SELECTIONS.

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 labours. 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, 1746, and the other by Mr. Samuel Warren in Blackwood for February, 1867, 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 early 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 nearsighted, 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 lawspecial pleading. After a year's pupilage, he left Mr. Blick 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 M. & W. 37.

Finally, despairing of getting business as a pleader, he determined to try his fortune at the bar, and was called 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.

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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" 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 you and 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 on 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 ViceChancellor and Lord Chancellor.

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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 de signed 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 indication-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 to 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 fulfil 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. A more pretentious tablet of white marble,

containing an appropriate inscription, written by his friend Mr. Phillimore, stands in the Triforium of the Temple.Albany Law Journal.

THE PERSONAL CHARACTER OF

OBLIGATIONS.

CONTRACT: EFFECTS ON THIRD PERSONS.

The original and simplest form of contract is that which is made between certain persons, and the effects of which are strictly confined to those persons or their representatives.*

It is still the most frequent, and may be taken as the general type. In such a case the persons who actually negotiate the contract are the same who are bound by the consequent obligation; moreover they appear as individual persons acting each in his individual capacity, and not as members of a class answering to a general description.+ Assuming this as the rule, we have two conceivable kinds of departure from it.

1. Where the persons who act in concluding the contract do not coincide with the ultimate parties to it: that is, where immediate rights or duties are created in persons not parties to the transaction.

2. Where the parties are not completely ascertained at the time of making the contract: that is, when there is a contract.

(a.) Either with any person indefinitely who shall satisfy a certain condition or answer a certain description.

(b.) Or with the person who for the time being shall satisfy some condition or possess some attribute which may continue to subsist in a succession of different persons.

All these variations from the normal type of contract are treated as exceptional, and cannot be introduced except with certain limitations, and in certain classes of cases. This will appear by taking in order the several branches of

*I.e., those who succeed to their legal existence as representing them by force of some general operation of law, independent of the particular transaction.

+ Savigny, "Obligationenrecht," sec. 53, vol. 2, p. 16. The general principles being identical, I follow Savigny's arrangement, and several paragraphs are in effect free translations from him.

the rule and the exceptions which are recognised.

1. There is no doubt that in general a contract cannot be made to confer rights or impose duties on a person not a party to it. As to duties, it is clear on principle that individuals cannot be allowed at will to subject others without their assent to personal liabilities.* It is not so immediately obvious why it should. not be competent for them to confer rights on third parties; and, in fact, the law was for a considerable time far from completely settled on this head. It was held sometimes that any third person for whose personal benefit such a contract was made might sue upon it;t sometimes that near relationship at all events was a ground of exception; though the weight of authority seems to have been on the whole in favor of the view which ultimately prevailed.§

But (to use the words of a judgment which finally overruled the older authorities relied on for the supposed class of exceptions in favor of near relationship) "it is now established that no stranger to the consideration can take advantage of a contract although made for his' benefit; so that if one person makes a promise to another for the benefit of a third, that third person may not maintain an action upon it, even if the parties expressly

"

It is true that in quasi-contracts (which we still persist in calling by the cumbrous name of contracts implied in law) the one party may be placed by acts of the other of which he is at the time wholly ignorant in a position analogous, but only analogous, to that of one who has entered into an actual agreement.

+ Dictum of Buller, J., 1 B. & P., 101 n. "If one person makes a promise to another for the benefit of a third, that third may maintain an action upon it."

Dutton v. Poole, 2 Lev. 210, Vent. 318, 322, approved by Lord Mansfield, Cowp. 443, is the type of these anomalous cases. It was not decided without much difference of opinion at the time.

§ See Evans, Appx. 4 to Poth. Obl., a short but very well considered essay; judgment of Eyre C. J., in Company of Feltmakers v. Davis, 1 B. & P., 98, who inclined to think B might sue on a promise made to A for his, B's, benefit by laying the promise as made to himself and giving in evidence the promise actually made to A.; and note a, 3 B. & P., 149: the older authorities are collected in Vin. Ab. 1, 333-7, Assumpsit Z; two or three of these are cases of agency, which (as will presently be observed) is no real exception.

*

agree that he may. And it was laid down by the Court of Chancery many years earlier to the same effect, that "when two persons, for valuable consideration between themselves, covenant to do some act for the benefit of a mere stranger, that stranger has not the right to enforce the covenant against the two, although each one might as against the other. On the other hand, it does not appear that an arrangement made between the contracting parties for their own convenience has ever been allowed to give a right of action to a person not a party; the person suing must show a promise made immediately to himself. But as regards contracts under seal, the rule of the common law has always been clear and inflexible (even where simple contracts admit,§ or have been supposed to admit, of exceptions), that on a deed made between parties no stranger can have an action, or join in any action for non-performance of covenants contained in it.¶ "Those parties only can sue or be sued upon an indenture who are named or described in it as parties."

The principle has been carried out consistently and even rigorously in modern times. An agreement for hiring the tolls of certain fen lands at a rent "to be paid to the treasurer of the com

*Tweddle v. Atkinson, 1 B. & S., 393,

Colycar v. Mulgrave, 2 Keen, at p. 98. The right of the parties themselves is perhaps over cautiously expressed. It was in truth but an instance of the "elementary principle that will not enter into an inquiry as to the adequacy of the consideration (per Byles J., 5 C.B., N.S., 265): it is presumed that the party who wants a thing done finds some benefit in it (8 A. & E., 743), and there need not be any apparent benefit at all. The doctrine is not new cp. Ro. Abr. 1, 593, pl. 7, Y.B. 17 E, 4, 5: if I promise to pay vi s. a week for the commons of another "la ley intend que il est un tiel per que service jeo aie avantage." other words, that which a man has with his eyes open chosen to treat as valuable is conclusively taken as against him to be of the value he has put upon it. But this belongs to the general doctrine of consideration.

Price v. Easton, 4 B. & Ad., 433.

In

missioners," gave no right to the treasurer to sue for payment of the rent, for the contract was with the commissioners only, independent of the further objection that the true meaning of the agreement was to secure payment to the treasurer for the time being, which it was admitted would be bad as an attempt to contract with an uncertain person.* In an action on a by-law of a company imposing a fine to be paid to the master and wardens for the use of the master wardens and company, the right to sue was determined to be in the master and wardens only. And an agreement by co-adventurers amongst themselves that the amount of calls due from any one of them shall be considered as a debt due to an officer of the partnership, who shall have power to sue for it, is in violation of the law, and gives no right of action. to such officer.‡

On the whole then the rule is firmly established; and there is good ground in reason for it. The obligation of contracts is a limitation imposed on what

+ Company of Feltmakers v. Davis, 1 B. & P., 98. In a case the converse of this, there being a joint contract by several persons for a payment to be made to one of them, the Court of Exchequer inclined to think "the action ought to have been by all upon the promise made to all, though only one was to receive the money: Chonter v. Leese, 4 M. & W., 295; but no judgment on that point. Jones v. Robinson (1. Ex. 454), is rather the other way: that case was in effect as follows:-the purchaser of a business from two partners promised them in consideration of the assignment of the partnership effects to him to pay the debts of the partnership; one of the late partners who had himself advanced money to the partnership was not repaid, and thereupon sued the purchaser on the promise made to both partners; and it was held well.

[But the decision is not easy to understand. For

1. It seems hardly doubtful on principle that both the late partners must have joined as plaintiffs, if the partnership debt the defendant refused to pay had been due to a stranger.

2. The circumstance of the suing partner himself having been the creditor ought to have made no difference, for there was no separate promise to pay him in his capacity of creditor. How far this did in fact influence the judgment is not clear.]

Spurr v. Cass, L.R., 5 Q.B., 656, goes on the ground of Agency, and is, therefore, not decisive on this point.

Hybart v. Parker, 4 C. B., N.S., 209; Cp., Gray v. Pearson, L. R., 5 C. P., 568.