law conform to the settled business practice, and would cause hardship to no one. The examination of cases upon the law of banking will convince any lawyer that there is hardly a single influential doctrine connected with the subject upon which courts of high authority have not reached precisely contradictory conclusions. The evil is aggravated by the fact that such courts have in many cases concurrent jurisdiction, so that a man who has followed the rule of one court finds himself in the wrong, if his adversary can bring him before another court. One thing is certain, and that is one of the courts must be wrong. There is an anecdote which has been ascribed to Sidney Bartlett, the great practitioner, although the original is no doubt as old as the profession; it runs in this way. He was seen one day reading a late volume of his state reports. Some one asked him: "Are you reading law?" "No," he replied, "I am reading the decisions of our Supreme Judicial Court." This story aptly illustrates the fact, which the history of the law emphasizes, that the decisions of courts are not always correct expositions of the law. This failure in the administration of the law is aggravated, and in some instances, no doubt, is due to the inadequate presentation of a case by the lawyer. Added to the uncertainties of human evidence and the imperfections of a jury tribunal, the sum total of uncertainty becomes almost appalling. Justly or unjustly the whole blame for this condition is laid upon the practicing lawyer. In all ages of civilized society of which we have any record, wherever a legal profession has existed, there can be no doubt that its members have been exposed to the deepest distrust among the great mass of mankind. Sage and saint, poet and wit, dramatist and novelist, satirist and even lawyer, have all had their flings at the profession. The picture painted for us by Plato of the working lawyer and of his life of bondage, who has been stunted and warped and made small and crooked of soul, a poor broken and bent creature without a particle of soundness in him, although exceedingly smart and clever in his own esteem, gives us the word of the sage upon the bar. The saint exclaims: "Woe unto you also, ye lawyers, for ye lade men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers." But even to satisfy a saint a lawyer could hardly be expected to pay the judg ment when he loses a case. Addressed to a judge who has made an incorrect decision the remark has some relevancy. The wit tells us that "the law is a hocus pocus science: it smiles in your face while it picks your pocket; and the glorious uncertainty of it is of more advantage to its professors than the justice of it." The dramatist talks patronizingly and pityingly of "old Father Antic, the law." The novelists have exhausted their powers in picturing the rascal, the pedant or the buffoon in legal garb. The satirist adds for the benefit of the client: "There take (says Justice), take ye each a shell, Sir Thomas More, himself an example of professional rectitude, banished lawyers from his Utopia. Even the gentle Melancholiast becomes incensed enough to say: "Our wrangling lawyers are so litigious and busy here on earth that I think that they will plead their clients' causes hereafter some of them in hell." He seems to insinuate that the bench will be found in that locality also, fully prepared to hear argument. Lord Bacon, forgetting the fragile character of his legal residence, somewhere suggests that the courts are like the bush whereunto the sheep flies for refuge, but is sure to lose a large part of his fleece. This consensus of opinion is certainly trying to the profession, and lawyers, no doubt, feel this universal obloquy. They are consoled by the reflection that whenever one of these various descriptions of people gets into trouble he invariably resorts to one of the long robe for protection. But we cannot be wrong in ascribing much of this disesteem to the uncertainties in the law created by erroneous opinions of courts. It is not strange that in a calling which demands the highest mental powers many should be found wanting. All men must recognize that upon the bench there may be found men without either the capacity or the industry to reconcile the law with the demands of justice; yet it is no less certain that the case is very rare where such a result is impossible. Those judges who cannot attain this result are those who preach the absurd doctrine of "less law and more justice," and commit waste upon the inheritance. The good judge is the rarest thing in the world, and he is as rare in appellate as in nisi prius tribunals. He must have not only a wide and profound knowledge of the law, but the capacity to call all his knowledge to his aid. Acuteness in discrimination he must have, but it will not avail him unless he adds to it the mental power which carries general principles with their applications through long and often complicated matters of fact. But to both those qualities he must bring the support of that constructive imagination which enables him to see the relation of particular instances to the vast body of doctrine which makes up the science of law. Just as necessary is it for him to have that vivid sense which amounts to an intuitive perception of justice. Yet quickness to apprehend, readiness in discrimination, luminosity of thought, are alike unavailing, if not united to that rarer power of suspending judgment until all the considerations the case offers may be fully and fairly presented. This capacity to hear patiently without prejudgment is not often granted to mortals. Rare, indeed, is "The calm eye that seeks Midst all the huddling silver, little worth, It cannot be strange, then, that there are many erroneous decisions. And this fact imposes upon every one who examines the adjudications for the law, the duty of never passing by an error. It may be that the exposure of the error will do little good. It is a melancholy fact that the demolition of the false dicta of Nichols v. Eaton in Gray's Restraints upon Alienation has not stayed for a moment the mistaken decisions of courts, following that most erroneous deliverance of our highest court. But in good time we all must have faith to believe that the sound rule of law will prevail. To aid in this consummation every lawyer, and every law writer, however humble his efforts may be, owes it to the science which he professes, unhesitatingly to condemn error. No right-thinking man, lawyer or judge, would wish his mistake to redound to the discredit of this "noblest of sciences," which has for centuries been waging the battle for human welfare, and will continue to wage it long after we are forgotten. Every one who is a true minister at the altar of justice (justitiam namque colimus et sacra jura ministramus), every one who feeds that sacred flame, is doing his share to free the law from the reproaches that are uttered against her, the sins of maladministration which she is called upon to expiate. It is fortunate that men and their errors count for little in the life of the law. Steadily she moves on to her goal, casting off the false doctrines laid thickly upon her. "Yes, we arraign her, but she Well nigh not to be borne Of the too vast orb of her fate." CHAPTER I. BANKS, ORGANIZATION AND PROOF OF EXISTENCE. § 1. General classification.- The terms bank and banker represent conceptions so commonly understood that a satisfactory definition or classification ought not to be difficult. But banks may be defined by reference to their mode of organization, their methods of doing business, or the functions which they perform. Thus, with reference to their mode of organization, banks may be separated into those which have a corporate form and those which have not such a form, i. e., corporate banks and private banks. Corporate banks would require a division into national banks, which are organized under the federal law, and state corporate banks, which are organized under state laws. Private banks would require division into individual bankers, partnerships and joint-stock companies. But such a division fulfills no useful purpose and is merely formal. Again, with reference to their methods of doing business, banks may be divided into commercial banks and savings banks; but this division is not useful, because the term "savings bank" no longer defines a bank which has no capital stock but divides its profits among its depositors, for many savings banks are now merely commercial banks. Other banks have two departments-a savings counter and a commercial counter. A constantly increasing type of bank is now the trust company, so called. This term is sometimes applied to an ordinary commercial bank; at other times a trust company, besides carrying on a banking business, such as receiving deposits and discounting commercial paper and collecting exchanges, has a department wherein it receives and executes trusts of various kinds, which is not a banking business at all. Often the trust company adds to its other functions a savings department. But this method of classifying banks fulfills no useful purpose, un |