This institution is provided only for those who are found to be insane while confined in the state prisons. Those who are not yet convicted of crime are sent to the state asylum at Utica. Thus maintaining here, as in the outside world, a distinction between those who have been convicted of crime and those who have not been. We have thus given a general view of the state of the law among us, as to the insane. Our limits compel us to be thus succinct and to omit many of the details, and an enumeration of the various provisions which have been adopted to carry out the humane purposes of our legislation. It will readily be seen that due care is taken of those thus dreadfully afflicted, and every available opportunity of ultimate recovery is provided, and especially for the criminal, the pauper and the indigent, and, at the same time, that the law is abundant for the protection of the community against the madly furious, and even against those who are liable to a return of homicidal mania, or mania for stealing or burning. If the community are put in danger from such persons being turned loose upon society the fault is not in the law, but in those who administer it. And when a judge presides over a trial where the homicide, the thief, or the incendiary is acquitted on the ground of insanity, he may well be asked how he excuses the omission to obey that law which says that in such case he shall carefully inquire and ascertain whether the insanity in any degree continues, and if it does shall order him in safe custody, and to be sent to the asylum. ON USURY.* The subject of usury has been a fruitful source of discussion and contention among the ablest theorists, and, down to the present time, has arrayed in antagonistic relations the most profound and philosophical minds that, through successive ages, have adorned the world. And to-day, when unlimited wealth flows into the coffers of our merchants and bankers, the subject is necessarily exercising the mind and attention of commercial men throughout the state and country in a very large degree. Almost every nation and country has fixed by law a rate of interest for the use of money. Centuries ago, usury was understood to mean the taking of any money for its use; at the present time, if money be paid for its use, according to the legal rate, it is denominated interest; if more be taken it is pronounced usury. The laws in England, regulating interest and usury, have been quite various and significant. In the third year of Henry VII (A. D. 1488) an act was passed prohibiting the taking of interest for money on any bargain, promise, by bill or otherwise, as being "contrary to the law of natural justice, to the common hurt of the land and the great displeasure The following article on usury was delivered before the Brooklyn Law Club, on the 12th of May, 1870, by John F. Baker, LL. B., of the New York bar, and has been furnished us by the club. The subject is one of general interest, and the manner in which it is herein discussed will be found interesting to the profession. ED. A. L. J. of God." Such bargains were to be void, and the parties or their agents to forfeit £500. Eight years after the passage of that act, so general were the evasions of its provisions, another act was passed which repealed the former, and substituted what was deemed a more efficient remedy. Great complaint also being made of this law as being injurious to commerce and the improvement of the country, an act was passed in the 37 of Henry VIII, entitled" a bill against usury," by which it was forbidden to take above the sum of ten pounds in the hundred for the forbearing or giving day of payment of one whole year. Thus, in the language of an eminent writer, "for the first time in England, interest was negatively and indirectly sanctioned by law - the sense of mutual benefit having at length triumphed over both the decrees of the church and the prejudices of mankind.” This act, however, was repealed seven years afterward, and things were restored to their former footing by an act which declared all interest whatever illegal, and subjected the taker to severe penalties. But, notwithstanding the rigor of this last statute, the necessities of a growing trade had suggested numerous expedients for evading its provisions, and accordingly in the 13 of Elizabeth the act of Henry VIII was revived, and interest again tolerated at ten per cent. The act of Elizabeth, though at first temporary, was afterward, in the 39 of the same reign, declared to be perpetual. The rate thus established continued, with but slight variation, until James I came to the throne (1603), when it was reduced to eight per cent. While England was a commonwealth, interest was only six per cent, which rate was re-enacted under Charles II (1661). Here we cannot but notice the change which, in a comparatively short period of time, had taken place in regard to the law of usury. The taking of interest for the use of money, which, from the earliest periods of antiquity, had been visited with these verest penalties, was now established and regulated by positive law; and that which had been stigmatized as a "damnable sinne," now became divested of its odiousness, and was incorporated into the policy of the country. From this period may be dated the era of commercial enterprise. It was soon discovered that, as the restrictions were removed, the rate of interest lowered in a proportionate degree, and that both lenders and borrowers were placed upon a more equal and advantageous footing than ever before. But, notwithstanding this general revolution in society, the change was not complete. Ever since the taking even the least amount of interest had been legalized, so quickly did its policy and expediency recommend itself to the trading community, that numerous propositions had been already made to repeal all remaining restrictions, and thus free commerce from the last vestiges of extraneous control. This movement met with a firm resistance from the landed interests, upon the ground that it would cause capitalists to prefer the more remunerative investments of commerce rather than on mortgage security, and thus prevent the land owners from obtaining money, unless at rates which they could not afford to pay. This contention between conflicting interests has continued, in some degree, down to the present time, and has given rise to much discussion upon the policy of the law of usury. By statute 12 Anne (September 29th, 1714) the rate of interest was again reduced to five per cent. From this statute, which provides that no person shall take, directly or indirectly, upon any contract or loan of moneys, wares, or merchandise, above the value of 51. in the hundred for a year; and that any person taking more than that rate shall forfeit and lose treble in value of the moneys and other things so lent - the states of our federal Union have carved their usury laws. By act 3 and 4 William IV all bills or notes having "more than three months to run" were exempted from the operation of the usury laws. Several interesting modifications in the law have been wrought during the reign of Victoria, as by statute 1 Vict. c. 80 and 2 Vict. c. 37, bills and notes are not affected by usury, if payable at or within twelve months, at legal interest, and not secured by mortgage, nor any contract for the loan or forbearance of money, above the sum of 107., shall be affected by the usury law. And by statute 17 and 18 Vict. c. 90, all laws then in force upon usury were repealed. The Sexviri of Athens were commissioners who did watch to discern and discover what laws waxed improper or burdensome for the times, and what new law did in any branch cross or interfere with a former one, and so, ex officio, propounded or effected their repeal, upon the judicious maxim salus populi suprema lex. In the absence of this system with us, it seems properly to devolve upon the members of the legal profession (more particularly) to suggest and point out the real wants of society and the needs of commerce. While there ought not to be a blind adherence to ancient or former rules, it is still necessary to exercise thought, judgment and discretion in weeding out the tares, lest in the reform we root up also the wheat." As opinion obtains in many states, and particularly in our community, that money, being worth only what it will bring, should be regulated by voluntary contract between parties subject to the mercantile usage governing merchandise contracts; in fine, that the tooth of usury ought to be blunted, and as this prevailing sentiment has exerted, and must continue to exert, no inconsiderable influence upon adjudications and commerce generally, I purpose to discuss and review three principal propositions. First. The status of usury in the United States; second, usury as administered in New York, with reference to decisions governing it; and third, the advisability of a reformation in the usury law. Legally and strictly speaking there are three or four requisites to constitute usury: 1. A loan of money either express or implied. 2. An agreement between the parties that the money lent shall or may be returned at a specific time. 4. There must be a corrupt or unlawful intent confessed or proved. This last ingredient is important to constitute the offense of usury. In the interesting case of Condil v. Baldwin, 21 N. Y. Rep. 219, DAVIES, J., says: "It is the essence of an usurious transaction that there shall be an unlawful and corrupt intent, on the part of the lender, to take illegal interest, and so we must find before we can pronounce the transaction usurious." And quoting from the decision of Judge STORY in Bank of United States v. Waggoner et al., 9 Peters R. 399, he says: "To constitute usury within the prohibition of the law, there must be an intention knowingly to contract for or take usurious interest; for if neither party intend it, but act bona fide and innocently, the law will not infer a corrupt agreement." It is not sufficient that the defendants intended to make it usurious, so that when called on to return the money thus obtained by a fraudulent device, they could avail themselves of the protection of the statute. The intention to take the usury must have been in the full contemplation of the parties, not one party only, but of both, to the transaction. Also see Powell v. Jones, 44 Barb. 521. A strict adherence to this rule seems necessary for the protection of designing and unprincipled men. Usury is a question solely for the jury to determine. So held in Robbins v. Dillaye, 33 Barb. 79. 66 It has been held by some judges in New York (5 Denio, 236) that an usurious contract is incapable of ratification; but Judge BALCOM, in the case of Smith v. Marvin, 25 How, Pr. 326, says the assertion is not strictly true, for where an usurious loan is voluntarily paid," the contract is certainly ratified, except as to the unlawful interest, which may be recovered back. Also, in the case of Dix v. Van Wyck, 2 Hill R. 522, BRONSON, J., delivering the opinion of the court, observed that "contracts affected by usury are not so utterly void but that they may be ratified." Thus it follows, if a borrower repay a loan which he might have avoided for usury, he cannot recover the money back; though by the New York statute he may recover the excess which has been paid over lawful interest, within one year, as in Maine and Virginia, or at common law, at any time within six years. Of contingent interest, it may be said that in ordinary transactions, if the gain to the lender, beyond legal interest, be made dependent upon the will of the borrower, as where he may discharge himself by a punctual payment of the principal - as if I covenant to pay $1,000 one year hence, and if I do not then pay it, to pay $500, or fifty per cent, being in the nature of a penalty for non-performance, it would not be usurious-for where there is no loan or forbearance there can be no usury, and, as I have said, both parties must intend to provide for the payment of more than legal interest. Thus, the supreme court of the United States held, in the recent case of Spain v. Hamilton, 1 Wallace, 604, that, where the promise to pay a sum above legal interest "depends upon a contingency, and not upon any happening of a certain event, the loan is not 3. That a greater rate of interest than is allowed by usurious." Nor will usurious interest be inferred law shall be paid, or agreed to be paid; and from a.paper which, while referring to the payment of a sum above the legal interest, is "uncertain, and so curious that intentional bad device cannot be affirmed." The whole law of usury is in its nature penal, and is strictly construed as to the proof and intent. The courts have repeatedly held that there can be no presumption in favor of usury; that the defense of usury must be proved, not presumed. Arthur v. Wright, 22 N. Y. 472. In the well known case of Jackson v. Smith, 7 Cow. R. 717, the defendant sought to prove a certain transaction usurious by showing that the plaintiff was in the habit of exacting usury, and had done so in other and similar transactions. SUTHERLAND, J., in delivering the opinion of the court (on appeal) remarked: "The judge erred in intimating to the jury that they might legally presume the bonds of Dec. 1822 a renewal of or connected with the usurious loan of 1821. There were no facts in the case which could legally warrant such a presumption. That N. made an usurious loan to the defendant in 1821, for $370, was perhaps sufficiently established, but there was not a particle of evidence to connect the loan of 1822 with this transaction. The transaction of 1821, therefore, should have had no influence upon the verdict, and the judge should have so charged the jury." Each case, where usury is alleged, must stand or fall upon its own merits. It is well understood that the essence of the contract of bottomry and respondentia is, that the lender runs the risk, and is thus entitled to the marine interest. This mercantile rule is sanctioned either by usage or law in almost every country. There is a distinction made between such cases and those of personal risk of the debtor's being able to pay; if any thing is paid for such risk, it is usurious. And yet, where personal risk is taken in loans, it might excite wonder in the mind of the curious to know wherein the metaphysical scissors of the upholder of this law could be inserted to demonstrate the difference, in fact, between the risk run by the one and the other. As to what interest will vitiate a contract, it is well understood that if interest be paid upon miscalculation, it does not render the contract usurious; but if taken through ignorance of law, it would be usurious, upon the familiar maxim, ignorantia juris non excusat. And it is not material in what form the contract is made, as the courts necessarily inquire into the real nature of the transaction, and no shift or device can protect it from the operation of the law. A novel and interesting case was recently tried in Massachusetts, as to the liability of an executor who received unlawful interest innocently, which was reserved in a note due to his testator; and it was held that an action would not lie against an executor personally to recover back "three-fold" the amount of usury so paid, although he be described in the writ as executor. Heath v. Cook, 7 Allen, 59. The question whether interest calculated by tables, upon the principle of 360 days being a year, is usurious, has been considerably mooted. The New York courts have generally held that usury would attach. 8 Cow. 398. In Massachusetts, however, their courts have decided otherwise. And also in Vermont, 12 Pick. 586; 8 Leigh, 253. Prof. Parsons, in his excellent work on " Contracts," thinks the latter the better opinion. In Ohio, Iowa, and some of the other states, Rowlett's tables are authorized by statute. The courts of New York and Massachusetts hold that the taking of interest in advance by banks, upon discounting notes, is not usurious. This question was quite unsettled or undecided, until the case of Marvine v. Hymers, 12 N. Y. 223, which decision on that question now obtains in most of the states. In New York and the New England states it has been generally held, that new securities for old ones which are tainted with usury, are void with the old ones, and subject to the same defense. But in Arkansas, where the plaintiff held several notes against the defendant, by agreement with him, calculated interest due on each note, and added it to the principal, took a new note for the whole sum bearing ten per cent interest, it was held not usurious. 1 Eng. R. 463. Whether a note, valid in its inception, but usuriously transferred by the payee or indorsee, is valid against the maker, has been variously decided. Lord Kenyon once held that such an holder would be entitled to recover (1 East, 92); and in the case of Campbell v. Read, Martin & Yerg. R. 392, it was decided that a note thus usuriously indorsed is valid as against the maker, in the hands of a holder in good faith. By statute of Michigan, a holder of a bill or note in good faith, for valuable consideration, without notice and before maturity, shall be entitled to recover as if such usury had not been alleged and proved. This is a wise and equitable provision, working great benefit. New York repealed a similar provision by the amendment of 1837. There are but few cases in which a bill or note is void in the hands of an innocent indorsee for value, and those are when the consideration in the instrument is for money won at play, or where it is given for an usurious debt. Notes issued by a corporation in violation of a statute are void, even in the hands of an innocent holder. 3 McLean, 102. In Mississippi a note was held to be void where the signature was procured by fraudulent representations. 12 S. and M. 602. The payee of a note may transfer it at a discount exceeding the legal rate of interest; but where an indorsee buys a note (valid in its inception), he can recover against the indorser only the sum paid, with interest, though the full amount may be recovered against the maker. 15 Johns. 49; 4 Hill, 472. If a usurious note be given up and canceled on the promise of the debtor to pay the original debt, with lawful interest, such promise would be binding; or if, when the interest is due and payable, or constitutes a then subsisting debt, the debtor ask to retain it, and agrees to pay interest upon the amount at the legal rate, the agreement is not usurious. Though a note be valid between the original parties, yet the indorser cannot sue the maker if the indorsement was on an usurious consideration. 1 Peters, 37; Story on Bills, 189. (To be Continued.) A New York court has decided that letters placed on the top of a lamp-post box are not mailed, and that it is not stealing to take them. CURRENT TOPICS. The courts of Connecticut did a thriving divorce business during the year 1869. Four hundred and ninety-one divorces were granted, being in a ratio of one to 9.7 marriages. The causes assigned are various the principal being misconduct, desertion, adultery, intemperance and cruelty. The full returns from the late judiciary election have been received. Messrs. Folger and Andrews are the successful nominees on the republican ticket. Folger's majority over Andrews is 1,807: Andrews' over Mason, 876, and Mason's over Hale, 1,401. Messrs. Andrews and Folger are both men of eminent ability and sound learning, and will do honor to the position. The court of appeals, as now constituted, is as follows: Chief Justice. -Sanford E. Church. Associate Justices. - William F. Allen, Rufus W. Peckham, Charles A Rapallo, Martin Grover, Charles J. Folger and Charles Andrews, The president has nominated James B. McKean, of Saratoga, for chief justice of the supreme court of Utah. Mr. McKean represented the fifteenth New York congressional district in the thirty-sixth and thirtyseventh congress. In 1861 he was appointed colonel of a regiment of volunteers, and served in the war with distinction. In 1867 he was nominee on the republican ticket of New York for secretary of state, but failed to secure an election. In 1868 Governor Fenton nominated him for auditor of the canal department, but the nomination was not confirmed by the senate. He has had some experience on the benchhas filled the office of county judge for one term, and is a thorough lawyer and a man of liberal culture. The term of Judge BREESE, present chief justice of the supreme court of Illinois, will expire on Monday next, the 6th inst., on which day an election for his successor will be held in his-the first-grand division of the state. So ably, faithfully and satisfactorily has Judge BREESE discharged the duties of his office that he will be re-elected without opposition. Mr. Justice LAWRENCE will succeed as chief justice, having the shortest time to serve. We learn from one of the most prominent lawyers of that state that at one time all the members of the supreme court of Illinois were from New York state, and from the same county-Oneida. They were Judges BREESE, CATON and SKINNER. Oneida should write that down in her records as a thing to be proud of. In pursuance of the supreme court act the governor has designated the general term justices by a proclamation, which we print elsewhere. The governor confesses to have found it difficult to designate justices of one department to act as justices in another department, and suggests that the inconvenience resulting be remedied by the general term justices continuing to hold circuits and special terms at their convenience. We fear that whatever inconvenience there may be will never be lessened in this wise. The general term justices will have sufficient to do to properly discharge the duties of their position without troubling themselves about circuits or special terms. There are to be six general terms in the first department, five in the second, and eight in each of the third and fourth. To hear the arguments, examine the cases and write the opinions, will afford about all the employment that the justices in any one department will be likely to attend to. Miss Phoebe Cozzens, the St. Louis law student, has taken the stump after the manner of Anna Dickinson, Susan B. Anthony, id genus omne, and the burden of her song is woman's rights. She is said to handle the scriptures like a two-edged sword, slashing therewith right and left, at the male monsters. She announced in a recent speech that she had read law two years, and that her " whole soul had been moved to indignation" by some of the cases which had come to her knowledge. Among these she mentioned particularly that of a woman who, having beaten her husband and thrown scalding water on him, was fined ten dollars therefor, and a paper, in speaking of it, called her a "she devil," and intimated that the fine was too small. "She had never heard the epithet 'he devil' applied to brutal man," and regarded it as an outrageous partiality that should "make the judicious grieve." We are of the opinion that the fair and gentle Phoebe would better have stuck to her books, never caring about "she devils.” Some inquiry has been made whether there was likely to be any general terms held before the August convention of the justices. We are at a loss to know why not. The supreme court act fixes the time for holding the terms, and that law has taken effect. The old general terms are abolished and the new are in esse. Some inconvenience may, of course, result from the want of rules adapted to the new courts, and it is quite likely that no business of importance will be transacted until after the convention, but that the June and July terms will be held seems to us beyond question. Those terms are appointed for the following places and times: In first department, first Tuesday in June, at New York: in second department, second Tuesday in June, at Poughkeepsie; in the third department, at Binghamton, on first Tuesday in June, and at Plattsburgh, on the first Tuesday in July; and in the fourth department, in the city of Buffalo, on the first Monday in June. their services, it is certainly the judiciary. It is essential that judges should be entirely independent; and one element of independence is an adequate salary, not only that they may devote the whole of their time to the discharge of official duty, but that they may be beyond even the temptation of bribery. It has been for years the wise policy of the English government to pay its judges a most liberal salary, and we are glad that our own government is beginning to follow the example, even though afar off. The New York Times, in a recent article, very justly observes that the great need of the majority of the lawyers in that city is a good law library, accessible at all times to the poorest members of the profession. The Law Institute has an excellent library, and the new Bar Association is engaged in selecting another, but the great body of the profession is unable to reap their benefits on account of the large sum demanded for the privilege. The Times adds: "What is wanted, then, is a law library, free to all lawyers properly certified, in a central situation, within easy distance of the courts, and, most important of all, open at night. Then is the lawyer's harvest time, his only time, in fact, for study; for he who would master the science of law must be lavish of the midnight oil. To the practicing attorney, a library open only in the day time is the veriest cup of Tantalus. Such a collection as we suggest could readily be formed by concerted action on the part of the profession. There are probably two or three thousand lawyers in this city alone. If each of them gave a volume at a cost of say $4, a practical working library would be had at once, which one or two public-spirited bequests would speedily increase. But, if necessary, state aid should be invoked for the enterprise. We are used to scoff at New Jersey parsimony, but New Jersey can afford to give its lawyers the free use of an excellent law library in the state house at Trenton. Ought New York to do less?" The writer of the article probably overlooked the fact that this state gives its lawyers the free use of one of the best law libraries in the country, as those familiar with the state library at Albany know. for publication. Those familiar with the manner in which the court of appeals makes its decisions must know that no one not present at the consultation of the judges, or that has not access to the reporter's notes of the consultation, can properly or accurately report the opinions of the court. It is the custom for two judges to write opinions in each case—and they often arrive at the same conclusion from different premises and courses of reasoning. At the "consultation" the opinion of the one judge may be adopted as the opinion of the court, although the conclusions of the other are the same. Again, it frequently occurs that the propositions contained in an accepted opinion are considerably modified and changed at the consultation by the views of a majority of the judges. Therefore it is that one, to properly report a case, must be fully informed of what took place at the consultation. And an opinion, if prepared for publication, should contain any modifications or alterations that the court may have made to it. Mr. Hand would be imposing upon the profession and the public, should he certify an opinion, knowing it to be intended for publication, and knowing also that it did not present the correct views of the court. He has therefore adopted the plan of attaching to his certificate the words "not for publication," and if Mr. Howard, or any one else, sees fit to publish an opinion with those words attached, he runs his own risk of misleading and of inaccurately reporting. Thus much we have said, not in defense of Mr. Hand, for he needs none, but for the correction of an erroneous impression. We know of nothing that can be said to justify Mr. Howard in inserting such a note in the body of his report. It is bad enough for the profession to be compelled to endure in his reports such a melange of all sorts of decisions from the United States supreme court down to the county court, but when he goes still further, and seeks to make his reports the medium of conveying to the public his personal resentments and prejudices, it is adding insult to injury, and deserves to be resented. OBITER DICTA. The New York World announces, with great gravity, that "the British house of lords has officially decided that a man cannot marry his widow's sister." A jury out West brought in a verdict that they had "agreed to disagree;" for which little joke they were The other day a judge holding court in Greenville, N. C., went to sleep on the bench, and not only that but actually snored, much to the amusement of all present. "What do you mean," inquired an inquisitive lady of a facetious lawyer, "by the term of putting a leading question?'" "When I offer you my arm, dear," replied the learned gentleman, suiting the action to the word. We find in the April part of Howard's Practice Reports a "note" appended to the case of Erickson v. Smith — a court of appeals decision — which is entirely flued twenty dollars. out of place in any report pretending to dignity or decency. After stating that "the copy of the above opinion, from which we publish, is certified in the following manner, to wit: 'A copy, but not for publication, S. Hand, State Reporter, fees $3.50,'" the writer proceeds at length with assertions and denunciations against Mr. Hand, which, to say the least, are in very bad taste, and not very good English. The ground of complaint seems to be the form of the certificate, "a copy, but not for publication;" which is understood by Mr. Howard to be a "preliminary injunction," as he terms it, against publishing the opinion. Now we happen to know that the words but not for publication, are not intended as a restriction of the right of publication. They are added as an indication that the copy is not prepared or intended A certain barrister, who was remarkable for coming into court with dirty hands, observed that he had been turning over Coke. "I should have thought that it was coals you had been turning over," observed a wag. A bad-tempered judge was annoyed by an old gentleman who had a very bad chronic cough, and after repeatedly desiring the crier to keep the court quiet, at length angrily told the offending gentleman that he |