Atlantic, to present any thing that would approach the masterly work of Mr. Tidd on the practice of the law, and, as to the practice in equity, although many excellent works have been published, nothing has been produced equaling in excellence the work of Mr. Daniell on Chancery Pleading and Practice. Indeed, what Tidd has been to the common lawyer, Daniell has been, and is, to the equity practitioner. Edition after edition of his work has been issued in England, and its preeminent merits have rendered it "the standard of reference in English chancery practice."

The labors of Mr. Perkins, the American editor, have rendered this work as valuable to the American lawyer as to the English. He has entered thoroughly into the spirit of his work, and has displayed ability and judgment commensurate with the subject, and a wonderful amount of research among American decisions. To the ten thousand cases cited in the English edition, over six thousand American cases are added to this edition, which certainly ought to be some evidence in itself that the work has been thoroughly "Americanized." These cases have not been only barely cited, but wherever they tended to modify, alter or extend the language of the text, the fact has been clearly and concisely set forth in the notes.

One of the most valuable features of this edition is the elaborate collection of forms and precedents to which the third volume is devoted. Essential as are precedents in common-law proceedings, they are much more so in equity practice.

In ancient days, forms and proceedings in equity were brief and simple, and suitable to the few exigencies of society; but the increase and complication of the common business of life have rendered, perhaps, unavoidable, the refined, elaborate and complicated system of the present day. "Equity proceedings have become," says Mr. Justice Story, "a science of great complexity, and exhibit a very refined species of logic, which it requires much talent to master in all its various distinctions and subtle contrivances, and to apply with sound discretion and judgment to the diversities of professional practice. The ability to understand what is the appropriate remedy and relief for the case, to shape the bill fully, accurately and neatly, without deforming it by loose and immaterial allegations, or loading it with superfluous details, and to decide who are the proper and necessary parties to the suit, this ability requires various talents, long experience, sound learning, and superior clearness and acuteness of perception." Where this exalted ability is wanting, as it generally is, it may be supplemented by this practice and the precedents given.

Mr. Perkins informs us that these forms have been carefully selected from the most approved English form books, and from the records of the United States and State courts, and have been carefully revised in every particular, and made to square with the law as it exists in this country.

Without rendering ourselves liable to the charge of undeserved laudation we may safely say that the clearness of statement, the well-ordered arrangement, the exhaustive citation of authorities in support of each principle set forth or direction given, and the elaborate and methodical index, render the work before us superior to any equity practice ever published and one that no practitioner can afford to be without.

We cannot let the opportunity pass of expressing our admiration of the mechanical execution of this

and the other works published by Messrs. Little, Brown & Co. In paper, printing and binding their publications are invariably superior to the publications of any other house in the country. There is no reason why this should be so, except the reason of "first cost" and a very potent one it seems to be with most of our law book firms.

GENERAL TERMS.

2d Monday in December, second department, Brooklyn.

LEGAL NEWS.

Hon. Morgan Carpenter died in Poughkeepsie on the 14th inst., after an illness of four days, at the age of 76. He was one of the five judges appointed by Governor Seward, for Dutchess county, under the constitution of 1821.

A general movement of the members of the Kentucky bar is being made to procure a revision of the statutes, so as to eliminate the negro laws; also to obtain a revision of the code of practice. A large meeting of the members of the bar at Louisville, on the 13 inst., passed a resolution to that effect.

A few claims only have been received for presentation to the United States and British commission, which is now in session at Washington. Mr. Howard, the British agent, has been instructed by his government not to present to the commission the claims of persons heretofore British subjects who have become naturalized citizens of the United States. It is the intention of the commissioners to sit with closed doors, but they will give the claimant all necessary information respecting the progress of his claim, and inform him what the nature of the decision in his case may be.

Recorder Hackett, of New York city, has applied to the supreme court for a mandamus to compel the comptroller to pay him his salary, and the court granted an order to show cause why a mandamus should not issue. Before the 27th of December, 1869, the recorder's salary was $10,000 per annum. On that day the board of supervisors raised the salary to $15,000 per annum. In his returns, Deputy Comptroller Green states, that section 7 of chapter 875 of the laws of 1869 prohibited the board of supervisors from creating any new offices or increasing any salaries, except that of surrogate and his clerks. He says he is willing to pay the salary at the rate of $10,000, but not at the rate of $15,000. The motion came up on the 9th inst., on the order to show cause before Judge Brady for the argument. The court intimated it, thought the power of the supervisors was not revoked, but reserved the decision.

A singular suit is about to come before one of the courts in Paris. The intendant of Prince Napoleon has announced his intention of bringing suit against M. Guéroult, editor of the Opinion Nationale, for the recovery of 50,000 francs. Being pressed for money, M. Guéroult applied to the prince, and the money was given him on the pledge that he follow & certain line of policy, which was, of course, to support the empire and the prince. This was just as the war began. When the prince and his cousin fell, M. Guéroult and his paper became very bitter against the Bonapartes, and even in exile has never ceased to abuse them. Prince Napoleon claims that the contract not having been fulfilled, he has the right to demand principal and interest in a court of law.

The Albany Law Journal.

ALBANY, DECEMBER 2, 1871.

OUR BOOKS.

There are few relations in life more intimate or interesting than the one which grows up between a lawyer and his books. There is a professional intimacy, which comes of his referring to them, and partakes of the character of companionship. He goes to them when he is in difficulty and doubt, and asks them questions, and finds them ever ready to tell him all they know, and often offering new and unlookedfor suggestions, as if they sympathized with him in his need of counsel and advice. Nor is it necessary that he should be a constant reader, or profoundly learned in the law, to have a conscious, personal relation with the volumes upon his shelves. He knows them by name ; their faces are familiar to him. He never comes into his office that they do not look down upon him pleasantly, and welcome him to his daily round of duties in the place where he meets his clients and his friends. That man is not to be envied who has begun life, as most of the profession have done, with limited means and a small library, and has gone on adding to it, from time to time, such books as he found his necessities required, and, after having used them, and shared the advantages of their instruction, can look at them upon his shelves with indifference, or part with any of them without an emotion. The duties and details of a lawyer's life may be dull enough, and his researches may, to common minds, seem dry and uninteresting; but a lawyer knows that his books never tire or grow weary in helping him over the rough places in his profession; and he learns in time to look upon them as friends who have grown up with him, or as instructors upon whom he has depended for guidance and assistance. There is one class of his books which he can hardly fail to regard with more than ordinary respect, and that is his Folios. Their size in the first place gives them dignity and importance; and as in these degenerate days such as these are rarely, if ever, produced, they usually carry with them that kind of reverence which comes with age. Then again, the names they bear have most of them historic associations, either as we read them on the title page, or find them standing out prominently in the text of the work. One would no more think of trifling with those ponderous volumes of Rolle's Abridgment or Hargrave's State Trials than he would with the lord chief justice himself, or the venerable Sir Matthew Hale, who wrote the preface to that work in an address "to the young students of the common law." Another circumstance that gives a dignity and importance to many of the books of a modern lawyer consists in their having come down to him from a former generation. This is especially true of his folios, since most of them have

been the publications of a much earlier day than our own, and have come to their present possessors after having already served successive seekers after knowledge. Thus the work above mentioned, Rolle's Abridgment, was published in 1668-more than ten generations of lawyers ago; and whoever now possesses it is sharing a heritage which has come to him by purchase or descent through a long line, often of most worthy and distinguished proprietors. Many an American lawyer's library contains odd and scattering volumes which contain the autographs of men whose memories are associated with the Temple or Lincoln's Inn, and of not a few who have added lustre to the English bench.

It is our purpose, in what may follow, to illustrate the truth of these remarks, by a brief reference to a few of the volumes which now lie before us, with some of which we have had a free and somewhat familiar intercourse longer than we should be willing to acknowledge. Some of them have been our companions ever since, with mingled emotions of hope and fear, we opened our office to a charitable world, upon which we had no claims beyond those of charity toward a beginner, destitute alike of friends and money. Others we have picked up at odd times, as one professional brother's library after another has found its way to the auction-room, whither all these are tending. We have had a kind of passion for folios, by the attraction of this dignity of which we have above spoken; and among our old and dilapidated volumes, large and small, which help to fill our shelves, we find several rare and valuable autographs, and the names and crests of others who, for aught we have been able to discover, died and left no sign, save their own signatures and the strange figures which were emblazoned on their coats-of-arms. And we have thought, as we have held these volumes in our hand, which have been owned and studied by such men as Francis Buller, George Treby, James Otis, and Theophilus Parsons, and read their names inscribed therein with their own hands, that we were indirectly holding intercourse with them in thought and sentiment, as we made companions of the same authors with whom they had once been familiar. We have thought, too, that we knew enough, at least, of these quasi friends to introduce them to our younger brethren, and to ask for them a better and more familiar acquaintance. We have, accordingly, taken up the first of these volumes as they lie upon our table, and find it lettered "Carter's Reports; " but, upon opening it, we find only, upon the title page, "By S. C., of the Inner Temple, Esq." Upon the fly-leaf of the volume, however, we have the name of George Treby, written in a strong, bold hand, and below it, in the same hand-writing, "These Reports are published by Samuel Carter, a Barrister of the Inner Temple, who lives at Birmingham, in Warwickshire, but they are said to have been taken by some other person." This was evidently written during

the life of the reporter. They were published in 1688. As reports, the volume has but little interest from the character of the author or the value of the decisions it contains. But as having been the property of Ch. J. Treby, who thus has inscribed his name therein, it is suggestive of the few men of the English Bar who lent dignity and honor to the age of that profligate monarch, Charles II, and borrowed honor themselves from being hated and dreaded by his narrow-minded and bigoted successor. Sir George Treby was born in 1644, and was called to the Bar in 1671. He was in parliament in 1679, and recorder of London in 1680, and knighted, having succeeded the infamous Judge Jeffries. Three years after this the attempt of the crown was made to seize the charter of the city of London; but its recorder had the independence to appear for the city, and resist the process, and for thus presuming to stand in the way of the king he was removed from office. His name was held in honor, not only by the friends of civil liberty in England, but by the people of the colonies of New England also, to whom, with Somers, he acted as legal counselor and friend in the controversy with the crown in the attempt to vacate their charters. He belonged to that distinguished body of statesmen and patriots who carried England through the revolution of 1688; and, upon William's assuming the reins of government, was restored to the recordership of London, and again returned to parliament. He next became solicitor, and then attorney-general, and in 1692 succeeded Pollexfen as chief justice of the court of common pleas. In 1700, he, with two other of the judges, held the great seal in the interval between Somers and his successor, Chancellor Wright. He died the same year, and was honored by a burial in the venerable Temple Church, where those English worthies, Selden, and Plowden, and Christopher Hatton, and Sir John Vaughn, are sleeping within the same sanctuary where repose the effigies, in marble, of mailed knights and soldiers of the Cross. It is an hundred and seventy-one years since the Round Church of the Templars opened its doors to receive all that was mortal of one whose name is associated with the great men who helped to plant the principles of civil liberty upon a soil which had been prepared for it by a Puritan ploughshare, in the hands of Pym, and Milton, and Harry Vane. And it is grateful to remember that, like the common law which he helped to expound and administer, these principles are still shared by a nation of freemen whose fathers were then struggling with the hardships and discouragements of feeble and dependent colonies. Nor is it entirely without significance that the same volumes which he studied, and in which he inscribed his name with his own hand, are now throwing light upon points of legal difficulty before courts in New England, which, for dignity, learning and ability, would not have done dishonor to the halls of Westminster in the palmiest days of Old England.

ANOTHER QUESTION UNDER THE BANKRUPT ACT OF 1867..

DOES THE BANKRUPT'S DISCHARGE EXTINGUISH HIS DEBTS? The operative words in regard to the force and effect of the discharge in the act of 1867 and in that of 1841 are substantially the same; and the operative words in the form of the discharge adopted by the courts under the act of 1841 and in the form prescribed by congress in section 32 of the act of 1867 are to the same effect, viz., that the bankrupt is discharged from his debts. It is not that the debts are discharged or extinguished, but that he is discharged from them. In the case of Kunzler v. Kohans, 5 Hill, 317, and in several other cases under the act of 1841, there was an attempt made to so construe the act, and the discharge granted under it, as to import an extinguishment of the bankrupt's debts. Although the point was never fully settled, so as to mature into a clear and well-defined rule of construction, yet its advocates came so near being victorious that Bronson, J., in Ruckman v. Cowell, 1 Comst. 505, left on record, in his opinion, page 506, the expression that "If the discharge was valid, it extinguished the judgment, and the defendant was a trespasser for afterward acting under it."

The judment creditor had issued an execution on a judgment, and forced its collection by levy and sale of property; and after the maturity of the proceedings on the execution the judgment debtor sued the judgment creditor in trespass, on the ground that his bankrupt's discharge extinguished the judgment— that is, made it no judgment. Now, although it is the principal object of this article to controvert the legal position asserted in the above abstract, yet the statement is useful here, as showing and illustrating the meaning and application of the word "extinguish when used in reference to the legal effect of a bankrupt's discharge on his debts, judgments, etc. If the discharge extinguishes the debts, it invalidates the obligations of contracts; if it extinguishes the judgments, it is easy to see that it renders them invalid for any purpose, and, of course, the judgment creditor would be a trespasser if he afterward enforced it by execution against the bankrupt's property. But the position of this article is, and its object is, to show that a bankrupt's discharge does not invalidate the obligations of his contracts, or extinguish judgments against him, either legally or morally; but that they remain valid debts, obligations and judgments, both legally and morally, the same after as before the discharge; and one of the consequences of this construction is, that congress is not obnoxious to the charge of having exceeded its jurisdiction in passing the act.

Every debt, contract or obligation has an existence, a vitality, independent of any written evidence of the fact, and every judgment embodies or shadows forth a debt which has an existence independent of the form of the judgment; and these debts and obligations

have an existence, vitality and validity independent of any law for their practical collection and enforcement: so that, if all the laws for the collection of debts and the enforcement of obligations were suspended, repealed, or struck out of existence, the contracts, obligations and judgments would remain in existence, valid and binding as before. These laws for the collection of debts and for the enforcement of obligations are conventional in every government where they exist, and are the creatures of the duly constituted law-making power in the land; and this lawmaking power, in every original government, can amend, modify, alter, suspend or repeal any of these conventional laws for the collection of debts and for the enforcement of obligations at their pleasure, unless specifically controlled by superior constitutional power. Our state governments are original, and their legislatures have all legislative powers not forbidden by the State and national constitutions, while our national government is delegated, and has no powers except those given in the constitution; and as the constitution gives congress no power to legislate on the subject of contracts between citizens of the States, it has no power, and could not if it undertook, to pass a law invalidating the obligations of contracts. The power given to congress "to establish uniform laws on the subject of bankruptcy" does not require the invalidation or extinguishment of debts, contracts or judgments; but is fully satisfied with such a modification or suspension of the laws for the collection of debts as will protect the bankrupt against the future collection of those embraced within the scope of his discharge. The words of the act in sections 32 and 34 in reference to the force and effect of the discharge are not as definite as they might have been, and construction and explanation are required to bring out their true meaning. In giving this construction and explanation there are but two things which could have been done, or intended to be done: First, the invalidation, nullification or extinguishment of the debts, contracts and judgments; or, Second, such a modification or suspension of the laws for the collection of debts as would protect the bankrupt against the future collection of the debts embraced within the scope of his discharge.

The answer to the first inquiry is, that congress had no power to legislate on that subject, unless the extinguishment of the debts, etc., was an indispensable requisite to a system of bankruptcy (see Constitution, art. 1, § 8, sub. 18), which it most clearly was not. The system is as perfect as the nature of the case requires, with a perpetual stay of proceedings, or suspension, in his case, of the laws for the collection of debts, and as effectual as it would be with an extinguishment of the contracts and obligations. All the system requires, and all the bankrupt can reasonably ask, is that he shall not thereafter be compelled to pay such of his debts as may remain unsatisfied, after the application of his property surrendered and

distributed in the proceedings in bankruptcy. In giving construction to the acts of any legislative body we have no right to presume, or to theorise ourselves into the belief, that it has done, or intended to do, an act which it not only had no power to do, but which was not an essential or necessary, or even reasonable, part or constituent of that which it had power to do. Before we are authorized, by a choice between two constructions of the language used by a legislative body, to say that it has exceeded its jurisdiction by going out of its way to do an unnecessary act, we should find the language so plain that "he who runs may read, and that the wayfaring man, though a fool, need not err therein." But the language used in sections 32 and 34 is not of this character, and we have no alternative but to accept the only remaining allowable interpretation, viz.: that the force and effect of the bankrupt's discharge is simply to stay proceedings for the collection of his debts, not to extinguish them; that the debts, contracts and judgments remain in existence as before, except that the laws for their enforcement are suspended.

It

To complete this system, it is proper to add that this exemption given to the bankrupt is a special and personal privilege which no one but himself is at liberty to use and which he is at liberty to use or waive at his pleasure: If he chooses to waive it, that is, if he does not bring it into court himself, as a defense, no one else is bound to regard it, and if he allows any proceeding for the collection of the debts to proceed to maturity without interposing his discharge as a defense, he is to be held as having waived it, as to that proceeding, and lost its benefits. may be likened to the statute of limitations, which, to be of any avail, must be interposed as a defense: and, as in that class of cases, if the defense proves successful it is with costs, so that although the creditor is not bound to respect the discharge to the extent of being a trespasser, or in any sense a wrong-doer, for making an effort to collect his debt, yet he is, as in cases of the statute of limitations, bound to know that the debtor has such a defense, if he chooses to interpose it, and consequently a defeat is with the costs of the action or proceeding. C. D. LAWTON.

OUR CRIMINAL CODE.

ABORTION.

Numerous sects of mis-called philanthropists, both in the United States and elsewhere, have for a long time past devoted much of their time and energies to the mitigation of the alleged horrors of prison life. The reformation of a criminal, indeed, is not an impossibility, nor is it unworthy of serious attention from all politicians. The philosophers referred to, however, have aimed not so much at the moral improvement of criminals, as at their physical comfort and well being while in a state of durance vile. The result of

this maudling sentimentality has been that crime has ceased to be regarded with much alarm, while the ticket-of-leave man is almost believed to be as much sinned against as sinning. Our whole criminal code has become tainted with this misplaced sympathy, and the interests of good citizens are sacrificed to the comfort and inpunity of the evil-doer. Capital punishment itself, the key-stone and firmest buttress of the criminal code, is disapproved of by a vast number of the most distinguished writers on jurisprudence, and in short, La Commune could scarcely regard vice and crime with more lenient feelings than the great bulk of worthy, but unthinking, citizens of the present day entertain for all the enemies of society and civil peace. It is time that this unnatural current of opinion were checked and compelled to flow in its proper channel. The protection of the good ought surely to attract our good wishes as potently as does the pardon of the wicked. But this is inconsistent with the impunity with which murder may be committed among us, and the boastful strides which the foul crime of abortion is daily making. We must revise our criminal law in these respects. If we do not recur to the sanctity which the common law attributed to life, we must at all events vastly increase the severity of the penalties attached to murder and abortion.

The penalty which Rozenwieg is to endure imprisonment for seven years is no adequate protection to society against a repetition of such offenses. The abortionist and procurator are doubtless at this moment parading their advertisements as boldly as ever before the public. These advertisements are offenses at common law, they are, consequently, criminal in every State of the Union that has not expressly authorized such. But surely there is no statute on the books that in any way blunts the edge of the common law in respect to crimes againt public decency, morals and life. The newspapers, therefore, that publish such advertisements are accessories before the fact to the crimes they suggest and facilitate. The editor and publisher of the prints containing the obscene and criminal announcements are guilty of felony and conspiracy, and where death ensues, as in the case of Miss Bowlsby, they are, in point of law, accessories to murder. Such was the doctrine of the common law of England, which is still part of our jurisprudence, except where a statute provides to the contrary. We have, however, long since ceased to pay any great regard to doctrines that seemed somewhat technical. The reasoning, indeed, that connects conspirators with the consequences of the crime is often technical enough. But the object of this technicality is the preservation of society and of order. Besides, those technical ratiocinatious carry out the ends of justice in the main. Unless law is strict and technical, in some cases the murderer will shuffle off the jural coil as readily as he compelled his victim to depart from his life. Why must we be so nice with the Davenports that despise every twist and fetter of

the legal machine. If a culprit deserves punishment under one of two heads, why should we let him escape, merely because we cannot precisely tell under which category his crime falls.

We must reform and amend our legal ways. Homicide in every shape and form must be punished with death, no matter whether the victim be a babe unborn, or an aged hero who has passed the allotted septuagint. Our public prosecutors must be aroused to indict all who immediately or remotely are public accessories to abortion, or even to improper assignations. If our public prosecutors will not discharge their functions, they are surely open to impeachment and indictment themselves, for malfeasance and neglect of official duty. The best mode, perhaps, of paying persons who have unpleasant duties to perform is by means of considerable fees on each case. This sharpens instincts that otherwise might be dormant. However, if the scale of the remuneration of our public prosecutors is at present insufficient for an effective discharge of their duties, let their allowance be increased. The public, surely, will consider the laborer in this cause to be worthy of his hire. But we confess that, while vice and crime are paraded before our eyes as boldly as at present, those who have the control of public prosecutions are themselves not wholly innocent as regards the cause of good morals and domestic peace. Out of a hundred abortionists not one scarcely is tried and found guilty, and, even though convicted of iniquity, which is to all intents murder, he is merely consigned to prison for a few years. This trifling with human life is certain to raise up a perennial supply of Rozenwiegs, who will ply their horrible trade with the hope of using the pecuniary fruits of their crimes, as means of evading all legal punishment.

Unless this crime is repressed with the utmost vigor, it will soon permeate other classes than those who at present wish to hide their shame. Abortion will become a domestic institution of a more hideous nature than either of the twin relics of barbarism: slavery and polygamy. Let us get rid of all technicality, and cease to inquire whether the child was born alive, or was a mere protoplasm. It has a human soul from the instant of its conception. The destruction of the life of such a being is surely murder. If the ancient common law of England did not regard the crime as murder unless the child was born alive, we can only say that modern society had better disregard any such distinction in favorem vitæ.