in regard to both sections 186 and 89, that they have been fairly tried and worked well together.

Considering the enormous business in checks every day, the fact that in twenty years' experience in England and four years in four states in the Union, no impecunious drawer of checks has ever been crafty enough to claim a discharge of his obligation in this ingenious way would seem of itself to refute the strained construction of the Dean. But if a right of action was lost on the check by the effect of the combined sections, the drawer would be liable on the original debt.2

Lyman Denison Brewster.

APPENDIX.

LETTER OF MR. ARTHUR COHEN, Q. C., ON THE NEGOTIABLE INSTRUMENTS

LAW.8

5 PAPER BUILdings, Temple, London,

March 11, 1901.

DEAR SIR, The following are some observations which occur to me in reference to some of Professor Ames's very ingenious and able criticisms of the Negotiable Instruments Act in the HARVARD LAW Review.

1 See 5th Am. & Eng. Enc. of Law, page 1030 and note 2; Norton, page 408, sec. 151. 2 2 Randolph, 1554; 2 Daniel, sec. 1120; Van Schaack on Checks, 164, who says "the holder is agent of the drawer," and on page 25 "the drawer is the principal debtor; " Tiffany's Norton, 418, which cites on this point, among many other cases. Bull v. Bank, 123 U. S. 105.

This letter was received after the above article went to press.

First, Section 3 provides that an order or a promise is not rendered conditional by the addition of a statement of the transaction which gives rise to the instrument. These words were inserted in the English Act in order to provide for cases where the bill or note contains an order or a promise to pay a certain sum "being a portion of a value or order (sic) deposited in security for the payment hereof," or "on account of money advanced for a certain person," and similar cases in which the transaction on account of which the bill or note is given is referred to. Such cases presented themselves in 7 T. R. 733, L. R. 3 Q. B. 753, and other reported decisions. The words in the English Act correctly state what the English law is, and I see nothing obscure, inartistic, or useless in them, nor do I think that any intelligent judge could be misled by them.

As regards section 36-2-3, I do not think that the words used could possibly mislead or present the slightest difficulty to any intelligent person, and as it is by no means easy to determine in what cases an agent is or is not a trustee in the proper sense of the word, I am of opinion that the section ought not to be altered.

Section 9-3 declares "an instrument to be payable to bearer when it is payable to the order of a fictitious or non-existing person, and such fact was known to the person making it so payable."* The section is substantially the same as the corresponding one in the English Act with the exception of the words between asterisks. In Vagliano v. Bank of England, 23 Q. B. D. 260, Lord Justice Bowen says:

"The exception that bills drawn to the order of a fictitious or nonexisting person might be treated as payable to bearer was based upon the law of cstoppel, and applied only against the parties who at the time they became liable on the bill were cognizant of the fictitious character or non-existence of the supposed payee."

The English Act has modified and simplified the law, but the Negotiable Instruments Act has not gone so far as the English Act. I do not think that the section in question will work any injustice, or that there is any sufficient ground for altering it.

Section 9-5. This section is substantially the same as 3 of the English Act. We altered the English law as it stood before the passage of the act. This was deliberately done on the strong recommendation of the bankers and merchants who were members of the committee, and I have reason to believe that the alteration of the law has been generally approved of in the United Kingdom, and there does not seem to have been any opposition to it manifested in the United States.

Section 20. This section certainly alters the law as it exists in England, but I think it very likely that the alteration is an improvement. The wisdom of the rule laid down in Cohen v. Wright has often been doubted. Professor Ames takes one case, that of the supposed principal being a bankrupt. Even in that case it would be doubtful what could be re

covered until the dividend was declared and the bankruptcy concluded; and in the case of the principal not being bankrupt, but being a man in bad credit, the question would have to be left to a jury what amount could properly be recovered from the principal. It may well be held that in actions on negotiable instruments, against a person who professedly acts on behalf of another person, A, it would be inconvenient to allow the former to allege an attempt to prove that probably the whole amount could not be recovered from A. I think the 20th section should be retained, and may be considered as a practical improvement of the law, unless there be reason to suppose that merchants and bankers think it unjust. I agree with Mr. Brewster that much indulgence should not be shown in business to a person who professes to have authority when he is really acting without authority.

As regards section 22, it expresses what Mr. Justice Mellor stated as reported in the 8th of Best & Smith, page 833. I think the section objected to is equivalent to the corresponding section of the English Act. The infant cannot be sued, but he can transfer the instrument so as to enable a holder to sue other persons. Professor Ames seems to think it unjust that persons should be able to retain the negotiable instrument against the infant. I do not see the injustice of this if the infant himself cannot be sued on the instrument. Again, I do not think any intelligent judge could be misled by the wording of this section.

Section 29. This is the same as the 28th section of the English Act, which has given rise to no doubt or difficulty. "Without receiving any value therefor means without receiving any value for the bill, and not without receiving any consideration for lending his name.

Section 68. This section does alter the law, at any rate as it exists in this country. To me it seems very doubtful whether it is not an improvement by reason of its sweeping away certain technicalities. There has always been a tendency in the law merchant to consider contracts which are in form joint contracts as being intended to be joint and sev eral.

Section 137. I am of opinion with Professor Ames that this section is imperfect. It would seem to imply that if the bill be destroyed or not returned accepted within a reasonable time, notice of dishonor need not be given to the drawer. This is not in my opinion the law, and ought not to be law.

I do not think the act is imperfect because it does not contain rules relating to the conflict of laws, any more than it could be considered imperfect because it does not contain rules defining illegality or fraud. The sections in the English Act relating to the conflict of laws were introduced in order to embody the result of certain recent English decisions. I do not know whether the American decisions relating to these questions are sufficiently uniform to render it desirable to embody these results in a code relating to negotiable instruments.

On the whole, I consider the Negotiable Instruments Act a very important and ably framed code. Its style and language seem to me in some respects better than those of the English Act, as being simpler, less technical, and more easily intelligible. I have no doubt it is not perfect. What code is perfect? Whether the very few blemishes which may have been discovered are such as ought to induce states which have not yet adopted the act to require it to be amended, in a few respects, is a question of expediency and public or state policy on which I do not venture to express an opinion.

I am very sorry I have not had time to write more or to put my observations into a better shape.

We are, you may be interested to know, engaged in codifying the law of insurance, and I think the bill will be found to be a useful measure. Believe me, yours very sincerely,

ARTHUR COнen.

HISTORICAL AND PRACTICAL CONSIDERATIONS REGARDING EXPERT TESTIMONY.1

[O one will deny that the law should in some way effectively

putes. The only question is as to how it can do so best. In early times, and before trial by jury was much developed, there seem to have been two modes of using what expert knowledge there was first, to select as jurymen such persons as were by experience especially fitted to know the class of facts which were before them, and second, to call to the aid of the court skilled persons whose opinion it might adopt or not as it pleased. Both these methods exist at least theoretically at the present day, though each has practically given place to the third and much more recent method of calling before the jury skilled persons as witnesses. No doubt, there are good historical reasons why this third method has survived, but they by no means justify its continued existence, and it is, as I conceive, in fact an anomaly fertile of much practical inconvenience.

The first method mentioned above was to impanel a special jury, which in this connection means a jury of persons especially fitted to judge of the peculiar facts upon which the particular issue at bar turns. The practice is certainly old, at least in one instance of like kind, the jury of matrons de ventre inspiciendo. Bracton 2 gives the form of the writ 3 in which it is essentially the same as the actual practice even in this century, in 1838. Moreover, we find in the writ the reason for this peculiar procedure. The legales

1 So far as concerns the attempt to trace the outline of the origin of expert evidence, I must acknowledge my great indebtedness for materials to Professor James B. Thayer, who has so much made the whole subject of evidence his own that no one can come into it without feeling, to a certain degree, a trespasser. It is but fair to say, however, that Professor Thayer is in no sense the sponsor of any of the conclusions in this article, historical or otherwise, and that I do not even know that any one of them would meet with his approval, however grateful to me might be such a result. In regard to the material in Howell's State Trials, I cannot hope that I have found all of it. I have been over all the trials up to 1780 with more or less thoroughness, but cannot, of course, suppose that much has not escaped my notice.

2 De Leg. lib. ii. fol. 69.

3 See, also, for a kindred Roman practice, Dig. lib. xxv. tit. 4.

4 Reg. v. Wycherly, 8 C. & P. 262.