The Albany Law Journal.

ALBANY, DECEMBER 30, 1871.

With the present number the LAW JOURNAL closes

its fourth volume. The index will be forwarded with

an early number of the next volume. The LAW JOURNAL, from its commencement, has met with very flattering success, and has made every endeavor to deserve it. Its circulation is large, and extends into every State and territory in the Union. Arrangements have been made which is thought will make the journal for the coming year of still greater value and interest. The publishers will feel greatly obliged to subscribers and readers, if they will use their influence in extending its circulation.

OUR BOOKS.

No. III.

We have now lying before us two volumes in folio, lettered upon the book "D'Anvers' Abridgment," one published in 1705 the other in 1713. About half of another volume made its appearance fourteen years after the second, and the other half of the volume came out about ten years later. So that from the publication of the first to the completion of the third volume was a period of some thirty-two years. And one may form some judgment of the probable length of time it would have taken to have completed the work at that rate, when he is told, that its topics are arranged alphabetically, and the third volume extends only to the word "extinguishment." The edition now before us was originally purchased, as recorded in his own handwriting, by Benjamin Lynde in 1717, which accounts for its being defective of the third volume. The history of the work seems to be this. The author undertook to translate Rolle's Abridgment into English, with an addition of such cases as had then come to his knowledge.

It was published under the imprimatur of all the judges except Lord Holt who declined to grant it, although it is humbly inscribed to him, and the author 'presumes to address himself for patronage and protection to your lordship in whom all the learning of these authors from whom I collect, so eminently centers and resides."

Upon opening the volumes to trace their ownership, we find pasted upon the inside of the cover the coat of arms of some one without any name to indicate whose it was intended to be. We know so little of these things that we are less capable of applying the proper terms in describing it, than we should be to read the original of Ch. J. Rolle without our present author's translation. One by looking at it would infer that it was the arms of an auctioneer, for the

prevailing emblem upon it seems to be a wooden mallet, such as auctioneers use. It is surmounted by the figure of a griffin with his wings outstretched and a mallet in his right claw, and three mallets are

prominent upon the shield. If it is the arms of one of our profession of that day, it may be emblematical of the difficulty a student then had in breaking through the shell of a barbarous language, to get at the kernel of the law that was hidden within it.

We infer as much from the motto inscribed below the shield: "virtute decit non sanguine niti," from "virtute" being a very proper term to associate with the profession, although we do not profess to be skillful enough to translate the other words of the motto. Upon turning over to the title page, we find upon the 1717," and in this we bring our English law and our margin inscribed the name of "Benjamin Lynde, American lawyer together, as a matter of history. It so happens that we have quite a full account of this pre-proprietor of the work before us. He was born in Boston in 1666, and, after graduating at Harvard college, went to England, where he became a student at the Middle Temple, and was regularly called to the bar. He returned to Massachusetts in 1697, with a commission of advocate-general of the court of admiralty for Massachusetts, Connecticut and Rhode Island. His home, for the remainder of his life, was in Salem. In 1712 he was appointed a judge of the superior court of Massachusetts, on which occasion Chief Justice Sewell, who had been bred a theologian, congratulated the jury that they were hereafter to have "the benefit of inns of court education, superadded to that of Harvard college." In 1728 he became chief justice of that court, and held the place to his death, in 1749. He was, in fact, the first educated lawyer who had held a seat upon that bench. Up to his day they had been clergymen, or men educated as merchants or physicians, or engaged in politics or business, so that his administration of the office formed a new epoch in the history of that State. He had a son of the same name who, after his death, successively held the same offices which the father had held, as above stated.

Through the influence and example of Chief Justice Lynde an impulse was given to a desire on the part of the bench and bar to improve their knowledge of this law, and many important improvements were introduced in its practice and administration. And in the flood of law books of every imaginable quality which are being produced upon every conceivable subject, it is curious to inquire what the books were, to which an American lawyer of the better sort had access for study and reference at that day. The first edition of Blackstone published in America was brought out in Philadelphia in 1771, six years after the first volume of his Commentaries had been published in England. The most popular and systematic work prior to that was Wood's Institute, which had been printed in England in 1722, ten years after Judge

Lynde's appointment to the superior court. In the introduction to Rolle's Abridgment written by C. J. Hale somewhere between 1671 and 1676, the time of his death, we have his advice to students as to the books to be studied by them. Among them we find Littleton, Perkins, The Doctor and Student, Fitzherbert, Coke's Commentaries and Reports, the Year Books, Plowden and Dyer, and especially Rostale's Modern Entries. What a fascinating study law must have been at that day! The father of the famous James Otis, of Massachusetts, was a lawyer of some eminence, and his legal education consisted in studying Coke's Institutes, Brownlow's Entries and Plowden's Commentaries and Reports, and that must have been about the time Chief Justice Lynde became the head of the superior court. But, perhaps, we have the best clue to our inquiry, so far as he was concerned, by a list of books, in his own hand-writing, purchased by him in 1717. Horace, Ovid and Juvenal in the Delphini Editions, Tatler, 4 vols., Hale's Contemplations, Coke's Reports in English Folio and D'Anvers' Abridgment. And we cannot, perhaps, better close these gossiping remarks than by an extract from President Quincy's address upon legal education, delivered at the dedication of Dana Hall in 1833, in which he quotes from the advice of Lord Chief Justice Reeves to a student for the first stage in the study of the law, somewhere about 1736.

"Read Wood's Institutes cursorily, and for explanation of the same Jacobs' dictionary (which by the way was first published from 1729 to 1733). Next strike out what lights you can from Bohun, Institute Legalis and Jacob's Practicing Attorney's companion and the like, helping yourself by indexes. Then read and consider Littleton's Tenures without notes and abridge it. Then venture on Coke's Commentaries. After reading it over, read it again for it will require many readings. Abridge it; common-place it; make it your own, applying to it all the faculties of your mind. Then read Serjeant Hawkins to throw light on Lord Coke. Then read Wood again to throw light on Serjeant Hawkins, and then read the statutes at large to throw light on Mr. Wood." How, while listening to this advice, ought the American law student to devoutly bless the memory of that other Chief Justice Reeves, the father and founder of the American law school, who first brought into the study of the law at Litchfield, the notions of orderly arrangement and common sense by which jurisprudence may be taught as a liberal science, and be mastered as a national system by the same processes by which history and philosophy may be studied and acquired! Starting thus, at a period contemporary with the first educated lawyer in one of the early States in the Union, it would be pleasant to trace the history of the science and its expounders, and to mark the stages through which it has been passing to the high position it now holds by means of its schools and the widening influence it exerts in the

political as well as judicial arena in the age of progress and reform. But to do this would be occupying an amount of space and time which few could afford to expend upon such a work, while few will thank us for disturbing the dust which had been so long gathering over those ancient volumes.

THE SAVINGS BANKS LAW.

The failure of the Ocean National Bank calls our attention to the lax state in which it is to be feared The the national banking law is administered. national currency act, section 31, requires that a certain class of banks, of which the Ocean National Bank was one, should have a reserve of twenty-five per cent to its liabilities. The bank referred to, however, on the morning of its suspension had only fourteen The provision of the currency per cent as a reserve. act referred to, therefore, seems to be disregarded whenever it is found convenient to do so. All officers of the bank who acted in their official capacity with a knowledge of the deficiency in the bank reserve were guilty of a misdemeanor. For, where a duty is imposed by statute, even if no punishment be expressly provided for a breach of such obligation, the commonlaw incidents of fine and imprisonment, nevertheless, attach to it. It is a misdemeanor at the least, and may, in certain cases, amount to a felony. obviously a fraud on the public and is virtually defined as such by the statute which imposes the obligation of maintaining a certain proportion between reserve and liabilities. If the directors or other officials, who were the immediate parties to the breach of the statute, acted in concert with others, this combination would, under the circumstances, be a criminal conspiracy in addition to its other illegal characteristics.

It is

If there is any matter in which the public generally should be protected by the government against their own rashness, it is the case of the savings banks. A fool and his money soon part, and even a wise man is sometimes willing to snatch at the golden eggs, though he may hurt the goose that lays them. He forgets that high interest means bad security, as the duke of Wellington used to say, and then, when a panic sets in, instead of acting with patience, he runs frantically on the bank and helps to break it. "I want my money," says the French depositor, if you have not it, "mais, if you have it and are not going to fail you can keep it." In this matter of savings banks the public should be protected. In the case of the Ocean National, the committee of the clearing house on suspension observed that the bank owed a heavy balance, $30,000. The committee then suspended the bank for the association, and its action, of course, was indorsed by the association, especially when they observed by the published returns of the bank, that it had failed to keep the statutory reserve. If the clearing house association, however, had not

taken this special action, or if the bank had kept itself in repute at the clearing house, its doors might be still open, and more victims engulfed.

It happens, indeed, that its assets, we believe, will cover all its liabilities to depositors and, possibly, even the claims of stockholders. But this is an accident, while it affords the less excuse for violating the statutory provisions respecting the proportion which deposits should bear to liabilities. This requirement imposes no special positive burden on the banks. It only compels them to do what reasonable diligence would secure in the absence of any legislation on the point. Any bank that will not keep a reserve of at least one-fourth per cent to its liabilities will soon fall.

can be had even from the public stocks, it is only the humblest class that will deposit in them. The profit of the government on the system, or, rather, the cost of maintaining it, will be derived from the difference in amount between the rate of interest paid to depositors and that obtained from the public stocks. The government will buy stocks with the deposits, and the difference between the interest drawn by them on account of the stocks, and that paid to depositors, will be the source for meeting the expenses of the institution. So scanty a system, of course, will leave all investors of any note in their present condition. Our general law of savings banks, therefore, requires. to be closely revised, and the present rules to be expressed in a manner that will give the public some security again their own and their banker's indiscre

But

for undertakings, the returns from which are so remote as those from canals, private mortgages, or the likeloans on call, mercantile bills, and the public funds can always be readily realized to meet a run. when the string to the kite extends from New York to Michigan, it is not easy to haul the toy down, especially as many others are probably raising the wind on the same track. But the chief indiscretion of the

bank in this matter was to have lent its assets to an official whose duty was to exercise a strict surveillance over it. It was still worse of the bank inspector to use his official position for the purpose of extracting loans from the bank. A public trustee should not thus be suffered to obtain loans from his cestuis que trust at a profit to himself, and at a loss to his beneficiary. The offense may not be punishable in the present state of the law, but it ought to be made criminal for it is clearly reprehensible. When an official once becomes indebted to the persons in his charge, their relative positions become inverted, and he is more afraid of them than they are of him. They then set all inconvenient rules at defiance.

The establishment of postal savings banks here, as in England, will do much good to small investors; but, as these postal banks will pay less interest than

TAXES ON TRAVELERS.

The United States supreme court has recently decided, in the case of Ward v. The State of Maryland, that State or city laws imposing a tax on commercial travelers, unless resident dealers are also taxed, are unconstitutional and void. This case was a test one brought forward by the society of commercial travelers. The laws complained of are very numerous in the States and cities of the south and west. The commercial traveler, indeed, although associated with recollections of the swallow, fine weather and hospitable enjoyment, has long been an object of dislike to resident traders in rural districts, and to all who live by the same. The development of our internal trade, however, cannot be impeded through re

gard for a prejudice which is unjust and narrowminded. There is no doubt that the travelers' society have deserved well of the country at large for their action in this matter. The law was clearly in their favor. A poll tax on a certain class of United States citizens, by a particular State, is obviously not a local, though it is a personal, assessment. It interferes with political statutes, and is equivalent to a tax on imports into the State. The question is now happily set at rest forever.

question. It would be dangerous, therefore, to admit evidence of usage to override a common-law liability, unless the custom showed a user nec clam, nec vi, nec precario, but one that was openly, fairly and constantly observed- semper ubique et ab omnibus.

Now some duties on the part of corporations are so plain that it is hard to see upon what ground they could be denied or disputed. Judge Parker's case was one of this description. He bought, through brokers, three bonds worth $2,000, of the Chicago and North Western Railroad Company. The bonds were apparently "free," and were registered in the company's office in his name. Six months afterward it was discovered that the bonds had been stolen from the executor of a Mr. Olcott, and had been once registered in his name, but that the name had been erased so as to make the bonds appear free, and, as such, capable of being thrown on the market. Olcott's executor instituted proceedings against Judge Parker to recover the amount of the bonds. The judge apprised the company and his brokers of the suit, in order that they might defend it, if they thought proper. No defense was made, however, by any of the parties, and judgment was recovered against Judge Parker for nearly $3,000. He then brought suit against the company, to be recouped this amount by them, inasmuch as it was owing to the negligence of their registering officer that judgment had been recovered against him. If the registrar had made a proper examination of the company's books he would have seen that the bonds were not really "free," but had been already registered though the name was erased. Judge Parker averred that it was the registrar's duty to make this examination, and that if he himself had been promptly informed that the bonds had been already registered, he would have stopped his check for the

amount.

The company averred that it was the brokers' duty, and not theirs, to examine the books, in order to see whether the bonds were free or not. Judge Spencer, however, left the question of the responsibility of the company to the jury, who found against the company for $3,335.41.

There can be no doubt that the duties of a registrar of stocks, in the books of a public company, are very different from those of registrar of deeds and titles to land. A registrar in an office of the latter description will and ought to register every document presented to him for registration, if it relates to land within his district. He does not, and often cannot, know whether the deed be void, voidable or valid. His registration is only like the stamping of the instrument. It is a condition sine qua non in the case of a claim for priority; but it is a mere negative condition, and does not impart any validity to a deed that is otherwise unsound. Neither could it be expected that a registrar of titles to land should know the whole law of real property, and take upon himself judicial functions, and so reject some deeds with

out more than ex parte evidence as to their true nature and operation. But the registrar of a company's stocks requires no knowledge beyond that of bookkeeping and of the rules of his company. These, even when contained in a statute, are copied from the previous customs of dealers, so that they are plain and intelligible to all. If an appeal is taken to the decision in Judge Parker's case, it will, doubtless, be founded on evidence to the effect that there is a custom, more or less prevalent, among members of the stock exchange, to leave brokers to the unlimited use of their own caution. But the maxim caveat emptor does not apply to the stipulation which is implied in a company registering stocks in the name of a particular person. The fact of registration comprises a contract that the registration is valid. It is, as it were, an indorsement of a bill that is, in other respects, invalid against some of the names of alleged parties to it by reason of its being passed. This is no ground of defense on the part of the party who, of course, impliedly warrants the genuineness of his own signature.

THE PRESS AND THE JUDICIARY. The course that some of the most influential papers in New York city have pursued toward the judges in that city and vicinity is creating considerable alarm among the legal profession and other people who regard the due administration of justice of paramount importance to the general welfare.

The insolent and scandalous interference there of portions of the influential papers in great suits has so disgusted country judges that some of them have been heard to declare that they will not hold any courts in New York city so long as they can avoid doing so.

It has come to this: When a judge makes a decision there which the all-knowing legal editors, who control those papers believe is erroneous, he is denounced as corrupt; and when he makes a decision there that those editors declare is correct they say in substance that they have coerced him to make such decision by the force of public sentiment which they have created. They scarcely give a judge there credit for honesty of purpose whichever way he decides.

No lawyer or judge has failed to see that such city papers take sides in all great suits there - misstate the facts or give one-sided versions of them, and argue for the side they espouse like paid advocates, who are shuysters, when making the closing argument to the jury in a justice's court where there is no charge by the court to the jury correcting their misstatements.

Persons who attempt to converse with judges or jurors, to influence them in suits that are to come before them for determination, are guilty of crime under our statutes. There is no judge or high-minded juror who does not feel insulted if any person

approaches him out of court to give him a version of a case, or to intimate to him how it should be decided. Yet the editors of the press, to which we have referred, do not appear to think they are insulting judges and jurors, and improperly interfering with the dye administration of justice, when they take sides in cases, prejudge the merits of them and denounce one of the parties for the purpose of influencing the judges or jurors, who are to decide the cases.

The press referred to have accomplished these results: 1. They have brought some of our courts and several of our judges into disrepute and contempt. 2. They have disgraced themselves in the estimation of the legal profession and of other intelligent and thinking classes; and have induced a widespread belief that the editors of such papers are employed and paid for taking sides in great suits. 3. They are losing their influence because they are not just, and are believed to be revengeful, unscrupulous and corrupt. 4. They have emboldened defeated litigants and unscrupulous lawyers to attribute their defeats to the corruption or partiality of the bench or jury.

Just think of an editor, without legal attainments who would not be selected as a referee or arbitrator by any sane man in a case involving five dollars, sitting in judgment, in his editorial garret, denouncing and impeaching judges, and interfering upon clamor, or from a one-sided statement, in great suits, and arguing through his press that the side he espouses is right, and that his employer should have a decision in his favor! Is it not high time there should be a law to prevent the interference of the press in suits before they are decided?

Shall we

have such a law, so that weak judges will not be intimidated; and that neither judges nor jurors shall be prejudiced or biased in cases by the press?

It is certain that some of our judges have become so thoroughly disgusted with the improper interference of a portion of the New York city press, in suits there and in that vicinity, that they suspect there is something rotten in the case of any party for whom those papers interfere. Their reasoning is this: A party who has the right side of a suit needs no assistance from the press to obtain justice, and relies solely upon the evidence he can produce for success. A dishonest party, or one who knows he is in the wrong, will resort to the press or any other means to create the belief that the case should be decided in his favor; and he would employ the press to advocate his side of the case, if he could do it. Judges easily come to the foregoing conclusion, who have lost faith in the integrity or impartiality of the New York city press.

It is more than suspected that more money is expended, directly and indirectly, for editorial articles published in New York city, to affect the results in great suits there, than is paid to lawyers in such suits.

When an unscrupulous editor undertakes to defeat parties in important litigation, he often conceals his motives, and skirmishes and makes flank movements. He traduces such parties-accuses them of all manner of baseness, and of rascality in the highest degree; incites others to libel them and sue them; ruins their business, if possible; abuses their lawyer, and brings them into such disrepute that a weak judge dare not decide in their favor and that jurors will beat them on general principles, and assert that they have no rights which a jury are bound to respect.

Judging some of the New York city press solely by their own editorial columns, and the fair conclusion is that they denounce judges as corrupt whom they cannot control, and that they assume to keep other judges in training, and dictate through their columns how such judges shall decide. Among lawyers, some judges now have the reputation of being influenced if not controlled by the press! Such a judge is no more fit for his position than a corrupt one. In this view of the situation of the judiciary in New York city and vicinity, we say, "Woe unto the judge there who fails to record the edicts of the press in any great suit!

What ought to be done to prevent the interference of the press in suits before they are decided is a grave question, that should be most carefully considered and answered by our next legislature.

ABORTION.

The Medico Legal Society of New York city has propounded some suggestions for the repression of the abominable crime of abortion, and for the amendment of the "Act relating to the procurement of abortions and the like offenses, passed May 6, 1869." The society recomends a change in the law to the effect that abortion should be constituted simply a felony, in case the death of either the woman or child shall ensue. We believe our medical advisers have taken too lenient a view of this crime. The death of the patient or the child may, indeed, be allowed to affect the essence of the offense, since the death of the child is a ncessary consequence of the act in almost all cases. But it is very unadvisable that the legislature should delegate to the court the question of settling the quantum of punishment. If the suggestion of the society be sound in this instance, it should be applied universally; and statutes should not contain any penalties, but simply define the nature of the offense, and, after stating its general category in the list of crimes, to leave the quantum meruit of punishment to the court. This is unadvisable for many reasons, and there are certainly no special grounds to consider that any peculiar rule is applicable to abortion. The way to repress that crime is to give court and jury very little room for considerations of mercy, and to make the penalty a severe one. The breaking of machinery in Lancashire was made a capi