office, the institution will not be responsible for loss sustained when a depositor has not given notice of his book being stolen or lost, if such book be paid in whole or in part on presentment."

Plaintiff's book was stolen and money drawn by two different persons, at two different times, personating the plaintiff. Plaintiff notified the bank immediately on learning the loss of his book, but after the money was drawn out. No officer of the bank personally knew the plaintiff, or the persons drawing the money. The plaintiff made his mark.

The court, after alluding to the inconvenience of strict proof of identity among numerous depositors, says that the depositor undertakes to preserve his book, to give notice if lost, "or, failing to do so, to claim, as against the institution, nothing which shall have been paid in good faith and in the exercise of reasonable care, to any one presenting it."

The court further says: "A payment to the wrong person upon presentment of the book, even before notice of the loss, if it were presented under such circumstances, or in such a manner, as would tend to excite suspicion, or put a man of ordinary prudence upon inquiry, would not exonerate the institution. Its officers are to be held to the exercise of reasonable care and diligence."

We think the rule of law, as laid down in this opinion, a sound one, namely: That the bank officers are bound to reasonable care and diligence. This is not because the deposit is a bailment. There is no obligation assumed to return the specific property deposited. It is a simple loan, with certain conditions as to repayment. Identification of the person who claims the right to receive it is indispensable. If not incorporated into the by-laws, it is so universal a custom that the condition may be fairly considered to have been engrafted upon the original contract by implication, that the bank shall be entitled to reasonable proof of identity, and shall be held to call for it under suspicious circumstances. The condition is as reasonable, and as well known, as that of banks of circulation and deposit, which pay checks only to identified parties. In savings banks the burden is slight upon the depositor, compelling but little delay, while payment to wrong persons would entail serious losses upon the bank. Many depositors are poor and ignorant, living in localities where it is difficult to keep deposit books in safety; obliged sometimes to place their books in the hands of parties who prove unworthy of the trust; and frequently are drawn from a floating population who do not stay long in any one place. Fairness to each side could ask no less than that each should be ready, the one to demand and the other to furnish means of identification.

In the Lewiston case we are at a loss to apprehend why the court should say there was "no evidence even of want of ordinary care, unless the failure to require the party presenting the book to produce other evidence of his identity besides the possession of it is to be so deemed," and then conclude that such failure was not neglectful. The genuine depositor could not sign his name, and was not known at the bank. It does not appear that any memorandum was made at the time they received his deposit upon which future inquiry could be based, or that any per

son witnessed his signature who could be called in to identify him, or that any active steps whatever were taken to satisfy the bank officers that the application was genuine. Is not the fact that a man cannot write his name, coupled with the fact that nobody knows him, enough to put a bank officer on his inquiry? In this case two successive individuals personated the unfortunate owner of the deposit, so as to impose upon the disbursing officer. Yet it was considered that he was reasonably vigilant. Had the officer been deceived on inquiry, had the person called in to indentify the applicant lied to the officer, or had the applicant himself answered correctly a list of questions which it is fair to presume the true depositor only knew, the officer would have performed his duty and the bank been discharged. But, with all deference to so weighty authority as that of the Maine bench, we believe that a rule founded on facts like these will work most unfavorably both to banks and their depositors. We think, on the facts as presented in the report of the case, the bank officer failed to exercise reasonable care; and if our conclusion is a wrong one, it would be well for banks to be required by their charter to obtain personal identification wherever there is reason to suspect fraud in the withdrawal of deposits.

LAW AND LAWYERS IN LITERATURE.*

XX. DICKENS.

Presuming that this author's writings are familiar to every lawyer, if not to every one else, I had not purposed to make any quotations from them or criticisms upon them. But a re-perusal of "Bleak House" has induced me to devote a few moments to some reflections upon this writer. It is commonly urged against Dickens that he is a caricaturist. This cannot be denied. The scenes of life, as he draws them, are colored by his strong imagination and his deep sympathies. His intellectual eyes seem to be what Sam Weller calls "a pair of patent double million magnifying gas microscopes of hextra power." His pictures of the theory and administration of law are doubtless exaggerations, but they are useful ones. In his preface to Les Plaideurs, Racine observes: "For my own part, I think Aristophanes was right in carrying his ideas beyond the bounds of probability. The judges of the Areopagus perhaps would not easily have discovered that he had satirized their natural

avidity for gain, the clever tricks of their clerks, and the tediousness of their advocates. It was proper to exaggerate these personages a little, to enable them to recognize themselves." And so it was proper for Dickens, in the famous trial of Bardell v. Pickwick, to exaggerate the intellectual narrowness of the judge, the skill of advocates in making mountains out of mole-hills, the badgering of witnesses, the garrulity of women, and the stupidity of jurors. But in that superb romance, "Bleak House," I find little exaggeration.

It would, indeed, be difficult even for Dickens to exaggerate the wrongs growing out of the chancery system — that monstrous monument of legal

* Entered, according to Act of Congress, in the office of the Clerk of the District Court of the United States for the Northern District of New York, in the year 1870, by IRVING BROWNE.

into the place; well may the uninitiated from the

tion that our profession can urge for themselves; it is a system invented by the clergy and thrust upon us. We have the same excuse for tolerating it that the present generation of slaveholders had for practicing the crime of slavery. Selden discovered the radical fault of the chancery system two centuries ago. "Equity in law," he says, "is the same that the spirit is in Religion, what every one pleases to make it. Sometimes they go according to Conscience, sometimes according to Law, sometimes according to the Rule of Court. Equity is a Roguish thing: for Law we have a measure, know what to trust to; Equity is according to the Conscience of him that is Chancellor, and as that is larger or narrower, so is Equity. 'Tis all one as if they should make the standard for the measure we call a foot, a Chancellor's foot; what an uncertain measure would this be? One Chancellor

has a long Foot, another a short Foot, a third an indifferent Foot. 'Tis the same thing in the Chancellor's Conscience." He might have added, whatever else it is, the chancellor's foot is always heavy. The proposition substantially made to our present legislature, to return to the distinction between law and equity in this state, strikes me as would a proposal to congress to return to the system of involuntary servitude.

"Bleak House" is generally considered one of the author's failures. To me it is his greatest success. The story is too gloomy, perhaps, to appeal to the ordinary novel-reading taste, but for lawyers it possesses a terrible interest. Believing that our profession are not so familiar with it as they ought to be, let me make some quotations. Is there much exaggeration in his picture of the court of chancery and a chancery suit?

"On such an afternoon, if ever, the lord high chancellor ought to be sitting here, - as here he is with a foggy glory round his head, softly faced in with crimson cloth and curtains, addressed by a large advocate with large whiskers, a little voice, and an interminable brief, and outwardly directing his contemplation to the lantern in the roof, where he can see nothing but fog. On such an afternoon, some score of members of the high court of chancery bar ought to be -as here they are- mistily engaged in one of the ten thousand stages of an endless cause, tripping one another up on slippery precedents, groping knee-deep in technicalities, running their goathair and their horsehair warded heads against walls of words, and making a pretense of equity with serious faces, as players might. On such an afternoon the various solicitors in the cause, some two or three of whom inherited it from their fathers, who made a fortune by it, ought to be-as are they not?-ranged in a line, in a long matted well (but you might look in vain for truth at the bottom of it) between the registrar's red table and the silk gowns, with bills, crossbills, answers, rejoinders, injunctions, affidavits, issues, references to masters, masters' reports, mountains of costly nonsense, piled before them. Well may the court be dim, with wasting candles here and there; well may the fog hang heavy in it, as if it would never get out; well may the stained-glass windows lose their color, and admit no light of day

door, be deterred from entrance by its owlish aspect, and by the drawl languidly echoing to the roof from the padded dais where the lord high chancellor looks into the lantern that has no light in it; and where the attendant wigs are all stuck in a fog-bank! This is the court of chancery; which has its decaying houses and blighted lands in every shire; which has its worn-out lunatic in every mad-house, and its dead in every churchyard; which has its ruined suitor, with his slipshod heels and threadbare dress, borrowing and begging through the round of every man's acquaintance; which gives to moneyed might abundantly the means of wearying out the right; which so exhausts finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is not an honorable man among its practitioners who would not give — who does not often give--the warning, 'Suffer any wrong that can be done you rather

than come here!'

"Who happened to be in the lord chancellor's court this murky afternoon besides the lord chancellor, the counsel in the cause, two or three counsel who are never in any cause, and the well of solicitors before mentioned? There is the registrar below the judge, in wig and gown; and there are two or three maces, or petty-bags, or privy-purses, or whatever they may be, in legal court suits. They are all yawning, for no erumb of amusement ever falls from JARNDYCE AND JARNDYCE (the cause in hand) which was squeezed dry years and years ago. The shorthand writers, the reporters of the court, and the reporters of the newspapers, invariably decamp with the rest of the regulars when Jarndyce and Jarndyce comes on. Their places are a blank. Standing on a seat at the side of the hall, the better to peer into the curtained sanctuary, is a little mad old woman in a squeezed bonnet, who is always in court, from its sitting to its rising, and always expecting some incomprehensible judgment to be given in her favor. Some say she really is, or was, a party to a suit; but no one knows for certain, because no one cares. She carries some small litter in a reticule, which she calls her documents, principally consisting of paper matches and dry lavender. A sallow prisoner has come up, in custody, for the half-dozenth time, to make a personal application 'to purge himself of his contempt;' which, being a solitary surviving executor who has fallen into a state of conglomeration about accounts of which it is not pretended that he ever had any knowledge, he is not at all likely ever to do. In the mean time his prospects in life are ended. Another ruined suitor, who periodically appears from Shropshire, and breaks out into efforts to address the chancellor at the close of the day's business, and who can by no means be made to understand that the chancellor is ignorant of his existence, after making it desolate for a quarter of a century, plants himself in a good place and keeps an eye on the judge, ready to call out My lord!' in a voice of sonorous complaint, on the instant of his rising. A few lawyers' clerks and others, who know the suitor by sight, linger, on the chance of his furnishing some fun, and enlivening the dismal weather a little.

"Jarndyce and Jarndyce drones on. This scare-crow

of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two chancery lawyers can talk about it for five minutes, without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have been married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce, without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant, who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled, has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth, perhaps, since old Tom Jarndyce in despair blew his brains out at a coffee house in Chancery lane; but Jarndyce and Jarndyce still drags its weary length before the court, perennially hopeless.

"Jarndyce and Jarndyce has passed into a joke. That is the only good that has ever come of it. It has been death to many, but is a joke in the profession. Every master in chancery has had a reference out of it. Every chancellor was 'in it,' for somebody or other, when he was counsel at the bar. Good things have been said about it by blue-nosed, bulbous-shoed old benchers, in select port-wine committee after dinner in hall. Articled clerks have been in the habit of fleshing their legal wit upon it. The last lord chancellor handled it neatly, when, correcting Mr. Blowers, the eminent silk gown, who said that such a thing might happen when the sky rained potatoes, observed, or when we get through Jarndyce and Jarndyce, Mr. Blowers;'- -a pleasantry that particularly tickled the maces, bags, and purses.

"How many people out of the suit Jarndyce and Jarndyce has stretched forth its unwholesome hand to spoil and corrupt, would be a very wide question. From the master upon whose impaling files reams of dusty warrants in Jarndyce and Jarndyce have grimly writhed into many shapes; down to the copying clerk in the Six Clerks' Office, who has copied his tens of thousands of chancery folio pages under that eternal heading; no man's nature has been made better by it. In trickery, evasion, procrastination, spoliation, botheration, under pretenses of all sorts, there are influences that can never come to good.

"Thus, in the midst of the mud, and at the heart of the fog, sits the lord high chancellor in his high court of chancery.

"When we came to the court, there was the lord chancellor, the same whom I had seen in his private room in Lincoln's Inn, sitting in great state and gravity on the bench; with the mace and seals on a red table below him, and an immense flat nosegay, like a little garden, which scented the whole court. Below the table, again, was a long row of solicitors, with bundles of papers on the matting at their feet; and then there were the gentlemen of the bar in wigs and

gowns- —some awake and some asleep, and one talking, and nobody paying much attention to what he said. The lord chancellor leaned back in his very easy chair, with his elbow on the cushioned arm, and his forehead resting on his hand; some of those who were present dozed; some read the newspapers; some walked about, or whispered in groups; all seemed perfectly at their ease, by no means in a hurry, very unconcerned, and extremely comfortable.

"To see every thing going on so smoothly, and to think of the roughness of the suitors' lives and deaths; to see all that full dress and ceremony, and to think of the waste, and want, and beggared misery it represented; to consider that, while the sickness of hope deferred was raging in so many hearts, this polite show went calmly on from day to day, and year to year, in such good order and composure; to behold the lord chancellor, and the whole array of practitioners under him, looking at one another, and at the spectators, as if nobody had ever heard that all over England the name in which they were assembled was a bitter jest, was held in universal horror, contempt, and indignation; was known for something so flagrant and bad that little short of a miracle could bring any good out of it to any one; this was so curious and self-contradictory to me, who had no experience of it, that it was at first incredible, and I could not comprehend it.

"When we had been there half an hour or so, the case in progress - if I may use a phrase so ridiculous in such a connection-seemed to die out of its own vapidity, without coming, or being by anybody expected to come, to any result. The lord chancellor then threw a bundle of papers from his desk to the gentleman below him, and somebody said 'JARNDYCE AND JARNDYCE.' Upon this there was a buzz and a laugh, and a general withdrawal of bystanders, and a bringing in of great heaps, and piles, and bags, and bagsful of papers.

"I think it came on for further directions,' — about some bill for costs, to the best of my understanding, which was confused enough. But I counted twentythree gentlemen in wigs, who said they were 'in it;' and none of them appeared to understand it much better than I. They chatted about it with the lord chancellor, and contradicted and explained among themselves, and some of them said it was this way, and some of them said it was that way, and some of them jocosely proposed to read huge volumes of affidavits, and there was more buzzing and laughing, and everybody concerned was in a state of idle entertainment, and nothing could be made of it by any body. After an hour or so of this, and a good many speeches being begun and cut short, it was 'referred back for the present,' and the papers were bundled up again, before the clerks had finished bringing them in."

There does not seem to be much exaggeration in this to any one who has charge of a suit a quarter of a century old, as I have. Mine has outlasted one constitution of our state, and the constitutions of half a dozen attorneys. As there are a large number of defendants who are continually dying off, most of my efforts, since I came into the suit six years ago, have been devoted to dragging it out of the grave. The action is to enforce a legacy. My client himself, who

is only the administrator of the original plaintiff, has outlived the Almighty's statute of limitations. My own connection with the suit serves forcibly to remind me of the frail tenure of human life, and the emptiness of its pursuits. Now, in all this, there ought not to be any thing to excite derision, but a notice of trial, on my part, is the signal for an immense amount of skeptical merriment on the part of the defendants' attorneys. Some of them even go so far as to assume an air of injury; as if I were doing something unbecoming in pressing for a decision. All of them regard the litigation as a huge joke. This, too, under our system, which makes no distinction between law and equity. The inquiry arises in horribly gigantic proportions: What would become of my clients' rights in chancery?

Elsewhere, in the same book, Dickens says: "The one great principle of the English law is, to make business for itself. There is no other principle distinctly, certainly and consistently maintained through all its narrow turnings, Viewed by this light, it becomes a coherent scheme, and not the monstrous maze the laity are apt to think it. Let them but once clearly perceive that its grand principle is to make business for itself, at their expense, and surely they will cease to grumble."

The argument that the abolition of the system would entail disaster on the class of solicitors is thus set forth and answered by our author: "The respectability of Mr. Vholes has even been cited with crushing effect before parliamentary committees, as in the following blue minutes of a distinguished attorney's evidence: Question (number five hundred and seventeen thousand eight hundred and sixty-nine). If I understand you these forms of practice indisputably occasion delay? Answer. Yes, some delay. Q. And great expense? A. Most assuredly they cannot be gone through for nothing. Q. And unspeakable vexation? A. I am not prepared to say that. They have never given me any vexation; quite the contrary. Q. But you think that their abolition would damage a class of practitioners? A. I have no doubt of it. Q. Can you instance any type of that class? A. Yes; I would unhesitatingly mention Mr. Vholes. He would be ruined. Q. Mr. Vholes is considered, in the profession, a respectable man? A. - which proved fatal to the inquiry for ten years - Mr. Vholes is considered, in the profession, a most respectable man.' So in familiar conversation, private authorities, no less disinterested, will remark that they don't know what this age is coming to; that we are plunging down precipices; that now here is something else gone; that these changes are death to people like Vholes - a man of undoubted respectability, with a father in the Vale of Taunton, and three daughters at home. Take a few steps more in this direction, say they, and what is to become of Vholes' father? Is he to perish? And of Vholes' daughters? Are they to be shirt-makers or governesses? As though Mr. Vholes and his relations being minor cannibal chiefs, and it being proposed to abolish cannibalism, indignant champions were to put the case thus: Make man-eating unlawful, and you starve the Vholeses!"

To my mind there is no exaggeration in poor Miss Flite, the crazy chancery suitor, who caged canary

birds and called them the wards in chancery, naming them Hope, Joy, Youth, Peace, Rest, Life, Dust, Ashes, Waste, Want, Ruin, Despair, Madness, Death, Cunning, Folly, Words, Wigs, Rags, Sheepskin, Plunder, Precedent, Jargon, Gammon and Spinach. To my mind there is no exaggeration in the story of the two wards in Jarndyce, whose hapless destinies were united by marriage, and whose earthy union was sundered by a broken heart on the day when the legal lamp in the case of Jarndyce and Jarndyce went out for want of pecuniary oil. To my mind there is no exaggeration in the scene in which our author depicts the merriment and derision with which the bar received the intelligence that Jarndyce and Jarndyce was "over for good," and saw the papers carried out—“bundles in bags, bundles too large to be got into any bags, immense masses of papers of all shapes and no shapes, which the bearers staggered under, and threw down for the time being, any how, on the ball pavement, while they went back to bring out more." And so great is the power of education, of precedent, and of habit, that to my mind there is no exaggeration in the absurd pride with which Mr. Kenge refers to Jarndyce and Jarndyce as "a monument of chancery practice," and boasts "that on the numerous difficulties, contingencies, masterly fictions and forms of procedure in this great cause, there has been expended study, ability, eloquence, knowledge, intellect," and that "the matured autumnal fruits of the woolsack have been lavished upon Jarndyce and Jarndyce." It is not unnatural for lawyers to feel in this way, who are brought up under a system in which their incomes depend in a great measure upon the number of words they can employ to express an idea, and in which success is very essentially dependent on their skill and adroitness in misleading their adversaries. Still less does this work deserve the charge of exaggeration, when we read in the author's preface, that "at the present moment," 1853, "there is a suit before the court which was commenced nearly twenty years ago, in which from thirty to forty counsel have been known to appear at one time; in which costs have been incurred to the amount of seventy thousand pounds; which is a friendly suit, and which is (I am assured) no nearer to its termination now than when it was begun. There is another wellknown suit in chancery, not yet decided, which was commenced before the close of the last century, and in which more than double the amount of seventy thousand pounds has been swallowed up in costs." And we may be sure Mr. Dickens does not exaggerate when he assures us, in the preface, that, "every thing set forth in these pages, concerning the court of chancery, is substantially true, and within the truth."

While, then, the trial scene in Pickwick Papers is a piece of ingenious pleasantry, the prison scene in the same work, and the whole of Bleak House and of Little Dorritt, are something better and more useful. They are full of that broad and earnest humanity which is the key-note and theme of all Mr. Dickens' works, and which renders him the most engaging and influential writer of English fiction since Shakespeare.

But truth is better as well as stranger than fiction, and the most potently useful words written upon law