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The climate proving too rigorous for the health of his wife, who was suffering from pulmonary disease, Mr. Smith removed from Boston in the spring of 1854, and in the fall of that year opened an office in the city of New York. There he soon established a prosperous, and, as he hoped, a permanent business. But at the end of five years Mrs. Smith died, after a lingering illness, leaving him with four small children, and impaired health from the combined effect of exhausting professional labor and long watching by the sick bed. In about a year thereafter he retired to Johnstown for rest and recuperation, without designing to make it his permanent home and place of business. But, on regaining his health, business came to him, the climate and surroundings proved agreeable, and he has retained his residence in the old historic town until his death.

retained was one which severely tested his mettle and legal ability, and the issue of which was peculiarly gratifying to a young and ambitious lawyer. It was an action in the United States Circuit Court for an infringement of a patent, in which he was retained as attorney for the defendant. As Rufus Choate and several other counsel were engaged for the plaintiff, Mr. Smith retained Daniel Webster as counsel for the defendant. About a week prior to the trial, and when it was too late to employ and instruct other counsel, Mr. Webster's health compelled him to retire from the case. The consequence was that Mr. Smith had to fight the battle alone against an array of counsel which would have been formidable to the most experienced and best equipped lawyer. On the trial, which lasted three weeks, there was much evidence taken, many experts examined and numerous questions of law argued. The result was a verdict by the jury for defendant. Mr. Smith's gratification at the result was increased by the generous and encouraging words of commendation by Mr.larly associated with his son, Borden D. Smith.

Choate and by Mr. Webster's expression, reported to him by the law partner of the latter, "I like the bearing of the young man."

While in Massachusetts, Mr. Smith took an active part in the stirring political movements which revolutionized the State, and, in co-operation with the friends of freedom in other parts of the country, culminated in the organization of the Republican party. He was a member of the State central committee of the Free Soil party, and, in the campaign of 1851, in connection with Francis W. Bird and John B. Alley, edited and published a paper entitled "The Free Soiler," which was circulated in all parts of the State. It was printed in the office of 'The Boston Republican," a paper edited and published by Hon. Henry Wilson, afterwards vicepresident of the United States.

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Mr. Smith was a member of the Massachusetts legislature in 1851-2, and took an active part in its proceedings, being on the judiciary committee and other important committees. He introduced the mammoth petition signed by ex-Governor Briggs and upwards of 150,000 others, praying for the enactment of the Maine Law;" was the chairman on the part of the house on the joint special committee, to which the petition was referred, framed the report of the committee, and fought a bill through favorable to the prayer of the petitioners, gaining thereby unstinted abuse from the liquor organs. In 1852 he received and declined a nomination for congress, to the seat made vacant by the death of Hon. Robert Randolph, Jr. John B. Alley, nominated in place of Mr. Smith, afterwards represented the district in congress for several terms.

In 1860 Mr. Smith formed a copartnership with John M. Carroll for the practice of law, which was continued until 1868, when Mr. Smith became simi

To this firm was admitted Andrew J. Nellis in 1874, who continued as a law partner of the Messrs. Smith until 1879.

He was elected and served as a member of the Constitutional Convention of New York, held in the city of Albany in 1867-8, and took an active part in its deliberations.

By an act of congress, approved June 1, 1872, Horace E. Smith was named as one of the corporators for the State of New York, of the "Centennial Board of Finance," chartered and organized for the purpose of carrying into effect the act of congress relative to the Centennial International Exhibition, held in the city of Philadelphia, in 1876. In the summer of 1879 he was elected dean and professor of the Albany Law School, to the position made vacant by the death of Isaac Edwards, LL. D. Accepting the position, he entered upon the discharge of its duties in the autumn of that year, and held the office for a period of ten years, when he tendered his peremptory resignation. As dean, the whole business and management of the school devolved mainly upon him, and in addition to weekly oral examinations, written examinations at the close of each term, and moot courts, together with much incidental work, he delivered in each school year upwards of two hundred lectures, treating with more or less fullness the following subjects: Municipal Law, Personal Property, Contracts, Agency, Contracts of Sale, Partnership, Negotiable Instruments. Suretyship and Guaranty, Bailments, Insurance, Corporations, Insolvent and Bankrupt Laws, Pleading, Torts, and some years a few lectures on Medical Jurisprudence.

During this time he was chairman of the com

bald I. McMartin, late of Dunlap, Ia., and the children of a deceased son, George R. Smith, late of Westmoreland, Kan.

mittee appointed annually by the General Term oi the Supreme Court, to examine and report upon applicants for admission to the bar. He was also a member of the Albany Institute, a literary and scientific association of long standing, taking part MEMORIAL OF WILLIAM ALLen_butler.* in its discussions, and contributing several papers to the library of its published transactions.

In June, 1880, Mr. Smith received the honorary degree of Doctor of Laws from Dartmouth College, under the presidency of Dr. Bartlett.

One of Mr. Smith's professional brethren, who is intimately acquainted with him, says, that "Since Daniel Cady there has not been in Fulton county his superior as an all-around lawyer. Others might excel him as an advocate; in nothing else has he been excelled. He was kindly and helpful to his students, faithful to and zealous for his clients,

and of scrupulous integrity. Pure in mind, fastidiously methodical in all his habits, gentle and kindly

to all, he has been one of the pillars of society and of the Presbyterian church during his residence in Johnstown. His native modesty and retiring temperament have prevented more public recognition of his worth."

Since his retirement from the Albany Law School he has been engaged as counsel in several important matters, in the trial of causes as referee, in the preparation of a work on Personal Property, published in 1893, and a work on Judicial Law, published in 1901. On the formation of the Johnstown Historical Society, Mr. Smith was elected president.

For many years past he has been connected by membership, and much of the time officially, with religious organizations. As an elder of the Presbyterian church in Johnstown, he has frequently represented his church in presbytery; and, since his liberation from the Albany Law School, he has been twice commissioned by the Albany Presbytery as a delegate to synod, and twice as a commissioner to the general assembly. He has also been an earnest worker with tongue and pen in various reformatory and benevolent enterprises of the day, and in political campaigns, involving questions of great public interest. Acting upon the principle that it is both the duty and the privilege of every man to make the most of his abilities and opportunities, and to contribute all in his power to the welfare of humanity, his life has been one of hard and persistent work.

William Allen Butier, the son Franklin Butler, was born at Albany on February of Benjamin 20, 1825, and died at Yonkers on September 9,

1902. He was admitted to the bar in 1846, and his active professional career, if it should be considered as having terminated before his death, covered a period considerably longer than half a century.

Mr. Butler began the practice of the law with the advantage and the peril of a professional association with a great lawyer — his father, whose still are and long will be remembered. If such a name and fame, as a lawgiver and as an advocate, reputation be inheritable, it is a burden or a benefit

to the heir according to his capacity to administer the succession; Mr. Butler's career at this bar may be summed by the statement that his death left it undiminished.

Such a memorial as this has for its purpose a record of character and a tribute of respect, and not a narrative of incidents. Mr. Butler's life, indeed,

is conspicuous not for striking events, but for a steady and continuous labor in an absorbing profession, and an equally steady and continuous flow of consequent reputation and prosperity. The graceful style, the poetic fancy and the brilliant wit which were among his native gifts, and which were effective professional weapons in his hards, certainly served him also for his own pleasure and that of others in moments of diversion; but by those who have known him at the bar it will unhesitatingly be acknowledged that his life work did not differ in character, if it did in the degree of prosperity and reputation by which it was deservedly rewarded, from that of any successful lawyer, charged with the responsibility of affairs of great importance, and constantly absorbed in the exacting labor of adviser and advocate.

A reference to a few of the important cases in which Mr. Butler was engaged will serve as evidence of his rank in the profession:

In the case of The Steamer Pennsylvania (19 Wall., 126) Mr. Butler was successful in obtaining a reversal by the Supreme Court of the United States of the decrees both of the Circuit and DisMr. Smith is survived by his widow, Jeanie Oli-trict Courts, which had followed decisions of the ver Smith, and his daughter, Miss Agnes Smith, English Admiralty Court and of the privy council. of this city; his daughters, Mrs. Daniel Moore, of This decision conclusively settled the doctrine in Atchison, Kan.; Mrs. C. E. Spoerl, of Wilkesbarre,

Pa.; Mrs. William L. Kennedy, of New York city, and his son, Borden D. Smith, of this city, besides the children of a deceased daughter, Mrs. Archi

Prepared pursuant to action of New York Bar Association

meeting (John E. Parsons, Chairman of Committee), presented to the Appellate Div., Sup. Ct., First Dept., and by it ordered entered in the records of the Court.

collision cases, that a vessel violating a rule of cate; and especially in the appellate courts, where navigation laid down by statute, must prove affirma- his deep knowledge of the law, his phenomenal

tively that such violation could not have contributed to the disaster. The decision has been repeatedly cited and followed, and has been of immense value in inducing compliance with the provisions of the

statutes.

memory, his remarkable powers of elucidation and illustration of legal principles, and his temperate and almost judicial attitude of mind, were most effectively brought into play.

But such talents as these, though always comIn The Scotland (105 U. S., 24), where Mr. But-pelling admiration, would not alone command the ler was against successful in spite of adverse de- grateful respect which it is sought here to record. cisions below, the Supreme Court of the United It is a conspicuous pattern of the nobler qualities States established the rule that owners of foreign vessels may obtain the benefit of our statutes for the limitation of liability of owners of vessels for disasters on the high seas.

In Sturgis v. Spofford (45 N. Y., 446) Mr. Butler successfully maintained the constitutionality of the law of 1853, establishing the board of commissioners of pilots; and in People v. Vanderbilt (26 N. Y., 286) he obtained an assertion of the power of that board to prevent encroachments upon the public piers and in the harbor of New York.

Other important cases argued by Mr. Butler were Union Trust Company v. New York, Chicago & St. Louis R. R. Company, involving the validity of the bonds and mortgage of the defendant company; Rich v. New York Central R. R. (87 N. Y., 382, and 154 N. Y., 733), involving novel questions as to liability for tort arising from non-performance of contract; The Chicago Gas Trust Reorganization case, where the legality of the plan of reorganization was sustained against the opinion of a majority of leading lawyers of Chicago; Fifth Avenue Bank v. Colgate (120 N. Y., 381), involving novel questions affecting liability under the special partnership act; Stevenson v. Brooklyn R. R. Company (114 U. S., 149), a case on patent law; Liverpool & London & Globe Insurance Co. v. Gunther (116 U. S., 115), involving interesting questions in the law of fire insurance; the legal tender case of Juilliard v. Greenman (110 U. S., 421), and the famous case of Hoyt v. Sprague (103 U. S., 613), involving intricate questions of partnership law.

A just appreciation of Mr. Butler's thorough and general attainments in our many-sided science precludes, however, the ascription to him of superior attainments in any one of its branches. In the law of admiralty, of insurance, of real estate, of patents, of wills and testamentary trusts, of corporations and banking, as in other branches sometimes considered specialties, he was a master, but he had too many specialties to be a specialist.

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of professional character that he should be described and remembered. That his integrity was spotless, his veracity undeviating, is hardly to be remarked; but it is remarkable that in him they appeared to be spontaneous and instinctive to be of the inward essence of the man. Among the fruits of these fundamental qualities were candor and fairness in the statement both of facts and principles; courtesy and generosity to his adversaries, and his reward, in the confidence and affection of bench and bar, was as ample as deserved.

The rank accorded to Mr. Butler by his profes sional brethren is evidenced by his having served as president of the American Bar Association in 1885-1886, and as president of the Association of the Bar of the City of New York in the years 1887 and 1888.

No complete view of Mr. Butler could be made without a reference to his character as a man and a citizen. Evidence on these matters can best be found in the community in which a man has dwelt. For the last thirty-seven years of his life Mr. Butler was a resident of Yonkers. All the best elements in the development of this village, town and city, in which he lived and whose growth he watched, were of keen interest to Mr. Butler, and were generously fostered by him. As a devoted member of one of its largest churches; as the chief founder of a free reading room, which, until other instrumentalities superseded it was of great benefit to the poorer classes; as a large contributor in work and money to the building up of the women's institute, for the benefit of working women, one of the most successful institutions of the city; as the wise ad viser of one of its hospitals, and in many other ways, Mr. Butler showed his public spirit. While taking no prominent part in party management, he never failed on occasion to counsel his fellowcitizens upon public questions on the platform and through the press, and no opinions were listened to with more respect or carried greater weight. His views in council were sought upon a great variety of subjects affecting the common welfare, and his influence, founded upon the confidence of the community in his high character, public spirit, fair and sound judgment, has for a generation been

So, again, Mr. Butler was too sound and sagacious an adviser in his office; too brilliant and successful an advocate in the courts to be permitted to devote himself exclusively to one or the other of the two main divisions of the profession. Perhaps the most effective walk, however, was as an advo- widely felt.

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