conclusions to which it leads - a labor which the authors should

have saved him.

An error of a more serious character than any which we have hitherto noticed, occurs in the following passage.

"The liability of a corporation as bailee, is, like that of a natural person, to be determined by the nature of the bailment the degree of care required from it, and the degree of care or diligence used. In case of a general deposit accordingly, as a bank receives profit from the use of the money deposited, it is liable for ordinary neglect, and is bound to pursue the course usual with banks in such matters whereas in case of a special deposit, from which it receives no profit whatever, but which is merely for the accommodation of the bailor, it is liable only for gross neglect, equivalent in its effects upon contracts, to fraud.' pp. 134, 135.

It is difficult to imagine what ideas the authors can intend to convey, when they say that in case of a general deposit a bank 'is only liable for ordinary neglect, and is bound to pursue the course usual with banks in such matters.' The least thought on the subject would have satisfied them, that in case of a general deposit, the depositor is the lender, and the bank the borrower, of the money deposited, which ceases to be the property of the depositor, and becomes that of the bank, and that the obligation of the bank is to repay the depositor an amount of money equal to that deposited by him, with or without interest, according to the agreement of the parties. To suppose the principles of the law of bailments could apply to a simple loan of this kind, is a strange and almost ludicrous blunder. It is but justice to say that the opinion of the court in the case cited by the authors, Foster v. Essex Bank, 17 Mass. R. 479, affords no ground for the position taken by them. The part of the opinion of Ch. J. Parker on which they probably rely, as it seems particularly referred to, is as follows: It was urged by the plaintiffs' counsel, that this is not a naked bailment, but is accompanied with an advantage from the use of the property, or the credit derived from the custody of it; and that this ought to be viewed in the light of a reward, so that the case will be brought within the principle of bailment for hire or reward. If it be so, the principle applicable to this species of bailment goes no further than to make the bailee liable in case of ordinary neglect; so that if he shows that he used due care, and nevertheless the goods

were stolen, he would be excused.' It is evident that in this passage no comparison is attempted between general and special deposits. Every thing that the judge says is in reference to the case of the special deposit before him. It is merely an admission that if in the case of a special deposit, the bank received any advantage from the use of the property or the credit derived from the custody of it, the bank would be liable for ordinary neglect. He afterwards shows that the bank does derive no such advantage from a special deposit, and therefore concludes that it is only liable for loss arising from gross negligence or fraud in regard to it.

ART. VIII.—THE CITING OF AUTHORITIES.

De La Jurisprudence Des Arrêts. Par A. M. J. I. DUPIN, Avocat et Docteur en droit a L'Université de Paris. 1825. WE presume that this little treatise is not unknown to many of the readers of the Jurist. We have placed it at the head of this article, not so much with a view of giving a detailed account of its contents, as a convenient title to a brief essay of our own. In the course of our remarks, however, we shall not fail to draw upon the sentiments of its distinguished author wherever they may seem to us capable of shedding any light upon the subject matter of discussion.

In the very commencement of the Jurisprudence Des Arrêts, Dupin laments the excessive augmentation of law books in France; and aims a sarcastic and pointed rebuke at those who contribute so largely to this mischief, by their loose and endless citation of decisions upon every question which they may have occasion to agitate before the courts. Nothing,' says he, 'is more common at the present day than the citation of arrêts. A class of advocates who have no pretensions to any other science, still pride themselves upon their ability to array a phalanx of decided cases.' It has struck us that this remark is not without force upon this side of the Atlantic, for any lack of a similar class in the profession to which it may be justly applied. Indeed this species of professional pedantry is very common

among us. We lately observed a report of a case decided in one of the neighboring States, in which the counsel in defence cited no less than one hundred and twenty authorities. It is true that the cause was one of importance, elaborately argued by counsel, and gravely considered by the court; and one which necessarily involved a considerable variety of legal principles. The mode, however, in which a considerable portion of this formidable array of authorities (using the word here as synonymous with decided cases,) was mustered, will be readily understood, by stating an instance of the latitude with which they were cited to a single point which was incidentally made in the course of the proceedings.

In this case the plaintiff had failed to insert any ad damnum in his writ. The error was not discovered till after verdict. Then arose the question "Whether the want of an ad damnum was a defect amendable before judgment?' In opposition to the motion to amend, the counsel in defence referred to no less than sixteen decided cases as authorities. If a single one of these had been directly in point, and remained uncontradicted, it was, according to the doctrine of courts, of binding efficacy, and consequently sufficient to defeat the motion. This, however, was not the case. The question was regarded as a new one. All these authorities, then, were necessarily but so many analogies more or less remote, and the marshalling of them a mere process of induction. As to the degree of force which they might possibly exert in this way, there might, perhaps, be some little difference of opinion; one would hardly suppose, however, that they could possibly have sufficient weight to justly entitle them all to a place in the reported argument on the question. Modica enim circumstantia varietas totum plerumque jus immutat. And this ancient and peremptory maxim of the law contains a wholesome admonition to both lawyers and judges, not to be too prodigal in the use of mere analogies.

The instance above pointed out may be a strong one, though, as we believe, by no means very extraordinary. The practice. of an excessive citation of cases has become a very general abuse, the causes of which are not very difficult to discover; and if some of these shall be found not remarkably flattering to the profession, the evil is not, on that account, to be regarded

with any particular indulgence, or the correction of it deemed a matter of slight importance.

It is not a very harsh supposition to attribute a considerable portion of this evil to downright professional pedantry. A long list of citations is, in some sort, prima facie evidence that the counsel who brings them into court has seen something more of them than the mere memorandum of reference contained on his brief. The presumption is, in the absence of evidence to the contrary, that each of these cases has been made the subject of particular investigation and study. Where the number of citations amount to scores, scattered through an equal number of volumes, and spread over hundreds of pages, they certainly convey no slight compliment to the learning and industry of the individual who has had the patience and research to furnish himself with the materiel of forensic warfare, drawn from such an immense variety of sources. What a prodigiously learned man must he be who has consulted so many books! What question can there be of the erudition of the advocate who invokes to his cause the awful oracles of the Year Books - who calls in as allies Fitzherbert and Rastel, refers you to Croke Elizabeth and Croke James, and down through a long line of their successors? All this has the appearance of great erudition, and yet, as every lawyer knows, it may all be effected with very little labor and less learning. All that is necessary is a transcript from some title in a tolerable digest, or a copy of the references collected in some leading case of an analogous character. Much do we fear that this imposing patchwork, which so often enlarges the philactery of professional vanity, is not the honest work of the wearer it adorns, but pilfered ready-made from some other's wardrobe.

It is not vanity alone which has created and perpetuates this abuse. The source of the mischief lies deeper. Indeed, we are inclined to think, that a want of correct ideas as to the real object and true value of reported decisions, has more than any thing else, led to this unfortunate habit of encumbering our Reports with unnecessary and perplexing references. If the point at issue is one on which the law is clear and positive, as in the instance of a general principle of law reduced to a formula by statute, or declared in comprehensive and definite terms by a maxim of acknowledged authority, there is surely no need of a

reference to any other authority than the written text which embodies the law. Every thing beyond that can only confuse and not elucidate the subject. If the lawyer can place his case upon some well established principle of law he has placed it on a safe foundation. It stands well without any collateral aid. A scaffolding of analogies may impair its symmetry, may even partially cover up and hide from view the firm base on which it rests, but the lumber of such props can never add one jot to the strength of its position. Or, to use the still more forcible illustration of a French commentator, why attempt to gather the scattered and imperfect rays of light from objects which only reflect them, when we may warm ourselves in the open sunshine?'

It may be said, and with entire truth, that cases will arise in the changing business and fluctuating relations of society, which are in a measure new, and which cannot be readily brought within the application of any fixed and well defined principle of law. It is also admitted that they will arise far more frequently under an unwritten, than under a written system of law. What course is the judge or advocate to pursue to arrive at a satisfactory solution of these novel problems? Two modes offer themselves to his assistance; and he may put himself under the direction of either; — or, indeed, he may avail himself of their united aid. He may plunge into the deep and darksome mine of judicial decisions, and fishing up here and there a detached fragment of law, connect, as well as he may be able, the disjointed atoms, and in this way lay a foundation for his opinion. When he has done this, he will, it is true, have laid a legal foundation for his judgment, his decision will rest on authority, and the result may be correct. The process, however, by which

he has attained it, is one of the most difficult which the intellect of man can be called to accomplish; and when laborious research and critical discrimination have done their utmost, we doubt whether a conclusion thus based is one on which the mind often reposes with a feeling of entire security. The structure is at best but a piece of mosaic laid down of fragmentary materials, differing from each other as widely in their proportions, age, and consistency, as the sources from which they are drawn are remote and various. There is nothing in the work, after it is finished, which its laborious builder can call his