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Annual report of the Pennsylvania Bar Association, Volume 16 online

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in 1908 for three years.

Zane, Andrew (ist J. D., Philadelphia), born in 1835; died
May 2, 1910. Admitted to the Bar February 14, 1857.
He took an active part in local politics, and in the
"eighties" represented the Fifteenth Ward in Select
Council for two terms, and in Common Council for one
term. His law practice in late years was mostly con-
fined to the Orphans' Court.

The President: What shall be done with this

John M. Harris, Lackawanna: I move that the
report of the Committee on Legal Biography be received

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and filed, and that the thanks of the Pennsylvania Bar
Association be extended to the Provost and Trustees of
the University of Pennsylvania as well as the Dean and
Faculty of the Law School for continued courtesies extended
to this Association in providing room in the Law School
building for the historical collection of the Association.

Duly seconded, and agreed to.

The President: Next in order is the report of the
Committee on Admissions.

John W. Wetzel, Secretary, Cumberland: In the
absence of the Chairman, I beg to offer the following report :


To the President of the Association:

The Committee on Admissions would respectfully
report the following admissions to membership since the last

George J. Campbell Allegheny.

James S. Rogers . ! Philadelphia.

W. A. MacEldowney Philadelphia.

Samuel H. Kirkpatrick Philadelphia.

Henry Spalding Philadelphia.

Charles D. McAvoy , Montgomery.

Benjamin H. Ludlow Philadelphia.

Humbert B. Powell Philadelphia.

J. E. MuLUN McKean.

Herbert E. Stockwell Philadelphia.

George E. Wolfe , Cambria.

William Meade Fletcher Philadelphia.

Charles A. O'Brien Allegheny.

J. Henry Radey Acker Philadelphia.

Arthur E. Hutchinson Philadelphia.

Louis Barcroft Runk Philadelphia.

Alfred S. Miller Philadelphia.

Charles S. Sayre Philadelphia.

Albert H. Ladner, Jr Philadelphia.

Grover C. Ladner Philadelphia.

Jno. William Hallahan, 30 Philadelphia.

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Gibbons Gray Cornwell (reinstated) Chester.

J. RoHRMAN Robinson Delaware.

Peter M. Speer Venango.

Isaac Ash Venango.

Frederick A. Sobernheimer Philadelphia.

Frederick A. Sobernheimer, Jr. Philadelphia.

Cornelius Haggerty, Jr. Philadelphia.

John S. Weller Allegheny.

Hiram H. Keller Bucks.

J. Fred. Martin Philadelphia.

Robert A. Stotz Northampton.

William H. Kirkpatrick Northampton.

William T. Connor Philadelphia,

Thomas I. Parkinson Philadelphia.

Robert Grey Bushong Berks.

Harry J. Dumn Berks.

John M. Strong Philadelphia.

J. Morris Yeakle Philadelphia.

Robert S. Gawthrop Chester.

Arthur P. Reid Chester.

Walter S. Talbot Chester.

Respectfully submitted,

Edward J. Fox,


The President: What is the pleasure of the Asso-
ciation upon this report?

William Harrison Allen, Warren: I move that
the report be received and adopted, and that the gentlemen
named be now elected as members of the Pennsylvania Bar

Duly seconded, and agreed to.

The President: Next in order is the report of the
Committee on Grievances.

Cyrus G. Derr, Chairman, Berks: I beg leave to
present the

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To the President and Members of the Pennsylvania Bar

Your Committee on Grievances has to report to you
in the first place, that death has invaded its ranks and taken
away a cherished member.

We make this record concerning him :

He achieved early and maintained to the last a promi-
nent position at the Bar.

He was many times chosen by the people to fill impor-
tant offices in County and State, and was many times
appointed to high positions of trust, and in all these offices
and positions he served with fidelity, tact, and firmness.

In the military world he shone with particular bril-

He who will read his history back into that matchless
conflict between the highest order of valor and its counter-
part — the war of wars — ^the Civil War — will have to con-
template a bead-roll of honorable deeds.

"He was a soldier fit to stand by the side of Caesar and give

The elements were well mixed in him, and in the
aggregate made up a life in being and achievement round
and complete.

We drop a tear of genuine sorrow at the grave of our
late associate, General John P. S. Gobin.

Your Committee in its last report brought to your
attention a complaint of inordinate sums of money expended
in judiciary campaigns, begetting scandal, and laying the
Judges elected open to suspicion.

Your Association referred the matter back to your
•Committee with instructions to ascertain and report facts
and make recommendations.

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The facts, as your Committee has gathered them, are

Few, if any, judges go upon the bench or are re-elected
without some cost to them in money ; and

There are cases, not many, in which candidates, their
friends and adherents, have in what were regarded the
exigencies of heated campaigns, laid out sums of money
grossly disproportionate to the salary of the office and
unwarranted by the circumstances, creating conditions
replete with unsavory implication and impairing confidence
in the administration of justice.

The elective judiciary system is from the beginning
or soon becomes political, in the sense that the Judges come
to be elected through the organizations of the political
parties respectively.

The party organizations cannot carry on business with-
out money, and this money must be furnished in large part
by the candidates.

It seems to result inevitably that a candidate for judge-
ship coming into the lists must submit to conditions and
pay his share of expenses, and a moderate sum is generally
fixed by rule of the party organization as an assessment
for that purpose.

Beyond this, the cost of judiciary campaigns is uncer-
tain and will vary with local conditions — the size and popu-
lousness of districts, the character of the people, etc.

We think that the attitude of this Association will be
a perpetual menace to judiciary candidates who are willing
to achieve nomination or election by the inordinate use of
money ; but

The question as to whether the expenditures in any
particular campaign were or were not reasonable and law-
ful must in the first instance be left to the members of the
local Bar, who best understand the local conditions ; and

No matter how large expenditures may be, if the
mass of local lawyers can contemplate them without abhor-

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rence and protest, it will be difficult for this Association in
any efficient way to intervene.

It seems to your Committee that unasked-for inter-
ference with such matter on the part of the Association, in
any particular district, excepting under extraordinary cir-
cumstances, would be unwise and likely to be resented as
an intrusion.

The time at which it will become proper for the Asso-
ciation to intervene will be when the local Bar association,
or a considerable number of the members of the local Bar,
shall in an open, or at least a formal, manner present a
complaint and ask for aid.

Your Committee shall at all times stand ready to do
its part with respect to such grievance, and though occa-
sionally for want of matter w^e shall omit making an annual
report, the approaches to this Committee will be kept
always wide open for complaint upon any subject within
our comprehensive jurisdiction, and we shall not hesitate
in proper cases plainly and directly to present matters to the
Association and thereafter to act pursuant to its insructions.

A grievance has been submitted to your Committee,
to the effect that this Association is being used for the pur-
pose of influencing and controlling the selection of Judges.

The fact, as your Committee understands it, is that

Though vacancies on the Bench are largely filled from
the ranks of this Association, it is not true in any sense that
the Association is being used to influence the selection of

Three hundred lawyers, more or less, attend these
annual meetings, not the same lawyers every year, but a
varying aggregation embracing in three or four years per-
haps six hundred lawyers.

These lawyers, if not already distinguished, become
so by their attendance here, and coming in contact with
such and so many lawyers not only enlarges individual

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merit, but advertises that merit to all parts of the Com-
monwealth, so that

When someone is needed to fill a vacancy on the
Bench of an Appellate Court, for instance, the lavvryer,
whether Judge or practitioner, who is well known directly
to six hundred distinguished lawyers and thereby known
indirectly to the entire profession will have an important
advantage over the narrower and home-staying lawyer who
shines only in the limited sphere of his own County.

Your Committee therefore recommends to those who
aspire to hold the scales of justice, and to those who
already holding the scales of justice in the lower Courts
aspire to holding them in the higher Courts, and to all who
have honorable ambition of any sort, that they cherish this
Association, because

"Length of days is in her right hand, and
In her left hand, riches and honor."

F. C McGiRR,

Wm. Righter Fisher,

Wm. M. Hargest,

Cyrus G. Derr, Chairman.

The President : What action shall be taken on this
report ?

J. N. Banks, Indiana : I move the report be received
and filed.

Duly seconded, and agreed to.

The President : Next in order is the report of the
Committee on Uniform State Laws.

Walter George Smith, Chairman, Philadelphia:
The report of this Committee is in print, and I think it
would be well for it to take the same course as the other

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Before any vote is taken, I would suggest that some
errors have crept into the report. In the body of the report
the name "McPherson" should be "J^"^^s" wherever the
word McPherson occurs. In the Bills of Lading Act, in
the Appendix, a part of section 23 has been left out, which
I will refer to more specifically when the matter comes up
for consideration.*


To the Members of the Pennsylvania Bar Association:

The Nineteenth Annual Conference of the Commis-
sioners on Uniform State Laws was held prior to the meet-
ing of the American Bar Association at Detroit, Michigan,
August 19th, 20th, 2 1st and 23d, 1909. The Conference
was attended by representatives from thirty States and
there were present by invitation a number of eminent coun-
sel, representatives of business men*s associations and

After full and careful debate the Association approved
of two Acts of great importance, viz: The Act to make
Uniform the Law of Transfer of Shares of Stock in Cor-
porations and the Act to make Uniform the Law of Bills
of Lading. These Acts are now submitted for the approval
of the Pennsylvania Bar Association, having already been
passed by the States of Massachusetts and Maryland. For
the information of the profession and the members of the
Legislatures who will be called upon to examine these Acts,
a pamphlet has been issued by the Conference of Commis-
sioners, containing the five Commercial Acts approved by
the Conference, viz: the Uniform Sales Act, the Uniform
Stock Transfer Act, the Uniform Negotiable Instruments
Act, the Uniform Warehouse Receipts Act, the Uniform
Bills of Lading Act. Three of these Acts have been ap-

♦The errors referred to by Mr. Smith have been corrected in the
Report of the Committee as now printed.

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proved by this Association, viz: the Sales Act, the Nego-
tiable Instruments Act and the Warehouse Receipts Act,,
and the latter two have become the law of this Common-

The Acts now submitted for the consideration of the
Conference are appended to this report with annotations
approved by the Conference of Commissioners. It is hoped
that the annotations and explanations will make the various
provisions of these Acts entirely clear to the members of
this Association, but emphasis may be given to the recom-
mendations of your Committee by some special reference
to each of the Acts and, first, as to the


In a paper prepared by Francis B. James, Esq., a Com-
missioner from Ohio and formerly Chairman of the Com-
mittee on Commercial Law of the National Conference, and
the present Chairman of the Committee on Commercial
Law of the American Bar Association, it is said:

"In formulatixig this Act, the Committee on Commercial Law
has treated certificates of stock as documents of title and as com-
mercial paper. * * * The Act * * * deals primarily
with a certificate of stock as a piece of commercial paper and, sec-
ondarily, its relation to the corporation issuing it. The funda-
mental principle of the Act is that a certificate of stock becomes the
sole and exclusive representative of shares of stock in a corpora-
tion, and that such certificate shall pass freely from hand to hand,
and that a bona fide purchaser for value of a duly endorsed certifi-
cate shall become the owner of the certificate and the shares repre-
sented thereby against all the world. The essence of the Act may
be said to centre about Section 8 which provides:

'Although the transfer of a certificate or of shares represented
thereby has been rescinded or set aside, nevertheless, if the trans-
feree has possession of the certificate or of a new certificate repre-
senting part or the whole of the same shares of stock, a subsequent
transfer of such certificates by the transferee, mediately or immedi-
ately, to a purchaser for value in good faith, without notice of any
facts making the transfer wrongful, shall give such purchaser an

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indefeasible right to the certificate and the shares represented
thereby.' "

Mr. James then calls attention to the fact that Section
I enforces the principle of negotiability by providing that
a bona fide purchaser for value of a duly endorsed certifi-
cate and the shares represented thereby shall be protected,
notwithstanding the fact that the charter or by-laws of the
corporation itself provide that the shares represented by the
certificate shall be transferable only on the books of the cor-
poration, and he shows further that the other provisions of
the Act are necessary corollaries to the Eighth Section.

By Section 9 the purchaser for value of an unendorsed
certificate is given the right to compel endorsement. The
common law is changed by the provision in Section 16, that
an alteration, whether made with or without fraudulent in-
tent, gives the bona fide purchaser for value the right to
enforce the certificate according to its terms before the
alteration was made.

Section 13 provides that no attachment or levy shall
be valid unless the certificate representing the shares shall
be actually seized or surrendered or its transfer enjoined;
that unless the certificate is actually seized or its transfer
enjoined, the creditor is remitted to a proceeding in equity,
and as a result a bona fide purchaser for value of a duly
endorsed certificate of stock is protected against a secret
levy on the stock and the service of process upon the cor-
poration. It is thought that the corporation is fully pro-
tected by a provision giving it the right to recognize the
registered holder as the sole owner so far as relates to the
right to vote and the payment of dividends.

Section 17 provides a remedy by Court proceedings for
the issue of new certificates.

The same definition of value is given in this Act as in
the other Commercial Acts, viz: "Value is any consid-
eration sufficient to support a simple contract ; an antecedent

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or pre-existing obligation whether for money or not, con-
stitutes value where a certificate is taken either in satisfac-
tion thereof or as security therefor." Objection to this
definition of value has been made in certain quarters, but
the rule adopted by the Conference of Commissioners is
that supported by the weight of authority. It was laid
down by the Supreme Court of the United States in the
case of Swift vs. Tyson, in 1842, i Peters', and, excepting
in New York State Courts, has been accepted by the great
majority of the tribunals wherever the common law is ad-

In pursuance of their purpose to obtain uniformity,
the Conference of Commissioners has adopted the weight
of authority wherever authorities have differed, and it is
confidently believed that the adoption of the Act under con-
sideration will prove a boon to the business community.

The draftsman of the Act was Professor Samuel Wil-
liston, of the Harvard Law School, who submitted his first
tentative draft to the Committee at their meeting in Port-
land, Me., on August 21, 1907. It was considered at the
session of the Commissioners at the same place during that
month. A second tentative draft was considered by the
Committee and Commissioners at their session at Seattle,
Wash., in August, 1908, and a third tentative draft by the
Committee in New York City in April, 1909. A fourth
tentative draft was exhaustively discussed by the Com-
mittee and the Conference at their meeting in 1909. It
comes before the profession and the public now after every
provision has been scanned with the utmost scrutiny and, as
far as human wisdom can make it, it may be considered a
thoroughly consistent Act.


This Act also was drafted by Professor Williston and
has been under consideration in committee and before the
Conference since August 23, 1906, five separate drafts
having been prepared and meetings of the Committee having

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been held at St. Paul, Philadelphia, Portland, Me., New
York and Detroit, attended from time to time by repre-
sentatives of the American Bankers' Association, the Na-
tional Association of Manufacturers, the American Ware-
housemen's Association, the National Board of Trade, the
National Association of Credit Men, counsel for the Mich-
igran Central Railroad, the Pennsylvania Railroad, the New
York, New Haven and Hartford Railroad, the Chesapeake
and Ohio Railroad, and the Colorado and Southern Rail-
road, the Bills of Lading Committee of Railroads in Official
Territory, the National Industrial Traffic League, and rep-
resentatives of the Harvard Law School and the Law
Schools of Columbia University and the University of

The whole subject of Bills of Lading was taken up on
the 13th of September, 1909, at a conference on that sub-
ject held at the Auditorium Hotel, in Chicago, composed
of representatives of very many important industries and
interests. The Conference unanimously endorsed the Act.
Francis B. James, Esq., in explaining the Act, pointed out
to the Conference the general principles that had governed
the Conference considering this subject, saying in part:

"It was necessary for the Committee on Commercial Law and
the Commission to determine, in the first place, in dealing with the
subject of Bills of Lading and formulating a measure, just what
was the Law of Bills of Lading. It was first decided that the law
of bills of lading was not the law of carriers. The law of carriers
defines the relative rights and duties of shipper and carrier, and
is fixed by the common law, except as modified by statute. The
conditions which you find upon the back of bills of lading do not
pertain to the law of bills of lading, but to modifications of the
law of carriers as affecting the relations between shipper and car-
rier. * * * The Commissioners * * * in formulating this
uniform act upon bills of lading have dealt with the bill of lading
primarily as a document of title or a piece of commercial paper.
They have dealt with it only secondly * * * as defining the
relations of shipper and carrier in so far as it directly bore upon
it as a document of title or a piece of commercial paper. * * ♦


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It provides that this document of title may be of two kinds — the
'straight' bill of lading and the 'order* bill of lading. Aided by
Prof. Williston, the Committee on Commercial Law took up a
consideration of the following subjects in formulating this meas-
use : the general principles underlying the law merchant ; the actual
customs and usages of to-day in respect to bills of lading as pieces
of commercial paper; fragmentary State legislation in which efforts
had been made to put the law of bills of lading upon a modern
and up-to-date footing; judicial decisions which misconstrued and
abrogated this legislation; that the order bill of lading was used
largely in the movement of staple commodities; the foreign law
upon the subject; what had been said on the subject by economic
writers; the physical transportation of staple commodities as well
as manufactured articles ; this form of document of title as a piece
of commercial paper in its relation to the whole credit system,
the currency and the banking facilities of the country."

Mr. James then quotes from the work of Mr. Logan
McPherson, entitled "Railroad Freight Rates in Relation
to the Commerce and Industry of the United States," pub-
lished in May, 1909, where the basic principles of the Act
are set forth (p. 190). Mr. McPherson points out that the
"order" bill of lading is an instrument for facilitating com-
merce of the greatest importance; that

"It is not only a certifacate that merchandise is in transit, but
a first lien upon that merchandise, in a way a title to ownership,
and, as fulfilling this function, negotiable. For example, a grain
dealer buying a carload of wheat at the Western field may, and in
the vast majority of cases does, deposit the bill of lading covering
that car in a bank as security for a loan to its value. If that car
goes through to a port where it is sold for export the loan may
not be paid and the bill of lading lifted until the grain is trans-
ferred from the car to the vessel. There is a similar procedure
in the case of other commodities, with bills of lading covering
raw material to the factory and finished product from the factory.
The order bill of lading thus contributes to that fluidity of the
circulating medium, that celerity in the transfer of merchandise,
which are striking achievements and essential requirements of
current civilization."

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It is then pointed out that the essence of the Act may
be said to centre about Section 31, which reads as follows:

"A negotiable bill may be negotiated by any person in posses-
sion of the same, however such possession may have been acquired,
if by the terms of the bill the carrier undertakes to deliver the goods
to the order of such person or if at the time of negot'atlon the
bill is in such form that it may be negotiated by delivery."

it will be seen that this section places the '*order" bill
of lading upon the precise basis of negotiability as a promis-
sory note, check, draft or bill of exchange, and, as Mr.
James points out, the other provisions are necessary corol-
laries of this section.

He shows that by Section 24 in case an "order" bill of
lading is issued there shall be no attachment of the goods.
That by Section 26 there shall be no lien claimed except for
freight charges, storage, demurrage and terminal charges
and the necessary preservation of the goods, unless the
same is endorsed upon the bill itself. But while goods are
free from attachments and other liens, vested rights of prop-
erty are protected. Thus Section 42 provides that nothing
shall limit the rights and remedies of a mortgagee or lien-
holder whose mortgage or lien on goods would be valid,
apart from this Act, as against one who for value and in
good faith purchased from the owner, immediately prior to
the time of their delivery to the carrier, the goods which are
subject to the mortgage or lien; the object of this section is
to make it perfectly clear that nothing in the Act is intended

Online LibraryPennsylvania Bar AssociationAnnual report of the Pennsylvania Bar Association, Volume 16 → online text (page 9 of 46)