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or six hours' consideration. If, after six hours' discussion, neither party in the jury can convince the other, it is reasonably certain that they could never really agree. The question then arises whether the law should attempt to force jurors into a verdict against their judgment and conscience, or whether, rather than have a miscarriage of justice -a futile attempt by the litigants to have their dispute legally decided --- it should be conceded that, with a jury, as with every other known tribunal, a majority, especially if a substantial one, should decide the case. It would seem that this should not be a difficult question to solve.

In no branch of our government, or, so far as I know, of any other government, is there any counterpart or analogy for the unanimity rule in jury trials. By far the larger part of property values are litigated in Courts of Chancery, where questions of fact are passed upon by a single commissioner or referee, and, when taken to an Appellate Court, are determined by a bare majority. One man's vote in such Appellate Courts can decide questions of fact which a jury can only pass upon by unanimous concurrence: one man's vote can elect our President or change the political complexion of a continent; and one man's vote, upon the Supreme Court of the United States, may practically alter the Constitution of this country and mold the destiny of a great nation.

Any body of men, for whatsoever purpose organized, operating under a system which prevents their acting save by unanimous consent, is bound to prove inefficient and to be ultimately abolished, if the unanimity rule be adhered to.

"It would," says a learned writer on the subject, "be the saddest blow ever sustained by the common people, if the time should come when jury trials should be abol

* * *

ished, even in civil cases; and, if such a misfortune should come, it will be laid at the door of an indifferent and thoughtless Bar who seem loth to wake up to the danger until the whole noble system may be involved in ruin."

Meditating upon this solemn warning, I see this venerable institution of civil juries standing like a mighty oak, its origin dimmed by the shadows of antiquity. Long has it furnished comfort and protection to our forefathers; but, in the vicissitudes of the ages which have passed over it, change and decay have blighted some of its branches, and they have become unsightly burdens, threatening the life of the tree itself and dangerous to those who seek its shade.

There are some who say: "Let us not interfere with this progress of decay; let us wait until both the limbs and the trunk are involved in one hopeless and indiscriminate destruction, while we lazily indulge ourselves in indolent. memories of their former beauty". But I say, No! Let dead and withered

us prune this noble tree of its branches let us relieve it of the burdensome incubus that now rests upon it and saps its vitality, that so, with renewed life and strength, with fresh beauty and symmetry, this ancient landmark of our fathers may yet remain in undiminished glory, the admiration and refuge of generations yet unborn! (Applause.)

The President:

Gentlemen, I am sure you all join me in extending our heartiest and sincerest thanks to not Colonel, not Judge, but to Mr. Braxton for his most interesting and valuable paper.

Mrs. Fiero has kindly asked us to attend a reception at her house this afternoon at 5 o'clock, No. 174 Washing

ton avenue, to meet the Hon. John W. Foster, who is to deliver the address before the Association at the Assembly Chamber this evening. We are all expected and I hope all will be there.

J. Newton Fiero, of Albany:

Mr. President, I always obey the instructions of the head of my family, as I am sure all the members of the Association do, but it is not always with as much pleasure as it gives me to second this invitation on her behalf, and to add that it will personally give me a very great deal of pleasure to meet you all in pursuance of the notice to appear at the time and place which has just been served upon you by the President.

The President:

We will now listen to the report of the sub-committee on Surrogate's Courts.

Seward A. Simons, of Buffalo, presented the following report:




At the last annual meeting of this Association, Mr. Selden Bacon, of New York, read a paper on "Probate Procedure;" at its close a discussion followed, participated in by a large number of members expressing their sympathy with the views of the paper and with the sentiments expressed by Judge Marcus in commenting upon certain proposed reforms in practice. The sentiment of the Association was unanimous that legislation should be proposed carrying out the provisions which were recom

mended by these gentlemen, and a resolution was adopted under which Edward B. Whitney, Selden Bacon, Louis W. Marcus, Everett P. Wheeler and Seward A. Simons were appointed a Committee to draft legislation on the lines suggested, and present the same to the Legislature with the approval of the Association. At an early date the members of this Committee met at the City Bar Association in New York and organized by the election of Surrogate Marcus as Chairman and Seward A. Simons Secretary. They had numerous sessions in which the proposed reforms were thoroughly examined, and the five measures as completed by the Committee were drafted in the form of bills and submitted to the Legislature, and after full discussion met with almost unanimous approval there. One bill, now Sections 2707-2710 of the Code of Civil Procedure, under Title 4, was approved by the Governor, but the main bills were vetoed subsequent to the adjournment of the Legislature. Your Committee was informed that this action was largely due to the criticism of a standing committee of the City Bar Association of New York. This body subsequently appointed a special committee, consisting of Jacob F. Miller, William A. Keener, Eugene Smith, Frederick S. Wait and Lewis L. Delafield, to confer with your Committee on the subjectmatter. Your Committee thereafter, and on the invitation of these gentlemen, met in New York City and discussed the entire subject, and that committee's report, together with its recommendations and the bills drafted by your Committee, are attached to this report and made a part hereof.

From this report it will be seen that the progress of education as to these beneficial reforms is apparent. We believe that the bills which have been again prepared and presented to the present Legislature are satisfactory, and

your Committee respectfully asks to be continued and report at the next annual session of this body.

January 18, 1904.






The following are the recommendations and bills drafted and referred to above:


To amend the Code of Civil Procedure, in relation to the certification of foreign wills and letters of administration.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section I. Article 7 of title 3 of the Code of Civil Procedure is hereby amended by inserting immediately after section 2704 a new section to be known as section 2705, as follows:

Section 2705. The contents of any will admitted to probate, or of any decree admitting the same to probate, or of letters testamentary or of letters of administration granted in any foreign country or of the proofs or any statement of the substance of the proofs of any such will taken and filed in any Court upon the probate thereof, or of any record of any thereof, may be prima facie proven any Court of this State by the production of a certificate thereof from the clerk or other official of such foreign country having the legal custody of such record, will or other document, made and certified as required by


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