In my last annual address a brief account was given of the National Insurance Convention and its work. It re-assembled in Washington last October and held its final meetings in Chicago from November 12 to 17, inclusive. Although your President and your Committee on Insurance were invited to attend, and did attend and take part in the discussions of the earlier meetings, they were considered as advisory members only, and were not accorded the right to vote upon the measures that were adopted. Of course the result was a loss of interest and a diminished attendance of our members.

The bills that had been prepared by the Committee of Fifteen were not adopted by the Convention until various changes were made during the last meetings in Chicago, when our members were not present. In Minnesota fourteen of the seventeen recommendations of this Convention have, in substance, been enacted into law.

The legislatures of some other states have also adopted some of these recommendations, but I am not able to state which they are. It may be said, in general, that the effect of these bills would be to enlarge the power of State Insurance Commissioners, without providing sufficient additional protection to policy-holders over the insurance companies' investments or their system of business. The failure of this Convention to accomplish better results only emphasizes the necessity for Uniform Insurance laws, especially over life insurance, and it is to be hoped that our Conference will soon undertake this work, especially as the subject is one that is outside the jurisdiction of the Congress, according to recent decisions of the Supreme Court of the United States.

Paul vs. Virginia, 8 Wall. 168 (1868); Liverpool Ins. Co. vs. Mass., 10 Wall. 566 (1870); Phila. Fire Ins. Co. vs. New York, 119 U. S. 110 (1886); Hooper vs. California, 155 U. S. 648 (1894); Allgeyer vs. Louisiana, 165 U. S. 578 (1897); N. Y. Life Ins. Co. vs. Cravens, 178 U. S. 389 (1899); Nutting vs. Mass., 183 U. S. 553 (1902).

Since our Conference a year ago our Uniform Warehouse Receipts Act has been enacted in Iowa (Acts 1907, C. 160, p. 157,

April 1, 1907), New Jersey (Laws, 1907, C. 133), Montana, Illinois, Massachusetts, Idaho, Connecticut and New York.

Our Uniform Sales Act has been enacted in the Territory of Arizona (Acts, 1907, C. 99, p. 229, March 31, 1907), Connecticut and New Jersey (Laws, 1907, C. 132). I regret that I am not now able to give the dates when all these laws were enacted, nor the chapter and section numbers where they are to be found in all these states.

Our Uniform Negotiable Instruments Act has been adopted during the last year in Illinois (Acts 1907, passed May 11, 1907, approved June 5, 1907, to take effect July 1, 1907); in New Mexico (Acts, 1907, C. 83, p. 161, passed March 21, 1907, to take effect immediately); in West Virginia (Acts, 1907, C. 81, passed February 22, 1907, approved February 27, 1907, to go into effect January 1, 1908); the Territory of Hawaii (Acts, 1907, C. 89), and in Alabama. Thirty-five states and territories, including also the District of Columbia, have now enacted the Negotiable Instruments Law.

The prevailing tendency towards uniformity in commercial matters is well illustrated by the course taken by the Interstate Commerce Commission with regard to the adoption of a uniform bill of lading. In 1904 the Illinois Manufacturers' Association and other trade and commercial organizations, complained to the Interstate Commerce Commission concerning the proposed adoption by the railroad companies operating in that territory of certain changes in the so-called uniform bill of lading used by them, whereupon, after hearing, a joint committee was appointed by the carriers and shippers represented at that hearing to consider a suitable form for a bill of lading and to report it to the Commission. They reported to the Commission a form for a bill of lading, June 14, 1907. The Commission then ordered that all common carriers by railroad subject to the act to regulate commerce be made parties defendant to the proceeding and that notice be given to them that the matter will be further heard on October 15, 1907, at the office of the Commission in Washington at which time and place the said carriers are required to show cause why

the proposed form for bill of lading should not be approved and prescribed by the Commission as a just and reasonable regulation or practice to be observed by them on and after January 1, 1908. In his message of December 4, 1906, President Roosevelt said:

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I would like to call attention to the very unsatisfactory state of our criminal law, resulting in large part from the habit of setting aside the judgment of inferior courts on technicalities absolutely unconnected with the merits of the case, and where there is no attempt to show that there has been any failure of substantial justice. It would be well to enact a law providing something to the effect that:

"No judgment shall be set aside or new trial granted in any cause, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure unless in the opinion of the court to which the application is made, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.'"

This was the suggestion made by the Honorable Charles F. Amidon in his address before the Minnesota State Bar Association at its annual meeting in April, 1906, reprinted in 40 Am. Law Rev., 681, with the addition of the words near the end, ́it shall affirmatively appear that.'

In a paper entitled "The Administration of Criminal Law," given as a commencement address at the Yale Law School, June 26, 1905, and published in 15 Yale Law Journal, 1, Secretary Taft suggested:

"No judgment of the court below should be reversed, except for an error which the court, after reading the entire evidence, can affirmatively say would have led to a different result."

This subject has been most ably presented by our learned late associate, Dean Huffcut, whose death we all deplore, at the meeting of the New York State Bar Association, held at Albany, January 15 and 16, 1907. See its Proceedings, p. 180.

As Wigmore says in his great work on Evidence, Sec. 21, the question whether a new trial should be granted, because of the erroneous admission or exclusion of some particular piece of

evidence, is a great question, because the whole status of the law of evidence, as well as the efficiency of our methods of doing justice, is dependent upon the answer. Whether the law of evidence shall be a mere means to an end, the just settlement of controversies, or whether it shall be an end in itself, depends practically upon whether it is to be conceded that an erroneous ruling as to the admission or exclusion of evidence, is, ipso facto, a ground for a new trial.

The English rule, until 1830, in civil and criminal cases, and also in equity, was that the erroneous admission or rejection of some piece of evidence was not a sufficient reason for setting aside the verdict and ordering a new trial unless it appeared to the judges upon all the evidence, that the truth had not been reached.

During the decade of 1830-1840 a rule grew up in England that any ruling that was erroneous created a right to a new trial for the defeated party. This remained the law in England until it was reformed in 1875, in civil causes. See the Rules of the Supreme Court, order 39, rule 6, amended as follows, under a Rule of Court adopted in 1883:

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A new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence, unless, in the opinion of the court to which the application is made, some substantial wrong or miscarriage has been thereby occasioned on the trial."

The reform had been introduced by Mr. (later Sir James) Stephen in the Indian Evidence Act of 1872, as follows:

"The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the court before which such objection is raised, that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that if the rejected evidence had been received, it ought not to have varied the decision."

In its most extreme form, in language conforming to the theory that the rules of evidence form an end in themselves, the

Exchequer heresy, in Wigmore's language, has clearly gained the ascendance in most of the states of our union. It is defended upon two grounds:

(1) A party has a legal right to the judicial observance of the rules of evidence per se.

(2) The judicial consideration of the weight of all the evidence, as a motive for refusing a new trial, would be a usurpation of the function of the jury. Wigmore shows clearly that both of these reasons are invalid.

(1) The "legal right" claimed, is not a legal right, because no man has a legal right to have his cause wrongly decided, and (2) The theory of usurpation of the function of the jury ignores the doctrine and history of the jury's function, for it has always been under the control and correction of the trial judge and the appellate court.

"The usurpation, if any, consists in setting aside the verdict, not in confirming it. The advocates of the Exchequer rule concede, that for the purpose of overturning the verdict, they may scrutinize and interfere with it, so as to say that it goes against the whole mass of evidence, yet for the purpose of supporting the verdict, they profess to be unable to weigh a particular piece of evidence, so as to say that it could not have affected the same weight of evidence.

"This is one of the most undefensible cases of Tweedledum vs. Tweedledee that has ever been sanctioned in our books. . . . As to the practical working of the Exchequer rule, the results are lamentable. Whether in civil or criminal cases, it has done more than any other one rule of law to increase the delay and expense of litigation, to encourage defiant criminality and oppression and to foster the spirit of litigious gambling The federal Supreme Court has been especially callous in pushing the technical rule to extremes. notably in its treatment of some of the rulings of the late Judge Parker, of the Western Arkansas District, one of the greatest trial judges of the federal Bench, whose work for law and order in that region was inestimable; examples may be found in Allen vs. U. S., tried in 1893, reversed in 150 U. S. 551, reversed again in 157 U. S. 492, 17 Sup. 154; in Starr vs. U. S., reversed in 1894 in 153 U. S. 614, and again in 1897, in 164 U. S. 627, 17 Sup. 223; and in Brown vs. U. S., reversed three times in 150 U. S. 93,