is "in the nature of a specialty obligatory without consideration," and the decisions, which sanctioned the defense of absence of consideration in certain cases, were deemed by him anomalous.33 His assertion34 that "prior to the case of Rann v. Hughes35 no authority can be found for the view that absence of consideration is a defense to an action upon a bill or note" is quite inaccurate.

* * **

The case of Brown v. Marsh,36 which antedates Rann v. Hughes by more than half a century, expressly decided that a negotiable "note was no more than a simple contract ; that though the note itself be evidence of consideration, yet it is not conclusive evidence but turns the proof upon the defendant to show that there was no consideration given for such note; and so he [the maker] can show that it was still but a simple contract, and therefore but nudum pactum unde non oritur actio".

It is true that the absence of consideration as a defense to bills and notes was rarely interposed before the nineteenth century. So long as they were used for the purpose of transferring trade debts from one place to another, the question of absence of consideration would not arise, unless it were between the drawer and the payee. In such case, Gilbert lays it down as settled law, that the drawer was "not obliged to pay it to the person in whose behalf the bill was drawn, unless he had paid him a consideration."37 The definition of a bill given in Comyn's Digest is: "A bill of exchange is when a man takes money in one country or city upon exchange, and draws a bill whereby he directs another person in another country or city to pay so much to A. or order for value received of B. and subscribe it." In modern continental law it still represents a trade transaction; and in some countries "the nature of the value must be expressed" in the bill.38 In the early English cases, the custom of merchants upon which the plaintiff counted included the payment of money upon the drawing of the bill.39

With the development of bills in England into a flexible paper currency following the introduction of accommodation paper,

33 Ibid. 876, sec. 14.

34 Ibid, 641, note.

357 T. R. 350, note a (1778), first published in 1798.

36 Brown v. Marsh, 1 Gilbert (Eq.), 154 (1722). The report of this case, with note by Gilbert, who was a distinguished lawyer and judge, is reprinted in an article entitled "The Want of Consideration as a Defense to Negotiable Paper," 37 Am. L. Reg. 337 (1898). It is accompanied by citations from other authorities, antedating Rann v. Hughes, showing that the holding in the latter was not a novelty, but strictly in accordance with well-established doctrine. 37 Brown v. Marsh, 1 Gilbert (Eq.), 154, 155 (1722). 38Chalmers' Bills of Exchange Act (6th ed.), lviii.

39Martin v. Boure, 2 Cro. Jač. 6 (1603); Vanheath v. Turner, Winch. 24 (1622).

the question of consideration as between immediate parties, and those in privity with them, came frequently before courts. While there are dicta in some cases supporting Professor Ames' thesis, 40 these were expressly repudiated whenever the issue was carefully examined by the judges, and the conclusion was reached that the absence of consideration has always been available as a personal defense to an action on negotiable paper.42

41

Columbia University.

40Bowers v. Hurd, 10 Mass. 427 (1813); Livingston v. Hastie, 2 Caines (N. Y.) 246 (1804).

Hill v. Buckminster, 22 Mass. (5 Pick.) 391 (1827); Pearson v. Pearson, 7 Johns. (N. Y.) 26 (1810). In Hill v. Buckminster, Parker, J., who wrote the dictum in Bowers v. Hurd, said: "A negotiable promissory note given for a debt is with us evidence of payment of the debt, but where there was no previous debt or demand, the note given is nudum pactum. In coming to this conclusion we undoubtedly overrule some expressions in the opinion as reported in the case of Bowers v. Hurd, though the case itself was rightly decided upon other principles. * * Further opportunity to examine the cases has convinced us that the opinion so expressed is untenable; there being cases in the English and other books which are cases clearly of defense founded upon no consideration, rather than a failure of one once existing."

42 In re Kern's Estate, 171 Pa. 55 (1895); authorities cited in 37 Am. L. Reg. 350.

Administration of Justice in the Army

BY A. W. BRowN1

The Articles of War are contained in section 1342 of the Revised Statutes, and were enacted in their present form on August 29, 1916, the greater part of them being made effective on March 1, 1917.

The old code, most of which had survived without substantial modification since Revolutionary times, was poorly arranged and, among other defects, contained provisions that were archaic or obsolete and omitted certain statutory provisions that should have been included in our military code.

The new code represents a much needed advance in our military legislation and the credit for this advance is largely due to that able lawyer and distinguished administrator, Major General E. H. Crowder, the Judge Advocate General of the Army, under whose supervision the original draft of the new articles was prepared.

The articles are divided into five groups. The first group contains definitions of certain terms used in the articles, and indicates the classes of persons who are subject to the Articles of War. These classes are:

"(a) All officers and soldiers belonging to the Regular Army of the United States; all volunteers, from the dates of their muster or acceptance into the military service of the United States; and all other persons lawfully called, drafted or ordered into, or to duty or for training in, the said service, from the dates they are required by the terms of the call, draft or order to obey the same;

"(b) Cadets;

"(c) Officers and soldiers of the Marine Corps when detached for service with the armies of the United States by order of the President: Provided, That an officer or soldier of the Marine Corps when so detached may be tried by military court-martial for an offense committed against the laws for the government of the naval service prior to his detachment, and for an offense committed against these articles he may be tried by a naval court-martial after such detachment ceases;

"(d) All retainers to the camp and all persons accompanying or serving with the armies of the United States without the territorial

LL.B., Cornell, 1897. Lieutenant Colonel, Judge Advocate General's Department, National Army.

239 Stat. 650-670.

jurisdiction of the United States, and in time of war all such retainers and persons accompanying or serving with the armies of the United States in the field, both within and without the territorial jurisdiction. of the United States, though not otherwise subject to these articles; "(e) All persons under sentence adjudged by courts-martial; "(f) All persons admitted into the Regular Army Soldiers' Home at Washington, District of Columbia."

Later legislation expressly subjects to the Articles of War the personnel of the Coast and Geodetic Survey when transferred to the service and jurisdiction of the War Department, and officers of the Public Health Service when detailed in time of war for duty with the Army.3

The second group of articles deals with the creation, composition, jurisdiction and procedure of courts-martial; with limitations upon prosecutions and punishments; and with the powers of the authorities appointing such courts. More particular reference will hereafter be made to some of the articles in this group.

The third group contains what are known as the punitive articles (one article in this group is not punitive, however); the fourth group deals with courts of inquiry; and certain miscellaneous provisions are embodied in the fifth group. In order to insure that these articles shall be known and understood by the enlisted men of the Army it is provided in Article 110 that "Articles one, two, and twenty-nine, fifty-four to ninety-six, inclusive, and one hundred and four to one hundred and nine, inclusive, shall be read and explained to every soldier at the time of his enlistment or muster in, or within six days thereafter, and shall be read and explained once every six months to the soldiers of every garrison, regiment, or company in the service of the United States."

The punitive articles include Articles 54 to 96, and a few of the important articles will be quoted:

"Art. 54. Fraudulent enlistment. Any person who shall procure himself to be enlisted in the military service of the United States by means of willful misrepresentation or concealment as to his qualifications for enlistment, and shall receive pay or allowances under such enlistment, shall be punished as a court-martial may direct."

"Art. 58. Desertion. Any person subject to military law who deserts or attempts to desert the service of the United States shall, if the offense be committed in time of war, suffer death or such other punishment as a court-martial may direct, and, if the offense be

Acts of Congress approved May 29, 1917, and July 9, 1917.

committed at any other time, any punishment, excepting death, that a court-martial may direct."

"Art. 61. Absence without leave. Any person subject to military law who fails to repair at the fixed time to the properly appointed place of duty, or goes from the same without proper leave, or absents himself from his command, guard, quarters, station, or camp without proper leave, shall be punished as a court-martial may direct.”.

"Art. 64. Assaulting or willfully disobeying superior officer. Any person subject to military law who, on any pretense whatsoever, strikes his superior officer or draws or lifts up any weapon or offers any violence against him, being in the execution of his office, or willfully disobeys any lawful command of his superior officer, shall suffer death or such other punishment as a court-martial may direct.” "Art. 75. Misbehavior before the enemy. Any officer or soldier who misbehaves himself before the enemy, runs away, or shamefully abandons or delivers up any fort, post, camp, guard, or other command which it is his duty to defend, or speaks words inducing others to do the like, or casts away his arms or ammunition, or quits his post or colors to plunder or pillage, or by any means whatsoever occasions false alarms in camp, garrison, or quarters, shall suffer death or such other punishment as a court-martial may direct."

"Art. 82. Spies. Any person who in time of war shall be found lurking or acting as a spy in or about any of the fortifications, posts, quarters, or encampments of any of the armies of the United States, or elsewhere, shall be tried by a general court-martial or by a military commission, and shall, on conviction thereof, suffer death."

"Art. 92. Murder-Rape. Any person subject to military law who commits murder or rape shall suffer death or imprisonment for life, as a court-martial may direct; but no person shall be tried by court-martial for murder or rape committed within the geographical limits of the States of the Union and the District of Columbia in time of peace."

"Art. 93. Various crimes. Any person subject to military law who commits manslaughter, mayhem, arson, burglary, robbery, larceny, embezzlement, perjury, assault with intent to commit any felony, or assault with intent to do bodily harm, shall be punished as a court-martial may direct."

"Art. 95. Conduct unbecoming an officer and gentleman. Any officer or cadet who is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the service."

"Art. 96. General article. Though not mentioned in these articles, all disorders and neglects to the prejudice of good order and