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FORMERLY, a legal treatise on a branch of the law was a digest improved by a more orderly arrangement of principles. There was not much in the way of criticism; occasionally an author would dare to fill in a gap with a proposed rule of his own. Story especially, with his great learning and high judicial position, dared venture much further in this direction than any of his predecessors, drawing largely from the rich mine of the civil law, of which he was a diligent and admiring student. The stream of judicial decision rapidly widened and soon overflowed in many diverse directions. Subsequent authors rarely. went far in criticising the diversities, contenting themselves with a presentation of the varying, discordant scene, and leaving the reader to find his way to safe ground quite by himself.
In consequence of the rapidly rising flood of cases much more than this is required of the legal writer to-day. All the principles pertaining to his subject with their modifications should be presented in an orderly manner. And when different views are set forth about a principle and compete for wider judicial recognition, not only should these clearly appear, upheld by their respective authorities; but, if possible, the stronger or better rule, or one more adequately sustained by reason and authority should be given. As many common law principles have been superseded or modified by statute, these changes ought also to appear that the truth may be known and delusion avoided. How far the author of this work has succeeded in accomplishing these purposes others will judge. Happy will he be should that judgment justify his undertaking.
Since the text of this work was in type, Illinois has overthrown the rule, that the delivery of a check has the effect of assigning the deposit on which it was drawn to the holder. As Illinois is the birthplace of the rule, its complete extinc
tion in other states will doubtless soon follow. Since experience has clearly proved its unsoundness, would not a more satisfying result have followed if the departure had been less radical? Had the court in Munn v. Birch decided that the giving and delivery of a check for value worked an assignment after its presentation for payment, it would have been in harmony with the rule that is now grounded in the jurisprudence of many states, that a third party to a contract, made for his benefit, supported by an adequate consideration may be enforced by him, even though he be a stranger.
A word may be added concerning the author's use of cases. On fundamental principles no attempt has been made to cite all of them, for obvious reasons. In support of principles not so well established, the author has sought to glean from every source. This is the explanation for the use of many minor authorities.
In the citation of so many cases some errors could hardly be avoided. All that are likely to mislead are given in a note on page x. Some slighter errors which, it is believed, will not mislead any one, have not been noticed.
Though the judicial interpretation of the National Bank Act has been fully treated in this work, the inclusion of the Act itself is by the advice of legal friends and bankers, whose judgment the author deemed too weighty to disregard.
A S. B.