The bench and bar of Saratoga County, or, Reminiscences of the judiciary, and scenes in the court room : from the organization of the county to the present time, Part 1

Author: Mann, E. R. (Enos R.)
Publication date: 1876
Publisher: Ballston, N.Y. : Waterbury & Inman
Number of Pages: 408


USA > New York > Saratoga County > The bench and bar of Saratoga County, or, Reminiscences of the judiciary, and scenes in the court room : from the organization of the county to the present time > Part 1


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THE


BENCH AND BAR OF


SARATOGA COUNTY; OR,


REMINISCENCES OF THE JUDICIARY, AND


SCENES IN THE COURT ROOM,


From the Organization of the County to the present time.


BY E. R. MANN, ATTORNEY-AT-LAW. 111


BALLSTON, N. Y .: WATERBURY & INMAN. 1876.


T M315336 1876


Entered according to act of Congress, in the year 1876, by E. R. MANN, in the office of the Librarian of Congress, at Washington.


RJF 16 Mar 54


TO HON. GEORGE G. SCOTT,


THE SOLE SURVIVING JUDGE OF THE COURT OF COMMON PLEAS; AND TO HON. AUGUSTUS BOCKES,


THE FIRST JUDGE OF THE COUNTY COURT : GENTLEMEN WHO HAVE WORN ITS ERMINE UNSULLIED, AND WHO HAVE REFLECTED HONOR ON THEIR NATIVE COUNTY BY THEIR INTEGRITY IN OFFICIAL STATIONS, THIS RECORD OF THE


BENCH AND BAR OF SARATOGA COUNTY IS RESPECTFULLY DEDICATED.


783275


CONTENTS.


PAGE.


Ackart v Lansings.


234


Adams v LeRoy .


242


Allen, Dr. T. E., trial of.


180


Anecdotes, Incidents, etc.


The old crier. .


337


Judge Kent and the mineral spring


338


Van Antwerp's fi. fa ..


339


Sheriff's in the olden time. .


340


Judge Cook's withdrawal from the bar


341


The Chancellor at Pine Grove.


341


Admission to the court of chancery


342


Judge Cowen's retentive memory


343


Judge Cowen's court habits. 344


Gossips' tales no slander. 345


346


Not a classical judge ...


347


Judge Crane and the witness.


348


Father in law, or brother-in-law


349


Too wide a margin


350


Homeopathic 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' love 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 Hon. John Cramer 362


Anecdotes of Hon. Henry Smith 363


A secret exposed .. 365


Maxwell's colored jury 366


Legal chirography . 367


342


Walworth's temperance principles


Judge Hand and the deaf juror


347


The one sound minded juror


6


CONTENTS.


PAGE.


Anti-rent murder trial. .


165


A¡ pendix


380


Baker v Powell, sheriff. 209


Ballston, indictment of its highway commissioners 18


Beekman v Granger. 105


Bennett, Benjamin, trial and execution of.


64


Benton v Village of Saratoga Springs


235


Bogart v King.


107


Bradshaw v Callaghan.


52


Brown, George, a singular alibi


80


Burning of the court house 39


Burr and Hamilton 18


Carpenter v Hodgman and Clapp


233


Carson League trials .


153


Chase v Saratoga county


208


Changing the county seat


46


Cheesbrough v Tompkins


224


Chipman 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


83, 151


Clark and Rice 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 Shepherd


109


Cooper v Greeley and MeElrath


192


County clerks . 319


94


Court of Sessions.


78


Court house at Court House Hill. 23


109


Darrow v Excelsior Life Insurance Co 240


Deyoe v Village of Saratoga Springs


234


District attorneys.


304


Dougherty, William, trial for 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


Clarke, John S., and the Snake Hill bank.


Court of Common Pleas


Cramer v Martin'and Southwick.


1


CONTENTS.


7


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


Hart v Bushı. . 236


Haverly v French. 111


Hickey, M. H, his 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 146


Johnson, Charles, conviction for rape 163


Judges distrustful of their powers. 33


Ketchum v Taylor .. 19


. Kelly v Indemnity Insurance Co. 212


Kirtley, William J., tried for murder 163


Lansing v Russell 246


LeBaron v Howe


222


Leland v Hathorn


227


Lewis v Rens. & Sar. R. R. Co.


191


Life Sketches-


Seth C. Baldwin, clerk 320


George S. Batcheller, 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


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


Winsor B French, district attorney


PAGE.


8


CONTENTS.


PAGE.


John C. Hulbert, judge. 299


Joseph Jennings, sheriff


330


Lyman B. Langworthy, sheriff. 329


John Lawrence, district attorney 313


Charles S. Lester, judge . 300


Richard M. Livingston, district attorney 305


James B. McKean, judge .


294


Philip H. McOmber, sheriff. 333


Thomas J. Marvin, judge. 287


John O. Mott, district attorney . 315


Thomas Noxon, sheriff 335


William T. Odell, district attorney


314


Isaac C. Ormsby, district attorney


315


Levi HI. Palmer, clerk.


321


Thomas Palmer, clerk.


322


George B. Powell. sheriff.


334


Tabor B Reynolds, sheriff


335


Theodore W. Sanders, sheriff 331


George G. Scott, judge .. 301


331


Archibald Smith, clerk


324


William Stilwell, clerk 319


321


Dirck Swart, clerk.


John W. Taylor, speaker 141


279


James Thompson, judge ..


William L. F. Warren, judge . 305


Reuben II. Walworth, chancellor 262


272


Samuel Young, judge 286


Limits for imprisoned debtors. 30, 95


Lincoln v Saratoga & Schenectady R. R. 117


Livingston v Bryan 53


Loomis v Rens. & Sar. R R. Co. 115


Losee v Buchanan, et. al 219


Maguire v Doolittle. 232


Mason, James, tried for murder.


69


Mckinney, Patrick, trial for perjury.


156


Markham v Denel


196


Merrill and[ Russell, the kidnappers


152


Milton, county aid for bridges


98


Mors v Mors, et. al.


207


Munro v Ganzevoort 204


Munro y Shepherd. 202


Nash, Julia, escape from jail.


162


Neilson v Post. . . 210


Northrup, Daniel, trial for murder 50


John Willard, judge.


John Thompson, judge. 283


William T. Seymour, sheriff


9


CONTENTS.


PAGE. O'Leary, Daniel, tried for assault with intent to kill


157


O'Rourke's saloon case. 181


Packard, J. R. and daughter, tried for murder 161


Pangburn v Partridge ... 53


Pearse v Best. 217


Pelton v Rens. & Sar. R. R. 231


Pioneer Paper Company's suits 225


Powell v Davison. 205


Pratt v Meeker, et. 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 Potter. 57


Rynders, Isaiah, trial for riot 85


Saratoga county bar (førmer) 131


Saratoga county bar (present) 370


Seabury et al v Howland .. 234


Scott et al v Carpenter et al. 195


Soumet v National Express Co 338


Smith v Holmes. 256


Smith v Reynolds .. 29


Steenburgh v Metropolitan 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


Vanderwerken, Wm. conviction of murder. 159


Van Deusen v Sweet.


221


Van Schaick v Davis. .


106


Van Schaick v Vincent.


113


Vrooman v Shepherd . 127


Vinegar, Samuel, trial for assault. 67


Wait v Wait. 189


Wait, A. A. v Wait, D. W. et al. 214


Waldron v Weiden. 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


Young v Jeffers et al.


204


Young v Washington Co. Mutual Ins. Co.


198


PREFACE.


The courts of any country are the conservators of its liberties and of the rights of its citizens. The blessings that the people who inherit the privileges of Magna Charta 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 of 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- worth, 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 Gordon, Judge] 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, and 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 the order of seniority at its bar been its patri- archs, and, since the death of the venerable Wm. L. F. Warren in 1875, that dignity has been worthily won by John Brotherson of Ballston 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 with 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 are 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 familiar 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 " Centennial 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 by him several years ago for the use of the super- visors, which 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.


Ballston Spa, September 25, 18:6.


E. R. MANN.


THE BENCH AND BAR


OF SARATOGA COUNTY.


CHAPTER I.


THE FIRST COURTS OF THIS COUNTY.


It has been a matter of chronic complaint for several years that 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 by .. Chapter IV of the Laws of 1791, passed February 17," of that year. It was the " property" of Gens. Philip Schuyler and James Gordon, and was en- titled : 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 Gov. George 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. By section one of that act, after annexing the towns of Easton and Cam-


1*


14


THE BENCH AND BAR


bridge to Washington county and creating the county of Rensselaer, it was provided : "that all that part of the county of Albany which is bounded easterly by the Hudson river and counties of Wash- ington and Rensselaer, 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 county of Washington, shall be one separate and distinct county and be called and known by the name of Saratoga." The other sec- tions of the bill stated that the several courts of the state should have jurisdiction therein ; provided for local tribunals : that all prisoners should be kept in the Albany jail until new jails should be built ; and for their representation in both houses of the legislature. Thus in the last section alone. was treated the subject matter of the title.


The courts of the state at that time were by the constitution of 1777. the " Court of Errors," which consisted of the lieutenant governor, the senators. chancellor and the judges of the Supreme Court. which had jurisdiction of impeachments and a gen- eral revision of the decisions of the courts below. by appeal : the " Court of Chancery. " having the exclusive control of all cases in equity : the " Su- preme Court of Judicature." which consisted of a chief justice and three prisne judges, which sat in. bank and heard appeals from the lower courts : the " Circuit court." held in different counties at least once in each year, presided over by a judge of the Supreme Court, and empowered to try all issues at law and give judgment thereon ; and in


15


OF SARATOGA COUNTY.


each county a "Court of Common Pleas," consist- ing of a first judge and at least three judges, which had power 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." hold by a judge and at least three commissioned justices of the peace of the county, of whom one might be the first judge, or one of the judges of Comnon Pleas. and a " Court of General Sessions." held by any three 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 crimes, treasons and felonies. and the latter was confined to the trial of such offenses within their counties, and misdemeanors, with powers in each 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 prac- tice in any court of the state. Attorneys of the Supreme Court could appear in that court and try cases in the Circuit and Over and Terminer. But to practice in the Courts of Common Pleas or Gen- eral Sessions it was first necessary to be specially admitted to practice 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 state was represented then as now in the courts by an attorney general,


16


THE BENCH AND BAR


and the people in the Over and Terminer or Sessions by the attorney-general or district attorney All of these officers were appointed by the " Council of Appointment, and commissioned by the governor. The judges held their office until they attained the age of sixty years. Such was the cumbrons ma- chinery of our judiciary, founded on that of Eng- land, at the time our county's history begins. The common law, when not conflicting with a statute, was the law of the state.


The new county was at once placed on a firm judicial footing. Gov. Clinton immediately ap- pointed John Thompson of Stillwater, first judge : James Gordon and Beriah Pahner of Ballston, JJa- cobus Van Schoonhoven of Halfmoon, and Sidney Berry of Saratoga, judges. Sidney Berry was ap- pointed surrogate, Jacob Fort jr. of Halfmoon. sheriff. and Dirck Swart of Stillwater, clerk. In accordance with 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, justice of the peace, in Stillwater, now Malta : it having stood on the farm now owned by Henry Van Hyning, on the East Line road. It was presided over by Judge Thomp- son and the three judges above named, with John Varnam. Eliphalet Kellogg and Epenetus White, associate justices.


The first business recorded is the admission to practice of Cornelius Vandenburgh, Guert Van Schoonhoven. Peter Ed. Elmendorf, Myndert Van Everen jr .. John V. Henry, John D. Dickinson.


. 17


OF SARATOGA COUNTY.


Gamaliel and Harmonis H. Wendall, John W. Yates, Nicholas Fonda. Abraham Hun, Peter D. Van Dyck, John Woodworth, Moss Kent, John Lovett and Joseph C. Yates (afterwards governor), as attorneys. Major Ezra Buell of Stillwater, a revolutionary veteran, was appointed crier. The first recorded order in the court of Common Pleas was directed to Michael Sharp in the action of Gur- tie Thompson. Rikert Shell and Harmonis Thomp- son. executors of Jacob Thompson, to show cause why judgment should not be entered against him at the next term on a hill penal executed by him May 6, 1770, for $10, 10s. Guert Van Schoonho- ven was plaintiffs' attorney. 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 certificates from the Su- preme Court.


At the first term of the General Sessions, held May 10. 1791, by James Gordon, judge, and John Varnam, Epenetus White, Eliphalet Kellogg, Rich- ard Davis jr., Douw I. Fonda. Elias Palmer, Nath. Douglas, John Ball and John Bradstreet, justices of the peace, a grand jury was sworn, consisting of Richard Davis jr .. Joshua Taylor. John Donald. Henry Davis. Hez. Ketchum, Seth C. Baldwin. Ezra Hallibort. John Wood. Samuel Wood, Edy Baker, Elisha Andrews, Gideon Moore, Abraham


18


THE BENCH AND BAR


Livingston and John Bleecker. The first trial in the Sessions was at the November term, 1792, being the indictment against one Daniel Hults for assault and battery on Burtis Soper. The affray occurred in Stillwater. Five witnesses were sworn for the people and four for the defendant. As the law then did not act on the principle that the quality of justice and mercy should be strained, the defendant was not allowed to testify, an equilibrium of evidence numerically could not be established, and a con- viction was had. He was fined ten shillings. The people, it appears, were not more given to mending their ways then. than in these later days, for indiet- ments were found against the towns of Ballston and Halfmoon for failure to keep highways in proper repair. The offense laid at the door of the highway officials of Ballston was that they failed to maintain a passable highway at all seasons of the year from Academy Hill across the outlet of Ballston lake to the residences of Judges Kellogg and White on the eastern shore. In the early spring of 1791. Gen. Gordon had been to Albany, accompanied by his family, and on his way home he drove np'in his carriage on the east side of the lake to Judge Kel- logg's, and then essayed to cross the outlet bridge. The water was very high and extended over and across the road. He drove cautiously across the bridge and reached the narrow " corduroy." The water was so high that it came into the carriage and rendered it impossible to proceed. . It was with the greatest difficulty that Gen. Gordon turned his team and got back in safety to his friend Judge


19


OF SARATOGA COUNTY.


Kellogg's hospitable mansion, where the party re- mained until morning. The indictment seems to have been ineffectual, for the same dangerous "corduroy" yet exists, or one of its posterity made after the original pattern, for, by a singular coin- vidence, a few days after this chapter was originally written, in the spring of 1876, Col. C. T. Peek and family had a similar narrow escape with their lives while attempting to pass across the outlet to attend church at Ballston Center. That half mile of most exerrable highway is a bitter disgrace to the pros- perous town of Ballston.


Ithamar 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 tive pounds. It is easy to imagine the language of stern rebuke of the enormity of these offenses with which the presiding judge addressed the culprits.


The first Cirenit Court and Oyer and Terminer was held at the house of Jedediah Rogers, in Half- moon (now Clifton Park village), Tuesday, July 7. 1791. It was presided over by Chief-justice Robert Yates- assisted by all the judges of Common Pleas and Adrian Hagerman and Epenetns White, jus- tices of the peace. The next term was held in the church at Stillwater. June 4, 1792. No business of importance was transacted at either term. The first petit jury that was impaneled was in the court of Confon Pleas, to try the issue in the suit of Daniel Ketchum Taylor against Daniel Ketchum for damages for trespass, assault and false impris-


20


THE BENCH AND BAR


onment. The jury consisted of Thomas Sweetman. foreman : William Carpenter, Jeremiah Betts. JJohn Rowley, Seth Rogers, Jacob Rogers, Ephraim Woodworth jr .. William Patrick, Samuel Bushie. Hobson Beely, John Andrews jr. and Joseph Ben- jamin. They had no difficulty in disposing of the case and gave a verdict to soothe the injured frel- ings of the plaintiff for fifteen shillings and costs. C. Vandenburgh was the successful attorney.


At the June Sessions, 1794. a case arose which demonstrated that justices of the peace are some- times of a belligerent temperament, for John Brad- street Schuyler was indieted for an assault and bat- tery on Seth C. Baldwin, and Seth C. Baldwin was also indicted for an assault and battery on John B. Schuyler " at this present term of court." At the next term the parties " having adjusted their differ- ences." nolle prosequies were entered. Whether they settled them in another and more private game of fisticuf's or over a "cup of sack." honest old clerk Swart did not record, nor does tradition whis- per. At the same term, Dick, a negro slave, was tried for an assault and battery on Keziah Millard. wife of his master, Edy Millard, and found not guilty : thus showing that in those primitive days the colored man had rights in this county which the "white man were bound to respect."


The third Circuit and Oyer was held in the Pres byterian church in Ballston, Chief-justice Yates presiding, July 9, 1793. Elizabeth Seribner was tried on an indietment for the murder of her child. C. Vandenburgh represented the attorney general,


21


OF SARATOGA COUNTY.


and Peter W. Yates and G. Van Schoonhoven con- ducted the case of the prisoner. Fifteen jurors were challenged before the "twelve good and law- ful men" were found who adjudged her not guilty on the evidence. At the same term Ithamar Allen was tried for counterfeiting a Spanish milled dollar. A verdict of "not guilty and he did not fly the county," was rendered by the jury.


At a term of Oyer and Terminer held in the " red church in Ballston," August 17. 1795, before Chief- justice Yates, Hannah, a negro woman, was con- victed of grand larceny on a plea of guilty, and · was sentenced to be whipped 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. This proves that the privileges now only enjoyed by Delaware were once in vogue in this latitude. The last entry in this term is the following :




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