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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 })resi<h>d over by .Judge Thom]»
son and the thiee judg»^s above name<l. with John
Vainam. Eli)»halet Kellogg ;ind Kjtenetus W liile,
associate justices.
The tirst business recorded is ihe admission lo
practici^ of Cornelius \'andenburgh, Cuert \'au
Schoonhoven, Peter Ed. Elmendorf, Myndert Van
Everen jr., John V. lienrv, John 1>. 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-
ri<leni'e, a few days aftei- tliis chapter was original!}
Avritten, in the spring of 1876, (Jol. C. T. Peek and
family had a similai- nairow escape with tlieir lives
while attempting to pass across tlie outlet to attend
church at Ballston Outer. Tliat half mile of most
execrahle highway is a h'xtiev disgrace to the pros-
perous town of Ballston.
Ithamai- Smith of Ballston and William Palmer-
ton of Stillwater were tried for assaulting constables
in the performance of their duty. They were con-
victed and fined ; Smith one pound and Palmerton
five pounds. It is easy to imagine the language of
stern rebuke of the enoriuity of these offenses witTi
which the presiding judge addressed the culprits.
The first (Urcnit ('ourt and Oyer and Terminer
was held at the liouse of Jedediah Rogers, in Half-
moon (now CMifton Paik village), Tuesday, July 7.
1791 . It was presided over by Chief-justice Robert
Yates» assisted l\y all the judges of Common Pleas
and Adrian Hagei-maii and Epenetus White, jus-
tices of the peace. The next term was lield in the
church at Stillwatei-, June 4, 179*2. No business of
importance was traiisactefl at (Mther term. The
iirst petit jury that was impanneled was in the court
of Comnfon Pleas, to try the issue in the suit of
Daniel Ketchum' Tavlor against Daniel Ketchum
for damages for trespass, assault and false impris-
20 THE BE.\CH AND BAK
onment. The Jury <;onsisted oH Thomas Sweptiiian.
foreman ; William Carpenter, Jeremiali BeU^. .lohn
Rowley, Seth Rogers, Jacob Rogers, E}»liiaim
Wood worth jr., William Patiick, Samuel Biishie,
Hobsou Beely, John Andrews jr. and Josepli Ben-
jamin. They had no difficulty in disposing of the
case and gave a verdict to soothe the injurt'd feel-
ings of the i)laintiff for fifteen shillings and costs.
C. Yandenburgh was the successful attorney.
At the June Sessions, 1794, a case arose wliicli
demonstrated that justices of the peace are some-
times of a belligerent temperament, for John Biad-
street S<'.huyler was indicted for an assault and bat-
tery on Seth ('. Baldwin, and S(^th C Baldwin was
also indicted for an assault and battejy on .b)iinB.
Schuyh'r "at this present term of court." At the
next te]-m the parties *" having adjusted their dlffer-
enc^es." nolle pro.sequlefi were entered. Wlietlu'r
they settled tliem in another and more private game
of fisticuft's or over a "cup of sack,"" honesi old
clerk Swa^tdid Jiot record, nor does tradition whis-
per. At the same term, Dick, a negro slave. Avas
tried for an assault and battery on Keziah Millard,
wife of his master, Edy Millai-d, and found not
guilty ; thus showing that in those ]>rimitive days
tlie (Mdored man liad rights in this c(nint\' whi<di llie
"white n»an were b(»und to respect."
The tiiird Circuit and Oyer was held in tiie Pres
byterian iliureli in Ballston, Chief-justice Tates
}>residing. .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 <rourts. Gordon se-
cured a verdict stamjiing certain allegations proved
t<» iiave Ix'eii set atioat by Palmer to have been
lil)el<nis, and Pahiier obtained Gordon's indi<'tin(Mit
for assuming to act in the caj)acity of a judge of
Common Pleas without taking the constitutional
oath. He had held that office in AllninA county,
OF SARATOGA COUNTY. 25
and supposed that tlie erection of the new county
tr-ansferred him to its bench. The indictment was,
however, soon afterwards quashed. Both, it woukl
ajDpear, were highl}^ esteemed by the community,
for both sat as judges in the county courts and
each served two terms in the national house of rep-
resentatives. Pahuer survived liis oj^ponent and
as Surrogate probated his will. Gordon sleeps the
last sleep in the Briggs cemeter}^ in Ballston, and
Palmer lies in the cemetery at Ballston Spa.
We have seen in the preceding chapter that there
was no settled place of holding the courts, the'
shire town or public buildings not having been lo-
cated until four years later. At that time the
most important place in the county was Half Moon
Point (now Waterford), but its location was out of
the question. Next came Stillwater village, the
residence of Judge Thompson and county clerk
Swart. But the same objection existed as to that
and Schuylerville (the home of John -Bradstreet
Schuyler, a son of the patriot general), as there did
to Waterford. Next came Ballston (meaning the
Centre), which was then an important place of trade
for the northei-n country, having two hotels and
offering many and strong inducements to have it
made the county seat. It numbered among its ad-
vocates Judges Beriah Palmer and Epenetus White,
Henry Walton and Seth C. Baldwin, who were
among the most intiuential men of the time. An
act was passed by the legislature March 26, 1794,
naming John Bradstreet Schuyler, Richard Davis
jr., James Emott, John Ball and John McClelland
2
26 THE BENCH AND BAK
commissioners for locating the county seat and
building the court house and jail. James Emott
was a son-in-law of Beriah Palmer, and was favor-
able to locating it at the Centre, which was to the
citizens of the town what Boston is to the sons of
the old Bay state. Ball was the son of Rev. Eliph-
alet Ball, and brother-in-law of Gen. Cxordon, and
lived then at Gordon's mills, now Milton Centre.
He too, was supposed to be favoi-able to the same
location. Mi-. Davis lived in Half Moon .and Mr.
McClelland lived in Gal way.
Now came the question of location. The town
of Milton had been set off from Ballston in 1792,
and Col. John Ball had been its tirst supervisor.
A fine and thriving settlement had sprung up around
the church on the hill, and like most new and enter-
prising embryo cities it affected to despise its staid
old neighbor on the souch as rather too old fogyish.
The forty-third parallel (whic^h is the dividing line
between Ballston and Milton) soon became as noted
a point of divergence of common interests as did
the Tweed of old in dividing the Scot from his Saxcm
foe, or as in later days did Mason and Dixon's line
mark the opposing currents of free and slave labor.
Of course, Milton put in its claims lor tiie location
of the public buildings and its designation as the
siiire town. Itsclaims were presented to the com-
mission l)y Col. Jolin Ball, to the disgust of his old
Ballston fri<^nds. H«' was back*'d by supervisor
Abel Whalen, Elisha Powell and Dr. Aaron Greg-
ory, a son-in-law of Judge Thonqison. The latter
and Gen. Gordon, it is alleged, secretly aided Col.
Ball in his ondnavors. Ballston Spa and Saratoga
OF SAKATOOA COUNTY. 27
Springs were then unknown, and of course were
not contestants for tlie honors about to be conferred.
The commission deliberated long the mooted ques-
tion ; the decision wavered, and iinally seemed to
be decided in favor of the southerners. John B.
Schuyler, who remembered his late encounter with
Seth C. Baldwin, still stood tirm with Col. Ball
against the designation of Baldwin's home as the
county seat. At this j unctare Capt. Edward A. Wat-
rous, who lived on the hill north of Gen. Gordon,
offered as a compromise to give to the county a site
on his farm to be public property as long as occu-
pied by the court house and jail which he proposed
should be located thereon. This proposition un-
doubtedly had its origin in the mind of Gen. Gor-
don. The offer was accepted by the commission,
Ballston was declared the shire town, but Gordon
enjoyed the discomfiture of his old antagonist.
Palmer.
The site having been decided, the commissioners
began to perfect. £1,500 New York currency had
been appropriated for the purpose of erecting a
suitable building or buildings for the court house
and jail. There was no provision for the county
clerk's office, and the same was kept by the clerk
in his own office, wherever it might be located, until
1824, when the little stone edifice, so familiarly
known in Ballston Sx)a, was built. A contract was
made with one Luthei- Leet to erect tlie building
according to the plans agreed upon. It was to be
of wood, two stories in hight, fifty feet square, with
a one-story wing upon the rear twenty by thirty
28
TTTE BENCH AND BAR
feet. For tlie accompanying diagrams of the build-
ing and the court room I am indebted to Hon. Geo.
G. Scott.
Like some modern commissioners and contract-
4
—
5
5
3
k
6
1
o 1
PlUNCIl'AI. IKOor.
1, Hiuroom. '2, Debtors' Room. :!, Jailor's Private Kooin 4.
Kitolien and niiiin-c Kooin. o, o. Cells. ('., Corridors.
ors, the commissioners found tlie stun first a])pro-
priated was insufficient, and t'fioo had to be further
raised for tiie i)urpose of completion in each of the
two succe«^ding years. Tiie court house thus cost
the then enormous sum of JJ^OJoO. The timber for
the luiilding w:is furnished by Edmund Jennings,
OF SARATOGA COUNTY.
29
father of the venerable ex-sheriff Joseph Jennings,
who yet distinctly remembers its erection.
The court house having been completed, the May
term of the Common Pleas and Court of Sessions
for 1796 was held therein. John Thompson, first
judge; and judges Sidney Berry and Epenetus
White, with associate justi(;e Eliphalet Kellogg,
sat on the bench in the former ; and judges Gordon
I z
»
4
3
COURT ROOM FLOOR.
1, Bench. 2, Bar. 3, SheriflF's Room. 4, Jurors' Room.
and White, and justices Van Schoonhoven, Kellogg
and John Ball held the scales of justice in the lat-
ter. In the Common Pleas, on due ])root' of resi-
dencp and on taking the })rescribed ojitlis, .lolin
Franklin, an alien, was admitted to citi/enshj)).
The first case tried with a jur}^ within its wall.s was
a declaration in as.sumpsit by one James S. Smith
against James Reynolds. The chosen twelve were,
:?() THE BENCH AND BAR
William Reeves, foreman ; Noali Taylor, Henry
Dunn, Hez. A^anderwerker, .lolin Hoyt, Joseph
Rogers, Thos. Ostrander, Stephen Benedict, Aaron
Wilson, John Pettit, Chas. Deake jr. and Mark A.
Childs. It is recorded "that without leaving their
seats the juiy rendered a verdict for the plaintift'
for £10,l()s., and six centscosts." If, as in modern
times, the successful attorne}^ received the costs
for his fees, Mr. Guert Van Schoonhoven must have
felt liberally rewarded for his forensic efforts in be-
half of Mr. Smith. For several years the principal
business in the Common Pleas related to petitions
from imprisoned d«^btoi's to be released from dui-ance
vile ; for it must be remembered that in tliose days
the "gloi'ious j^rivilege of imprisonment for debt''
was a feature of our laws and was cherished by
creditors as one of the i-ights secured by 3fagn<i
(Jharta. That it was not appreciated by the debtor
class is shown by the numerous petitions tiled by
them in (yommon Pleas. The court was otherwise
occupied extensively in settling partitions of lots of
the allotnu'uts of the Kayaderossei-as patent. In
1805 the Court of Common Pleas em])loyed James
S(tott to survey the jail liberties, which "contained
three acres, exclusive of the. lands on which tlie
court house stands, and takes in the great^^st part
of the buiklings on the hill." As debtors "on the
limits" could only leave the same on Sunday with-
out liability of re-arrest bv their bailors orcreditors,
it limited theii- circle of accpiaintaiuies to a very ex-
clusive ''set." However, in 1811, this was so far
modified as to allow them "to walk in the highway
OF SARATOGA COUNTY. 31
to and from the Sprino- in tlie village of Ballston
Spa."
Judge John 'J'honipson, having reached the age
of sixty in 1809, the constitution rendered him in-
eligible for further service. Salmon Child of Green-
field was appointed first judge by Gov. Tompkins.
He held office until 1818. The following gentlemen
sat on the bench with him as judges during his term
of office, viz : Beriah Palmer, Samuel Clark, Adam
Comstock. John Taylor, Nathaniel Ketchum, John
McClelland. John Stearns, William Stilwell, BenJ.
Cowles, Samuel Drake, Ashbel Andrews, William
Patrick jr., Elisha Powell, Ziba Taylor, John M.
Berry, Abner Carpenter, Abraham Moe. Thomas
Laing, Avery Starkweather, Jeremy Rockwell,
Thomas Dibble and Herman Ganzevoort. Until
1818 there was no limit to the number of judges.
The legislature that year limited the number to a
first judge and four associate judges. The last en-
try in Common Pleas held in the old court house
was the report of Onesimus Hubbell, James Scott
and Jeremiah Mann in the partition suit of Martin
Goodrich et. al. against Lewis Goodrich, filed Jan-
uarv 30, 1816. The following attornevs were ad-
mittedlo practice in Common Pleas at Court House
Hill, viz : Daniel L. Van Antwerp, James Thomp-
son, Jonathan T. Haight, ZebuTon R. Shipherd,
Samuel Cook, Nicholas B. Doe, Samuel Young,
George Palmer, William Ganzevoort, Esek Cowen,
Daniel G. Guernsey, Samuel A. Foote and John L.
Viele.
In the Court of Sessions, April term, 1798, there
32 THE BENCH AND BAK
was tried an indictment which shows that the beef
market was at a low ebb, for a good milch cow was
valued at only $12.50. Abel Buck having been in-
dicted for stealing such a cow from James (Ireen at
Ballston Centre, he was on proof of her value, con-
viction of petit larceny and sentenced to hard labor
in the county Jail for two months. So far as is
known by the records he was Jailor Gregory's lirst
boarder. At the January term of the Court of
Sessions in 1800, the first indictment for ])erjiiry
was tried against one Araasa Parker, of Milton.
Josiah Ogden Hoffman, attorney geneiul ai)peared
for the people and Guert \"an Schoonhoven for the
prisoner. The alleged perjury was said to have
been committed at the preceding term of Common
Pleas. The Judges who had heard the testimony
gave conflicting accounts of his evidence as they
understood it, and the Jury gave Parker the "benefit
of the doubt."
The spirit of improvement was abroad about the
year 1<SOO, and. as ever, it was opposed by conflict-
ing private interests. Numerous mill owners in all
pai-ts of the county were indicted for maintaining
nuisances. The thing complained of being the
dams which held back the waters to the alleged
creat increase of fever and the detriment of the ])ub-
lic health. Noticable among these was one against
JosliuH B. Aldridge of Ballston Spa, (m c()m])]aint
of Ste])lien II. White, for stop])ing the flow of wafer
in Gordon's creek by his saw mill diiiii. In this
case, as in nearly all otlieis at the time, an ordei-
lor the razing of the dam was entered in the min
Utes of the eourt.
OF SARATOGA COUNTY. 33
At the October term, 1801, an indictment was
found against Abraham LaDieu of Northumber-
land and his wife Abigal, for arson. They were
tried in the next Oyer and acquitted. At the same
Court of Sessions John Robinson pleaded guilty to
stealing £10 from Gilbert Laing and was seutenced
to state ]H'ison for < )ne year and one month . George
Green for beating liis wife Peggy was sentenced
January 12, 1804, to "two weeks in the county goal
on bread and water." At the November term,
ISOf). Graudus Van Schoonhoven and Samuel
Demarest were each lined live dollars for keeping
gambling tables in their taverns ; and Jacob S.
Viele, a town collector of taxes, was found guilty
on three indictments for extortion and lined $105.
At the April term, 1806, "Justices Ja(3obus V^an
Schoonhoven, Beriah Palmer, Samuel Clark, and
E]3enetus White (who were to have held the Ses-
sions), found that they had not been named in the
general commission of the peace as justices (they
being judges of Common Pleas) after serious con-
sultation, and taking the advice of the bar, declared
that they were not legally qualilied to hold said
term, "and the court was adjourned l)y (3ne of the
justices of the peace who was present at the last
term until the tirst Tuesday in November next, and
the clerk was directed to enter the same on the
minutes." The entry shows a becoming distrust
of doubtful powers by the gentleman named there-
in, and sets a worthj' example for all judges to fol-
low when their authority to act might be questioned.
34 THE BENCH AND BAK
Tlie tirst "equine" mistake of ownership of
property recorded was the stealing ofa bay gelding
from Eleazer Wheeloek by one James Jones, alias
Paul P. Jones, alias James Johns. This much
named individual was arrested flacfrante delictu.
He was indicted and tried at the January Sessions,
1807, and was convicted and remanded for sentence.
I find but one other mention of his name. The next
day the grand .jury came into court with an indict
ment charging James Jones alias, etc.," Silas Deuel,
.lohn Scheatoi- and Leonard Barnes, alias John
Robinson, with jail breaking. Tliey had in fact
taken French leave of Jailor HoUister the night
previous. Similar escapes ensued and similar in-
dictments followed. Deuel was the only one of
the "special jail delivery'' who was recaptured.
He was bailed and again tied the country. By an
act of the legislature of 1814 it was ordered that
judges of Common Pleas should thereafter hold
the General Sessions. The last trial in this court
house was that of John Hart, jr. and George Bil-
lings, indicted for fraud and deceit. They were
found to l)e not guilty. Billings was remanded to
jail on another similar indictment for trial at the
next Oyer and Teriuiner. Before the appointed
day he had gone to meet his tinal judgment, having
been burned in tht^ destruction of the jail, March
24, 181H.
The lirst Circuit Court and Oyer and Terminer
liekl in the court house at Court House Hill was
held in I7'.)9, and was presided over by Judge John
Lansing, afterwards the chancelloi- wliose sudden
OF SARATOGA COUNTY. 35
disappearance a few years later yet remains one of
the mysteries of the present century. The otlier
terms there held were holden by Judge Kent, af-
terwards the famous chancellor, Judge Jacob Rad-
cliff, Chief Justice Morgan Lewis, Chief Justice
Smith Thompson, Chief Justice Ambrose Spencer,
Judge William W. Van Ness, and Judge Jonas
Piatt, who held the last term in it in May, 1815.
At the June Oyer, 1801, Jacobus Wheeler, con-
victed for burglary, was sentenced to state prison
for life by Judge Kent. I find the following entry
in the Oyer minutes, June, 1804, in the trial of
Isaac French for grand larceny : "Mr. J). L. Van
Antwerp was assigned by the court as counsel for
the prisoner, in conformity with the humane prac-
tice of our laws." However he was convicted and
Judge Smith Tliompson sentenced him to three
years' imprisonment. At the June term, 1805,
Margaret Curtis plead guilty to an attempt to
poison Esther Foote, an infant of three years.
Judge Spencer gave her sentence to be confined in
"the county gaol for the space of one whole year." '
At the June Oyer, 1806, it is recorded that one
David Wheeler had "grasped at time and caught"
— not eternity, but one year in state prison for
stealing a watch of the value of $12.50. At the
June Oyer, 1808, John Martin and Patrick Free-
man, for passing counterfeit money, were sent to
states prison for life by Judge Smith Thompson.
This conviction and sentence, and the indictment
of Mott Vandenburgh and the members of his gang
. the next year had a wholesome effect, for tlie
36 THE BENCH AND BAR.
"bank" was scatterecl,Vandenburgh tied to Canada,
and for a time common people had confidence in
their currency. William House and George Bnr-
noits received life sentences for burglary at the same
term.
At the May Oyer, ]81(), Russell Hibbard [was
convicted of an attempt to poison the family of
Garrett A. Van Yranken. George Metcalf repre-
sented the people and Young and Van Antwerp
the prisoner. Judge Van Ness sentenced him to
"close confinement in the county jail for one year,
to pay a fine of $50 and enter a security with two
good sureties for $300 to keep the peace in future."
At the May Oyer, 1811. Judge Spencer gi-avely
sentenced John Robertson, convicted of assault
and battery on his step-mother, ''to be confined in
tiie county jail for three months, and until you find
securities for your good behavior, particiilarly to-
wards your father" s family and especially towards
\'0ur step- mother in the sum of $1000 ; your securi-
ties being two freeholders in the sum of $oOO each."
How hmg he remained in the custody of jailor Kel-
logg, county clerk Baldwin failed to note. At the
same term Joseph Rhode's, wlio was convicted of
burglary, was sentenced for a life term, notwith-
standing he asserted his innocence after conviction.
Whether circumstances proved his innocence after-
wards, whethiM" he suttered wrongfully a long life
of ignomious servitude, or was a hardened villain,
there is no scm]) on wliich to base a conjecture.
By the year 1813 counterfeiters were again bold-
ly Jit Avork. A large haul having been made by
OF SARATOGA COUNTY. 37
the detectives in those days, a special Oyer was
held in August of that year and nine indictments
were disposed of. One of the parties gave evidence
against the others and eight were convicted re-
ceiving sentence from seven to twenty-one years ;
Thomas H. Pratt, the leader, having the heaviest
term imposed on him. Jail breaking had been for
some years a common amusement, and at last, in
the May Oyer, 181.^, Nathaniel Gfreen, who had
been detected in leaving surreptitiously by jailor
Taylor, was sentenced to "five year s imprisonment
in the state prison in the city of New York.'" This
was the last conviction had in the old Court House.
The other offences for which indictments were
framed, but on which no recorded convictions were
had, were for blasphemy, being a common cheat,
illegally transporting paupers from one town to
another, polygamy (this was the case of one Henry
Young, an alleged antetype of Brigham), dissect-
ing the dead, and attempting to enslave a freeman.
In addition to the other distinguished counselors
mentioned as having stood within its bar at the
practice of their professions may be named Am
brose Spencer, John Wood worth, Matthias B. Hil-
dreth, Ebenezer Foote, Abraham Van Vechten,
Thomas Addis Emmet, Martin Van Buren, Daniel
Cady and Richard M. Livingston. So far as I
am able to learn ther^ is but one surviving lawyer
who was admitted to practice within its forum,
viz : the venerable Samuel A. Foote of Geneva. He
studed law with Judge James Thompson and board-
ed with a Mr. Dibble, who lived where Hiram Wood
2*
38 THE BENCH AND 13 All
now resides. He resided with his brother Ebene-
zer Foote, in 1815, in the city of Albany, and his
name appears in our Common Pleas minutes at
the July term of that year as liaving been admit-
ted to practice therein. In I80I Judge Foote sat
in the Court of Appeals. He is now (April, 1876,)
about eighty- five years of age, and recently argued
a case before the Court of Apjieals.
CHAPTER III.
THE BURNING OF THE COUliT HOUSE.
Ill the last chapter tlie erection of the Court
House on Court House Hill was described. Its lo-
cation was admirably suited in some respects. It
stood on the crown of an eminence and its cupola,
it is said by old residents could be seen at that
date from every town, then created, in the county.
It was situated opposite the present residence of
iSanford A. Pierson. During its existence Donw
I. Fonda of Stillwater, Henry Davis of Halfmoon,
Setli C. Baldwin of Ballston, Daniel Bull of Sara-
toga, Asahel Porter of Greentield, Nathaniel Ketch-
um of Stillwater, Hezekiah Ketchum of Halfmoon,
and James Brisbin, jr. of Saratoga held the im-
portant office of sheriff. The prisoners (eight in
number) who had been kept at the expense of the
county in the Albany jail were brought to the cells
in the new jail March 23, 1796 by sheriff Fonda.
Enos Gregory, Joseph Palmer, Samuel Hollister,
Jonathan Kellogg and Raj^nond Taylor were suc-
cessively placed in charge of it by the sheriff, in
the capacity of jailors. During the period the
courts were held within its walls Dirck Swart of
Stillwater, Setli C. Baldwin of Ballston, Levi H.
Palmer of Milton and William Stilwell of the same
town were clerks of the county and ex-ojfjlcio clerks
40 THE BENCH AND BAR
of the seveml courts.
Around the court house a thriving village was
growing and doubtless the owners of the surround-
ing farms discussed the probable value of "corner
lots;" and saw in imagination their pastures and
corn fields bisected with avenues and streets. And
without doubt there were others who saw with an
air of dismay the ruin of their sylvan homes beneath
the crushing weight of taxation for local improve-
nients. Several stores and two hotels were erected
and did a "land office business" in court terms.
Two lawyers, Messrs. John W. Taylor and Samuel
Cook early displayed their "shingles" there, trust-
ing in the maxim to secure the "worm." But sud-
denly a blight came over this rural Arcadia and
its hopes were forever blasted. To-day the site of
the court house is as undistinguishable from the
surrounding clods as were the ruins of Pompeii for
seventeen centuries. Let the following from the
Independent American^ published in Ballston Spa,
March 27, 1816, tell the disastrous and tragic fate
of the court ho use and one of its unfortunate in-
. mates:
"On SuD'iiay morning last at one o'clock a fire broke out in the
northwest corner of the court house in the town of Ballston wliich
had so progressed before it was discovered that all attempts at
quelling it proved abortive. The air was very still, otherwise the
contiguous buiUlinirs must have shared the same fate. One of the
prisoners named George Billings, who was ciiaintd to the floor,
was unfortunately consumed. Four prisoners, iShearer, Davis
(colored,) Cole and Drapoo made their escape. Two of them have
since been retaken, to wit : Shearer and Davis. A court of en-
quiry wa.s instituted in this village on Monday, and from their ex-
OF SARATOGA COUNTY. 41
auiiualion on ihc subject of the tire did not hesitate to give it as
Uicir opinion tiiat the fire was communicated to the building by
one or more of the prisoners."
Tliis was all that editor Coinstock devoted space
to in his account of the thrilling tragedy. He was
too much occupied with federal politics and spec-
ulations on the probable outgrowth of the recent
Napoleonic wars in Europe to waste his time in
home events. Consequently local items were usu-
ally as scarce in the Independent American as
"angel's visits."
From conversations had with several old residents
and particularly with the venerable Mrs. Sarah A.
Boss, then Miss Sarah A. Rogers, daughter of the
founder and first rector of Christ church, Ballston,
I am able to give the following account of the con-
flagration. Raymond Taylor, the jailor, it would
appear was a man after the manner of William the
Testy, described in Knickerbac^ker' s quaint "His-
tory of the New Netherlands." He was a man
who l<>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;<l 93 years. The first pcrmauent settler,
iiiid Uh! tirsl to keep ;• public luiiise here, for visitors. An nnpaiil
palriul who, alone, and at great peril, gave the first and enly infor-
mation of Bur^oyoe's intended advance on Stillwater, wiiicii led
to timely preparations for the battle »f September 10— fallowed by
tlie memmorable victory of October 7, 1777."
OF SARATOGA COUNTY. 55
Anotlier important case was that of James Jack-
son ex dem,. James Waldron and Elzie, his wife
against Abraham Welden. The Waldrons owned
certain lands of ill defined boundaries in the Half-
moon patent, part of which they had leased to Wel-
den. A commission was afterwards appointed to
survey lines and settle disputed boundaries of the
Halfmoon, Shannondhoi and Kayaderosseras pat-
ents. They filed their report and map in Saratoga
county February 5, 1794. By this survey in was
found that the farm was in the latter patent and
was included in the lands owned by Tobias C. Ten
Eyck by conveyance from the o]"iginal patentees
Soon afterwards Welden purchased the fee simple
of Ten Eyck, and in 1806 the Waldrons began a
suit in e'jectment to oust him. Tried at the Sara-
toga Circuit in 1807 before Judge Spencer, and a
verdict for the plaintiff entered for the recovery of
the lands, with costs. On appeal to the Supreme
Court it was held that the plaintiffs were bound by
the report of the commissioners and the judgment
was reversed. This case was reported 3 Johnson
283. Sanders- Lansing was attorney for the claim-
ants, and Guert Van Schoonhoven defended Wei
den's interests.
William Pangburn against James Partridge. Ac-
tion in replevin, tiied at the Saratoga Circuit, May
1810 before Judge Van Ness. J. B. Yates for the
plaintiff and John W. 'faylor for the defendant.
The plaintiff complained that defendant had taken
from his "keep" one heifer of the value of $10.
Defendant plead non cepit and further alleged that
56 THE BEJN'CH AND BAK
iiB took said lieifer for a debt owed him by i)lain-
tiff. Judge Van Ness granted a non-suit. * On mo-
tion for a new trial in the Supreme Court, it was
held that replevin lies for any tortious or unlawful
taking ; and not for distress only. Motion gjanted.
Reported in 7 JohtLSon 140.
James Jackson ex deiii James Rogers against
William Clark. Action for ejectment tried at the
Saratoga Circuit in 1810 before Judge Van Ness.
L. H. Palmer and A. Van Vechten for plain tiff and
John W. Tajdor for defendant. Verdict for de-
fendant, and on appeal to the Supreme Court, it
was affirmed ; the court holding that if in llir des-
cription of an estate in a deed of conveyance there
are particulars sufficient to ascertain the correct
bounds ; mistakes will not frustrate the intent of
such indenture. 7 Johnson 216.
James Jackson ex clem. John, James, Rachel and
Maiy^ White against Charlotte White. Tlii-; was
ail action in ejectment brought by the heirs at law
of Steplien H. White, late of Ballston Spa, deceas-
ed against his widow, the devisee under his will.
White, who died in 1808, was a clothier and died in
possession of a large boarding house and eighteen
acres of land whi(;h under ceitain conditions he
willed to liis wife Charlotte as follows : ''all that
huge and convenient dwellijig house with all the
a]i))uitenances and ])rivilegtis thereunto ])ertainiiig
and the same which is now improved by me us a
boaiding liouse." It was brought to trial before
.ludge Van Ness and a jiny at the Ma} (urcuii in
1810. Levi II. Palmer was attorney for the plain-
OF SAEATOGA COUNTY. 57
tift and Henry Walton for the defendant. The
plahitiff 's were the father, brother and sisters of tlie
testator. They claimed that that portion of eighteen
acres not in the close of the boardine; house was
not included in the terms of the will, and by their
next friend, Epenetus White jr., sought to oust the
defendant who was in possession. The defense
sought to establish that the testator occupied all of
the eighteen acres as a messuage of his boarding
house, either as a deer park, cow pasture, or as a
vegetable garden for the use of said boarding house.
A verdict was rendered for the defendant, which
was affirmed on appeal to tlie Supreme Court. 8
Johnson o9.
James Jackson ex dem. Thomas Rogers against
Joseph Potter. This was an action in ejectment to
oust defendant from 100 acres of laud in the town
of Moreau. The premises were those formerly
owned by David Rogers, who made a will October
19, 1805, and who died November 8, 1810. After
making his wili he acquired the title to the premis-
es in question. By the terms of his will, which he
never revoked, or altered by codicil, he devised all
of his' real estate of which he should die seized to
his two natural sons. H. Bleecker was attornej^
for the plaintiff, who was the legal heir, and J. B.
Skinner for the defendant, who claimed to hold by
a deed from the devisees named in the will. A
verdict was given for the plaintiffs at the Saratoga
Circuit in 1812. Judgment affirmed by the Supreme •«
Court, which held that a devise of lands will not
operate upon lands purchased after the execution
58 THE BENCH AND BAK
of a will, unless subsequent to such purchase the
devisor republishes his said will with the reciuisite
solemnities. 9 Johnson 812.
Jackson ex dem. Samuel Woodruff against John
Gilchrist. Action brought to eject Woodruff ft'om
lot 2 of subdivision of lot 8, in the 13th allotment
of the Kayaderosseras patent. Levi H. Palmer and
John V. Henry for plaintiff, and M. Van Everen
jr., Martin Van Buirn and Abraham Van Vechten
for defendant. The suit was brought to trial at the
Saratoga Circuit in 1816, before Judge Piatt, with
a jury. The plaintiff proved title by descent from
Ann Bridges, afterward Ann Hunloke, one of the
original patentees named in the patent of Kayad-
erosseras granted by Queen Anne, dated Novem!)er
2, 1708. Defendant plead title and proved a com-
plete chain from a conveyance made by Joshua Hun-
loke and Ann his wife to Peter Fauconier, bearing
date February 10, 1711, which bore this endorse-
ment: '-That this day came before me, one of his
majesty's justices foi- the (U)unty of Essex, the
within named Joshua Plunloke and Ann his wife
to acknowledge this indentuie to be their acts aixl
deed, this 17 of February, 1711. Attested per me,
Jno. Blanchard." Aft<n' heaiing the testimony
the jury by direction of the court returned a verdict
for the plaintiff', subject to the opinion of the Su-
prtmie Court. The oi)inion of that tribunal was
given by Chief .justice^ Thompson, who held that
the law could not presume that the certificate could
mean merely that tlie ])a.rties came before the justice
to acknowledge Ihc (Iced, but that it went furtlKM-
OF SARATOGA COUNTY. 59
and held that they did so acknowledge it ; and that
after such a lapse of time the privat'^ examination
of the wife ought to be presnmed, and that the
estate thus acknowledged was coniirmed by the act
of General Assembly passed in 1771 . Jndgmentve-
versed. 15 Johnson 88. This celebrated cause is
yet distinctly remembered by the old residents of
Charlton, it being called by them "the great land
case." HXie J iQ\\o^i\\Q enormous fee charged by
Mr. Yan Buren, whose services, they say, were
confined to a two hours' address before the jury.
They little think of the hours of study the brilliant
advocate spent in mastering the vague details of the
case, or of his commanding iniluence over the Su-
preme Court, exerted in carrying the knotty point
in Gik'lirist's favor, or they would not have deemed
his five hundred dollars so very exorbitant. Thus
early did our'liighest courts set the stamp of disap-
proval on claims of real estate whose titles verge
on the extrendty of doubt. Subs(Hpient to the de-
cision the hopes of the heirs of Aneke Jans and
others by-gone worthies have been buried under
many adverse decisions, but like Banquo' s ghost
i\\ej refused to "down."
Edw^ard Fitcli and Gilbert M. Wright, executors
of Ebenezer Fitch against Setli C. Baldwin. Tliis
case, repoi't^d in 17 Johnson 161, was an action on
an alleged (jovenant seizin which was brought to a
trial at Saratoga Circuit June 1818, ]:)efore Judge
William W. V^an N'ess and a jury. James Mc-
Kown, John V. Henry and Martin Van Buren
managed the plaintiff' s case, while the defendant's
interests were guarded by Samuel G. Huntingto^
60 THE BENCH AND BAR.
and Abraliam Van Vechten. The respective bonn-
daries of the Saratoga and Kayaderosseras patents
were the questions in issue, although the case ulti-
mately turned upon another point raised 1)}' the
defendant. Fitch insisted that the one hundred
and sixty -live acres of land in the town of Saratoga,
which was claimed by him, were a part of the west
end of lot 1 6 of great lot 25 of the Saratoga patent,
granted to Peter Schuyler and otliers Octo})er 9,
1708, as distinguished on a map made by John R.
Bleecker in 1750 ; and which was purchased b}'
Ebenezer Fitch of Jonathan Lawrence, one of the
patentees, January 25, 1798. On the contrary, the
defendant's pleadings set up that it was lots 10 and
11 in the ninth allotment of the Kayaderosseras
}iatent. The ignorance of the royal grantor of the
vast domain she was deed in the "western world
was equal only to the cupidity of the grantees and
the evident carelessness of their surveyors, for it was
found that the boundary lines of all of Queen Anne's
patents overlapped eacli other ; and this was but
one of the many suits wliich occupi<^d the state
courts for half a centujy in rt,'ctifying the contiict-
ting claims under color of title from the different
patimtees. . The defendant also plead estoppel^ and
offered a writing under the hands and seals of Fitch,
the testator, and Baldwin, the defendant, dated
May 22, 1812, by which it was argued that the de-
fendant should withdraw a suit against the testator
for the possession of certain lands in Saratoga, and
eacli party pay his own costs; by which the tes-
tator released to defendnnt all the lands in lots 10
OF SARATOGA COUNTY. 61
and 11 in the ninth allotment of the patent of Kay.
aderosseras, not included in a deed from Jonathan
Lawrence. By this agreement a survey was to be
made by one Caleb Ellis, who made such survey
and found the lands to be in the patent of Kayade-
rosseras. An able and exhaustive argument fol-
lowed in which Mr. Van Vechten supported the
offer, and Mr. Van Buren opposed. The latter
gained his point. The court ruled out the evidence,
it appearing, during the argument on the offer, that
Ebenezer Pitch was an old man, who trusted much
to the clear head of his son Edward. The wily
Baldwin took advantage of the latter' s absence in
Albany, and procured the elder Fitch's signature
by misrepresentations. The court directed a ver-
dict for the plaintiff for 5^1,819.58 and costs. An
appeal was taken to the Supreme Court, where the
judgment was reversed. The court held that the
plaintiff was estopped by the testator's execution
and acceptance of said agreement from alleging
tliat the lands released did not lie in the patent of
Kayaderosseras. If, however, there was fraud on
the part of the defendant in the execution of said
agreement, the plaintiff could gain relief by a bill
in Chancery. This decision, so often quoted as a
ruling case in estopjjels, was, however, declared
erroneous. The next year, Mr. Henry having
secured a re- argument, the Supreme Court affirmed
the verdict of the Circuit. This decision was not
reported, by some oversight, but of the fact I am
informed by Gen. E. F. BuUard, who is a grand-
ad
62 THE BENCH AND BAR
son of Ebenezer Fitch. Mr. Van Buren' s fee for
the argument of this case (he was not present at the
trial) was fifty dollars. This is in marked contrast
with the expenses of litigation in the j)resent year
of grace. Van Buren then stood in the same rela-
tion to the bar of this state as at the present do
Charles O' Conor, and William M. Evarts. Their
fees of $5,000 and $10,000 are in strong contrast
with that recorded in this instance ; and, indeed,
it ma}^ be doubted if the services of a counselor of
the first rank (;ould now be secured in a case in-
volving no larger pecuniary interests than that of
Fitch vs, Baldwin.
CHAPTER YI.
. TRIALS IN OYER AND TERMINER. 1819—47.
Around the court house whose completion we
witnessed in the fourth chapter, gather the bright-
est memories of the Saratoga county bar. Within
the forum enclosed by the four posts of its bar cir-
cle and from its bench have been uttered some of
the most glowing periods in our tongue ; to attempt
to describe which, or to enumerate the brilliant
names would be to guild the stars or paint the
azure. Its history will ever be sacred in the minds
and memories of those permitted in later days to
walk within its sacred precincts. Like the Roman
standing in the midst of the ancient forum and list-
ening in vain for the voices that were wont of old
to awaken its echoes, so do we now fail to hear the
strains of majestic eloquence which have fallen from
cunning lips within the walls of our time-honored
court room.
The first Circuit Court and Oyer and Terminer
held in it convened on Tuesday, May 25, 1819. It
was presid'^d ovor by Chiff Justice Ambrose Spen-
cer, assisted by James Thompson, first judge, and
James McCrea and Abraham Moe, judges. The
court officers were Thomas Palmer, clerk ; General
John Dunning, shei-iflf ; Richard Montgomery Liv-
ingston, district attorney and Ezra Buel, crier.
64 THE BENCH AND BAR
By the act of April 21, 1818, the office of distri(;t
attorney was limited to each county, and Mr. Liv-
ingston was the lirst appointed for Saratoga. H(^
lield office until February 13, 1821, when he was
succeeded b}^ William L. F. Warren. They held
their office by appointment of the Court of Sessions.
Gen. Earl Stimson was foreman of the graiid jury,
S.even indictments were found at this term, one
being against Isaac G. Aiinstrong, charging him
with polygamy. He was tried at the Sessions in
the following August. Notwithstanding he was
defended by Esek Cowen a,nd Azariah W. Odell,
he was convicted and sentenced to five years in
states prison at hard labor.
The second Circuit and Oyer met May 80, 1820.
It was destined to be the first court in tliis (;ounty
which directed the execution of a murderer, whose
mandate was fulhlled. Benjamin Bennett, wJio had
been indicated at the previous Sessions for tlie kill-
ing of Seth Haskins in Corinth, September 4, 1819,
was brought to tri al. The court consisted of Judge
Jonas Piatt ; First Judge James Thompson, and
Judges Salmon Child, James McCrea and John
Prior. Richard M. Livingston represented the
people, and Zebulon R. Shipherd of Greenwich,
Washington count3% was the prisoner's attorney.
It is said that Bennett gave his counsel the follow-
ing terse directions; Acquit me, or hang me ; I
don't want to go to prison,'" The jury sworn con-
sisted of Jacob Vanderheyden, John Allen, Zadock
Smith, John B. Taylor, Zalmon Olmstead, John
Rosevelt, Joseph Potter, Oliver Cleveland, David
OF SARATOGA COUNTY. 6fi
Sanford, Onesimus Hubbell, Arthur Caldwell and
Henry Clow. The following witnesses were sworn
for the people, viz: Ira Haskins. Patty Hunt,
Joseph Sanford, Dr Henry Reynolds, Peter Ostran-
der, Eli Baldwin, Daniel Loveless and Peter Mal-
lery. No evidence was given on Bennett's behalf.
Prom the testimony it appears that Bennett, wLo
was a roystering farmer addicted to drinking and
gambling, lived in a log cabin on the site where
James Early' s house now stands, had been down
to Jessup' s Landing, and on returning home, intox-
icated, met Haskins, a quondam friend, coming out
of his house. He drew up a loaded whip, and say-
ing that he would not allow no man to visit his wife
in his absence, struck him on the head. Haskins
/ell, and Bennett picking up a stone, struck him
another blow, ^fracturing his skull, from the effects
of which he died eleven days afterward. Under
the law this would have been manslaughter, but
proof of Bennett' s subsequent declaration showing
malice were admitted by the court, and he was con-
victed and sentenced to be hanged on Friday, July
21, 1820. After his conviction Bennett developed
traits which showed him to have been insane, among
other things drawing charcoal sketches of the Savior
and Satan on the walls of his cell, saying he "wanted
to keep good friends with both, for he did not know
into whose hands he would fall. ' ' He would spit in
the faces of clergymen calliiig to see him, and utter
the vilest abuse to his friends and acquaintances
who visited him. He also refused to allow Messrs.
Azariah W. Odell and Lyman B. Langworthy to
66 THE BEN^CH AT?n) BAR
intercede with Gov. De Witt Clinton, who was
then sojourning at Saratoga Sj)rings. Notwith-
standing all this, he was executed in public^on the
appointed day, on the ''hanging ground," about a
mile northeast of the court house ; and, to many
elderly citizens of the county, the hanging of Ben-
nett marks an era. Gen. Dunning was the execu-
tioner in person, not shrinking from his duty as
sheriff, and the prisoner was prepared for the scaf-
fold by deputy sheriffs Joseph Jennings, Philip
H. McOmber and Potter Johnson. His remains,
and those of his victim, lie interred in the old
cemetery at Jessup' s Landing. Bennett was thirty-
two years of age, and Haskins was upwards of
lifty.
At the same Oyer, Herman Ostrander was tried
for forging the name of Gabriel Leggett. George
W. Kirkland defended him. Thirty-four witnesses
were sworn for the people, and twenty-three for the
prisoner, who was acquitted. Samuel Downing,
afterwards widely known as the last surviving revo-
lutionary pensioner, was the foreman of tlie jury.
Leggett was then indicted for perjury, and after a
delay of several years, the charge was dismissed.
The third and fourth Oyer were 'held by Judges
J-.)hn Woodworth and Joseph C. Yates.
By the constitution of 1821, a change was madr
in our courts. The Su])reme Court was restricted
to appellate jurisdiction, and the state was divided
into eight circuits, in wliich a "Circuit Judge" was
a Dpointed, to possess all the powers to j)reside in
the courts of law lield foi-merly- hy the Supreme
OF SARATOGA COUNTY. 67
Court judges, and wlio were also to be vice chan-
cellors in equity in their respective circuits. Reu-
ben H. Walworth of Plattsburgli was api)ointed
judge of the fourth circuit. He soon removed to
Saratoga Springs to be convenient of access to the
members of the bar in his jurisdiction. The fifth
term was a(;cordingiy held by him in July, 1823,
at which term Samuel Vinegar was convicted for an
assault with intent to kill Samuel Sillinian, and
sent to states prison for five years. Vinegars
offence was raising and throwing a heavy hammer
at Silliman. • Judge Walworth said that as the
prisoner had murder in his intent, the court would
apply the extent of the law. He signalized his
advent to the bench by stern sentences. He con-
tinued to hold the terms in this county (with the
exception of that of 1824, whicli was presided over
by Judge Samuel Nelson, of the sixth Circuit,)
until 1828, when, on April 22, he was nominated
,and commissioned chancellor by Go verner Nathan-
iel Pitcher. 'J' he only cases of importance, as
showing the stern way the honest old judge admin-
istered the criminal law in cases tried before him,
are those of John Jackson, 1826, petit larceny sec-
ond offense, three years at Auburn ; Charles L.
Peterson, like offense, 1827, sent to "House for the
reformation of juvenile delinquents in the city of
New York" until twenty-one 3^ears of age ; and
Horace Lane, convicted of grand larceny, sent to
Auburn for three vears.
The May term, 1828, was held by Judge Nathan
Williams of the fifth circuit, at which Octavio
68 THE BENCH AND BAR
Nolande, convicted of burglary, was sentenced to
states prison for life. The November term of the
same year was held by Judge Esek Cowen of Sara-
toga Springs, who had been commissioned Circuit
Judge, April 22, 1828, vice Walworth ai)pointed
chancellor. Judge Cowen continued to hold all
the terms in this county until 1836, when he was
appointed judge of the Supreme court by Governor
Marcy, with the exception of the May tertii, T830,
which was held by Judge James Vanderpoel of
the third Circuit. At that term Isaac and Jane
Craig, convicted of aiding a prisoner, George D.
Miller, to escape from jail, was sentenced to three
years' imprisonment in Auburn.
Samuel Ostrander, who had been indict»^d for
exhuming and carrying away for purposes of dis-
section from the Clifton Park cemetery, November
10, 1828, the bod}^ of Patrick Folic, deceased, was
brought to trial at this term. He was defended by
Oran G. Otis and Joshua Bloore, both then in the
zenith of their legal fame. Mi-. Otis was a man of
remarkable genius, and our older counselors unite
in saying]^that he was the most eloquent advocate
at the bar our count}- has produced. Mr. Bloore,
too, was an attorney of great talent. Both passed
away in the full ])rime of life and ust^fulness. Not-
withstanding the skill of Mr. Bloore in examining
the witnesses, and the eloquence of the silver-
tongued Otis, district attorney ^Varren succeeded
in convicting Ostrander of the disgusting crime, and
he was sentenced to sixty days* ifi})ris()nment in
the oountv jail
OF SARATOGA COUNTY. 61)
At the November Oyer, 1831, another murder
trial was had, being the only occasion since the
erection of the county that an instance of wife mur
der has occurred within its limits. James Mason
liad been indicted for killing his wife Catharine, in
the town of Clifton Park. It occurred during a
drunken brawl, in which he struck his wife with a
club, from tlie effects of which, it was testified, she
died. Circuit Judge Coweu presided, assisted by
Judges Thompson and Palmer of the Court of Ses-
sions. District attorney Warren was the public
prosecutor, and Oran Gt. Otis prepared the prison-
er's defense. The jury was composed of Isaac
Hubbs, William Baker, William DeRemer, Otis
Bentley, Henry Rosekrans, Garrett Van Vranken,
Judd Hoyt, John S. Andrews, John Kelly, Pierson
Crane, Barton Gridley and John J. Sherwood.
Mason was found guilty of wilful murder and
received a sentence to be hanged on the last
Friday in March, 1882, and it was ordered by the
court that his body should be given to Dr. Samuel
Freeman for dissection. Mr. Otis, however, was
indefatigable in his efforts to save his client, and
finally succeeded in inducing Gov, Enos T. Throop
to commute his sentence to imprisonment for life.
The crime hardly arose above manslaughter, and
that was doubtless a wise conclusion of his case.
At the May Oyer, 1832. before Judge Cowen,
another case involving the taking of human life
was brought to trial. Patrick Sheridan was con-
victed of manslaughter in killing James Judge at
the town of Saratoga Springs, March 26, of that
70 THE BENCH AND BAR
ypar. The scene of the affray was on the railroad
near Wakeman's crossing, between Ballston Spa
and Saratoga Springs, on which they were laborers
in the construction of the road. Sheridan was sen-
tpnced to be imprisoned at Mount Pleasant (Sine
Sing) states prison for seven years. William Hay
and Judiah Ellsworth were his counsel.
Again the shadows of a judicial taking of a hu-
man life descended upon the county. John Wat-
kins was tried at the November Oyer 18BB, for the
wilful murder of Aaron Case at the village of Balls-
ton Spa on the ninth day of November 1833, by
stabbing him with a knife in the throat and sever-
ing the jugular vein. Case had formerly been a
hotel keeper in Mechanicville, and during the
nbsence on a visit of the proprietor of the Eagle
li7)tel in Ballston Spa, the late James LaDow, he
Avas in temporary charge. Watkins was a disre-
putable mulatto barber of the village. On the fatal
day, Case discovered Watkins in the baggage room
of the hotel and endeavored to capture him. The
latter seizing a knife from behind the bar ran out in
the street followed by Mr. Case. Reaching the
middle of the street he halted and plunged the knife
into the throat of Case, and then fled. Case walked
back into the hotnl, sat down in a chair and fell
l(»ad upon tin; flcjor. The murder was witnessed
>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<i
<>!" 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-
dr<Kl rods above Devoe's crossing. As the train
started, Lewis again attempted to get on the car,
but fell and his feet were crushed. It was in the
evening, but his cries soon brought relief and he
was taken to the residence of George P. Devoe.
One of his feet was amputated, but he died from
the effects of his injuries about a year and a half
later. The suit was brought to trial at the October
term, 1850, before Justice Paige. The above facts
were proved. The evidence on the part of the
plaintiff that he was thrown from the train by con-
ductor Harvey as he was again getting on the car
was refuted by that of the brakeman, Michael Cavan-
augh, and George Satterlee of Fort Edward, who
was a passenger. Young Lewis' case was prose-
cuted by Joseph D. Briggs of Saratoga Springs,
who had associated with him William Hay and
John K. Porter. The company's attorneys were
William A. Beach and Job Pierson. The court
held as a rule of law that the defendant was liable
for putting Lewis off the train at a point not a
station, and charged the jury that they might take
the wrongful acts of the plaintiff in seeking to
OF BARATOOA COUNTY. 193
obtain a surreptitious ride into consider ition, in
mitigation of damages. Tlie jury found a verdict
for the plaintiff for $6b and costs. The rule of law
now is that conductors may put passengers who
refuse to obey the rules of the company off from
the train at a point near any farm house.
A case presenting a singular feature and unparal-
leled, as far as the author's reading extends, in r.he
annals of American jurispruden(;e, was brought to
trial before the October Circuit, 1850, presided over
by Justice Paige. It was the civil action brought
under the code by Abiram Fellows and David
Fairbanks, jr., of Mechanicville, against John
Emperor and Margaret Sheridan, otherwise called
Margaret Emperor of Ballston Spa, and Owen
Sheridan of the city of New York, to set asside a
conveyance dated August 7, 1848, of five acres of
land in Ballston Spa, made by John Emperor to
Owen Sheridan, in trust for the said Margaret, for
the consideration of $100. Fellows and Fairbanks
were merchants and were judgment creditors of
Emperor. They sought to set aside the convey-
ance and thus perfect a lien on Emperor's real
estate. Gen. Bullard was attorney for the plain-
tiffs, and John Lawrence and George G. Scott for
the defendants. On the trial it was proved that in
1824, in Ireland, John Emperor was married to
Margaret Fitzgerald. That a few years subse-
quently he deserted his wife and four children and
came to New York, where, in 1884, he married
Margaret Sheridan. That she lived with him until
9
194 THE BENCH AND BAR
1848, believing herself to be his lawful wife, and
had borne him six children. That in the latter
year his brother. Christopher Emperor, came to
Ballston Spa, where JohnEmperor was working as
a miller in the employ of James Ashman, and
exposed the fact that John had a wife living in
Ireland. Margaret Emperor, as she was known,
then applied to her brother Owen Sheridan, for
advice and, after consultation, it was deemed best ^
that the premises slionld be conveyed to him in
trust for her in payment for lier work and services
as housekeeper during the time she supposed her-
self Emperor' s wife. Upon this state of facts being
proved the jury found a verdict for the defendants,
'Vk'Lich was sustained by the General Term in May,
1852. The case so far is reported in 13 Barbour 42.
Now comes the most singular feature of the case.
Emperor and Margaret continued to live as man
and wife until her death, September 25, 1855. He
then married a woman named Catharine Roach, and
lived with her until her death. Subsequent to this
he married, by civil ceremony, Catharine Murphy.
Father McGeough, the Romish priest at Ballston
Spa, refused them the rites of the church to sanc-
tion their union. Emperor died from the effects of
a fall in the summer of 1868, leaving an estate of
several hundred dollars. A few v.'eeks later his
discarded wife, Margaret Fitzgerald, came from Ire-
land accompanied by her surviving, son, Thomas
Emperor, and they claimed the property as legal
heirs. Their claims were presented to Surrogate
OF SARATOGA COUNTY. 195
Waldron by Miller ct Doyle of Cohoes, and were
recognized by him. Catherine Murphy" s claim for
work, labor and services as housekeeper for Em-
peror was presented by Judge Scott and allowed
at $100. The children of Margaret Sheridan, who
had earned the most of the property for their father
during their minority, were thus barred out from
inheriting it by the law, which placed the bar
sinister upon their paternity.
'J'he action of the people ex rel. George G. Scott
and Cyrus Perry against Hiram Carpenter and
Joseph L. Snow which was heard by Justice Wil-
lard at the February Circuit, 1851, involved a con-
stitutional question wliich has never been fully
settled by an appeal to the court of last resort.
Messrs. Ferry and Scott had ben appointed loan
commissioners by Gov. Bouck, with the consent of
the- senate, in 1848, and were in office on the second
day of April, 1849, when Messrs. Carpenter and
Snow were appointed their successors by Gov. Fish,
with the consent of the senate. They filed their
bonds and demanded the books and papers. The
old commissioners refused to yield them, on the
ground that all officers not specially mentioned in
the constitution as to be appointed were to be
elected by the people ; and they denied that Car-
penter and Snow had not received such an election.
The latter brought an action in the Supreme Court
to gain possession of the books and papers which
was tried by Justice Cady and a jury at the Feb-
ruary Circuit, 1849. Tlie new commissioners were
196 THE BENCH AT^TD BAR
represented by Abel Meeker and James B. Mc-
Kean, and the old boai-d by George G. Scott, in
person. The jury found tluit Carpenter and Siiow
were not duh- appointed aceording to law, and
rendered a verdict for the defendants A manda-
mus was next sued out by the claimants before
Justice Willard. After hearing the arguments of
counsel, he denied the relief prayed for in the
claimants' petition, July 12, 1819. Following this,
Carpenter and Snow took forcible possession of
the books and papers, and the suit in question was
then brought by the old board to obtain a judicial
decision aud relieve themselves of all responsibility
in the matter. The people were represented at the
trial by Attorney- General Levi S. Chattield, and
the defendants by Meeker and McKean. A jury
waived and Judge Willard decided that under the
constitution Messrs. Carpenter and Snow, not hav-
ing been elected to their offic, s. were not legally
in possession. The legislature ot 1850, had how-
ever destroyed the gist of this action by an act
abolishing the office of loan commissioner, and
directed that the books and papers of the loans of
1792 and 1808 be transferred to the Commissioners
of United States Deposit Fund Loan, who at that
time i.) this county were Messrs. Calvin W. Dake
and George B. Powell. .
At the following October term Attorney- General
Chattield was (;all(^d on to adjust another claim to
office in this county. At the town meeting in 1850,
held in the town of Providence, an equal number
OF SARATOGA COUNTY. 197
of votes were polled for .Tared C. Markliam and
Seneca Deuel for the office of justice of the peace.
The town board being of the political persuasion
of Mr. Deuel declared him elected. Markham
began a suit, on the relation of the people, against
Deuel to oust the latter from the office. In
this he was successful, for the jury found that
neither were elected, and Judge Cady declared the
office vacant.
It has been said that in the economy of Nature
some men are designed only to serve the valuable
purpose of getting into the clutches of the law by
their misdeeds, and then to do good service in fur-
nishing subjects for the courts to use in passing
upon the unalienable rights of free citizens when
jeoperdized by thoughtless magistrates. Such an
one appears to have been one Rufus B. Pratt, who
lived in Ballston Spa about a quarter of a century
ago. Pratt, in company with Jolm T. Spicer and
Horatio L. Bliss, became intoxicated and riotous
on the evening of Saturday, Feb. 24, 1849. Com-
plaint was made to Abel Meeker, a justice of the
peace and he issued a warrant for their arrest, with
the following endorsement : "Commit them to jail
until Monday next for examination." The war-
rant w^as delivered to Harvey N. Hill, a constable,
who, with the assistance of the late Daniel D. Jones,
arrested Pratt and took him to the jail, where he
was confined, against his will of course, until Mon-
day. He began an action for assault and battery
and false imprisonment against Meeker, Hill and
198 THE BEKCH AITD BAR
Jones, by his attorneys Jo'.ni Brotlierson and Wil-
liam B. Litch. William A. Beach tried the suit
for the defendants at the June Circuit, 1851. before
Justice Cady. The jury found a verdict for the
plaintiff for $76 and costs. The case was appealed
to the General Term, and is reported in 16 Barbour
303, where the report of the opinion of the Supreme
Court concludes :
■'The magistrate no doubt acted from an houesi belief that lie
was authorized to make the endorsement on the hack of the war-
rant. But it was an exoet-- of jurisdiction, and wholly illegal.
The law watches the personal liberty of the citizen with vigilance
and jealousy ; and whoever imprisons anotiier in this country must
do it for lawful cause and in a legal manner."
The action brought by Geoojge Young, jr. against
the Washington County Mutual Insurance Com-
pany which was tried before Justice Willard at
the June term, 1852, by Frederick S. Root for the
plaintiff and William A. Beach for the defendant,
was intended to recover a policy issued to plaintiff
by the defendant for $500, on his dwelling house,
in the town of Greentield. From the printed case,
as reported in 14 Barbour 545, I learn tliat the
plaintiff's louse was burned in the night of June
18, 1850, and that its loss was occasioned by the
burning of his store, then in process of erection on
the site of the former store, which had been burned
in the previous March. The company rejected Mr.
Young's claim on account of said rebuilding of his
store, holding that a carpenter' s risk is an increased
hazard, and one that they did not assume in the
OF SARATOGA COUNTY. 199
issuance of the policy. The plaintiff proved that
due care had been used on his part to prevent the
destruction of his house and store. Judge Willard
held that the plaintiff was entitled under the policy
to rebuild on the foundations of his former store,
using reasonable care against accidents, and in such
case was entitled to recover. Judgment was entered
for the plaintiff on the verdict of the jury for $562.46
and costs, which was affirmed in the Supreme Court
at General Terra.
Concerning the action of Hiram FuUerton against
James Viall, Isaac T. Grant and Samuel A. House
there is a mystery which probaV)ly will never be
fully penetrated until all secrets are revealed.
Mr. Fullerton was a carpenter and. pattern maker,
who worked for several years in the employ of the
firm of Viall & House, stove founders, at Mechan-
icville. Believing them honorable and trustworthy,
he had placed quite a large sum of money in their
hands and taken their note. But he found, as did
many others, his confidence abused when the firm
became, through mismanagement, hopelessly bank-
rupt and made a general assignment, September 1,
1851. Viall had to save a portion of his private
property from the general wreck, which was
believed to be no fault of his, previous to the assign-
ment deeded his residence to his brother-in law,
Isaac T. Grant. Fullerton and other creditors soon
placed their claims in the form of judgments of the
Supreme Court. His attorney in these proceedings
was his brother-in-law, James B. Houghtailiug, of
200 THE BENCH AND BAK
West Troy. In 1852, lie began an action against
Viall and Grant to set aside the conveyance as fraud-
ulent and made vvitJi intent to defraud creditors of
the bankrupt tirm. His attorneys were Isaac C.
Ormsby and Edward F. Bullard. The defense had
secured the eminent legal firm of Pierson, Beach &
Smith of Troy. The complaint alleged that Viall
executed the conveyance with intent to defraud his
creditors, and that Grant accepted such deed know-
ing its nature and with due notice of plaintiff's
claim ; and that but for such conveyance plain-
tiff's Judgment against Viall and House would be
a lien against such real estate, and asked tliat the
conveyance be declared null and void. It was
tried at the June term, 1854, before Justice Hand.
The j ury found a verdict for the plaintiff, and a
judgment setting aside the deed from Viall to Grant
and awarding 81,905 damages was entered on motion
his counsel, June 8, 1854. The defendants asked
leave to file a bill of exceptions, which was granted
to be heard in ^ he fii'st instance at the General Term.
It was affirmed by the Saratoga General Term,
December 31, 1855. The Court of Appeals affirmed
the verdict June 19, 1858. The full case and points
are filed in the State Library, Volume 73, case No.
9 ; also, it may be found reported in 42 Hoioard
294. The mystery connected with the case was the
disappearance of Fullerton in the summer of 1855.
He was an unmarried, middle aged man of steady,
industrious habits, and possessed of considerable
means. He left his home in Stillwater to go to the
OF SARATOGA COUNtT. 201
West, He was last seen, by any one who knew
him and has disclosed his whereabouts, a few days
later in Cleveland, Ohio, by Mrs. Ellen Swartwout,
with whom he formerly boarded in Mechanicville,
He called at her house and told her that he was
en-route to Chicago, and was to take the boat that
evening. He belonged to an eccentric family, an I
some of his relatives entertain the idea that he is
yet alive. To support the idea, they quote the fact
that a bachelor uncle of his, Richard Fullerton,
mysteriously absented himself and after the long
interval of forty -five years, he returned to his old
home in Stillwater to his brother who had long
mourned his ''lost Derrick" as dead. Conceding
that Fullerton has "gone before," Viall is the only
survivor of the parties to this action. He was
completely wrecked in fortune by this judgment.
Like men similarly treated by the "tickle goddess"
he was ruined by over weening contidence in the
men with whom he was associated and the times in
which he was actively engaged in paddling his bark
across the whirlpool of business. Crippled alike in
body and fortune, he finds a home with a brother
who has been more successful in the battle of life.
Grant had previous to this suit sold the premises to
Elisha Howland, a bona tide purchaser. And, the
judgment in this action established the principle
that the moneys received from such purchaser may
be recovered from the seller. It was so recovered
from Grant on an execution, and paid to the admin-
istrator appointed on Fullerton' s estatef.
202 THE BENCH AND BAR
At the May term, 1656, was tried a case which
carries us back beyond the Revolution, and brings
prominently to view two men who were active par-
ticipants in "the days that tried men's souls" —
Col. Peter Ganzevoort, the hero of Fort Stanwix,
and Major Hugh Munro, the tory leader of a raid
in the town of Ballston, the mention of whose name
causes the blood to tingle in the veins of the descend-
ants of th()S(3 upon whom he visited his atrocities.
It was the suit of George F. Munro, a g\ andson of
of the partisan leader, against Elijah Merchant of
Moreau, brought to eject him from a part of lot 3
in the 20th allotment of the patent of Kayaderos-
seras. Both parties claimed to possess a valid title
derived from Rip Van Dam, one of the patentees.
The plaintiff's attorneys were George F. Munger
of Rochester, and Theodore F. Pomeroy of Auburn.
They were assisted by Deodatus Wright and Clark
B. Cochrane. In the higher courts, to which the
case was carried, they had the counsel of Judge
Sanford B. Church. Against them William A. '
Beach was pitted, single handed after the election
of Judge Rosekrans to the Supreme Court bench.
iMunro claimed title by will of Van Dam, empow-
ering his executors to sell his real estate. Secondly,
a deed from Robert Livingston, jr., surviving exec-
utor, to Jacob Walton, Isaac Low and Anthony
Van Dam, dated October 24, 1771, conveying all
of Van Dam's interest in the patent. Thiidly, a
deed from Walton, Low and Vai: Dam to Hugh
Munro, August 30, 1774. Fourthly, the death of
OF SAKATOGA COUNTY. 203
Hugh Muiuo at Edwardsburgh, Canada, leaving
an only son Hugh Miinio, fether of the plaintiff.
Fifthl}^ the birth of the plaintiff at Ballston Spa,
in 1804. Munro at th« time of this action lived in
Rochester. The defendant' s title was based on a
deed from Gerard Walton, attorney for Anthony
A^an Dam (though no power of attorney could be
proven), to Peter Ganzevoort, June 17, 1797, and
the inheritance of the lands by his sons, Herman
and Peter Ganzevoort, on his demise. Secondly,
a deed from the Ganzevoorts to Ransom Sutphmin
1841, who conveyed the lands to defendants in 1848.
Thirdly, the alienage of the plaintiff and Hugh
Munro, father and son. A judg:uent was entered
for the plaintiff, j^ro forma, at the May term, 1856,
held by Justice James. It was atfirmed in the
General Term, and an appeal was taken by the
defendant to the court of last resort. In the Court
of Appeals it was held that Major Munro was a
British subject who lived near Fort Miller at the
outbreak of hostilities. He adhered to the crown
and went to Canada. That Hugh Munro, jr. was
also a British sul)ject by his own acknowledgment.
That the plaintiff, having been born in this state,
was a citizen, although his mother simply came to
Ballston Spa for that purpose and returned with
her child to Canada. That Hugh Munro, sr. was
never attainted of treason, hence his heirs could
inherit and hold against all others except the state.
That the claim of adverse possession, only siiowing
the cutting of timber on the premises, was not
204 THE BEirCH AND BAK.
clearly proven ; but, as it gave a shadow of title a
new trial was granted. The claim was then com-
promised. Tlie case is fully reported in 26 Bar-
hour 383 and 28 Neio Yorlc Reports 9. Munro also
brought an ejectment suit against Peter Ganzevoort,
the younger, to dispossess him of the well known
Ganzevoort estate. He was non suited in the June
term, 1855, by Judge James. The General Term
reversed the non-suit, and on the trial in the Sep-
tember term, 1864, before Judge Bockes, the de-
fendant proved a clear case of adverse possession
and the complaint was dismissed with costs.
An interesting case of great value to assessors in
assessing personal pj-operty was tried at the May
term, 1856, before Justice James. It was the civil
action brought by John G. Young and others
against tlie assessors of the town of Had ley to vacate
an assessment of the personal property of the plain -
tiflf's made by Jefferson Jetfers and his associates of
the board of assessors in June, 1854. The plain-
tiffs had come from Ossipee, N. H., in April, 1854,
and taken a coiitract in the town of Hadley on the
Saratoga and Sack«>tt'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 <jf Hon. William
A. Beach. It was brought to trial at the Septem
ber term, 1868. Brown, the "agent," was con-
spicuous for his absence. Mr. Palmer, in his tes-
or SARATOGA COUNTY. 225
timony was uncertain that lie ever authorized Mr.
Brown to sign his name in the negotiation of this
note to the plaintiff. Mr. Cheesbrough was closely
cross-examined bj^ Mr. Beach. To the question,
"At the time you purchased this note did you
know it to have been obtained by fraud," he de-
clined to answer. To the question, "Did you not
know it to be a 'mowing machine grinder' note,"
he also declined to answer. Mr. Beach then asked
for a non-suit on the grouud that no authority had
been showjj for Brown to endorse the note for his
principal ; and, that Mr. Cheesbrough by his refusal
to answer the above questions showed tliat he was
not a purchaser in good faith. Justice James non-
suited the plaintiff, and he was upheld at General
Term and by the Court of Appeals. The holders
of the "bogus notes " throughout the county found
it impossible to collect another dollar, and the
"scrip" is now valuable as paper stock at the
market quotations.
The action of the First National Bank of Balls-
ton Spa against the Insurance Company of North
America was one of a series of actions brought to
recover policies issued by leading insurances com-
panies upon the property of the Pioneer Paper
Company. The Bank was the assignee of the
policies, holding them as collaterals to a loan.
These suits were at the terminus of a long litigatioi:
among the stockholders of the Pioneer Paper Com-
pany. To give the history of this litigation in the
State and United States courts would swell our
226 THE BEWOH AlfD BAR
volume beyond its intended proportions. It is
reported under its various titles in 57 Barhour 127,
668 and 583 ; 59 Barhour 16 ; 62 Barhour 468 and
36 Howard 102. For our purpose it is sutficient to
state that about 1860, Coe S. Buchanan, Elisha
Comstock, William Wilson and Solomon A. Parks
commenced the manufacture of paper at West Mil-
ton under the name of the Pioneer Paper Company.
For a time they were successful, but the influx of
of wealth was too much for the ambitious brains
of Comstock and Buchanan and each sought to
drive the other out of the concern. Comstock by
a decree of the courts got possession of the mill
and leased it to C. W. Weeks and Abijah Com-
stock. During this time he negotiated the loan at
the First National Bank. Buchanan secured a
reversal of the decree and was put in possession.
A judgment was recovered by the Bank on its loan
and Electus Dye, a deputy sheriff, went to the
mill on a certain day with an execution. With
Elisha Comstock he essayed to watch the mill
during the night, and dismissed the regular watch-
man. During the night the mill was destroyed by
an incendiary tire. Viy^', and Comstock were in the
company' s office, a few rods distant from the mill.
The insurance companies held that the levy and
dismissal of the watchman violated their policies
and refused payment. At the trial in the Septem-
ber Circuit, 1870, bi^fore Justice Bockc^s, a non-suit
was entered. J. S. L'xlmoreaux was attorney for
the Bank, with Bea(5h. c^ Smith as counsel. Judgt^
OF SARATOGA COUNTY. 227
Parker was the attorney for the defendant. On
appeal to the Supreme Court, it was held that a levy
by a sheriff does not absolve a party insured from
maintaining the watch demanded in the policy, and
that* the deputy sheriff in an office two rods away
from the mill did not fill the duty and office of
watchman. 5 Lansincf 203. A further appeal
was carried to the Court of Appeals and the non-
suit was sustained. About this time the defunct
Pioneer Paper Company was declared a bankrupt
by the United States district court. Their mill site
and privilege was sold by J. A. Shoudy, assignee
in bankruptcy, to Hon G-eorge West.
The doctrine of "ancient lights" and "highway
privileges" are as old in the common law as the
rights of riparian proprietorship to the waters flow-
ing in a stream. The rule in each instance, to use
the quaint language of Blackstone, dates back to
the time "when the mind of man runneth not to
the contrary," Rival hotel proprietors at fashion-
able watering places are as jealous of their rights
now as were the first mill owners in the early days
of our country. An attempted invasion is sure to
be fought in the courts, and sometimes by force.
Such a cause of action arose in Saratoga Springs
in 1869. Warren Leland was the owner of the
Grand Union Hotel, and Henry H. Hathorn of
Congress Hall. Mr Hathorn had purchased a
building on the east side of Broadway, and sepa-
rated from his hotel by Spring street. He fitted a
ball room in the second story of the building and
228 THE BEWCS AND BAE.
constructed an iron bridge from the third story of
Congress Hall over the street to the ball room. Mr.
Leland, who had paid an assessment of $1,040.35
for the opening and grading of Spring street, deemed
this an invasion of his vested rights, particularly
as the bridge was directly in front of and obstructed
the view from his hotel. He began an actjon in
Westchester county, by Robert Cochrane, attorney,
on the relation of the People against Mr. Hathorn.
Charles S. Lester and Samuel Hand, for the defend-
ant, moved to change the venue to Saratoga county.
It was denied at Special and General Term in the
second judicial district, but was granted by the
' Court of Appeals, March, 1870, on the ground that
actions for damages to real property must be tried
in the county in which it is situated. See 42 Neto
York 547. The action was then noticed for trial
at the January Circuit, 1871, before Judge Rose-
krans. Attorney General Champlain was repre-
sented by William T. Odell, and Mr. Leland by
Mr. Cochrane. On motion of Mr. Lester the com-
plaint was dismissed with costs.
The action brought by William A. Dunn against
Samuel H. Luther and Henry Luther, as survivors
of Luther, Brother & Co., distillers, involved the
validity of a verbal promise, made by a debtor set
free under the United States bankrupt law of 1867,
to revive a debt created before the decree in bank-
ruj^tcy. The complaint illeged that on the 16th
day of November, 1864, the plaintifl' loaned to Lu-
ther, Brother & Co. at Ballston Spa, the sum of
OF SARATOGA COUlfTT. 229
$1,300 ; taking therefor the note of Luther, Brother
& Co. drawn payable to the order of Seymour
Chase (the other member of the firm) and endorsed
by him to plaintiff, who then became and still is
the owner of the note. Chase died March 31, 1866,
and Henry Luther was not served with process.
Issue was joined by the defendant Samuel H.
Luther, by L'Amoreaux & Dake, his attorneys,
by an answered verified November 3, 1870, setting
forth that defendant was bankrupt and insolvent
Nov. 27, 1867, and that by a decree in bankruptcy
in the United States District Court he was dis-
charged from air debts and claims against his
estate which existed Nov. 27, 1867, and that plain-
tiff had due notice of such proceedings. It was
brought to trial at the September term, 1871, before
Justice Bockes. It was assumed at the trial that
the plaintiff's complaint was true, except that "as
surviving partners the defendants are justly in-
debted to the plaintift' in the full amount of the
note from November, 16, 1864." The note was
introduced in evidence, and the plaintiff rested.
The defendant offered a copy of his discharge in
bankruptcy in evidence, and the plaintiff's attor-
ney, Col. Odell objected on the grounds that no
jurisdiction is shown in the District Court ; that it
shows no jurisdiction over the plaintiff on the debt
due him from the defendants ; and that the certifi-
cate is deficient in facts requisite to be shown. The
court received the evidence and the defendant
rested. The plaintiff then offered to prove that he
10*
230 THE BENCH AND BAR
never appeared in the bankruptcy proceedings,
nor proved his debt ; that Samuel H. Luther fraud-
ulantly concealed from his assignee certain real
estate and propei-ty in Ballston Spa ; and, that
after his discharge Samuel H. Luther, on or about
September 6, 1870, promised to plaintiff to pay him
the said debt. The oifers were objected to by Mr.
L'Amoreaux and ruled out by the court, who
directed the jury to find for the defendant.
The plaintiff then carried an appeal to the Gen-
eral Term on the points madp- in a bill of exceptions
stating the facts, offers, rulings and exceptions had
and taken at the trial and, further, that a discharge in
bankruptcy does not make the original contract void
— and, that the alleged promise to pay was not a new
cause of action. The defendant's points wei^ that
this court has no power to determine the validity
of defendant's discharge; that the discharge can
only be attacked in the court that granted it ; that
the plaintiff gave no notice of his intention to im-
peach the defendant's discharge ; that the plaintiff
was bound to specify in an amended complaint, or
by a reply his grounds of avoidance ; that if any
debt existed against S. H Luther it was by virtue
of the new promise ; and, that the new cause of
action should have been set forth in the complaint.
The General Term sustained the judgment and a
further appeal was cai-ried to the Court of Appeals.
That tribunal reversed the judgment and oidered a
new trial on the giound that the evidence contained
in the plaintiff 's offers should have been passed
OF SARATOGA OOUWTY. 231
upon by a jury. A new trial was had at the
January term, 1874, before Judge Joseph Potter,
and a verdict was rendered tor the plaintiff for
$2^167.14 and costs. About this time the Court of
Appeals held, in another action, that it was not
necessary to allege the new promise in the com-
plaint, and the defendant here rested his case.
The respective responsibilities of common car-
riers and warehousemen and the point of differ-
ence between the two were settled by the civil
action of Emilv Pelton against the Rensselaer and
Saratoga Railroad Company. On the 11th of
March, 1870, the plaintiff removed from Battle
Creek, Mich., to Greenfield in this county. On
that day she consigned her goods at the former
place, securely pai^kedand marked ''Emily Pelton,
Saratoga Springs, N. Y." to the Michigan Central
Railroad. Prior to their arrival in Saratoga, plain-
tiff called at the freight house and made inquiries
but did not give her address. When the goods
arrived, the agent made inquiries to find her and
could not and her goods were placed in the store
house which was burned May 1, without the defend
ant's fault or negligence. The suit was 'brought
to trial before Justice Rosekrans at the January
t<^rm, 1871. John W. Eighmy was plaintiff's
attorney, and John B. Grale the defendant's. The
court held that the defendant ceased to be a com-
mon carrier when the goods were placed in the
store house and, as warehouseman, was not liable
for their loss without negligence being proved. It
232 THE BENCH AI^^D BAR
was taken to the Court of Appeals by Mr. Eighmy,
but the opinion of Judge Rosekrans was upheld.
It is reported in 54 Neio York 214.
In the summer of 1870, James Maguire, a laborer
residing in Ballston Spa, lost his cow. He sought
her diligently far and near. He was advised to
consult a well known local clairvoyantess who told
him he would tind his cow on a certain farm near
the head of Ballston lake, which she described.
He sought her there without success. About this
time, Bernard Curley, a farmer residing near Hall's
corners in Malta, in coming to Ballston Spa dis-
covered a disagreeable stench, and, alter search
found its source to be in a well in the pasture of
Dr. James F. Doolittle in Malta, east of the Mourn-
ing kil, into which Maguire" s cow liad fallen and
died. He had hired her pastured in that field, but
Dr. Doolittle insisted that she was a trespasser
there for he had found her to be unruly and had
forbidden her further pasturage in his tield some
weeks previous to her disappearance. Maguire
brought suit injustice's court to re(;over her value,
laying his damages at $90. On the trial he proved
by several persons tliat if she gave the amount of
milk he testified to she was worth from §75 to $1(J0 ;
but all agreed that if she was a jumper she was
worth only her value for beef. The defendant
proved that she could easily jump over alive board
fence and was addicted to such freaks. He also
sought to prove that she was trespassing on his
farm at the time she fell in the well, which was just
OF SAEATOGA COUNTY. 233
inside the road fence. Justice Maxwell rendered
a judgment for plaintiff for $45 and costs, which
was satisfactory to neither party. An appeal was
taken to the County Court in which a new trial
was had at the November term, 1871, before Judge
Lester and a jury. Judge Scott was plaintiff's
attorney, and L' Amoreaux & Dake appeared for
the defendant. Since the former trial the defend-
ant had procured a handbill which Maguire had
issued at the time the cow was first missing, in
which he described her as "strayed or stolen from
the plaintiff's premises in the village of Ballston
Spa," and he introduced it in evidence. It proved
conclusively that Maguire, at that time, did not
consider her at pasture in defendant's close in
Malta. The jury found a verdict of "no cause of
action."
The civil action brought by Mrs. Abby P. Car-
penter against John B. Hodgeman and Benjamin
W. Clapp is chiefly remarkable for the fact that
every attorney engaged in it, with one exception,
had held the office of county judge in this county.
The defendants were employed by the trustees of
Saratoga Springs to remove an iron fence in front
of plaintiff's residence that was claimed to be an
encroachment upon Broadway. The plaintiff's
attorneys were A. Pond and Judge Lester. The
defendants were represented by ex-Judges Corey,
Hulbert and Crane. Mr. Pond was at one time a
candidate for county judge, and Judge Joseph
Potter, before whom it was tried at the September
234 THE BEIH^CH ATTD BAR
term, 1872, had been a judge of Washington county.
Judge William L. F. Warren was a witness for the
plaintiff. Judgment was awarded to the plaintiff
for $175 and costs.
Daniel Ackart of Schaghticoke began an action
in the Supreme Court, by Elihu Butts, his attorney,
against Gilbert V. Lansing and John G. Lansing
for damages arising from his having had his leg
broken in the defendants' saw mill at Stillwater.
It was brought to trial at the September term, 1872,
before Justice Joseph Potter, who npn- suited the
plaintiff. F. J. Parmenter for the plaintiff; E. F.
Bullard for defendants. It was held in the Court
of Appeals that, as it was shown that plaintiff went
to defendants' mill to give directions about the
sawing of his lumber, the question of negligence
sLould have been submitted to a jury. It was re-
tried before Justice Potter in February, 1875. It
was shown that Ackart stepped in front of the mill
carriage and, without warning him of his danger, it
was started md run against him, breaking his leg.
The jury found a verdict for plaintiff for $500 and
costs. It was appealed to the Supreme Court, but
the General Term, in May, 1876, following the
opinion of the Court of Appeals, given in 59 New
YorJc 646, affirmed the verdict and refused leave to
again carry it before the Court of Appeals.
Thomas P. Deyoe, a hackman, sued the trustees
of Saratoga Springs' for damages to himself, his
carriage and team, occasioned by his driving in!o a
ditch left open in Broadway, at the corner of Cir-
OF SARATOOA COUNTY. 2^5
cular street, on a certain night in August, 1872.
The trustees, by P. H. Cowen, their attorney, an-
swered that the ditch was dug by the water com-
missioners created by a special act for the purpose
of laying water pipes in the streets of Saratoga
Springs, and that they, not the trustees, were the
parties liable. A verdict was rendered for the
plaintiff for $500. John Foley was the plaintiff's
attorney. The judgment was sustained at General
Term, which held that the trustees of villages are
primarily liable as highway commissioners for acci
dents occasioned by faulty streets. The doctrine
of the liability of highway commissioners was long
a disputed one in this state. Judge John Willard
was strong in his objections to it. An action was
brought before him thirty years ago in our Circuit
Court for a similar case as that of Mr. De-
yoe' s. It was the action of Felix Benton against
the trustees of Saratoga Springs, tried at the No-
vember term, 1846. A jury was impanneled, and as
Mr. A. B. Olmstead was opening the case to them
he was interrupted by the court' s remark : " I shall
non-suit you on those grounds." Mr. Olmstead,
wholly prepared for this digression, observed:
" With all due deference for your Honor's opinion,
the plaintiff relies on the justice of his cause and
and will carry it to the highest court, if necessary."
He then argued that if he was sustained above, it
would be necessary to have a verdict on the ques-
tion of damages by a jury, and that as the witnesses
were now in court, it would be the better way to
236 THE BENCH AITD BAK
take the verdict now. Judge Willard deliberated
a moment 'and then said he would let the case go
to the jury, but directed the clerk to enter the fact
that it was against his view of the law. A small
verdict : viz. $150, was given for the plaintiff.
The dower case brought by Elizabeth Hart against
Gil man Bush, has been a long and interesting one.
I. C. Ormsby, attorney for plaintiff; L. B. Pike,
for defendant. The plaintiff, Elizabeth Hart, wns
once the wife of Dr. Stephen Hart, from whom,
however, she had, during his life, obtained a decree
of divorce, on account of his adultery. The decree
was, of course, for an absolute divorce. Subse-
quently the doctor died possessed of a certain farm
near Bemis Heights, in this county. This farm
came into the possession of Gilraan Bush, and
against him Elizabeth Hart brought an action to
recover her dower. The action was commencsd
several years ago, and has been tried at the Circuit
and has once been to the General Term. At the
first trial at the Circuit, in 1872, before Justice
James, the defendant. Bush, offered in evidence
what purported to be an agreement on the part of
tha plaintiff, Mrs. Hart, to accept a certain sum in
lieu of a dower. It was claimed by her counsel
that a divorced woman was incompetent to make a
valid agreement with her divorced husband. The
court sustained this view and ruled out the agree-
ment. The defendant appealed to the General
Term, wliere the decision of the court below was
reversed, and it was held that the contract was
OF SARATOGA COUITTY. 237
valid and binding. The case thus came back for a
new trial before Judge Potter, without a jury. Mrs.
Hart's counsel now changed his tactics. The Gen-
eral Term having decided that the agreement was
admissible, he now denied that Mrs. Hart ever
executed tlie agreement. It was alleged that it was
executed by her daughter without her consent or
approval. To sustain the agreement, the defend-
ant called as a witness George W. Neilson, who
was the magistrate before whom the agreement was
acknowledged. Mr. Neilson was positive in his
recollection of the execution of the agreement by
Mrs. Hart. The defense also offered in evidence
the hand-writing of the daughter, which exhibited
a difference in the manner of spelling the first name
of the plaintiff as compared with that adopted by
the mother. The former spelled her name Eliz/-
beth, and the latter Elizabeth. The issues in this
action are yet undecided.
The right of a father in-law to interfere in the
relations existing betw^een his daughter and her
husband and to entice her to abandon her home
and seek an asylum in his house was the subject
in action in the suit brought by Martin Ford against
Levi Ro\vley Both parties were farmers in Still-
water. Ford formed a runaway marriage with
Rowley's daughter. About a year afterwards her
mother induced her to leave her husband and return
home. Rowley refused Ford permission to see
his wife, and he brought this action to recov^er his
rights. It was brought to trial at the January term,
238 THE BEKCH AlTD BAR
1872, before Justice Bookes. L B. Pike was
plaintiff's attorney, ind Pond & French for the
defendant. Justice Bockes refusing to non-suit
the plaintiff, the father yielded and the daughter
returned to her husband. It was stipulated that
the case should rest in abeyance. Rowley then
sold his farm and removed to the West. Mrs.
Ford about two years later went on a visit to her
parents and again for a time refused to return to
her husband. Mr. Pike informs me that she has,
however, returned to her husband, and I trust that
their marital troubles are now forever hidden from
the law and public notoriety. There was no proof
but that Mr. Ford was a kind husband.
In the summer of 1870, Eugenie Soumet, of New
York city, deposited with Wolff Brothers, pawn
brokers, a case of jewelry to secure a loan of $88.
Soon after, she came to Saratoga Springs and
directed them by letter to send her the box by
express "C. O. D." They placed the box as they
had received it in the hands of defendant's agent
in New York, with their bill. Upon delivery the
agent handed to Wolffs' clerk a paper stating that
defendant should not be held liable be^^ond $50,
unless specially insured and so specified in the
agreeruent. At the sami^ time he asked the value
and was shown Wolffs' bill. The clerk took the
receipt or contract of Wolfi'Bi'others, who made no
exception to it. Tlie package never was delivered
to M'lle vSoumet, and she brought her suit to re-
cover $360.68, the alleged value of her jewelry.
OF SARATOGA COUNTY. 239
It was tried in the September term, 1872, before
Judge Joseph Potter. J. W. Eiglimy for plaintiff,
and L. B. Pike for defendant. Judge Potter refused
to charge that the writing was a. contract between tlie
parties, and the jury fou ;d a verdict for the phiin-
tifffor the amount claimed. On appeal to the Gen-
eral Term, in June, 1873, Judge Piatt Potter pro-
nounced the opinion of the court that by the ruling
of the Commissioners of Appeals in Belger v Dins-
more (51 JVeio York 166) there was error at Circuit.
It was a question of law, not of fact. That the •
plaintiff was bound by the action of Wolff Broth-
ers is settled by Nelson v. Hudson River Rail-
road, (40 JVew York 504.) A new trial was had in
May, 1878, before Justice Bock^s, and a verdict
was found for the plaintiff for $93 and costs.
It was decided that there is no connection of church
or state in any form, in passing upon the law govern-
ing the question raised in the action brought by
Anna E. Van Buren against the "Reformed Church
in Ganzevoort " to recover services as organist from
October, 1869, to April, 1871. It was tried in 1873
before Justice Bockes, without a jury. J. W.
Eighmy^ for plaintiff; A. Pond for defendant.
After argumeiit on motion to dismiss complaint,
Judge Bockes held, 1st, that the defendant's cor-
porate existence must be distinctly alleged ; 2d, that
the existence of a church as such is not recognized
by our laws ; 3d, that mere assumption of a cor-
porate capacity is not sufficient to establish a de
facto corporation ; 4th, that church music in the
240 THE BEITCH AND BAB.
country villages and hamlets being usually gratu-
itous, plaintiff's services will be presumed to have
been such ; and 5th, to authorize recovery it must
be alleged and clearly proved that there was an
employment of plaintiff by the defendant as a cor-
porate body, with a promise to pay for such ser-
vices. This interesting case is reported in 62 Bar-
hour 493.
On April 28, 1872, Ralph T. Darrow committed
suicide at Saratoga Springs, by shooting himself.
He was insured in the Excelsior Life Insurance
Company for $10,000 in the name of and for the
benefit of his wife, Mary E. Darrow. The insurance
company refused to pay the policy on the ground
of fraudulent answers regarding deceased's habits
in the application, and that it was voided by his
suicide. An action was brought by John R. Put-
nam as attorney for Caroline E. Patrick and S. F.
Terwilliger, committee of the estate or Mary E.
Darrow, a lunatic. The insurance company was
represented by E. F. Shepherd and E. L. Fursman,
It was tried at the January term, 1874, before Judge
Joseph Potter. The jury gave a verdict for the
plaintiff for $10,585.80 with five percent allowance
for costs. The verdict was appealed from ami the
General Term confirmed it and judgment was en-
tered for$ll,225.20. The point decided in this case
is that the policy having been taken in the name
of the wife, the husband's subsequent acts will not-
vitiate it. The issue of fraudulent answers touch-
ing personal habits of the party insured arose, also,
OF SAEATOGA COUNTY. 241
in the action of Steenbergh against the Metropoli-
tan Life Insurance Company, tried at the Septem-
ber term, 1875, before Justice Bockes. Putnam &
Eustis were plaintiffs attorneys, and Arnoux, Rich
& Woodford, of New York, appeared for the
defendant. The question was decided by a jury
who found a verdict for the plaintiff for $5,000 ;
the face of the policy. Concerning Mr. Putnam's
management of these actions an eminent jurist
writes the author in the following terms : ' I regard
him as one of the best men at our bar, a sound
lawyer and reliable in every place whatever. He is
esteemed by the bench for his unobtrusive merit
and modest and retiring, yet earnest and untiring
manners."
The right of a postmaster to make and physically
to enforce rules regulating the conduct of people
while in the post office after their mail was affirmed
in the action brought by John N. Whonhart against
Benjamin P. Judson, tried at the May term, 1875,
before Justice Langdon. Judson is postmaster
at Saratoga Springs and had posted a notice in the
post office forbidding smoking. He soon after-
wards found Whonhart with a cigar in his mouth
in the post office. He asked him to go out, or
put out his cigar. Whonhart refused and Judson
put him out of the building. He began an action
for assault and battery in the Supreme court with
P. H. Co wen for his attorney. Mr. Judson secured
the services of L. B. Pike in his defense. The j my
found a verdict of "no cause of action." At the
11
242 THE BENCH AWD BAR
close of this term the deaths of Hon. W. L. F. Warren
and Col. William T. Odell, former district attorneys
of this county, were announced by Judge Lester
and J. S. L'Amoreaux, Suitable resolutions were
adopted and the court adjourned.
In the autumn of 1874, Mrs. Elizabeth Chipraan,
then lessee of the Mansion House, Saratoga Springs,
began actions against nearly all of the landlords of
the hotels in that village for damages alleged to have
been sustained by her by reason of their turning
their sewage into the creek which runs in front of
the Mansion House, causing thereby a great stench
so that her guests left in consequence to her great
damage. The suit brought by her against John
Palmer, the owner of a boarding house on Circular
street, was tried at the September Circuit, 1875,
before Justice Bockes. Messrs. Frisbie & Hulett
were the plaintiff's attorneys. L. Varney and
Judge Lester defended the hotel keepers in the
person of Mr. Palmer, this being a test suit. The
jury assessed Mr. Palmer's share of the damage
did to Mrs. Chipman to be five dollars.
A history of the courts of this county would be
incomplete without the details of a "liorse suit."
The late Judge Hay used to remark that it required
more legal acumen to manage the details of an
action wherein an equine quadruped was the "bone
of contention " than it did to master the intricacies
of an ejectment suit involving the settlement of
conflicting patent lines. To fill the void the acition
brought by Mervin Adams against James D. Le
OF SAHATOChA OOUITTY. 343
Roy, which was tried at the September Circuit,
1875, before Justice Bockes, will be cited. It also,
has the merit of cbntirming the opinion once ex-
pressed by Ex-President Lincoln that "the one
thing which the Almighty can never foreknow is
the verdict of a petit jury." LeRoy is a merchant
at Ballston Spa, and Adams a livery keeper at
Saratoga Springs. In November, 1874, James H.
LeRoy, a son of the defendant, went to plaintiff's
stables and made a contract to take one of the lat-
ter' s horses for its keeping during the ensuing win-
ter, to use it as he required in his business. Young
LeRoy was then past his majority. He put the
horse in his father's stable, and it was occasionally
used by both, the father at one time driving it to
Northampton and back. About the first of Janu-
ary the horse became very lame and unfit for use.
A tender was made of it to Mr. Adams, and he
refused to accept. But, instead, he brought suit in
the Supreme Court for its value alleging it to be
$800. Joseph W. Hill was his attorney. Mr. Le-
Roy defended the action and secured the services
L'Amoreaux & Dake. Pending the action the
horse was "turned to grass," and while in the pas-
ture his forward hoofs dropped off. On the trial
Adams testified that he let the young man have the
horse as the agent of his father. LeRoy, senior,
testified that he told his son not to get the horse,
and LeRoy, junior, testified that he told Adams he
wanted the horse for his own use, and corroborated
his father's statement. The defendant proved by
^4A the bench and bar
livery men and farmers that it was an old worn out
livery horse, not woith to exceed $75. He also
proved by unimpeached veterinary authority that
the horse's hoof disease had been of at least two
year's standing. Judge Bockes charged the jury
directly upon the doctrine of bailees, that the
defendant was only required to use the same care
as a prudent man would of his own property, and
that the preponderance of testimony was to the
effect that the defendant never was a bailee of
plaintiff's horse. The jury found a verdict for
the plaintiff for $175 and costs. This is the more
remarkable from the fact that four of the jury went
to see the horse in the pasture, and one of them, a
horseman, too, said publicly that the animal had
been worthless for at least two years.
At the February te>rm, 1876, held by Justice
Joseph Potter, was tried the civil action of William
H. Clement against Mark M. Cohn. Clement,
who lives at Morrow, Ohio, owns a block on the
east side of Broadway in Saratoga Springs, occu-
pied partly as stores and partly as dwellings.
Cohn, hired a store of Clement's agent without any
reservation. Clement, afterwards, claimed tliat
there was an alley or entrance way through the
cellar to tenements in the rear. Mr. Cohn asserted
that he rented and occupied the cellar as a part of
his store. Hence this suit. The plaintiff was rep-
resented by A. B. Olmstead, and the defendant by
John Foley at the trial. Judge Potter held that a
lease without reservation extends from the center
OP SARATOGA OOFNTT. 245
of the earth to the outer edge of gravitation, and
directed a verdict for defendant and judgment was
thus entered.
CHAPTER XV.
THE LANSING-RUSSEL SUIT IN EQUITY.
This suit which was commenced by a bill in the
Court of Chancery and ended in the Supreme
Court, in equity, forms a connecting link between
the two great epochs in our judicial history, and
attracted at the time great attention from the issues
involved, which cast a cloud over a family widely
known in the state and moving in the first circles
of social, legal and political society ; also, for the
great number of distinguished counselors engaged
in it at its various stages. It was entitled "Derick
C. Lansing and others against David Russell and
Alida L. Russell his wife." The plaintiff and
Alida Russell were the children of Cornelius Lan-
sing, formerly a wealthy citizen of Lansingburgh,
who died April 23, 1842, aged 91 years. He had,
on September 24, 1836, made a will, and annexed a
codicil to it July 10, 1837. By its terms one half
of the income of his property was to be equally
enjoyed by his children during their lives, and
after their deaths the body of his estate was to be
divided among his grand children, 'per stirpes.
After his death, his son-in-law, David Russell, at
the time an attorney in practice at Salem, Wash-
ington county, and for six years a representative
OF SARATOGA COUNTY. 247
in congress, caused to be recorded two deeds pur-
porting to have been executed by the decedent
November 30, 1841 ; one deeding his farm in Salem
to David Russell, and the other his farm \n Lan-
singburgh,Ms homestead, to AlidaL. Riissell. The
signing of the deeds was witnessed by Hon. AVil-
liam A . Russell, son of David and Alida.
The plaintiffs filed their bill in Chancery in 1844,
praying to have the deeds cancelled and set aside,
charging that the signatures of Cornelius Lansing
was not affixed by him to said deed, or, if done by
his hand, it was by the connivance or compulsion
of David Russell, or some person or persons a 'ting
under his directions. After the • cause was put at
issue by a replication on the part of the plaintiffs'
to the defendants' answer. Chancellor Walworth
awarded the following issues : "Was Cornelius
Lansing legally incompetent, by reason of unsound-
ness of mind or .mental incapacity, to execute a
deed at the time the two deeds in question purport
to have been executed ? Were the said deeds
falsely made, forged or counterfeited, or was either
of them falsely made, forged or counterfeited ?
Were the signatures and marks purporting to be
made to said deeds made by said Cornelius Lansing,
or was the signature or mark to either of said deeds,
procured and obtained by compulsion or by the
fraudulent management had by the imposition of
the said David Russell and Alida his wife, or
either of them, or by any other person by the pro-
curement of said David Russell and Alida his wife,
248 THE BENCH AND BAB
or one of them ? It was acknowledged by both,
parties that at the times of the making of tlie will
and codicil Cornelius Lansing was of a sound
mind.
These issues, involving somewhat similar features
to those in " Esau versus Jacob," recorded in Holy
Writ in Genesis xxvii, were directed to be tried in
the Dutchess county circuit, and were accordingly
brought to trial at Poughkeepsie, November 21,
1845, before Judge Selah B. Strong. The plaintiffs'
attorneys and counsel were J. E. Taylor, C. L. Tracy
and David Buel of Troy, B, Davis Noxon of Syra-
cuse, and John Van Buren of New York. The
defendant David Russell appeared in person with
such aid as could be furnished by those bright
luminaries of the Washington county bar, Samuel
and Cyrus Stevens, and, as if he knew the des-
perate nature of his suit, he had also secured the
greatest American jury lawyer of the century, Dan-
iel Webster, then in the proud zenith of his legal
and senatorial fame. The jury found a verdict for
the defendants on all the issues. This is said to
have been owing to the ingenuity and tact of Web-
ster. He possessed himself of the family history
of each juror and then, seriatim, he addressed each
one by name in the most familiar manner, and
drew an illustration from their own fireside stories
applicable to the issues, and asked them how they
would have acted under similar circumstances.
On a case being made by the plaintiffs Cliancellor
Walworth made an order granting a new trial so
OF SARATOGA COUNTT. 249
far as it related to Alicia Russell and the Lansing-
burgh farm, and denying the motion so far as it
related to David Russell and the Salem farm. (See
3 Barbour Ch. Jiep.'325.) The order was dated
August 10, 1847. The right of the Chancellor to
make such an order at that date was affirmed by
the new Court of Appeals. (See 2 N. Y. Rep. 563.)
By the judiciary act of 1847 all causes then pending
in Chancery were sent to the Supreme Court, and ac-
cordingly it was again brought to trial at the Sara-
toga Circuit, June 6, 185", before Justice Hand. It
continued for fourteen days. The counsel engaged
in it on the part of the plaintiffs were J. E. Taylor,
Job Pierson, David Buel and C. L. Tracy of Troy,
John W. Thompson of Ballston Spa, B. Davis
Noxon of Syracuse and John Van Buren of New
York. The defendants were unable to secure the
attendance of Webster at the second trial, and his
place was suppled with William Hay, John K.
Porter and William A. Beach, and the other attor-
neys at the former trial. Then began one of the
closest drawn legal battles ever fought in our time-
honored court house. Then Greek met Greek and
tiie tug of war was illuminated by some of the
brightest of Prince John's wit. When Hannah
Brust, a witness for the plaintiff to prove the men-
tal and physical incapacity of Lansing, was being
cross-examined by Mr. Beach, she would look to-
wards Mr. Van Buren before answering the ques-
tion. He appealed to the court that the witness
should answer his questions without looking to-
250 THE BEWCH AlTD BAR
wards Van Buren to get the cue. Prince John
coolly rose to his feet and remarked that he should
"insist that the lady should be allowed her natural
right to choose among gentlemen whom she should
look at."
The plaintiffs pro\'^edby Dr. Samuel T. Spear, then
pastor of the South Presbyterian church in Brook-
lyn, and now editor of the New York Independent^
but, in 1841 a practicing physician in Lansing-
burgh, that at the time the deeds purported to be
executed Lansing, the grantor, was suffering from
a cancer on his lip that was very painful and ren-
dered it necessary to keep him under the influence
of strong narcotics, and that the cancer eventually
caused his death less than five months afterwards.
They proved by Jane Giles, Hannah Brust and
William Lansing that it would have been impossi-
ble for Lansing to have signed the deeds without
one of them knowing it, that he was partly deaf
and nearly blind, that his food had to be cut for
him, and that he had to be dressed and led about
his apartments. Other evidence was given to show
that the deeds were in the hand writing of David
Russell, excepting the signatures, which appeared
to show a quaver as of an unsteady hand, but under
a microscope these irregularities indicated the
steady nerves of the hand that executed them,
for they were in graceful curves ; that Alida Rus-
sell after the death of her father had said that she
wished that she could buy the old homestead but
was too poor to do so ; that the mental and phy-
OF SARATOGA COUNTY. 251
sical capacity, of the grantor was such that five years
before lie had turned over to anotlier son-in-law,
Elisha Alvord, (father of Hon. Thomas G. Alvord
of Syracuse) all his notes, bonds, deeds, leases,
etc. ; and that the fact of the execution of the deed
to Alida Russell was not known till after his death,
and until a partition suit made its production
necessary, if she insisted on holding under it.
The defense interposed evidence to substantiate
that the grantor was in sound mind at the date of
the signature of the deed ; and also of the finding
of the j)revious verdict sustaining its validity.
Solomon W. Kussell, another son of David, was
not sworn at this trial, his testimony, as to the
declaratioi'S of his grandfather acknowledging pub-
licly the execution of the deed to David Russell,
being unnecessary under the Chancellor' s ruling
affirming the validity of that deed, there being
reasonable ground to so adjudge it. The case was
summed up for the defense by Samuel Stevens,
and for the plaintiff by John Van Buren. Judge
Hand then charged the jury to find upon the inter-
rogatories framed by the Court of Chancery, (before
given) and they in their verdict answered the first
and second, in the negative, and the third in the
affirmative. Judg ment was thereupon entered for
the plaintiffs cancelling the deed of the Lansing-
burgh farm to Alida Russell.
An appeal was taken to the General Term, and a
motion to grant a new trial was heard at Malone in
July, 1852, by Justices Willard, Hand and Cady ;
252 THE BENCH AND BAB.
Justice C. L. Allen, being a relative of the parties,
taking no part. An exhaustive opinion of the Court
affirming the verdict was read by Justice Willard,
The following synopsis is prepared from the report-
ed decision in 13 Barbour 510: "The verdict of
the jury in the first instance having been in favor
of tl e defense, on all the issues, and the late court
of chancery having affirmed it as to the deed to
David Russell, this court cannot entertain at this
date a motion to set it aside. Neither can the
motion of the defendants to have both deeds declar-
ed valid be entertained. The important question
before the court is whether there is sufficient
grounds disclosed in the case to call for interference
with the verdict for the plaintiffs on the last issues.
The parties standing in the same relation to the
testator, and the defendants claiming under a deed
made alter the execution of a will, the presumption
is against anything which alters the nature of that
will. It is not denied that when the will was made
the testator was of a sound mind. The deed to Mrs.
Russell tot illy disarranges the will, and is, there-
fore, of the nature of a codicil. It purports to be
a gratuity, to place her on an equality with his
other children. The deed is in the handwriting of
David Russell and is witnessed only by William
A. Russell. Conceding that Mr. Lansing had ca-
pacity to make the deed, still he was in a condition
when even 'the grasshopper is a burden.' His
acts done when he could have been so easily con-
trolled should be watched with jealousy. It is not
OF SAEATOGA COTJTfTY. 253
necessary to impute forgery or perjury to William
A. Russell. He ma} not have been present when
the grantor was induced to assent by undue in
iluence. This conveyance is of a testamentary na-
ture and, as such, having but one subscribing wit-
ness, is void. It is unusual in form, and disturbed
the harmony of the will. It was never alluded to
in an}^ subsequent conversation by the testator, nor
acknowledged by him. It is att'^nded with all the
circumstances of doubt and suspicion. If it was
genuine it should have been mentioned at the time
the will was read." The motion for a new trial
was denied and a decree was then entered setting
aside the deed of the Lansingburgh property,
neither party being allowed costs against the other
on the motion. The matter there rested, and save
for the principles it settled and the magnitude of
their proportions it has well nigh been forgotten
by all except the legal fraternity.
11
■5V
CHAPTER XVI.
THREE SINGULAR LAND SUITS.
This work would not be complete without giving
a brief detail of the celebrated land suits of Seabury
against Rowland ; Holmes against Smith ; and
Wood against LaFayette. The tirst was brought
by Nathaniel Seabury, Daniel Swartfiguer and
others, heirs of Sarah Broughton Seabury, who
was a direct descendant from Samson S. Broughton,
one of the patentees of the Kayaderosseras grant.
The suit was brought by Duncan McMartin, attor-
ney, with the aid of his father-in-law, Daniel Cady,
as counsel, against Elisha Rowland who held about
600 acres in Halfmoon by virtue of a title derived
from the husband of Mrs. Se iburj^ It was com-
menced in August, 1846. Suits were also brought
against Truman Mabbett of Halfmoon, G-eorge W.
Wilcox of Saratoga Springs. and others in the north
part of the county to recover lands held by similar
titles. Howland employed E. F. Bullard, Mabbett
secured John K Porter, and Judge Warren and
Judiah Ellsworth were retained by the other
defendants. Although these lands had been held
over fifty years under these titles, Judge Cady, who
h ad thoroughly examined them, was certain that
a dverse possession did not sustain them because
OF SARATOGA COUNTY. 355
the statute was suspended by the infancy and
coverture of the claimants. They were noticed for
trial at the several intervening terras, and at the
May Circuit, 1847, Mr. Cady appeared ready for
trial. It had been determined to make a test suit
of the action against Howland. Judge Cady said
to Mr. BuUard: "You and I can just as well try
this case in my room. If I am right,' 1 am sure you
will acknowledge it ; but, if I am wrong, I don't
want to be beaten in open court, for this is the last
cause that I shall try as counsel." The aged coun-
selor of 75 years and the youthful lawyer accord-
ingly met in the former's room at JSIedbery's hotel
in Ballston Spa, May 25, 1847, to mutually exam-
ine the respective claims and titles of their clients.
Cady began with the Kayaderosseras grant and its
divisions, tracing down the title by descent un-
broken to the plaintiffs. Mr. Bullard conceded
that this was a prima facie case, and then dis-
closed his evidence, beginning with a deed from
Seabur}^ to Edward Howland, father of the defend-
ant. Cady replied : "Seabury had only a life
estate and the coverture and infancy of the plain-
tiffs prevents this title from becoming adverse."
Mr. Bullard admitted that it so appeared on the
face, but the two deeds that he now produced,
which he had found recorded in Albany county,
altered the phase entirely One was" from Sarah
Broughton Seabury and her husband to a third
party with power to sell and convey as a trustee,
and the other was a deed from the trustee convey-
256 THE BElSrCH AND BAR
ing all the real estate back to Seabury, the husband.
This settled the claim to over $100,000 worth of
real estate. The great lawyer saw at once that he
had no further hope, aid said : "I give up. Your
title is clear and cuts oif our whole claim. Go and
tell Judge Willard to enter a non-suit. I am going
to Johnstown." The court records in the clerk's
office shows that a non-suit was entered in this
action May 25, 1847. It was the last cause tried by
Daniel Cady, for he was elected a justice of the
Supreme Court the following month, being the only
whig candidate chosen in the district. He contin-
ued to hold that office until December 31, 1854,
when lie resigned. He died, retaining his faculties
to the last, in October, 1859, in the eighty- seventh
year of his age. He was one of the purest and
greatest men who have adorned the bench of this
state.
The suit brought by Allen J. Holmes against
Lewis Smith, and the counter suits brought by Lewis
and Silas G. Smith against Holmes involved a valu-
able interest relating to the title and possession of
about 600 acres of land in Stillwater and Malta. In
the spring of 1853, Allen J. Holmes of Pleasant
Valley, Dutchess county, bargained with Lewis
Smith of Stillwater to purchase his farm contain-
ing live hundred and forty- seven acres, three roods
and three rods of land, lying in three tracts, with
some reservation of lands previously sold from the
original boundaries. The farm had been worked
the previous year by Silas G. Smith, son of Lewis,
OF SARATOGA COUNTY. 257
and he owned several acres of rye then growing on
the farm. By some oversight the reservation of
this grain was omitted from the articles of agree-
ment. Smith had always been noted for making
shrewd bargains, and Hohnes boasted to some of
his friends that the ' 'old fox had been caught at
last. ' ' This reached the ears of Smith. He looked
at the copy of the agreement. It was a fact, he had
been napping, but still was not caught. He hast-
ened to James B. McKean, his attorney. He could
see no other way out than to pay the heavy for-
feiture. Other distinguished counselors said the
same. Smith finally in his own mind evolved the
the following solution: they were to meet at the
county clerk's office on the 10th of May to deliver
the deed, and accept the mortgage that was to be
taken by Smith as part payment of the considera-
tion to be paid for the farm ; and he decided to have
two deeds drawn, one with a clause "reserving
grain sowed on the land and the right to cut and
remove the same," and the other a simple warranty
deed according to the contract. If Holmes should
demur to the former, h^^ would demand the pay-
ment of the full consideration: viz, $29,905.56 in
specie, well knowing that the amount could not be
obtained within the' specified time at the bank in
Ballston Spa. The day came, Holmes and his
attorney, Abel Meeker, were earl}- on hand and in
a jubilant mood. Smith and his attorney, James
B. McKean, did not appear until afternoon. Smith
tendered the first deed, and Holmes declined to
258 THE BEITCH ATfD BAB
receive it, for it was not "so nominated in the
bond." Smith then tendered the other deed and
said he would take his pay in the "legal tender."
This was a bombshell in the Holmes camp. Meeker
saw that they were trapped and advised his client
to accept the former deed. Rather than pay the
forfeiture he did so.
But though vanquished he was not yet beaten.
He secured Nathaniel J. Seel^y, a surveyor, of
Ballston Spa, to survey the farm, and he in run-
ning the courses as mentioned in the deed found
that there was not so many acres as that instrument
called for. Holmes then began an action for dam-
ages, alleging a breach of covenant. When the
first payment came due on the mortgage he refused
to honor it, and Smith began a suit on the bond.
Holmes demurred, and in this stage it went to the
Court of Appeals, where the demurrer was sus-
tained. The first action was referred to Cornelius
A. Waldron to hear and determine. Smith had
the farm surveyed by Norman Seymour, a civil
engineer residing in Stillwater. Having the assis-
tance of parties who knew the ' ancient landmarks '
his survey tallied with the deed as nearly as a sur-
vey of a farm composed of several different pur-
chases of land could be expected to, when it is taken
into consideration that hardly one of them was one
of the original lot lines and that the tract had as
many angles as the palace of the Escurial, The ref-
eree found for defendant. His report was set aside
by the Supreme Court on the ground that Seymour' s
OF SARATOGA COUNTY. 259
chain was sworn by liim to be graduated according
to the United States scale, and the court, in a vir
tuous states' rights mood, declaiipd that it should be
according to the New York scale. It is a singular
fact that the units are of the same length by both
standards. A new survey was ordered and Delos
E. Culver, a quite prominent civil engineer, was
designated to conduct it. Silas G. Smith, also,
began an action against Holmes for damage to his
grain by the latter' s cattle and recovered judgment,
which was appealed to the higher courts. While
these three suits thus "hung lire," in the winter
of 1860, Mr. Holmes was suddenly taken ill
and died. The actions were finally settled by the
Smiths and the executors of Holmes, and thus they
withdrew^ from the courts. Gen. Bullard v/as asso-
cirted with Judge McKean as counsel for Smith.
James W. Culver assisted Mr. Meeker as counsel
for Holmes.
The third case is that of Hiram Wood against
Michael de LaFayette. .The defendant is a French
Canadian who, in 1858, purchased a forty acre lot
in the town of Milton, which had formerly been
• owned by James Mann, the elder. He claimed that
the ngrth line of the lot was not as it existed at the
time of his purchase, but as it did when it was
occupied by Mann. Accordingly he removed his
fence from the position in which it had stood over
forty years to the line which was named in Mann's
deed, the distance of twenty four links, and cut the
timber then growing on the land. This narrow belt
260 THE BENCH AND BAR
of sandy land, not worth twenty dollars and less
than two -thirds of an acre in extent, has been the
source of a litio^ation which bids fair to outliv^e its
prominent actors. Wood sued in justice's court,
declariut^ in trespass for cutting trees upon lands
in his possession. J. S. L' Auioreaux was his attor-
ney. The def<-iidant, by Joseph LeBoeuf, his attor-
ney, denied all the allegations and set up a claim
of title ill himself to the premises. The action was
thus removed to the Supreme Court, where John
Brother.son nppeared as defendant's attorney and
the issu.' WHS joined. The plaintiff declared upon
his deeds u i :d the fact of his possession of the prem-
ises and that the defendant had never been lawfully
seized of them. The defendant stood u])on the
boundaries of the deed to James Mann, from v.hom
his title emanated, in 1815. The action was tried
at the Saratoga Circuit in May, 1868, before Judge
James. The defendant's offer to prove the ancient
boiindar}^ was ruled out and excluded, and a judg-
ment was entered against him for $50. He appealed
to the General Term and the judgment was affirmed.
He further appealed to the Court of xlppeals and a
new trial was ordered. (See 46 R. Y. Rep. 484.)
The second tiial was had at the January Circuit,
1874, b<ifore Justice Joseph Potter. He allowed
the defendant to prove that an agreement to submit
the line in question to the arbitration of James
Mann, the 3''ounger (since deceased), for him to
determine is to its (;orr('ct latitude had been revoked
by the plaintiff, but excluded the deeds and docu-
OF SAEATOGA COUNTY. 261
mentary evidence offered by the defendant ; charg-
ing the jury that "the title to the lands between
the plaintiff and defendant shall be determined,
not by reference to the deeds, nor by reference to
any other fact than this, that one of them is to own
to the extent that James Mann occupied." It was
shown in proof that Mann had only occupied the
cleared land and that LaFayette had purchased the
land as the line fences then stood. The jury again
found a verdict for the plaintiff for $50. Judgment
was thereupon entered for $679.47 damages and
costs. The General Term has again affirmed the
verdict, and a motion for a new trial is now pend-
ing in the Court of Appeals. L' Amoreaux & Dake
and L. B. Pike have zealously guarded the claims
of the plaintiff, and John Brotherson has been
equally strenuous in defending the asserted rights
of the defendant. When or how it will 'end the
soothsayers prophesy not.
CHAPTEE XVII.
SARATOGA'S CIRCUIT JUDGES.
Reuben Hyde Walworth, the "Last of the Chan-
cellors," was a son of Benjamin Walworth of
Bozrah, Connecticut, in which town he was born
October 26, 1788. During his early boyhood his
father removed to the town of Hoosick in this state,
where he lived the life of an honest and respected
tiller of the soil. The educational advantages
offered to young Walworth were very meager. He
graphically describes them in his address to the bar
on taking his seat as Chancellor, April 28, 1828 :
Gentlemen of the Bar: In assuming the duties of this
highly responsible statif)n, which at some future day would have
been the highest object of nay ambition, permit me to say, that the
solicitations of my t«o partial friends, rather than my own incli-
nation, or my own judgment, hare inclined me to consent to occupy
it^at this time. Brought up a farmer's boy until the age of seven-
teen, deprived of all the advantages of a classical education, and
with a y.'rv limited knowledge of chancery law, I tind myself, at
the age of ^8, suddenly and unexpectedly placed at the head of the
judiciary of the state ; a situation which h-retefore has been filled
by the most able and experienced members of the profession.
Under these circumstances, and when those able and intelligent
judges, who for the last five years have dona honor to the bench
©f the Supreme Court, all decline the arduous and responsible
duties of this statioj, it would bean excess of vanity in me, or in
any one in my situation, to suppose he could discharge those
duties to the satisfaction even of tho most indulgent friends. But
OP SARATOGA COUNTY. 263
the uniform kindness and civility with which I have been treated
by every member of the profession, and, in fact, by all classes of
citizens, while I occupieel a seat on the bench raf the Circuit Court,
afford the strongest assurance that your best wishes for ciy success
will follow me here. And, in return, I oan only assure you, Ihiit I
will spare no exertions in endeavoring to deserve the approbation
of an enlightened bar, and an intellit^ent coiniuunity " (Set; 1
Paige's Glumcery Rejwrts.)
The Walworth family is an ancient one in Con-
necticnt, tracingits origin to the historic Walworth,
lord mayor of London, who slew the rebel Watt
Tyler, in the reign of Ri.'-hard II, Becoming untit-
ted for a farmer' s life by an accident, the future
Chancellor studied law and was admitted to the bar
soon after attaining his majoiity. In 1814, he
served as an aid on the staff of Major General
Mooers, and took an important part in the battle of
Plattsburgh. After the war he again entered on
practice of his profession at Plattsburg, where he
had settled ill 1810. He was appointed Circuit
Judge for the fourth circuit, April 21, 1823, by
Governor Joseph C. Yates, with the consent of the
senate. He held the office for five years. He was
noted for his prompt and fearless administration of
the laws in the civil and criminal branches of his
courts. In this and other counties he was fre-
quently called on to adjudicate claims to lands in
the patents granted under the seal and sign manual
of Lord Cornbury. Soon after liis appointment he
removed to Saratoga Springs, where he resided
until his death, with the exception of the interval
from 1828 to 1833, when he had a residence in
264 THE BENCH AND BAE.
Albany. "Pine Grove," his Saratoga seat, became
in the legal "Mecca ' of the bar of this state.
Drawn thither by business in his court cameGrovs.
Tompkins, DeWitt Clinton, Yates, Van Buren,
Marcy, Throop, Wright, Seward and Tilden ;
Presidents Buchanan and Fillmore; Charles O' Con-
or, B. F. Butler, the three Spencers, Elisha Wil-
liams, Samuel Stevens, Thomas Addis Emmett and
Daniel Webster, and there he entertained his breth-
ren of the bench, Kent and Story and Grier ; besides
hosts of men and women widely known in the
clerical, military and civil professions and in the
literary walks of life. Perhaps the most widely
remembered case tried before him as a criminal
judge was the indictment against the three brothers,
Nelson Thayer, Isa:ic Thayer and Israel Thayer, jr.,
charging them with the murder of John Love, at
the town of Boston, Erie county, December 24,
1824. Their object was to secure the money of
Love, vv^ho was an inoffensive, harmless bachelor,
who made his home in the family of Nelson. They
were engaged in killing pork at the barn of Israel
Thayer, jr., and th-ey "mingled his blood with that
of their butchered swine." Possessing themselves
of the few hundreds of dollars he was known to have
on his person, they buried his body under the rub-
bish of a lately cleared forest. The passing of a
certain bill, known to have been in the possession
of Love, by Israel Thayer, jr., and the fact of his
disappearance led to the arrest of Israel Thayer,
senior, and his three sons. Confronted with the
Ot SARATOGA OOtrfTTT. 265
facts obtained, the father confessed the crime, and
the body was found where he indicated. They
were indicted on his confession, and, at the Oyer
and Terminer held in Buffalo in April, 1825, the
three sons were convicted of willful murder, and
the father of being an accessory both before and
after the fact. The sons were executed at Buffalo,
June 17, 1825 ; and the wretched father was sen-
tenced to states prison for ten years and ended his
life in a cell. The language of Judge Walworth in
passing the "dreadful sentence of the law," which
consigned to the gallows "three young men who
have just arrived at manhood, standing in the
relation to each other of brothers" was touching in
the extreme ; awakening in his heart, as he said,
"feelings which are too painful to be expressed."
The office of Chancellor having become vacant, the
position was tendered Judge Walworth by Gov.
Pitcher. He reluctantly accepted it and the ap-
pointment was confirmed by the senate April 22,
1828. His predecessors in the Equity Chamber
were Robert R. Livingston, John Lansing, jr.,
James Kent, Nathan Sanford and Samuel Jones.
He at once entered upon his new duties and ably
sustained the reputation of the court which had
been presided over by such brilliant men as
had gone before him. He held the office until it
was abolished by the constitution of 1846. The
record of the court and its veritable parchment roll
of attorneys are now tiled in the state library at
Albany. He had strict notions of honesty and
12
266 THE BENCH AlfTD BAE
integrity, and the Chancellor' s court being drcum-
scribed by no rules of law, he often astonished
solicitors who appeared before him by the quick
manner in which he saw through their legal quib-
bles and subterfuges and brushing them away like
cobwebs applied the strict dictates of equity to
their cases. The only office he ever held outside
of the state was representative in congress from Clin-
ton county from 1821 to 1828. In 1844, he was nom-
inated to a seat on the bench of the Supreme Court
of the United States by President Tyler, but was
rejected by the senate ; southern S'-'uators deeming
him unsound on the "peculiar institution," He
was the Democratic candidate in 1848 for gov-
ernor. The Van Buren split in the party was the
cause of his defeat, and his whig opponent, Hamil-
ton Fish, was elected by a plurality vote. The
other candidate was Gov. John A. Dix. Chan-
cellor Walworth was twice married. His first wife
was Miss Maria K. Averill of Plattsburgh, Sub-
sequent to her death, he was united to the widow
of Co]. John J. Hardin of Hlinois, who gallantly
fell a.t the head of his regiment at Buena Yista.
She suivived him eight j'eai's. In his latter j^ears
he was appointed a referee by the United States
Circuit Cc'urt to take the evidence in the celebrated
Corning and Burden " hook spike head case ;"" in
which Burden, the great Trojan iron king, claimed
that Corning, his Albany rival, had infringed on
his patents. It occupied in its trial over ten years,
and he filed his report but a few months previous
OF SARATOGA COUNTY. 267
to his death. He was a sufferer from diabetes for
a long time, and finally he was relieved from his
earthly pain, November 28,1866, and the "Last of
the Chancellors" was laid to sleep in the beautiful
Greenridge cemetery at Saratoga Springs. He was
for many years a prominent member of the First
Presbyterian church in that village. He was a
great advocate and worker in the cause of total
abstinence, and was chosen first president of the
New York State Temperance Society in February,
1829, and subsequently president of the American
Temperance Union.
Esek Cowen was born in Rhode Island, February
24, 1784. He was the son of Joseph Cowen, who
was a descendant from a Scotch emigrant who set-
tied in Scituate, Mass., in 1656. His ather removed
to this county in the colony from Connecticut which
embraced, among others of the pioneers of Gfreen-
field, the Fitch and Child families, about 1793.
The elder Cowen settled near Scott's corners. A
few years later h© removed to the town of Hart-
ford, Washington county, and purchased a ikim
on which young Cowen labornd in his early years.
His son, P. H. Cowen, Esq. , informs me that his
father has repeatedly told him that the only educa-
tional advantages he ever enjoyed was six mr.?iths
attendance in a neighborhood school. He had been
gifted by Nature with a most retentive memory and
he gathered much useful knowledge from the stud-
ies of his younger brother, Solomon, who read
aloud to him from his text books. It would be
268 THE BEirOH AND BAR
hard to determine which gained the most advan-
tage, the reader or the hearer ; at any rate the latter
became a most patient and careful listener, a quality
eminently necessary in a judge. He, also, while
engaged in tending the iires of his father's lime
kilns, kept his book by his side, and while disen-
gaging the free carbonate from its ancient chemical
bonds, was storing his mind with the classic and
scientitic lore of ancient and modern times. Here
he gained that quality of observation which enabled
him in later years, as has been said of him, to pur-
sue two chains of thoughts at the same time, to
carefully listen to the argument of an advocates
closely compare it with the points made by the
opposing counselor and be ready at the moment of
conclusion with a decision touching concisely upon
all its bearings. He became a thorough master of
classical and English literature. He early turned
his attention to the law and entered the office of
Roger Skinner at Sandy Hill. His fellow students
were Silas Wright, jr., Zelulon R. Shipherd and
Gardner Stow, all men who left the impress of their
lives on the age in which they lived. He was
admitted to the Supreme Court bar in 1810. Form-
ing a law partnership with VVessell Gansevoort,
they opened an office and began the practice of the
law at Ganzevoort ; from whence he removed to
Saratoga Springs in 1812. He soon took a front
rank at the bar of this county. He married in 1812,
Mrs. Elizabeth Rogers, the widowed daughter of
Col. Sidney Berry of Saratoga, a brave revolution-
OP SARATOGA OOFNTY. 269
ary officer, who was a judge of this county and its
first surrogate, holding the office from 1791 to 1794,
and was a member of assembly from Albany county
in 1791, the year our county was erected, and was
also chosen the next year with Elias Palmer to be
the first assemblymen from Saratoga county. Mr.
Co wen was appointed " Reporter in the Supreme
Court and Court of Errors" in May, 1824, and held
the position until August, 1828. His reports are
contained in nine volumes and are highly prized by
the profession. He was appointed Circuit Judge by
Gov. Pitcher, April 22, 1828, and on th^ appoint-
ment of Judge Samuel Nelson to be Chief Justice,
on the retirement of John Savage, he was appointed
Si puisne ^udge of the Supreme Court of this state
by Gov. Marcy, August 31, 1836 ; which position
he held until his death. Judge Co wen presided
with firmness and dignity while on the bench, and
was very exacting of the bar in the economy of
time. On the occasion of his holding his first Cir-
cuit Court in Troy he took his seat on the bench at
the appointed hour. Not an attorney was present.
Under a lax discipline tliey had been in the habit
of not appearing in the court room before eleven
o'clock. He called the calendar and no causes
being ready, he ordered the clerk, Archibald Bull,
to adjourn the ccurt until the next morning at nine
o'clock, adding the remark, that if nothing was
ready for trial at that hour he would adjourn the
term sine die. The bar took the hint, and the
untiring judge worked them until ten iji the evening
270 THE BEirCH ATTD BAR
each day of the term. On another occasion he
drove to Elizabethtown, Essex county, in a heavy
snow storm to attend an adjourned term. Arriving
at the court house he found it unopened and no
one in sight at the appointed hour. He got out of
his sleigh, leaving his son, my informant, holding
the reins, went upon the steps, adjourned the term
without day and started for Plattsburgh, before the
dilatory court officers and bar knew of his presence.
As a criminal judge he was strenuous in defending
the liberties of citizens, holding prosecuting attor-
neys to prove the guilt of a prisoner beyond the
peradventure of a doubt before asking a jury to
convict him. While sitting on the supreme bench
he assisted in deciding many knotty legal points,
and his opinions are yet frequently quoted in this
and other states. A gentleman, who has attended
the sessions of the Queen's Bench in England,
informs me that Cowen is frequently quoted by the
English sergeants and barristers. His most cele-
brated opinion was that involving a question of
international law. McLeod, a Canada patriot, in
the rebellion of 1837, had been arrested for waging
war against a nation with whom our country was
at peace. His case was brought before the Supreme
Court on a habeas corpus, but it refused to dis-
charge him. "The court," says a learned author-
ity of that day, " in refusing to discharge McLeod,
have nobly maintained the supremacy of the laws,
and vindicated the dignity and rights of this state."
The opinion was written by Judge Cowen and was
OF SABATOGA COUNTY. 271
coincided in by Chief Justice Nelson and Judge
Bronson, his associates on tlie bench. Hp (^arefully
distinguished between the jurist and ilie citizen.
At the same time he, as a judge, was ron'lemning
McLeod for his connection with the r^'iu-.lion, by
going from this state to war upon Great Britain ;
he, as a citizen, was entertaining Papin -iiu, Bid-
well, O'Callaghan and others of that ill -fati^d band,
at his residence in Saratoga Springs. He died in
Albany after a brief illness, during a session of the
court, February 11, 1844, having nearly completed
the age of fifty seven years. Judge Cowen was a
devoted member of the Episcopal conmiunion, and
was one of the founders A' Bethesda parish Sara-
toga Springs. He was buried in the Putnam bury-
ing ground, but his reruains have since been re-
moved to a family plot in Greenridge cemetery.
In his early life he held the office of justice of the
peace, and, in 1821, he was elected second super-
visor of Saratoga Springs, and was re-elected in
1822. Besides his "Reports," he has bequeathed
to the profession as the work of his pen a '• Treatise
on the Practice in Justices' C(mrts," suggested by
the want of such a work when he held that position,
which lias frequently formed for years the only
library of country practitioners in those humble
tribunals ; and "Notes on Phillips' Evidence," pre-
pared in connection with Nicholas Hill, jr. Pre-
vious to his elevation to the bench he had entered
into the law partnerships with Judge Warren and
Judiah EUsworth. The latter now is almost the
272 THE BENCH AND BAR
sole survivor of those who had the good fortune to
be intimately acquainted with Judge Cowen.
John Willard was a prominent member for many
years of our state judiciary. He was born in Guil-
fo]-d, Connecticut, May 20, 1792. His paternal
ancestr}^ dates back to the settlement of that town
in 1659, and came from the Puritan stock which
came over with John Winthrop and settled at
Massachusetts bay. He was educated at Middle-
bury College, Middlebury, Vermont, and was grad-
uated therefrom in August, 1813, in the same class
with Silas Wright, jr., and Samuel Nelson. He
studied law and was admitted to practice in 1817.
He established himself at Salem, Washington
county, where he soon gained the reputation of
being a model lawyer. He was appointed first
judge of Washington county by Gov. Marcy, Feb-
ruary 13, 1833, to succeed Hon. Ro?well Weston ;
having held the office of surrogate by appointment
the previous year. He was appointed Circuit
Judge, September 3, 1836, to succeed Judge Cowen,
transferred to the bench of the Supreme Court.
He held this office untill847, when it was abolished.
The same year he was elected by the people to the
new office of Justice of the Supreme Court for the
fourth district, along with Daniel Cady, Alonzo C.
Paige and Augustus C. Hand. He drew the term
for six years, next to the longest, which fell to Jus-
tice Hand. He served his term, and on its expira-
tion retired from the bench ; Hon. A. B. James
having been elected to succeed him. As a judge
OF SARATOGA COUNTY. 273
he was noted for his quick perceptions and firm-
ness in ruling as he conceived to be right. His
career as a jurist was such as to win for him the
univers il esteem of the bar of tl»e state. On his
appointment to the ojffice of Circuit Judge, he
removed to Saratoga Springs, to be convenient of
access by railroad to the counselors who had busi-
ness before him as Vice Chancellor. In 1856, he was
appointed by President Pierce, on the advice of his
attorney-general, Hon. Caleb Cushing, one of the
commissioners to examine into the validity of the
Mexican land grants in California. He performed
this arduous duty in a most thorough and satisfac-
tory manner, and the United States Supreme Court
was guided by his findings in their decisions oi'
the "Mariposa," "New Almaden" and other
claims. In 1861, he was unanimously elected to
the state senate and served in the first session. His
labors there were to sustain the national govern-
ment in its contest with traitors ; and he, also, did
much to correct the faults he had seen as a judge
to exist in tlje laws concerning the crime ot mur-
der, and the rights of married women to control
their separate estates. Before the next session met
he had been called up higher ; having closed his
busy and eventful life, August 31, 1862. As a law-
yer and a judge he believed in a strict administra-
tion of the criminal laws, rightly judging that the
lawyer who prostituted lis talents to defend by
"quirks and quibbles" a notorious off'ender was
374 THE BEITCH AITD BAR
directly responsible for the rapid increase of crime.
In his writings he says :
•
In the beginning, as a poor young lawyer gettyyg business slowly
I had strong temptations. I was sometimes assigned by courts to
defend bad men, but then ray only duty was to set forth any
extenuating circumstances. Scoundrels who deserved punishment
soon learned to k. ep clear of me. As for such poor fellows, how-
ever, as had been thoughtlessly led into crime, I would frequently
give them advice, gratis, after telling them to repent and reform."
How strikingly does this compare with the con-
duct of David Dudley Field in defending the notori-
ous Tweed and the " Ring thieves" of New York ;
and with other instances which might be men-
tioned, which reflect no honor on the advocates,
and which have exerted a baneful influence on the
rising generation. Upon leaving the bench. Judge
Willard began the preparations of important works
which alone would commend him to the admiration
of the profession. His treatises on "Equity Juris
prudence," " Executors, Administrators and Guar-
dians," and "Real Estate and Conveyancing," says
his friend, Hon. O. L. Barbour, himself a distin-
guished legal author: "Are the results of an
unwearied industry, and the fruits of a long and
ripe experience. They will ever be regarded as a
valuable legacy left to his brethren, by one wlio
loved his profession and was proud to pay the
debt he owed it." Much of his success in life he
attributed to the judicious advice of his aunt, Mrs.
Emma Willard, the distinguished educator, in
whose family he had a home in his college days.
OF- SARATOGA COUNTY. 275
He had the misfortune to lose his daughter, an only
child, in 1853. His wife, to whom he was united in
1829, died in 1859. Her maiden name was Miss
Emma Smith. They were for many years mem-
bers of the First Presbyterian church in Saratoga
Springs. They, also, are interred in Greenridge
cemetery.
Augustus Bockes, though by his title he is a
Justice of the Supreme Court, has ably and hon-
orably performed the functions of a judge at Cir-
cuit for nearly a score of years. He was born near
Greenfield Center, October 1, 1817. His father, ■
Adam Bockes, jr., was a warmer and was held in
high esteem by his townsm-^n. He was supervisor
of the town in 1834. He brought his son up in the
ordinary routine of a, farmer's boy life, giving him
the advantages of the district school to obtain an
education. Arriving at the age of eighteen years,
young Bockes took and taiight a school, aiid for
three suciiessive winters watv " lord of the birch and
ferule" in the days wlien "ooarding around" was
the common lut of the school teacher. The two
intervening summers he passed in studj' at the
Burr Seminary, at Mancjhester, Vermont. He then
bi-gart his legal studies in the oSce of Judiah Ells-
worth in the spring of 1838, and a year later en-
tered the office of Beach & Cowen. The latter being
Sidney J. Cowen, whose death at sea has has been
previously related. He was admitted to practice
in 1842. He opened an office in connection with
Stephen P. Nash. Afterwards, he formed a law
276 THE BEWOH ATTD BAB.
partnership with William A. Beach, which con-
tinued until 1847, when he was chosen to be the
first county judge, at the special judicial election
held June 4, 1847, at which he was tlie whig can-
didate for that office. The democrats nominated
the veteran lawyer, George W. Kirtlatid of Water-
ford. The contest resulted in the e](^ction of Mr.
Bockes by a handsome majority. Such was the
beginning of what has proved a brilliant judicial
career. The honor thus conferred on her son has
been rellected on tlie county which gave him birth.
In November, 1851, he was re-elected by a majority
of 1,205 over Edward F. Buliard. Justice Cady
having resigned his seat on the benrh. Governor
Clark, January 1, 1855, ai)pointed Judge Bockes
to the vacant justiceship. He served under that
appointment until the expiration of his term the
ensuing December. H:' s appearance at the Circuits
held by him and the record that he made was
such as to commend hi n to the bar and public gen-
erally, and he was urge i to place himself before the
people for an electior to that high office. He
declined, and returned to the practice of his pro-
fession, and Enoch Ro.' ekrans was chosen to suc-
ceed him. Four years later, on the expiration of
the term of Justice Cor^ielius L. Allen, he accepted
a nomination from the Republican party and was
elected over that popular judge. In 1867, he was
again placed in nomination and, the democrats
making no nomination, was elected without oppo-
sition. This was a high honor to an upright judge.
OJ* SARATOGA COUNTY. 277
In 1873, Gov, Dix designated him to be one of the
justices to sit at General Term for the third depart-
ment. In 1866, he had a seat on the bench of the
Court of Appeals, in due course under the pro
visions of the constitution, as it was previous to
the amendment of 1869. In 1875, it was generally
understood that he would not make a canvass to
secure a re-election, but would hold himself at the
will of the people as expressed in the party con-
ventions and at the ballot box. The result proved
his judicial and personal popularity, for he re-
ceived a compliment that has never been given to
any other citizen of the state — he was nominated by
both parties unanimously and elected by a full
vote of the people of this judicial district. A higher
mark of conlidence cannot be paid to a citizen of
our republic. Gov. Tilden showed his apprecia-
tion of his worth by again designating him as a jus-
tice to sit at General Term. Judge Bockes is noted
for his courtly manners and the dignity and urban-
ity with which he presides on the bench. Quick to
comprehend a point about to be made by an advo-
cate, he often anticipates him by a decision of that
question. His opinions as given on the bench at
the County Courts, Circuits, and General Terms
have rarely been overruled when carried to the
court of last resort. His friends have hopes of his
yet attaining a seat on the bench of the Court of
Appeals, for which position he is rarely titted by
his habits of close reasoning and logical applica-
tion. Judge Bockes was united quite early in life
12*
278 THE BENCH AND BAR
to Miss Mary Hay, daughter of Hon. William Hay
of Saratoga Springs. He is a communicant of the
Episcopal church and is, at present writing, one
of the vestrymen of Bethesda parish, Saratoga
Springs.
Such are Saratoga's Circuit Judges. Well may
her bar be proud of their lionored record and point
to Walworth, Cowen, Willard and Bockes as
judges '''' semper paratus, semper jidelis^'' — "ever
ready" to do their whole duty, and " ever faithful"
to the important trusts confided to their hands.
May their example be emulated and their virtues
copied by those who are yet to sit on the bench
they have dignified with their presence and labors.
CHAPTER XYIII.
THE FIRST JUDGES CF COMMON PLEAS.
First Judge John Thompson was born in Litch-
field, Conn., March 20, 1749. But little of his early
history is known to the present generation, beyond
the fact that he was descended from the Scotch- Irish
colony, which settled at Londonderry, N. H., in
the seventeenth century, and was one of the Litch-
field colony which emigrated to this state in 1763,
and settled in the town of Stillwater. The farm on
which Thompson' s father settled was at the foot of
Potash Hill about a mile and a half southwest of
Stillwater village, being that now owned by Robert
K. Landon. The Litchfield colony was a Congre-
gational society or church in that town which was
formed in 1752. Id the year 1763, under the lead
of their pastor, Rev. Robert Campbell, they resolved
to emigrate in a body to the terra incognita of the
Saratoga |patent, on which they settled under the
patronage of Gen. Philip Schuyler. The colony
embraced beside the Thompson family, among
others the Seymours, Fellows, Palmers, Ensigns
aisd Burlingames, whose descendants yet live in
Stillwater. They founded the religious society in
that town which from its ancient edifice acquired
the name of the "Yellow Meeting House," and
280 THE BENCH AND BAR
which is now the oldest religious society in the
county. This colony was eight years anterior to
that led by Rev. Eliphalet Ball, under similar cir-
cumstances, to Ballston Center. Mr. Thompson
was married at an early age, and was an ardent
patriot during the Revolution, enjoying the esteem
and friendship of Gen. Schuyler. He was ap-
pointed one of the first justices of the town of Still-
watt^r, on its erection March 7, 1788. He was not
bred to the law, but pursued an agricultural life on
the acres he inherited from his father. On the
erection of the county of Saratoga in 1791, he was
appointed to the responsible office of First Judge
by Gov. Clinton, on the recommendation of Gen.
Schuyler. His commission dates from February
17, the day the bill was passed by the legislature
and promptly approved by the governor. While
be sat on the bench he made a fearless and upright
judge, the minutes of the clerk bearing impress
frequently of his quick and apt rulings, showing
that though not learned as a clerk in the law he
was a deep student of the practice and theories of
the courts. He was elected a member of the
national house of representatives in 1798, and served
in the three eessions of tlie fifth congress, under the
administration of the elder Adams, in which he
strenuously opposed the Alien and Seditio i laws.
It 1801, he was elected and served as a member of
the convention called to revise the state constitu-
tion. He was again elected to the house of repre-
sentatives in 1806 and re-elected in 1808, serving in
OF SARATOGA COUNTY. 281
the tentli and eleventh congresses during the last two
years of President Jefferson's, and the first two
years of Presiden Madison' s administration. Dur-
ing this period, on March 20, 1819, he reached the
constitutional period: viz., sixty , years, when he
was called on to lay aside his judicial robes, and
Hon. Salmon Child was appointed to succeed
him. On the 3d of March, 1812, his last term in
congress expired, and he returned to private life a4
his home in Stillwater. During his latter years he
was afflicted with palsy, which finally terminated
his earthly existence in November, 1823, in the
seventy- fifth year of his age. One of his sons was
the late Judge Thompson of Milton, the other Dr.
Nathan Thompson of Galway. One of his daugh-
ters married Dr. Aaron Gregory of Milton, and the
second, Dr. Isaac Sears of Stillwater.
First Judge Salmon Child was, also, a native of
Connecticut, in which colony he was born in the
year 1762. His father was a captain in the Con-
necticut line and Salmon joined^ Washington's
army in the spring of 1781, and participated in the
march to Virginia, and in the final triumph at
Yorktown. In,1832, he became entitled to a pen-
sion by the act of congress, hitherto referred to in
these pages. 'Perhaps no' non professional 'man
ever received a greater proportion of offices'in^this
county. He was a plain farmer, a sound common
sense man, and ever sustained an irreproachable
moral and>eligious^character,^the great weight of
which brought him into public life. With his
282 THE BENCH AND BAR
father he was one of the pioneer settlers of Green-
field soon after the Revolution, locating in the south
part of the town. He was appointed one of the
first justi 'es of the peace in the town of Greenfield.
He was twice elected to the state assembly and sat
in the legislatures of IBDS and 1809. In March, 1809,
on the retirement of* Judge John Thompson, he
was appointed to the responsible office of first judge
£y Gov. Daniel D. Tompkins. He held this office
until June 16, 1818, when the term of office of each
judge of the Common Pleas in this state was
declared to be at an end by an act of the legisla-
ture of that year. Not having been educated by
previous study or habits to fit him for a high judi-
cial position, he had felt for some years his anoma-
lous position before the bar, and desired to retire
from the bench. He was admirably fitted for a
judge in equity, but on the law side of the courts
he appreciated the want of a thorough knowledge
of its intricacies. Therefore, when Governor De
Witt Clinton reorganized the Court of Common
Pleas for this county in June, 1818, he gladly relin-
quished his seat on the bench to Hon. James
Thompson, as one fitted by education and training
to administer the law. He accepted the office of
Judge of Common Pleas on the same bench for the
term of five years. In 1821, he was a member of
the constitutional convention, and "in 1828 was
chosen a member of the electoral college^ and cast
his vote for John Quincy Adams. This was his
last public office. He was also supervisor of Green-
OF SABATOGA COUNTY. 283
field in 1804-5-6-7. He was a prominent member
of the Milton Baptist churcli, (Stone church) and
had much to do in the formation and maintenance
of that society, in the then new settlement where he
resided. He was one of the six or eight men in
Greenfield who formed one of the first temperance
societies in this county, in 1809. "He was," says
Rev. Thomas Powell, his former pastor, "one of
the most conscientious and consistent christians I
ever knew." About twenty years previous to his
death he removed with his family to the west, and
died January 28, 1856, in the ninety-fifth year of
his age, at his residence in Walworth county, Wis-
consin. He was one of the first settlers of that
county and was instrumental in having it named in
honor of his old friend. Chancellor Walworth.
First Judge James Thompson was the sou of
Hon. John Thompson of Stillwater, the first incum-
bent of that office. He was born in that town, No-
vember 20, 1775, and was nurtured among the stir-
ring tifties in that region which preceded and fol-
lowed Burgoyne' s invasion. He was educated at
at the academy in Schenectady which was the germ
of Union college. He was a member of the same
class with Rev. Joseph Sweetman James Scott,
Levi H. Palmer and George Palmer. (Mr. Sweet-
man remained another year and was a member of
the first senior class of .old Union, graduating in
July, 1797.) Mr. Thompson, at the wish of his
father, embraced the study of law and entered the
oflice of James Emott, son-in-law of Judge Beriah
284 THE BENCH AND BATS
Palmer, who had established a residence and office
at the latter' s home near Burnt Hills. (After the
death of Judge Palmer, Mr. Emott returned to his
former home in Poughkeepsie, from whence he was
chosen to the assembly in 1813, and was elected
speaker. In 1818, he was appointed first judge of
Dutchess county, and appointed circuit judge in
1821.) Among the fellow students of Mr. Thomp-
son in Judge Emott' s office were Daniel L. Van
Antwerp, Samuel Cook and Samuel Young. They
were admitted to the bar of Common Pleas in 1799.
Mr. Thompson soon after married the daughter of
Abel Whalen of Milton, and purchased what was
known as the Sprague farm in Milton, now, how-
ever, recognized as the "Judge Thompson place."
Here he opened an office and soon entered upon a
lucrative practice. At this day it would seem the
height of folly for a lawyer to open an office in the
country, but at that tim e steam traveling and busi-
ness centers were unknown and clients sought coun-
sel where good advice could be given in settling the
vexed land title questions, that in those early days
perplexed courts, counsel and juries to unravel.
That his advice was satisfactory to his clientage is
shown by the frequency in which his name appears
in the minutes prior to 1818. On June 16, of that
year, he was appointed first judge of Common Pleas
for the term of five years and was re appointed for
two successive teims. His career as a judge was
marked by vigor and force, though he was not a
favorite of the bar generally. His roughest nature
OF SARATOGA COUNTY. 285
was outermost, and it was only in the closer inti-
macy of friendship that he could be clearly known
and his worth appreciated. In person and manners
he was dignihed, and bore a striking resemblance
to the late Eliphalet Nott, president of Union col-
lege. Prof. Tayler Lewis esteems him as the
"father of the Saratoga county bar," which in a
measure h*- was. He certainly conferred high honor
upon it. He was chosen regent of the University,
February 7, 1822, and held the position until his
death. The late George Thompson, John W.
Thompson and James Thompson of Ballston Spa,
and Edward D. Tliompson of Lawrence, Kansas,
were his sons. He died December 19, 1845. The
Circuit Court was then in session, and the followins:
entry is found in the minutes of the court as of
December 20 :
"The decease of Judge Thompson which took place at his resi-
dence in Milt»n on the 19th inst. was announced by E. F. Builard,
esq., wh© after an elaquent and impressive tribute to the memory
of the deceased introduced the following resohitions ; which were
adopted and ordered to be entered on the minutes of the court :
Resolved, That we have learned witli the deepest feelings of sor-
row and melancholy the decease of Hon. James Thoujpsou, who
presided in this court for fifteen years with eminent ability and lo
the general sntisfaction of the community. In this dispensation of
Providence the professrion has been deprived of the counsel of
their late associate and the county has lost one of its most talented
useful, worthy and distinguished citizens.
Resolved, That we tender to the family and friends of the
deceased the expression of our sympathy and condolence upon
this atiliciiug bereavement by which Providence has removed him
from the domestic circle adorned by his private virtues, and trom
bis high position which he occupied among our citizens as one of
286 THE BENCH AND BAR
the regents of the University, a uniform and devoted friend of the
cause ©f science and education, and one who in the decline of life
commanded the same confidence and respect which he had secured
in his earlier years by the ability that distinguished his professional
career.
Resolved, That a committee be appointed by the court to commu-
nicate a copy of these resolutions to the family of the deceased,
and that the same be published in the county papers."
The court thereupon announced as such commit-
tee Messrs. Bullard, Scott and T. G. Young.
•
"On motion of John K. Porter, Esq.; Iiesolved,That the members
of the bench and bar assume for thirty days the usual badge of
mourning, and that as an expression of respect for the memory of
Judge Thompson the court do now adjourn. Adjourned."
First Judge Samuel Young, who was appointed
by Gov. Marcy to succeed Judge Thompson on the
bench, April 30, 1833, was the son of Thomas
Young, a Berkshire county (Mass.) yeoman, and
was born in the town of Lenox in December, 1779.
His father removed to Clifton Park in this county
about the year 1785, and took a tract of laud on the
Appel patent, about midway from Burnt Hills to
Groom's corners. Here he grew to manhood, a
farmer's son. Schools were scarce and his oppor-
tunities for attending them were more so. Yet he
felt within himself the talent and power of mind
which aspired to higher things. His son, the late
Thomas G. Young, Esq., of Saratoga Springs, in-
formed me that he had heard his father tell of lying
before the fireplace after a hard day' s work in the
field or woods and studying by the liglit of a pine
knot long after the rest of the family were asleep.
'o
OF 8ABAT0GA COUNTY. 287
He was essentially a self-made man, and by the
rigorous course of study which he began in youth
and never grew old enough to lay aside, he be-
came possessed of a classical, scientific and general
education such as few collegians aspire to. His
state papers as a member of the Court of Errors and
as superintendent of common schools have all the
polish and elegance of language that would char-
acterize the most devoted student that ever bore off
the honors of his Alma Mater. A legal friend
informs me that in 1845, he was commissioned by
Col. Young to purchase for him some books at an
auction trade sale in New York. Every work that
he selected was of a classical or scientific nature.
Conceiving an attachment for the science of the law,
he entered the office jf Judge Emott and completed
the full course required by the rules, and com-
menced the practice of his profession. He soon
after married Mary Gibson, the daughter of Hon.
John Gibson of Ballston Center, and purchased the
farm of Seth C. Baldwin at Academy Hill in that
town, where he e stablished his office and had a
residence until his death. He was early called
into public life, and no citizen of Saratoga county
has ever been more highly honored in that capacity
than he. He was supervisor of Ballston in the
years 1809-10-12-13; elected to the assembly in
1814, re-elected in 1815 and again in 1826 ; senator
in 1818 for four years, re-elected in 1835 and 1838.
Eesiguing in 1840, he was again chosen in 1845, and
served until the old senate was set aside, in 1847, by
288 THE BENCH AND BAB.
the new constitution. He was speaker of the assem-
blies of 1815 and 1826. The latter year, Hon. John
W. Taylor was speaker of the national house of
representatives. Both were residents of the town
of Ballston. It was a singular coincidence. By
the act passed April 17, 1816, with Stephen Van
Rensselaer, DeWitt Clinton and Myron Holley, he
was appointed a commissioner to construct a canal
from the Hudson river to Lake Erie. Other gen-
tlemen were subsequently added to this com-
mission. The result of their labors is that noble
artery of commerce, the Erie canal.
Col. Young held the office of canal commissioner
until 1840, when he was removed by a whig legisla-
ture and the influence of Thurlow Weed. In 1821,
he was chosen with Judge Child, John Cramer and
Jeremy Rockwell to represent Saratoga county in
the constitutional convention. In 1824, he was the
democratic legislative caucus candidate for governor
to succeed Joseph C. Yates against DeWitt Clin-
ton. He was defeated by a vote of 87,093 to 103,-
452 ; all the opposition elements uniting on Clinton.
His mind was not fitted to deal with the trifling
causes brought before him in Common Pleas for
adjudication, and he retired from the bench at the
end of his term. February 7, 1842 he was chosen
secretary of state by the joint ballot of both houses
of the legislature to succeed Hon. John C. Spencer.
He became ex officio superintendent of common
schools. Under his administration much was done
to foster and build up our common school system.
OF SARATOGA COITNTT. 289
He was an ardent advocate of free schools. His
decisions as superintendent are incorporated in the
"Digest" published with ~ the " Code of Public
Instruction," and are yet quoted as ruling on the
points discussed. He was elected one of the Regents
of the University in 1817 and held the position
until 1835, when he resigned. He always retained
a lively interest in agriculture, and on the conclu-
sion of his term in the state senate in 1847, he
retired to his farm in Ballston. He died suddenly
November 3, 1850, in the seventy-tirst year of his
age. He was in usual health up to the day of his
death. He was about his business as usual and
retired to rest. The next morning he was found in
his bed asleep in death. Subsequent to the death
of his first wife he married Mrs. Sarah Lasher of
New Hurly, Ulster county, in 1827. She survived
him several years. Thus closes the history of an
active and honorable life He acquired his soubri-
quet of " Colonel" as a member of Governor Tomp-
kins' staff in 1816. Although a man of peace, it
adhered to him through life, and he will be remem-
bered as the genial colonel, rather than as the sedate
judge.*
First Judge Thomas J. Marvin was the son of
William Marvin, a merchant and hotel keeper at
East Line in the town of Malta, where he was born
*0n the fourth (>f July, 1826, the seini-ceutennial of American
independence, Col. Young, being then speaker of the stale assem-
bly, presided at the celebration at Ballsl<ni Spa. Hon. John W.
Taylor, then speaker of the house of representatives, was the orator
of the occasiuu.
18
290 THE BElSrCH AND BAR
in June, 1803. His graudfatlier, Dennis Marvin,
was one of the first settlers of the town, a few years
prior to the Revolution, He was educated at the
old Ballston xlcademy and at Union college, grad-
uating in the class of 1826 ; and studied law with
William L. F. Warren, at Saratoga Springs, and
was admitted to the bar of Common Pleas in August,
1829. In due time he was admitted first as an
attorney and then as a counselor in the Supreme
Court, and Solicitor in Chancery. In 1836, he was
appointed by Gov. Marcy to be a judge of Common
Pleas, and two years later he was promoted to the
presiding judge's seat, his commission dating from
February 13 ; and held the office until 1847, when
it was abolished by the adoption of the new^ con-
stitution. Judge Marvin was a man of quick per-
ceptions and was deeply read in the law. He was
quick to see a point and to act upon it. When he
saw that the strict construction of the law led to a
certain end, though it might clash with the public
demands or his own private wishes, he fearlessly
did his duty. We have seen an instance in this in
the manner in which he disposed of the second
indictment against the notorious Isaiah Rynders.*
He was a joint proprietor in the United States
hotel, Saratoga Springs from 1832, and in 1842 he
entered into a partnership with his brother, Hon.
: *.]nsi.ice Landon rfcenllj' made a similar ruling in llu- ouho of
C. Fred. Smitli, indicted for arson at Jobnslown. He liad been
tried and acquitted on tiie charge of n)urdering Edward Yost, and
the arson charge was based on the same slalemeuts of evidence
and facts.
OP SARATOGA OOUTfTT. "^ 291
James M. Marvin in the management of that house,
which continued until his death December 29, 1852,
in the fiftieth year of his age. He was supervisor
of Saratoga Springs in 1851-2.
CHAPTER XIX.
SARATOGA COUNTY JUDGES.
Augustus Bockes, 1847 to 1854. (See sketch of
his life in Chapter xvii ; Saratoga' s Circuit Judges.)
John A. Corey, 1854. Judge Corey was the son
of DanielCorey, a farmer living inGreenwich, Wash-
ington county, and was born November 5, 1805.
He was a brother of Allen Corey, o: the West Troy
Democrat^ and a cousin of Rev. Drs. Sidney G.
and Daniel Corey, well known Baptist divines. He
was educated in the common schools. He was a
strong admirer of the terse old Anglo-Saxon speech,
disdaining to use the hybrid Anglo-French words
that are so rapidly creeping into our vocabulary ;
he believed in calling a spade by its homely Saxon
name, rather than an "agricultural instrument for
delving the soil and allowing the atmosphere to
permeate into the alluvial deposits." While on the
bench nothing would cause him to betray a sign of
impatience in listening to an advocate's argument
sooner than a Latin quotation interlarded into the
language in which in which it was couched. In
his early manhood he adopted the profession of
teaching. In 1824, he came to Saratoga Springs
and established a residence in this county. He
secured a situation in the office of the Saratoga
OF SARATOGA OOTTirrT. 293
Sentinel, tlien published by the late G. M. Davis-
on. While ill that office he learned the "art pre-
servative," and also used his pen freely in articles
that made their mark at that time. He turned his
attention to the study of law, and was successively
a clerk in the offices of Judge Cowen, Judiah Ells-
worth and Nicholas Hill, jr. He was admitted as
an attorney in the Supreme Court in January, 1835,
and was advanced to the degree of counselor in
January, 1838 ; and was appointed examiner in
Chancery in 1836. He commenced the publication
of the Saratoga Republican in 1844, and continued
it until 1853, when he sold the paper to Thomas G.
Young, wlio afterwards merged it in the Sentinel.
He continued, however, to be a contributor to the
press until his last illness. He was elected super-
visor of Saratoga Springs in 1849. The next year
he was chosen clerk of the board of supervisors,
and held the same position under the boards of
1852 and 1864-5 6-7. He was also for several years
a justice of the peace of his town. On the resigna-
tion of Judge Bockes he was appointed to the posi-
tion of county judge by Governor Seymour, Feb-
ruary 6, 1854, to fill the unexpired term. During
that year occurred the "Carson League" prosecu-
tion of illegal liquor sellers, and he fearlessly pro
nounced sentence upon all who were convicted in
his court by imposing the full penalty of the law.
This was used against him in the ensuing autumn
when he was the democratic candidate for re-elec-
tion, and he was defeated mainly through the liquor
294 THE BElfCH AND BAR
dealers putting Gideon Putnam in the field against
liim as a third candidate. In 1855, he was tendered
by President Pierce, through Secretary Marcy, the
office of governor of Kansas territory, but declined
the troublesome and dubious honor. Soon after
this he was appointed United States Commissioner
by Judge Nathan K. Hall, and retained the ofiice
until his death. He was one of the founders of the
Saratoga County Agricultural Society, and was for
a long series of years its secretary. While in this
position he heard of many cases of sheep killing by
vagrant dogs, and set to work to abate the nuisance.
Through his efforts a law was enacted imposing a
tax on dogs, and making it a valid defense in
actions brought to recover damages foi: killing a
canine to allege and prove that a tax had not been
assessed and paid on the animal within the previous
year. He died, after a lingering illness, April 29,
1873, in the seventieth year of his age. He married
quite early in life a daughter of George Strover,
Esq., of Schuylerville, who survives him. He left
one son and three daughters.
James B. McKean, 1855-1859. Judge McKean
is the eldest son of the late Rev. Andrew McKean
of Halfmoon, one of the pioneers of Methodism in
north-eastern New York. He was born in the town
of Hoosick, Renssela->r county, in August, 1821,
his father being at the time a circuit preacher. The
home of Father McKean, as he was familiarly
known, at that time was situated near the line of
Vermont, and in the neighborhood of the celebrated
OF SARATOGA COUNTY. 295
Mather's house, which by a conceit of its owner
was so built that it stood in the states of New York,
Vermont and Massachusetts. The family of Rev.
Andrew McKean was an ancient Pennsjdvania one,
one of its members being Thomas McKe-an, a signer
of the Declaration of Independence, who was his
father's uncle. When the subject of this sketch
was about seven years of age, his father took super-
annuate I'elations from the church to which his
early manhood and prime had been devoted in long
years of wearying and self-sacrificing itinerancy,
and retired to a farm in Halfmoon, which he liad
purchased. It was situated about two miles south-
east of Round Lake. Here Judge McKean' s early
life was spent.. He received the rudiments of an
education in the neighboring district school, and
completed an academic course at Jonesville under
the direction and instruction of Prof. Hiram A.
Wilson, now of Saratoga Springs. After complet-
ing his studies, he taught several terms in the Jones- .
ville acidemy as an assistant to Prof. Wilson.
After this he opened a select school at Clifton Park
village, which lie was soon forced to relinquish on
account of failing health. Several months later he
entered -the office of Gen. Bullard at Waterford, as
a law clerk. District Attorney Ormsby was pursu-
ing his studies in the same office at the time. After
completing his course of study he was admitted to
the bar of the state courts in 1847. Soon after he
removed to Ballston Spa and formed a law part-
nership with Abel Meeker. In 1853, he was an
296 THE BENCH AND BAK
unsuccessful condidate for district attorney. His
opponent was William T. Odell. Having in the
meantime married Miss Catherine Hay, daughter
of Judge Williaiii Hay of Saratoga Springs, he soon
after removed his residence and office to the latter
place. In 1854, he was nominated for county
judgeby the American party ; his opponents were
Judge Corey, democrat, and Gideon Putnam, whig.
In this triangular contest he was the successful party
and took his seat on the bench in January follow-
ing. In 1855, he Avas one of the founders of the
Republican party, claiming that it represented the
true principles of Jeffersonian democracy in which
his father had reared him. In the campaign of
1856 his voice was frequently heard on the rostrum
declaiming for " free soil, free speech, free press
and Fremont." In 1858, he was nominated by
his party for congress,, was triumphantly elected
and was one of the staunch supporters of the Union
in the secession times. In the latter days of
Buchanan's administration he was one of that
devoted band of minute men who guarded the
Capitol against anticipated seizure by traitor hands.
Having been re-elected to congress he left his seat
in the extra session called by President Lincoln,
and came north and issued a stirring address to the
sons of this county to join him in forming a " Bemis
Heights battalion." The result was the forming of
the now historic Seventy-seventh regiment, of which
he was chosen colonel. Under his command and
that of his brave successor, Colonel Winsor B.
OF SARATOGA COUNTY. 297
Frencli, it gained an honorable record at Williams-
burgh and in the seven days battles on the Chick-
ahominy, and in following the fortunes of the
"Sixth Corps' cross" on many well fought fields.
While on the peninsula the weak constitution of
Col. McKean yielded to a malarial fever, and he
was forced to leave his regiment. Having partially
recruited his health, h*e again took his seat in con-
gress and did good service there in upholding the
hands of his former comrades in the front, whom he
was forbidden to rejoin by his physicians. At the
close of his congressional career, he returned to
Saratoga Springs and resumed the practice of his
profession. Soon after President Grant' s accession
to office he tendered to Judge McKean the ofiice
of Chief Justice of Utah. He accepted the place
with all its grave and complicated duties, and his-
tory will say that he was the first Federal officer in
Utah who comprehended the deep laid designs of
Brigham Young. By his fearlessness in adminis-
tering justice under the laws he soon incurred the
hatred of the Mormons and gained the good will of
the other citizens of Utah, In 1875, Mormon infiu-
ence prevailed upon the President to remove him
from office. He at once applied for and was adfuit
ted to practice at the territorial bar, and has fixed
his permanent home at Salt Lake city. The brac-
ing air of the interior having restored him to good
health, he hesitates to return to his native state.
Besides in his civil and military career, Judge Mc-
Kean is well known as a staunch Methodist and is
298 THE BENCH AND BAB
a prominent member of that communion. He was
a lay member of the General Conference which met
at Baltimore in May, 1876.
John W. Crane, 1859-1863. Judge Crane was
born at West Milton in this county September 30,
1827, and is the son of Justus Crane, a distiller
who was employed by the late Robert Spier. His
maternal grandfather was William Bridges, one of
the first settlers of Ballston Spa. He was educated
in the common school and at Smith & Bang's and
Prof. Hancock's academies at Saratoga Springs.
Having an inclination towards the law he entered
the office of William M. Searing as a clerk. He
completed his studies in the oflBce of William A.
Beach, and was admitted to practice at the Sep-
tember General Term, 1852. Soon after he entered
into the law partnership with William L. Avery
and Franklin Hoag at Saratoga Springs. After the
retirement of Mr. Avery the other members con-
tinued the partnership successfully until the elec-
tion of Mr. Crane to the office of county judge ; to
which office he was nominated by the democrats in
1858. His opponents were Alembert Pond, repub-
lican, and Lemuel B. Pike, American. He was
elected in November by a plurality of 323 over Mr.
Pond, and a clear majority of 43 over both oppo-
nents. He retired to the practice of his profession
on the conclusion of his term December 31, 1863,
and enjoys the reputation of being one of the best
office lawyers and most careful conveyancers in the
county. He was elected supervisor of his town in
OF SARATOGA COUNTY. 299
1863, and again in 1868 and 1869, and has also held
various other posts of trust in his town and village.
He made a good record on the bench.
John C. Hulbert, 1863-1871. Judge Hulbert was
born in Pittsford, Vermont, February 12, 1817.
His father, Luther Hulbert, removed to Malta in
this county when his son was quite young, and
established himself as a merchant at Dunning
Street. He was a man held in high respect by his
townsmen and held several town offices, and was
appointed at one time a Master in Chancery. He
educated his son in the home district school and at
an academy in Saratoga Springs. During this time
young Hulbert served an apprenticeship in the
old Ballston Spa Gazette office, and learned the
printer's craft, thus making him the second repre-
sentative of the " art preservative" on our county
bench. Determining to follow the profession of the
law as a life vocation he studied successively in the
offices of Thomas J. Marvin, M 'holas Hill, jr. and
William A. Beach, and was admitted to the bar of
Common Pleas in December, 1836, and about three
years later to that of the Supreme Court. He early
succeeded in gaining a substantial clientage, and,
in 1847, he was elected surrogate and held the office
until 1856, performing its complicated duties with
honor and success. In 1862, he was the successful
candidate for the office of county judge, and took
his seat on the bench in January, 1863, and was
chosen for two successive terms and made an
upright and careful judge. He is now engaged in
300 THE BENCH AND BAR.
a successful prosecution of his practice at the bar.
Charles S. Lester, 1871 . Judge Lester was
born in Worcester, Massachusetts in March, 1825.
His father died in his infancy, and the son found a
home in the family of his maternal uncle, Judge
John Willard, at Salem, Washington county, and
was educated in the Salem academy. Having been
reared in a legal air, his mind naturally inclined
towards the profession, and he commenced his
studies in the office of Crary & Fairchild in Salem,
in 1842. In 1843, he came to Saratoga Springs and
entered the office of Judge Willard where he com-
pleted the requisite course for an admission to the
bar of the Supreme Court, to which he was admit
ted in 1846. Soon after, he formed a law partner-
ship with William Culien Bockes (brother of Judge
Bockes) which continued until the latter' s death a
few month's later. Next, he and the late Frederick
S. Root for two years enjoyed a fair practice
together in our courts. After this, he formed a
partnership with A, L. Bartlett and soon after his
brother-in-law, Alembert Pond, wasinvited to join
the firm. In 1859, he was elected district attorney
by the democrats by 251 majority over Joseph A.
Shoudy, the republican and American candidate.
He served in this position three years and made a
capable and fearless public prosecutor. At the
outbreak of the rebellion, when party ties were
loosened, he joined the republican party. In 1870,
he was their candidate for county judge and was
elected by a substantial majority over P. H. Cowen,
OF SARATOGA COUNTY. 301
a son of the former judge, democrat. On the bench
he ha;3 been noted for his urbanity to liis profes-
sional brethren and the thorough manner in which
he compels attorneys to place their cases before the
juries. His tt-rm of office will expire next Decem-
ber. His eldest son Charles C. Lester, Esq., is now
associated with him in Supreme Court and Court
of Appeals practice. Their clientage is probably
the wealthiest in the coanty, the hrm having been
for several years past the local legal advisers of
the late A.T. Stewart, and are continued in the same
relations by Mrs. Stewart. Judge Lester was elected
supervisor of Saratoga in 1864 and re-elected in
1865.
The history of the Saratoga county judiciary
requires a sketch of the gentleman who alone
is the survivor of the forty-eight citizens who have
sat upon its bench as judges of Common Pleas ;
viz. Hon. George Gordon Scott of Ballston Spa.
Judge Scott was the oi-ly child of James Scott, a
famous surveyor of the olden time, and was born
at the family homestead in the town of Ballston,
near the Milton line, in the year 1811. His grand-
father, George Scott, was an emigrant from the
north of Ireland who settled on that farm in 1774.
He married the sister of Gen. James Gordon.
During the Munro tory raid in 1780, he narrowly
escaped death at the hands of the Indians, being,
in fact, struck down with a tomahawk and left for
dead. The subject of this sketch entered Union
college and graduated in 1831, with one of the
13*
302 THE BENCH AND BAR
honors of Ms class. He then entered the law office
of Palmer & Goodrich in Ballston Spa, where he
remained two years ; he finished his studies in the
office of Brown & Thompson in the same village,
and was admitted to the bar in 1834 and at once
entered upon what has proved a more than ordi-
narily successful practice. Having always enjoyed
the confidence of the people as a man of st*^rling
integrity and a master of his profession, his counsel
has been and still is much sought in causes involv-
ing intricate questions. It is rather as the counse-
lor than as the advocate that he has secured and
retained a prominent position at the bar. He has
never sought office, and the positions that he has
held have (^ome to him conferred either by appoint-
ment or election without effort on his part. He
married, soon after his admission to the bar, Lucy,
daughter of Hon Joel Lee of Ballston Spa. Having
established his home in the Milton portion of that
village, he was elected justice of tee peace in 1837
and discharged its duties till 1849. In 1838 he was
appointed judge of Common Pleas for five j^ears, but
resigned in 1841, preferring his practice to the
honor of the bench. He was elected to the assem-
blies of 1856 and 1357 '■> serving in the former on
the Ways and Means and in the latter on the
Judiciary committees; his merits being thus recog-
nized by speakers Littlejohn and Robinson. He
was tendered the speakership of the house of 1856,
but declined, preferring to serve on the tlocn*. In
1861, he was honored by his party with the noini-
OF SARATOGA GOUIfTY. 303
nation on the state ticket for the office of Comp-
troller. In 1857, Iv was elected by the democrats
of the loth district to the state senate in the face of
an adverse party majority, and served on the com-
mittee on Claims, Insurance, Judiciary and Towns
and Counties. In 1859, he removed into his native
town, (his residence being on High street nearly
opposite the county clerk's office) and the next
year he was chosen supervisor, and has repeatedly
been re-elected and is now serving his seventeenth
term, an honor conferred on but one other citizen
of the county : viz, Gen. Mott of Halfmoon. He
was chairman of the board in 1863, and has repeat-
edly been appointed attorne}' of the board to con-
fer with the state assessors. Possessed of an
extensive memory in which is stored away the tales
of revolutionary times told him by his father and
other old residents, he h is long been regarded as
an encyclopedia of local historical and topograph
ical lore, and on that account was fitly designated
to prepare the county centennial historical address
which he read at the celebration of the close of the
first hundred years of our nation, at the Sans Souci
hotel, July 4, 1876. Judge Scott possesses an iron
frame and belongs to a long lived ancestry, and we
may cherish the hope that the "last link" will
remain unbroken for many years.
CHAPTER XX.
DISTRICT ATTORNEYS AND COUNTY CLERKS.
The office of district attorney was created by an
act of the legislature of 1801. Its intent was to
create a local prosecuting officer who should fill
the place of the attorney general in the Oyer and
Terminer and Sessions of the country counties. In
that of NewYork the attorney general was to officijite
personally. Previously, by an act passed Febru-
ary 12, 1796, the state had been divided into seven
districts, in each of which an assistant attorney
general was appointed, to hold office during the
pleasure of the governor and council. Albany,
Saratoga, Schoharie and Schenectad}^ counties
formed the fifth district. Abraham Van Vechten
of Albany was appointed to the office February 16,
1796, and held the position one year, when he was
superseded by the appointment of George Metcalfe
of Stillwater. Under the act of 1801, Montgomery
county was added to the fifth district. Mr. Met-
calfe was appointed district attorney. The follow-
ing is the succession till 1818, when the office was
limited by act of legislature to each county : Daniel
L. Van Antwerp of Saratoga, March 16, 1811 ; Dan-
iel Cady of Montgomery, February 28, 1813 ; Rich-
ard M. Livingston of Saratoga, February 16, 1815.
OF SARATOGA OOITNTT. 305
The act of April 21, 1818, decreed that an officer
to be called the district attorney should be appoint-
ed for each county by the governor and senate, to
be the public prosecutor therein. This was modi-
fied by the constitution of 1821, which gave the
appointing power to the Court of Sessions. Accord-
ingly, on the 11th of June, 1818, Richard Mont-
gomery Livington was appointed the first district
attorney of Saratoga county. He was the son of
Col. James Livingston of Albany, and belonged to
the noted Columbia county family ; his father be-
ing a relative of the wife of Gen. Montgomery, and
was an officer under him in the ill-fated Quebec
expedition, in which the gallant Irish patriot lost
his life. Entertaining a feeling akin to reverence
for the memory of his brave friend. Col. Livingston
named his first-born son in his hpnor. Mr. Living-
ston settled at Schuylerville and was the attorney
and agent of the Schuyler family. He was, it is
said, a lawyer of ability. One fault of his has been
handed down to our times ; it was that which some-
times affi?cts modern officials, neglecting public
duty to attend to private business. Two instances
are on record where he failed to attend the'termsof
court, and a special district attorney had to be ap-
pointed : viz. the terms at which the Northrup
murder indictment and that against jailor Taylor
were disposed of. The latter instance created strong
feeling against Tiim and, in 1821, a chang*^ of the
political tide caused his removal.
District Attornej^ William La Fayette Warren
306 THE BENCH AND BAR
was born in Troy, February 4, 1793. He was of
patriotic ancestry ; his father was Capt. John War-
ren, an aide to Gen. La Faj^ette, /and his mother
was Elizabeth Belknap, daughter of Major Isaac
Belknap of Newburgh, a revolutionary veteran.
Having been carefully prepared by a full academic
course at Ballston, the future judge entered Union
college, from which he was graduated in the class
of 1814. He began the study of law in the office
of Esek Cowen and was admitted to the bar of the
Supreme Court in 1817, and immediately entered
into partnership with his preceptor. This contin-
ued until the appointment of Judge Cowen to be
reporter of the Supreme Court in 1824. During
this close and confidential intercourse Judge Cowen
depended much upon the sound judgment of his
more youthful associate. As stated in the body of
this work Mr. Warren was appointed district
attorney February 13, 1821 by the council of ap-
apoinment and was continued in office by the judges
of Common Pleas, until September 6,1836. In
1824, he was appointed Master in Chancery and,
justice of the peace ; and, he held the office of
judge-advocate of the 15th division of infantry
in tie state militia from 1823 to 1831, and was
appointed judge of Common Pleas in 1843, by Gov.
Bouck. He filled every office with credit to him-
self and honor to the county, and pursued his pro-
fession co)i amore, never fully relinquishing his
practice. He was an impressive advocate before
a jury and an influential and safe counselor in
OF SARATOGA COUNTY. 307
argument before the bench. He married Miss
Eliza White, daughter of Epenetus Wliite, jr. of
Ballston Spa, and granddaughter of Judge White,
one of the pioneers of the town of Ballston, who
survives him. Possessed of .great public spirit,
he did much to elevate Saratoga Springs into prom-
inence as a watering place, and was one of the
originators of the Saratoga and Whitehall railroad.
Judge Warren was of medium stature, comely in
person and stately manners ; yet possessed of that,
which the French term honnehommle^ which at-
tracted the attention of strangers at their first
meeting and endeared him to his friends. Deeply
religious in thought, through his long life he illus-
trated the life of a Christian in his daily walk and
conversation, and vvas for many years a ruling
elder of the First Prepbyterian church at Saratoga
Springs. He died May 23, 1875. Having been for
several years the patriarch of the county bar, at
the next term of the Circuit Court, on motion of
Judge Lester, customary resolutions of respect
were adopted. A feeling eulogy was pronounced
by Judge Scott, an associate of the deceased at the
bar for thirty years. Addresses were also made
by other members of the bar, md Judge Landon
adjourned the court, after directing the clerk to
make the suitable entries on the minutes.
District Attorney Nicholas Hill, jr. was born in
Florida, Montgomery county in 1805, of which
town his grandfather, John Hill, a native of county
Derry, Ireland, was an early settler. His father
308 THE BENCH AND BAR
was a revolutionary soldier and was with Washing-
ton at Yorktown. Mr. Hill was admitted to prac-
tice at the bar of the Supreme Court in August,
1829, and forming a partnership with Beodatus
Wright tliey opened an office in Amsterdam. Short-
ly afterwards, he removed to Saratoga Springs,
where he was associated with Judge Cowen in the
preparation of "notes" to Phillips' Evidence. Re-
moving to Albany about 1840, he was appointed
Supreme Court reporter in 1841, to succeed John
L. Wendell, and held the position until 1844, when
Hiram Denio was appointed. He publislied the
seven volumes of "Eeports" which bear his name.
In Albany, he at first formed a legal partnership
with the late Deodatus Wright and Stephen P.
Nash. Subsequently, he was the head of tlie emi-
nent legal firm of Hill, Cagger & Porter ; his asso-
ciases being the late Peter Cagger and Hon. John
K. Porter. The firm stood at the head of the Capi
tol city bar and occupied a high rank in the state.
He died May 1. 1859.
District Attorney Chesselde.i Ellis was born in
New Wmdsor, Vt., in the year 1808. He was
graduated from Union college in the class of 1823,
and having studied law with Hon. John Cramer of
Waterford, he was admitted to the bar in 1829, and
soon established a lucrative practice in his profess-
ion. Natuaally diffident, although a vigorous de-
bater when aroused, he preferred to be known
rather as a counselor than as an advocate. He had
a keen brig;ht eye that would dilate as he became
or BAEATOGA COUNTY. 309
engaged, and its glance wonld seem to penetrate
through the subject upon which it was directed.
He was five feet nine inches in height, of splendid
pliysique, weighing about 180 pounds. To a sound
body was united a mind strongly imbued with fine
literary tastes. He was appointed district attor-
ney April 25, 1837, on the resignation of Nicholas
Hill, jr., and held the office until September 11,
1843, when he resigned to take his seat in congress.
Mainly through the unsought personal influence of
his law partner, Gen. E. F. Bullard, he was nomi-
nated for congress by the democratic party in 1842
and was elected. When congratulated on his elec-
tion he said he was " frightened at the prospect."
A strong admirer of John C. Calhoun, he was the
only congressman from this state who was on inti
mate terms with the great South Carolinian, and he
voted in favor of the annexation of Texas by joint
resolution. He had great personal influence with
President Tyler ; and, on the death of Judge Smith
Thompson, the appointment of the vacant place on
the Supreme Court bench was placed at his dis-
posal ; he designated Judge Co wen, but the latter
declined the honor. Chancellor Walworth was
then appointed, but was finally rejected by the
senate on political grounds. The place was sub-
sequently filled by President Polk, who appointed
Judge Samuel Nelson. Mr. Ellis was a candidate
^ for re-election in the exciting campaign of 1844, but
was defeated by a small majority by the whig can-
didate, Hon. Hugh White. In 1845, he removed
310 THE BENCH AND BAR
to New York city and established himself in the
practice of the law at the head of the legal firm of
Ellis, Burrill and Davison. (The latter is Charles
A. Davison, son of Gideon M. Davison, of Saratoga
Springs.) He died in 1854.
District Attoiney William Augustus Beach is a
native of the village of Ballston Spa, and was born
at the residence of his grandfather Warren, in the
building on Front street known for many years as
the ''Mansion House." His father. Miles Beach,
removed to the town of Ballston in 1786, with his
father, Zerah Beach, from Salisbury, Conn. On
his mother's side Miles Beach was related to Judge
Smith Thompson, formerly chief justice of the state
and afterwards associate judge of the United States
Supreme Court. He married, in 1807, Cynthia
Warren, sister of Judge William L. F. Warren.
The subject of this sketch was their second child.
In 1809, some years previous to the birth of his
illustrious son. Miles Beach removed with his
family to Saratoga Springs, and engaged in mer-
cantile pursuits. His venerable widow yet survives,
and completed her eighty-eighth year August 2,
1876. Their distinguished son received a good aca-
demic education at Col. Partridge's Vermont mili-
tary institute, and was bred to the bar under the di-
rect tuition of Judge Warren, who took iudicious
care that the foundations of his legal knowledge
should be laid broad and deep. Early indicating the*
passion for forensic debate which has distinguished
hitn through life and has led him up the ladder of
OF SARATOGA COUNTY. 311
fame to the topmost round, he acquired the use of
a vocabulary stored with terse and comprehensive
Anglo Saxon ; and it has always been remarked
that he talked to the understanding of jurors ratht^r
than seeming to confuse tiiem with long-drawn
periods, full of sounding words formed from the
Latin roots. In this respect he more nearly resem-
bles Daniel Webster than any other living American
lawyer. He was admitted to the bar in August,
1833. At one time he had thoughts of removing to
the West, but abandoned the idea and remained in
the practice of his profession at Saratoga Springs,
and soon came to the front rank in this county.
He was appointed district attorney September 11,
1843, and held the office until June, 1847, when his
successor, elected under tlie constitution of 1846,
was qualified. A few years later he removed to
Troy, and, forming a law partnership with Job Pier-
son and Levi Smith, he continued the practice of
his profession until his removal to New York,
about seven years since. While living in Troy
there were but few actions tried in the Rensselaer,
Albany, Saratoga or Washington Circuits or Oyers
in which he was not engaged as counsel. To secure
William A. Beach's services was to many litigants
an assurance of success. And, if failure met his
efforts, which it did but rarely, it was not because
he had not exerted his full strength of legal talent
and persuasive eloquence. In New York he is the
head of the firm of Beach & Brown, his associates
being his son. Miles Beach, and A. C. Brown.
312 • THE BENCH AND BAR.
His rank at the metropolitan bar is in tlie circle
which embraces such names as O' Conor, Evarts
and Porter. Recently he was senior counsel for
the plaintiff in the celebrated action brought by-
Theodore Tilton against Henry Ward Beecher.
But, perhaps, the instance in which his talents had
the largest field for action, and in which he stood
in the full plenitude of his legal fame, was his
appearance as senior counsel for the defense in the
great impeachment trial of Judge George G. Bar-
nard before the Court of Appeals and Senate, sitting
as a Court of Impeachment, in the town hall, Sar-
atoga Springs, in July, 1872, to which place it had
adjourned. In the management of his case, his
cross examination of the impeaching witnesses (next
to his matchless eloquence his strongest /br^e) and
his final appeal were such as are seldom equalled
and never excelled in the annals of jurisprudence.
That he was unsuccessful in gaining an acquittal
was due to the conduct of his client during the
trial and the political clamor for his removal from
the bench. There was one beautiful feature con-
nected with this trial. The venerable mother of
Mr Beach had never heard her famous son in the
forum, and at the beginning of each day's session
of this trial he would gallantly escort her to a seat
on the right of the Lieutenant Governor, and then
take his seat across the bar, facing her When he
came to his final address to the court, in a tribute
to maternal love, alluding to the anxious waiting
of the mother of the accused, he advanced towards
OF SARATOGA COtJlfTT. . 3l3
his own venerable parent and in a strain of pathetic
and impassioned eloquence poured forth his tribute
of filial devotion. Its effect was highly demonstrative
and there was not a dry eye in the vast auditory as
the great lawyer stood as a child in the presence of
her who gave him being and acknowledged that
his all was owing to the sanctity of her prayers and
maternal counsels. The personal appearance of Mr.
Beach is known to all of my readers. Of a tall and
commanding figure, straight and erect as a model
of Grecian statuary, with aquiline features and
eagle glance his is a form and countenance easily
marked among men as one ranking above his fel-
lows. His once raven hair and beard, the latter
worn on'y on the chin,is now of the snowiest hue.
But still his iron -onstitution and indomitable will
power renders him yet a man in his prime. Time
sits lightly on him and he has many years of use-
fulness in the profession he has honored with his
name and fame. Socially he is one of the most
gifted of men, strong in his friendship and genial
in every sense of the term. The only persons who
can say that there is a harsh side to his nature are
those who have endeavored to give a "crooked"
version of a transaction on the witness stand, and
then saw only his rigid countenance and fiery eye,
as he forced the truth from their lips under a
searching cross examination.
District Attorney John Lawrence of Waterford
is a native of Stillwater. In his early manhood he
was a successful school teacher for several years.
14
314 THE BENCH AND BAR
He studied law in the office of Porter & Waldron
and was admitted to practice in May, 1847, In
June of that year he was elected district attorney,
the first under the new system. He married the
sister of Hon. John K. Porter and practiced his
profession for several years in Waterford. After-
wards, he removed to Chicago, where he embarked
in mercantile pursuits. Gaining wealth, he retired
from business last }'ear, and returned to Waterford,
where he has again established his home.
District Attorney William T. Odell was the son
of William Odell, a farmer of the town of Ballston,
and was born in the year 1814. Educated in the
common schools, supplemented with an academic
course, he for several years followed the profession
of teaching and civil engineering. He then studied
law with Judge Scott, and was admitted to practice
at the bar in 1841. He married the daughter of
Alpheus Goodrich of Ballston Spa, and entered
upon a fair practice in that village. He was elected
district attorney in 1850, and re-elected in 1853.
He was an unsuccessful candidate for the same
office in 1856, and again in 18G8. An ardent dem-
ocrat, he never refused to lead the forlorn hope of
his party in this county, and was their candidate
for congress in 1858, for the state senate in 1863,
and for the assembly in 1873. He was supervisor
of Milton in 1858 and I860, and was chairman of
the board in the former year. His advice was
accepted by a large clientage, and prior to the
general prostration of his health, about two years
OF SARATOGA OOUlfTY. 315
previous to his death, his practice was one of the
largest in the county; as is shown by the successive
court calendars. He died March 8, 1 875. At the
May Circuit, his death was announced at a meeting
of the bar and the customary resolutions were
adopted.
District Attorney John O. Mott is a grandson of
Zebulon Mott, an agriculturalist of Halfmoon, who
represented that town in the board of suyervisors
from 1801 to 1817, inclusively. The latter year the
town was designated by the name of Orange. In
1820, its name was again changed to Halfmoon.
Young Mott studied law with Hon. John K. For
ter, and was admitted to the bar in 1854. At first
opening an office at Crescent, he soon afterwards
removed to Waterford, where he formed a law
partnership with Hon. Cornelius A. Waldron, the
present surrogate. He was elected district attorney
in 1856. Several years since he removed to New
York city. He is yet in the prime of life and has
secured a good clientage in his new field, lind was
recently, in connection with William A. Beach,
counsel for Pesach N. Rubenstein, the Polish Jew
murderer, managing his case with consummate
skill. He is reckoned among the rising lawyers of
the metropolis.
District Attorney Charles S. Lester, 1860-3. (See
ante^ County Judge Lester.)
District Attorney Isaac C. Ormsby of Waterford
is a son of Ira Ormsby a farmer who tilled the rug-
ged soil of G-reenfield, near Porter's Corners, where
816 THE BENCH AND BAR
his son was born April 24, 1820. The latter was
educated in his* home district school. The last
term that he attended was taught by Judge Bockes.
Next, he in turn taught school for several winters,
but having determined upon his future course in
life, he entered the office of Ellis & Bullard in
Waterford in the year 1845, was admitted to prac-
tice in Common Pleas in December, 1846, and to
the bar of the Supreme Court in the following June.
He began a successful practice at Waterford, which
he yet retains. Mr. Ormsby is of medium stature
and of a vital temperament, his mind is of a quick
intuitive turn ready to seize a point at an instant,
a quality of eminent use in the duties he has so
long and ably performed. Naturally not a fluent
speaker, when he becomes warmed in his subject
he speaks strong, terse English that is both forcible
and to the point. He was elected district attorney
in 1862, and re elected in 1865. In 1868, he was
not a candidate ; but was, however, again chosen in
1871, and re-elected in 1874. He is a fearless and
honest public officer and a faithful public prose-
cutor. A Supreme Court justice, who has held
several of our Oyer and Terminers, said of Mr.
Ormsby' s appearance before a jury as a prosecuting
attorney : " Without the eloquence of Mr. Beach,
but with his earnest manner and thorough pre-
paration he is a more dangerous adversary than
Beach, before a Saratoga county jury."
District Attorney Winsor Brown French is the
Bon of Luther Fi^^nch, a former citizen of Cavendish,
OP SARATOGA OOUHTT. 317
Windsor county, Vermont, in which town the sub-
ject of this sketch was born in 1832. His father
removed to the town of Wilton, in this county, in
1836, where his son enjoyed in his boyhood the
advantages of the common schools. Conceiving
a taste for a liberal education, he was fitted for col-
lege at the Clinton Libeml Institute and the Wood-
stock academy, and entered TufFt's college, Med-
ford, Mass., from which he was graduated in the
class of 1859. Among his classmates was General
Selden Connor, now governor of Maine. Such was
his desire to obtain his college degree that he main-
tained himself during his course by teaching com-
mon and singing schools in the northern towns of
this county during his vacations. Soon after leav-
ing his college he entered the law office of Pond &
Lester, in Saratoga Springs, as a student, where he
was when the flag waving over Fort Sumpter was
fired upon. When Hon. James B. McKean, in the
summer following, issued his stirring call for a
Bemis Heights batallion, he at once volunteered for
the war and recruited a company from the town of
Wilton, of which he was chosen captain. When
the battalion became the seventy- seventh regiment
he was appointed its adjutant, and was successively
promoted to be major, lieutenant colonel and col-
onel, sharing its fortunes on every field in Virginia,
from the memorable charge at Williamsburgh to
the Forks of the Appomattox as it followed the
"cross" of the sixth corps. At Cedar Creek, on
the " Winchester pike," October 19, 1864, after the
318 THE BENCH AND BAR
fall of Colonel Bidwell lie succeeded to the command
of the third brigade. As Sheridan rode his black
charger "from Winchester twenty miles away," he
dashed np to where French's brigade held the left
and emphatically told them to 'stand firm." The
brave French responded that his men could not
stand under such a fire, but if the word was given
he would charge the rebel line. ''Charge," thun-
dered Sheridan, and the survivors of the third bri-
gade under its youthful leader rallied on their colors
and, sweeping over the stone wall, bore the rebels
before them This was the signal for the charge
along the whole line which sent Early whirling up
the valley. For this intrepid discharge of his duty
he was, on the recommendation of Gen, Sheridan,
brevetted brigadier general "for gallant and merit-
orious service at Cedar Creek, performed under the
eye of his commanding officer." At the close of the
war he was mustered out of the service and laid aside
the sword for the pen, exchanging the battle field
for the forum. Having been admitted to the bar
in May, 1861, he now formed a law partnership
with Alembert Pond, which still exists under the
name of Pond, French & Brackett. He was chosen
district attorney in November, 1868, and served
acceptably for three years from the first of January
following. He is a pleasant speaker and an able
debater. In politics he is a republican, but in 1872
his devotion to principle led him to support and
vote for Horace Greeley for president.
or 8ARAT0GA COUNTY. 319
COUNTY CLERKS.
The office of county clerk was adopted by tlie
constitution of 1777 from the colonial system, and
the incumbents were continued in office-, provided
they adhered to the patriot cause. They were
appointed by the governor and council and held
office at their pleasure. Hitherto clerks of Common
Pleas and Court of Sessions, by the act of February
12, 1796, they were made clerks of the Circuit
Court and Oyer and Terminer. Since 1822, they
have been elected for terms of three years. The
present constitution makes tlera clerks of the Su-
preme Court in their several counties. By virtue
of their office they are registers of deeds and mort-
gages, except in the counties of Westchester, Kings
and New York, where special officers are chosen
as guardians of the public and private records.
Concerning Dirck Swart, the lirst county clerk
of this county, but little is known to the present
generation beyond the facts to be learned in the
public records. He was a miller and lived at what
is now Stillwater village. It would seem that he
was an ardent patriot, for his name appears as one
of the delegates from Albany county to the first
colonial convention which met at New York, April
20, 1775. He was a firm friend of Gen. Philip
Schuyler. During the summer of 1777, Schuyler' s
headquarters were established at his house. (Yet
standing in the north part of the village and now,
or recently, the property of Mr. James March.)
320 THE BETTOH AND BAR
From it Arnold marched to the relief of Ganzevoort
at Fort Stanwix, in August of that year. He was
a member of assembly from Albany county from
1780 to 17b5, inclusively, and also, of the conven-
tion which met at Poughkeepsie, June 17, 1788, to
deliberate upon the adoption of the federal consti-
tution. From the records it does not appear- that
he voted upon the question of ratification. Four
of his colleagues voted no, and two beside himself
abstained from voting. Thus Albany county appears
upon tht^ records as unanimously opposed to the
adoption of what has long been known as the "pal-
ladium of oiir national hopes." He was appointed
county clerk of Saratoga county by Gov. George
Clinton, February 17, 1791, and held the office
thirteen years. He kept the records at his resi-
dence, and from them, as they now appear, it is
known that he was possessed of two inestimable
qualities in a recording officer : viz., he wrote a
round, plain and legible hand and used an unfading
quality of ink.
County clerk Seth C. Baldwin was one of the
early settlers of the town of Ballston, living on
■ what has long been known as the Col. Young farm.
He was a man of prominence in those early days,
having been elected to the state assembly for three
years from 1797, and was elected supervisor of
Ballston in 1793, and again in 1800-1. In the latter
year he was appointed sheriff. He held that office
until February 17, 1804, when he was appointed
or SARATOGA COFNTT. 321
county clerk, and held the office for nine years,
keeping the records at his residence.
County clerk Levi H. Palmer was a son of Judge
Beriah Palmer of Ballston, and was graduated from
Union college in the class of 1799. He studied law,
and practiced his profession for several years at
Ballston Spa, living and having his office in the
house near the west end of Front street, now owned
by Miss Catherine Bradley. He was appointed
clerk March 5, 1813, and held the office two years ;
he removed the records to Ballston Spa and kept
them in his law office. He was largely engaged in
suits involving patent land titles and suits in parti-
tion. Subsequently, he removed to Albany and
continued, the practice of his profession.
County clerk William Stilwell was born in that
part of the Van Rensselaer manor which is now a
part of the town of Stephentown, Rensselaer county,
in the year 1766. He was apprenticed to the cabi-
net trade, and in the latter years of the last century
he established himself in that business in the new
settlement at Ballston Spa. At one time he had
his shop and residence near the V corners on the
farm now owned by the heirs of Harmonis Peek.
Afterwards, he removed to the village to the resi-
dence which he built and designated as Mount
Moreno, being the place recently owned by Jona-
than S. Beach at the corner of Milton avenue and
Pleasant street ; his cabinet shop was then in the
building now occupied as a residence by J. G.
Christopher on Front street. He was appointed
322 THE BENCH AND BAR
one of the judges of Common Pleas in 1811, and
county clerk February 17, 1815, and held the of&ce
three years. He kept the records at first in his
'cabinet shop, above mentioned, until he completed
and removed to his residence on what is now Church
avenue, and now owned and occupied by his son-
in-law, the venerable Chester Clapp. Mr. Clapp
was deputy clerk under Mr. Stilwell. Many of the
records in his term were entered in the neat pen-
manship of Mrs. Clapp. Judge Stilwell died it
Ballston Spa, April 12, 1854.
County clerk Thomas Palmer was, also, a son
of Judge Beriah Palmer and a nephew of the Thom-
as Palmer who was one of the commissioners to
survey the patent of Kayaderosseras in 1769. He
was graduated from Union college in the class of
1803, studied law, and began its practice in Ballston
Spa. On the death of his father, who was incum-
bent of the office, he was appointed surrogate, March
31, 1812, held the office one year, and was again
appointed, February 17, 1815, and performed its
duties until July 8, 1816. He was appointed clerk,
June 16, 1818, and held the office until he resigned,
January 1, 1833 ; having been elected under the
constitution of 1821, and re-elected until that time.
He was elected supervisor of Milton in 1822, and
successively re-elected until and including 1832.
When he was county cleik he kept the records, at
first, in his office in the building now occupied as
a residence by Alfred ISoxon at the west end of
Front street, Ballston Spa. In 1824, the legislature
OF SARATOGA COUNTY. 323
authorized the erection of a ' 'suitable building for
the preservation of the county records," at an
expense of $1,000, and appointed Edward Watrous,
Eli Barnum and Moses Williams a committee of
construction. The result was the erection of the
familiar stone edifice' which for forty two years was
designated as the "county clerk's ojSich." It was
first occupied Jby clerk Palmer in the autumn of
1^4. The occasion of his resignation was his ap-
pointment by the directors of the Schenectady^ bank
(then a new institution^ to be its cashier. He
accepted the offer and removed to that city, where
he died in 1855. No attorney in this county ever
gained the confidence of the farmers to the extent
enjoyed by genial "Tommy Palmer." Whatever
he told them they accepted as legal truth, and he
never belied their trust.
County clerk Alpheus G-oodrich was born in
Lenox, Massachusetts, June 10, 1874, from whence
his father, Allen Goodrich, removed to the town of
Gal way, in the latter part of the last century. He
was educated in Lenox academy, studied law with
Judge James Thompson and was admitted to prac-
tice in 1811. Soon after, he formed a partnership
with Judge Thompson which continued until 1821.
He married Miss. Nancy Stocking of Lenox, in 1812;
was elected clerk of the board of supervisors the
same year, and served in that capacity acceptably,
it would appear, for he was annually re-elected
each year until and including 1840, the year pre-
ceding his death ; he was appointed one of the
324 THE BEITCH AKD BAK.
superintendents of the poor in 1827, and re -appoint-
ed the next year ; he was chosen to the assembly
in 1824, and again in 1827. In 1823 he removed
from the Middle Line to Ballston Spa and formed
a law partnership with Thomas Palmer. When
the latter resigned the office of county clerk, Mr
Goodrich was appointed by Gov. Marcy to fill the
unexpired term, Januaiy 2, 1833. In November
of the same year, he was elected for a full term and
was re-elected in 1836, He died at his residence in
Ballston Spa. April 28, 1841.
Coui'ty clerk Archibald Smith was the son of
Jeremiah Smith, one of the first settlers of Charl-
ton. He was born December 13, 1788, and, alter
passing his youth on his father' s farm, he fitted
himself for college and was graduated from Union
in the class of 1814. He next studied law in the
office of Abraham Van Vechten in Albany. After
his admission to the Dutchess county bar he opened
an office in Poughkeepsie and built up an exten-
sive legal practice. He was nnt^d for his thorough-
ness in preparing his causes tor trial, a quality that
every successful lawyer possesses to a great degree.
In the year 1830, his health failing, he gave up his
practice and returned to Charlton to his ancestral
acres, on which his sons, Martin H. and Theodore,
now reside. Although never again fully entering
upon the practice of his profession, he occasionally
appeared at the bar of the Circuit and Supreme
courts in this and other ounties. Through the
influence of Hon. Anson Brown he was nominated
OF SARATOGA COUNTY. 325
by the whigs for county clerk in 1839, against
Alpheus Goodrich. A strong personal canvass
was made and he was chosen by a small majority ;
he served three years and was not a candidate for
re-election. Mr. Smith was a ripe and thorough
scholar, and like many others whose minds becorue
imbued with classical studies he seemed to the
casual observer to be abstracted from the present ;
and he was thought to be gruif and marose. But
his friends, those who knew the man, say that he
was a true and generous friend. He died at his
rural iiome in Charlton, May 6, 1869.
County clerk Horace Goodrich was the son of
Alpheus Goodrich and was born in Milton in the
year 1818. Receiving a good business education in
the common schools and at Lenox (Mass.) Academy,
he entei^d the county clerk's office under his
father's administration as a registrar, and the fair
pages of the records bear testimony to his careful
habits and excellent penmanship. In 1841 he was
chosen clerk of the board of supervisors, and the
next year he was elected by the democratic party
to be county clerk. He served one term and was
defeated in 184o, in a close contest by James W.
HortoH, the whigs advocating rotation in office.
The argument userl in later days by the party
press supporting Mr. Horton for his frequent re-
elections is but an echo of the pleas put forth by
the Ballston Democrat and Saratoga Sentinel in
1845, in favor of the retention in office of Mr. Good-
rich. The former, in particular, plead his long con-
14*
326 THE BENCH AND BAR
nection with and thorough knowledge of the details
of his office. Soon after his retirement from the
clerkship he accepted the position of teller in the
Schenectad}^ bank, of which his brother, William
L., is now the cashier, removed to that city, aad
yet retains that position and residence.
Connty clerk James Watson Horton was born in
the hotel yet standing at Academy Hill, Ballston,
September 29, 1810. His father, Ezekiel Horton,
was a native of Connecticnt, and after his removal
to Ballston was an inn keeper. Mr. Horton was
educated at the old Ballston academy. In 1829,
he came to Ballston Spa and entered the employ of
Smith & Patchin, dry goods dealers. In 1836, he
purchased the drug store established in 1824 by
Dr. Jonathan Williams, (now kept by C. O. Mc-
Creedy & Co ,) and was appointed postmaster in
1841 by President Harrison. In 1843, he was re-
moved by President Tyler. This act led to his
nomination for clerk by the whigs in 1845, against
the popular incumbent, who was supported b}'^ the
democrats. The result was a triumphant election,
which has been continued by ten successive re-
elections to the present time. This long incum-
bency in this office has been exceeded in this state
only by two instances : viz. Thomas Archibald,
clerk of Warren county, who was first appointed
February. 13, 1821, and continued by elections until
January 1, 1861 — a period but a few days shoit of
forty years. The other was the instance of Gov.
George Clinton, who was appointed elerk of Ulster
OF SARATOGA COUNTY. 827
county by the colonial governor Cadwallader Col-
den, December 12, 1760, and continued in office
until his death in 1812, extending over an interval
of fifty-two years. During this time he was for
three terms governor of the state and twice elected
Vice President of the United States. In the body
of this work I have spoken of the reasons that have
been potent in causing Mr. Horton's retention in
ofiice by the people. Attorneys and title searchers
from other counties say that no other clerk's office
in the state is kept in a neater or more accessible
manner. As a citizen he is held in high esteem by
his townsmen. For over thirty years he has been
either vestryman or warden of Christ church. Balls-
ton Lpa, and for several years its senior warden.
He has been twice married ; first to Mrs. Abba
Peck, daughter of William Clark, formerly a well
known inn keeper at the county seat, and after her
deathj to Miss Julia E. Betts, daughter of Harvey
Betts of Troy, formerly deputy clerk of Rensselaer
county.
CHAPTER XXI.
SHERIFFS OF SARATOGA COUNTY.
The office of sheriff is an important adjunct of
our courts, for the incumbent is the executive officer
who causes its mandates to be obeyed. Since the
creation of our county its shrievalty has been held
by twenty seven gentlemen, of whom but twelve are
now alive. Prior to 1823, they were appointed and
held office during the pleasure of the appointing
power. Gen. John Dunning of Malta was the first
successful candidate before the people for the office,
and is noted for having held the position for three
terms ; once by appointment, from 1819 to 1821,
and twice by election for the terms of three year,
beginning January 1, 1823, and January 1, 1829.
and was also jailor for the period between 1819 and
1835. He was a prominent man in his town and
held the office of supervisor for six years from 1813;
and was also distinguished as an officer in the state
militia, holding the rank of Major Geneiul. He
was a citizen without an enemy and a public officer
without reproach. He died October 15, 1850, and
is interred in the cemetery at Dunning Street. He
was in the 84th year of his age. The large pubic
square at Dunning Street is a monument of his
generous spirit.
OF SARATOGA OOtnTTT. 329
Sheriff Lyman B. Langworthy was the son of
Rev. Elisha P. Langworthy, the pioneer Baptist
minister of Saratoga county, and was born in New
Lebanon, Columbia county, N. Y., October 21, 1787.
His father removed to Court House Hill in 1798,
and the next year to Ballston Spa. On attaining
the age of manhood he embarked in trade as a
hardware merchant in that village, and also became
quite prominent as a politician, editing for a time
the paper published by Josiah Bunce and called
the Saratoga Journal. It was particularly noted
for its sharp thrusts at its federal opponent, the
Independent American, edited by James Corn-
stock. Mr. Langworthy was elected sheriff at the
general election in 1825 and served three years. At
the expiration of his term he removed to Roches-
ter, N. Y., where he again embarked in the hard-
ware trade. He was one of the projectors and
builders of the Rochester and Buffalo Railroad.
As its superintendent, in July, 1837, he drove the
first spike in the first railroad west of Utica, now a
part of the New York Centr il, and a connecting
link in the great trans-continental line from ocean
to ocean. He informs me that the receipts from
travel over the road for its first week after com-
pletion was ten dollars. He afterwards lived
twenty years on a farm in the town of Greece, Mon-
roe county ; but now resides in Rochester with his
daughter, the widow of Judge Buchan of that city.
Although on the 'vt^rge of his ninetieth year, his
mind is unimpaired and he delights to talk of his
330 THE BENCH ATTD BAR
early years, and the author is indebted to him for
many interesting incidents related in these pages.
Time has indeed dealt gently with him, and the
weight of his advanced years has but slightly
bowed his tall and stalwart frame.
Sheriff Joseph Jennings was born in the town of
Ballston, near the hamlet that is known as Hop
City, December 23, 1786. His father Edmund
Jennings, settled there shortly before the revolu-
tion. Mr. Jennings was brought up as a farmer
and intended that to be his life vocation. When
he was about thirty years of age, he was prostrated
by a long sickness which rendered him unable to
perform agricultural labors. Having been chosen
constable he removed to Ballston Spa, and soon
after was appointed deputy sheriff by Gen. Dun-
ning. He at last gave up his intention of retara-
ing to farm life and purchased the Milton House in
that village, which he conducted until about ten
years since, and which is still his home. He was
elected to the office of sheriff in 1834, and served
until January 1, 1838. He is the oldest living ex-
sheriff, although Mr. Langworthy antedates him in
office nine years. In his prime, he was one of the
most influential men in this county, and the opinion
of " Uncle Joe" was sought and heard by many in
matters jjolitical and otherwise. His family have
all been gathered home, and the sole solace of his
advanced years is the one granddaughter in whom
is centered his affections. While belonging to an
age that is past, he has ever kept a lively interest
OP SARATOGA COUNTY. 831
in the present, and it is one of his proudest boasts
that he has never slighted the freeman's privilege,
but has voted at every election since attaining his
majority.
Sheriif Isaac Prink was born in Milton, May 10,
1799. His father, Henry Frink, was one of the tirst
settlers of the north part of the town, belonging to
the Connecticut colony which settled the neigh-
borhoods of Stone Church and South Greenfield,
he was a prominent citizen and was elected super-
visor in 1800-1. Sheriff Frink has been an agricul-
turist all his life, living on the farm he inherited
from his father, and his house stands within a tew
rods of the site of the log house first erected by his
ancestor. He was frequently called on to hold town
offices and was supervisor for the years 1838-4-5-6-
7. In 1844, he was the democratic and successful
candidate for sheriff, and enjoys the distinction of
being the last gentleman of that political persuasion
to hold that important office in this county. He is
yet in vigorous health, appearing to be a man of
about sixty summers.
Sheriff Theodore W. Sanders was elected from
the town of Corinth for the term beginning January
1, 18,^0. He had previously held the office of super-
visor of that town in 1845-6. Meeting with final-
cial reverses he resigned his office in 1852. He at
present resides in the city of Albany.
Sheriff William T. Seymour is a native of Still
water and was born about the beginning of this
century. His father was one of the Connecticut
832 THE BENCH AND BAB
colony who settled near the Yellow Meeting house
before the revolution. Sheriff Seymour was edu-
cated at Union college, taught school for several
years, studied law and was admitted to practice.
He settled at Waterford and soon after turned his
attention to banking, and was for a score of years
cashier of the Saratoga County bank. In 1852, he
was appointed sheriff by Gov. Hunt, on the resig-
nation of Theodore W. Sanders, and was supervi-
sor of Waterford in 1844. He now resides in that
town.
Sheriff Henry H. Hathorn is a native of Green-
field and is about fifty- five years of age. His father
was a farmer and educated his son in the common
schools and at Fairfield academy, in Herkimer
county. (Among his classmates there were Rev.
Zerah T. Hoyt of Greenfield, and Dr. William C.
McKay, the famous Indian interpreter and chief of
the Warm Spring tribe in Oregon, whose brother,
Donald was the noted scout in the Modoc war.)
Sheriff Hathorn, after completing his academic life,
became a clerk in J. R. Westcott's store in Saratoga
Springs. Next he embarked in hotel life as a joint
proprietor of the old Union Hall, the first great
hotel at the famous watering place. He then pur-
chased an interest in Congress Hall, the management
of which he retained until the present year ; build-
ing after the disastrous fire of 1866 the present mag-
nificent hotel known by that name. For many
years he has been a prominent citizen of his adopted
town, and was elected supervisor in 1868, 1860,
OF SARATOGA COtJNTT. cS
1866 and 1867. He was elected sheriff in 1852, and
again in 1862, an honor hitherto conferred on onl}^
one person since the constitutional provision was
adopted forbidding their election to successive
terms. In 1872, he was chosen to the national
house of representatives by the republican party,
over Daniel B. Judson, democratic liberal ; and was
re-elected in 1874, over Walter T. L. Sanders, dem-
ocrat. His term will expire March 3, 1877.
Sheriff Philip H. McOmber was born in the town
of Washington, Dutchess county, N. Y,, in 1791.
His father removed to Gal way, in this county about
the year 1796. Sheriff McOmber at first followed
an agricultural life. He was appointed a deputy
sheriff by sheriff Brisbin, in 1815, and was contin
ued in that position for lifteen years. While hold-
ing that office he and his brother deputies, Potter
Johnson and Joseph Jennings, prepared Benjamin
Bennett in his cell the fatal day. Afterwards he
embarked in mercantile and manufacturing business
at Ballstou Spa, and in his mill was woven the first
cotton sheeting made in this county. In 1847, he
was appointed jailor by sheriff Low and performed
the duties of that office for twelve years. In 1856,
he was elected sheriff, and after the expiration of
his term removed to Saratoga Springs, where he
now resides. Having recovered from a severe ill-
ness in 1874, he is now enjoying, one may almost
say, robust health, and is able to take long walks
about the beautiful streets of that village. He
retains his memory unimpaired, and next to ex-
334 THE BENCH AND BAR
slieriff Langworthy his recollection dates further
back than any other gentleman with whom the
author has conversed on the topics embraced in this
book ; the incidents appearing as fresh to him as
those of the great rebellion to the present genera-
tion.
Sheriff George B. Powell was born in the town
of Milton, and was the son of Judge Elisha Powell,
one of the early settlers and foremost men of the
town half a century ago. He was a farmer in that
town, and about fifty years of age when he was
chosen sheriff, in 1858. During his term of ofhce
he was jailor in person, being the first incumbent
since the time of Gen. Dunning who moved his
family into the court house. At the expiration of
his term, January 1, 1862, he removed to the city
of Oswego, where he now resides, and embarked
in the lumber trade.
Sheriff Joseph Baucus is a native of Schaghti-
coke, Rensselaer county and is now about seventy
years of age. He purchased a farm in Northum-
berland in 1833, and removed to that town He
soon took a foremost position in his town, and has
been chosen supervisor ten times, the first being in
1842. He represented the second district of this
county in the assemblies of 1854 and 1856, and
was elected sheriff in 1864. He has recently made
his home in Saratoga Springs. His son, Alexan
der B. Baucus, is the present supervisor of North-
umberland, and is serving his fifth term in the
county legislature.
OF SARATOGA COUNTY. 335
Slieriflf Tabor B. Reynolds is a native of Wilton,
and is a son of Dr. Henry Reynolds, a former well
known physician of that town. His two sons, John
and Tabor B., received good academic educations
and were bred to their father's profession. The
subject of this sketch was born in 1821. He was
repeatedly honored with official trusts by his towns-
men ; he was town superintendent of schools from
1847 to 1852, and held the office of supervisor in
the years 1856-7-63-4-5-6-7, and was chosen by the
democrats and Americans to represent the second
assembly district in the legislature of 1858. On
the outbreak of the war, he joined the part}^ which
was sustaining the hands of the government and
was chosen sheriff in 1868. Since his retirement
from office, he has removed to Saratoga Springs,
and is now engaged in an extensive and lucrative
practice of his profession.
Sheriff Thomas Noxon was born in Beekman,
Dutchess county, N. Y., in the year 1816. His
father was a shoemaker, and Thomas was his sec-
ond son ; he removed to Clifton Park village,
where the subject of this sketch received a good
business education. He adopted at the first outset
in life the business of a farmer and afterwards that
of a merchant trading in the latter capacity for
twenty-three years in Clifton Park village, of which
he was postmaster under the administration of
President Lincoln ; he represented the town of
Halfmoon in the board of supervisors during the
years 1856-7 60-1-4-5 6. Such was his popularity
336 THE BEirOfl AM) BAR.
in that politically close divided town that the
republicans deemed themselves sure to win if they
could get his name on the head of their ticket ; he
was elected sheriff in 1870, and removed to Balls-
ton Spa, the county seat. On the expiration of his
t-rm he removed to Saratoga Springs, having re-
tired from active business pursuits.
Sheriff Franklin Carpenter (the present incum-
bent) is the son of the late Daniel B. Carpenter, a
worthy farmer of Corinth, and was born in the
year 1830, was educated in the common schools
and, like many other American youths, then for a
few winters sat in the pedagogue' s chair and en-
joyed all the comforts of "boarding around." His
life pursuits have been farming and lumbering.
TL at he was highly esteemed by his fellow towns-
men is shown by the fact that he has served four
terms in the board of supervisors, the first year
that he was elected being 1861 ; [he was chosen
sheriff in 1863 and his term will expire December
31, 1876. During his term he has resided in the
court house and, after the first year, has been jailor
in person.
The names of the deceased incumbents of the
office of sheriff may be found in the "Civil Regis-
ter," in the app-zjndix of this volume.
CHAPTER XXII.
ANECDOTES, INCIDENTS, ETC.
THE OLD CRIER.
Those elderly citizens of the county who attended
the courts in their early years will remember the
aged crier, Major Ezra Buel of Stillwater. But lit-
tle is known of his history beyond the fact that he
was one of those anomalies of human nature — a
bachelor without kith or kin. He came to Bemis
Heights before the revolution and was thoroughly
conversant with the field of battle, a fact which
Gen. Arnold improved by using him as a scout
and by designating him to guide Timothy Murphy
and his squad of Morgan's riflemen to the ambus
cade which resulted in the death of the daring and
intrepid British Gei . Frazer. The author remem-
bers hearing his father tell of having seen Major
Buel, fifty years after the battle, designate the black
walnut tree which marked the spot where Frazer
fell, arid the ravine in which grew the hazel copse
from which Murphy fired his unerring rifle when
Buel pointed out to him the " little man on the
white horse" whom Arnold said was worth a whole
army. He afterwards entered the army for the war.
In 1791, Judge John Thompson appointed him crier
of the county courts, which position he held till he
15
338 THE BETfCH ATH) BAH
became so deaf that the court officers performed his
duties and allowed him to sit in his chair and sleep.
Finally, at the close of the August term of Common
Pleas, 1833, the ag-ed veteran arose and tendered
to the judges his resignation of the office he had
held for forty-two years, and thanked them in a
very feeling speech for the courtesies they had
shown him in his declining years. Judge George
Palmer responded to the aged veteran, tendering
him the thanks, of the court and their good wishes
to attend him in his declining years. The court
ordered that his resignation be accepted and its
manner to be entered on the minutes. The few
remaining years of his life were comforted by a
pension from the government for his revolutionary
services.
JUDGE KENT AISTD TIlE MINERAL SPRITSTG.
The late Col. Samuel Young used to relate the
following anecdote of Chief Justice Kent. The
Judge, when holding courts in this county, used to
have his quarters in Ballston Spa, at Aldridge's
hotel (now the residence of Henry A. Mann), so as
to be near the old "iron spring," of the waters of
which he was very fond, and rode in a chaise to
and from the court house. At one term in a cer-
tain action then being tried he near the close of the
day's session ruled a point of law, dinibtless to his
own satisfaction at the time if not to that of the
discomfited counsel. The next morning, however,
he was not so sure of its soundness, for he remarked
OF SARATOGA COTTTTTT. 339
"hear ye" of the ancient form of opening courts.
Sheriff Bull was the last official to wear a uniform,
though the form of escorting the judges to the
court house was kept up until about 1825. This
Sheriff Bull was a " fellow of infinite jest" and
enjoyed a good stor}- . Adonijah Moody of Albany
was an inhabitant jf the "limits" during his term,
and court weeks he and the sheriff wo aid strive to
see who could crack the strongest joke, practical
or otherwise.
VAN AISTTWERP'S FI. FA.
Among the attorneys who practiced in this coun-
ty in early times was Daniel Van Antwerp of Still-
water, afterwards of Albany. It is said that he
was a more careful violinist than attorney. Some
of his legal mistakes were ludicrous. Once he
issued a fiera facias, or execution as it would now
be called, as a iirst process against a debtor against
whom he had purchased a claim. The astonished
debtor, who knew enough of the "law's delay" to
comprehend that this was not according to the
approved practice, called at the office of 'Squire
Van Antwerp and asked how it was that the sheriff
had come to him with a fi. fa., when no writ had
ever been served upon him. The lawyer took down
his register and on looking it over could tind no
mention of the matter, so he coolly said : " Well,
I think there may be a little mistake. At any rate,
if you will pay the amount of the bill, I will throw
ofl half my fees." The debtor settled uii that basis,
340 THB BENCH AWD BAR
after taking his seat on the bench : " Yesterday I
made a ruling excluding certain evidence, but I
found last evening after going to my hotel, drink-
ing some spring water and taking a walk, that I
was in error, and I now reverse that decision."
The old spring having been re-opened, this incident
is commended to the advocates at the bar at the
present day. When the court makes a ruling
adverse to them they should invite the judge to
walk down to the spring and imbibe its waters. It
may yet have the virtues that it possessed in the
days of Judge Kent.
SHEKIFFS IN THE OLDEN TIME.
In the olden time it was customary for the sheriff
and his deputi^^s to wear a uniform while attending
court. The sheriff as marshall wore a sword.
When the hour for opening court arrived, the
sheriff and deputies would proceed to the hotel
where the presiding judge was a guest and escort
him to the court house. Ex-sheriff Langworthy
informs me that in his youth he remembers seeing
sheriff Daniel Bull and his posse escort Judge
Kent to his seat in the old court house. As the
cortege approached the door it was flung open by
Major Buel, who announced "Their Honors, the
Judges." The line steadily marched up the aisle
to the bench when the sheriff called out " hats off,"
and, saluting the judges with his drawn sword,
stepped aside to allow them to pass to their seats,
when the sonorous voice of the crier rang out the
OP 8AEATOOA OOUNTT. 841
and it was probably the only suit that was carried
to a successful termination with such an irregular
beginning.
JUDGE cook's withdrawal FROM THE BAR.
In the early days of our judicature it was a 'iom-
mon practice for attorneys to purchase claims and
then prosecute them. This grew to be such an evil
that in 1818, the legislature adopted a regulation,
since incorporated in the Revised Statutes, prohib-
iting attorneys from holding a pecuniary interest in
any action which did not accrue to them on its in-
ception. Judge Samuel Cook, who then transacted
the triple business of attorney, banker and broker,
deemed this an invasion of his constitutional rights,
and in that year appeared in the several courts of
the county and the Supreme Court and had his
name stricken from the roll of attorneys on his own
petition. Judge Cowen says that it was an unpre-
cedented instance.
THE CHANCELLOR AT PINE GROVE.
Chancellor Walworth was wont to hold his court
at " Pine Grove," for. like the gate of death, it was
always open for the transaction of business. It
was a great convenience to himself and to the bar
generally, for they could thus combine business
with pleasure, as did the senate in 1872, when it
adjourned to meet as a Court of Impeachment to
try Justice George G. Barnard, from the capitoljin
Albany to the town hall, Saratoga Springs. Here
342 THE BENCH AND BAR
at one time, in a case involving some Illinois state
bonds, William Kent and George Griffin were
matched against Daniel Webster. It drew such a
crowd that the Chancellor was forced to adjourn to
the Universalist church. " This cause will not end
here," said Griffiin, tragically, "we shall meet
again at Phillippi." "Aye," replied the Jupiter
Tonans of Massachusetts, wliile a broad smile of
grim humor spread over his massive countenance,
"the learned counselor will meet us again at Phil-
lippi, but will he pay us our dues when we get
there?"
Walworth's temperaistce principles.
Chancellor Walworth was as much noted for his
total abstinence principles as was (another
distinguished New York statesman), for his fondness
for eau de me. Gov. Seward at one time astonished
a company by asserting that Chancellor Walworth
and drank more brandy and water than any
other two men in the state. The expressions of
incredulity were modified when he explained that
the chancellor drank all of the water
ADMISSION TO THE COURT OF CHANCERY.
In the later years of the Court of Chancery its
strict discipline was somewhat relaxed, and appli-
cants for admission to its bar found but few thorns
plaiited in their path. The following is said to have
been the form of examination of prospective solic-
itors pursued by master in chancery William L.
OF SARATOGA COUNTY. 343
Aveiy, "You would commence a proceeding in
chancery by filing a bill, wouldn't you V Getting
the affirmative answer, and the stated fee, he would
sign the necessary certificate and send the applicant
to the clerk. If there are any attorneys in practice
in this county who came in through the door of the
chancellor's court in the early part of 1847, they
can tell if I have been informed correctly of the
above mode of examination.
COWEN'S RETEISTTIVE MEMORY.
In the life sketch of Judge Cowen I mentioned
his great powers as a listener. William L. Stone,
the younger, relates an instance illustrating this.
The eminent lawyer Samuel Stevens was once
engaged in arguing a case involving important
principles of law before him. He particularly
wished to catch ind engage the judge's attention,
who commenced writing and was se^-mingly much
engaged in his occupation. This piqued Mr.
Stevens, and he became so worried that he mixed
matters and was becoming badly confused. Sud-
denly Judge Cowen interrupted him with : "Mr.
Stevens, you have several times in your argument
referred to the eighth section of the act to prevent
usury, as providing that all and every person sued
for the same, shall be compelled to answer on oath
to any bill preferred for discovering money taken
usuriously. I do not understand the eighth section
that way. Does the learned counsel so understand.
it f " Certainly, I do. " " Are you not mistaken V '
344 THE BENCH AND BAB
"I do not think I am, your Honor," said Stevens,
" but I will see." Turning to the book of statutes
he saw that he meant the fourth section. " Pro-
ceed," said the Judge, "I do not wish to inter-
rupt you." Stevens said afterwards that Judge
Cowen's interruption settled two facts in his mind :
that tile judge, with his seeming indifference, heard
every thing that was said ; and, that he was getting
conf 
