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Second Monday of February, 1873, at the court-house in Kings county.

Second Monday of May, 1873, at the court-house in Poughkeepsie, Dutchess county.

Second Monday of September, 1873, at the courthouse in Kings county.

Second Monday of December, 1873, at the courthouse in Kings county.

Second Monday of February, 1874, at the court-house in Kings county.

Second Monday of May, 1874, at the court-house in Poughkeepsie, Dutchess county.

Second Monday of September, 1874, at the courthouse in Kings county.

Second Monday of December, 1874, at the courthouse in Kings county.

NOTES AND QUERIES.

ANSWER TO "SUBSCRIBER."

The proper proceeding for “subscriber" would be to have a "resulting trust " declared in favor of heirs of A, after an accounting by B, to them (said heirs), and this action (if in this State, New York) could be maintained, and D would have an equitable lien upon the proceeds of the sale- as in "subscriber's proposition, he assumes that B was merely a trustee for A-and necessarily A's heirs are, since the death of A, cestui que trusts of the equitable proceeds resulting from the trust, making every one parties to an action.

WM. H. T.

J. F. BARNARD,

J. W. GILBERT, A. P. TAPPAN.

THIRD DEPARTMENT.

The justices of the supreme court assigned to hold the general terms in and for the third judicial department do hereby designate the following times and places for holding the general terms of said court in and for said depart nent, for the years 1873 and 1874.

On the first Tuesday of January, March and June at the capitol in the city of Albany.

On the first Tuesday of May, at the court-house in the city of Elmira.

On the second Tuesday of September, at the courthouse in the city of Binghamton.

On the second Tuesday of November, at the courthouse in the city of Schenectady. Dated Albany, November 26, 1872.

THEODORE MILLER, PLATT POTTER, JOHN M. PARKER.

FOURTH DEPARTMENT.

The undersigned, justices of the supreme court, assigned to hold the general terms in and for the fourth judicial department, do hereby designate the following times and places for holding the general terms of said court in and for said department from the 1st day of January, 1873, until the 31st of December, 1874.

On the first Tuesday of January, at the court-house in the city of Syracuse.

On the first Tuesday of April, at the court-house in the city of Rochester.

On the second Tuesday of June, at the court-house in the city of Buffalo.

On the first Tuesday of October, at the court-house in the city of Rochester.

Rochester, September, 1872.

STATE OF NEW YORK, SECRETARY OF STATE'S OFFICE.

J. MULLEN,
T. A. JOHNSON,
JNO. L. TALCOTT.

SS.

I have compared the preceding with the original on file in this office, and do hereby certify that the same is a correct transcript therefrom, and of the whole of said original.

Given under my hand and seal of the office of secretary of State, at the city of Albany, this twelfth [L. S.] day of November, in the year one thousand eight hundred and seventy-two.

ANSON S. WOOD, Deputy Secretary of State.

ENGLISH NOTES.

Mr. Justice Hannen has been transferred from the queen's bench to the divorce court, vice Lord Penzance resigned, and Mr. Archibald of the home circuit has been appointed to succeed Mr. Justice Hannen in the queen's bench. Mr. Archibald is a brother of the present English consul-general at New York.

LEGAL NEWS.

A proposition is before the constitutional convention of Pennsylvania to create a life tenure to the office of justice of the supreme court

The patent office report shows that the fees of the year were $77,400 in excess of expenditures, and the commissioner recommends a new general law and a separation from the interior department.

The supreme court of the United States has reversed a decision of the supreme court of Louisiana, which declared void a contract founded on a consideration of the value of Confederate money. This court rules that the State law under which the decision was made is unconstitutional, as impairing the obligation of contracts.

Since the adjournment of congress the president made 187 appointments, as follows: For the interior department, 58, most of them being Indian agents and public land officers. For the department of justice, 15, United States marshals and district attorneys. For the navy department, 5, boatswains, sail-makers and carpenters. Postmasters, 44. For the State department, 21, of whom 11 are consuls, and most of the others centennial commissioners. The last-named appointments are not to be confirmed by the senate. For the treasury department, 34, of whom 10 are supervisors of internal revenue, under the new law.

A striking instance of the sway of superstition in certain classes of the people, came recently before one of the courts in Scotland. A small farmer cited one of his neighbors on a charge of slander, in asserting that his (defendant's) cattle had been injured through the magical arts of the plaintiff. The magistrate was disposed to dismiss the complaint as absurd, but the defendant not only admitted the charge, but stoutly insisted that his statements were true. The court imposed a nominal fine, and the ill-used victim of enchantment went off-doubtless to engage the aid of some counter "wiseman" against the machinations of his malignant neighbors.

The Albany Law Journal.

ALBANY, DECEMBER 14, 1872.

JOHN WILLIAM SMITH.

I have done nothing worthy of being remembered for," said John William Smith to a friend, shortly before his death; but such has not been the verdict of those who have survived him, and who have known and appreciated his labors. Had he accomplished nothing else, his "Leading Cases" would have been a monument which would have perpetuated his name and memory when most of his contemporaries were forgotten. There is naturally a desire to know something of the men who have connected their names with, and impressed their thoughts upon, the best of our legal literature. Among these, few deserve a higher rank than Mr. Smith. We have prepared the following brief sketch of his life in the belief that it will be found interesting to all, and in the hope that it will prove instructive to the young lawyer in teaching him to wait and prepare for his opportunity with modest patience and fortitude and indomitable industry and energy, and that other important lesson, so often forgotten, the necessity of moderation in the pursuit of the distinctions and emoluments of his profession. To memoirs by two of Mr. Smith's friends one by Mr. Phillimore in the Law Magazine for February, 1846, and the other by Mr. Samuel Warren in Blackwood for February, 1847, we are indebted for most of the facts of this article.

John William Smith was born of Irish parents, in London, on the 23d of January, 1809. He displayed, even in his earlier years, a precocious intellectual development, not often to be highly valued, but which proved, in his case, an accurate indication of the great mental powers which he displayed in maturer years.

In 1826 he entered Trinity College, Dublin, where his whole career was one of easy triumph. In 1829, he gained a scholarship, and, the year following, the gold medal for classics, the highest honor in the gift of the college. So little, however, was he elated by this distinction, that it was not until some years afterward that, happening to be in Dublin, he called for and received his medal. Having determined to go to the bar, he was entered at the Inner Temple in 1827, though still pursuing his course at Trinity. The ease with which he got through his collegiate studies left him leisure for the acquisition of legal knowledge, and he procured a copy of Blackstone, and read it through several times with deep attention. Cruise's Digest, in seven volumes, octavo, he also read twice over, and Coke upon Littleton an "uncouth, crabbed author," as Lord Mansfield said - he studied carefully. This would be a rather formidable course for leisure hours at college, but so rapidly and attentively

did Mr. Smith read, and so tenaciously did his memory retain, that it was to him no difficult task. In 1830, he began keeping terms at the Inner Temple, and his appearance then was described by a fellow student as that of "a bashful, awkward person, dull and taciturn, with a formal, precise way of speaking, and a slight abruptness of manner." "His personal appearance was, it must be candidly owned, certainly insignificant and unprepossessing. He was of slight make, a trifle under the middle height; his hair was rather light, and his complexion pale. He wore spectacles, being excessively near-sighted, and had a very slight cast in his eyes, which were somewhat full and prominent. The expression of his features, at all events when in repose, was neither intellectual nor engaging, but they improved when he was animated or excited in conversation." Not a prepossessing picture, surely, but then it is only of the exterior, the physical. His mind proved to be as wonderful and beautiful as his body was plain and ungainly, and it did not take very long for the worthier of his fellow students to discover this.

In the same year he entered the chambers of Mr. Richard Blick, one of the most eminent special pleaders in the Temple, and after reading Tidd's Practice and Selwyn's Nisi Prius, concluded that "he had not a sufficient knowledge of pleading, to get any benefit from the business, which he saw." He therefore absented himself from chambers for a time, and after having read most thoroughly Chitty on Pleadings and Phillips on Evidence, returned to avail himself of the advantages offered by Mr. Blick's extensive practice. Here he laid the basis of an extended, profound and scientific knowledge of the law. With a wonderful memory, a clear, vigorous and disciplined understanding and close application, he was, at the early age of twenty-two, a more thorough lawyer than most men ever are, and had become greatly skilled in that most difficult branch of English law - special pleading. After a year's pupilage, he left Mr. Blick's and commenced his career as a special pleader. But admirably qualified as he was, he met with no success, having no connections and little tact to make them. Says Mr. Warren: "I question whether, during this two or three years' bitter, disheartening probation he made more than thirty or at least forty guineas; his annual certificate for leave thus to do nothing cost him, nevertheless, $12." But though without business, he was not idle nor disheartened, but devoted himself to laying broader and deeper the foundations of a splendid legal knowledge. Warren and Phillimore, and others of his associates and friends, began a little weekly periodical called the "Legal Examiner," to which he was a constant contributor, "his papers being always characterized by point and precision though the style was dry and stiff." During this time, also, he prepared and published his treatise on "Mercantile Law," which, as soon as it became known, raised him to the very highest rank of legal

writers. Though the production of an unknown youth of scarcely twenty-five, it was at once accepted as high authority, not only in England but in this country, and his opinions on controverted questions have often been received in the highest judicial quarters in preference to those of learned judges, as in the case of Tanner v. Scovell, 14 Mees. & Wels. 37.

Finally, despairing of getting business as a pleader, he determined to try his fortune at the bar, and was called, or as we say in this country, "admitted" in 1834, selecting the Oxford circuit. But, notwithstanding some success at the sessions, he gained no foothold at the assizes, and at one time, seriously contemplated entering the Church. He had a fondness for Theological studies and was said to be remarkably well read in them.

In 1835 Mr. Warren published his "Introduction to Law Studies," in which was urged upon the student, the necessity of mastering a few "leading cases" as nuclei of future legal acquisitions. Mr. Smith at once seized upon this suggestion and conceived the idea of preparing a book under the name of "Selection of Leading Cases." There was no work of the kind, and much learning and judgment were requisite to accomplish it successfully. He began about the middle of 1835, and published the first volume in March, 1837. The great value of the book, and the consummate ability and skill with which it had been prepared, were at once acknowledged on every side. Mr. Warren says: "Almost all the judges and the most eminent members of the bar, wrote to him in terms of warm respect and approbation." And even from this side of the Atlantic did he receive high commendation, for Mr. Justice Story wrote him: "I consider your work among the most valuable additions to judicial literature which have appeared for many years. The 'Notes' are excellent, and set forth the leading principles of the various cases in the most satisfactory form, with an accuracy and nicety of discrimination equally honorable to yourself and to our common profession. I know not, indeed, if any work can be found which more perfectly accomplishes the purpose of the authors."

The demand for the work was so great that he at once set to work upon the second volume, and succeeded by great energy and industry in bringing out the first part of it by May, 1838, although his time was partly occupied by his duties as Common Law lecturer to the Law Institute, a position which he had accepted in November, 1837. He now met with considerable annoyance and some delay from a firm of law booksellers, the publishers of his "Mercantile Law," and to whom he had offered his "Leading Cases." Mortified at the success of a work which they had refused, they took measures to restrain its sale on the ground that the author had been guilty of piracy in selecting some few cases from "Reports," published by them, as texts for his masterly legal discussions. Mr. Smith and his publisher contested

the matter with triumphant success, both before the Vice-Chancellor and Lord Chancellor.

Of the "Leading Cases" it is not necessary to speak. They are known wherever the common law of England is known and studied. They have had many imitators, especially in this country of late years, but they stand immeasurably superior to any of their followers. Six large editions of them have been published here, and the seventh will shortly appear.

As a law lecturer, Mr. Smith won great distinction. "He had a great talent," says one of his biographers, "for communicating elementary information; and even the most ignorant and stolid of his listeners could scarcely avoid understanding his simple and lucid explanations of legal principles." One series of his lectures on Contracts" was published after his death, and though never designed nor prepared for publication, they may be justly regarded as models of a lucid and concise exposition of the subject.

His "Leading Cases" was, however, the key that opened the gate to fortune, and business began to come to him. The leaders of the Oxford circuit took every occasion to name him as arbitrator when the more important cases at the assizes were agreed to be so disposed of, and he invariably gave the highest satisfaction to both parties. Shortly, he made his way to a large and important junior business on circuit, and "few cases of great importance were tried in which Mr. Smith was not early engaged, and the entire conduct of the cause, up to the hour of trial, confidently intrusted to his masterly management." Mr. Warren pronounced him, without exception, one of the ablest pleaders that he ever came in contact with. He seldom used precedents (often observing that "no man who understood his business needed them, except in very special occasions"); but he seldom erred even in merely formal matters, while he was quick to detect any inaccuracy on the part of his opponent. Of his manner in court Mr. Warren says: "When he rose to speak his manner was formal and solemn, even to a degree of eccentricity, calculated to provoke a smile from the hearers. His voice was rather loud and hard, his features were inflexible, his utterance was exceedingly deliberate, and his language precise and elaborate. His motions were very slight and, such as he had, ungraceful; for he would stand with his right arm a little raised and his hand hanging down passively by his side for a long time together, except when a slight verbal motion appeared - he the while unconscious of the indica tion to show that he was uttering what he considered very material.” But his great ambition was to have a first-class pleading business, and so rapidly was it gratified that in 1843 he was compelled to resign his lectureship at the Law Institute.

His success was, however, his destruction, for his unflagging devotion to business undermined a constitution never very vigorous, and consumption set in.

During the last three or four years of his life he was rarely in bed before two and sometimes three, and even four o'clock, having, nevertheless, to be at Westminster or Guildhall by half-past nine or ten in the morning.

In 1844 his physician pronounced his disease incurable, and that his death was only a matter of months, but he never flagged in his attention to business. In 1845 he went the spring circuit, being retained in some of the heaviest causes. In July he appeared for the last time in the court of Exchequer, and he remarked to a friend, afterward, "The judges must have thought me talking great nonsense; I was so weak that it was with very great difficulty I could keep from dropping down, for my legs trembled under me all the time violently, and now and then I seemed to lose sight of the judges." Yet, there was no failing of the mind, and his argument on the occasion was "distinguished by his usual accuracy, clearness and force of reasoning." A couple of months later-weaker and near the end-he said, "I have none to thank but myself; I have killed myself by going the last circuit, but I could not resist some tempting briefs which awaited me." But even then he would work, though unable to sit up; and he worked over his briefs, cases and pleadings with an attention and devotion that could have come from nothing but love for the labor. Even on the morning of his death when, as he said, he heard "strange human voices speaking to him intelligibly," he dictated "not only an appropriate, but a correct and able opinion on a case of considerable difficulty."

But the wasted lamp could not longer hold out to burn, and on the 17th of December, 1845, in the thirty-seventh year of his age, John William Smith died. It was his desire to be buried in the little burying ground of the Temple Church, but the Benchers, though anxious to fulfill his wish, could not comply, and he was interred at Kensal Green. A little stone at the head of the grave gives his name, age and profession, and the day of his death. more pretentious tablet of white marble, containing an appropriate inscription, written by his friend Mr. Phillimore, stands in the Triforium of the Temple.

A

The New York Bar Association had a hot meeting on Tuesday night; the matter of interest growing out of a motion that the report of the Judiciary Committee be heard at a special meeting, and that reporters of the press be excluded therefrom. This report involves the connection of Mr. Field with the Erie and Susquehanna litigation. Mr. Field arose, and after insisting that the reporters should not be excluded, and that the members of the committee were all his personal enemies, he proceeded at length to explain and defend his connection with, and proceedings in, the matters concerning which he was charged. The meeting adjourned without taking further action.

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JURIES AND LIQUOR.

A great deal has been said and written about the beauty and purity of trial by jury; but while we happen to be among the minority, who cannot appreciate its beauty, we do appreciate the absolute necessity of impartial purity and strict regularity in jury trials. So long as they exist, it is essential to the welfare of society and the cause of justice that they should be, like Cæsar' wife, above suspicion.

An important question in this relation- and one which has received much attention from the courts is whether or not the drinking of intoxicating liquors by jurors during the trial is or is not a sufficient ground to set aside their verdict. Courts seem to have been pretty evenly divided on the question - the one side holding that, if a juror drink even a small quantity of ardent spirits, the verdict must be set aside, and the other side holding that only indulgence to such an extent as to clearly incapacitate the juror will affect the verdict.

In State v. Baldy, 17 Iowa, 39, after the jury had retired in charge of the bailiff, one of them was permitted to separate from the balance of the jury, for a necessary purpose, and while out went to a grocery store to purchase some tobacco, and while there drank a glass of ale or lager beer, and then returned with the bailiff, in whose charge he was while absent, to the jury-room. On appeal, the judgment was set aside on account of this misconduct of the juror. There was no pretense that the juror was intoxicated. The court said: "The parties have a clear right to the cool, dispassionate and unbiased judgment of each juror applied to the determination of the issue in the cause, and the use, in any degree, of that which stimulates the passions and has a tendency to lessen the soundness of judgment, is itself conclusive evidence that the party who has the right to the exercise of that dispassionate judgment has been prejudiced, in not having it as perfect as it existed in the juror when accepted, applied to the determination of the cause."

In People v. Douglass, 4 Cow. 26, the charge that one of the jurors in a capital case drank during the trial, was made one of the grounds of setting aside the verdict, although the charge was not clearly proved; the court remarking, "in a case of life and death the question upon the misbehavior of the jury should be beyond all doubt." This rule was recognized in the two earlier cases of Bullard v. Shore, 2 Cow. 430, and Rose v. Smith, 4 id. 17. So in Brant v. Fowler, 7 Cow. 562, a verdict was set aside because a juror had drunk one-third of a gill of brandy to check a diarrhoea. The court said: "We cannot allow jurors, thus of their own head, to drink spirituous liquor while engaged in the course of a cause. satisfied that there has been no mischief, but the rule is absolute and does not meddle with consequences." This was, of course, an extreme case, and it was dis

We are

approved of in Wilson v. Abrahams, 1 Hill, 207. In that case a juror, before the close of the evidence, drank about a half gill of brandy. The court said: “In civil cases, when the court adjourns for refreshment, in the progress of the trial, and before the cause is finally committed to the jury, it is now the usual course to allow the jurors to separate and return to their families or boarding-houses for food and rest; and, if one of them drink a glass of spirituous liquor while so absent from court, I cannot think it a sufficient ground for setting aside the verdict unless there is some reason to suppose that the juror drank to excess, or at the expense or at the invitation of one of the parties." This case is clearly distinguishable from most of the others we have noticed.

In Leighton v. Sargeant, 31 N. H. 119, the court set aside a verdict because brandy was furnished to the jury and drank by several of them, who complained of slight illness, while deliberating upon the cause after retiring to form their verdict. The court said: "The quantity drank was probably small, but we cannot consent that that fact should make a difference. We fully concur in the remarks made by the learned judge in People v. Douglass, 4 Cow. 36: 'It will not do to weigh and examine the quantity which may have been taken by the jury, nor the effect produced.'" So in State v. Bullard, 16 N. H. 139,. a verdict was set aside because some of the jurors, while they were deliberating on their verdict, took a little rum for their stomach's sake. It was not claimed that they were intoxicated, but the court said: "We are of the opinion that the use of stimulating liquors by a jury deliberating upon a verdict in a criminal case, without first showing a case requiring such use, and procuring leave of court for that purpose, is a sufficient cause for setting aside a verdict found against the prisoner in such circumstances, whether the use was an intemperate one or othervise."

In Jones v. State, 13 Tex. 168, the court, after examining the authorities, concluded that the weight of the authorities was against setting aside a verdict, simply because the jury has drunk liquor. But adds, "we, however, with due respect for the judges who have maintained this doctrine, are constrained to depart from their opinion; and we believe that the view they have taken of the effects of ardent spirits on the feelings, and also on the mind, has been superficial and not at all philosophical. Every day's experience must satisfy us that it is impossible to lay down a rule as to how much can be drank without impairing the qualification of a juror for discharging the trust confided in him. Its effect has been well described by Scotland's most popular bard:

"Inspiring bold John Barleycorn,

What dangers thou can'st make us scorn;
Wi' tippenny we fear nae evil;

Wi' usquebae we'll face the devil."

"Yes, it is but too true that it will make a man

bold and reckless, not only of consequences, personally, but also of the rights of those whose life and most valuable interests, property and reputation, are at stake; and its effect is so very different on different men, that it would be dangerous in the extreme to attempt to lay down any rule by which it could or should be determined whether a juror had drunk too much or not; and the only safe rule is to exclude it entirely."

In State v. Sparrow, 3 Murph. (N. C.) 487, which was upon an indictment for murder, the defendant moved for a new trial on two grounds, one of which was the improper demeanor of the jury during their retirement. It appeared that victuals and coffee were handed through a window into the jury room, and the next morning a vessel was found there containing wine. There was no pretense that these were furnished either by the State or the prosecutor, and on this ground the court refused a new trial. No particular attention was paid in the judgments to the wine; nor did the defendant, so far as appears, urge the drinking of it as an especial ground for a new trial. It was treated simply as a question of embracery. In Pope v. State, 36 Miss. 121, at the suggestion of a juror, who was a physician, the bailiff carried brandy, in a bottle, into the jury room for another juror who was sick. The sick juror drank, but it did not appear that any other juror drank. The court refused a new trial on the ground "that no effect which could in any way influence the verdict, resulted from the introduction of the bottle of liquor into the jury room," or, in other words, that as intoxication was not produced, no body was injured The court said: "If, indeed, the evidence closed with the proof of the naked fact that ardent spirits, in quantities sufficient to produce intoxication, were conveyed by the officer into the jury room, we should feel no hesitation in holding that the conviction should be set aside." So, in Gilmanton v. Ham, 38 N. H. 108, one of the jurors, after retiring to deliberate, was attacked with the diarrhoea, and was in consequence obliged to leave the room several times. On a previous attack his physician had prescribed brandy and sugar, and he now requested the bailiff to procure him some. A half of a glass full was procured and was drunk in the anteroom. This juror had already made up his mind as to the verdict and did not change it. The court refused to interfere with the verdict, the brandy having been taken strictly as medicine and not as a beverage, and after the juror's mind was made up in the case.

In Duke of Richmond v. Wise, 1 Ventr. 125, the fact of the jury having had wine, it not appearing to have been at the expense of a party, was held not to be a cause for a new trial.

In Commonwealth v. Roby, 12 Pick. 496, the jury was furnished with crackers, cheese and cider, and, no improper conduct being charged, the court refused to interfere. Chief Justice Shaw evidently looked upon

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