Imágenes de páginas
PDF
EPUB

and exchange funds, will make advances on cotton under the following rules and regulations.'

“Here the object and purpose is distinctly stated, but however laudable the end might be, it will not justify the use of unlawful means. It is stated that the bank would make advances on cotton,' and this expres. sion was laid hold of as showing the character of the transaction; but it is obvious that the bank could not, by affixing a particular name to it, alter its character. This instrument like all others must be considered altogether to arrive at its meaning, and it is expressly stated in the preamble, that the advance' will be made under the following rules and regulations;' to them therefore we must look to ascertain its true intent and meaning.

"The sum of these articles’ is, that any person having cotton in possession might have it valued, and upon its delivery to the agent of the bank, receive an advance thereon, noi to exceed twenty-five per cent. above the actual value; and should thereupon give his bill for the amount received, payable in nine months, with two good endorsers. The cotton so received by the bank was to be shipped by it, at the risk and expense of the owner, who had the right to limit the price and time for and at which the cotton should be sold; but this power ceased at the expiration of four months from the time of the arrival of the cotton in a foreign port. Upon its sale, the net proceeds were to be placed to the credit of the bill, with interest at six per cent. per annum; the excess, if any, to be paid by the bank to the shipper, who was also to be entitled to the benefit of all difference of exchange, when the cotton was sold in a foreign port, except one per cent, which the bank was allowed to retain. The bank to be accountable for no losses but those arising from the misconduct or mismanagement of their agents. In the event the proceeds of the cotton did not pay the bill, the bank agreed to take for the deficiency a good bill on New York, not having longer to run than the fifteenth of February thereafter, if offered twenty days before the first bill fell due."

In pursuance of an arrangement with the bank, of the kind above described, Bates and Himes delivered to its agent in Mobile one thousand and twenty-two bales of cotton, and, on the credit of it, obtained an advance of seventy-nine thousand six hundred and thirty-two dollars and seventy-five cents, for which they drew sixteen bills of exchange of five thousand dollars each. The simple statement of the wnole transaction seems to be, that the bank discounted sixteen bills of exchange, each for the sum of five thou. sand dollars, of the same date and having the same time to run, with the collateral security of a shipment of cotton. An-action having been brought by the bank and judgment recovered therein on one of these bills, against Bates and Himes, the drawees, the case was then removed by the defendants to the supreme court by a writ of error. Two questions were made, namely: 1, whether the prohibition to purchase bills of exchange for a larger sum than five thousand dollars was infringed by the negotiating of the sixteen bills in this case amounting in the whole to eighty thousand dollars; and, 2, whether the delivery of the cotton to the bank for the purpose above siated was a dealing therein contrary to the provision of the charter. These questions were, of course, raised by the defendants, as a defence to the action ; but a further question was made by the court, namely, whether, supposing the bank to have infringed its charter, in these particulars, the defendants could take advantage of it as a defence. The supreme court decided the first question in the affirmative, and the second in the negative, (justice Goldthwaite dissenting), but they also held, that both the charter provisions were directory merely, and could not be taken advantage of by a party to a transaction infringing them. We should be glad to present these able opinions to our readers, at length, if our limits would permit; but, as it is, we can do no more than express our entire concurrence in the judgment of the

court.

6. - A Digest of the Penal Law of the State of Louisiana,

analytically arranged By M. M. ROBINSON, Attorney at Law. New Orleans: Published for the author, 1841.

The criminal code of Louisiana will always have a peculiar interest, both for those who are concerned in the reform of the law, and for the legal profession, in general, from the circumstance of its having been the occasion of the preparation of Mr. Livingston's celebrated work, the fame of which has gone abroad into all lands. Many persons, indeed, suppose that his system of criminal law was adopted by the state, and is now the law of Louisiana'; but. VOL. XXVI.

33

NO. LII.

this is a great mistake. At the time Mr. Livingston made his report, the state was in no condition to put his system into operation, even if it had met with universal favor (which it was far from receiving); inasmuch as it was wholly predicated upon and calcu. lated for penitentiary punishments, which the state had then no appropriate means of inflicting. The penal code of Louisiana did not, therefore, gain any thing, as the direct result of Mr. Liv. ingston's labors ; which, in fact, seem to be appreciated every where else better than in Louisiana. Nor does it seem to have derived any indirect advantage from these labors, in the way of suggestions for future legislative provisions. From the statement of Mr. Robinson, in his preface, the criminal law of Louisiana appears to have grown up in the same manner, and to be now in a similar condition, with that of the other states of the union.

“The want of some convenient arrangement of the penal laws of the state, has been generally felt. No revision of the laws having ever been made, it has become not a little difficult to ascertain, among the mass of statutes that have accumulated since the organization of the territorial government, what portion still retains the force of law. The embarrassment resulting from this state of things, seems not to bave been confined to those engaged in the administration of the law. The recurrence, in different acts, of provisions often identical, and the occasional enactment of special statutes for cases already embraced in some general provision of the law, prove, that even those intrusted with the business of legislation, have not always been aware of the existence of laws to be found in the statute book, and still in full force.

“The digest of the laws published under the authority of the legislature in the year 1828, was prepared without any attempt at a general revision. Nor was any effort made in that compilation, to separate the penal code from the mass of general and private acts, though the attention of the legislature appears to have been turned to the importance of such an arrangement as early as the year 1821, when an act was passed under which the late Mr. Livingston was employed to prepare a code of criminal law for the consideration of the general assembly. The projet reported by that eminent lawyer did not receive the sanction of the legislature."

Mr. Robinson has divided his work into two books, viz. : First, Of the Nature and Punishment of Offences, containing nine chap

ters, 1, of crimes and inisdemeanors ; 2, Of accessaries; 3, Of. fences against the government; 4, Offences against public justice; 5, Offences against the public peace ; 6, Offences against public. trade; 7, Offences against the public police or economy; 8, Of. fences against the persons of individuals ; and 9, Offences against the habitations and property of individuals; and, Second, Of the Means of preventing and punishing Offences, also containing nine chapters, 1, of the means of preventing offences ; 2, Courts of criminal jurisdiction and subordinate officers; 3, Summary judg. menis ; 4, Arrest, commitment, and bail ; 5, Of the several modes of prosecution ; 6, Of arraignment; 7, Trial and conviction; 8, Judgment and its consequences; and, 9, Reprieve, pardon, and exccution. The index is very full and complete.

This digest, so far as we are able to judge of it, seems to be well and faithfully executed ; and cannot fail to be of great public utility in Louisiana.

7. - Reports of Cases determined in the Supreme Judicial Court

of the State of Maine. By John SHEPLEY, Counsellor at Law. Volume V. (Maine Reports, volume xvii). Hallowell : Glazier, Masters and Smith : 1841.

Less than a year ago, we had occasion to notice Mr. Shepley's fourth volume, and, at the same time, to allude to his loss of the office of reporter, by the fortune of (political) war. Since then, the fortune of war has changed, and Mr. Shepley's political friends being now in power, in Maine, we suppose we may consider him as good as restored to office. But, in the meantime, his successor must have got some materials for a volume, though probably not many decisions, and what is to become of them? Is each re. porter to conclude the cases begun by him? or is he to turn over the unfinished ones to his successor ? or are they to become joint reporters, for a certain period ?

What nonsense it is, to make the office of reporter a political one, dependent upon the ballots cast for a wholly different object. We sincerely hope that when the whigs next come into power, in Maine, they will set a good example and continue the reporter in

8.

office, if he is a good officer, although he may happen to belong to the party of their political opponents. This is the only way by which they can destroy the strength of the bad precedent, estab"lished by the other party, in the removal of Mr. Greenleaf. This never-ending change in the office of reporter, (no less than five persons have held the office in twenty years), is about as sensible and judicious, as would be the employment, in succession, of as many different tailors, to work upon the same garment, or of as many different architects, upon the same edifice. We have no doubt, that, to this cause, in part, must be ascribed the falling off of the Maine cases, in value and importance, and the greatly diminished interest, with which they are received by the profession, in other states.

Commentaries on the Law of Partnership, as a Branch of Commercial and Maritime Jurisprudence, with occasional Illustrations from the Civil and Foreign Law. By JOSEPH STORY, LL.D. Boston: C. C. Little & J. Brown.

Though we have not had an opportunity to peruse this new work from the prolific brain and rapid pen of the most indefatigable and successful writer of law books, now living, we have no hesitation in saying, that it will fully sustain the already established reputation of its author, and be of very great utility not merely to lawyers and judges, but to all who are engaged in commercial pursuits.

Chancellor Kent, in a letter to the editor of the Louisiana Law Journal, dated July 31, 1841 (on which day the venerable writer attained the age of seventy-eight) bears the following testimony to the merits of Mr. Justice Story and his works :

“I think all the treatises of my friend Story are, upon the whole, the most finished and perfect of their kind, to be met with in any language, foreign or domestic, and, for learning, industry, and talent, he is the most extraordinary jurist of the age.” However we might differ, in some particulars, from the first part of this judgment, we heartily concur in the second. In our opinion, and to the honor of our country be it spoken, Mr. Justice Story, " for learning, industry, and talent, is the most extraordinary jurist of the age.”

« AnteriorContinuar »