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appeals. It appears undeniable, that the“ business,” Sec. 220. ‘There shall be an Appellate Division in any department, is exclusively that of the judi- of the Supreme Court in each judicial department cial body therein; hence, a division in each depart- hereby created, consisting of seven justices in the ment.
first department and of five justices in each of the 2. Certain local appeals shall be heard in the Su- other departments.” Compare this with the correspreme Court in such manner as the Appellate Divi- ponding declaration of the Constitution. sions in the respective departments *
Sec. 225. “The terms of the Appellate Divisions direct.
of the Supreme Court are to be appointed,” etc. 3. “The Appellate Division in any department Sec. 226. “An appointment of a term or terms of may, however, allow an appeal upon any question of an Appellate Division must be made,” etc. law,” etc.
Sec. 232. “The justices assigned to duty in the It is believed that a careful study of the foregoing Appellate Division of each department.” quotations from the New Organic Law will lead to Sec. 234. “Extraordinary terms of the Appellate the conclusion that such law presents a possible Division of the Supreme Court in any department." field for future judicial doubt and construction on the
Sec. 245. The Supreme Court Reporter must be question whether it provides for one or for more appointed and may be removed “by the justices of than one Appellate Division of the Supreme Court, the Appellate Divisions of the Supreme Court, or a in case such a question shall arise in any case, and majority of such of them as attend,” etc. involve practical results.
Sec. 246. “The justices of the Appellate DiviWe now turn to the acts of the Legislature, and sions of the Supreme Court must meet in Convenshall hardly wonder if that body found itself un tion.” able to avoid all ambiguity in attempting to carry Sec. 1344. The Appellate Division of the Suout the intent of a Constitution presenting the preme Court in the fourth judicial department,” peculiarities of phraseology which have been noted.
the justices of the Appellate Division of Laws of 1895, chapter 946 is an act containing the fourth judicial department.” numerous amendments of the Code of Civil Pro
II. INDICATIVE OF ONLY ONE APPELLATE DIVISION. cedure, many of them having for their objects to conform that code to the New Constitution. It af Sec. 17. “The justices assigned to the Appellate fects more than 200 sections of that code: to some Division of the Supreme Court” are to meet in conof these sections, as amended by the act of 1895, vention at Albany and frame Rules of Practice.
“must reference may be made. The amendments may be the convention
* adopt a seal for conveniently classified in like manner as the clauses euch department of the Appellate Division of the Suof the New Constitution. I. INDICATIVE OF Four APPELLATE DIVISIONS.
Sec. 190. The Court of Appeals has jurisdiction to
review the actual determinations made by the Sec. 2. “ Courts of record enumerated. Each of the following courts of the State is a court of record. 1 - ppellate Division of the Supreme Court” (subd. 1.) 3. The Appellate Division of the Supreme
Sec. 191. “No unanimous decision of the ApCourt in each department. 4. The Supreme Court." pellate Division of the Supreme Court IIere we have five courts of record declared to exist. shall be reviewed by the Court of Appeals.”
Sec. 223. The mathematical lawyer will be puzzled to deter
· A designation of a justice of the Apmine the relation between the whole and its parts.
pellate Division of the Supreme Court must be in Scc. 21. “The Appellate Division of the Supreme writing,” etc. Court, in any department,” may order papers de
Sec. 212. “A term of the Appellate Division of stroyed.
the Supreme Court must be attended by the sheriff Sec. 56. Board of examiners to certify successful
of the county,” etc.
Sec. 792. “Where a writ of mandamus candidates “to the Appellate Division of the Supreme Court of ihe department in which ” the can
has been issued from the Appellate Division of the didate resides, etc.
Supreme Court." Sec. 89. “ The justices of the Appellate Division
Sec. 1000. Exceptions ordered to be heard by the in each department” shall appoint a clerk.
Appellate Division of the Supreme Court. Secs. 135, 144. “ The presiding justice of the Ap- first instance at a term of the Appellate Division of
Sec. 1227. “A motion for a new trial made at the pellate Division of the Supreme Court of the first department."
the Supreme Court." Sec. 190. The Court of Appeals has jurisdiction
“Title IV. Appeal to the Appellate Division of
the Supreme Court." to review certain determinations of 'the Appellate Division of the Supreme Court in any department”
TII. AMBIGUOUS. (subd. 2.)
Sec. 230. “In each department four of the jus
tices of the Appellate Division of the Supreme Court Henry Erskine, the second son of the tenth Earl shall constitute a quorum.”
of Buchan, was born in Edinburgh, in a house situSec. 231. “Where in any case four justices of the ated in one of the nnierous "closes ” which run off Appellate Division in any department are not quali- the High-street, a thoroughfare now fallen sadly fied,” etc.
from its former high estate, but still picturesque Sec. 248. “In each course heard by the Appellate and laden with memories of the historic past. The Division of the Supreme Court, the attorney year of his birth wüs 1746, the year of Culloden. must deliver to the clerk of said Appellate Divi
of his early youth we have few particulars beyond sion,” etc.
the fact that he was always — to use the words of Sec. 2070. "Where the application is to the Ap- his mother — " losing his pocket hankies.” He was pellate Division, by the Appellate Division, or a
educated at St. Andrews, Glasgow, and Edinburgh, justice of the Appellate Division of that judicial and at the university of the last-named city he had department."
the advantage of studying under Dr. Hugh Blair It is unnecessary to quote further from tlie amend- and Adam Ferguson, two professors of considerable ments of the Code of Civil Procedure, effected by importance in their day. Besides attending the chapter 946 of the Laws of 1895, to illustrate the
usual course of lectures he attended the debating great variety of diction, in the references to the re
societies connected with the college, and in these, organized Supreme Court. The climax of contracts
like many another who afterwards attained forensic seems to be reached in references to departments of fame, le acquired a readiness in speaking and an the Appellate Divisions and Appellate Divisions of admirable training in dialectic. Passing from the the departments.
university he was admitted a member of the Faculty It may be that no serious consequences will arise of Advocates in February, 1768, being then twentyfrom what is undeniably a striking looseness of ex two. Like the generality of lawyers he did not at pression in so important a document as the Consti
once flame into distinction; he was destined to pace tution, and which is emulated in the legislation of the floor of the Parliament house to comparatively 1895.
little purpose for a time, for, although sprung from The philosophic student will reflect that the con an illustrious family, and highly gifted, he labored fusion may have been occasioned by the metamor
under the disadvantage, so far as early success was phosis in the use of the now time-honored expres- concerned, of being a Whig, at a time when to avow sion—"the General Terms ” of the Supreme Court. Liberal principles in Scotland was almost tantaProperly mere sittings, they had come to be viewed mount to committing professional suicide. He as the court itself. In substituting "Appellate Di-could afford to wait, however, and everything, we visiop” for General Term or General Terms we have
are told, comes to him who does so. Meantime he to deal with the tribunul, or a portion thereof, and not
established his reputation as the wit of the faculty. a Term.
One of the principal clerks of session at that period THEODORE F. C. DEMAREST.
was Sir James Colquhoun of Luss, il gentleman New York, June 18, 1895.
noted for many eccentricities, whom Erskine took
a malign delight in pursuing with his waggeries. HENRY ERSKINE.
One day in court, as a case was proceeding, Erskine,
having nothing better to do, amused himself by OT a few men have labored under the disadvan. making faces at Sir James as he sat at the clerk's
tage of having very celebrated brothers. Such table --- a course of action which so irritated poor was Henry Erskine's lot. On the restricted stage of Sir James that, at last being unable to stand the the Edinburgh forum his powers had not the same
persecution any longer, he started up and disturbed scope and opportunity for their effective display as
the gravity of the whole court by exclaiming, “Jy had those of his younger brother in the more public lords, my lords, I wish ye wad speak to IIarry! he's and important arena of Westminster Hall; or, as he
aye makkin' faces at me.” Erskine, in some alarm, himself expressed it, when Lord Advocate, in liis pulled a long face, and decorum prevailed. The interviey with the king, his brother was playing at case went on again, and was proceeding satisfacthe guinea table while he was engaged at the shil- torily till Sir James, bappening to turn his eyes toling one. Judging by material results, the career wards the bar, and being met with a fresh grimace of the chancellor was undoubtedly the more success from the irrepressible wag, again convulsed the ful of the two, but the touchstone of this kind of court by jumping up and calling out in a passion, success is often in the last degree fallacious, and it “See there, my lords, he's at it again!” may well be doubted whether there was much to By degrees, the young advocate began to get a choose in point of mental accomplishments between practice together, despite his Whiggish opinions in the two gifted brothers Henry and Thomas Erskine. ! politics. Many of his early cases were before the
General Assembly of the Church of Scotland, the mously re-elected each year for the next ten years. supreme court of the church, composed of repre- In Scotland it has long been the boast that no prissentative clergymen and lay elders, a large popular oner, however poor, need want counsel to defend assembly, which afforded an admirable field for the him; so far back as 1424 a statute was passed, which display of eloquence. Principal Hill, of St. An-enacted that, “gif there be onie puir creature, for drews, was then one of the leaders on the “Mod- faulte or cunning, or dispenses, that cannot, nor may erate” side of the Assembly, and, as Erskine's views not follow his cause, the king, for the love of God, inclined to the so Evangelical,” the two had many a sall ordaine the judge, before quhom the cause suld battle, which Erskine enjoyed exceeding; he used be determined, to purvey and get a leill and wise to say he liked pleading in the Assembly because advocate, to follow sik puir creature's causes.” For running down Hill was very pleasant work." His
a great many years counsel for the poor have been style of oratory was pleasing in the extreme, his chosen in rotation from the junior bar, but the dean speeches were seasoned with wit, but he never for- of faculty, by the traditions of his office, has usually got the true function of humor in argument. been expected, if called upon, to give his services Never playing the buffoon, he always regarded his to poor prisoners charged with capital offences. In gift of humor as of service only if it helped to the remarkable series of prosecutions for sedition make his argument more lucid and more acceptable which took place in 1793, and which were conducted to his audience. A remarkable tribute to the in a manner that made Samuel Romilly, a spectator charms of his style was once given by one of the of some of them, shudder, and caused Fox to judges. Erskine was opening an appeal before the exclaim in the house of commons, in reference to full court, and he remarked that he would be very the remarks of Braxtiell, the lord justice clerk, brief, as the facts were very simple and his point
“God pity the people who have such judges." plain, upon which one of the judges entered his Erskine was only asked to appear in one, that of Sinprotest by saying, “ Hoots, Maister Harry, dinna
clair, and he did appear, making a long and interestbrief, dinna be brief.” Such a request can be made ing speech on the relevancy of the indictment, accordto very few advocates; the desire, as we all know, ing to the custom of the period. The court decided is usually and properly that they should be as brief | against Erkstine's contention, but the crown quietly as possible.
dropped the prosecution altogether. On the trial As the years went by the capacity of Erskine came
of Gerrald, in the same series of prosecutions, the to be more and more appreciated. Ilis name appears prisoner applied to the court to appoint him counwith greater frequency in the “ Faculty Decisions," and by 1783 his position at the bar was so important be had made application had refused their services.
sel, on the ground that several advocates to whom that, on the accession to power of the coalition ministry, he was appointed lord advocate. At that
The lord justice clerk said that, even withperiod, and, indeed, till comparatively recent years,
out the interference of the court, I think no gentlethe law officers of Scotland, on going out of office
man ought to refuse to defend a panel whatever with the government by which they were appointed, aerland said that the prisoner should have his
the nature of the crime may be;" and Lord Henlaid aside their silk robes, and resumed the ordinary choice, “at the same time recommending to him stuff gowns of the outer bar. Henry Dundas, Ers
not to wantonly interfere with the superior avocakine's predecessor in the office of lord advocate, therefore, having put off his silk gown, met Erskine tions of a gentleman at the bar whom the court are
not induced to trouble with impositions on this immediately afterwards, and said to him in a bantering tone, “It is hardly worth your while getting head from a panel.” In preparing the report of this a silk gown for all the time you will want it, you
case for his collection of State Trials, Mr. Howell had better borrow mine." Erskine, never at a loss,
wrote to Erskine concerning this statement, and reat once retorted, “From the readiness with which ceived the following reply: “You are right in supyou make the offer, Mr. Dundas, I have no doubt posing that I was the person alluded to by Lord Henthat the gown is one made to fit any party; but, derland in Gerrald's trial; but I was not one of the however short my time in oflice may be, it shall counsel to whom Gerrald applied, and who, he says, never be said of IIenry Erskine that he took to the unanimously refused to undertake his defense. Had abandoned habits of his predecessor.” It would be he wished my assistance, I should certainly have difficult to match this felicitous retort. The shrewd appeared for him, however inconvenient it might eye of Dundas was not mistaken in the forecast that have been to me from the multiplicity of business Erskine would not long be burdened with the cares in which I was in those days involved, for I ever of office, for the coalition collapsing in the course felt (as the lord justice clerk well expresses it) that of a few months, Erskine had perforce to go with it. no gentleman ought to refuse to defend a panel In 1785 he was elected to the honorable position of whatever be the nature of his crime. I should at dean of faculty, an office to which he was unani- 1 the same time have qualified my compliance with
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 hail office, for on the accession to power of the ministry declined his assistance on these terms and bad 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 alvocate. 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 oppormented on by Mr. Forsyth, Q. C., in his interesting, | tunity of adequately displaying his gifts, so that we but now somewhat neglected work, “ Hortensius, cunnot say whether he would have been a successthe 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 flouse of Lords, an advocate justified in defending a person whom however, excited a good deal of interest in Westhe knows to be guilty? The abstract question is minster Ilall “I remember," writes Lord Campone 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 IIall against the accused? IIis duty it is to see that a being deserted from a curiosity to compare the two prisoner, if convicted at all, 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 The next great event in his career was his dis
course of his speech to use the word “curator," he missal from the deanship, on which, during his pronounced it with the accent on the first syllable, tenure of office, he had conferred such lustre. Po
after the fashion affected in the Parliament House. litical feeling was running higher than ever in the One of the lords, unable to stand this pronunciaParliament House, and in Scotland generally; every
any longer, said: Mr. Erskine, we are in the one who expected to rise must first bend the knee habit in this country of saying 'curator,' following to the Dundases, who held tlie country in the hollow the analogy of the Latin language, in which, you of their hand. When, therefore, Erskine took the are aware, the penultimate syllable is long.” “I leading part at a great meeting, held in Edinburgh thank your lordship,” was Erskine's reply, “we to protest against the policy of the government of are weak enough in Scotland to think that in the day, great was the horror aroused in the steady pronouncing the word cūrător' we follow the going adherents of the Tory party, and swift was analogy of the English language; but I need the Nemises which overtook Erskine, so far as his scarcely say that I bow with pleasure to the opinpost was concerned. In January, 1796, shortly ion of so learned a senator and so good an oriitor as after the date of the political meeting, the faculty your lordship." Erskine had rather the best of it of Advocates, by 161 votes to 38, turned Erskine again. out of office solely on the ground that he had taken By the fall of the Ministry in 1807, Erskine part in that meeting! We often speak of the was again obliged to retire to the outer bar, and
good old times," but those good old times were the dissolution which occurred almost immediately very remarkable for an excess of party rancour, thereafter brought his Parliamentary career to an which invaded other spheres besides the political, end. In 1811, on the death of Blair, the president and this incident is a striking instance of that con of the Court of Session, Erskine appears to have dition of things.
thought that he should have been offered the post, " In 1804,” says ('ockburn, “the gods, envying for, on its being filled up by the promotion of mortals the longer possession of Eskgrove, took him Hope, he resolved to retire from the profession alto themselves." Eskgrove had been lord justice together, and accordingly he did so, passing the clerk, and that high office was consequently ren- remaining six years of his life at his country estate dered vacant. With Hope, then lord advocate, the of Ammondell, Linlithgowshire. There he solaced appointment practically lay, and, with a magnan- the evening of his days with the pleasures of garimity exceedingly rare for the times, and by no dening, and with his violin. He died on the Sth means common yet, he offered to waive his own of October, 1817, in the seventy-first year of his claims in favor of his political opponent Erskine; I age.
He had literary tastes; he wrote several metrical certain bonds by E to officers of D. Held, that the pieces, and he befriended Burns during the poet's issue of the bonds to such officers did not make D sojourn in Edinburgh. His placid temper, the chargeable to plaintiffs for the value thereof, on the genial flow of his wit, the irresistible pun, the theory that the bonds were thus substituted for the sweet smile, his fidelity to his principles, endeared equity of redemption. (Merriman v. Chicago & E. him to all who came in contact with him. One or two I. R. Co. (U. S. C. C. of App.], 66 Fed. Rep. 663.) examples of his humorous sayings have already
RAILROADS—RECEIVERS— APPOINTMENT. —Where been given, but his well-known witticism in con
a Circuit Court of the United States has appointed nection with the visit of Dr. Johnson to the Parlia-receivers for a railroad which lies only partly within ment House under the guidance of Boswell must its district, another court, within whose district a not be omitted. After being presented to the portion of the road lies, will, on application, apdoctor, and having made his bow, Erskine slipped point the same receivers,—the portions of the road a shilling into Bozzy's hand, whispering that it was
not being capable of separate management without for a sight of his bear. His steadfast adherence to injury to the road; the appointment of other rehis Whig principles was long celebrated among his
ceivers by the second court not being necessary to brother Liberals by the toast“ The Independence the preservation of the rights of lienholders, who of the Bar and Henry Erskine.” Testimony to the object to the receivers appointed; and the grounds geniality of his nature, and his powers of advocacy, of objection not having been presented to the first has been given by Brougham, Cockburn, Jeffrey court as reasons for its removal of the receivers apand Sir Walter Scott--a phalanx of no mean judges pointed by it and the appointment of others in their of what they were writing about; but perhaps the stead. (Dillon v. Oregon S. L. and U. N. Ry. Co. most effective testimony of all was that given by a
[U. S. C. ('., Oreg. ], 66 Fed. Rep. 622.) 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
New Books and New Editions. need want a friend, or fear a foe, while Harry Erskine lives.”—Lau Times.
INDEX-DIGEST OF THE UNITED STATES SUPREME
COURT REPORTS, VOLUMES 119-154. Abstracts of Recent Decisions.
This is an excellent digest of the United States
Reports, and is the third volume of the series, the CONFLICT OF LAWS-CONTRACT OF SALE.
first two volumes of this series containing a digest poration domiciled in Louisiana placed an order for
of the first 118 volumes of the opinions of the na
The arrangement of the a machine with a manufacturing company located tional court of last resort. in Ohio; the correspondence showing the complete work is excellent, and the many subdivisions under terms of the contract, both as to amount and time each heading make it a work which is of practical of payment. The builder sent an agent to superin-value to the lawyer. The work not only contains a tend the erection of the machine, and wrote to the digest, but also a table of cases, which is of much purchaser that it might hand the cash and notes to benefit, in that under the title of each case it is him. The machine being ready for operation, the easily ascertained where the case has been cited and purchaser telegraphed that it could not make the the various points which have been decided in the cash payment. The seller then wired their agent to
case in which the case in question is cited. Pubaccept the purchaser's draft at 60 days, with in lished by the Lawyers' Co-Operative Publishing terest, in lieu of the cash payment. Held, that the Company, Rochester, N. Y. original contract was made under the law of Ohio, and that there was nothing in the circumstances to AMERICAN STATE REPORTS, VOLUME 42. show a subsequent rescission of that contract and This is the last volume of this set which has been the making of a new one in Louisiana. (G. A. Gray published, and is printed in the usual good form Co. v. Taylor Bros. Iron Works Co. [U. C. C. of and with the excellent index that has marked this App.], 66 Fed. Rep. 686.)
series from its beginning. This volume contains CREDITORS' BILL-LIS PENDENS.—Plaintiffs, by a the following Reports: Alabama, 99; California, creditors' bill, acquired a lien on whatever equity of 103; Connecticut, 64; Illinois, 151; Kansas, 53; redemption their debtor, D, had in a railrond, sold Kentucky, 94; Massachusetts, 161; Mississippi, 71; to E under foreclosure. Thereafter, in a suit to Missouri, 121; Nebraska, 39--40; New York, 143; which plaintiffs were not parties, a decree was Oregon, 25; Pennsylvania State, 162; South Caroentered waiving all rights of D to claim an equity lina, 40, and Tennessee, 93. Published by Bancroftof redemption, in consideration of the issue of | Whitney Co., San Francisco, Cal.