The President:

The Chair is inclined to think, and so rules, that the resolution is not permissible under the Constitution and By-laws, and that the motion to recommit to the committee is the only question before us. All in favor of recommitting will manifest it by saying aye; all who are opposed by saying no.

The matter was recommitted.

John T. Richards, of Illinois:

When I received notice of my appointment as Chairman of the Special Committee on Government Liens on Real Estate, I was at a loss to understand what the duties of the committee were. Looking back through the reports of the Association for several years I was unable to find that any report had been made by the committee, and it required a great deal of investigation upon my part to determine what its duties were. I found, however, after considerable expenditure of time, that the duty of the committee was to report upon Section 3186 of the Revised Statutes of the United States, being a section of the Revenue Laws. Under that section the property of the delinquent, whether real or personal, is subjected to a lien in favor of the Government. In other words, as soon as the assessment roll is delivered into the hands of the Revenue Collector the lien attaches under Section 3186 to all property whether real or personal in favor of the Government. Upon further investigation I found that in the case of United States rs. Snyder, 149 U. S., it had been held that this lien was effective even against an innocent purchaser for value without notice. In that particular case, which went up from the State of Louisiana, the tax had been of many years standing. The property against which the lien was enforced had been purchased for full value and was held by an innocent purchaser without notice. Notwithstanding that situation the Supreme Court held that the property was subject to the payment of the tax. The court in Louisiana had held the other way, asserting that the recording acts of Louisiana applied to the Government lien and that there being no notice of any kind of record as required by the statutes of the state the lien would not attach as against an innocent purchaser.

The committee, after finding out what its duties were, took up the matter with the minority leader of the House of Representatives, Hon. James R. Mann, who referred the matter to the Judiciary Committee. Mr. Sterling, of that committee, requested your committee to draft an amendment to the section. such as the committee might approve. An amendment was drafted and forwarded to Washington, introduced in the House of Representatives and referred to the Judiciary Committee of the House, and Mr. Sterling wrote me that he would endeavor to secure the passage of the amendment at the present session. I am not advised whether he has been successful or not.

In the printed report you will find a copy of the bill as introduced by the Judiciary Committee of the House.

The committee recommends that at least one member of this committee be continued in office by the incoming President, on account of the fact that it is important that the subject should not be lost sight of. The Attorney-General in a recent decision has held that Section 3186 also applies to the excise tax law levying a tax upon corporations and that the lien under that section extends also to any unpaid tax growing out of this recent excise tax corporation law.

That is the only recommendation that the committee has made, and that for the purpose of keeping the subject alive and endeavoring to secure the passage of a proper amendment.

The committee recommends the passage of the bill as introduced.

Walter A. Knight, of Ohio:

I move the adoption of the recommendation made by the committee..

John E. Green, of North Dakota:

I second the motion.

The motion prevailed.

(See the Report in the Appendix, page 569.)

The Association adjourned until 8 P. M., the same day.

EVENING SESSION.

Wednesday, August 28, 1912, 8 P. M.

The President called the Association to order.

Simeon E. Baldwin, of Connecticut, made the following announcement:

It so happens that the American Bar Association this year opened its meeting on Monday with two sectional meetings, which was the very day on which the Institute of International Law convened in Christiania, Norway. The Bureau of Comparative Law forwarded this cablegram to the Institute of International Law under date of August 27:

"INSTITUTE INTERNATIONAL LAW,

CHRISTIANIA, NORWAY.

"The Comparative Law Bureau of American Bar Association, opening annual session today, sends cordial greetings." The following reply has just been received:

"To the Committee Comparative Law Bureau, Milwaukee, Wisconsin.

"The Institute of International Law addresses its thanks and cordial salutations to the Bureau of Comparative Law of the American Bar Association."

The President:

The regular order is an address upon the subject of "The Courts and the Constitution," by Hon. George Sutherland, United States Senator from Utah. Senator Sutherland is one of the most accomplished constitutional lawyers in the Senate, and it is a matter of special gratification that he has been able to come here for this purpose. I take great pleasure in presenting him to you.

The Address of the Honorable George Sutherland was then delivered.

(See the Appendix, page 371.)

The President:

The next order of business is the report of the Committee to Suggest Remedies and Formulate Laws to Prevent Delay and Unnecessary Cost in Litigation.

J. G. Slonecker, of Kansas:

In the absence of the Chairman I have been requested to present the report for the committee.

The committee has no new suggestions to make. At the instance of the Association four bills previously recommended by this Association were presented to Congress for passage, and all four of them have been favorably reported by the Judiciary Committee of each House. Two of the measures have been passed by the Senate and one has been passed by the House, but neither has been passed as yet by both Houses.

In view of the favorable consideration which has been given to these bills by the Judiciary Committee of the House, the report contains a resolution which I will read as follows:

"Resolved, That the Special Committee to Suggest Remedies and Formulate Laws to Prevent Delay and Unnecessary Cost in Litigation be continued with the powers heretofore conferred upon it, and that it be instructed to take such steps as it shall deem expedient to secure the passage by the Congress of the United States of the bills heretofore recommended by this Association as the same have been recommended by the Judiciary Committees of the respective Houses of Congress."

I might say that the Judiciary Committee of the Senate made a few slight amendments in one of the bills, or perhaps in both, which in the opinion of the committee of the Association do not in any way interfere with their efficiency. I move the reception of the report, and the adoption of the resolution as read.

Rome G. Brown, of Minnesota:

I second the motion.

Alfred B. Cruikshank, of New York:

It seems to me that the three bills appearing in Schedules A, B and C annexed to the report go too far in the direction of securing judicial finality at the expense of judicial accuracy. They aim a severe blow at the present method of securing fairness in jury trials, when they provide, as they do, in substance that hereafter errors in pleading, in misdirection of the jury

and in the admission of evidence shall be considered harmless in jury trials unless the complaining party can make it affirmatively appear that the error complained of has caused him prejudice. Heretofore the courts have held that harmless errors should be disregarded on review, whether by appeal or writ of error; but they have considered that no error was harmless which was substantial and tended to mislead a jury. This rule of the courts was not a technical one imposed on them from without, but was a substantial one derived from the experience of the judges as trial lawyers and as nisi prius judges. Not finality, but accuracy and justice should be the aim first sought. Every trial lawyer, yes, every litigant knows the care necessary in supervising jury trials if justice is to be obtained; how much importance is attached by the jury to the rulings of the court in receiving or rejecting evidence and the ease with which gross errors will creep into a verdict if the jury be misled by the reception of improper evidence and their minds diverted to side issues.

The courts, I say, have always disregarded harmless errors. It is now proposed to legalize harmful errors in jury cases, and to compel the Appellate Courts against their will, to affirm erroneous judgments, all in the interest of this rough and ready, automobile celerity, which to some minds, now and always, is the all desirable thing.

The committee's bill, adopted in substance by the Senate, provides that:

"No judgment shall be set aside or reversed, or new trial granted, by any court of the United States in any case, 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 application is made, after an examination of the entire cause, it shall appear that the error complained of has injuriously affected the substantial rights of the parties."

Note that here it declares that it must appear, affirmatively of course, that the error complained of has injuriously affected the substantial rights of the parties, otherwise there is no redress.