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retained was one which severely tested his mettle The climate proving too rigorous for the health and legal ability, and the issue of which was pecul- of his wife, who was suffering from pulmonary iarly gratisying to a young and ambitious lawyer. disease, Mr. Smith removed from Boston in the It was an action in the United States Circuit Court spring of 1854, and in the fall of that year opene i for an iniringement of a patent, in which he was an office in the city of New York. There he soon retained as attorney for the defendant. As Rufus established a prosperous, and, as he hoped, a perChoate and several other counsel were engaged manent business. But at the end of five years Mrs. for the plaintiff, Mr. Smith retained Daniel Web- Smith died, after a lingering illness, leaving him ster as counsel for the defendant. About a week with four small children, and impaired health from prior to the trial, and when it was too late to em- the combined effect of exhausting professional ploy and instruct other counsel, Mr. Webster's labor and long watching by the sick bed. In health compelled him to retire from the case. The about a year thereafter he retired to Johnstown consequence was that Mr. Smith had to fight the for rest and recuperation, without designing to battle alone against an array of counsel which make it his permanent home and place of business. would have been formidable to the most experi- But, on regaining his health, business came to him, enced and best equipped lawyer. On the trial, the climate and surroundings proved agreeable, which lasted three weeks, there was much evidence and he has retained his residence in the old historic taken, many experts examined and numerous questown until his death. tions of law argued. The result was a verdict by In 1860 Mr. Smith formed a copartnership with the jury for defendant. Mr. Smith's gratification John M. Carroll for the practice of law, which was at the result was increased by the generous and continued until 1868, when Mr. Smith became simiencouraging words of commendation by tīr. I larly associated with his son, Borden D. Smith. Choate and by Mr. Webster's expression, reported To this firm was admitted Andrew J. Nellis in to him by the law partner of the latter, “I like 1874, who continued as a law partner of the lessrs. the bearing of the young man."

Smith until 1879. While in Massachusetts, Mr. Smith took an active

He was elected and served as a member of the part in the stirring political movements which revo

Constitutional Convention of New York, held in lutionized the State, and, in co-operation with the the city of Albany in 1867-8, and took an active friends of freedom in other parts of the country, part in its deliberations. culminated in the organization of the Republican By an act of congress, approved June 1, 1872, party. He was a member of the State central com- Horace E. Smith was named as one of the corpomittee of the Free Soil party, and, in the campaign rators for the State oi New York, of the “Centenof 1851, in connection with Francis W. Bird and nial Board of Finance," chartered and organized John B. Alley, edited and published a paper entitled for the purpose of carrying into effect the act of “The Free Soiler,” which was circulated in all congress relative to the Centennial International parts of the State. It was printed in the office of Exhibition, held in the city of Philadelphia, in 1876. “The Boston Republican,” a paper edited and In the summer of 1879 he was elected dean and published by Hon. Henry Wilson, afterwards vice- professor of the Albany Law School, to the posipresident of the United States.

tion made vacant by the death of Isaac Edwards, Mr. Smith was a member of the Massachusetts LL. D. Accepting the position, he entered upon legislature in 1851-2, and took an active part in its the discharge of its duties in the autumn of that proceedings, being on the judiciary committee and year, and held the office for a period of ten years, other important committees. He introduced the when he tendered his peremptory resignation. As mammoth petition signed by ex-Governor Briggs dean, the whole business and management of the and upwards of 150,000 otiers, praying for the school devolved mainly upon him, and in addition enactment of the "Maine Law:" was the chair- to weekly oral examinations, written examinations man on the part of the house on the joint special at the close of each term, and moot courts, together committee, to which the petition was referred, with much incidental work, he delivered in each framed the report of the committee, and fought a school year upwards of two hundred lectures, treathill through favorable to the prayer of the petition- ing with more or less fullness the following subers, gaining thereby unstinted abuse from the jects: Municipal Law, Personal Property, Contracts, liquor organs. In 1852 he received and declined a Agency, Contracts of Sale. Partnership. Negotianomination for congress, to the seat made vacant ble Instruments. Suretyship and Guaranty, Bailby the death of Hon. Robert Randolph, Jr. Johnments, Insurance, Corporations, Insolvent and B. Alley, nominated in place of Mr. Smith, aiter. Bankrupt Laws, Pieading, Torts, and son'e years wards represented the district in congress for sev- a few lectures on Medical Jurisprudence.

During this time he was chairman of the com

eral terms.

mittee appointed annually by the General Term oi bald I. Mellartin, late of Dunlap, Ia., and the the Supreme Court, 10 examine and report upon i children of a deceased son, George R. Smith, late applicants for admission to the bar. He was also of Westmoreland, Kan. a member of the Albany Institute, a literary and scientific association or long standing, taking part MEMORIAL OF WILLIAM ALLEN BUTLER.* in its discussions, and contributing several papers to the library of its published transactions.

William Alien Butier, the son of Benjamin In June, 1880, Mr. Smith received the honorary Franklin Butler, was born at Albany on February degree of Doctor of Laws from Dartmouth College,

20, 1825, and died at Yonkers on September 9, under the presidency of Dr. Bartlett.

1902. He was admitted to the bar in 1846, and his One of Mr. Smith's professional brethren, who

active proiessional career, if it should be considis intimately acquainted with him, says, that Since Daniel Cady there has not been in Fulton ered as having terminated beiore his death, covered

a period considerably longer than half a century. county his superior as an all-around lawyer. Others :

Mr. Butler began the practice of the law with might excel him as an advocate; in nothing else has

the advantage and the peril of a professional assohe been excelled. He was kindly and helpful to

ciation with a great lawyer — his father, whose his students, faithful to and zealous for his clients, and of scrupulous integrity. Pure in mind, fastidi- name and fame, as a lawgiver and as an advocate,

still are and long will be remembered. If such a ously methodical in all his habits, gentle and kindly to all, he has been one of the pillars of society reputation be inheritable, it is a burden or a benefit

to the heir according to his capacity to administer and of the Presbyterian church during his residence

the succession; Mr. Butler's career at this bar in Johnstown. His native modesty and retiring

may be summed by the statement that his death temperament have prevented more public recogni

left it undiminished. tion of his worth."

Such a memorial as this has for its purpose a Since his retirement from the Albany Law School record of character and a tribute of respect, and not he has been engaged as counsel in several import

a narrative of incidents. Mr. Butler's life, indeed, ant matters, in the trial of causes as referee, in the is conspicuous not for striking events, but for a preparation of a work on Personal Property, pub- steady and continuous labor in an absorbing prolished in 1893, and a work on Judicial Law, fession, and an equally steady and continuous flow published in 1901. On the formation of the Johns- of consequent reputation and prosperity. The town Historical Society, Mr. Smith was elected graceful style, the poetic fancy and the brilliant wit president.

which were among his native gifts, and which were For many years past he has been connected by effective professional weapons in his hards, cermembership, and much of the time officially, with tainly served him also for his own pleasure and that religious organizations. As an elder of the Presby- of others in moments of diversion; but by those who terian church in Johnstown, he has frequently rep- have known him at the bar it will unhesitatingly resented his church in presbytery; and, since his be acknowledged that his life work did not differ liberation from the Albany Law School, he has in character, if it did in the degree of prosperity been twice commissioned by the Albany Presbytery and reputation by which it was deservedly reas a delegate to synod, and twice as a commis- warded, from that of any successful lawyer, charged sioner to the general assembly. He has also been with the responsibility of affairs of great importan earnest worker with tongue and pen in various ance, and constantly absorbed in the exacting labor reformatory and benevolent enterprises of the day, of adviser and advocate. and in political campaigns, involving questions of

A reference to a few of the important cases in great public interest. Acting upon the principle which Mr. Butler was engaged will serve as evithat it is both the duty and the privilege of every dence of his rank in the profession: man to make the most of his abilities and oppor

In the case of The Steamer Pennsylvania (19 tunities, and to contribute all in his power to the Wall., 126) Mr. Butler was successíul in obtaining welíare of humanity, his life has been one of hard

a reversal by the Supreme Court of the United and persistent work.

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 docirine in Atchison, Kan.; Mrs. C. E. Spoerl, of Wilkesbarre, Pa.; Mrs. William L. Kennedy, of New York city, ; *Prepared pursuant to action of New York Bar Association and his son, Borden D. Smith, of this city, besides meeting (John E. Parsons, Chairman of Committee), presented 10 collision cases, that a vessel violating a rule oi 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 memory, his remarkable powers of elucidation and to the disaster. The decision has been repeatedly illustration of legal principles, and his temperate cited and followed, and has been of immense value and almost judicial attitude of mind, were most in inducing compliance with the provisions of the effectively brought into play. statutes.

the Appellate Div., Sup. Ct., First Dept., and by it ordered entered the children of a deceased daughter, Mrs. Archi- in the records of the Court.

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 of professional character that he should be devessels may obtain the benefit of our statutes for scribed and remembered. That his integrity was the limitation of liability of owners of vessels for spotless, his veracity undeviating, is hardly to be disasters on the high seas.

remarked; but it is remarkable that in him they In Sturgis v. Spofford (45 N. Y., 446) M:. Butler appeared to be spontaneous and instinctive — to be successfully maintained the constitutionality of the of the inward essence of the man. Among the law of 1853, establishing the board of commission fruits of these fundamental qualities were candor ers of pilots; and in People v. Vanderbilt (26 N. Y., and fairness in the statement both of facts and prin286) he obtained an assertion of the power of that ciples; courtesy and generosity to his adversaries, board to prevent encroachments upon thc public and his reward, in the confidence and affection oi piers and in the harbor of New York.

bench and bar, was as ample as deserved. Other important cases argued by Mr. Butler

The rank accorded to Mr. Butler by his profes. were Union Trust Company v. New York, Chicago sional brethren is evidenced by his having served & St. Louis R. R. Company, involving the validity as president of the American Bar Association in of the bonds and mortgage of the defendant com- 1885-1886, and as president of the Association of the pany; Rich v. New York Central R. R. (87 N. Y., Bar of the City of New York in the years 1887 and 382, and 154 N. Y., 733), involving novel questions 1888. as to liability for tort arising from non-perform- No complete view of Mr. Butler could be made ance of contract; The Chicago Gas Trust Reor- without a reference to his character as a man and a ganization case, where the legality of the plan of citizen. Evidence on these matters can best be reorganization was sustained against the opinion of found in the community in which a man has dwelt. a majority of leading lawyers of Chicago; Fifth For the last thirty-seven years of his life Mr. Butler Avenue Bank v. Colgate (120 N. Y., 381), involving was a resident of Yonkers. All the best elements novel questions affecting liability under the special in the development of this village, town and city, partnership act; Stevenson v. Brooklyn R. R. Com- in which he lived and whose growth he watched, pany (114 U. S., 149), a case on patent law; Liver- were of keen interest to Mr. Butler, and were genpool & London & Globe Insurance Co. v. Gunther erously fostered by him. As a devoted member of (116 U. S., 115), involving interesting questions in one of its largest churches; as the chief founder of the law of fire insurance; the legal tender case of a free reading room, which, until other instrumenJuilliard v. Greenman (110 U. S., 421), and the talities superseded it was of great benefit to the famous case of Hoyt v. Sprague (103 U. S., 613), poorer classes; as a large contributor in work and involving intricate questions of partnership law. money to the building up of the women's institute,

A just appreciation of Mr. Butler's thorough and for the benefit of working women, one of the most general attainments in our many-sided science pre successful institutions of the city; as the wise ad. cludes, however, the ascription to him of superior viser of one of its hospitals, and in many other attainments in any one of its branches. In the law ways, Mr. Butler showed his public spirit. While of admiralty, of insurance, of real estate, of patents, taking no prominent part in party management, he of wills and testamentary trusts, of corporations never failed on occasion to counsel his fellowand banking, as in other branches sometinies con- citizens upon public questions on the platform and sidered specialties, he was a master, but he had too through the press, and no opinions were listened many specialties to be a specialist.

to with more respect or carried greater weight. So, again, Mr. Butler was too sound and saga- His views in council were sought upon a great cious an adviser in his office; too brilliant and suc- variety of subjects affecting the common welfare, cessful an advocate in the courts to be permitted to and his influence, fouiided upon the confidence of devote himself exclusively to one or the other of the community in his high character, public spirit, the two main divisions of the profession. Perhaps fair and sound judgment, has for a generation been the most effective walk, however, was as an advo- widely felt.

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