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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,
The one thin piece that comes pure gold."

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

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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.

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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

less the term "savings bank" is restricted to the old type of savings bank, which shows tendencies toward obsolescence. Regarding banks with reference to their functions, the usual division would be banks of issue, banks of discount, and banks of deposit. Banks of deposit would include savings banks. But this division is not valuable, for the reason that there are no banks purely of issue or purely of discount. The national banks alone are banks of issue, but they are also banks of deposit and discount. State banks of issue no longer exist, but all commercial banks, corporate as well as private, are banks both of deposit and discount. Therefore this division fulfills no useful purpose, but it is advantageous as an aid in defining the meaning of the term "banking powers." Since this latter term is often used in statutes in a general way, it becomes absolutely necessary to define the term "bank," and thus, as incidental thereto, to define the phrase "banking powers." This definition must be sought for in the decisions. But in law as in every other science, where terms in common use are utilized, the meaning of a word will often vary with reference to the circumstances in which it is used. From one point of view in the law, courts have found it necessary to define the word "bank" in terms which will not be satisfactory from another point of view. It is a truism, frequently disregarded, that the language of a court should never be considered apart from the circumstances of the particular case in regard to which the language is used. Especially is it true that the framers of statutes and constitutions have used legal terms without any accurate judgment of the result. The courts, in consequence, in order to do justice to litigants, have often been compelled to do violence to language. In construing a penal or prohibitory statute, the word "bank" has had in some instances a different meaning from that which it has borne to a court construing a revenue or a license tax law. It will therefore be sought to define the words "bank" and "banker" with reference to the language of decisions, keeping in mind the particular connection in which the language is used.

§ 2. General definition. A learned and generally accurate judge,' attempting a general definition, has defined a banker to be "one who keeps a place for the traffic of money; who there receives it from others and keeps it with his own, using the whole fund as his own, or remits it at request to other places; who repays it at the will and call of his customer; who furnishes money to others on the discount of their obligations, or on securities brought by them; and who buys and sells bills of exchange. To these is sometimes added the issuing of his notes to pass as money, when allowed by law to do so." This definition ignores, however, savings banks as that term was originally understood. In a brief of D. B. Ogden, 13 Pet. 530, and in Bank v. Collector, 3 Wall. 495, repeated by the same judge,3 with a historical summary, in Oulton v. Savings Institution, 17 Wall. 118, is the usual definition found in the encyclopedias: "Banks, in the commercial sense, are of three kinds, to wit: 1, of deposit; 2, of discount; 3, of circulation." To this is added by the court the statement: "All or any two of these functions may, and frequently are, exercised by the same association, but there are still banks of deposit without authority to make discounts or issue a circulating medium." The court also states that any one of the three functions makes a bank." But this latter statement is not accurate, because a discounter of notes, who is often called a "note-shaver," is not ordinarily considered a banker, nor is one who loans his

1 Foulger, J. Compare with this definition the language of section 3407, Revised Statutes, and the decision in Richmond v. Blake, 132 U. S. 592. The decisions in Bank v. Collector, 3 Wall. 495, and Oulton v. Savings Institution, 17 Wall. 118, proceed upon the same general theory of defining the term by reference to the business functions which the banker performs.

2 People v. Doty, 80 N. Y. 225, 228. This definition is not expressed in terms so general (but which are

fully as accurate) as the phrase of Mr. Horn: A bank is "an office for the circulation of capital in the form either of accumulated labor (money of all kinds), or of labor yet to be done (credit)." 1 Encyc. Pol. Science, 228.

3 Clifford, J.

Bank v. Collector, supra.
5 Oulton v. Sav. Inst., supra.

6 People v. Brewster, 4 Wend. 498. But this case is perhaps to be better considered as a case of statutory construction. See People v. Bar

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