= 6^ 8^ ^^= r~ ^^^^^^H 6 ^ =^ CD ^^^^^H ^^^ ^— ^ ^^^^H 01 ^^ > ^^^^H y ^ ^M^ -n ^^^^^^H 6 S =^^ 1 — ^^^^^^H ^^^ — ( ^^^^^H J ^^s ^^H ^^HHI ^ J, IN. r. F3V UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY THE BENCH AND BAR OF SARATOGA COUNTY; OE, Reminiscences of the Judiciar^, AND SCBNIJS IN THE COURT ROOM, From the Organization of the County to the present time. BY E. R. MANN, ATTORNEY-AT-LAW. BALLSTON, N. T.: WATERBURY «fe INMAN 1876. T Kntered according to act of Con^'icss, in the year ISTfi, by K. It. MANN, in tlie ( office of the' Librarian of Con!;:regh, at Washing-ton. TO EOJ^. GEORGE G. SCOTT, THE SOLE SURVIVING JUDGE OF THE COURT OF COMMON PLEAS; AND TO HOJJ. AUGUSTUS (BOCKES, THE FIRST JUD6K OP THE COUNTY COURT : GENTLEMEN WHO HAVE WORN ITS ERMINE UNSULLIED, AND WHO HAVE REFLECTED HONOR ON THEIR ^ATIVE COUNTY BY THEIR INTEGRITY IK OFFICIAL STATIONS, THIS BKCOBD OP THE BENCH AND BAR OF SARATOGA COUNTY IS BEBPECTFULLY DEDICATED. 783275 CONTENTS. PAGE, Ackart v Lansings 234 iLdams v LeRoy 342 Allen, Dr. T. E., trial of 180 Anecdotes, Incidents, etc. The old crier 337 Judge Kent and the mineral spring 338 Van Antwerp's ^i^. /a 339 Sheriffs in the (*ldea time 340 Judge Cook's withdrawal from the bar 341 The Chancellor at Pine Grove 341 Walworth's temperance principles 343 Admission to the court of chancer^' 343 Judge Cowen's retentive memory 343 Judge Cowen's c«urt habits 344 Gossips' tales no slander 345 Judge Hand and the deaf juror _. 346 The one sound minded juror ' 347 Not a classical judge 347 Judge Crane and the witness 348 Father in law, or brother in-law 349 Too wide a margin 350 Homoeopathic brains 350 A laconic epistle 351 Judge Hay and the dam suit 351 .Judge James and the Irishman 353 Morris English on the cider question 353 Tayler Lewis' lore for his old home 354 A defendant's opinion of Judge Cady 355 A fraud in law is a fraud in fact 356 Where did the witness go 359 Varney's dog suit 360 Judge Thompson and the veterans 361 Birth place of Hen. John Cramer 363 Anecdotes of Hon. Henry Smith 363 A secret exposed 365 Maxwell's colored jury 366 Legal chirography 367 6 CONTENTS. PAGE. Anti-rent murder trial 165 Aj peudix 380 Baker v Powel'l, sheriff 209 Ballston, indictment of its liigbway commissioners 18 Beekman v Granger 105 Bennett, Benjamin, trial and execution of 64 Benton r Village of Saratoga Springs 235 Bogart V King 107 Bradsbaw v Callaghan 52 Brown, George, a singular alibi 80 Burning of the cniiit house 39 Burr and Ilaniillon 18 Carpenter v Hodgman and Clapp 233 Carson League trials 153 Chase v Saratoga county 208 Changing the ceunty seat 46 Cheesbrough t Tompkins 224 Cbipman v Palmer, et. al 242 Circuit and Common Pleas judges, disagreements of 73 Circuit judges of Saratoga county 262 Civil actions under the code 184 Clarke, JoIih S., and the Snake Hill bank 83, 151 Chirk and Kice v Lyon 211 Clement v Cohn 244 Clothier v Adriance, et. al 223 Cole, Fones or John A. Murrell — a query 44 Conspiracy against William P. Green 74 Cook V Shepiierd 109 Cooper V Greeley and McElrath 123 County clerks 319 Court of Common Pleas 94 Court of Sessions 78 Court bouse at Court House Hill 23 Cramer v Martin" and Soutbwick 109 Darrow v Excelsior Life Insurance Co 240 Deyoe v Village of Saratoga Springs 234 District attorneys 304 Dougherty, William, trial fer murder 161 Dunn V Luther, et. al 228 Fellows, et. al. v Emperor, et. al 193 Fitch V Baldwin 59 First courts of the county 13 First National Bank of Ballston Spa v Insurance Co. of North America 235 Ford V Monroe 114 CONTENTS. 7 PAGE. Ford V Rowley 237 Fowler's law school 372 Francisco, Barney, the horse thief 167 Fullerton v Viall et. al 199 Glasser, Joseph, trial for murder 154 Grand jury's protest against bribery at the polls 168 Harris v Thompson 187 Harvey, Charles, trial for grand larceny 160 HartvBush 236 Harerly v French Ill Hickey, M. H , hie banishment 165 Holmes v Smith 256 How deputy sheriff Jennings secured his prisoners 49 Humes v Williams 221 Huyck, C. S., tried for manslaugater 162 Hynde, Tohmas, trial for arson 140 Johnson, Charles, conviction for rape 163 Judges distrustful of their powers 33 Ketchum v Taylor 19 Kell}' V Indemnity Insurance Co 212 Eirtley, William J., tried for murder 163 Lansing v Russell 246 LeBaron v Howe 222 Ltland v Hathorn 227 Lewis V Rens. & Sar. R. R. Co 191 Life Sketches Seth C. Baldwin, clerk 320 George S. Batchellei, judge 374 Joseph Baucus, sheriff 334 William A. Beach, district attorney 310 Augustus Bockes, judge , 275 Franklin Carpenter, sheriff 326 Salmon Child, judge 281 John A. Corey, judge 292 Esek Cowen, judge 267 John W. Crane, judge 298 Chesselden Ellis, district attorney 308 Winsor B French, district attorney 316 Isaac Frink, sheriff 331 Alpheus Goodrich, clerk 323 Horace Goodrich, clerk 325 Henry H. Hathorn, sheriff 332 Nicholas Hill, jr. district attorney 307 James W. Horton, clerk 326 B OONTENTS. PAGE. John C.Hulbert, judge... 299 Joseph Jennings, sheriff 380 L}'^man B. Langworthy, sheriff 329 John Lawrence, district attorney 313 Charles 8. Lester, judge 300 Richard M. Livingston, district attorney 305 James B. ilcKean, judge 294 Philip II. McOinber, sheriff 333 Thomas J. Marvin, judge 287 Jolin O. Molt, district attorney 315 Thomas Moxon, sheriff 335 William T. Odell, district attorney 314 Isaac C. Ormsby, district attorney • . . 315 Levi H. Palmer, clerk 321 Thomas Palmer, clerk 322 George B. Powell, sheriti 334 Tabor B Reynolds, sheriff 335 Theodore W. Sanders, sheriff 331 George (1. Scott, judge 301 William T. Seymour, sheriff 331 Archibrild Smith, clerk 324 Wi'liam Stilwell, clerk 321 Dirck Swart, clerk 319 John W. Taylor, speaker 141 John Thompson, judge 279 Janu's Tiiompson, judge 283 William L. F. Warren, judge 305 Reuben n. Walworth, chancellor 262 John Willard, judge 272 Samuel Young, judge 286 Limits for imprisoned debtors 30, 95 Lincoln V Saratftga & Schenectady R. R 117 Livingston v Bryan 53 Looniis v Reus. & Sar. R R. Co 115 Losee v Buchanan, et. al 219 Maguire v Doolittle 232 i\Ias(>n, ,]an)es, tried for murder 69 McKinmy, Patrick, trial for perjury 156 Markham t Deuel l'J6 Merrill andfRussell, the kidnappers j52 Milton, county aid for bridges '.'8 Mors V Mors, et. al 207 Muiiro V (tanzevoorl 204 Munro v Shepherd 202 Nash, Julia, escape from jail 162 Neilson v Post 210 Northrup, Daniel, trial tor murder 50 CONTENTS. 9 PAGE. O'Leary, Daniel, tried for assault with intent to kill 157 O'Rourke's salo«u case 181 Packard, J. R. and daughter, tried f«r murder 161 Pangburn v Partridge 58 Pearse v Best 217 Pelton V Reus. & Sar. R. R 331 Pioneer Paper Comi^any's suits 225 Powell V Davison 205 Pratt V Meeker, el. al 197 Price, John H., his three trials 159 Rector, Thomas, trial for murder 119 Robinson, James, conviction of murder 164 Rogers v Clark 56 Rogers v Poller • • " " 57 Rj'uders, Isaiah, trial for riot 85 Saratoga county bar (former) 131 Saratoga county bar (present) 370 Seabury et al v Howland 234 Scott et al v Carpenter et al 195 i&oumei V National Express Co 338 Smith v Holmes 256 Smith V Reynolds 29 Steenbur^h v Meiropolitan Life Ins. Co 241 Talmadge, John, trial for murder 147 Taylor V Ford et al 125 Thomas, John, the pick pocket 158 Trials in Oyer and Terminer 1819 47 61 Trials in Court of Sessions 1819 47 78 Trials in Criminal Courts since 1847 145 Van Buren v Reformed Church in Ganzevoort 239 Vauderwerken, Wm. conviction of murder 159 Van Deusen v Sweet 221 Van lichaick v Davis 106 Van Schaick V Vincent 113 Vroomau v Sliepherd 127 Vinegar, Samuel, trial for assault 67 Wait V Wait 189 Wail, A. A. V Wait, D. W. et al 214 Waldron v Welden 55 Waterford and Stillwater turnpike case 218 Watkins, John, trial for murder 70 White V White et al 56 Whonhart v Judson 241 10 CONTENTS. PAGE. Whyllis V Gilchrist. 188 Wilcox, William, trial for murder 75 Witbeck. William et al. trial for murder 165 Wood V La Fayette 259 Woodruff V Gilchrist 58 Young V Dake 190 Younc V Jeffcrs «t al 204 Young V Washington Co. Mutual Ins. Co 198 PREFACE. The courts of any country nre the conservators of its liberties and of the rights of its citizens. The blessings that the people -who inherit the privileges of Magna Gliarta enjoy are closely allied with the history of the civil and criminal tribunals of the mother coun- try, and of our own land. The names of the eminent jurists whose sound decisions have commanded the respect and admiration of the world, and the brilliant advocates and wise counselors who have stood at the bar and defended the rights and liberties of citi- zens, are among the most illustrious on the pages cf history. The genius of Blackstone and the dicta of Mansfield and Sir Matthew Hale in England find their hemispheres, as it were, in the brilliant mind of Chancellor Kent and in the law as given from the lips of Marshall and Story. Those learned and eloquent lawyers of Great Britain, Burke, Sheridan, Canning, Curran and Brougham, have fitting compeers in Jay, Livinsgton, Henry, Web- ster and Choate, on this side of the Atlantic. From the many sons of this state who have worn the ermine with honor and integ- rity or gained countless laurels in the forum, Saratoga can point with pride to her sons on the honorable scroll. The county which has given from its bar to the bench of the state the names of Wal- w(jrth,.Cowen, Willard and Bockes, and sent to the front rank of its legal talent such men as Nicholas Hill, jr., John H. Reynolds^ William A Beach and John K. Porter, and has lent to the coun- sels of the state ;and nation the wisdom of Gen. James Gerdon, Judgej John Thompson, John W. Taylor, Col. Samuel Young^ John Cramer, George G. Scott and James B. McKean, and whose bar roll now bears the names of men who have won distinction by hard work in the profession they adorn, should well be proud of their record, aud be unwilling to allow the story of their struggles and triumphs to pass to the shades of mere tradition. Several 12 PREFACE. gentlemen have in tbe order of seniority at its'bar been its patri- archs, and, since the death of the venerable Wui. L. F. Warren in 187."), that dignity has been worthily won by John Brotherson of Biillslon Spa. With a view of collecting the judicial history of this county with reminiscences of the chief actors therein, as it exists in the records of the county clerk's and sheriff's offices or in the mem- ories of old residents in this village and other parts of the county, I have been for several years collecting and collating the facts which appear in the following pages. The traditions of the e rly days have been thoroughly compared witli each other and with the records of the county and duly collated. From these materials have been drawn the threads which have been carefully woven into the history of our county's "Bench and Bar." The dates, in every instance, of events connected with the history of the county and its courts arc those found in the official records. The "Life Sketches" were written from data furnished by the friends of the distinguished gentlemen therein portrayed, and the anecdotes related are given as they were told to me by parties to whom they are as familiiir as " household words,'' and, as they give an inkling to the humorous side of the sometimes dry subject of the law, they find an appropriate place in this work. I must also render acknowledgement to Judge Scott and Gen. E. F. Bullard for facts derived from their " Centenniisl Addresses," and to Wm. L. Stone for several extracts from the "Reminiscenses of Saratoga." Also, to Judge Scott for the excellent " Civil Reg- ister" prepared h3' him several years ago for the i;se of the super- visors, wliicli is included in this work as an appendix, and which has been completed to the present year by comparison with the county records. Also, to all other kind friends who have assisted in the compilation and publication of this work. E. R. Mann. ^ Ballston Spa, September 25, 18T6. The bench and BAR OF SARATOGA COUNTY. CHAPTER I. THE FIRST COURTS OF THIS COUNTY. It has been a. matter of chronic complaint for se\eral years tliat the members of the legislature, when they wish to carry some far-reaching measure •and give no occasion for distrust arising from see- ing the title in the daily newspapers, that they couch its nomenclature in such obscure terms that the common reader will not guess its tendency and scope. That this is no new practice is shown }>y '• Chapter IV of the Laws of 1791, passed February 17," of that year. It was the " propert}' '' of (iens. Philip Schuyler and James Gordon, and was en- titled I' An act for apportioning the representation in the legislature according to the rules prescribed in the constitution, and for other purposes." It passed both houses, was signed by Gcox. Georgv Clinton, and behold, Albany was bereft of a large portion of her northern and eastern territory, and two sister counties confronted her across the Hud- son and Mohawk rivers. Bv section one of that act, after annexing the towns of Easton and Cam- 1^ 14 THE lySNCH AND KAK biidge to Washington county and creating the county of Renssehier, it was provided: "that all that part of the county of Albany whicii is bounded easterly l)y the Hudson river and counties of Wash- ington and Renssehier, southerly by the most north- erly sprout of said river and the town of Schenec- tady, westerly by the county of Montgomery, and northerly by the c(junty of Washington, shall be one separate and distinct county and be called and known by the name of Saratoga," The otlier sec- tions of the Ijill stated that the several courts of the state should have jurisdiction therein ; pnjvided for local tribunals : tiiat all prisoners should be ke])t in the Albany jail until new jails should be built; and for their representation in b(>th houses of the legislature. Thus in the last section alone, was treated the subject niattei- of tiie title. The courts of the state at that time were by the constitution of 1777, tiie "Court of Errors," which consisted of the lieutenant governor, the senators, cliancelloi' and the judges of the Su])i-eme (Jouit, whicli had jurisdiction of impeachments jind a gen- eral revision of the decisions of the courts below, by appeal ; the "Couit of ( chancery," having the exclusive contiol of all castas in (npiity ; th(i '' Su- ])reme Court of .ludieatui-e." which consisted of a chiefjnstice and I lin-c /^///,v//r judg<'s, which sat in, hunk and heard a]»i>rals from the lower (.'ourts : the "Circuit c()uit," held in ditl'eicnt counties at least (mc«' in each year, pn'sided ov«'r by a judge of the Sujjreme (jourt, and emjjoweretl to try all issues al \\\\\ and ;/ive Judgment thereon; and in OF SAKATOGA COUNTY. W each coiintv a ^' Court of Common Pleas," consist- ini^ of a first judge and at least three judges, which had i)Ower to try and determine according to law all actions real, personal and mixed, arising in the respective counties. The criminal branch of the courts (consisted of an " Oyer and Terminer," held by a judge and at least three commissioned justices of the peace of the county, of whom one might be tliH first judge, or one of the judges of Common Pleas, and a "Court of General Sessions." h(;ld by any thret; of the justices of the peace of the county and of which a judge of Common Pleas must always be a member. The former had jurisdiction of all ••rimes, treasons and felonies, and the latter was confined to the trial of such offenses within their counti(5S, and misd(^meanors, with powers in eacJi court according to law. The Court of Sessions had jurisdiction also of all cases relating to slaves, ser- vants and apprentices. Attorneys of the degree of counselors could ])rac- tice in any court of the state. Attorneys of the Supreme .Court could appeal- in that court and try cases in the Circuit and Oyer and Terminer. But to practice in the Courts of Common Pleas or Gen- eral Sessions it Avas hrst necessary to be specially admitted to practiee in those counties in which it was held. To secure admission to the degree of attor- ney it was necessary to show a certificate of admis- sion to the Supreme Court or a certificate of a three years' clerkship with some attorney, and undergo a rigid examination. The siate was represented then as now in the courts by an attorney general, 16 THE BENCH AND BAR and the people in the Oyer and Teniiiner oi- Sessions hv the attoi'nev-o-eneral or district attorney 7^ 11 of these officers were appointed by the ''Council of A])pointinent, and commissioned by the governor. The jndges held their office until they attained tlie age of sixty years. Such was thr cnmbrons ma- cliinerv of our indiciary, founded on that of Eng- land, at the time our county's hi.stoiy begins. The common law. Avhen not coutlicting with a statute, was the law of the state. The new county was at once placed on a tirm judicial footing, (tov. Clinton immediately aj)- pointed John Thonii)son of Stillwater, tirst Judge; James Gordon and Beriali Palmer of Ba.llston, .fa cobus \'an Schoonhoven of Halfmoon, and Sidney l^erry of Saiatoga, judges. Sidney' Beriy was aj)- pointed surrogat(\ Jacob Fort jr. of Halfmoon. sherift', and Dirck Swart of Stillwater, clerk. In accordance witli an appointment made under the provisions of the statute the first session of the court of Common Pleas met May 10, 1791, at the residence of Samuel Clark. justi<*e of the peace. In Stillwater, now Malta : it having stood on the tarm now owned bv Henrv A^an llyning, on the East Line road. It was })resid over by .Judge Thom]» son and the thiee judg»^s above name. Dickinson. OF SARATOGA COUNTY. • 17 Gamaliel and Harmonis H. Wendall, Jolm W. Yates, Nicholas Fonda, Abiahani Hun, Peter D. Van Dyck, John Wood worth, Moss Kent, John Lovett and Joseph C. Yates (afterwards governor), as attorneys. Major Ezra Buell of Stillwater, a revolutionary veteran, was appointed crier. The hrst recorded order in the court of Common Pleas was directed to Michael Sharp in the action of Gur- tie Tliompsou, Rikert Shell and Harmonis Thomp- son, executors of Jacob Thompson, to show cause why judgment slioiild not be entered against him at the next term on a bill penal executed by him May 6, 1770, for i'K), lOs. Guert Van Schoonho- ven was plaintiffs' attoi-ney. No statute of limit- ations seems to have held then, and counselor Van Schoonhoven seems to have been successful in col- lecting this long standing account, for no further notice of it appears. At the May term in 1792. Henry Yates was admitted to practice after exam- ination, and James Emott and Henry Walton were admitted on exhibition of certiticates from the Su- ])reme Court. At the first term t)f the General Sessions, held May 10. 1791. by James Gordon, judge, and Jolm A^arnam, Epenetus White, Eliphalet Kellogg, Rich- ard Davis jr., Doiiw I. Fonda, Elias Palmer, Nath. Douglas, John P>aU and John Bradstreet, justices of the pea<'e, a grand .jury was sworn, consisting of R.icliard Davis jr.. Josliua Taylor, John Donald, Heniy Davis. Hez. Ketcluim, Seth C. Baldwin. Ezra Halliboi-t. Jolm Wood, Samuel Wood, Edy Bakei^ Elisha Andrews, Gideon Moore, Abraham 18 THE BEITCII AND BAR Liviugstoii and Jolin Bleecker. The first trial in the Sessions was at the November tenn, 1792, being the indietment against one Daniel Units for assanlt and battery on Bnitis Soper. The affra\' occnrred in Stillwater. Five witnesses were sworn for the people and four foi- the defendant. As the law then did not act on the y)i"ineiple that the q uality of justice and inei'cy sliouhl l)e strnincd, the defendant was not allowed to testify, an equjlil)riuin of evidence numerically <-ould not be established, and a con- viction was had. He was fined ten shillings. The ])eople, it appears, were not more given to mending their ways then, than in these later days, for indict- ments were found against the towns of Ballston and Halfmoon for failure to kee]) highways in ]M'oper repair. The oi^ense laid at the door of the highway officials of Ballston was that they failed to maintain a passable hiahwav at all seasons of the vear from Academy Hill across tlie outlet (►f Ballston lake to the residences of .Tiulges Kellogo- and White on the eastern shore. In the early spring of 1791. (len. (ioi-don had been to Albany. acconi])anied by his family, and on his way houie he drove up in his carriage on the east side of the lake to .fudge Kel- logg s, and thiMi essayed to ci'oss the outlet bridge. The water was vei-y high and extended over and across the road, lie (lr(»\<' cautiously ncross the bridj^v and i<'aclii'd tlir iiaiiow "' coidurox ." The water was so high that it caiuf inlo the<'airiageaud lendc-refl it impossible to idoceed. .It was with th«' greatest difliculty that (ten. Gordon turned his team and got back in safety to his friend Judge OF SARATOGA (!OUNTY, 19 Kellogg s hospitable nunision, where the party re- mained until morning. Tlie indictment seems to have been ineffe(^tnal, for the same dangerous ''corduroy'' yet exists, or one of its posterity made after the original pattern, for, by a singular coin- ririmitive days tlie (Mdored man liad rights in this c(nint\' whiresiding. .hily D. \l*.V.l Elizabeth Scribnei- was tried on an indietiuent for the murder of her child. C. Vandenbuij^'h represented the attorney general, OF SARATOGA COUNTY. 21 and Peter W. Yates and Of. Van Sclioonhoren con- ducted the case of the prisoner. Fifteen Juroi's were challenged before the "twelve good and law- ful men'" were found who adjudged her not guilty on the evidence. At the same term Itlianiar Allen was tried for countei-feiting a Spanish milled dollar. A verdict of "not guilty and he did not fly the county,'' was rendered by the iur\ . At a term of Over and Terminer held in the " red church iuBallston,'' August 17. 179;), before Chief - justice Yates, Hannah, a negro woman, was con- victed of grand larceny on a plea of guilty, and ' was sentenced to be wliijjped at the public whipping- post with fifteen stripes on her naked back, August 20, between the hours of one and two o'clock in the afternoon. Tliis proves that the privileges now only enjoyed b}' Delaware were once in vogue in this latitude. The last entry iii this term is the following : Elias Palmer and Williuin limdsli.nw, snlislantial froelioldeis of Saratoga comity, rctiiniftl into (•diui with an imiiiisiiion taken on the body of an niiknown man wlio came lo liis death by a wound on tliP back of his head at Iht; hands of a person or persons uii known. There is no further record of this mystery, and we can oidy itonchule tliat his blood, like that of riohteous Abel, ''yet crieth from the oround." and that his soul joinini " The innumerable caravan That journeys to the pale realms of slmde." This term was the last held previous to the com- pletion of the first court house, which was located 22 THE BENCH AND UAK at Court House Hill, uow a hamlet in the town of Ballston, two and a lialf miles southwest of the county seat. In addition to the names of the attor- neys ])racticing at the bar of the several courts, some of whom were among the most distinguished counselors of the da}', may be mentioned William V. A'an Ness, James Kent and Brockholst Living- ston, wnose names ap])eai" in c(jnnection with sev- eral causes tried. Hon. Geo. Gr. Scott also informs me that his father, .lames Scott, told him that at one of the circuits held at the church at Ballston Centre, Alexander Hamilton and Aaron Burr were opposing counsel in an action there tried. CHAPTER II. THE COURT HOUSE AT COURT HOUSE HILL. " Tho evil that men do lives after tbeiu ; Tlic gouil is ofl interred with their lioues." These words, wliieli the Bard of Avon places in the mouth of Antony in Ills eulogy pronounced over the dead bod}^ of Julius Caesar, are a verity that has been proven in numerous instances. A petty quarrel has often led to dire consequences, as was demonstrated in the case of the man in Rhode Island Avho killed a trespassing pig belonging to a neia-hbor, and the feud thus engendered led to cir- cumstances which resulted in the election of a con- gressman bA' whose decisi\e vote the war of 181:2 Avas declared to exist by the resolution of congress. Previous to 1790 there had lived in the town of Ballston for several years two men who had b«?come qidte p]-ominent among the early settlers. They were Gen. James Gordon, a native of the north of Ireland, but of Scottish descent, a colonel in the army of the revolution, who was taken a ^jrisoner in his own house duiing the tory raid in 1780, and was held as a prisoiiei- several years in (Jauada ; and Judge Beriah Palmer, a native of Conne<'ti«'ul, a man who, it would seem, was endowed with all the talents usually possessed by the sons of tliat enterprising commonweatlh. Gordon then lived on the farm now owned by Henry AViswall jr., on 24 THE BENCH AND BAK. tlie middle line road, and Palmer lived near Burnt Hills, on the farm now owned by Hon, Samuel W. Buel. The town of Ballston then included all the western and northern portions of what is Saratoga county. For several years previous to 1790 Gordon had been its supervisor. Thf election for that spring was called to be held in the meeting house at what is now known as Milton hill. The day was bright and bahuA' and it was suggested that the election ])e held oyf.^ide the church, and one of the justices taking a suitable position, declared the polls open. The votes were taken mtia voce, and Palmer, who was a candidate, soon found that the assemblage was quite adverse to his claims. So taking one of the justices, friendly to liim, he went /'rtto the chui'ch and opened another poll, where thirteen citizens asserted their preferences and Palmer was dec^lared unanimously elected. A con- test arose, and though Gordon received the largest numbei' of votes ovi-side the church, Palmer's elec- tion was affirmed because he had the hhude of the 4'hurch and the aigument in his favor. Gordon acquiesced in this decision, but his wilv Scotcli blood was excited, and live years later he aided in turniuii- the tables on Palmer. The feud thus cieated led to an appeal to the ved the almighty dollar and turned a nimble ]>enny into dimes by keeping ardent liquors to re- gale the drooping spirits of his legal friends, as well as* the passing traveler. He felt all the dignity attached to his office and woe to the unlucky wight ])1aced in his cari^ if he b,y chance gave vent to an iiiiliicky wo)'d. Poor Billings had incuired his displeasui'e, and on the day before the final tragedy he had been securely chained to the floor by a large ox chain riveted around his body with the ends united around one of the floor sills by a rivet. By the direction of the sheriff* it was unlawful to fur- 42 THE BENCH AND BAR nish lights to the prisoners. But Taylor saw how he could do a retail chandler' s business, so he sold candles to one Fones Cole of Northampton, con- fined on a charge of forgery, to enable him to play cards with Di-apoo. They were in the south cell with Shearer, and Billings and Davis liad the north cell. In addition to them there were three debtors confined in the debtor's room. These with one Joseph Mulliken, a debtor "on the limits," Taylor and his wife and the latter' s mother were the in- mates of the building on the fatal night. Cole and Drapoo, who had found their confine- ment irksome, set fire to the wall of their cell to burn their way out. They finally gave the alarm of "fire," but Taylor, who slept in the southwest part of the building did not hear the sound. Mulliken, who slept in the jury room above, was awakened by the smoke and alarmed the neighborhood. It was first heard by Mrs. Boss and Mrs. Elizabeth McMaster, mother of the late Robert P. McMaster, who were watching by the bedside of Mrs. Sai-aii Watrous, who then lived in the house now owned by Alonzo B. Comstock. Tiiey awoke the family, and Tliomas Burritt, (father of Mrs. A. J. Grippen of Ballston Spa) an employee of Mr. Watrous, who bethought himself of the condition of Billings, ran to Philo Kurd's blacksmith shop and with his her- culean strength carried the ponderous anvil and a sledge to the jail. He and Ezekiel Hoiton (fathei- of county clerk Hortouj ran to the cell of Billings and placing the chain on the anvil dealt it two pon- derous blows. The smoke drove them from tlie OF SARATOGA COUNTY. 43 room to get breath, but Burritt soon returned and again strove to lose the iron bonds. He, too, was suffocated by the hot smoke and fell to the floor where he was rescued by Mr. Watrous in a nearly exhausted condition and poor Billings was left to the flames. The next day his charred remains were found beneath the ruins of the chimney. The late John Smith of Ballston Spa, who was engaged with Joseph Barker, the day before the tire, making repairs to the cells, discovered the place in the wall where Cole had tried to burn through, and in- formed Taylor of it. The venerable Joseph Gor- don has informed the author that Taylor claimed that Billings knocked him down and that was the reason of his being ironed to the floor. In a card to the editor of the Independent Ameri- can, dated April 1, 1816, Mr. Taylor presented his statement whicii was published in that paper April 3: "To the Editor: Permit me through your paper to express my sincere feeling of gratitude generally to the citizens in the vicinity of the court house on the morning the same was cousumed by fire by their unwearied exertions in assisting me to relieve a fellow mortal from the flames at the risk of their own lives. It is also a debt due from me to mention that George Bennett, Daniel Shaw, Lemuel Moore, and Abraham Davis, (a black man) four of the un- fortunate prisoners who were confined within the walls of the prison and who were relieved in time to save them from the fate of poor Billings, who fell a victim to the devouring elements, after they were liberated did not seek to escape but did all in their pow- er to save my property As there have been various reports re- specting my loss by the fire, I would barely mention that I have been particular in inventorying such articles as I have ascertained to be missing and the amount is already between $800 and |1,000. 44 THE BEXCn AND BAK I shall preserve the inventory for the inspectiou of anj' <;ciillHUian who wishes or will lake the trouble to call on the Public's Humble Servant. Raymond Tavj.uk. True to his cliaracteristics Tayloi- could at once slied a tear over the fate of his unfortunate victim and coolly estimate his loss, but not a woid said of that of the county. Ex-sherifl" Jennings saj^s that Shearer mnde his way to Charlton and there hired a farmer to carry him to Albany. The latter made it a condition that he should lie in the bottom of the sleigh and be covered with a blanket, and then drove ia])idly to Ballston and surrendered him to the authoiities. Sheriff Brisbin offered a reward of $250 for tlK^ ar- rest and delivery at the Schenectady jail of Fones Cole and Peter Drapoo, or $125 for either of tliem. Diapoo was a Canadian and was in custody as a horse thief. Neither were recaptured, but it was as(;ertained years afterwards, it is said, that (Jolc, who was a man of good intellect and force, made his way to a southwestern state where he lived un- der an assumed name, and at one time rc^presentt^d a constituency in the national house of lepresenta- tives. Another well informed old gentleman says that it is true that he went to the southwest, wliere lie became ;i notc^l river and land ])irace, having be(Mi none otliei- than the notorious .lolin A. Mur- rell. It is a fact that Murrell's ''Life" tells of his escaping from Ballston jail by burning the build- inu'. Tayloi- was indicted for a misdemeanor in allowing the ])risoners to have a light, and at the January Sessions 1818, in the absence of District OF SARATOGA COUNTY. 46 Attorney Livingston, Maj. Azariah W. Odell (Tay- lor's attorney) was appointed special district attor- ney by order of the court. He improved the oppor- tunity to enter an not pros on the indictment. At the ensuing Oyer and Terminer, Mr. Livingston moved Taylor s trial on the ground that he had not consented to his discharge from arrest, but Judge Van Ness held that the Court of General Sessions being a distinct tribunal of competent jurisdiction, he had no power to interfere. Thus the matter ended, and here closes the history of the first court house of Saratoga county and of the town of Balls- town as the county seat. CHAPTER IV. CHANGING THE COUNTY SEAT. During the time mentioned in the two preceding chapters the development of the mineral spiings at Ballston Spa and Saratoga Springs made them the chief centers of the county. Lying but seven miles apart a rivalry sprung up between them and each sought to gain an advantage over the other. The court house had no sooner been burned than a mass meeting of the citizens of the former village was held to consider a most important question. It was presided over by James Merrill, and Joel Lee was its secretary. They resolved to ask the Judges of Common Pleas to order that the courts of the county should for the time being be held in the pub- lic building or academy, of the village, which stood upon what is now Science street, a few feet south of the railroad, and tendered the free use of the building. The offer was accepted by Judge Chikl and his co-adjutors. Hy an act of the legislator passed March 14, 1817, Elisha Powell and James Merrill of Milton, Isaac Gfere of Gal way, and John Gibson of Ballston, and Gilbei-t Waring of Sarato- ga, were appointed a commission to re-locate the county seat, and to build a court house and jail at the expense of $10,0()(>. Both political parties were represented in the commission, and they soon set OF SARATOGA COUNTY. 47 themselves at work in good faith to settle the loca- tion of the court house. The claims of Court House Hill was presented by Samuel De Forest ; Saratoga Springs was heard by Gideon Putnam, Aslibel Andrews and Henry Walton (who had removed from what is known as the Delavan place in Balls- ton to that village) ; Gen. Dunning made a liberal proposition to have the county buildings located at Dunning Street ; and John Cramer, John L. Viele and Joshua Bloore urged that Waterford was the place of all others ; but Ballston Spa and the town of Milton having the influence of Judge Powell, James Merrill and Isaac Gere in the commission, won the coveted honor, which it still retains. The selection, too was largely owing to the efforts of Judge Cook of Ballston Spa, and Thomas C. Taylor and Nicholas Low of New York, who owned large tracts of land in and adjoining the village. Mr. Low, in fact, deeded to the county as a free gift the land on which the court house and county clerk's office now stands. The commissioners reported to the board of su- pervisors at their fall session that they had decided on a location, and on motion of Joel Keeler, super- visor of Milton, the report was adopted and Milton was formally declared to be the shire town. The proceedings of the board do not give the ayes and nays on the motion, if they were ordered. Also on his motion, James McCrea, who was a nephew of Jane McCrea, of revolutionary memory, and who was the supervisor of Ballston, was appointed a 48 THE BENCH AND BAR. committee "to grade the new court house grounds at a cost not to exceed $50." The new court house was built under the direc- tion of the commissioners, by tlie late Stephen S. Seaman. The mason work of the structure was performed under the direction of Joseph Barker, then a leading builder of this county, residing at Ballston Spa. He is still living (May 1876) in a se- rene old age at Spencerport, Monroe county, New York, and retains a strong and vivid memory of the early days of Saratoga county and of the men with whom he was associated. The court house consisted of the present brick structure, without the wing, and was built on the model of the old one with the exception that on the second floor the court room was assigned to the north side. Its di- mensions are sixty-six by fifty feet ; the wing not having been added until some years later. It was satisfactorily completed in time for the spring Cir- cuit Court in 1819, and in the ensuing fall, on mo- tion of Calvin Wheeler, supervisor of Providence, the new court house was formally accepted, and the bonds given by the commissioners in pursuance of the statute were cancelled. It was enlarged, by the addition of the wing, by order of the supervi- sors during the shrievalty of Thomas Low. The work was performed under the direction of Henry Wright of Milton. At the term of the Common Pleas held in the academy, the time of the court was frequently taken up with disputes arising from the poor au- thorities of one town sending their paupers within OF SARATOGA COUNTY. 49 tlie bounds of anotlier town. At that time each town of the state took care of its own poor, and their keeping was sold at each town meeting to the lowest bidder. It was not until 1827 that the coun- ty system was adopted and a more humane policy pursued towards the unfortunate paupers. By an act of the legislature of 1818, the then judges of the Courts of Common Pleas and General Sessions were set aside and their tenure of office declared terminated. Governor De Witt Clinton, by the direction of the council of appointment, June 16, 1818, commissioned James Thompson of Milton to be first judge, and Salmon Child of Greenfield, Abraham Moe of Halfmoon, James McCrea of Ballston, and John Prior of Greenfield, to be judges of this county in the courts of Common Pleas and General Sessions, and ex officio members of the court of Oyer and Terminer. Daring the time that there was no jail in the county the sherift' was au- thorized by the supervisors to contract with the Schenectady sheriff for their confinement in the jail of that county. When the criminal courts were held the prisoners were brought up under guard and kept at Clark's hotel, which stood on the west side of Front street, where the railroad embank- ment has since been constructed. Ex-sherift' Jen- nings recollects that he once, as a deputy under sheriff John Dunning, brought up twelve at one time handcuffed together, and as there was a scarc- ity of constables on his arrival he unlocked one handcuff, passed it around a tree which stood near by the court house, and then relocked it to the 3 50 THE BENCH AND BAR wrist of the culprit, thus safely fastening them un- til he could secure his team. Afthe Sessions in August, 1816, John Cross of Mechanic ville and Farquhar McBain of Ballston Spa were each fined $1.50 "for selling litpioi' on the Sabbath contrary to the statute.'' At the June Sessions, 1818, Benjamin Bennett was fined $5 for assault and battery on Peter Mallery. One y<'ar later he again appeared in the courts as the mur- derer of Seth Haskins. In 1816 the fair records of our county w^ere stained for the first time with the details of a trial and con- viction for murder.^ Daniel Northru]) of Galway had in the spring of 1816 murdered Cornelius Allen, a farmer who lived in that town, near the Charlton line. Northrup was a man of a low order of intel- lect and very passionate. He lived at the time of the murder in_. the family of his victim. Allen called him to breakfast one morning at an early hour. He arose cross and morose. At the break- fast table some angry words 2)assed, and North- rup, seizing a knife, stabbed Allen across the table, inilicting mortal wounds. He was arrested and in- dicted and brought to trtal at an Oyer and Termin- er held in September of 1816, before Judge Smith Thompson, _aJter wards one of tlie judges of the United States Supreme Court. At his trial the i)<:'o- ple were a-epreseji ted by Attorney-general Thomas .1. Oakley and James Thompson. Tlie prisoner was defended by Messrs. Samuel Cook and John W. Taylor. The ^defense was that the prisoner was noil compoa mentis . The commission of the mur- der was proved by the victim's wid(nv, ajidthedis- OF SARATOGA /-OUNTY. 51 eased iiiiiid of the priyone]- by liis mother, two brothers, and Alexander S. Piatt. Under the rul- ing of the court he was convicted and sentenced to be hano-ed on the last Friday in November of that year, but Judge Smith Thompson united in a pe- tition for his pardon, and wrote a letter to Gov. Tompkins, suggesting that it would be advisable. On the recommendation of Gov. Tompkins the leg- islature granted a pardon to Northrup. He was adjudged a lunatic by the proper tribunal and was conhned by his friends in a private asylum until his death, about twelve years later. In 1817 Judge Yates sentenced Noah Drew, the leader of a gang of notorious counterfeiters, to states prison for eight years; and in 1818 Judge Van Ness, in an Oyer and Terminer held in the Baptist church in Balls- ton Spa, sentenced one Robert Morris to pay a line of six cents for burglary and petit larceny. This light sentence was imposed, says the record, "in consideration of his lono; confinement in jail." All subsequent terms of the courts held in this county have been held in the coui't liouse in the village of Ballston Spa. CHAPTER V. IMPORTANT CAUSES TRIED AT SAliATOGA CIRCUIT PRIOR TO I81i). The clerk's minutes of tlie causes tried in this county to tlie erection of this present (;ourt liouse and the tirst term held therein ai-e ^ery meagre, and the importance of the issues involved in them can not be deduced therefrom. Unlike important criminal trials there are no traditions handed down from sire to son regarding the merits of the cases, or the chief a(;tors therein. Therefore I have sought the most available evidence extant of the impor- tance of the issues involved in certain actions tried in the early days of its judicial history, being that found in the reports of cases reviewed on appeal in the "Supreme Court of Judicature," or in the "Court for the Correction of Errors.'' William Bradshaw etal.^ plaintiff in error against Patrick Callaghan and wife, defendants in error. This was action in partition to divide the lands of which James Bradshaw, late of Charlton, deceased, had died possessed. Mary Bradshaw, his widow, was joined as a party defendant b}' (Callaghan, who was the ])laintiff in the Circuit Court. It was lu'ought to trial at the Saratoga Circuit in May 1809, before Chief Justice Kent. A verdict for the plain- tiff with costs against all the defendants was ren- OF SARATOGA COUNTY. 53 dered. On appeal to the Court of Errors, the judg- ment as to Maiy Bradshaw was reversed, and the remainder was affirmed. Chancellor Lansing pro- nounced the opinion of the court, liolding that a widow' s dower is not effected b}^ a suit in partition, nor is slie chargeable with costs in such suit. The case is reported in 8 Johnsoit s Heports 558. Sam uel Cook and John W. Taylor were plaintiff's attor- neys, and M. Van Everen jr. for the defendants. Under the old and cumbrous practice of the Com- mon law, actions for the recovery of real estate on the part of the heirs at law of deceased persons could not be commenced in the name of the real party in interest, but ex deiuissione under the title of James Jackson, or some other alia'S. This James Jackson was a fictitious personage supposed to be an Irish cousin of John Doe and Richard Roe. Thus I find the case of James Jackson, ex clem. Henry Livingston against Alexander Bryan, which is r(^])orted in 1 Joliumn 322. This was an action brought for thn ejectment of Biyan from "lot 7, class 3 of house lots in lot 7, in subdivision of lot 12 in allotment 16 of Kayaderosseras patent." The premises prior to the revolution belonged to Isaac Low, who adhered to tlie British cause. His prop- erty was sold on a bill of attainder in 17i^6 and the lot in question was purchased by Henry Livingston. In 1775, Low had permitted one Samuel INorton to occupy said lot. Norton joined the British army and died therein. In 1783 his family returned to the premises, and in 1787 a sou of Norton pro- cured permission from Livingston to remain. Dan 54 THE BENCH AND BAR iel Norton, the son, sold his improvements to Gid- eon Morgan who conveyed to defendant Bryan for $100. The permission from Livingston to Norton was in writing and contained no reservation of rents. Bryan admitted the foregoing, but claimed that having had possession of the premises undis- turbed for over thirty years he held it adverse to plaintiff's claim of title. It was brought to trial at the Saratoga Circuit in June 1805 before Judge Spencer who entered a non-sidt. The case was re- viewed in the Supreme Court, and the judgment of non-suit was affirmed. Levi H. Palmer was plain- tiff's attorney, and Samuel Cook, the defendant's. John Bryan, a son of Alexander, to perfect the claim of title from the patentees, purchased the in- terest of Henry Livingston. The lands in question contained the celebrated "High Rock Spring" in Saratoga Springs. Part of the premises held by Alexander Bryan in the XII allotment, by convey- ance from Daniel Norton througli Morgan, is now owned by his giandson, John A. Bryan, a member of the bar of tliis county. Alexander Bryan lies in Greimridge Cemetery whei-e a few yt^ars since his grandson, above named, erected a monument to his memory bearing this inscription : "IN MEMORY OF ALEXANDER BRYAN. Died April 1), IH25, au;i;y Mr. Samuel R. Garrett, a farmer, who had just •orae upon the street from tlu^ hotel shed. As soon IS the murderer tied, he gave chase, sounding the :ilarm. Watkins was seized in front of where the OF SARATOGA COUNTY. 71 First National bank now stands by Samuel S. Wake- man, Stephen Fox, Abraham T. Davis and Moses Williams, and by the aid of Mr. Garrett he was securely tied and delivered to jailoi- Dunning. The court which tried Watkins was composed of Circuit judge Cowen with First judge Samuel Young and judges Steele, Granger, Van Schoonhoven and Pal- mei. He was defended by Oran G. Otis. The jury consisted of Samuel S. Southard, Joseph Wil- cox, Robert Kelly, Edward Rexford, Henry Kil- mer, Benjamin R. Putnam, Judd Hoyt, Arnold Paul, John Jones, Michael Vincent, John B. Ross and Eli Dunning. The witnesses sworn for the people were Samuel R. Garrett, Alonzo Gould, Ellen Bevin, Sarah Jane Ladow, Joseph W.Loomis, George W. Beach, Dr. E. St. John, S. S. Wake- man, Abraham T. Davis and Moses Williams. The culprit having no witnesses to prove mitigating cir- cumstances, counselor Otis had only to depend on cross examination to furnish his defence. District Attorney Warren secured another conviction, and Watkins was sentenced to be hanged on Friday, January 17, 1834. He now began a series of dissimu- lations and gained somewhat the popular sympathy by professing great religious zeal and repentance for'-his past.misdeeds. Mr. Otis' efforts to secure a commutation/of his sentence would have been effectual, doubtless, had not Watkins by another base>nd7murderous act sealed his fate. During the month of December, jailor Dunning went into his'cel] to read a chapter in the Bible to him, and while the good old man was reading the sacred text, thermipnt afcwok him with a bille* of wwd, seized 72 THE BENCH AND BAR. his keys aud escaped. He concealed himself for some days in S. S. Seaman's barn in Ballston, and went from there in the night to a barn in Malta, on on the Merrill farm. While in Seaman's barn his feet were badly frozen. His hiding place was at last divulged by a colored man and he was taken back to liis doom. On the appointed day, he was taken to the spot where Bennett thirteen years before had expiated his crime, and on the same gallows he was ''hanged by the neck nntil he was dead'" by sheriff John Yernam. He, too, was pre- pared Ibr the fatal fall by under sheriif Joseph Jen- nings, who yet retains the noose used on the occasion. Ex- Judge Hulb(^rt, then an apprenticte boy of the Ballston Spa Gazefte, tells me that he remembers the printing at that office of an alleged confession of Watkins, along with his tria^ and execution, in which he stated that he had formerly 'been a pirate and had committed the crime of murder on several former occasions. The "confession" was printed in a sensational ''Police Gazette'^ style and was said to have been written by the late Elias G. Palmer. It is also said, however, that when Watkins made the confession he hoped that it would secure his reprieve and a commutation of his sentence. On the gallows he declared it was false. Since then the old scalfold has rotted in its storage place, and may it be hoped man}^ years may elapse ere the sheriff of Saratoga county shall again be called u])()n to erect another. The November Oyer, 1836, was held by Judge OF SARATOGA COUNTY, 73 John Willard of Saratoga Springs, who had been appointed by Gov. Marcy, September 3, to the place vacated by the appointment of Judge Cowen to the Supreme bench. He had previously been lirst judge of Washington county. Ou the fourth day of the term county clerk Goodrich made the fol- lowing entry : ' 'Court tried to convene and could not ; Hon. Jolm Willard only being present. Ad- journed sine die.'' This entry is explained as fol- lows : The judges of the Court of Common Fleas insisted that being a numerical majority they coidd control the action of the court in bringing in the criminal calendar. Both Circuit Judges Cowen and Willard resisted this claim, as trenching on their prerogatives. At a previous term, a collisi(jn of authority had arisen between Judges Cowen and Young, in which the latter was at hrst success- h\\ in ordering the district attorney to call the criminal calendar, and the former gained his point by forbidding the clerk to obey Young's orders. Tiiese differences grew out of a dual jurisdiction of the two courts, which created more or less trouble throughout the state, until both courts were abro- gated by the constitution of 1846. The district attorney was an appointee of the Court of Sessions, wliile the county clerk was clerk of the Circuit court and bound to obey its commands. At the December Oyer, 1840, Jonathan A. Brown of Half- moon was convicted of illegal voting in Waterford, Nov. 5, 1839. Chesseldeu Ellis was district attor- ney, and the prisoner was defended by Joshua Bloore. 4 74 THE BEXCH ATiD EATJ At the May Oyer, 1841, an indictment was found for one of tlie most audacious conspiracies to d-'fraud that has ever disgraced the annals of anv crimiiial court. Samuel S. Welden, Amaziali Foixl and BeMi- Jamin Howd were charged with conspiring to de- fraud William Green of Ballston Spa,. They were lu-ought to trial at the May Oyer, 1848. Edward F, Bullard, special district attorney to try cases in which District Attorney Beach liad been engaged tor the defense previous to his appointment, ap- peared for the people ; William A. Beach for defendants Welden and Ford, and John K. Porter for Howd. I find the proven facts from the recorrl of conviction to have been that the prisoners illegally conspired Februar}^ 20, 1842, to falsely, move and maintain suits bef )re Samuel Wilbur, a Justice of the peace of the town of Clifton Park, and, also, before James Van Hyning, a Justice of the peace of the town of Malta, against William P. Green in which Ford appeared as plaintiff, and, also, others in which Welden was the plaintiff. That they procured the issuance of a summons against the said Green from the said Justices and delivered them to Howd, a constable of Clifton Park, for ser- vice. That he duly returned them "personallv servfxl,"' when in fact they had been served on another i)erson procured to personate Green. That on the return days of said summons a})pearance was made by Ford and Welden [as plaintiffs, and judgments were taken against Gi'een, as in default. Tlu^ proof was so direct against Ford and Wildfu that they Avere convicted and -sentenced to three OF SAliATOaA COUNTY. 7^ month- s' iiipi'isouaient in the count}^ jail, and to pay a tin*' of J^2o0. Howd escaped, tliere being a doubt whether he was a co-conspirator, or a diip!" tlie other parties. At the Ma}^ Oyer 1844, Abraliani Speck was con- victed of an assault with a gun on Reuben E. Sea- man, collector of district No. 7, Saratoga Springs, with intent to kill because Seaman had madealev^y on liis property to pay a school tax. District xlttor- ney Beach prosecuted, and John K. Porter defend- ed the prisoner. This case was at the commence- ment of the brilliant legal strife of those eminent advocates at our bar, in which they laid the foun- dations of their future fame. Speck, who was the well known deformed colored man, Avas sentenced to t^n years imprisonment. After serving about half of his time he was pardoned by Gov. Seward through the influence of the late Gen. James M. Cook, and lived to be the first of his race to vote at the polls held in the village of Ballston Spa, after the adoption of the fifteenth amendment, at the special judicial election held in 1870 to elect judges of the Court of Appeals. alnother murder trial darkens the minutes of tlie Oyer and Termimn-. At the May term 1846, Abra- ham Wilcox was brought to the bar charged with the murder of Thomas McKinstry, at the town of Saratoga December 2, 1845. Wilcox was a young- man of a weak mind, induced by an unfortunate habit, and becoming enraged at the preference shown tor McKinstry b}^ a certain young lady that both admired, he stabbed him several times so that he 76 THE BENCH AND BAR instantly died. He then ran and was found soon after hanging in his barn. While the persons who found him, thinking him dead, were discussing wliether to cut him down or await the arrival of a coroner, Dr. Oliver Brisbin arrived. As he was saying that it was usual to await the arrival of that officer, Owen M. Roberts ot Moreau, dro\'e up and at once severed the strap, and Wilcox was found to be yet alive. He was brought to the jail in Balls ton Spa. Henry W. Merrill was engaged to defend him, and, after his indictment John K. Porter and Augustus Bockes were associated in the defense. Against this strong array. District Attorney Beach brought Wilcox to trial. The court was composed of Circuit Judge AVillard, and judges Warren, Stone, Mandeville and Gilchrist. The jury im- paneled to try the indictment was William De Remer, Jul ins H. Rice, James H. Darrow, Grard- ner Edmunds, JNathaniei Seelye, Eliphalet Mer- chant, Wm. H. Alexander, Albert Clute, Ilenr}- Mead, 2d, Nelson Cole, (rorham Dennison and Daniel Eddy. The trial was closely contested and lasted three days. 'J'he defense was insanity. In those days that was a new feature, and AVilcox was convicted and received the death sentence to be executed July 28, 1846. His counsel laid the case before Chancellor Walworth, who adjudged that Wilcox was of an unsound mind. On his repre sentations Gov. Wright commuted the sentence to imprisonment for life, and Wilcox died in Danne- mora. Judge Willaid had Ik^UI every term in this count}' OF SAKATOGA COUNTY. 77 from the date of his appointment ; but the time now arrived when the provisions of the new con- stitution bid him lay aside his old robes of office and accept the ermine fresh from the people by an ele(;tion to the new office of Justice of the Supreme court. The last Oyer and Terminer held in this county under the constitution of 1821 convened at the court house in May. 1847. Judges Willard, Warren, Stone and Gilchrist sat upon the bench ; James W. Horton was clerk ; Thomas Low, sheriff and Hiram Boss, crier. None of these survive except the veteran clerk, who is now in the thirty- first year of his service. CHAPTER VIII. INDICTMENTS TRIED IN THE COURT OF GENERAL SESSIONS, FROM 1819 TO 1847. The Court of General Sessions of the Peace is one of the most ancient known to our constitution and the laws. It was first instituted in the colony of New York under the administration of Governor Thomas Dongan, by an act of the colonial assembly in 1683, but was abolished by order of Sir Edmond Andross, who superseded Col. Dongan, under whose administration King James II sought to unite the New England colonies with New York and the settlements in East and West Jersey. The experiment failed, for James was forced to leave England by the revolution of the same 3^ ear, which placed William of Orange and Mary Stuart on the throne. The colonists soon made it too warm for his tyranical tool, Andross, to remain and he left the New World forever. In 1699, under the admin- istration of the colonial governoi- Kichard Coote, Earl of Bellamont, the assembly again established the Court of Sessions. It received the royal sanc- tion in th(^ first year of the reign of Queen Ann, 1702, Edward Hyde, lord viscount Cornbury, being the colonial governor. It was the same Lord Corn- bury who two years later issiu'd the royal patent of the Kayaderosseras to Nanning Haimanse and OF SARATOGA COUNTY. 79 twelve others, whicli forms the basis of the title of two-thirds of the land in this county, and wljich patent with its large waxen seal and quaint phrase- ology and chirography is now on tile in oar county clerk's oflice. Thus the decrees establishing local courts and the title to a large portion of the lands in this county are co-existent and bear the same seal and signature. We have hitherto seen that the legislature of 1814 provided that thereafter the Court of Sessions in the several counties should be holden by the Judges of Common Pleas. This j)rovision was con- tinued by the constitution of 1821, and it remained in their jurisdiction until the constitution of 1846 abolishing both courts, and reorganized the county courts on their present basis. Therefore, in pursu- ance of law and by the appointment of the Judges of Common Pleas, the tirst term of the Court of General Sessions held in the prefsent court house, convened August 24, 1819. judge James Thomp- son presided, with Judges Salmon Cliild, Abraham Moe, James McCD-a and John Prior on the bench. The other court officers were those named .in the last chapter at being present at the tirst Oyer and Terminer. During the ten years succeeding from 1819, this court was occupied in disposing of petty criminals, and no iiuportant trials were held at its bar. During that period, Samuel Cook of Milton, James Van Schoonhoven of Waterford, Doctor John H. Steel of Saratoga Springs, Nicholas B. Doe of Waterford and George Palmer of Still- water were successively commissioned as judges 80 THE BENCH Al^B BAE to fill vacancies. On the thirteenth of Fchruary, 1821, a change in tlie political whirligig compelled District Attorne}' Livingston to retire from office, and. William L. V. Warren was appointed to suc- ceed him. He made a fear] ess and worthy ]>iiblic prosecntor, and won the respect of all wliile he performed its duties. During this period the hrst jury of this county- which were fed in their room by oi'dtjr of the court was that impanneled to try an indictment found against one Tennis McGinnis, for perjury ;ill<\ged to have been committed in an action tried before Judge Granger. Whether it was owing to the want of evidence, the eloquence of counsel h)i- Otis in his behalf, or the mollifying effects of the "scpiare meal" provided b}^ the court or not cannot be stated, but the jur}* acquitted Mr. McGinness. At the April term 1880, John Smith, the individ- ual, who, next to John Doe, is the most numerous culprit in country, was heard b}^ P. H. McOmber, his attorney, on an appeal from an order entered in justices court, requiring him to keep the peace towards the people of the state of New York, and pMrticnilarly towards Henry Wilsey. The court minutes do not disclose the gravamen of the offense chnrged against the doughty' John, but the Pact that the order was confirmed leads us to doubt not that he made some "threats full of imports dire, and actions fierce and sanguinary.'' At this tei-m was tried an indictment wiru-h created great interest from the high social stand- ing c>r tlie party accused. George Brown, a OF SARATOGA COUNTY. 81 student at Union college, and a sou of the famous lawyer, David Paul Brown, of Philadel- plia, was indicted for having disturbed a camp- nieeting, held in Merrill' s grove, in Malta, in the previous summer. Young Brown was defended by his father, Horatio Buel, of Glen's Falls, andOran G. Otis, of Ballston Spa. An alibi strong enough to convince the elder Weller was proved. It was shown conclusively that George Brown was at his quarters in Union college, at the hour he was alleged to have been in Malta. Witnesses who had sworn positively to his identity were confused by the ap- pearance of his brother, Peter A. Brown, who, it afterwards appeared, was the real culprit. The jury retired under the charge of constable Rowland A. Wright, but after careful deliberation were dis- charged as being unable to tell whether George was Peter, or Peter was George. District Attorney Warren thereupon entered a nolle prosequi by per- mission of the court. At the August term of the same year John Tip- pet was convicted on two indictments for horse stealing and jail breaking, and sentenced to Sing- Sing for live years. This was the second case of "special* jail delivery" from the. present court house. It was not as successful as the first, which occurred in 1821, when Richard Worden and Eli- phalet Williams, alias Erastus Whitney, alias Charles Whitney, alias Charles Cleveland, coun- terfeiters, bade Gen. Dunning a surreptitious fare- well and left not even their regrets behind. Solita- 82 THE BENCH AND BAR ry cells were then ordered for refractory prisoners, on the principle of putting np the bars after the cattle have wandered from the field. They were constructed in the basement of the jail under tlic common ceUs, and were long known as the "dun- geons." They have not been used in many years. At the June term, 1831, Margaret Pulmer was con- victed for keeping a disorderly house in the village of Ballston Spa, and sentenced to sixty days in jail, and to pay a fine of !B20. To the credit of the coun- ty seat, every effort on the part of parties of de- praved habits to maintain similar institutions there has oeen ground under the iron heel of the law. Under the provisions of the constitution of 1821, the first judge held his office by appointment, for the term of five j^ears, and on the expiration of Judge James Thompson's term, April 30, 1833, Governor Marcy appointed Hon. Samuel Young to the seat of the presiding judge of this county. Col . Young was one of the ripest scholars of the state, and was a lawyer of great acumen and deep read- ing. He had been a member of the state senate for several years, where his voice, both in the senate and the court of errors, had had great weight, and his reported oi)inions in the latter had become a part of established ])recedents of our courts, and are quoted not only in the courts of every state and United States, but also in the mother country. The first case of importance, brought before Judge Young, will be remembered by many of our older citizens. The late David F. White having been made the victim of the petty spite of Harvey Loomis, OF SAKATOaA COUNTY. 8'? thPii landlord of the Sans Soiici, cut a green withe and severely thrashed the latter in front of his hotel, oil the public street in broad daylight. Looniis procured his indictment for an assault and battery, at the August term, 1834. Wit e plead guiUy on being arraigned, but both Judge Young and Dis- trict Attorney Warren (who was a brother-in-law of White) refused to accept it. He was hnally tried in August, 1885, and was fined thirty dollars, which doubtless acted as an emollient on the injured feel- ings and limbs of Loomis. At the August terra, 1836, one Thomas McGinniss was convicted of selling, contrary to statute, ''one glass, if no more, of liquor," and fined $25. Sep- tember 6, 1836, the judges of Common Pleas ap- pointed Ni(^holas Hill J]-, of Saratoga Springs to be district attorney. Mr. Hill was then at the head of tlie bar of this county, and was enjoying a lucrative practice. He, however, ver};^ soon found that the duties of his office interfered with his clientage in an irreconcilable manner, and on the 2oth of the next April he resigned, and Chesselden Ellis of Waterford was appointed by the court to the vacant position.. In 1835 indictments were found against Reuben S. Clark, his sou John S. Clark, Leaiider Laxvi-ence and otht^rs of the "Snake Hill bank,'" for uttering counterfeit money. These cases occupied the atten- tion of both the Oyer and Sessu»ns for several years, l)ut for "deeds that were dark" John S. Clark was "peculiar," and evaded conviction on every indict- ment found ag-ainst liinu Several of his victims 84 THE BENCH AND BAK. sutfered terms of imprisonment, and his father-in- law, Ezekiel Lawrence, a worthy Stillwater farmer, was nearly ruined financially in paying the forfeited bonds of Reuben S. Clark and Leander Lawrence. Nicholas Hill jr. was Clark's attorney. On the expiration of Judge Young's term in 1838, Gov. Marcy appointed Thomas J. Marvin of Saratoga Springs to be hrst judge ; and Greorge G. Scott of Milton and John Gilchrist of Charlton were appointed judges. Judge Marvin had been ap- jjointed one of the judges of Common Pleas two years previously. He served with good acceptance until the office was abolished in 1847. At the August term, 1839, JohnL. Carpenter was convicted and fined $20 for selling lottery tickets ; since which time the law has been a dead letter in this county, as far as convictions for the crime show. At the same term Henry Storm, alias Henry Scott alias Henrj^ Stone, was brought to trial for burglary and larceny. Having the letters "■H. S." in India ink on his hand it was im])0ssible foi- him to travel beyond that latitude in seeking a name, so he listened to the adviceof counselor Abel Meekei' and went to Auburn for five j^ears on a plea of guilty of grand larceny. Also at the same term, Reuben Priest was convicted of procuring the sig- nature of Justice Benjamin K. Bryan of Mechanic- ville to a written instrument under false pretences, and was lined $100. . At the April term, 1841, Oscar Brazee, Parker Thomas, Patrick Hart, Lemuel Rose and George Taylor, were indicted and tried for an attempt to OF SAKATOGA COUNTY. 85 break jail Febrnaiy 1, 1840, by sawing the window bars and removing stone from the base of a window. They were detected an I remanded to the custody of jailor Stebbins. Thomas, who was also held as a counterfeiter, was sent to the states prison for three years, and Ross was also convicted and sen- tenced to the county jail for six months. At the August term, 1843, Sabine Harris was tried and convicted of the crime of burglary and larceny, in breaking into and robbing the store of Fellows & Viall, in Mechanicville, February 12, of that year. Notwithstanding he had the efforts of William A. Beach in his behalf, the proof was so direct that he was convicted and sentenced to four years at Auburn. William A. Beach having been appointed dis- trict attorney, September 11, 1843 ; at the December term Edward F. Bullard was appointed special dis- trict attorney to try cases in which Mr. Beach had been engaged by the defense. Amos ^^Isdorf, a constable of Clifton Park, was lined $50 at this term for having corruptly allowed one John Philbrick, a prisoner committed to his custody by justice B. K. Bryan, to escape. At the April term, 1844, an order from Governor Bouck was entered on the minutes of the court, directing that thereafter all male prisoners from this county should be sent to the new states prison, now known as Dannemora. The famous Empire Club of the city of New York, under the lead of Capt. Isaiah Rynders, a native of Waterford, will long be remembered by students of 4* 86 THE BENCH AISTD BAR political history. It was formed about the year 1844, and did efhcient service in the Clay and Polk presidential campaign of that year. It worked in the interest of the democratic party and was most heartily feared and execrated by the whig leaders on account of its Donnybrook tendencies. Gen. Bullard has kindly furnished the author with the following particulars of an occurrence in this county, in which the stalwart Rynders and his shoulder hitters played an important part, and which but for the shrewdness of his attorneys would have changed his field of operations to a more northern latitude for several years. Ryn- ders' parents, brother and sister resided in Water- ford, where he was in the habit of visiting them occasionally. Frequently while there he would get into heated political discussions with a local Whig champion named Russell Losee. They finally became bitter personal enemies. In April, 1845, Rynders came to Waterford in company with two prize fighters named Phillips and McCloskey, and they Avere jDresent at the regular town meeting. Towards night a fight occurred in the street near the polls. John Akinson, (who was killed recently by the cars) a large and powerful Irishman and the only whig Celt in the place, stepped across the street to a shoj) and seizing a blacksmith's sledge came into the crowd and knocked down Jajnes Rynders (Isaiah's brother) and the two pi'ize figlit(M's. Before he reached Capt. Rjniders tlie latter drew a pistol and fired into the crowd. During the stam- OF SARATOGA COUNTY. 87 pede this occasioned tlie Captain retreated and had his poimded borne from the field, badly demoral- ized. In the melee the sheath of a dagger pistol was dropped by him and secured as evidence. Isaiah and James Rynders were duly indicted by the next grand jury for riot in connection with Phillips and McCloske}^ Isaiah was also indicted for assault with a deadly weapon with intent to kill Russell Losee and William Campbell. After several escapades and forfeitures and estreatments of bail bonds they were brought to trial in Decem- ber 1846. William A. Beach was district attorney, but party spirit ran high and the leading whigs of the county assumed the prosecution. The election of Polk in 1844 had been carried by the vote of New York, and Rj-nders and his shoulder hitting Empire Club had been strongly instrumental in achieving that result. The whigs had now, they thought, the power to shelve him at Dannemora, so they engaged Judiah Ellsworth and John K. Porter, the most able and distinguished of their legal partisans in the county, to assist Mr. Beach. The latter stood aside and gave them full scope. Gen. Bullard defended the prisoners, and had Judge Hay associated with him. When the indict- ments were reached, the prosecution asked the defendants' counsel which of the two they prefer- red to try first. Gen. Bullard promptly responded the riot charge against the four prisoners. The trial was then moved and a jury was impaneled. Russell Losee was called and sworn as to the riot, 88 THE BENCH AND BAR giving all the facts of the shooting, and testifying that Isaiah Rynders pointed a pistol towards him and discharged it. No objection was made to the testimon}^ by the defendants' counsel. After the prosecution had closed. Judge Hay remarked that as a plain case had been made by the people the defense would offer no testimony. The jury retired and returned with a verdict against Isaiah and James Rjniders. Judge Marvin thereupon passed sentence, lining the former $100 and the latter $50. The prosecution then moved the trial of the indictment against the famous Captain for assault with intent to kill with a deadly weapon. The great crowd that surged into the court house now expected to see the proceedings that would in a few hours consign him to a felon's cell and termin- ate his wild political career. A jury was sworn and Losee again took the witness stand and began to repeat the evidence given on tl e former trial. At this point Gen. BuUard raised the constitutional objection that a person cannot be tried twice for the same offense, or act ; and claimed that Rynders had already suffered the penalty of the law for the offense the witness was delineating. If a bomb shell had exploded at this minute in the bar the distin- guished counsel for the people could not have been more astonished than at this unexpected upshot of affairs. They argued at length to overcome the objection. The horrid looking sheath (dropped by Rynders in his flight) was dramatically brandished before the court. But all to no avail, Judge Mar- OF SARATOGA COUNTY.. 89 vin held the objection to be well taken and ordered the discharge of Rynders. The latter was appointed to a lucrative office in New York by President Polk and held it until removed by Gen. Taylor. Once more he came into political notice. Twenty years ago he and the Empire Club were again active in the campaign that ended in the election of James Buchanan. He was appointed as a reward to the honorable position of marshal of the southern district of New York, and discharged its duties with credit. One of his exploits was his arrest of Lamar' s famous yacht Wanderer which was fitted out in the harbor of New York for a slave voyag'-* in the summer of 1860. Rynders dressed himself as a rustic and strolled along the wharf one forenoon. In this incognito he apparently blundered on board of the slaver, and amused the officers and men with his droll and uncouth expressions. Completely allaying their apprehensions, he gathered information which could in no other manner have been obtained, and probably by no other man. In the afternoon, in his character as marshal, he again boarded the yacht at the head of a file of marines and libelled the vessel. This one exploit went a great way towards wiping out with all parties the obloquy formerly attached to his name. He was always kind and generous to his aged parents and sup- ported them in their latter days in comfort. While holding his last office, he one day met Gen. Bul- lard on Broadway. After exchanging salutations, 90 THE BET^CH AND BAR he stated that he had never paid him for that "lit- tle service done for him in Ballston," and then handed him twenty five dollars. It was over ten years after the trial and all legal claim on him was barred. What he did therefore was a matter of honor and gratitude. He is yet living some- where in New Jersey. In his prime he was an earnest and magnetic speaker and had a wonder- ful influence with the uneducated masses whenever he addressed them. The author remembers hear- ing him speak in C ohoes in 1860. At the September term 1845, Daniel D. Keeler was tried as an accessory to the crime of William S. Travis who entered the barn of j^ndrew Van Vranken in Clifton park, April 16, 1845, and took therefrom one horse, a wagon and a harness. Travis had previously been convicted and sent to states prison for five years. The people were represented by District Attorney Beach, John K. Porter and Edward F. Bullard. Keeler was de- fended by John Brotherson and William B. Litch. The jury retired under the charge of constable William B. Harris and returned with a verdict of guilty. Keeler was sent to. share Travis' impris- onment. At the September term 1846 the name of John Radford of Galway, appeared as one of the con- stables in attendance at court. He continued in offi 'e until his death in 1871, and was regularly summoned by the sheriff to attend all the courts of this county. His white head became to be regarded OF SARATOGA COUNTY. 91 as much a fixture of the court room as did the four pilhiTS of tlie bar against one of which he was accus- tomed to recline. About tins period William A. Beach and John K. Porter stood at the front of the bar of Saratoga county and their fame was fast widening and creating the demand for them to remove first to Troy and Albany, and finally to the great metropo- lis of our nation, where they still stand side by side with O' Conor and Evarts in the front rank of the bar of the United States. An incident in their early rivalry and strife to excel is related by an eye wit- ness to the author. At the December term, 1846, William R. Ford of Ballston Spa, and his cousin William H. Ford were brought to trial for an assault and battery on Thomas Mainhood, an Eng- lish giant who resided for many years in that village. The Fords were diminutive lads of their age, and, as their fathers refused to become interested in their behalf, Mr. Porter volunteered to defend them. He excited considerable merriment in court by a com- parison of the size of his "infants" with the her- culean Mainhood. This aroused the leonine energy of Mr. Beach, who pressed the matter to the jury and secured a conviction. Callender Beecher vol- unteered to aid Mr. Porter. The boys were fined $15 each, whereupon Mr. Beach acknowledged the receipt of the fines and in a trumpet tone told the lads to go home and keep out of such bad company. At the same term John McKnight was convicted of arson in firing the store of Samuel Irish, in Ballston 92 THE BENCH AND BATl Spa, on the night of August 21, 1846. He was defended by Porter and Hay, but was convicted and sentenced to ten years in states prison. At the next term, held in March, 1847, Irish was convicted as an accessory of McKnight and sent up for a like term. His object, it was proved, was to obtain the insurance. The March term, 1847, was the last held under the old constitution. First judge Thomas J. Mar- vin with judges W. L. F. Wai-ren, John Gilchrist and Lewis Stone sat on the bench. Thomas Low was sheriff; James W. Horton, clerk ; and Hiram Boss, crier. The most important case tried at that term was the indictment against Thomas B. Thomp- son, Joseph Bitely, Sanford Olmstead, Levi 01ms- tead, Jacob Wallace, John Doty John C. Fnllerton, Johi! Vanderwerken and David DeGarmo for tear- ing down the Fort Miller state dam across the Hud- son river. The defendants were farmers owning the fee simple of lands in the town of Northumberland which they claimed had been flooded by the state contrary to the well known legal maxim that "private ])roperty cannot be converted to the pub- lic use without due compensation." In the course they took under the cov«er of that principle they acted in accordance with the advice of Judge Hay. At the trial the state was represented by Hon. John Van Bur(3n, attorney general, and District Attor- ney Beach. The defense was conducted by Judge Hay and John K. Porter. The former was Y>ar- ticularly severe in his address to the jury upon OF SARATOGA COUNTY. 93 what he termed the "Fort Miller canal ring," who had "inported Prince John to aid William A, Beach in the warfare they were waging against the honest yeomanry of Northumberland.'' The jury found a verdict of acquittal. In addition to the other judges mentioned who sat in the Court of Sessions were Seymour St. John of Providence and Joshua Mandeville of Water- ford. In the clerk's desk had sat successively Alpheus Goodrich, Archibald Smith, Horace Good- rich and James W. Horton. John Dunning had been succeeded as sheriff by John R. Mott, John Dunning, Ljanan B. Langworthy, John Dunning, John Yernani, Joseph Jennings, Samuel Freeman, Robert Spier, Isaac Frink, and Thomas Low ; and as jailor by Chester Stebbins, Thomas Low, Row- land A. Wright and Philip H. McOmber, Major Buel, the old crier, had been followed in that "old publicfunctionary" line by Nathaniel Stewart and Hiram Boss. Thus closed the criminal court records of this county under the old system. CHAPTER YIII. THE COURT OF COMMON PLEAS. The Common Pleas as it existed in the state under the constitutions of 1777 and 1821, was in all essen- tial elements the successor of the original colonial court of the same name established in New York by the order of the governor and council May 15, 1689. Besides the Common Law jurisdiction inherent in it as a court of the realm, which was recognized by the state constitutions before mentioned ; it had statutory authority confided to it by successive leg- islatures until its scope embraced power to try local and transitory actions wherein the amount sought to be recovered did not exceed a certain sum named in the statute, which was lixed by different legisla- tures at various sums ; to hear appeals from jus- tices' courts and to grant new trials ; to have the custod}^ of insolvent debtors, and to grant release to sucli insolvents ; to hear and determine suits in partition of lands ; to issue permits for ferriages ; to have the custody of the persons and estates of lunatics ; to try and determine suits in ejectment, and such other jurisdi(;tion, either original or on appeal from the court below, as from time to time was confided to it by the legislature in their wis- (iom, until it ])ecame so burdened that it was OF SARATOGA COUNTY. 95 unequal to its task, and the difRcnlty to get a hear- ing at its bar was such as to apply to it throughout the state the witty epigram applied to that of our county at a certain period by the late Horatio Buel of Glen's Falls: "The sloth is slow, the snail is slow ; They dearlj' love their ease : But the slowest thing on all Gocls's carta Is the Saratoga Common Pleas." The first term of this court held in the new court house convened Angus [ 24, 1819, with First judge James Thompson and judges Abraham Moe, Salmon Child and John Prior on the bench. At the lirst term the court, ordered that two solitary cells be prepared in the goal for the reception of convicts who may be sentenced to punishment therein. They also took measures to alleviate the woes of those unfortunate poor debtors who were consigned to the county jail because they were guilty of not having enough of this world' s goods to satisfy the claims of their creditors. They fixed the limits within which this class might secure labor to sup- port themselves and families, and woe to them and their bailors if they wandered beyond the stated "metes and bounds." The ''limits" were enlarged at different terms until in August, 1829 it was "ordered that the jail limits for this county be altered and established according to the boundaries and surve3"s made by James Scott, and that as soon as the said 'James Scott makes a description and map thereof and files the same in the clerk's office 96 THE BENCH AND BAR. of this county the said jail limits shall take effect." They were accordingly filed August 29, 1829, and remain to this day as then established. The "limits" are as follows : '•Beginning ou tLe north line of tlie town of Ballston at the soutlieast corner of land belonging to Stephen Smith and runs thence north fifty-four chains and ninetj' one links io a post set in the ground; thence west nineteen chains and thirty-eight links to a post set in the ground ; on the easterly side by the road running northerly from Ballston Spa to Greenfield thence north eleven chains to a stake set in the ground ; thence west fifteen chains and thirty one links to a stake set in the ground ; thence south twenty- five chains and eight}' six links to a stake set in the ground ; thence west thirty-four chains and sixty-nine links to a stake set in the ground ; thence south sixty two chains and thirty-eight links to a stake set in the ground ; thence east sixty nine chains and thirty- eight links to a stake set in the ground ; thence north twenty-two chains anc. sixteen links to the place of beginning, containing five hundred acres of laud. The above courses being run as ihe mag" netic needle pointed in the year 1769." The imprisonment of a debtor was in the main an unsatisfactory process in the collection of debts. The debtor usually found friends to bail him for the "jail liberties," and many were the devices used by both parties, the creditors to entice him beyond the boundaries and thus render the bailors liable for the debt, and the debtor to return surreptitiously to his home and then keep his "weather eye" turned in the direction of his prosecutor to watch :.or any sudden movement ou his part. This was usually done on Sunday, on which day he was at liberty to go where he pleased, for no civil process could be then served, and when once at home the OF SAEATOGA COUNTY. 97 temptation to remain was too strong to resist. From many anecdotes, I select the following as illustra- tive of the state of affairs between these two impor- tant classes of the body politic. A country merchant having a debtor "on the limits"' hired a man to induce the latter to go with him to spear suckers in the Gordon creek one fine May evening, and as soon as they had crossed the fatal line an officer stepped from his ambush and served the process on the sherifi". The matter was then in readiness to come mence ai: action for an escape against the sheriff, who was now bound to pay the debt and then look to his securities for remuneration. The other was that of a man in Stillwater, who was unable to pay his physician's bill, and in consequence soon found himself enjoying a ' 'sojourn at the Springs." After a few weeks this got to be irksome, and he yearned for the society to be found at the "South end of the lake." So trusting to his ability to outwit his adversary he returned home. After several days he learned from his scouts that the enemy was in motion, and at once he began a ' 'masterly retreat' ' on Ballston. It was a bright summer's night, and as he was trudging on foot and had just crossed the Mourning- kil he heard the sound of a wagon in the rear. Hastily seeking cover, he saw his creditor drive leisurely by. Taking a convenient distance he brought up the rear in the march to the court house. Sheriff Dunning was aroused by the creditor and informed "that , a judgment debtor confined in the jail limits had escaped and 5 98 THE BENCH Al^D BAR was then at his home in Stillwater." This assertion was instantly negatived by the debtor, who had arrived opposite where the clerk' s office now stands, and indignantly pronounced it a falsehood. But the time came when it was no longer a crime to be "poor but honest," and the statute abolishing imprisonment for debt, excepting those of a tortuous origin, took effect March 4, 1832, and the "jail limits," except for debtors whose delinquencies are of a quasi criminal nature, ceased to exist. It went to the shades to be gathered with the whipping post, the cucking stool and other "liberties" secured to the English speaking citizen by that famous instru- ment .obtained on the banks of the Runnymede by rebellious barons from the unwilling king. All topics relating to highways and bridges were a part of the common law jurisdiction of this court and frequent questions arose in this county in the early years for it to determine. The towns of Mil- ton and Saratoga by reason of the Kayaderosseras and Fish creeks were put to an undue expense to maintain free bridges for the use of the public, and they justly asked that the county should be taxed to assist in- maintaining those on the great thorough- fares. At the August term 1822, the following entry is made in the minutes : On reading and filing the petition of the commissioners of liigli- W!iys of the town of Milton on tiieir appeal from the determin- aton of the board of supervisors of tlie counly of Saratoga against the application »f the said conunissioners to the said board of supervisors pursuant to section 33 of the "act to regulate highways," passed March 19, 1813, for such sura of money to be raised en the OF SAEATOGA COUISTTY. 99 said county as would be sufficient to defray the expenses of erect- ing and repairing bridges in the said town of Milton, and praying that thesaid determination miglit be revised. And the court now having revised said detenninatinu, and it having been duly made to appear to the court that thesaid town of Milton is unreasonably burdened l)y luiTing to erect and repair necessary bridges across the Kayaderosseras: It is therefore ordered, tiiat the said super- visor raise the sum of $500 on the said county for the purpose of erecting and repairing bridges in the said town of Milton. With tlie amount thus raised the commissioners erected the two stone culvert bridges known for nearly half a century as the "Blue Mill" and ''Fac- tory village bridges. ' ' They were substantial! 3^ built by Joseph Barker, but now both have been re- moved ; the latter by the march of improvement, and the former by the freshet of October 18, 1869. A curious circumstance connected with this was the fact that Mr. Barker was visiting in Ballston Spa at that time, and from the railroad above he wit- nessed the fall of the old bridge. Similar rules were entered subsequently .regarding bridges in Saratoga. Previous to 1823, all causes heard in this court by appeal were heard on pleadings de novo, but in the April term that year the court simplified the practice by ordering that thereafter appeals should be "heard on the pleadings in the courts below." This required greater care in the joinder of issues in the lower court, and rendered obsolete a class of men who had gained a precarious livelihood by an irregular practice without license in courts not of record, and by the mystifications they threw their 100 THE BEKCS AND BAB cases into gained for themselves the soubriquet of "pettifoggers." The naturalization of aliens was one of the duties of this court, confided to it as a court of record by the laws of the United States, and at every term certificates of citizenship were issued, and in many instances the parties thus naturalized became prominent citizens and busin(?ss men of the county. The first to be naturalized in the present court house were Stephen and Thomas Titcomb of Waterford. The want of system in the care and preservation of the records in the clerk's offices of the several counties led the legislature to pass a statute April 18, 1826, requiring indices of deeds and mortgages to be made and kept in said offices ; and, at the August term, 1827, the court entered an order directing county clerk Thomas Palmer to make such indices. And, on the minutes of the April term, 1842, the following order was given to county clerk Archibald Smith by Thomas J. Marvin, first judge : "Whereas the minutes of the courts of this county not liaving been engrossed on the books of record provided for that purpose for several years past, and it being necessary for the due preserva- tion of such minutes that they should not be left in the form of m re blotters as tiiey now are: it is hereby ordered that the clerk of the county have the said minutes duly engrossed in the said books, and in the manner hitherto practiced in his office." The promptness with which all the records of the county have been properly engrossed and the ac- curacy with which they have been kept for the past thirty years by the veteran clerk James W. Horton OF 8ARAT0&A COITNTT. 101 is the secret of the hold he has upon the people of this county, outside of party lines, and which has caused his repeated re-elections until he is now serving his eleventh term. Another common law jurisdiction of this court was the case of the public fisheries, and I find an order entered at the August term 1830,. forbidding under a penalty of twenty -five dollars, the taking from Saratoga lake, or any of its tributaries, or outlet, of the fishes known as pike and Oswego bass, by any means within three years from April 1, 1831. Similar rules were entered at subsequent terms relative to the taking of certain other choice species of fish, by other means than fair angling, from Saratoga, Round and Ballston lakes and the pond of the Ballston Spa mill company. In the year 1818, congress passed an act pension- ing the veterans of the Revolution, but its terms were such that but a few of them availed themselves of its benefits. Among those who did so was San- bun Ford of Ballston Spa, better known as "old Bona," from his ardent admiration of Napoleon Bonaparte, before the latter had expressed his Im- perialistic ideas. In 1799, Ford an 1 Henry Good- rich were the only Jeffersonian republican voters in Milton. He died in 1848 aged 95 years. Con- gress enacted another pension bill June 7, 1832, granting pensions to the survivors of the war for Independence. It was passed mainly through the eff'orts of oui representative, ex-Speaker John W. Taylor, then serving his last term in the House of 102 THE BENCH AND BAR Representatives, At the ensuing August term of Common Pleas in this county, certificates that they were the persons mentioned in their discharge pa- pers were issued to Col. John Ball, Judge Salmon Child, Major Ezra Buel, Captain Kenneth Gordon, Thaddeus Scribner, Samuel Downing and one hun- dred and twelve other revolutionary veterans. At each subsequent term of tlif' court for several years, these venerable men applied for the sum which a generous government had awarded to those whj had withstood the mighty throes which gave it its birth, i^mong others a certificate was granted to David Goodhardt ; but it subsequently appeared that al- though he had "fought at Saratoga," it was in the legion led from Hesse by the Baron de Reidesel, and his claim which had been the work of an unscrupu- lous claim agent, was thrown out. No blame was attached to the aged German who had been a re- spected citizen here many years, having abandoned Burgoyne's army at Albany, for he was now in his dotage ; but the claim agent had a narrow escape from being "put where he would do the most good." The actions tried in this court were mostly of a light nature, similar to those now tried in the coun- ty court, and no material interest now attaches to either the plaintiffs or defendants in connection with their causes of action, so that the field for sketching the workings of the court is necessarily a limited and barren one. The time now ap23roached when the court was to be abolished with all its ancient SLDcl tioje honored machinery. It went, not OF SAEATOGA COUNTY. 103 "Like the baseless fabric of a vision And left not a wrack behind :" for it still exists in the memories of the upright judges who sat on its bench, and in the recollections of the eloquence of its bar. The constitution adopt- ed by the people November, 1846, went into effect January 1, 1847. The old courts of the state were superseded by the new ones established, which were to go into active work July 1, 1847, and all original suits pending in Common Pleas were transferred to the new Supreme Court, and all pending appeals from justices' courts to the new county court. — Therefore, by the direction of Judge Marvin at the close of the April term 1847, on the twenty-first day of the month, crier Hiram Boss sounded for the last time the ancient form : Hear ye, hear ye, all man- ner of men, this term of the Court of Common Pleas and the Court of General Sessions of the Peace held in and for the county of Saratoga is now ad- journed sine die.'''' CHAPTER IX. CAUSES TRIED IN THE OLD CIRCUIT COURT. The first circuit court held in the present court house convened May 25, 1819, with Chief Justice Ambrose Spencer on the bench. Prior to the adop- tion of the constitution of 1821, the several circuits were successively held by Judges Jonas Piatt, John Woodworth and Joseph C. Yates. By the act of the legislature passed April 17, 1823, under the provisions of the constitution of 1821 the state was divided into eight districts, and no changes were to be made in them during the continuance of this court. At least two Circuit Courts and Oyer and Terminers were to be held annually in each county. The constitution provided that the gover- nor and the senate should appoint a circuit judge for each district, with the same tenure of office as the Supreme Court judges ; who hereafter were to only have appellate jurisdiction, and their number was reduced to a chief justice and two puisne judges. Each of the circuit judges had equity ju- risdiction in his own district as vice chancellor. — Under the authority of the constitution and the statute Governor Yates and the senate, April 21, 1823, appointed tlie following distinguished coun- selors to be circuit judges, viz : Ogden Edwards, OP SARATOGA COUNTY. 105 Samuel R. Betts, William Duer, Reuben Hyde Walworth, Nathan Williams, Samuel Nelson, Enos T, Throop and William B. Rochester. There are no reported cases that were tried at the Saratoga Circuit un'der the first constitution during the time embraced in this chapter ; but the suit brought by Aletta Beekman against Judge Harvey Granger, which was tried May 29, 1821, before Judge Woodworth, is deserving of mention. It was for damages to the real estate of the plaintiff, situated on the banks of Saratoga lake, by the stop- page of the waters in the outlet of the lake, occa- sioned by the mill dam of the judge at Granger- ville. It was claimed that what is now termed the "drowned lands" was caused by such obstruction. James Scott, the surveyor, performed a singular feat of engineering in surveying the lands thus flooded, by rowing over the courses in a skifi". The principle that water will "pile," or accumulate, by reason of obstructions to its natural course did not then obtain credence among hydraulic engineers, and it being proved that the height of defendant's dam was below the level of the surface of the lake, a verdict was rendered for the defendant by the jury, which consisted of James Dunn, Palmer Cady, Preserved Wait, Ezra Starr, Benj. Carpenter, William Jeffords, jr., Thomas Fellows, Luther Landon, John W. Creal, John Gilbert, William Mills and Cornelius Rowley. John V. Henry and James McKown were the plaintiff's attorneys, and Esek Co wen and Wm. L. F. Warren for the de- 106 THE BENCH AND BAR fendant. Tliis question of the "piling" of waters has long been a disputed one among hydraulic engineers. The recent case of Bullard against the Saratoga Victory Company for damages accruing from a stopi)age of the natural How of the waters of the same Fish creek by the defendant's dam was decided adverse to such principle by Justice Lan- don. The Supreme Court of Vermont went to the opposite extreme from that held in the case of Beekman against Granger, when it pronounced the opinion that a mill dam is an obstruction to the natural flow of the stream, even above a "ripple." The first Circuit iinder the new system convened July 28, 1823, with Judge Walworth on the bench. Among the actions tried before him, and in which he enunciated opinions that have since been adopted by the highest courts of the state, and which are still the ruling precedents on the points covered by them, is the suit of James Jackson ex clem. John G. Van Schaick against Peter Davis. S. G. Hunt- ington and A Van Vechten were counsel for the plaintiff, and John L. Viele and Samuel A. Foote for the defendant. It was an action in ejectment brought to recover a part of lot 3 and the whole of lot 4 in the Halfmoon pattMit. Tlie plaintitf pro- duced a lease executed by Christina Van S(3haick and John G. Van Schaick and .^nna his wiA^ to Alexander Br»>voort (from whom the defendant claimed title) dated January 1, 1784, for the term of seventy years at an annual nnital of £4, New York currency. The defendant besides the general OF SARATOGA COUNTY. 107 issue plead adverse possession commencing in 1798, since which time neither Davis nor his grantors had paid the rental, nor had sucl. been demanded. Judgment was rendered for the plaintiff, from which an appeal was taken to the Supreme Court. It is reported in 5 Cowen 123. The judgment was affirmed. Judge Sutherland, who pronounced the opinion, held with the court below that "wlien the relation of landlord and tenant was created, immediately or remotf^ly, the succeeding tenant is bound by the acts of his predecessors as by his own. Mere length of time will not raise a pre- sumption of evidence. Mere non-payment of rent, or non-demand of rent for twenty years will not raise a presumption that the landlord's title is extinguished." At the June Circuit 1824, before Judge Nelson, the ejectment suit brought by James Jackson ex dem. Gerrit Bogart against Eliphalet King was tried with a jury. Kirtland & Huntington were plaintiff's attorneys, and Levi H. Palmer and John L. Wendell were the opposing counsel. This was ' one of a number of suits brought to regain ancestral rights by Gerrit Bogai t, whose wife was the scrand- daughter of Magdalena, or "Peggy" Peltz, who it was claimed was the granddaughter of William Appel, of whom a patent to land in Halfmoon (now Clifton Park) was granted Sept. 10, 1708. The defense in this, and the other suits was adverse possession. The plaintiff's claim of title was sought to be established by proving the 7'ecords of 108 THE BENCH AKD BAR. marriages and baptisms in the Reformed Protestant Dutch clmrch of the city of New York. By this it appeared that one William Appel and his wife had their son Simon baptized May 26, 1695. Mag- dalena, a daughter of Simon, was baptized in 1719. She was married to Abraham Peltz, August 25, 1745. She died in 1795. Bogart's wife was thus the hfthin descent from Appel, the patentee.* The defense objected to this evidence, but it was received by the court. The defense then offered in evidence documents showing that there were two William Appels living in New York in 1695, as tending to show that the Appel mentioned in the church records was not Appel, the patentee. Also, that during the revolution Peggy Peltz told Elsie Van Deusen that all the property she owned was two houses in New York city. At the conclusion of the evidence Judge Nelson remarked that "there were two questions in the case at bar : whether the testimony was competent to prove descent in the plaintiff; and, also, whether there was sufficient in the case to allow it to go to the jury." Both questions he disposed of adverse to the plaintiff, and a non-suit was ordered. An appeal was taken, and a new trial was granted. This case is reported in 5 Cowen, 237. Pending this motion for a new trial, another of these Peltz heirs suits, that of Charles Pioneer against David Schauber was, tried at the June Circuit, 1826, l)efore Judge Walworth. *Fr()ui this Gerrit Bogart is descended William H. B»gart, the well kuown "Seatiael, of the New York World." OF SAEATOGA COUNTY. 109 On lieariiig the evidence the court directed a ver- dict for the plaintiff. It was atfirmed in tlie Supreme Court. The several claimants of adverse possessions to this disputed territory then made common cause against their foe and carried this case to the Court of Ei*rors, where the Bogart- Pioneer claims were effectual]}^ quashed by the reversal of the decision of the court below. It held that if Gerrit Bogart, who was an attorney in prac- tice residing in Schenectady, but sixteen miles from the lands in question, had h(4d a valid claim of title, he would not have suffered it to lie dormant for over thirty years, while the occupants under a show of title were improving their farms. The case is fully reported in 2 Wenddl 1 4. James Jackson ex dem. Thomas Cook against Philip Shepherd, a suit in ejectment involving the validity of a tax sale, was tried at the December Circuit, 1824. JohnL.Yiele, for the plaintiff, sought to establish that the plaintiff make a bona fide pur- chase of lands in Moreau sold at a regularly adver- tised tax sale, and as such purchaser was entitled to the desmesne. Esek Co wen, for the defendant, proved that no demand of the tax was made on the premises, as required by the statute, and that there was personal property subject to distraint thereon at the time of the levy. A non suit was granted by Judge Walworth, which was sustained on appeal, as will be seen by a reference to 7 Coweii 88. At the Circuit held by Judge Nathan Williams in May, 1828, the libel suit brought by Hon. John 5* 110 THE BENCH AND BAR Cramer against Robert Martin and Solomon South- wick was tried. The alleged libel was published in the Albany Daily Advertiser and charged Cra- mer with corrupt practices as a senator. George W. Kirtland associated with him in the prosecution the well known Elisha Williams of Hudson, and the defendants secured the celebrated :idvocate, Samuel Stevens of Salem. They were among the foremost lawyers of that era of great men. Williams was undoubtedly, physically, the heaviest gun, for he weighed over 300 pounds avoirdupois. The case attracted great attention, not only from the dis- tinction of the parties, and the reputation of Messrs. Williams and Stevens as orators, but from the array of witness«'S for the plaintiff to establish a refutation of the charges. It included such men as Elijah H. Kimball, Nicholas B. Doe, George T. Wright, William L. Fish, John C. Spencer, and Ambros(? L. Jordan. The defense placed no wit- nesses on the stand. Mr. Stevens declined to address the jury, but Mr. Williams dealt out to them one of his glittering and eloquent appeals, such as with which he was wont to daze the jurors of Columbia county half a century ago. One of his sentences was the following : "These defendants have brought here before you the most able and eloquent counselor in the state of New York, and this most able and distinguished counselor displays his most admirable eli)qnence by holding his tongue." Williams carric-d the audience and jury with him and secured a verdict for S'^,750 and costs. OF SARATOGA COnN"TT. Ill Cramer wanted but a vindication of his character, and it is said that lie never collected his judgment. The ejectment suit brought by James Jackson ex dem John Haverly against Wm. French which was tried before Judge Cowen at his first Circuit, November, 1828, is noticeable for a certain principle decided in it on its appeal to the Supreme Court, as reported in 8 Wendell 837, Judge Savage deliv- ered the dicta of the court, which incidentally states on one of the points involved, that "the privilege of not divsclosing a communication made by a client to counsel is confined to counselors, interpreters and attorney's clerks ; but that a person present at such communication and in nowise connected with the counsel is bound to testify." Loiterers in attorneys' offices will thus see the awkward positions they might be placed in, and should take no offence at being requested to vacate on the appearance of a client. The opposing counsel were Daniel Cady and Marcus T. Reynolds. Cad_y, for the plaintiff, had a numerical preponderance of evidence at the trial, and the witty and wily Rey- nolds knowing that he would go to the jury heavy on that subject conceived a plan to outwit him. Coming to this point in his '' summing up," he alluded to this discrepancy. To be sure there were five persons who established the plaintiff's case, and hut three who sustained the defendant in his rights. Usually, he would allow, when equal advantages were enjoyed by all the witnesses to know the facts the side having the most was entitled 112 THE BENCH AND BAR to the point, as his Honor would undoubtedly charge. But there are acceptions to all rules. '■For instance, my brother, Wan en (the district attorney) and I tnightditfer as to what this (laying his liand on the ba/e poll of Mr. Cady) is. I should insist that it was a head, as you gentlemen, see that it is. He might declare that it was a squash. We could never reconcile our differences of opinion. We might agree to leave the matter to his Honor, wdio enjoys (Xpial means of observation with us. Now gentlemt^n, if my opponent's argument which he is going to make to you is worth a rush, if his Honor should coincide with brother Warren, I should be orced to yield against my better judg- ment." A burst of laughter followed this sally, in which Cady, the court and jurors joined. Cady did not press that point to the jury and a verdict for the defendant was rendered. CHAPTER X. CAUSES TRIED IN THE OLD CIRCUIT COURT, continued. The ejectment suit of James Jackson ex dem. John G. Van Schaick agamst Peter Davis, detailed in the preceding chapter, and that brought by the same plaintiff against John Vincent, reported in 4 Wendell 633, forms the basis of the established rule of law in this state, as laid down by the Court of Appeals in disposing of the Van Rensselaer "anti- rent" cases, in all their phases. Vincent took a lease from the Van Schaicks, February 28, 1787, for sixty seven years at a rental of £9. The suit was brought in May, 1827, shortly before which time the rent had been demanded and refused. On the trial John L. Viele for the defendant admitted the taking of the lease. Defendant refused, how- ever, to pay the rent because he had taken war- ranty deeds -or four distinct portions of the farm in question from one Ludlow and three other parties, who claimed the land as lying within their allot- ment of the Kayaderosseras patent. On this proof and admission Messrs. Huntington & Van Vechten rested the plaintiff's case. The defendant proved that by a survey made under the act of March 11, 1793, passed to adjust certain difficulties between 114 THE BENCH AND BAR the Halfmoon, Shanondhoi and Kayaderosseras patentees, the land was shown to be within the bounds of the latter' s domain. The plaintiff in rebuttal showed that by that act itself the title of a party who did not sign the petition for its passage was not affected by it in the least. It was con- clusively proven that neither of the Van Schaicks signed the petition. Judge W Uliams, before'whom the suit was brought to trial at the May Circuit, 1828, charged the jury that the lease was priTna facie evidence of title in the lessors, and the defendant having acceped the lease was not to be permitted to deny his landlord's title And that a tenant for years forfeits his term by refusal to pay rent, and by accepting a claim of title from a hos- tile source. The latter being a species of rebellion against his liege 1 jrd. A verdict was directed for the plaintiff by the court. The defendant moved the Supreme Court to set aside the verdict, but it was denied. The action which was brought by Amaziah Ford against Col. James Monroe, a nephew of the ex- president, attracted much attention forty years ago. Monroe was president of the Saratoga & Schenec- tady railroad company, which at the date of this action was in the process of construction, lie resid- ed in the city of New York, and was for scvaral years a season guest at the Sans Souci. A servant of Monroe in driving his gig to the hotel one day in the season of 1831, ran over and killed a young child of Mr. Ford, in the eti-eet in front of that hotel. OF SARATOGA COUNTY. 115 An action on the case was brought by Ford, and tried on the general issue at the May Circuit, 18H3, before Judge Go wen. The court charged the jury that the action Linged on the negligence of the servant. The plaintift" should recover, if he should recover at all, for the services of the child, for the consequent illness of his wife, and for the expenses incurred by reason of the death of the child. A verdict was rendered for §200, which was sustained in the Supreme Court Oran G. Otis was the suc- cessful attorney, and William L. F. Warren, no doubt, fought gallantly at the head of the "forlorn hope'' in this action in behalf of Monroe. The case is reported 20 Wendell, 210. Any of the citizens of Ballston Spa, or others who frequented the county seat, whose memories extend back over the lapse of about forty years, will recollect the "Arcade" built by Harvey Loomis, then proprietor of the Sans Souci hotel and the ' 'Low estate," in Ballston Spa. When the Schenc- tady and Saratoga railroad was chartered and the directors were securing the right of way, Loomis niad'j an agreement with Col. James Monroe of New York, president of the board of directors, giving the company the right of way through the estate for a nominal consideration, and further stipulating that they should stop their cars in front of the Sans Souci hotel. By some means, the latter clause was omitted from the deed of conveyance. This subsequently led to vexatious suits at law. By the article of agreement between Loomis and 116 THE BENCH AND BAR Monroe, the former was to construct an "arcade" building on the north side of the railroad ti-ack across what is now Low street, in which were to be rooms for the accommodation of passengers, for the storage of baggage, and for offices for the use of the company' s agents. Loomis fulfilled his part of the contract, but the board of directors refused to ratify the agreement of their president, and built a pas- senger depot on the west side of Bath street, op- posite where Marsden's hotel now stands, at which point they stopped their cars, instead of in front of the Sans Souci. Loomis then began an action against the railroad company to recover the moneys expended by them in building the "'arcade." The suit was brought by his son Joseph H. Loomis and Cicero Loveridge, his attorneys. AlonzoC. Paige, afterwards the distingu ished judge and attorney, for the company. The suit was brought to trial before Judge Cowen at the May Circuit, 1834. The plaintiff declared in assumpsit^ and the defendant plead non assumpsit. The evidence for the plain- tiff was his agreement with Monroe. The defenge proved by the books kept by their secretary that the proposition made by Monroe was not adopted by the directors, nor was he authorized to enter into such an agreement. Tlie court entered a non- suit on the motion of Mr Paige. Loomis then brought an action against Col. Monroe, individu- ally, to recover his money. A. demurrer was entered and it was argued in the Supreme Court by Mr. Page for, and Mr. Loveridge contra. From OF SARATOGA COUNTY. 117 the p]aintift"s points, as reported in Hoioard' s Appeal Cases, page 22, it appears that he endeav- ored to show that lie offered to give free right of way through his lands to defendant if the company would erect their depot in Ballston Spa in front of his hotel. Defendant agreed that the depot should be so built, and agreed with plaintiff that the latter should construct the same, and that if the company failed to make the payment for it, he would pay the same. The defendant claimed that the under- taking on his part was collateral and not original, and that his promise to pay was without consid- eration. The court held that the pleadings showed no request on the part of defendant to plaintiff to build the "arcade" for him, and sustained the demurrer. An appeal was taken to the Court of Appeals and the decision was affirmed. The final decision is noted in HoioarcT s Appeal Cases page 28. The unlucky "arcade" stood for several years in a dilapidated state, an eyesore to all parties. Its fate, like that of the famous Ephesian temple, was somewhat tragical. The name of the constructing architect in each instance is lost to human ken r ' " The youth who fired the Ephesian dome. Outlives in fame the pious fool that reared it " Erostratus has come down the stream of time as the crack-brained youth who burned the temple, and be it the office of these pages to -ommemorate the name of Thomas Staats, who solved the 118 THE BEN^CH AND BAR "arcade" question by blowing the structure up, or ratler down, with a bhist of gunpowder. The next important case tried at the Saratoga Circuit was the suit brought by Minor S. Lincoln, a gentleman from Boston, against the Saratoga and Schenectady railroad company. This was an action on the case for negligence on the part of the defend ant' s servants. It was tried at the December term, 1837. Messrs. Anson Brown and John W. Thomp- son were attorneys for the plaintiff, and Piatt Potter of Schenectady defended the interests of the com- pany. Lincoln was a passenger on the train from Saratoga Springs to Schenectady August. 31, 1886. A short distance from Ballston Spa the train came in collision with another coming from Schenectady. Plaintiff sprang off the cars and in falling fractured his leg. He was unable to return to his home until the first of December. He proved actual expenses to have been $690, and asked exemplary damages for his long and continued pain, and for his detention from business. Judge Willardin his charge to the jury held that the plaintiff was entitled to recover his actual damages, and tlie}^ must con- sider his loss of reasonable profits of his business, but not any fanciful figures or conjectures as to the same. A verdict was rendr 'd for $8,000 and costs, A motion for a new trial was made in the Supreme Court. It was argued for the motion by Samuel Stevens, and opposed by Nicholas Hill, jr. The motion was granted, the court holding that the negligence of the agents of the company sliould OP SARATOGA COUNTY. 119 have been shown, and that opinions of witnesses as to Lincoln's damages from loss of time was inad- missible. It is reported in 22 Wendell, 425. A compromise was then effected by the company's agreeing to pay $5,000; which Lincoln accepted and the suit was withdrawn. Next we come to the noted "Rector trial," which besides the other points of interest attached to it was probably the only criminal trial in the state, if not in tlie English speaking courts, where a man was tried for his life in the Circuit court, instead of the Oyer and Terminer. The prisoner, Thomas Rector, had previous been tried in the Albany Oyer and Terminer and convicted of murder in the first degree. A new trial was ordered on appeal, and on a certiorari the Supreme Court ordered Rector to be sent to the Saratoga Circuit for trial. Judge Willai'd insisted that he should try the indictment as circuit judge, and did so. The event of the suit p]'e(?luded an appeal from his decision. Accord- ingly at the May Circuit, 1839, Rufus W. Peck- ham, district attorney of Albany county, moved the trial of Rector. He was assisted by Attorney General Willis Hall and Samuel Stevens. The prisoner was defended by Henry G. Wheaton and Ambrose L. Jordan. The notoriety of the case and the ability of the counsel caused the court room to be crowded during the eight days of the trial. After a thorough examination of a long special panel a jury was accepted consisting of David Hodges, Lewis Stone, Lansing HolmeSj 120 THE BENCH AND BAR. Joseph A. Sweet, Pardon Elms, George Thomp- son, Henry Patrick, John Rouse, Charles Patrick, Sylvester Blood, Thomas Arnold, jr. and William Mitchell. Fi om the evidence it appears that between twelve and one o'clock on the night of March 11, 1838, Robert Shepherd and two men named Wilson and Whitney went to a bawdy house in Albany, kept by Georgianna Rector, mistress of the pris- oner. They were intoxicated and Georgianna refused to let them enter the house. They declared that they would go in. The prisoner came to the door, and seizing the door bar struck Shepherd on the front part of the head. fJe fell to the side- walk, and was taken to a surgeon' s and died the next day. The evidence of the surgeons showed that there was a gash on the front of the scalp and that the skull was fractured near the base of the brain. There was no evidence of a second blow. The defense was that Shepherd died from the effects of the fall. Thirty-six witnesses were sworn for the people, and twenty for the prisoner. Among the distinguished surgeons sworn were Drs. March, McISTaughton, A'anderpoel and Peter P. Staats of Albany, and Dr. Valentine Mott of New York. The jury convicted him of manslaughter in the second degree. He was then remanded by Judge Willard to the Albany Oyer and Terminer in which he was subsequently sentenced to states prison for seven years. Rector in his boyhood lived at Court House Hill in this county. The expenses of his trial were borne by his brother, Henry Rector, a OF SARATOGA COUNTY. 121 distinguished architect of New York city. The first trial of Rector and tlie argument in the Supreme Court are reported at length in 19 Wendell^ 569. The result of the trial in this county was owing to the obstinacy of one juror. On their first ballot they stood, I am told, eleven for murder in the first degree, aud the other, the late Judge Stone of Gal- way, for a conviction of a minor crime. Finally the eleven deferred to his judgment, and thus the determination of Judge VVillard to sit solus in a criminal trial w is never reviewed, for Rector was glad to escape with the light punishment he received for his crime. Whether, as probably was the case, it was a clerical error that named the Cir- cuit instead of the Oyer and Terminer in the order changing the venue must ever remain in doubt. 6 CHAPTER XI. CAUSES TRIED IN THE OLD CIRCUIT COURT, concluded. The philosopher of the Trihune in his graphic "Record of a Busy life" gives a full history of the several law suits which his trenchant pen drew upon him. His caustic criticisms of the men and times m which he lived were a terror to thin skinned politicians and nervous writers. Among those suits was the one brought by the well known author of the '^Leather Stocking" series of novels, which tnirty j'ears since commanded great attention in the literary world and gave their author an extensive prominence. J. Fennimore Coop'^r was of a hanghty imperious temperament, and tlie sharp manner in which the Tribune criticized both the man and his literary labors galled him severely. To obtain redress, he coinmenced alibel suit against Horace Greeley and Thomas McElrath, the pro- prietors of the Tribune, laying his damage at $10,000. The suit was brought by his nephew, Richard Cooper, an attorney of great celebrity. The venue was originally laid in Otsego county, the home of Cooper. P^mding a motion to change the venue to the county of New York it was finally stipulated that the cause should be brought to a OF SARATOGA COUNTY. 123 trial before the farmers of Saratoga county. The selection was satisfactory to both parties. Cooper hoped that the impre.ssion made by laying the scenes of the "Last of the Mohicans" in this locality would tell in his favor, for the work was then fresh in the minds of the novel reading public. But Greeley trusted to the reputation he had made among the yeomanry as the editor of the '■'■New YorJief and the ^^Log Gdbinr The reliance that Greeley always placed on the farming community was never misplaced, for it was one of the secrets of the great success of the weekly edition of the Tribune. Having sprung form a race of tillers of the soil he ever recognized the solid worth of their judgments. The suit was brought to trial at the December Circuit, 1842, before Judge Willard. During Greeley's attendance at the court in Balls- ton Spa, he had his quarters at a boarding house kept by the late Chester Stebbins. in the residence now owned by Joseph E. Westcot on Front street. Stebbins had been jailor under Sheriff Jennings, and was noted for his influence with jurors. Although an ardent democrat, he had conceived a strong" attachment H r the great Whig writer, and doubtless lost no opportunity to vent his opinion in public during the trial. The plaintiff's case was opened to the jury in a methodic, straight-forward manner by Richard Cooper. The evidence for the plaintiff, copies of the Tribune containing the articles offensive to the Cooper eyes and ears, was then read to the jury. The defendants offered no 124 THE BENCH AND BAR evidence in mitigation of damages. But Horace Greeley's confidence in his countrymen's love of iustice was never shaken to the end of his life : unless it might have been in that sad hour when his wearied and dazed brain gave way as he compre- hended the duplicity that had been practiced on him when he was a candidate for the highest office in the gift of the people. He managed the case of the defendants in person, and appeared in the trial without the aid of counsel. He opened and closed his case to the jury in a speech abounding in earnest arguments disclaiming the intention of in- juring unnecessarily the reputation of Mr. Cooper, and pleading the paramount duty of indepen- dent journalists to criticise and condemn all that was censurable as being detrimental to the interests of the great public, let the consequences be what they may. His earnest manner, tlie quaint drollery of the man, and his appearance before the jury made him many friends in this county, even among those who strongly opposed his political principles. The great novelist, who had been bred to the bar, and who possessed no mean oratorical talents, fol- lowed and presented his case to the jury in an address full of glowing periods, and triumphantly demanded that the libellers of his fair fame should be mulcted in lieavy damages. As he sat down the opinions of some of the spectators were that the "pion«?er author of American fiction" was the best abused man in the country, and that Greeley and McElrath were the most unblushing blackmailers OF SARATOGA COUNTY. 125 on the face of the earth. Judge Willard charged the jury that as the publication of the alleged libel- lous articles was proven, it was their province to measure the damage done to the reputation of Mr. Cooper. This they did by awardiiig him a verdict for $200 and six cents cost. This was regarded in all quarters as a substantial victory for the great editor. Mr. Greeley' s last visit to Saratoga county was on the occasion of his delivering an address before the Agricultural Society at Saratoga Springs in September, 1869. No one, who in these later years knows the ven- erable John S. Ford of Ballston Spa, and sees him to be a plain, easy going matter of fact citizen, would ever dream that he had ever been the cause, in a perfectly innocent way, of the incorporation of a certain section in the present constitution of this state. That he was, let the following facts demon strate. Mr. Ford has for many years been the owner of the track of land in the east portion of that village known to all the villagers as "Bona's woods." Wishing in the year 1840, in connection with Thomas J. Porter (who was a joint proprietor then with him in the premises,) to improve said lot which did not lay upon a public highway, they sought to open a private road to it through the adjoining close of Thomas C. Taylor. Taylor's agput, Thomas G. Young, refused to grant them the coveted privilege, so they applied to the high- way commissioners of the town of Milton. That nobody entered an order July 24, 1840, granting 128 THE BENCH AND BAR them the proposed relief. Ford and Porter then entered on the lands of Taj^lor and proceeded to lay out the proposed private road. An action in tres- pass was commenced. The plaintiff was repre- sented by Daniel Lord, Jr., and George G. Scott was defendants' attorney. To defendants' answer the plaintiff entered a demurrer tha' the statute authorizing the laying out of private roads was unconstitutional and void. The demurrer was argued before the Supreme Court at Rochester, in October term, 1842 by George H. Mumford of Roch- ester, in support, and Nicholas Hill, Jr., in oppo- sition. Greatly to the surprise of the latter, the unconstitutional feature was sustained by Judges Bronson and Cowen. Chief Justice Nelson wrote a dissenting opinion which is published along with the opinion of the court (which was written by Judge Bronson) in 4 Hill 140. Judge Nelson thought if it was by an oversight not a part of the lex scripta^ it w^as a part of the great unwritten law of the state. He emphatically stated that ours was the only state in the union, if not in the civilized world, that had not a constitutional provision authorizing private roads. Judge Nelson was one of the members of the constitutional convention of 1846, and in that body took an early occasion to remedy this defect in the constitution of 1821, by securing the adoption of the seventh section of the first article of tlie present instrument, from which our courts derive their powers to adjudicate the differences of citizens relative to property. It dis- OF SAEATOGA COUNTY. 127 tinctly points oat the way in which private prop- erty can be taken -or the use of another in a con- stitutional and common sense manner. Thus, wliile Ford's woods still remain in their original sylvan state, his name should be linked with the adoption of this constitutional privilege, which is of so fre- quent application in these days of steam and pro- gress. The case was tried on its merits at the December Circuit, 1844, and the jury assessed the plaintiff's damages at twenty dollars. A subse- quent survey showed that Taylor's fence was inaccurately placed upon the highway line and that Ford and Porter's land had a frontage on the same of about thirty feet. This rendered a resort to the new constitutional provision nugatory. A feature connected with this case may be cited to " illustrate the wide difference in the expense of liti- gation under the Code, as compared with that under the old Common Law practice. In these days when we read of fees ranging from $500 to $10,000 for arguing a case before the Court of Appeals, one may well be astonished to learn that Mr. Hill's fee for liie argument of this case was only floe dollars. In 1841, the heirs of Peter R. Kissam, by John Brotherson, their attorney, began a suit in eject- ment against James Jones and others to recover two eighty acre lots in the fifth allotment of the patent of Kayaderosseras, and lying within the bounds of the present town of Clifton Park. Kis- sam was a descendant of Peter Rutger, who inher- ited the estate of Adrian Hooglandt, one of the 128 THE BENCH AND BAR original patentees, and succeeded to the title of the lands in question by inheritance from him. It was alleged that Kissam died seized of the title and that it thereupon descended upon to the present plain- tifts. The suit thus brought was destined to occupy the attention of the Circuit and Supreme Courts and the Court of Appeals for over thirty years. The defendants who occupied tie premises under show of title from Noah Taylor, made a vigorous defense of their rights, as they claimed. The lots in ques- tion were designated as "a" and "b." The vil- lage of Jonesville is built upon the former. Upon the first trial, before Judge Willard, it appearing that the defendant had been in possession since 1797, a nonsuit was entered. The higher court sent it back for a new trial, holding that a jury must pass on the question of adverse possession, it b.4ng a question of fact. In 1845, Jones having sold the premises to Elisha G. Shepherd, each of the heirs brought a new suit against him. We will follow the history of that in which Eliza A. Vrooman was plaintiff, as giving the details of these protracted suits. Peter R. Kissaii^died in 1799. His daugh- tei, Catharine, married Philip Brotherson in 1801, and was the mother of the claimants. At the date of her marriage she was under twenty one years of age. She died in 1822, and Brotherson in 18.14. Taylor had purchased the lands from William Bray ton in 1797 and sold them to Jones about 1800, and died in 1802. The courts held that if Taylor did not sell until after September, 1801, the statue of OF SARATOGA COUNTY. 129 limitations would not run against Mrs Brothersou during her coverture, and that her husband had a life estate in the property. After his death other suits were brought, making nineteen in all, each heir claiming 1-100 of the lands in dispute. Al- though the defendants and their ancestors and grant- ors had been in possession for half a century they were liable to lose their land, because this decision settled that a wife' s coverture worked against;adverse possession. It also exploded two other popular delusions : viz. that a party must have a deed in order to secure title by adverse possession ; and, also, that if a party has been in possession for twenty years under a deed, the title becomes per- fect. Several very old gentlemen were sworn, and their recollections as to the Taylor- Jones purchase were very conflicting. With such evidence three juries found in favor of the plaintiff. Two verdicts were set aside, but that rendered at the September Circuit, 1861, was sustained, and a hnal judgment was entered in Saratoga county, July 12, 1875, by a remittitur from the Court of Appeals, awarding Mrs.Vrooman $490 as her portion of the value of the real 'estate in suit. Shepherd and Mrs. Vroo- man are both dead, and proceedings are pending between their representatives to offset Shepherd's costs in former suits against her judgment. Suits brought by the other heirs against Shepherd and Eliphalet King are yet pending in various stages. Brayton's title on which the defendants relied was founded on an unrecorded deed from Benjamin 130 THE BENCH AND BAR Kissam to him, dated 1794. Benjamin Kissam was a brother of Peter R. , and a co-heir in the estate. He was a noted New York lawyer of the last cen- tury. Alexander Hamilton studied law in his office. He was an ancest(5r of Gov. Hoffman. This deed was found in a garret in Jonesville, after the first suit, and the plaintiff's stoutly maintained that it was bogus, for, if genuine, it was fatal to their case by supplying the missing color of title on which to base adverse possession in the defendants in the several suit^% The plaintiff's were represented by John Brotherson, William McMurray, William Hay, Daniel Cady, Azor Tabor and other distin- guished lawyers. The defendants had the services of Chesselden Ellis, David Buel, John K. Porter, I. C. Ormsby and Gen. Bullard. All the original parties are dead, and also many of the second gen- eration ; and death has made several inroads into the list of counselors engaged in it. But this legal duel of over thirty years duration has been mainly conducted by Messrs. Brotherson and Bullard. The constitution of 1846 having dissolved the Cir- cuit Court as it then existed, on the 26th of May, 1847, Judge Willard dismissed the term, and Mr. Horton made the following entry in concluding the minutes: "Court adjourned sine die. The last term lield under the old constitution." CHAPTER XII. THE SARATOGA BAR UNDER THE OLD CONSTITUTION. The officers and private soldiers of the famous Seventy- ninth Regiment Scotch Highlanders are wont to boast that though they may not individually have performed acts of valor on the ensanguined field, yet never has their plaid been dishonoi-ed in an}'- of the battles of the last two centuries where it has railed to the charge under the banner of St. George. At Fonteno3^ and Blenheim, on the Span- ish peninsula and at Waterloo, on the Crimea and before Lucknow their pibroch sounded the blasts of victory, and as the soldier of to-day reads the tales of the brave deeds of his predecessors under the folds of the regimental colors he resolves anew to emulate their valor. So should the present members of the Saratoga county bar as the}'' read the life stories of the ear- nest men of by-gone days who gave to it a state and national reputation nerve themselves anew to devote their whole energie^ to their noble profession. As we have followed the history of the courts, we have read the mmes of the intellectual giants who have plead at its bar. Since the era of the present court house we have noted the distinguished counselors 132 THE BENCH AND BAR. who have appeared on the minutes in connection with trials had in the several courts. But there still remain others of whom our county should be proud, who entered upon a successful practice after an admission of our Common Plea. By the rules of the old practice attorneys' clerks had to serve a full apprenticeship of seven years to the law before they could aspire to admission to the bar of the Supreme Court. A college diploma was afttu'wards decreed to be a substitute for four years of this course of study. Those who did not thus take the classical door could enter the forum through a term of five years served in practicing acceptedly at the bar of Common Pleas until they were sufficiently educated in the law to entitle them to the degree of attorney and counselor. By refer- ence to the roll of admission of attorneys to the Common Pleas bar in this county and the minutes of the several courts it will appear that in the first decade after the building of the court house in Ballston Spa the leading attorneys were Azariah W. Odell, Samuel Young, Alpheus Goodrich, Gran G. Otis and Thomas Palmer of Ballston Spa ; Richard M. Livingston of Schuylerville ; William L. F. Warren, Aaron Blake and Esek Cowen of Saratoga Springs ; Joshua Bloore, Joshua Mande- ville, Nicholas B. Doe, Geoige W. Kirtland, John L. Viele, Samuel G Huntington and the Van Schoonhovens of Waterford ; Wessell Ganzevoort and the farmer lawyers, William and John Met- calf, of Northumberland ; and George Palmer of OF SARATOGA COUNTY. 133 Stillwater, At the January Common Pleas, 1823, on motion of Mr. Huntington, William Hay, jr., of Glen' s Falls, was admitted to our county bar. He subsequently removed to Ballston Spa and afterwards to Saratoga Springs, where he took and maintaitxed a front position in the legal profession. At the April term, 1824, Judiah Ellsworth and John L. Koon took the oath of office as attorneys. Mr. Koon was a cousin of Dr. Morgan Lewis of Ballston Spa, and of the late John Lewis of Schuj'^- lerville. He was famous for his great muscular strength. He had an office for some years at Nassau, and was district attornej^ of Rensselaer county from 1836 to 1839. He afterwards removed to Albany, where he practiced law until his death. Mr. Ellsworth was a successful lawyer at Saratoga Springs for many years and was quite noted as a whig politician. He was appointed examiner in chancery in 1828 and mastei- in 1832, and repre- sented the second district of this county in the leg- islature of 1860. He is yet a hard working lawyer living at Luzerne, Warren county. In April, 1825, Tayler Lewis of Fort Miller was admitted. From the minutes it appears he soon gained a good prac- tice, which, however, he relinquished and became Prof. Lewis of Union College. The law lost an able and eloquent advocate in giving to the held of Itelles lettres the first American Hebrew scholai- of the age. Michai;! Hoffman, the Ajax of the Her- kimer county bar, v^ as a native of Halfmoon and in the early professional career practiced in this 6* 134 THE BENCH AND BAR county. Alvan Worden, of Ontario county, was a native of Milton. After an admission to the bar in this county he removed to the western part of the state, where he' attained popularity and fame. He was a member of the legislature for several years, and served in the (constitutional convention of 1846. At the April term, 1826, Anson Brown and Clark S. Grinnell were sworn as attorneys. Mr. Brown entered upon a good practice in Ballston Spa. In 1838, he was selected to congress, and died June 14, 1840, at the early age of 40 years. Mr. Grin- nell enjoyed a line tield for practice in this and Fulton counties, living at Northampton, after his removal from Providence. The name of Judge Deodatus Wright appears as his having been admitted in 1827. (I learn, incidentally, that Judge Wright while a student at law tried a cause in the old court house, by the grace of the court, previous to 1816.) While living in Albany he attained a wide celebrity both as a jurist and an advocate. Few ai'e aware, however, that he was a native of Charlton in this county. Chesselden Ellis of Waterford, afterwards member of congress, was admitted in April, 1829, and Judge Thomas J. Marvin in August of that year. At tlie April term 1830, on exhibition of their certificates from the Supreme Court Nicholas Hill, jr. and John W. Thompson were sworn as attorneys in this county. Mr. Hill began his practice at .Amsterdam, and soon after removed to Saratoga Springs. After several years he established himself at Albany as OF SARATOGA COUNTY. 135 a member of the eminent legal lirm of Hill, Cagger & Porter. Mr Thompson began the practice of the law under favorable auspices. He was surrogate of th(:! county for tliirteen years from 1834. For many years he li is been engaged in banking as president of the Ballston Spa National Bank. Older members of the bar and other citizens of the county will remember the eccentric George T. Wriglit, "Orator," of Clifton Park, who was admitted in 1831 on proof of loss of his certificate. Judge John A. Corey and James B. McCrea were received at the bar in December, 1831, and Sey ■ mour St. John, afterwards a judge of Common Pleas, in April, 1832. On the twenty-ninth day of August, 1833, on report from his examiners, Messrs Brown and Kirt- land, William iVugustus Beach was admitted to practice and signed tlie roll of attorneys. He early took a front position at the bar of the Supreme Court, to which he was in du^^ time admitted, and whether as a member of the successive legal hrms of Beach & Bockes, Saratoga Springs ; Beach & Smith, Troy ; or Beach & Brown, New York, he has ever been considered one of the most gifted sous ol Saratoga county. In A ugust, 1834, Cicero Love- ridge and Joseph W. Loomis entered the forum. After practicing for several years at th-:; county seat Loomis removed to Syracuse. In April, 1834, Benjamin H. Austin and James M. Andrews of Saratoga Springs were admitted after due examin- ation. Mr. Austin removed to Butfalo, but Mr, 136 THE BENCH AND BAR Andrews remained at Saratoga Springs, leading a rural life rather than one of devotion to his early profession. At the December term of the same year, George G. Scott of Ballston Spa was admitted on certificate from the Supreme Court. He served on the bench of Common Pleas from 1838 to 1841, when he resigned and resumed to the practice of his profession, which he as since continuously fol- lowed. He has been twice member of assembly, has served one term in the state senate and for sev- enteen successive years has been supervisor of his native town. In December, 1836, Sidney J. Cowen and Abel Meeker were examined and admitted to practice. Mr. Cowen was a young man of signal ability, and his early death robbed the bar of one of its bright- est ornaments. Mr. Meeker served as a magistrate several years in Ballston, and is now a resident of Rochester. John C. Hulbert, Richard B. Kimball and Thomas Rogers also sustained a good exam- ination and were sworn as attorneys. Hon. Martin I. Towns(3nd of Troy, made his tirst appearance in our county courts at the same term. Mr. Hulbert has since been surrogate and county judge, and Mr. Rogers, (who was a step- son of Judge Cowen) took a prominent position at the Iowa bar. Mr. Kimball, after a few year's practice at Waterford, removed to New York and turned his thoughts into the more congenial lield of literature. Several excellent novels have emanated his pen, of which •"St. Leger" is the most generally known at this OF SAKATOGA COUNTY. ' 137 day. His brother, Elijah H. Kimball, was a mem- ber of the legal lirm of Doe & Kimball for several years, and then gravitated to the metropolis where he took quite a prominent place at the bar. At the August Common Pleas, 1888, Cyrus K. Corliss and Orville J. Harmon took the official oath. Mr. Har- mon has since bee.i Recorder of the city of Oswego. For several years he has been deeply interested in Sunday school work. At the April term, 1839, 'John ,K. Porter and William T. Odell presented their certificates from the Supreme Court and were admitted in Common Pleas. Mr. Porter entered immediately on a lucra- tive practice in Waterford. Several years later he removed to Albany, having formed a law partner- ship with Nicholas Hill, jr. and Peter Cagger. Having twice been elevated to the bench of the Court of Af)peals he, in each instance, resigned his seat and returned to his large professional duties. He now resides in the city of New York, and, as a member of the legal firm of Porter, Lowry, Soren and Stone, his clientage is probably one of the best in the country. Perry G Ellsworth was admitted to the bar of this county in December, 1840. A few years later he removed to Plattsburg, where he was elected county judge of Clinton county. Subse-^ quently he made -his residence in Ithaca and has sii ce served a term as judge of Tompkins county. Gen. Edward F. BuUard's experience as a lawyer dates back to April, 1841, having been admitted at the same time with Callender Beecher, Orville 138 THE BENCH AND BAR Chittenden and William T. Seymour. Mr. Beeclier was one of the ''Argonauts of '49," and early fell a victim to the malarial fevers of Colifornia. Another gifted son of Saratoga who fell a victim to the "Cali- fornia fever" was John H. Beach, a brother of Wil liam A. Beach. He died in San Francisco in 1850, and his remains lie in the Yerba Buena cemetery. He was a young man of excellent talent. Mr. Chit- tenden has since served one term as surrogate of Albany county. Mr. Seymour turned his attention to banking and was for many years cashier of the Saratoga County Bank at Waterford. He was sheriff of this county in 1852-3. At the August term, 1841, Francis S. Waldron of Waterford was admitted to practice. He formed a law partner- ship with John K. Porter which continued until the latter' s^removal to Albany. Mr. Waldron is a gentleman of quiet habits, retiring manners and of a literary turn of thought. Possessed of a fair for- tune, he devotes his time rather to study than the practice of his profession. Nevertheless he has a clientage who place strong reliance on the sagacity and soundness of his counsel. Among the sons of Saratoga county ^^ ho have gained distinction at its bar and conferred renown on it in return is Judge Augustus Bockes, who was admitted after examination in due form at the April term of Common Pleas in 1842. The late Thomas G. Young, and Henry W. Merrill of Saia toga Springs, and Stephen P. Nash, now of New York city, were admitted in August, 1842 ; and J. OF SARATOGA COUNTY. 139 Oakley Nodyne, and Jacob W. Miller of Cohoes signed the roll in December of that year. Mr. Nodyne was at one time editor of the Ballston Journal, and afterwards removed to Brooklyn. Col. Miller established an office in Cohoes, in which the author served his clerkship. He was a man of good talents and was deeply read in the law. Col. Benjamin C. Butler and David Maxwell are now popular summer resort hotel keepers at Luzerne and Corinth, N. Y., yet, nevertheless, tliey are both entitled to practice before the bar of justice ; Butler having been admitted in xlugust, 1843, and Maxwell in December, 1845. Aaron B. Olmstead of Saratoga Springs, dates his legal practice from December, 1843, and the late Franklin Hoag of Oil City, Pa., and Augustus Haight, now of Oshkosh, Wis. , were admitted in April, 1844. The late John Lewis of Schuylerville, and John Brotherson were admitted to the Common Pleas in April, 1845. The latter on his certificate from the Supreme Court, he having been in practice for several years previous in Schenectady. Since that date he has made his lioiiie in Ballston Spa. Mr. Brotherson enjoys an equally good reputation as a lawyer and a fox- hunter— never leaving the chase until the brush adorns his game pouch, or he has eftectually holed liis adversary. • Major Patrick H. Cowen and the late Hon. John H. White of Saratoga Springs, United States Com- missioner John T. Lamport of Troy, and the late Samuel H. Cook of Ballston Spa, were admitted on 140 THE BENCH AND BAR tlie report of the examining coinniittee in Septoni- ber, 1845. Ex speaker Truman G. Younglove of Crescent, was made an attorney at law in April, 1846 ; and on examination at the September term of that year Murray Hubbard of Waterford, and Nathan J. Johnson of Ballston Spa, were admitted to practice in Common Pleas. Mr. Hubbard prac- ticed law for several years successfully in Cohoes, and then became cashier of the Cohoes bank, which position he yet retains. Mr. Johnson has since been a professor in Fowler's law school and Judge of Fulton county. He served gallantly as a regi- mental and brigade commander in the late war, as his honorable wounds attest. The last class exam- ined and admitted was in the December Common Pleas, 1846. It consisted of Albert A. Moor, John A. Bryan, William E. Castle, Amos S. MaxA\(41, William C. Tibbetts, Charles R. Sanders and Isaac C. Ornisby. Mr. Moor is now a manufacturer living in Greenwich, Washington county ; John A. Brj^an is a member of the legal lirm of Therasson & Brj^an, New York city; William E. Castle was a cousin of Hon. Wm. A. Beach, and is since deceased ; as is also William C. Tibbetts, who was a son of the late Dr. William Tibbetts, of Mechan- icville. Mr. Ormsby is the present district attorney, whose fitness for that important offi(;e and his popu- larity are attested by his repeated re elections by the people. At this point, it is proper to digress from the chronologi(;al order and bear testimony to the OF SARATOGA COUNTY. 141 merits of a son of Saratoga and a talented member of our early bar. Hon. Jolin W. Taylor was born in Bal'ston, (now Charlton) March 26, 1784. He was the son of Judge John Taylor. After gradua- ting from Union college in 1803, he studied law and established an office in connection with Samuel Cook at Court House hill about the year 1806. They afterwards embarked in the lumber trade and Mr. Taylor removed to Jessup' s Landing in Hadley, (now Corinth) to superintend the business. In 1811, he was elected to the state assembly and was re-elected the next year. In the fall of 1812 he was chosen to represent the eleventh district (Sara- toga county) in the thirteenth congress. He re- moved, soon after, back to his former residence, and in 1819 to the house now occupied by. Justice John Brown in Ballston Spa. He was elected to congress for ten consecutive terms. Mr. Taylor was twice chosen speaker of the liouse of represen- tatives ; ilrst of the sixteenth congress, in 1821, for the second session to succeed Hon. Henry Cliy, who had resigned his seat ; and, again, in 1825 of the nineteenth congress, for the full term. In 1840 he was chosen state senator and served until August 19, 1-842, when he resigned. He subsequently removed to Cleveland, Ohio, where he died Sep- tember 18, 1854. His remains are interred in the cemetery at Ballston Spa, and a plain slab, mod- estly inscribed with his name and dates of birth and death, marks the last resting place of the venerable statesman, who was the only citizen of New York 142 THE BZ>'CH AXD BAR who ever held the third place io our griremment. The interests of non-resident clients drew to the courts of onr county the legal talent of the other counties of this state. In addition to those men- tioned in th<:^ preceding chapters in connection with the suits in which they appeared, the following sentlfmen mar be mentioned, many of whom piined a world-wide celebrity at the bar. and others who hare sat on the bench and administered justice un- der the laws with credit to themselves and signal honor to thr state. From Albany came Joseph ^V. Paddock. James Edwards. Israel Williams, Henry C. Whelpley. and Bradford R. Wood ; Schenec- tady sent Edward Yates. Archibald L. Linn. Ste- phen A. Daggett. Alex. C. Gibson and Demetrius M. ChadseA' : Rensselaer countv sent from Trov Job Pierscn, David L. Seymour. Judge George Gould, Cornelius L. Tracy, Gardner Stow. Fran- cis N. Maim and Enoch H. Rosekrans Judge Stow was a native of Moreau. and with Dr. Billy J. Clark and R»-v. Lebbeus Armstrong formed the first temperance society in this county. He was some time district attorney of Essex county, and afterwards removed to Troy. He was appointed attorney general in 1853. by Gov. Seymour. The two latter are natives of this county ; the former of Miltf>n and the latter of Halfmoon. Judge Rose- krans subsequently r^'moved to Glen* s Falls, whence, also came Ira A. Paddock, Halsey R. ^Ving, Isaac Mott and Orange Ferriss. From Chester. Warren county, came ^Norman Fox. who afterwards en.tered OF SARATOGA COUI^TY. 143 the ministry and was for many years pastor of the Baptist church at Ballston Spa. From Amsterdam came Clark B. Cochrane and David P. Corey ; from Sandy Hill, Roswell Weston, Joseph B. Lathrop, Orville Clark. Charles Hughes and Henry B. Nor- thrup : from Johnstown, James McXeice, Duncan M cMartin, Mclutyre Fraser and Horace E. Smith ; from Poughkeepsie, Richard D. Davis and John V. N. Radcliffe ; from Rochester, Judge Samuel L. Selden, George G. Munger and Nathaniel Bacon. Judge Bacon was a native of Ballston. He ulti mately removed to Niles, Michigan, where he ranked as an able jurist. Dudley Burwell of Little Falls (who married the eldest daughter of Colonel Samuel Young, and is but recently deceased), Mar- cellus Weston of Broadalbin, John C. Spencer of Canandaigua, John Cochi-ane and Erastus Benedict of New York, also were among those who have stood before juries of Saratoga county under the old constitution and presented their client's cases with all their powers of eloquence, argument and casi:iistry. With this chapter closes the history of our courts under the old constitution. The old practice with its interminable inventory of pleadings from the declaration to the surrebutter, its legal fictions and feigned issues, passed away July 1, 1848, and the imagin^^d simpler forms of the ''Pleadings under the C<:»de of Procedure" took its place. Wher-in is the improvement will be better told in the twen- tieth century, by which time the successive legisla- 144 THE BENCH AND BAE. tures will have amended the "perfect code," until it will resemble the wonderful pair of stockings, which the old lady made to serve her husband for fifteen years by knitting new feet every spring and new legs every other winter. CHAPTER XIII. CRIMINAL TRIALS UNDER THE PRESENT C0N8TITU- TION. The legislature acting under the provisions of the new constitution passed an act May 12, 1847, pro- viding for" the several courts, civil and criminal. First, theie was to be the Court of Impeachment, consisting of the Lieutenant Governor, state senate and Judges of the Court of Appeals. Secondly, there was created the Court of Appeals, consisting of four judges to be elected by the people and four judges designated from the justices of the Supreme Court. Thirdly, the Supreme and Circuit Courts, to be held by the thirty-three justices of the Su- preme Court. Fourthly the County Court, to be held by the county judge. Fifthly, the Court of Oj'-er and Terminer to be held at the times appointed for holding Circuits, by the presiding justice of the Supreme Court, with the county judge and two justices of the peace designated by the people at the annual elections to hold Courts of Sessions. Sixthly, the Courts of Sessions to be held at the same. times designated for holding County Courts, by the county judge and justices of sessions. The new Criminal Courts succeeded to the powers and duties of their respective predecessors, with the 7 146 THE BENCH AND BAR right of appeal from their judgments first to the Supreme Court at General Term, and ultimately to the Court of Appeals, by bills of exceptions, writs of error, or certiorari. The jurisdictions of the Court of Appeals, Supreme, Circuit and County Courts will be noticed in the succeeding chapter devoted to civil causes tried in our county. Hon. Augustus Bockes of Saratoga Springs, having been elected county judge at the special election held June 7, 1847, to elect the new judiciary of the state, the first County Court and Court of Sessions was held by appointment September 2(), of that year, with justices William T. Seymour and Abel A. Kellogg assisting in the latter. John Law- rence, the newly elected district attorney, appeared as public prosecutor. No criminal trials were held at this term. Neither were there any had at the first Oyer and Terminer held by Justice AlonzoC. Paige, County Judge Bockes and Justice of the Ses- sions Seymour, in November following ; or, at any of the succeeding terms of these courts until the August Oyer, 1848. I'liis term was presided over by Hon. John Willard, who had been elected a justice of the Supreme Court, for the Fourth dis- trict, along with Daniel Cady, Alonzo C. Paige and Augustus C. Hand. Thomas Hynde was brought to trial for arson in the second degree for setting fire to and burning the cotton mill of James V. Bradshaw, on the Anthony's kil, near Mechanic- ville. District Attorney Lawrence appeared for the people, and Messrs. Amos K. Hadley and W. OP SARATOGA COUNTY. 147 H. King, of Troy ; Deodatns Wright, of Albany ; and G. W. Kirtland, of Waterford, for the prisoner. It was a case of circnmstanMal evidence against tlie prisonei', who was a discliarged employee. He succeeded in proving a satisfactory alibi, and was acquitted. At the February Oyer, 1849, the Water- ford and Whitehall Turnpike Company was in- dicted and convicted for maintaining a common and public nuisance. The conviction was affirmed by the Supreme Court, and its opinion is reported in 9 BarhouT 160. This company was subse- quently indicted for the same oftense by several grand juries, but continued to neglect to observe the statute in all respects, except the collection of tolls, until in 1863 a mob tore down their remain- ing toll gate, near Waterford, and then it yielded its ghost of a claim to exact taxes from wayfarers for passing over a highway they entirely neglected to keep in proper repair. In its later years it was known as the Stillwater and Waterford turnpike. The October term of that year was held by Jus- tice Amasa J. Parker of Albany. The Talmadge murder trial next in the chronological order, demands our attention. John Talmadge in May, 1849, and for several years previously Owned a farm in Malta ; the Round Lake Camp Ground Association now owning a portion of said farm. A highway from Maltaville to the East Line pass- ed through his farm and by his residence, inter- secting the Rensselaer & Saratoga railroad about twenty rods north of the house. The railroad ran 148 THE BENCH AND BAR through the length of his farm, and a previous owner had agreed with the original directors to bnild the fences along the track, in perpetuity. This obligation Mr. Talinadge resisted, and the courts subsequently upheld the position taken by him. (The legislature passed an act March 27, 1848, directing that all railroad companies should fence their tracks and maintain cattle guards at the high- way crossings. In the Saratoga county court in 1849, Judge Bockes held in the case of Waldron against the Rensselaer & Saratoga railroad, re- ported in 7 BarhoiiT 390, that said act was not inconsistent with existing charters, and that rail- road companies were liable for cattle killed by their locomotives where they had entered upon the track by reason of the failui-e of the company to comply with this law. This principle was confirmed in the Supreme Court in 1850.) His cattle wandered on the railroad, through the fences, which neither party would repair, and were killed by the locomotive. He brought suit and recovered judgments for their value. This naturally led to acrimonious dis- putes between him and Leonard R. Sargent, super- intendent, and Asher Young, track master of the railroad. Such was the state of affairs, when on the morning of May 22, 1849, a locomotive attached to a northern bound train ran off the track at Tal- madge's crossing. The engineer, William L. Dodge, of Green Island, sustained injuries to his head, which caused his death, at the residence of his uncle, David Cory in Ballston Spa, June 1. OF SARATOGA COUNTY. 149 The cause of the accident was at once attributed to the owner of the farm by one Joseph Pliayre, a former laborer for Talmadge, but who had been discharged by him. He told Young that Talmadge had threatened to run the cars off the track. On his oath and other circumstances surrounding the case, Talmadge was indicted for the murder of Dodge at the August Oyer, 1849. He was brought to trial the following December before Hon. William B. Wright, justice of the Supreme Court of the third judicial district ; Judge Bockes and justices Kellogg and Seymour. District Attorney Lawrence was assisted in the prosecution by Henry G. Whea- ton and William A. Beach. George G. Scott prepared the defense, and was assisted at the trial by James B. McKean, William Hay, John K. Por- ter and Nicholas Hill, jr. So great an array of legal talent is seldom gathered in a court house to conduct a trial, even when the momentous issue of life and death is pending. After an exhausting search a jury was impanneled. The witnesses SAvorn for the people were L. R. Sargent, Thomas Collins, George Balfrey, William B. Harris, James Swartwout and Joseph Phayre. The important wit- ness was Balfry, who testified that he had landed in Quebec on a certain day and was on his way to Troy in search of work. On the twenty-second day of May, 1849, he was walking on the railroad near Talmadge' s crossing, and feeling tired, had sat down in a clump of bushes to rest. While there he saw Talmadge drive a stone into the space allotted for 150 THE BENCH AND BAR the flange of the wheel between the rail and the planks in tlie crossing. Before he could give the alarm the accident happened. This made a direct case for the plaintiff, it being supplemented by the testimon}^ of Phayre that he saw Baifrey on the track near East Line on the day in question. But Judge Scott had been indefatigable in his efforts to save Talraadge from his perj iired accusers. During the time that had elapsed after the sitting of the grand jury, he had been to Quebec, and ascertained at the quarantine that no such person as Baifrey had landed there at the time specified. He then went to New York and found that a man of his personal statistics had landed at Castle Gar- den three days after the accident. He traced him to Albany, and there found him in communication with Phayre. He had the evidence in court to establish that this was one of the most glaring attempts to secure a judicial murder by perjury that ever disgraced a calendar, not excepting the trials of the Irish rebellion cases of '98. To the credit of Messrs. Lawrence, Wheaton and Beach, it should be stated that as soon as they becam;^ con- vinced of this during the cross examinatioi of Phayre by Mr. Porter, they refused to be parties to the infamous outrage on a citizen of hitherto un- blemished reputation. The following is the entry on the minutes : "The counsel for the people having abandoned the prosecution, the jury under the charge of the court, without retiring, sa}' that they find the prisoner not guilty." This was done OF SARATOGA COUNTY. 161 amid the plaudits of the large audience which was not restrained by the court for some minutes. Judge Scott, also, had evidence at hand to prove a com- plete alihi. District Attorney Lawrence immediately ordered the arr'-st of the perjured Balfrey, alias Parker, and Phayre. They were indicted in February, and at the October Oyer, 1850, Parker plead guilty and acknowledged that he was suborned by Phayre and Asher Young. Phayre plead not guilty, but was convicted. They were each sentenced by Judge Paige to ten years at Dannemora. Young, fearing a trial and conviction for subornation of perjury on the confession of Balfrey, committed suicide by getting on a hand car at East Line, September 10, and running it toward Ballston Spa in front of an approaching train. He was struck and killed instantly. Dodge, the dying engineer, stated that the accident was owing to the speed at which he was running the engine at the time, causing it to bound on the track. The locomotive was after- wards named the "Wm. L. Dodge" and ran on the road for many years. Mr, Talmadge was nearly ruined, financially, by this dastardly attempt on his life, but is now a prosperous manufacturer of chemicals in the city of New York. John S. Clarke, the counterfeiter, was again indicted in 1849, but as before escaped convi 5tion, by some undefined process ; but at the June Oyer, 1861, before Judge Hand, Luther Cole, one of his pupils, was convicted and sent to stated prison for 152 THE BENCH AND BAR a term of five years. Suffering-, as did several other young men, for an alleged association with this slippery manufacture and wholesale dealer in the "queer." At the June Oy^r, 1850, an individual wlio liad stolen a pony team, wagon and har.iess from Wil- liam H. Wendell in Ballston Spa in the autumn of 1848, was brought to trial. He was arrested with the team near Kingston, N. Y. He gave only the name of "Unfortunate Johnny." So he was in- dicted and convicted, on a plea of guilty, under the alias of "John Misfortune." Judge Hand admin- istered to him a five year' s sentence to states piison, with the advice to never again disgrace the name he had so effectually endeavored to conce al. Other and unimportant trials occupied the attention of the criminal courts until in 1854, when District Attorney William T. Odell secured the indictment of Henry J. Chandler for the murder of John Hall at Saratoga Springs, January 31, by stabbing him with a knife. He plead guilty to manslaughter in the first degree at the June Oyew The plea was accepted,and Judge Had senntenced him to a fifteen years term in states prison. Nearly all of my readers will remember the case of Sol Northrup, a colored man, whose kidnap- ping from Saratoga Springs, March 10, 1840, his sale in the slave pen at Alexandria, Va., and his twelv(^ weary years in bondage in Avoyelles parish, Louisianaj are graphicall}' describ(>d in his book, "Twelve Years a S'ave." In the summer of 1854, OF SARATOGA COUNTY. 153 Alexander Merrill and Joseph Russell were arrest- at Gloversville and coafronted with Northrup, who had recently been released through the eltbrts of Hon. Charles Hughes and Henry B. JNorthrup of Sandy Hill. They were indicted by our grand jury in October, 1854. Their counsel, Messrs. John S. Enos, William Wait, Clark B. Cochrane and Wil- liam A. Beach, interposed a demurrer to those counts in the indictment which alleged the selling of Northrup as a slave, as having occurred at a place foreign to the jurisdiction of the state. The demur- rer was sustained by the Gfeneral Term, which held by Judge C. L. Allen, that to attempt to give the state jurisdiction on those counts was repugnant to the sixth amendment to the constitution of the United States. This decision is reported in 2 Par- kef s Criminal Reports^ 590. This narrowed the the issue down to the kidnapping charge, but, be- fore the indictment was brought to trial, Northrup again disappeared. What his fate was is unknown to the public, but the desperate kidnappers no doubt knew. A nolle pros, was entered in their case in May, 1857, by District Attorney John O. Mott. The Court of Sessions had had plenty of business sent to it from the Oyer and Terminer for several years, about this time, by nuuierous indictments being found by the grand jury, through the eltbrts of the Carson League, to destroy the trade in ardent liquors. The so-called '' Maine Law," which took effect July 4, 1855, led to an increased effort to 154 THE BETTCH ATfD BAR sn^Dpress the sale of intoxicating drinks. The con- stitutionality of this law was attacked by liquor dealers. It was sustained by the Supreme Court at several General Terms, noticeably at that held in our court house in December, 1855, by Justices Allen, James and Bockes. One Frank Quant came into court, (m a writ of error from the Montgomery county Special Sessions, appealing from a convic- tion. The court affirmed the constitutionality of the law, and the opinion of Judge James is given in 2 ParJier, 410. The principle was reversed and the law annulled by the decision of the Court of Appeals in the "People agst. Wynehamer," ibid 421, and " People agst. Toynbee," ibid 4Q\. Hon. Augustus Bockes having resigned the oiRce of county j udge. Gov. Seymour, February (i, 1854, appointed John A. Corey of Saratoga Springs to fill the unexpired term. In the November following, James B. McKean of the same town was elected to succeed him. At the first Oyer held in this county by Justice Bockes, in October. 1855, an indictment was found by the grand jury against Joseph Glas- ser, charging him with the wilful murder of Patrick H. Brcen, at Gal way, August 24, 1855. This homo- cide grew out of a cliaravarl party. Several young men had serenaded, a newly married couple and, at the instigation of one E. O. Smith, the bride's mother had caused theirarrest. This angered them and they foolishly determined to burn Smith in effigy, on the public square, at midnight of August 24. The}^ niet on tlie night in question in the barn OF SARATOGA COUNTY. 155 of the elder Breen. While preparing the effigy a man was seen in the garden, as if watching them. Young Breen went ont, masked, to see who it was, when the man presented a pistol and fired at hira. Breen fell, mortally wounded (the ball entering his left breast and lodging in his spine), and cried out " JoeGlasser has shot me." The man fled through the daikness, but was recognized by several of the young men. He was arrested the same night at his residence. He was tried at a special term of the Oyer and Terminer, which commenced Febru- ury 24, 1856, just six months after the tragedy. Justice C. L. Allen presided, with County Judge McKean and Justices of Sessions A. E. Brown and A. Hannay on the bench. District Attorney Odell and Hon. Lyman Tremain conducted the prosecu- tion, it being the latter gentleman's first appearance in our courts. The prisoner was defended by Geo. G. Scott, E. F. Bullard, and Deodatus Wright. It was shown on the trial that Breen and Glasser had previously been friendly, that the latter had exhib- ited no malice toward him, and though it was urged that he had been hired to shoot another of the mas- queraders, it was not susceptible of direct proof, so the trial resulted in a verdict of manslaughter in the second degree. He was sentenced to states prison for a term of four years and six months. This result caused much excitement in Galway, and E. O. Smith was forced to yield to public sen- timent and remove to the West. Justice Enoch H. Rosekrans held his first court 156 THE BENCH AND BAE. in this county in September, 1856. At that Oyer, James M. Quillot of Mechanicville was indicted for uttering counterfeit meney. He was ostensibly a merchant tailor, but bore the reputation of being- one of the most expert forgers of the signatures of bank officers in his day. He was too shrewd to expose himself to conviction, and escaped punish- ment for his alleged crimes through the technicali- ties of the law. Justice Piatt Potter held his first term in this county in January, 1859. At the May Oyer, 1859, the grand jury presented the dogs of the county as a public nuisance Their action was, however, ineffectual, for the nuisance remains un- abated. At the February Sessions, 1857, before Judge McKean, Patrick McKinney was convicted of per- jury in a suit tried before Justice John Cramer, 2d, in Waterford, August 26, 1856, in which Patrick Larkin was plaintiff and Piatt R. Doughty was defendant. The alleged perjury was his testimony that he was present when Larkin bought twenty lambs of Doughty, for which he was to pay $44, that four of them were then delivered to Larkin, and the balance were to be taken when he (Larkin) called for them. Although it was otherwise suffi- ciently proved that the price and terms were as he testified, it appeared that he was not present when the bargain was made. Upon this proof Judge McKean charged the jury that if the prisoner did not know the truth of his evidence of his own knowledge, although it might be true, if it was OF SARATOGA COUNTY. 167 • wilfully and corruptly given to aifect the result of the action pending, it was perjury. He was con- victed, and a writ of error was taken to the Supreme court, where it was argued for the prisoner by William A. Beach, and for the people by District Attorney Mott. The conviction was affirmed, and Mc Kinney was sentenced to states prison for two years. The case is reported in 3 Farker 510. In the June Sessions, 1858, Daniel O'Leary was tried and convicted on an indictment charging him with an assault with intent to kill with a deadly weapon Margaret Collins, at Waterford, September 22, 1857. Isaac C. Ormsby, his attorney, removed the case to the Supreme Court on i v/rit of error in which he insisted that it was necessary to prove an assault and battery and an intent to kill with a deadl}^ weapon ; that the verdict of the jury, as rendered, to wit : "The jury iiiid the prisoner guilty of an assault and battery with intent to kill," was a special one, and not in accordance with the indictment ; nor was it a conviction of a crime either against the statute or the common law. He also insisted that the prisoner was entitled to a discharge, having once been legally tried for his offense.^ The district attorney resisted, but the court held that it was a special verdict. A general verdict of "guilty" would have been sufficient, but when the jury went further and sought to convict him of an offence not laid down in the statute, nor held at common law, the prisoner was in eff'ed; acquitted; anditdirected his discharge." This case, 158 THE BENCH AND BAR • reported in 4 Parker 155, should teach jurymen to be cautious in attempting to word their verdicts specially, when th(^y intend to convict on the direct oifense charged in the indictment. At the September Oyer, 1859, before justice Henry E. Davies, of the first district, a New York pickpocket who gave the name of John Thomas, was tried and convicted of having robbed the per- son of Mrs. Margaret P. Millard at Saratoga Springs, July 22, 1858, of property valued at $l,93r). He was sent to Dannemora for five years. After he bad served his time he again returned to his old field of "striking," and was detected on the train near Saratoga changing a check from his valise to a lady's trunk. VVhile in jail on this charge lie and Corj^don Rose, another prisoner, sought to burn a hole through the floor of their cell and thus effect their escape. They were discovered by jailor Fred. T. Powell, who, smelling the smoke, went to the corridor and asked Thomas if he had a fire in his cell. He answer-^d : ''Yes, but it has got the best of me." On their trial for arson in the January Oyer, 1867, Mr. Powell's evidence to that effect was contended by the prisoners' counsel to show that they had not intended to burn the jail, and they were acquitted. He also escaped convic- tion on the other charge by the absence from the state at the time of the trial of a material witness for the people. Since then he has absented himself from this vicinity. At the September Oyer, 1860, two indictments for OF SARATOGA OOITNTY. 169 murder were found : viz. one against John H. Price for the shooting of James Cox, in Wilton, and the other against William Yanderwerker for the shoot- ing of Harrison Sherman. The first indictment was tried at the term it was framed. District Attorne}^ Charles S. Lester appeared for the people, and the defense of the prisoner was conducted by Clement C. Hill. It was shown on the trial that Price, then a bo}^ of eleven years, had gone into the residence of Mr. Cox, in Wilton, took up his gun, pointed it at the head of little Jimmy Cox, a boy of four years, and in the presence of the mother, deliberately shot and killed him. He was convicted of manslaughter and sent to the Western House of Refuge. Subse- quent developments prove him to be a sort of com- pound of Jesse Pomeroy and Piper, the "belfry murderer," for since his release from the house of refuge, at the October Sessions, 1868, he was con- victed of a deadly assault on George W. Harder, at Wilton. July 1 of that year, and sentenced to the county jail for three months. At that trial he was defended by Lewis Yarney. He is now serving a term of one year in the Albany penitentiary for an assault with attempt to kill with a deadl}^ weapon (a pitchfork) James S. Taylor, at Wilton. July 23, 1875. He was defended on this trial at the IN'ovem- ber Sessions by Jesse S. L'Amoreaux and Jesse Stiles. The shooting of Sherman by Yanderwerken was an act of drunken frenzy. Sherman was track- master of the Rensselaer and Saratoga railroad, and on the morning of July 27, 1860, as he left his 160 THE BENCH AND BAR house to go to his work, the drunken Vanderwerker emerged from liis house, on the opposite side of the street in Waterford, with a shot gun, which he raised to his shoulder and shot his victim thr Jiigh the heart, killing him instantly. Sherman was much beloved by the railroad men, and Vanderwerker twice escaped lynching at their hands only by the by the vigilance of sheriff George B. Powell. At the January Oyer, 1861, he plend guilty to the crime of murder in the second degree and Judge Piatt Potter sentenced him to imprisonment for life At the time of his incarceratio.i he was hfty-seven years of age. December 23, 1860, one Charles Harvey, formerly a " gift book" dealer, made his advent in Ballston Spa. He went into the Railroad hotel, kept by Lewis Sickler, where he met the author of this book, who had previously known him in Mechan- icville. While in conversation he spoke of an encounter he had had with the Albany police the nisht belbre, and exhibited a bullet hole in the skirts of his coat. He hired, the same day, a horse and cutter of Stephen B. Medbery to go to Sarato- ga lake, but drove to Castleton, below Albany, where he disposed of the rig. Mr. Medberj^ recov- ered his property after a few months, but nothing- more was seen of Harvey until a few days after the battle of Bull Run, in July, 1861, when he was dis- covered by officer Mitchell at Congress Hall, Sara- toga Springs, in the full uniform of a major of Penn- sylvania volunteers. He was arrested, plead guilty OF SARATOGA COUNTY. 161 at the December Oyer following, and was sent to stat'r's prison for two years. He i*s now serving a five years' sentence in the Albany penitentiary for a "confidence operation " on a Nova Scotian in the Albany depot, a year or so ago. At the September Oyer, 1862, John R. Packard and Mary A. Packard, his daughter, were convict- ed of manslaughter in the second degree for causing tlie death of officer William W. Mitchell, and sen- tenced to four years imprisonment in states prison. The facts were in substance as follows: Packard was a physician in very reduced circumstances, and he and his two daughters lived very secludedly in Saratoga Springs. They had been subjected to annoyance by evil-minded persons, and when, on May 22, 1862, officers Yibbard and Mitchell went to the house to serve legal process they were refused entrance. They burst open the door, when a pole with a knife attached was thrust out infiicting a mortal wound on the person of Mitchell. They were defended by James P. Butler and Joseph A. Shoudy, while District Attorney Lester maintained the interests of the people. Mary was accordingly taken to Sing Sing and her father to Dannemora. Mr. Butler, their counsel, believing them unjustly convicted, continued his gratuitous labors in their behalf and a year later secured their pardon from Governor Fenton. They then went to the far West. At the May Oyer, 1863, William Dougherty was tried for the murder of Thomas Martin at Schuyler- ville, October 31, 1862. District Attorney Isaac Q . 162 THE BENCH AND BAR Ormsby and Edward F. Billiard appeared in behalf of the people, and John Lewis and Edgar L. Furs- man for the prisoner, who was convicted of man- slaughter in the second degree and sentenced to seven years in states prison. At the January Oyer, 1866, Cornelius S. Huyck was convicted of man- slaughter in the fourth degree for causing the death of Susan H. Rogers, a little girl, at Mechanicville, by an act of culpable negligence, being the careless use of fire-arms, and he was sentenced to the county jail for six months. This was followed by the trial in the November Sessions, 1864, of Abraham C.^ Bentley, indicted for an assault and battery with a deadly weapon upon Henry Evans. District Attor- ney Ormsby and J. S. L'Amoreaux appeared in behalf of the people and the prisoner was defended by D. B. Carver and W. B. Litch. Bentley and Evans were at w^ork in the woods, in the town of Providence, June 2(J, 1864, when an altercation arose and Bentley stabbed Evans with a knife, in the abdomen. Although nearly disemboweled, he walked about two miles before he could get aid. He subsequently recovered. Bentley was convicted and sentenced to states prison by Judge Hulbert for four years and six months. Julia A. Nash, a notorious character who liad given much trouble to the courts for several years, was on the third day of Julyj 1866, serving a sen- tence for petit larceny in the county jail. Wishing to enjoy her liberty the next day, on the night of the third she effected her escape by removing four OF SAKATOGA COUJSTY. 163 bricks from under the window and escaped by squeezing her body through that oritice. She was re-arrested the next day by officer Henry Harrison and returned to her old quarters. At the following September Oyer she was tried and convicted of jail breaking and sent to Sing Sing for one year. At the same term Charles Johnson, by the advice of counsel, plead guilty of the disgusting crime of rape. He was a negro, and the victim was a small white girl whom he assaulted and, ravished while gatlier- ing beri-ies. It was his second crime of the kind, and, although he asked the mercy of the court. Judge Bockes sentenced him to a quarter of a cen- tury" s imprisonment at hard labor. It was soon discovered that a recent legislative enactment had limited the punishment for this crime to twenty years, and Johnson was again brought into tie court room and sentenced to the full extent of the law. A defense of insanity having been successfully interposed by J. P. Butler in the case of John Mor- gan, indicted for firing a pistol at Michael O'Neil, at bciratoga Springs, June 21, 1867, at the December term of that year he was, on motion of District At- torney- Ormsby, ordered by Judge Hulbert to be conlined in the state lunatic asylum at Auburn. That defense has never been a popular one in this county. Again the records are stained with blood. Wil- liam J. Kirtly was brought to trial for the murder of John T, Jones of Saratoga Springs, August 25, 164 THE BElsrCH AND BAR 1867. This case illustrates the dangers arising from the carrying of fire arms by persons of an easily irritable nature. A dispute arose on the piazza of one of the hotel s. Jones unguardedly strucli Kirtly a blow, and the latter at once drew a pistol and shot him. The situation of the parties and the motives that led to the blow were such as to easily show that it was a homicide of the lower grade of crime ; one that would • not have occurred had Kirtly been unarmed. He was, too, a partial crip- ple and his irritable nature was induced by that misfortune. At the trial in the September Oyer, 1867, before Judge Potter, he was prosecuted on behalf of the people by District Attorney Orms by and L. B. Pike. He had the assistance in his defense of James P. Butler and William A. Beach, and was convicted of manslaughter in the second degree. He was a native of Marietta, Ga., twenty eight years of age, and was sentenced to serve a of five years at hard labor in Dannemora. This was followed by the indictment of a neg;ro named James Robinson for shooting and killing his white mistress, Sarah C. Criihl\ alias Mabee, in thetown of Day, March 20, 1869. When arraigned he plead not guilty, but finding that Gen. WinsorB. French, then district attorney, was making a strong case with a tendency to a hempen terminus, he plead guilty to murder in the second degree, and was sentenced to states prison forlife by Judge Bockes. The desperado has since escaped from Dannemora, and is yet at large. OF SARATOGA COTTIS^TY. 165 For several years prior to 1870, the notorious Michael H. Hickey, the "wickedest man in Sar.i- toga," had defied law and justice at his Lake avenue den in that village. Finally, in one of his drunken orgies, he took a pistol and fired at ran- dom on the street. District Attorney French then determined to rid the county of the monster. At the January Oyer he procured indictments against Hickey for an assault with intent to do bodily harm, keeping a disorderly house, receiving stolen property, grand larceny, and for an assault with intent to kill with a deadly weapon one James Murphy. He was tried at the June Sessions for keeping a disorderly house, convicted and sen- tenced to one year in the Albany penitentiary and to pay a fine of $250. At the December Sessions in the same year, he was convicted of the assault on Murph}', and for the shooting the pistol in the street and sentenced to six montlis in the peniten- tiary on each charge, each sentence to follow the former successively, making his imprisonment two years in all. It was eftectual, and Judge Hulbert and Gen. French were congratulated on their suc- cess in removing him from the county. Previous to his first trial he forfeited his bail, and was recap- tured by detective James N. Case as he was about to embark for Ireland at Boston, for he knew that the authorities meant business while he was on American soil. The Van Rensselaer "anti-rent" cases have in several instances led to the loss of life in the conn- 166 THE BENCH AND BAR ties of Rensselaer, Albany and Columbia. In 1869,. Col. Walter S. Cliurch, representing the Van Rensselaer estate, obtained a writ of ejectment from the Siipreme Court to dispossess one William Wit- beck from the farm he occupied under a manorial lease in East Greenbush, Rensselaar county. Dep- uty Sheriff Willard Griggs went with a jyosse to serve the writ July 26, 1869. It was resisted and a combat took place in which several firearms were discharged by both parties. Several wounds were received, and that upon the person of Sheriff Griggs was mortal, and from which he soon afterwards died. District Attorney 'J'imi thy S. Banker, after several fruitless endeavors, procured an indictment in the Rensselaer Session in February, 1870, against William Witbeck his sons Benjamin and John P., his son-in-law Zebulon Bass, and hired man William Wood, charging them with the wilful mur der of Willard Griggs. Subsequently, on motion in the Supreme Court; he procured a change of venue to the Saratoga Oyer and Teriiiiner. It was brought to trial at a special term of the court held by Judge James, July 25 of the same year. The people were represented by Timothy S. Banker, William T. Odell, Matthew Hale and William A. Beach. The prisoners had the aid of Edgar L. Fursman, Lemuel B. Pike, Henry Smith and Mar- tin I. Townsend. Outside of this array were Col. Church, assisting the prosecution and Anson Bing- ham, of the noted firm of lawyers in Albany who have managed the anti rent civil suits, aiding the, OF SARATOGA COUNTY. 167 defense. The evidence, argument of counsel and rulings of the court were phonographed by Spencer C. Rodgers of Troy,and his assistant, Tinsley, who alternately relieved each other during the five days of the trial and made two copies of their day's work each night. There was a great anxiety on the part of jurors to escape sitting on the trial and one of the panel, who could not learn enough of the case to form an opinion, secured a rejection by telling Mr. Townsend that his "mind was so con- stituted tliat he always agreed with the man who spoke last." The evidence was thoroughly and exhaustively presented to the jury on the part of the prisoner by Messrs. Smith and Townsend, and on behalf of the people by Messrs. Hale and Beach. Judge James charged the jury fully on the law and committed the case to them. After an absence of about an hour they returned with a verdict of "not guilty." In the spring of 1870, the people of this section were astonished to hear that in the person of Charles H. Stevens who had been arrested on the charge of stealing a horse from Hiram Parker of Clifton Park, the authorities had secured no less a personage that tjie notorious Barney Francisco, the most expert horse thief and land pirate since the days of John A. Murrell. As soon as he was jailed, he began to feign penitence for his crimes and divulged where several other horses taken from all parts of the state were Some of them were recovered, and it was noticed that all of them were in the hands of 168 THE BENCH AND BAR. innocent purchasers at the time. He wanted to be taken to Pittsfield, Mass., and give evidence against some of his gang there. He also pretended to tell where he had seen the team of James E. Davis of South Ballston, which had been stolen in the pre- vious February, and indicated two fishermen named James and Benjamin Eldred, of Greene county, as the thieves who had taken the horses. The Eldreds were arrested, indicted for this alleged crime, and brought to trial at the June Sessions, 1870. Dis- trict Attorney Ormsby was the public prosecutor and the prisoners were defended by James P. But- ler. Francisco was the chief witness to establish the crime, but he broke down under the fiery cross examination of Mr. Butler, and, forgetting the part he was assuming, he sat erect in his chair throwing aside the drooping shoulder he had worn as a dis- guise ever since his incarceration here. The pris- oners proved an alibi, and the jury acquitted them. The team were afterwards found near Hudson, where a man with the familiar name of John Smith had sold them shortly after the theft. Francisco, soon after, induced constable Samuel C. Beenian of Ballston to bail him and go with him to Pittsfield. Thej^ went there in company with Deputy Sheriff Chapman of Berkshire county, and the wily horse thief slipped from their custody and escaped. He was thought by some to have been the same per- son as the notorious E. H. Rulofl, hung at Bing- hamton in 1872. The evil practice of corrupting the elective fran- OF SARATOGA COUNTY. 169 chise having been introduced into this county such an extent that at the polls in certain towns at nearly every election a class of men, unworthy of the lib- erty they enjoy, were purchased to the great scan- dal of our county and the lowering of the standard of political morality, the grand jury impaneled at September term 1870, consisting of men of both political parties headed by James L. Cramer of Saratoga Springs, foreman, made a formal present- ment condemning the practice of buying votes at elections as subversive of our politico. 1 and national liberties. Judge Bockes thanked them in behalf of the court and directed that the presentment be entered upon the minutes by the clerk. Two offenses against human life were brought to the attention of the court at the May Oyer, 1871. One was the indictment of Henry Husher of Sara- toga Springs for the murder of Samuel Young, March 7, previous, in an affray ; and the other that of Wallace Vandercook for shooting Andrew Fel- lows of Clifton Park, February 7. He was also indicted for robbery of the person of Fellows. Husher was allowed to plead guilty of man- slaughter in the iirst degree and was sentenced to states prison for ten years. Vandercook' s crime was a most dastardly one, and in some respects rivaled the shooting of Halpine by John I, Filkins, the express robber. Both shot their intended vic- tim through the head making similar wounds, and in each case there was a recovery from the nearly fatal shots. The object of each was to obtain money ; 8 170 THE BENCH AND BAR Yandercook having decoyed Fellows, a farmer, into his barn yard and there shot and robbed him and then fled. Both were convicted on the robbery charge, as being the most serious count under the statute. Vandercook was sentenced to states prison for a term of fifteen years. At the January Oyer, 1872, William Cherry of Saratog Springs was tried before Judge James on the charge of murdering his wife. He was ably and successfully defended by L. B. Pike, P. H. Cowen and John Foley, and after hearing the evidence the jury acquitted the prisoner. The woman fell, while both were intoxi- cated, and received fatal injuries. Next in order comes the trial, the result of which has done much to lower the standard of the Sara- toga county juries. That was the acquittal of the notorious Peter Curley. The state at large as well as our county were astounded in October, 1872, to. hear of the robbery of the Saratoga Count}^ Bank at Waterford, by an organized gang of thieves, and of the cruelties and indignities practiced by them upon D. M. Van Hovenburgh, the cashier, and his family at the dead of the night. Suspicion soon fell on Peter Curley, a well known professional burglar, formerly of Troy, who had hitherto escaped con- viction. Pending a watch of his motions by the New York detectives, one William C. Brandon was discovered selling some of the stolen bonds in the city of New York. He was arrested by detec- tive Edward Radford who recognized him as a well known "fence," or concealer of stolen goods. Cur- OF SARATOGA COUNTY. 171 ley was arrested about the same time, and in default of $500, 000 bail they were committed by Justice Wil- liam Shepherd to the Ballston jail to await indict- ment. They were duly indicted at the January Oyer, and a special term of the court was set down for their trial March 6. The court duly convened with Justice Bockes presiding. The people were represented by District Attorney Ormsby and Edward F. Bullard. Curley, who was brought to trial, was defended by Messrs. Fursman, Pike, Odell, Miles Beach, P. H. Cowenand Henry Smith. The evidence showed Curley at Hudson, the next day after the robbery, tampering with officers to be released from arrest, and was quite direct in fol lowing him from the bank to Albany and thence to Hudson. The case was summed up by Mr. Smith for the prisoner, and Mr. Bullard for the prosecu- tion. Judge Bockes' charge was pointed and was one of the ablest ever given from the bench in this county. The jury disagreed, ten standing for cour viction and two for acquittal. He was re-tried at the May Oyer, again before Justice Bockes. The same evidence was given, it was explained to the jury by the district attorney and Mr. Fursman, and the coiirt substantially reiterated its former charge. To the astonishment of all, themselves and some of Curley' s friends alone excepted, the jury rendered a verdict of acquittal, and followed it up by going to a hotel and partaking of a banquet provided by the funds stolen from widows and orphans on deposit in the bank. C urley was thus turned loose, 172 THE BENCH AND BAR and the legitimate fruit of this dereliction of duty by two Saratoga county juries was the,Barre, Vt,, bank robbery by Curley, who to escape conviction a few months since turned state's evidence and con- victed George E. Miles, another of the gang. Bran- don gave bail to the next term, and finally a nolle pros, was entered. Rumors that the felony was compromised by a committee of the losers were generally believed. The difference between New York and Vermont justice was again illustrated at the January Oyer, 1874. One Daniel J. Shaw was indicted for. com- mitting bigamy in this county. He claimed that he thought that an agreement signed by himself and wife to live apart was a valid divorce. He was bailed on his own recognizance to appear at the next Sessions. He then went with his new wife to Rutland, where the old spouse followed him, had arrested for adultery, (a crime in Vermont) and he .was consigned to Windsor prison for two years before the time arrived for him to appear for trial here. The Board of Supervisors of 1873, having dis- covered gross irregularities in certain constables' bills, caused the indictment of Samuel C. Beeman, Erastus R. Fort and Jacob Devoe for perjury in swearing to false items in their bills. Also, against Charles Rosekrans and Jacob Bevoe for forgery in the third degree, in presenting for audit i forged constables' bill in the name of Samuel Johnson. The indictments were found at the January term, OF SARATOGA COUNTT. 178 1874. After various dilatory measures had been taken, they plead guilty at the April Sessions, 1875, and thereupon Charles S. Lester, co.unty judge, sentenced them each to pay a fine of $250. Michael Rattigan and William W. Garrett, excise commissioners of the village of Ballston Spa, were at the same term each fined $25 for violation of the excise law, in refusing to revoke a license on due proof of its terms having been broken. James Mullen was tried and convicted at the February Sessions, 1875, for having made an assault with an intent to kill James Norris at the latter' s residence in the town of Providence, in the previous summer. Mullen, who was a tanner working at Barkerville, was an alleged paramour of Norris' wife, who was much the junior of her husband. A plot was arranged to shoot Norris, and he was severely wounded by a pistol shot in his head while drawing some cider to treat his would-be murderer. It proved to be one of those instances where the thread of life is not snapped under the strongest tension, and the hardy Celt, with the ball in his brain, fully identified his assailant on the witness stand. Mul- len was defended on his trial by George W. Hall. He was sentenced to states prison for nine years and six months. James H. Standish was tried at an adjourned Oyer and Terminer, August 25, 1874, for the murder of George Vf. See in Wilton, Feb- ruary 28, previous. The deed was done in an affray. See lived in Standish' s house, and the latter as- saulted the former' s wife in his absence. On the 174 THE BENCH AND BAR husband' s return, he called Standlsh to account, when the latter seized a flat iron and crushed poor See's skull. He was prosecuted on his trial by District Attorney Ormsby and Hon. Lyman Tre- main, and defended by Gen. French and Hon. Henry Smith. He was convicted of murder in the second degree, and Judge Judson S. Landon passed on him the life sentence. At the September Oyer, Charles F. Betts plead guilty to the charge of an assault with intent to kill with a deadly weapon, one Josiah Stratton in Gal- way, at the "reservoir, and was sent to states prison for five years James McEnery and Michael Dwyer, the Waterford cemetery ghouls, were also convicted, notwithstanding the ingenious defense put in by their assigned counsel, Theodore F. Hamilton, and sent to the penitentiary for six months. An unfortunate affair occurred at Saratoga Springs on the night of April 22, 1875. John F. Dennin, a constable, while intoxicated attempted to arrest George W. Rogers for intoxication. During the melee which ensued, Rogers' skull was crushed by a blow from a blunt instrument, from the effects of which he died. Dennin was indicted in May for manslaughter, and tried in the Fe])ru- ary Oyer, 1876, before Justice Joseph Potter. The people were represented by District Attorney Ormsby and N. C. Moak of Albany. Notwith- standing the efforts of his counsel, L. B. Pike, J. Vaai JU»eee^r, a H. T^fft, Jr., ajid E. L. Fura^ OP SARATOGA COUNTY. 175 man, Dennin was convicted of manslaughter in the third degree, and sentenced to Dannemora for two years. The year 1875 was an "off year" for pickpockets in Saratoga Springs, by reason of the efforts of an able corps of detectives from New York being employed at the hotels. John D. Sanburn, a sneak thief, was caught at the Grand Union by detectives Joel Pike and Edward Radford. He was identified by John T. Saxe of West Troy, as the man whom he saw stealing his diamond studs in his room in Congress Hall, and to Mr. Saxe' s credit be it stated he refused to "compromise," and prosecuted him to a conviction in the September Oyer. He was sent to states prison for two years. James Ander- son, a' sneak thief, caught by detective Thomas Dusenbury in Congress Hall, plead guilty to an attempted burglary, and was sent to the peniten- tiary for three months. W. H. Stanley, alias Jackson, was shadowed by detective James M. Tilley from the United States Hotel to the Wilb ur House, where he took rooms and was caught at midnight by Deputy Sheriff Brown in the act of ti ying to open the doors of guest' s rooms. He plead guilty ,at the November Sessions. Being sentenced to two years and a half in Clinton prison, he was the first prisoner from this county s-nt up over the New York and Canada railroad. Among the characters imprisoned in the jail in recent years was an Englishman who gave the name of Charier H. Baker. He was arrested in the sum- \ 176 THE BENCH AND BAR mer of 1874 for attempting to purchase machinery of Barber & Baker of Ballston Spa, under the false pretense that he was the agent o' a mining firm in Montana territory, to which section the machinery ordered was to be sent by his directions. His true character liaving been divulged, the firm did not fill his order ; but instead, procured one for his arrest, which was effected at Fort Edward, whither he had gone, by deputy sheriff D. S. Gilbert. He was committed to the county jail to wait the action of the approaching grand jury. This was a turn of afiliirs not laid down in the programme of his sum- mer' s tour, and he soon tired of the monotony of prison life. He first sought to alarm Jailor Jeffers by informing him that he had developed a case of small pox, having been exposed to that disease shortly before his incarceration. Another pris- oner weakened the dubious faith of the jailor in that story, b}^ informing him that Baker had been putting croton oil on his face and arms to cause the eruptive blotches which were apparent. Dr. Noxon, the jail physician, on examining the prisoner ex- posed the fraud. This attempt to "break out" having failed, he next confessed to a pretended murder in Paris during the Commune siege, saying that he was a member of the "Foreign Legion" and had murdered a comrade bj'' throwing him over the parapet of a bridge across the Seine. His object was to have the story reacli the ears of the French minister at Washington, and thus cause his extra- dition for a crime against the French republic. He OF saeatoga'^county. 177 knew that a conviction could not be had for a cap • ital offense on liis unsupported confess! jn, and he would thus be set at liberty. A few days subse- quent to the publication of his so-called confession in one of the city papers, Mr. Thompson, of the Troy Daily Press, and the author interviewed him in the jail. Mr. Thompson was in Paris in the days of the commune and readily detected the falsity of the fellow's statements from his own knowledge of the city. The French authorities refusing to notice him, he plead guilty to the indictment found against him. His offense not having fully perpetrated, and in consideration of the time he had been in prison, he was sentenced to be conhned in the county jail for the term of hve days. At the expiration of tL at time he departed, and soon wended his way to New HampshJ-e, where he began his old tricks and before the end of the year had secured a situation for hve years. ''Self-preservation is the hrst law of nature." Next to that, in all civilized nations, is the preserv- ation of the public health. For that purpose oar legislature has wisely directed that "Boards of Health" may be established in ail Ihe cities, vil- lages and towns of tiie state, and has conferred upon them seemingly arbitrary and summary powers. It has been the practice for years for the several village boards, as soon as possible after they have been constituted, fo meet and adopt sundry "rules and regulations" for the ensuing year. Usually they adopt those of the preceding year, witli any 178 THE BENCH AND BAR amendments that may be neccessary. In the spring of 1875, the Board of Health of Saratoga Springs, composed of Dr. Frank M. Boyce, Justice Phineas F. Allen and Trustee George Hinkley, by due appointment under the laws, met and adopted the by-laws of the previous year and caused them to be published. The fifteenth by-law read as follows : "All physioiatis having; any case or cases of small pox, or chol- era, shall immediately report such case or cases to the board of health ; also, ali persons having on their premises any case or cases of small pox, or persons known to have been exposed to the same, or of cholera, shall immediately report the same to the board of health, or any member of the same. In the latter part of the month of November, 1875, the child of Mrs. Carrie Chase, residing on Washington street in a thickly settled part of the village, became sick with an eruptive disease. Dr. Thomas E. Allen, a physician practicing in the vil- lage, was called. The child died and several matrons in the vicinity went in to perform the last offices. About a fortnight later they were taken with a similar disease. Other physicians were called and it was pronounced the small pox, or in some instances, the varioloid. A strict quarantine was at once established and Dr. Allen was severely censured by the public for not reporting the case of the Chase child. He replied that it did not have the small pox, but varlocella, or chicken pox. Several deaths followed from the foul disease, but the excitement had about died away when on the third day of January, 1876, it became known that OF SARATOGA COUNTY. 179 Allen had privately buried liis cook, a colored woman named Ella Lewis, in Green Ridge ceme- tery, the night before. He was at once arrested and lield to bail for violating the by law before quoted. His boarding house was put in quaran- tine with its inmates, including Rev. Mr. Woods, pastor of the First Baptist church, and family and Miss Alice H. Burt, a teacher in one of the public schools. Other fatal cases followed which were indirectly traceable to his negligence besides some liot fatal in his house, which resulted from this exposure. He was indicted on three several charges at the February Oyer, and brought tc trial at the March Sessions on the indictment alleging criminal negligence in the Lewis case. County Judge Lester presided with Justices of the Sessions John Brown an5. John Peck. District Attorney Ormsbyhadthe assistance of John Van Rensselaer of Saratoga Springs ; and Dr. Allen in his defense had secured the legal services of Lewis Varney, James M. Andrews, Jr., and James P. Butler. Their first endeavor on the moving of the indict- ment, for trial was a motion to quash the indict- ment on the ground of the unconstitutionality of the law under which the by-laws were drawn. It was at once denied by Judge Lester They then endeavored to put the case over the term on affida- vits. It was met with a counter affidavit by the district attorney. Judge Lester left the question of the sufficiency of the affidavits to his associates on the bench, and they decided that the case must 180 THE BENCH AND BAR. be tried at that term. This is said to be the only instance in this county wliere a question has been decided solely by the Justices of Sessions. A day having been set for the trial, at the appointed hour the Doctor appeared with his array of counsel strengthened by the addition of Rufus W. Peckham of Albany, a son of the well known judge of that name who was lost on the Ville du Ham'e. After a close search, twelve jurors were found acceptable to both the people and the pris oner. The evidence of the people showed by JoU Lewis, husband of the deceased cook, that Allen told him to allow no one to enter her room, as early as Wednesday previous to her death on Sunday, and that on Thursday he told him she had the small pox. He detailed the manner of her decease and midnight burial by him and the doctor under the latter' s directions. Evidence of the undertaker of whom the box in which she was buried and of the sexton of the cemetery was taken to show the decla- rations of Allen confirmatory of the theory that he knew she had small pox. He relied on the evi- dence of his brother. Dr. Asa Allen, to prove that Mrs. Lewis did not, in his opinion, have small pox, and his own testimony to the same effect, and that he went to Dr. Boyce's office on Sunday and Mon- day to notify him and did not find him at home. He fortified the latter with the testimony of Miss Burt, that she was with him on the latter^occasion. It was proved on the part of the people by the phy- sicians who exhumed and examined the remains OF SARATOGA COUNTY. 181 that Mrs. Lewis died of confluent small pox, and all three of the members of the board of health tes- tified that Dr. Allen never notified them of any case of the disease. He admitted in his evidence that at the time Ella Lewis died, his housekeeper, Eliza Gunn, w:as sick under his roof with small pox. Judge Lester charged the jury in substance that the fact that he did not notify either member of the board of heidth of this case was prima facie evi- dence of wilful negligence on the part of Dr. Allen, and that it was their duty to judge if he did so wilfully violate the said by-law. The jury retired at 2 p. M. and returned into court at noc^n the next day unable to agree and were discharged. They stood eleven for conviction and one for acquittal. Whatever may have caused his firmness in not yielding to the convictions of his fellow jurors, this case has excited the question whether a unanimity of jurors should be asked. And whether an amendment to the constitution, which will allow a two-third vote to determine a verdict, should not be adopted to prevent the thwarting of justice by the obstinacy of one man's will opposed to the judg- ment of eleven of his peers. Allen's indictments were the.n sent to the next Sessions for trial, but previous to that he had sought safety in a perma- nent journey to some terra incognita ; having probably gone to be a companion to the forger Winslow under the protecting legis of the British tiag. The history of our criminal courts would not be 8* 182 THE BENCH AND BAR complete without giving the details of an indict- ment for an infraction of the excise laws, as they at present exist. Such an one was the People against Michael 0'E.ourke, a saloon keeper, in Saratoga Springs, who was indicted for selling strong and spirituous liquors at retail in quantities less than five gallons, to be drank on his premises, on the first day of February, 1874. The indictment charged the selling of "one pint of brandy, one pint of beer, ' ' etc. The defendant plead not guilty. He was tried at the June Sessions, 1874, before Judge Lester. Tlie court directed that the district attorney should confine the evidence to the selling of beer. The defendant, by Messrs. P. H. Cowen"^ and John Foley, his attorneys, offered a hotel license in evidence but the court refused to receive it on the ground that the defendant's place was a saloon, not a hotel in the purview of the law ; and held with Judge Mason, that such a license^to a saloon keeper was in violation of the sixth section of the excise law of 1857. iTpon proof of sale of beer, as alleged in the indictment, the jury con- victed O'Rourke and he was fined fifty dollars. He took a writ of error to the Gei eral Term, where the conviction was reversed, and until a decision is had in the Court of Appeals this case stands as a *Mr.^Cowen has inherited his f:ithcr's talent for Ic^al author- ship, and has compiled a " Di.2;esl, of Criminal Decisions " in our state courts from 1777 to 1870. It wms pubiislied by W. C Little of Alt)any. It was^received by tlie bar with great favor as a work of exceedingly high merit and worth. OF SARATOOA COUNTY. 183 ruling precedent to guide the action of tlie courts m the third department During the period embraced in this chapter, Sheriff Thomas Low had been succeeded by Tlieo- dore W. Sanders, William T. Seymour, Henry H. Hathorn, Philip H. McOmber, George B. Powell, Henry H. Hathorn, Joseph Baucus, Tabor B. Rey- nolds. Thomas Noxon and Franklin Carpenter. Philip H. McOmber, had been succeeded in the care of the jail by Frederick T. Powell, and he suc- cessively by Manlius Jeffers and Brill Larmon. Jailor Powell was in charge of the court house and jail for fifteen years, a longer period than any other person excepting Gen. Dunning. During all this long interval James W. Horton sat at the clerk's desk, while crier Boss was successively followed by Nathaniel J. Seeley, Freeman Thomas, David F. White and Norman S. May. Unlike his predecessors, Mr. May is in the primeof lifeand is a very useful adjunct to the courts, serving some- what in the capacity of marshal, which position he holds as a deputy in the United States courts for the northern district of New York. CHAPTER XIV. IMPORTANT CIVIL ACTIONS TRIED UNDER THE CODE. The constitution of 1846, as has been heretofore stated, abolished the old courts of the state and sub- stituted new ones in their stead. It provided for the adoption of civil and criminal codes which should take the place of the old time honored com- mon law. A civil code was formed by the com mission appointed for that purpose and was adopted by the legislature and went into eflfect July 1, 1848. The commission framed a criminal code, but it has never been adopted, and the common law yet prevails in the criminal courts, except when it contravenes the term of any statute. The Court of Appeals under the constitution, as constituted by the act of May 12, 1847, was to consist of four judges elected for that purpose to serve eight years, the terms to be decided by lot, and four justices of the Supreme Court having the shortest time to serve. By the amendment of the constitution adopted in 1869, it now consists of a Chief Judge and four judges elected for a term of fourteen years. Any judge who arrives at the age of sev- enty years shall vacate the office on the tliirty-lirst of the ensuing December, and any vacancy shall be filled by an election for a full term. Under the OF SARATOGA COUNTY. 185 code the Court of Appeals has the same jurisdic- tion that was possessed by the old Court of Errors. The judicial act provided that four justices of the Supreme Court should be elected in each of the eight districts of the state, with an additional jus- tice in the first district. They should hold office for eight years and possess all the powers of the former Court of Chancery and judges of the Su- preme and Circuit Courts. Special Terms for liearing non -enumerated motions were to be held at stated times, and a General Term was to be held in each county, at least once in each year, by the four justices of each district. As Circuit judges they were to hold the Circuit Courts and Oyer and Terminers. By the statute passed in pursuance of the amendment of 1869, the former General Term was suj)erseded and the state was divided into departments, and the governor was authorized to select three of the justices of the Supreme Court in each department to sit at General Term and deter- mine the cases brought before them on appeals from the courts below. They were to be elected for terms of fourteen years with the same consti- tutional provision as to age and the filling of vacan cies as that of the Court of Appeals. They are prohibited from practicing as attorneys, or sitting as referees. The new County Court was to have jurisdiction of all appeal cases pending in Common Pleas ; actions involving dower ; partitions, when the land lies in the county ; actions for debt, when defend- 186 THE BEI^CH AND BAR ant lives in the county, and the amount claimed does not exceed $200 ; actions for assault and bat- tery and false imprisonment, when the sum ot damages claimed is under 8500 ; trespass to real or personal property, when damages claimed is under $500; actions in replevin, when the value of the property does not exceed $1,000. It can hear appeals from justices courts and grant new trials, but has no jurisdiction at Common Law. It has had equity powers conferred in it to direct fore closures of mortgages, the sale of infant' s estates and real estate of religious corporations in the county. The county judge may perform all the duties that might have been performed by judges of Common Pleas prior to May 12, 1847, and, if of the degree of counselor at law, act as a commis- sioner of the Supreme Court. The County Court is always open for the transaction of business, and the judge shall perform the duties of surrogate in all counties having less than 40,000 inhabitants, and in those 'ounties when the surrogate is in any manner incapacitated from serving. The jurisdiction of the court has been enlarged by several amendments of the code of procedure. Under the rules adopted by the Supreme Court, in pursuance of the consti- tution of 1846, all attorneys of the Chancery, Supreme and Common Pleas courts were continued as attorneys and counselors of the several courts of the state, and the modes of admission for api)licants have from time to time been adopted and moditied by the OenexaJ Terms. From that time, then, the OF SARATOGA COUNTY. 187 roll of attorneys of a particular county became merged in the bar of the state. The first civil action of importance ti-ied in the new Circuit Court at a term held in this county was in June, 1848, before Justice Augustus C. Hand, being that brought by William B. Harris and John Harris against Thomas B. Thompson and eighteen othei's. Isaac VV. Thompson and Samuel Stevens were counsel for the plaintiffs, and the defense was entrusted to William Hay, John K. Porter and William A. Beach. The suit was brought in an action on the case ; the complaint alleging that the defendants had willfuly, maliciously and wrongfully torn away and destroyed a portion of the Fort Mil- ler dam in September, 1846, thus stopping plain- tiff's mills. An indictment against the defendants had previously been tried, with the result stated in a previous chapter. The defendants plead non cul. and that the plaintiffs as riparian owners had no right to use the surplus waters of the Fort Miller dam, which Lad been erected in 1820 and since then maintained -wrongfully by the state to secure slack water navigation on the Hudson river to Fort Edward. They further plead that the river was a public-highway and the dam a nuisance. Judge Hand charged the jury that the state had the right to erect and maintain the dam, and that the court could not enquire into nor question its purpose thei ein. That the state having built the dam it could not be deemed a nuisance at law. That the plaintiffs being riparian proprietors below the dam 188 THE BENCH AND BAR were entitled to the use of its surplus waters, and were entitled to damages. The jury rendered a verdict for $150 md six cents costs. This inter- esting action, involving many intricate questions of riparian proprietorship, is reported at lengtli in 9 Barhour 350. At the same circuit was tried an action which well illustrates one of the modes of practice under the common law. A suit had been brought by Robert Whyllis against John Gilchrist, jr., in a justice's court in the town of Charlton, to i-ecover wages earned and a sum of money lent. It 'had been pending for several years in that court and the Common Pleas, and was transferred on the demise of the latter to the Circuit. It had its final trial before Justice Hand. John Brotherson, for the plaintiff, had associated with him in the trial Edward F. Bui lard and John K. Porter. Mr. Gil- christ had employed the legal firm of Beach & Bockes to defend his cause. The question hinged on the borrowed money, which had been a private transaction between the parties, and it was denied, in toto, by the defendant. Neither party could be witnesses, so Mr. Brotherson resorted to a feigned issue under the common law. A suit was begun before Thomas G. Young, a justice of the peace of Ballston, in favor of Samuel DeForest against Har- mon Van Voorhees to recover a sum of money due as "boot" on a horse trade ; it being alleged that the money received was counterfeit and that it was the same paid to Van Voorhees by Gilchrist, who . or SARATOGA COUNTY. 189 had borrowed it of Whyllis. Gilchrist was sworn as a witness in this suit and was obliged to testify that he had borrowed money of Whyllis at the time and the amount alleged and that it was genu- ine. Justice Young was then called by the plain- tiff in the suit of Whyllis against Gilchrist, and thus the missing link of testimony was supplied, and the plaintiff recovered judgment. The statute enabling parties to be witnesses has obviated any further iiecessity for resorting to such shrewd prac- tice, which, if justitiable at all, was proper under the circumstances attending it. Among the early cases submitted to a jury under the present form of our courts was that of Lydia Wait against William Wait. It was a suit in ejectment to recover widow's dower, and involved the important principle whether a divorce a vinculo mat r i7nonu a&ected the right of a wife's dower interest in the estate of her husband during her coverture. The suit was brought by Edward F. Buliard as attorney for Mrs. Wait ; and the defend- ant, whose rights were about to be invaded, em- ployed John K. Porter and Nicholas Hill, jr., to defend them against the hostile forces. Mrs. Wait had been divorced from her husband, Joseph Wait, by a divorce in chancery entered in 1825, for his unfaithfulness to his marriage vows. He died in 1845 in possession of the lands which formed the basis of this action, and they descended to his heir at law, the defendant. It was tried at the Novem- ber Circuit, 1847, before Justice Paige. The facts 190 THE BENCH AND BAR stated above were proved, and further that the decedent, Joseph Wait, was the owner of the lands in question prior to the decree of divorce. A ver- dict was found by the jury for the plaintiff ; which, however, was set aside at General Term, as reported in 4 Barbour 192, It was again brought to trial at the December Circuit, 1 848, before Justice Cad}^ who nonsuited the plaintiff. An appeal was then carried to the Court of Appeals by Gen. Bullard, where the non-suit was overruled, and the law as given by Judge Paige in his charge on the first trial was sustained. The opinion was pronounced by Judge Ira Harris, who held that a husband' s offences against his marital vows works no forfeit- ury of a wife's rights. She Is entitled to a support from him after a divorce a vinculo matrimonii under the Revised Statutes and, therefore, to dower if she.survives him ; and she is endowed of all lands owned by him during her coverture, A new trial was ordered, a settlement was effected. This case, in which Gen. Bullard gained so chivalrous a triumph, is reported in 4 Neio York ReiJorts 9o. About this time Judge Bockes in the County Court held a principle in the trial of an action under the statute of summary proceedings to enable a landlord to remove a tenant which was adopted by the Court of Appeals, and is the ruling author- ity in such cases. Israel Young brought an action in the County Court to eject Calvin W. Dake from the possession of his store at Porter's Corners, in Greenfield. Dake had, on the thirteenth of March, OF SAKATOGA COUNTY. 191 1848, hired of Young his store for one year from April 1, 1849, with the privilege of five, at a yearly rental of $100. The lease was a parole one. April 3, 1849, Young commenced summary proceedings by an affidavit that Dake held over and continued in possession of the premises against his landlord" s consent. Dake replied that he held over by per- mission. It was brought to trial at the April term, 1849, and Dake proved that on September 11, 1848, it was agreed by parole between him and Y^oung that he should occupy the premises for another year from April 1, 1849. Judge Bockes held that a -parole lease for one year to commence at a future time was valid under the statute, and the jury ren- dered a verdict for the defendant. It was removed to the Supreme Court on certiorari, and the verdict was affirmed. An appeal was then taken to the Court of .Appeals, which was there argued by Judge Warren for the appellant and William L. Avery for the respondent, and the verdict was again affirmed. It is reported in 5 New York Reports 463. Next in order of actions worthy of notice in this work was that brought by Francis Lewis against the Bensselaer & Saratoga Railroad Company. It was a suit for damages for putting the plaintiff off the defendants' cars in the autumn of 1849, ata point remote from a station. Lewis was a lad of about eighteen years (he was a brother of Nelson Lewis, the Trojan rifle marksman) living at Sara- toga Springs. A militia brigade training (now 192 THE BENCH AND BAR. remembered by Saratogians as the "Plunketwar") was about to be held, and young Lewis went to Troy and bought three barrels of oysters to sell on the occasion. This exhausted his finances, so he secreted himself under a seat on the Saratoga train. He was discovered by conductor Timothy M. Har- vey soon after leaving Mechanicville, who stopped the train and j)ut Lewis off at a point about a hun- drtt's Harbor railroad. They brought tlieir tUmilit s with them and established their residence in the town, temporarily, as they claimed. Their pers-onal property was assessed, a tax was levied md tJie town collector, by order of the defendants, made a distress on their premises and their property was sold. The defendants now brought an action for relief by A. J. Cheritree, attorney. The defendants were represented at the OF SARATOGA COUNTY. 205 trial by Alembert Pond and Judge Hay. Under the direction of the court the jury found the plain- tiffs were bona fide residents of the town at the date of the assessment, and rendered a general verdict for the defendants. An interesting case involving the competency of evidence was the civil action of Erastus Davison against Philip J. Powell, tried in our county in 1857. This was an action to recover an unpaid bal ■ ance for sawing defendant' s lumber, at the plain- tiff's mill at Jobville in the town of Stillwater, with a bill o items annexed and verilied. The defendant denied the allegations of the complaint as to the days and extent of work ; and plead waste of lumber to the amount of from 14,000 to 16,000 feet, valued at from $200 to $300. Judgment was entered for the plaintiff for $108.73. 1, C. Ormsby, for plaintiff ; E. F. Bullard, for defendant. A bill of exceptions was filed in the Supreme Court on alleged errors in the admission of incompetent testimony. The General Term held that the defend- ant' s answer was merely a negative pregnant, form- ing no issue that denied the correctness of plain- tiff 's complaint. It also held that the memoranda of a savvyer kept on boards and copied accurately in a book is a book of original entries, and that the copy is competent evidence. 16 Howard 467. Lewis DeGroft' against the American Linen Thread Company was the title of an action brought by the plaintiff, who was a merchant doing busi- ness in Mechanicville. It was twice he.ird at Cir- 9* 200 THE BENCH ATfD BAR cuit and sent back by the General Term to the Circuit for trial. It was finally tried at the Jan- nary term, 18o7, before Justice Rosekrans. Gen. BuUard was plaintiif's attorney, and Judge Bockes and Deodatus Wriglit were emploj^ed by the defend- ant. It was an action for breach of contract. The defendant, a corr)oration doing business under the laws of this state at Mechanicville, had in its employ a large number of persons Previous to Mai-ch 1, 1858, it had conducted a general store and control'-d the patronage of its employees to a great extent. On that day, the trustees of the corporation leased the store and sold their stock of goods to the plaintiff, one of the conditions being that they should carry the general trade of the employees of the company to the plaintiff; and in case of a failure, the sum of $300 was stated in the contract as liquidated damages. Abriam Fellows, a rival merchant, soon after was elected one of the trustees of the company and succeededin diverting the trade to his store. On proof of this statement of facts the plaintiff rested his. case. The defendant plead that the trade had not been diverted ; that the trustees had no authority to make such a (con- tract and seek to bind their successors ; and, that it was void as against public policy. A verdict was rendered for plaintiff for $875. The Judgment was reversed at General Term, but it was affirmed in the Court of Appeals. It is reported in 21 New York Reports 124. The General Term by Justice James, Rosekrans concurring, held that the plaintiff OF SABATOOA OOUWTY. 207 ou^ht to be non-snited and that there were five points in tlie case either of which was fatal to the plain- tiff. As the case had aire idy been tried three times, Gen. Bullard took the risk of going; direct to the Court of Appeals instead of going back for a new trial and non-suit. In order to take the step the plaintiff had to stipulate that he would risk final judgment against him if eTustice James was right on any point. Judge A. B. Olin and John Law- rence in the early stages were counsel for the defendants. Another substantial victory was won by Gen. Bullard in the action brought by Nancy Mors against Elisha Mors, William H. Mors and Henry G. Ludlow. It was brought to recover a wife's ii choate dower interest in certain lands in Water- ford, which she^had conveyed away by a- deed to which her signature was obtained under false and fraudulent pretenses made by her husband, Joshua Mors, that he wished to sell his real estate and remove to the west with his family. A fter securing her signature to the conveyances, he went west and proc^ured a ''Chicago" divorce. The suit was brought to trial in the September term, 1858, before Judge James. The defendants were represented by Pierson, Beach and Smith of Troy and had the counsel of Judge Romejm. The jury found from the evidence that prior to the acceptance of the deed defendants, Elisha Mors and Henry G. Lud- low had knowledge of Joshua Mors' intention to desert his family. That Joshua Mors executed the 208 THE BENCH AND BAB deed to Elisha Mors July 5, 1856, with intent to abandon his wife and child, and that he secured her signature by fraudulent representations. That Elisha Mors was cognizant to this fraud when he took the deed, and that William H. Mors knew of the same when he took the deed of the premises from Elisha Mors, March 2, 1857. The jury founda ver diet for the plaintiff to endow her of her inchoate rights in the lands thus fraudiilently conveyed, and that the amount of her alimorj^ be collected from the property. The Court of Appeals by this decision established the con-ect principle that a wife can attach a fraudulent conveyance made by her husband with intent to defraud her of her sup port and rights, the same as a creditor. In January, 1860, Seymour Chase, proprietor of the Ballston Atlas, a newspaper then publislied at the county seat, by the direction of David Max- well, then clerk of the board of supervisors, pub- lished in it the 'Abstracts of Town Accounts for 1859," which the law requires the clerk to print in some newsjiaper. He charged the county, accord- ing to the then legal rates, lii'l}' cents per folio for one insertion, amounting to -S6<>. lie submitted his hill to the supervisors in 186!). and it was audited by them at S-^O. He accepted this sum under pro- test, and began an action in a Justice's court against the ''County of Saratoga" for the balance. He recovered a judgment which was affii'med by Juih'-e Crane in the County Court. An Appeal was then taken to the Supreme Court which was heard in OF SARATOGA COUNTY. • 909 General Term in May, 1861. After hearing Charles S. Lester for the appellant,- and Seymour Chase, appellee, in person, that tribunal decided that the action was wrongly entitled. Actions against the county can only be brought against the supervisors of the county. It, however, passed upon the mer- its of the action. While the statute of 1847 named fifty cents per folio as the price of the first insertion of a legal notice, it clearly meant it to be the extent of the price and left in the power of the auditing board to award a lower sum. The super- visors are authorized by statute to audit such claims. They having acted in a judicial capacity, their work is not reviewable by this court. Relief might have been sought by a mandamus against the supervisors. Judgment reversed. 33 Barhour 603. Actions against sheriffs are frequently brought to recover alleged damages arising from the seizure of one person' s property on an execution against another. From the list found in the minutes of our Circuit Court I have selected the suit of Lorenzo Baker against George B. Powell, sheriff, as furnish- ing the most interesting features. It was tried in May,. 1861, before Justice Rosekrans and a jury. I. C. Ormsby was plaintifi"'s attorney, and E. F. BuUard, the defendant's. The action arose from the following facts : Baker, the plaintiff, had a chattel mortgage on a stallion team owned by Rev. John P. McDermott, Romish priest at Mechanic- viili.. iwbiajOL L. Brewster, a deputy ilLerJif, ifii^ed 210 THE BENCH AND BAR the team on an execution against Father McBermott. While the horses were in his possession under the levy he used them in his private business, and one of the horses died. The plaintiff, as mortgagee, then brought suit against sheriff Powell, alleging that his mortgage interest had been sacrificed through the culpable negligence of Brewster, the deputy sheriff. On the trial it was proven that McDermott was a fast and reckless driver of the team while in his hands, and that Brewster used ordinary care of them while he had them after the levy. The jury found that Brewster exercised the care of the horses required by ordinary prudence, and that they were not injured by him in his pri- vate business. Judgment was entered against the plaintiff for costs. • At the same term was tried the action brought by Charles Neilson against Abraham Post, executor of Israel Post, deceased. The plaintiff's attorneys were Hon. Ira Shafer and ex-judge Deodatus Wright of Albany. The defendant had the aid and counsel of ex -judges Crane and McKean, and William T. Odell. The action was brought to recover a sum of money lent by Neilson to the decedent, of which he had as evidence a note for $200. The defendant denied that his father, Israel Post, ever executed the note ; and souglit to prove that the old gentle- man, several years previous to his death, had divided his property among his heirs, and made his home with one of his sons, and was not in the need of negotiating loans at the time alleged in the OF SARATOGA COUNTY. 211 note. The plaintiff testified very circumspectly to the occurrence of the loaning of the money and the giving of the note, and the signature was pronounced genuine by many i:)ersons residing in Stillwater, who were acquainted with the handwriting of Israel Post. One of his sons testified directly that it was a for- gery of his father' s signature; but, under the search- ing and ingenious cross-examination to which he was submitted by Mr. Shafer, it transpired that his self interest blinded his eyes, so that at one exhibi- tion of a recognized genuine signature of his father he said it was genuine, and on another he said it was not. Defendant' s counsel objected to this mode of cross-examination, but Judge Rosekrans per- mitted it as allowable under the circumstances, as tie witness was making a grave charge against a worthy old man. Mr. Neilson was the well-known author of a "History of Burgoyne's Campaign." Judge Wright then summed up the case in his hap- piest vein, mixing law and satire, argument and denunciation in unstinted terms. It was his last appeal to a jury of his native county, and it was an effectual one. The jury found a verdict for the plaintiff for $356.45 and costs. Next of importance is the ejectment suit brought by William V. Clark and Clark J. Rice against John O. Lyon. The plaintiff claimed title by con- veyance granted under the patent to John Glenn and forty-four others. The land in suit was a one hundred acre farm in the town of Edinburgh. There was no evidence that the plaintiffs, or their 212 THE BENCH ATTD BAR grantors, had ever made any improvements on the place, or been in personal possession other than by deed. The defendant proved title by a warranty deed from his grantor, and a peaceable possession for nearly forty years, during which period his title had been unquestioned, and he had reduced a large part of the farm to a state of cultivation. He claimed that if his grantor was a " squatter " it was unknown to him, and could not at this time work to his prejudice. Joseph Covel, John M. Carroll and William Grleason were the plaintiff 's attorneys. The defense was entrusted to Gen. George S. Batch- eller and Alembert Pond. It was tried at the De- cember term, 1861, before Judge Rosekrans, who held that a clear case of adverse possession was established by th<=^ defendant's pleadings and evi- dence, and granted the non-suit asked for by his counsel. On the principle that "Eternal vigilance is the price of Liberty," and consequently their solvency, insurance companies are prone to question the pro- priety of many of their policies on risks taken by their agents when called on to adjust a claim after a lire has terminated the existence of the property insured. Particularly so, if there has anything transpired to furnish a clue to evidence that the party assured had imposed upon the company, or its agent, at the time of the assuming of the risk, or, subsequently, as it may happen. Such was the case assumed to exist when the Indemnity Fire Insurance Company of New York ; the Hope Fire OF SARATOGA COTTNTT. 213 Insurance Company, do. ; and the Manhattan Fire Insurance Company, do., refused to adjust and pay the policies issured by them to Patrick Kelly of Waterford, on certain property in Chicago, which had been destroyed by tire July 13, 1861. A test suit, entitled "Patrick Kelly against the Indemnity Insura,:ce Company," was tried in our county, in the September term. 1862, before Justice James and ajury. The plaintiff was represented by Robert Sewell, attorney, and William A. Beach, counsel. The Indemnity Insurance Company had for its at- torney ex-Judge Gilbert Dean, the Hope Insurance Compan}^ was represented by Frederick A. Conk- ling and the Manhattan Insurance Company by E. H. Bowne. The plaintiff presented his policy and proof of loss in evidence. The defense was that thi fir • originated in the- third story of the building in a gambling saloon, whicli was kept there with the knowledge of the plaintiff and without that of the defendant, or its agent. Secondly, that the goods iuhured were the property of defendant's son- in law, and fraudulently insured in Kelly's name. Finally, that a portion of the goods belonged to a Boston boot and shoe firm, and were held to be sold on. commission, and that the plaintiff had fraudulently altered his books to conceal that fact. After hearing the evidence, the jury found a verdict for the plaintiff for $2,708, and judgment was entered for that sum and costs by his attorney. This judgment was affirmed, both at the General Term and the Court of Appeals. The case is re- 214 THE KBITOH Ain> BAR ported in 38 ISeui York Meports, 322. Subse- quently, Kelly received judgments against, tlie Man- hattan Insurance Company for $2,946. 72 ; and against the Hope Insurance company for $5,276.57. In the year 1861, one Isaac Baker, a judgment debtor, was committed to the county jail on an exe- cution against his body. Subsequently he executed a bond to Sheriff Powell, with William F. Row- land, surety, conditioned to pay the judgment against him if he absented himself from the "lim- its" until discharged therefrom by law. The sheriff, understanding that it was a judgement recovered in justice's court, filed the petition and bond and released Baker, who at once absconded. Powell, finding that it was a judgment in the Su- preme Court, then began a suit on the bond against Rowland by Chapman & L'Amoreaux, his attor- neys. An answer was filed by C. S. Lester, defend- ant's attorney, pleading that Baker's was a volun- tary escape with the consent of the sheriff. The action was tried at the January term 1863, befoie Justice Piatt Potter. The jury found that the sheriff was blameless in the matter, and judgment was rendered in his favor for $296.40 damages and costs. The suit brought by Antha A. Wait against Joseph R. Wait, tried at the January term, 1863 ; and of the same plaintiff against David W. AVait, tried at the same term, cover about the same grounds, and may be embraced in ilie same para- graph. The former was brought to annul an as- OF SARATOGA COUNTY. 215 signraent of property made by Antha A. Wait to Joseph R. Wait, on the ground that it was exe- cuted through fear other husband, David W. Wait. A verdict was rendered for the phiintitf on the trial. At Special Term before Justice Potter, the same month, in another action between tlie same parties, a decree was entered setting" aside a deed executed by Antha A. Wait to Joseph R. Wait recorded in Book 92 of deeds, pagf^ 377, on proof of the same state of duress. E. F. BuUard was attorney for Mrs. Wait, and John Brot herson and Clement C. Hill for the defendant. The action brought by Mrs. Wait against her husband was to obtain a divorce a merisa et tlioro, on account of alleged excessive cruelty on his part, rendering it unsafe for her to live with him. Mr. Bullard was her attorney in this action, also. The defendant's attorneys, John Brotherson and Clement C. Hill, plead a general denial, and set up a counter claim for a divorce a mnculo matrimonii from defendant, allegmg that she had proved unfaithful to her mar- riage vow of chastity. The defense was ignomini- ously routed on the trial, and the jury rendered a verdict for the plaintitf for the relief demanded in her complaint. The court entered a decree setting aside to her use her personal estate and certain articles of personal property, named in the decree, and ordered that the defendant execute a bond to pay the defendant seventy dollars yearly as ali- mony, in half yearly payments. This he entirely neglected to do, and, on measures being taken to 216 THE BENCH AND BAE. compel his performing the same, he found Jones- vilie to be an unhealthy section and since 1863 he has been "watching and wailing over the border," residing at Harlow, Frontenac county, Ontario, excepting when making surreptitious visits to the States. An execution against Mr. Wait having been returned unsatisfied, Mr. Bullard had George L. Terry appointed receiver in proceedings supple- mentary, and commenced a suit in his name against William Wait and John Martin to collect a note held by David W. Wait against William Wait, originally drawn for $3,900, on which $2,500 was yet due. The defendant, William Wait, by Beach & Smith his attorneys, plead payment. John Mar- tin lived in Canada and was not served with per- sonal process, but legally by advertisement. The suit was tried at Special Term before Judge Bockes September 10, 1864, and a judgment was entered for plaintiflt" for $1,538.59 damages and costs. The General Term affirmed the judgment, but the Court of Appeals granted a new tvial September 29, 1871. The second trial was heard at the Sara toga Circuit, May 20, 1873, before Justice Bockes with a jury. After hearing the testimony for the plaintiff, the defendant by J. S. L'Amoreaux, moved for a dismissal of the complaint on the grounds : That the plaintiff had failed to prove a cause of action. That the proof faiied to show any evidence of fraud on the part of William Wait, or any proof of fraud on the part of any one in the transfer of the note. The motion was granted and OF SARATOGA COUNTY. 217 judgment was entered for the defendant, William Wait, against Terry, receiver, etc. This judgment was affirmed at General Term and in the Court of Appeals, and thus the matter now rests. On the trial before J.ustice Bockes, Wait produced proof that he had paid the note to Martin, an entire stranger. On the second trial no such proof was offered. A judgment by default was entered against Martin, on default of appearance. Some men never appear to be happy unless entangled in the meshes of a suit at law. Such an one appears to have been the late Abraham Best of Clifton Park. He had as strong a constitutional aversion to paying taxes as do the noted Smith sisters of Glastonbury, Connecticut. In the year 1863, Adam Y. V. Pearse was collector of the school district in Clifton Park in which Best resided. A tax warrant having been placed in his hands on which a certain amount was set opposite the name of Best, he called upon him for the amount at his residence. After making some querulous objec- tions, he invited Pearse into his house and took him to an upper room. He there left him and went out, locking the door after him. After waiting in vain for quite a time for his return, the collector raised a window and jumped to the ground. He brought a civil action for an assault against Best which was tried at the January term, 1864, before Justice Piatt Potter. George G. Scott was plain- tiff 's counsel, and J. Summerfield Enos appeared in behalf of the defendant. A j udgment was entered 10 218 THE BENCH AND BAR against Best for $50 and costs. Soon after this, he was adjudged a lunatic on the petition of his re- latives, and subsequently he died at the Marshall Infirmary in Troy. Mention was made in a previous chapter of the indictment against the Whitehall and Waterford turnpike company for maintaining a public nuis- ance, and how that the last- gate on the road was demolished by a mob. The stockholders liaving abandoned their old style and name and re-incor- porated under the general law as "The Waterford and Stillwater Turnpike Company/' a proceeding was instituted by an action in the name of the People of the State of New York to annul their- assumed franchise, and to declare the road leading from Waterford to the village of Stillwater along the west bank of the Hudson river to be a public highway. The People were represented by v^ttor- ney-General Daniel S. Dickinson, CliarlesS. Lester, John O. Mott and C. A. Waldron. The attorneys for the company were James P. Butler and Edgar L. Fursman. The action was brouglit to trial before Justice Piatt Potter at the January Cii'cuit, 1864. The Jury found that th«^ turnpike was not constructed with a hard roadbed, or with ditches on each side, as required by law, and rendered a verdict for the n^b'ef demanded in the People's complaint with costs of the action. The directors of the Turnpike Com])any sought to reverse the judgment entered on this verdict but it was affirmed OP 8ABATOG-A COUNTY. 219 in" the Court of Appeals, January, 1866. It is reported in 2 Keyes' Bejports 327. The action brought by Harvey Losee against Coe S. Buchanan, Daniel A. Bullard, C. C. Clute, J. W. Clute, J. D. Clute and the Saratoga Paper Company was closely contested by all the defend- ants. The suit was brought for the plaintitf by Hon. Alembert Pond of Saratoga, and Judge Par- ker of Albany. The defendants Buchanan, Bullard and the Paper Company were represented by Gen eral Bullard and Messrs. Beach & Smith, the de- fendants Clute Brothers secured the services of Hon. Judson S. Landon of Schenectady. The res .gestcv of the action was the damages done to plain- tiff' s buildings by the explosion of the rotary bleach boiler in the Saratoga Paper Company's paper mill February 13, 1864, whereby pieces of the boiler were thrown thi-ough plaintitf' s adjoining struc- tures. The defendants Buchanan and Bullard were the trustees of the company, and the Clute brothers of Schenectady were the makers of the boiler. It was brought to trial in the January term, 1866, before Judge Piatt Potter and a jury. A non- suit was entered by the court as to the Clute Brothers, they having proved satisfactorily that the boiler had been duly inspected and pronounced sound. The plaintifls relied on the dicta of the Court of Appeals in Hay against Cohoes company (2 'Neio York Reports 159) to sustain their points; particularly as it was an opinion adopting the points prepared in that case by General Bullard, 220 THE BaNOH AND BAR who prosecuted Hay's case to a successful termiua- tion. A verdict was rendered against the other defendants for $3,420. The General term reversed the judgment of the Circuit, liolding that negligence must be proved, as the defendants stood behind the inspector's certificate that their boiler was sound, and granted a new trial. It was had in the January term, 1867, before Judge Rosekrans, and the jury found that the paper company were guilty of negligence and rendered a verdict for the plain- tiff against it for $2,703.36. Judgment for costs against the plaintiff was entered in favor of Messrs. Buchanan and Bullard. Another appeal was taken by the plaintiff and the General Term reversed the whole judgment. It was finally settled by the Court of Appeals affirming the judgment as to Buchanan and Bullard, holding that trustees are not personally liable for their principal's acts, and also affirming it as to the Paj)er Company' s liabil- ity. It is reported in its different stages in 61 Barbour 86, 42 Howard 385 and 51 Neio York Reports 476. Suits were also commenced against the Saratoga Paper Company for causing the death of a Mr and Mrs. Jeremiah Dwyer hy the said explosion. They were entitled Dwyer, admr. agst. Saratoga Paper Company and William McNamara, admr. agst. the same. They were tried at Circuit, under the foregoing rulings of the higher courts and a verdict of $1,000 was entered in the first and $2,393.37 in the second action. The same attor- OF SARATOGA COUNTY. 221 neys appeared in these suits as in that brought by Mr. Losee. The action brought by Oren Humes, a Greenfield farmer, against his brother agriculturalist, Chauncey L.Williams, is deserving of notice from its singular feature of damages as alleged in the complaint. It recited that the defendant, in the summer of 1866, over-stocked a ten acre lot on his farm through which a small stream passed to the plaintiff's farm, and thereby caused the water to How into plain- tiff' s close roiled, impure and unfit for use for his cattle to drink. This singular issue of riparian proprietorsliip was brought to trial before Justice Rosekrans at the January term, 1867. The jury found a verdict for the plaintiff, assessing his dama- ges at five dollars. John W. Crane was plaintiff's attorney, and L. B.* Pike for the defendant. For the last ten years there has hardly been a term of either the civil or criminal courts held in this county at which some issue in the "Sweet family feud " has not appeared for trial. The first action in this " Pandora's box" was that tried at the September term, 1867, before Judge Rosekrans, in which Mary S. Van Deusen sought to eject her brother, Sylvester Sweet, from a certain farm in Moreau. They were the children of one Sylvester Sweet of that town, who died in 1866. The plain- tiff claimed under a devise contained in her father's will, dated September 1849. The defendant replied that he was in occupancy as tenant of Henry Jaco- bi, son-in-law of Swe^^t, deceased, who claimed title 222 THE BEIfCH AND BAR under a deed alleged to have been execnted by the decedent, April '20, 1864. The will was not disput- ed. The plaintiff replied that this deed was exe- cuted by her 'atlier when he was non corwpos mentis. Evidence was given to prove that decedent was insane from 1862, and that a commission of lunacy was granted in 1865, on the report of which Judge Hulbert had declared him to be a lunatic. The court denied the motion for a non-suit, but charged the jury to find for the plaintiff if they found the decedent to have been insane in April, 1864. A verdict was given for the plaintiff. The judgment was affirmed in both General Term and the Court of Appeals. See the reported case in 51 New York 379. Lewis Varney and J udge Hay were plaintiff' s attorneys, and Sweet and Jacobi's claims were ably sustained by Messrs. Pond & French, and Judge Brown of Glen's Falls. Another action having its animus engendered by this Moreau ' ' vendetta ' ' was that brought by James Le Baron against Howe for damages sustained to his character by reason of the false and slanderous stories uttered by Howe, to the effect that Le Baron had burned his buildings, which were in- sured in the Watertown Agricultural Insurance company, with intent to defraud the insurance com- pany. The trial occupied the whole of the May term, 1869, before Justice Bockes. The jury found a verdict for the plaintiff for $25. It was the last cause tried by Judge Hay, at our Circuit, who was associated with Mr. Varney for the plaintiflF. The OF SARATOGA COUNTY. 223 defendants attorneys were Judges Mott and Brown of Glen's Falls. The suit of William P. Clothier, of Corinth, against Adriance, Piatt & Company, of Pough- keepsie, was brought under the Code to have a cer- tain note drawn by him declared void. J. W . Hill was his attorney. Mr. Clothier claimed that he signed the note under fraudulent representations made by a man who was acting as the defendant' s agent in selling mowing machines, being induced to sign a blank note when he supposed it was filled in witli a small sum. This swindling of farmers* by a set of traveling sharpers has been quite prevalent for some years past. Men who would not lend their name to aid the credit of a struggling honest neighbor have readily signed the various "sugar coated" notes presented by strangers with oily tongues and the impudent pertinacity of the Evil One. The agent tilled up tlie note with a sum sat- isfactory to Lis plans and passed it to his princi- pals. The action was brought to trial before the September Circuit, 1867, before Judge Piatt Potter. Clothier was non-suited on motion of Messrs, Cham- bers & Pomeroy, the defendants attorneys. It was sustained in the Supreme Court, but the Court of Appeals sent the action back for a new trial. It was re-tried before a referee, who reported in Mr. Clothier' s favor. The defendants appealed and the General Term, in May, 1876, reversed the judgment; Justice Bockes dissenting and holding that an instrument fraudulent in its inception can never 224 THE BENCH AND BAR acquire a legitimate nature. Mr. Hill has now- token another appeal to tiie court of final resort. Of a similar nature was the foundation of the civil action brought by Douglas Cheesebrough against Thomas H. Tompkins. Mr. Tompkins, who was a farmer living in Greenfield, near Glen Mitchell, was induced by one Brown, agent for George W. Palmer, to accept the agency for the sale of a patent mowing machine knife grinder. It was, however a patent swindle. The farmer was induced to sign a certific:ite of agency promising to pay a certain sum after he had sold a certain number of machines. By an ingenious typographical device, the certificate w^as so printed in blank that a portion of the right end of it could be cut off" and leave a promissory negotiable note. Mr. Cheesbrough, who was a merchant in Saratoga Springs, purchased among many others, the note purporting to have been signed by Mr. Tompkins ; Brown endorsing Palmer, the pa3^er' s name. In common with other farmers who had allowed their curiosity to get the better of their common sense in signing these con- tracts, Mr. Tompkins refused to pay the note. The action brought by Mr. Cheesbrough against him was regarded in the nature of a test suit. Hon. John W. Crane was plaintiff's attorney and Joseph A. Shoudy defended Mr, Tompkins against the unjust claim with the counsel