ing the peace of the town. The second buyer is to blame for outbidding another, and the seller for dealing with people without money. Now, all three of you go! March!" And they went, perforce, leaving skin and money behind them. The opinion of the Supreme Court of the State of California in Touchard v. Crow (20 Cal. 163), delivered by Mr. Justice Field, now of the United States Supreme Court, contains the following : — "This action was tried by the court without the intervention of a jury. Of course, in such cases the court not only performs its peculiar and appropriate duty of deciding the law, but also discharges the functions of a Jury, and passes upon the facts. The counsels of the appellants, impressed, as it would seem, with this dual character, requested the court to charge itself as a jury, and handed in certain in structions for that purpose. The court thereupon charged that part of itself which was thus supposed to be separated and converted into a jury commenc ing the charge with the usual address, ' Gentlemen of the jury," and instructing that imaginary body that.if they found certain facts they should find for the plaintiff, and otherwise for the defendants, and that they were not concluded by the statements of the court, but were at liberty to judge of the facts for themselves. The record does not inform us whether the jury thus addressed differed in their con clusions from those of the court. These proceed ings have about them so ludicrous an air that we could not believe they were seriously taken, but for the gravity with which counsel on the argument re ferred to them. If counsel, when a case is tried by the court without a jury, desire to present for con sideration certain points of law as applicable to the facts established or sought to be established, upon which the court might be called to charge a jury, were there a jury in the case, the propsr course is to present them in the form of propositions, preceding them with a statement that counsel makes the follow ing points, or counsel contends as follows. The mode adopted in the present case, though highly original, is not of sufficient merit to be exalted into a precedent to be followed." The law is said to be founded on common cents; some members of the profession, and many juries, believe this to be true. Solomon was the first magistrate who proposed to split the difference. The judge's charge in a criminal case is usually inferior to that of the successful attorney.
fittftu Dratf)£. Hon. George F. Comstock, formerly ChiefJustice of the New York Court of Appeals, died in Syracuse, September 27. He was a native of Williamstown, Oswego County, N. Y., born in 1811. His father, a soldier of the American Revolution, died when the future judge was a mere lad. Nevertheless, the latter, by teaching school, managed to earn money enough to carry him through Union College, from which he was gradu ated with high honors in 1834. In the following year he began the study of law, and in 1839 he was admitted to the bar. Governor Young, in 1847, appointed him reporter for the Court of Appeals. In 1852 President Fillmore ap pointed him Solicitor for the Treasury Depart ment. In 1855 he was elected a Judge of the Court of Appeals by the " SilverGray " Whigs and the Native American party. He became a Demo crat on the readjustment of party lines in 1856. In 186 1 he was defeated for re-election.. On re turning to active practice, his clientage became of the first rank, and during this period he edited an edition of " Kent's Commentaries." Judge Com stock was elected a delegate at large to the Con stitutional Convention of 1868, and he and the late Judge Folger were the principal framers of the new judiciary article in the present Constitution. Judge Comstock was largely instrumental in found ing Syracuse University, giving $50,000 towards its establishment. He may also be cons dered the founder of St. John's School for Boys at Manlius, Onondaga County, N. Y., having given $60,000 towards it. He was a trustee of the State Institute for Feeble-minded Children in Syracuse. Notwith standing his advanced age, Judge Comstock main tained his intellectual vigor to a surprising degree, and his counsel was sought in many important cases up to within a short time of his death. (A portrait of Judge Comstock was published in the "Green Bag," July, 1890.)
Judge Edward Woodruff Seymour, of the Su preme Court of Connecticut, died on October 17. He was born at Litchfield, Conn.. Aug. 30, 1832. He came of a family which has been prominent in Connecticut public affairs for two hundred years. His father was Chief-Justice of the Supreme Court, and one of his relatives was United States Senator
