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appeals. It appears undeniable, that the "business,"
in any department, is exclusively that of the judi-
cial body therein; hence, a division in each depart-

ment.

2. Certain local appeals shall be heard in the Supreme Court in such manner as the Appellate Divisions in the respective departments * * * shall direct.

3. "The Appellate Division in any department may, however, allow an appeal upon any question of law," etc.

It is believed that a careful study of the foregoing quotations from the New Organic Law will lead to the conclusion that such law presents a possible field for future judicial doubt and construction on the question whether it provides for one or for more than one Appellate Division of the Supreme Court, in case such a question shall arise in any case, and involve practical results.

Sec. 220. "There shall be an Appellate Division of the Supreme Court in each judicial department hereby created, consisting of seven justices in the first department and of five justices in each of the other departments." Compare this with the corresponding declaration of the Constitution.

Sec. 225. "The terms of the Appellate Divisions of the Supreme Court are to be appointed,” etc. Sec. 226. "An appointment of a term or terms of an Appellate Division must be made," etc. Sec. 232. "The justices assigned to duty in the Appellate Division of each department."

Sec. 234. " Extraordinary terms of the Appellate Division of the Supreme Court in any department." Sec. 245. The Supreme Court Reporter must be appointed and may be removed "by the justices of the Appellate Divisions of the Supreme Court, or a majority of such of them as attend," etc.

Sec. 246. "The justices of the Appellate Divisions of the Supreme Court must meet in Convention."

We now turn to the acts of the Legislature, and
shall hardly wonder if that body found itself un-
able to avoid all ambiguity in attempting to carry
out the intent of a Constitution presenting the
peculiarities of phraseology which have been noted.
Laws of 1895, chapter 946 is an act containing the fourth judicial department."
numerous amendments of the Code of Civil Pro-
cedure, many of them having for their objects to
conform that code to the New Constitution. It af-
fects more than 200 sections of that code; to some
of these sections, as amended by the act of 1895,
reference may be made. The amendments may be
conveniently classified in like manner as the clauses
of the New Constitution.

Sec. 1344. "The Appellate Division of the Supreme Court in the fourth judicial department," ** * ** the justices of the Appellate Division of

Each of

I. INDICATIVE OF FOUR APPELLATE DIVISIONS.
SEC. 2. "Courts of record enumerated.
the following courts of the State is a court of record.
* * * 3. The Appellate Division of the Supreme
Court in each department. 4. The Supreme Court."
Here we have five courts of record declared to exist.
The mathematical lawyer will be puzzled to deter-
mine the relation between the whole and its parts.

Sec. 21. "The Appellate Division of the Supreme
Court, in any department," may order papers de-
stroyed.

Sec. 56. Board of examiners to certify successful candidates "to the Appellate Division of the Supreme Court of the department in which" the candidate resides, etc.

Sec. 89. "The justices of the Appellate Division in each department" shall appoint a clerk.

Secs. 135, 144. "The presiding justice of the Appellate Division of the Supreme Court of the first department."

Sec. 190. The Court of Appeals has jurisdiction to review certain determinations of "the Appellate Division of the Supreme Court in any department" (subd. 2.)

II. INDICATIVE OF ONLY ONE APPELLATE DIVISION.

Sec. 17. "The justices assigned to the Appellate Division of the Supreme Court" are to meet in convention at Albany and frame Rules of Practice. * "must The convention adopt a seal for each department of the Appellate Division of the Supreme Court.

*

*

Sec. 190. The Court of Appeals has jurisdiction to review "the actual determinations made by the Appellate Division of the Supreme Court" (subd. 1.)

* * *

Sec. 191. "No unanimous decision of the Appellate Division of the Supreme Court shall be reviewed by the Court of Appeals."

Sec. 223. "A designation of a justice of the Appellate Division of the Supreme Court must be in writing," etc.

Sec. 242. "A term of the Appellate Division of the Supreme Court must be attended by the sheriff of the county," etc.

Sec. 792. "Where a writ of mandamus * ** * has been issued from the Appellate Division of the Supreme Court."

Sec. 1000. Exceptions ordered to be heard by the Appellate Division of the Supreme Court.

Sec. 1227. "A motion for a new trial made at the

first instance at a term of the Appellate Division of the Supreme Court."

"Title IV. Appeal to the Appellate Division of the Supreme Court."

III. AMBIGUOUS.

Sec. 230. "In each department four of the jus

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Sec. 2070. Where the application is to the Appellate Division, by the Appellate Division, or a justice of the Appellate Division of that judicial department."

It is unnecessary to quote further from the amendments of the Code of Civil Procedure, effected by chapter 946 of the Laws of 1895, to illustrate the great variety of diction, in the references to the reorganized Supreme Court. The climax of contracts seems to be reached in references to departments of the Appellate Divisions and Appellate Divisions of the departments.

It may be that no serious consequences will arise from what is undeniably a striking looseness of expression in so important a document as the Constitution, and which is emulated in the legislation of 1895.

The philosophic student will reflect that the confusion may have been occasioned by the metamorphosis in the use of the now time-honored expression "the General Terms" of the Supreme Court. Properly mere sittings, they had come to be viewed as the court itself. In substituting "Appellate Division" for General Term or General Terms we have to deal with the tribunal, or a portion thereof, and not & Term.

THEODORE F. C. DEMAREST.

NEW YORK, June 18, 1895.

NOT

HENRY ERSKINE.

́OT a few men have labored under the disadvantage of having very celebrated brothers. Such was Henry Erskine's lot. On the restricted stage of the Edinburgh forum his powers had not the same scope and opportunity for their effective display as had those of his younger brother in the more public and important arena of Westminster Hall; or, as he himself expressed it, when Lord Advocate, in his interview with the king, his brother was playing at the guinea table while he was engaged at the shilling one. Judging by material results, the career of the chancellor was undoubtedly the more successful of the two, but the touchstone of this kind of success is often in the last degree fallacious, and it may well be doubted whether there was much to choose in point of mental accomplishments between the two gifted brothers Henry and Thomas Erskine.

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Henry Erskine, the second son of the tenth Earl of Buchan, was born in Edinburgh, in a house situated in one of the nnmerous "closes " which run off the High-street, a thoroughfare now fallen sadly from its former high estate, but still picturesque and laden with memories of the historic past. The year of his birth was 1746, the year of Culloden. Of his early youth we have few particulars beyond the fact that he was always-to use the words of his mother losing his pocket hankies." He was educated at St. Andrews, Glasgow, and Edinburgh, and at the university of the last-named city he had the advantage of studying under Dr. Hugh Blair and Adam Ferguson, two professors of considerable importance in their day. Besides attending the usual course of lectures he attended the debating societies connected with the college, and in these, like many another who afterwards attained forensic fame, he acquired a readiness in speaking and an admirable training in dialectic. Passing from the university he was admitted a member of the Faculty of Advocates in February, 1768, being then twentytwo. Like the generality of lawyers he did not at once flame into distinction; he was destined to pace the floor of the Parliament house to comparatively little purpose for a time, for, although sprung from an illustrious family, and highly gifted, he labored under the disadvantage, so far as early success was concerned, of being a Whig, at a time when to avow Liberal principles in Scotland was almost tantamount to committing professional suicide. He could afford to wait, however, and everything, we are told, comes to him who does so. Meantime he established his reputation as the wit of the faculty. One of the principal clerks of session at that period was Sir James Colquhoun of Luss, a gentleman noted for many eccentricities, whom Erskine took a malign delight in pursuing with his waggeries. One day in court, as a case was proceeding, Erskine, having nothing better to do, amused himself by making faces at Sir James as he sat at the clerk's table- —a course of action which so irritated poor Sir James that, at last being unable to stand the persecution any longer, he started up and disturbed the gravity of the whole court by exclaiming, "My lords, my lords, I wish ye wad speak to Harry! he's aye makkin' faces at me." Erskine, in some alarm, pulled a long face, and decorum prevailed. The case went on again, and was proceeding satisfactorily till Sir James, happening to turn his eyes towards the bar, and being met with a fresh grimace from the irrepressible wag, again convulsed the court by jumping up and calling out in a passion, "See there, my lords, he's at it again!"

By degrees, the young advocate began to get a practice together, despite his Whiggish opinions in politics. Many of his early cases were before the

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General Assembly of the Church of Scotland, the supreme court of the church, composed of representative clergymen and lay elders, a large popular assembly, which afforded an admirable field for the display of eloquence. Principal Hill, of St. Andrews, was then one of the leaders on the "Moderate" side of the Assembly, and, as Erskine's views inclined to the "Evangelical,” the two had many a battle, which Erskine enjoyed exceeding; he used to say he liked pleading in the Assembly because running down Hill was very pleasant work." His style of oratory was pleasing in the extreme, his speeches were seasoned with wit, but he never forgot the true function of humor in argument. Never playing the buffoon, he always regarded his gift of humor as of service only if it helped to make his argument more lucid and more acceptable to his audience. A remarkable tribute to the charms of his style was once given by one of the judges. Erskine was opening an appeal before the full court, and he remarked that he would be very brief, as the facts were very simple and his point plain, upon which one of the judges entered his protest by saying, "Hoots, Maister Harry, dinna be brief, dinna be brief." Such a request can be made to very few advocates; the desire, as we all know, is usually and properly that they should be as brief as possible.

As the years went by the capacity of Erskine came

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to be more and more appreciated. His name appears with greater frequency in the "Faculty Decisions,' and by 1783 his position at the bar was so important that, on the accession to power of the coalition ministry, he was appointed lord advocate. At that period, and, indeed, till comparatively recent years, the law officers of Scotland, on going out of office

with the government by which they were appointed, laid aside their silk robes, and resumed the ordinary

mously re-elected each year for the next ten years. In Scotland it has long been the boast that no prisoner, however poor, need want counsel to defend him; so far back as 1424 a statute was passed, which enacted that, "gif there be onie puir creature, for faulte or cunning, or dispenses, that cannot, nor may not follow his cause, the king, for the love of God, sall ordaine the judge, before quhom the cause suld be determined, to purvey and get a leill and wise advocate, to follow sik puir creature's causes.' "" For a great many years counsel for the poor have been chosen in rotation from the junior bar, but the dean of faculty, by the traditions of his office, has usually been expected, if called upon, to give his services to poor prisoners charged with capital offences. In the remarkable series of prosecutions for sedition which took place in 1793, and which were conducted in a manner that made Samuel Romilly, a spectator of some of them, shudder, and caused Fox to exclaim in the house of commons, in reference to the remarks of Braxfield, the lord justice clerk, "God pity the people who have such judges." Erskine was only asked to appear in one, that of Sinclair, and he did appear, making a long and interesting speech on the relevancy of the indictment, according to the custom of the period. The court decided against Erkstine's contention, but the crown quietly dropped the prosecution altogether. On the trial of Gerrald, in the same series of prosecutions, the

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prisoner applied to the court to appoint him counsel, on the ground that several advocates to whom he had made application had refused their services. The lord justice clerk said that, even without the interference of the court, I think no gentleman ought to refuse to defend a panel whatever derland said that the prisoner should have his the nature of the crime may be;" and Lord Hen

stuff gowns of the outer bar. Henry Dundas, Ers-choice, "at the same time recommending to him

kine's predecessor in the office of lord advocate, therefore, having put off his silk gown, met Erskine immediately afterwards, and said to him in a bantering tone, “It is hardly worth your while getting a silk gown for all the time you will want it, you had better borrow mine." Erskine, never at a loss, at once retorted, "From the readiness with which you make the offer, Mr. Dundas, I have no doubt that the gown is one made to fit any party; but, however short my time in office may be, it shall never be said of Henry Erskine that he took to the abandoned habits of his predecessor." It would be difficult to match this felicitous retort. The shrewd eye of Dundas was not mistaken in the forecast that Erskine would not long be burdened with the cares of office, for the coalition collapsing in the course of a few months, Erskine had perforce to go with it. In 1785 he was elected to the honorable position of dean of faculty, an office to which he was unani

not to wantonly interfere with the superior avocations of a gentleman at the bar whom the court are not induced to trouble with impositions on this head from a panel." In preparing the report of this

case for his collection of State Trials, Mr. Howell wrote to Erskine concerning this statement, and received the following reply: "You are right in supposing that I was the person alluded to by Lord Henderland in Gerrald's trial; but I was not one of the counsel to whom Gerrald applied, and who, he says, unanimously refused to undertake his defense. Had he wished my assistance, I should certainly have appeared for him, however inconvenient it might have been to me from the multiplicity of business in which I was in those days involved, for I ever felt (as the lord justice clerk well expresses it) that no gentleman ought to refuse to defend a panel whatever be the nature of his crime. I should at the same time have qualified my compliance with

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this condition-that the conduct of the defense an offer the more remarkable, inasmuch as Hope was
should be left entirely to me, knowing, as I did, one of the leading spirits in the movement which
that if he spoke for himself he would avow princi- resulted in Erskine's deposition from the deanship.
ples and views which would supply the counsel for Erskine, however, after consultation with some of
the crown with the only thing they wanted to make his friends, declined the offer, and Hope took the
out their case—the criminal intention." He then position himself. This proved to be Erskine's last
added that Sinclair had agreed to this condition, chance of promotion to the bench, although not of
but that Muir, another of the accused persons had office, for on the accession to power of the ministry
declined his assistance on these terms and had of all the talent, in 1806, he had another brief taste
pleaded his own cause, getting in the result a sen-
of official life as lord advocate. In the same year he
tence of transportation for fourteen years, These entered Parliament for the first time; but, although
remarks of Erskine have been quoted and com- taking part in several discussions, he had no oppor-
mented on by Mr. Forsyth, Q. C., in his interesting,tunity of adequately displaying his gifts, so that we
but now somewhat neglected work, "Hortensius, cannot say whether he would have been a success-
the Advocate," in the chapter devoted to forensic ful Parliamentary orator, or only another instance
casuistry, a subject which has a curious fascination of the able lawyer failing to catch the tone of the
for certain minds. It revives the old question, Is House. His appearance before the House of Lords,
an advocate justified in defending a person whom however, excited a good deal of interest in West-
"I remember," writes Lord Camp-
he knows to be guilty? The abstract question is minster Hall
one to which the lawyer seldom gives any thought; bell, "hearing him plead a cause at the bar of the
he asks the question, is there any legal evidence House of Lords, all the courts in Westminster Hall
against the accused? His duty it is to see that a being deserted from a curiosity to compare the two
prisoner, if convicted at all, is convicted on legal brothers, and full justice was done to the older.'
evidence alone. That is the only position he can
In one of these appeals he had an amusing passage
take np, and that is what Erskine practiced.
of arms with one of the lords. Having in the
course of his speech to use the word "curator," he
pronounced it with the accent on the first syllable,

The next great event in his career was his dismissal from the deanship, on which, during his

Po

tenure of office, he had conferred such lustre.
litical feeling was running higher than ever in the
Parliament House, and in Scotland generally; every-
one who expected to rise must first bend the knee
to the Dundases, who held the country in the hollow
of their hand. When, therefore, Erskine took the
leading part at a great meeting, held in Edinburgh
to protest against the policy of the government of
the day, great was the horror aroused in the steady
going adherents of the Tory party, and swift was
the Nemises which overtook Erskine, so far as his
post was concerned. In January, 1796, shortly
after the date of the political meeting, the faculty
of Advocates, by 161 votes to 38, turned Erskine
out of office solely on the ground that he had taken
part in that meeting! We often speak of the
"good old times," but those good old times were
very remarkable for an excess of party rancour,
which invaded other spheres besides the political,
and this incident is a striking instance of that con-
dition of things.

"In 1804," says Cockburn, "the gods, envying
mortals the longer possession of Eskgrove, took him
to themselves." Eskgrove had been lord justice
clerk, and that high office was consequently ren-
dered vacant. With Hope, then lord advocate, the
appointment practically lay, and, with a magnan-
imity exceedingly rare for the times, and by no
means common yet, he offered to waive his own
claims in favor of his political opponent Erskine;

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after the fashion affected in the Parliament House.
One of the lords, unable to stand this pronuncia-
tion any longer, said: Mr. Erskine, we are in the
habit in this country of saying 'curator,' following
the analogy of the Latin language, in which, you
are aware, the penultimate syllable is long." "I
thank your lordship," was Erskine's reply,
are weak enough in Scotland to think that in
pronouncing the word 'curător' we follow the
analogy of the English language; but I need
scarcely say that I bow with pleasure to the opin-
ion of so learned a senator and so good an orător as
your lordship." Erskine had rather the best of it
again.

By the fall of the Ministry in 1807, Erskine was again obliged to retire to the outer bar, and the dissolution which occurred almost immediately thereafter brought his Parliamentary career to an end. In 1811, on the death of Blair, the president of the Court of Session, Erskine appears to have thought that he should have been offered the post, for, on its being filled up by the promotion of Hope, he resolved to retire from the profession altogether, and accordingly he did so, passing the remaining six years of his life at his country estate of Ammondell, Linlithgowshire. There he solaced the evening of his days with the pleasures of gardening, and with his violin. He died on the 8th of October, 1817, in the seventy-first year of his age.

He had literary tastes; he wrote several metrical pieces, and he befriended Burns during the poet's sojourn in Edinburgh. His placid temper, the genial flow of his wit, the irresistible pun, the sweet smile, his fidelity to his principles, endeared him to all who came in contact with him. One or two examples of his humorous sayings have already been given, but his well-known witticism in connection with the visit of Dr. Johnson to the Parliament House under the guidance of Boswell must not be omitted. After being presented to the doctor, and having made his bow, Erskine slipped a shilling into Bozzy's hand, whispering that it was for a sight of his bear. His steadfast adherence to his Whig principles was long celebrated among his brother Liberals by the toast "The Independence of the Bar and Henry Erskine." Testimony to the geniality of his nature, and his powers of advocacy, has been given by Brougham, Cockburn, Jeffrey and Sir Walter Scott--a phalanx of no mean judges of what they were writing about; but perhaps the most effective testimony of all was that given by a poor peasant, who said, when advised not to go to law against a wealthy neighbor, "Ye dinna ken what ye say; there's nae a puir man in Scotland need want a friend, or fear a foe, while Harry Erskine lives."-Law Times.

Abstracts of Recent Decisions.

CONFLICT OF LAWS-CONTRACT OF SALE.-A cor

poration domiciled in Louisiana placed an order for a machine with a manufacturing company located in Ohio; the correspondence showing the complete terms of the contract, both as to amount and time of payment. The builder sent an agent to superintend the erection of the machine, and wrote to the purchaser that it might hand the cash and notes to

him.

The machine being ready for operation, the purchaser telegraphed that it could not make the cash payment. The seller then wired their agent to accept the purchaser's draft at 60 days, with interest, in lieu of the cash payment. Held, that the original contract was made under the law of Ohio, and that there was nothing in the circumstances to show a subsequent rescission of that contract and the making of a new one in Louisiana. (G. A. Gray Co. v. Taylor Bros. Iron Works Co. [U. S. C. C. of App.], 66 Fed. Rep. 686.)

CREDITORS' BILL-LIS PENDENS.-Plaintiffs, by a creditors' bill, acquired a lien on whatever equity of redemption their debtor, D, had in a railroad, sold to E under foreclosure. Thereafter, in a suit to which plaintiffs were not parties, a decree was entered waiving all rights of D to claim an equity of redemption, in consideration of the issue of

certain bonds by E to officers of D. Held, that the issue of the bonds to such officers did not make D chargeable to plaintiffs for the value thereof, on the theory that the bonds were thus substituted for the equity of redemption. (Merriman v. Chicago & E. I. R. Co. [U. S. C. C. of App.], 66 Fed. Rep. 663.) RAILROADS-RECEIVERS-APPOINTMENT.—Where a Circuit Court of the United States has appointed receivers for a railroad which lies only partly within its district, another court, within whose district a portion of the road lies, will, on application, appoint the same receivers, the portions of the road not being capable of separate management without injury to the road; the appointment of other receivers by the second court not being necessary to the preservation of the rights of lienholders, who object to the receivers appointed; and the grounds of objection not having been presented to the first court as reasons for its removal of the receivers appointed by it and the appointment of others in their stead. (Dillon v. Oregon S. L. and U. N. Ry. Co. [U. S. C. C., Oreg.], 66 Fed. Rep. 622.)

New Books and New Editions.

INDEX-DIGEST OF THE UNITED STATES SUPREME

COURT REPORTS, VOLUMES 119-154.

This is an excellent digest of the United States Reports, and is the third volume of the series, the first two volumes of this series containing a digest of the first 118 volumes of the opinions of the naThe arrangement of the tional court of last resort. work is excellent, and the many subdivisions under each heading make it a work which is of practical value to the lawyer. The work not only contains a digest, but also a table of cases, which is of much benefit, in that under the title of each case it is easily ascertained where the case has been cited and the various points which have been decided in the case in which the case in question is cited. Published by the Lawyers' Co-Operative Publishing Company, Rochester, N. Y.

AMERICAN STATE REPORTS, VOLUME 42. This is the last volume of this set which has been

published, and is printed in the usual good form and with the excellent index that has marked this series from its beginning. This volume contains the following Reports: Alabama, 99; California, 103; Connecticut, 64; Illinois, 151; Kansas, 53; Kentucky, 94; Massachusetts, 161; Mississippi, 71; Missouri, 121; Nebraska, 39-40; New York, 143; Oregon, 25; Pennsylvania State, 162; South Carolina, 40, and Tennessee, 93. Published by BancroftWhitney Co., San Francisco, Cal.

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