USA > New York > Genesee County > Our county and its people : a descriptive and biographical record of Genesee County, New York, v. 1 > Part 37
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Previous to the constitution of 18221, modified in 1826, justices of the peace were appointed. Since that date they have been elected. The office and its duties are descended from the English office of the same name, but are much less important in this country than in England. Under the laws of this State they are purely the creature of the statute. . Next in authority to the Supreme Court is the County Court, held in and for each county in the State, except New York county, at such times and places as its judges may designate. This court had its origin in the old English Court of Sessions and, like that court, originally had criminal jurisdiction only. By an act passed in 1663, a Court of Ses- sions, having power to try both civil and criminal causes by jury, was directed to be held by three justices of the peace in each of the coun- ties of the province, twice every year, with one additional term in Al- bany and two in New York. By the act of 1691 and the decree of 1699, all civil jurisdiction was taken from this court and conferred upon the Court of Common Pleas. By the radical changes of the constitution of 1846, provision was made for a County Court in every county in the State, to be held by an officer to be designated as the county judge, and to have such jurisdiction as the Legislature might prescribe. Under the authority of that constitution the County Courts from time to time have been given jurisdiction in various classes of actions which need not be enumerated here, and also have been invested with certain equity powers in the foreclosure of mortgages, the sale of infants' real estate, the partitioning of lands, in the admeasurement of dower and care of persons and estates of lunatics and habitual drunkards. The judiciary act of 1869 continued the then existing jurisdiction of the County Courts, and conferred upon them original jurisdiction in all actions in which the defendants lived within the county, and where the damages claimed did not exceed one thousand dollars. This sum was afterward changed to two thousand dollars.
Like the Supreme Court, the County Court now has its civil and its criminal sides. Until the adoption of the constitution of 1894, in criminal matters the county judge was assisted by two justices of ses- sions, elected by the people from among the justices of the peace in
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the county. It was in the criminal branch of this court, known as the Court of Sessions, that all minor criminal offenses were disposed of. All indictments from the grand jury, excepting for murder or some very serious felony, might be sent to it for trial from the Oyer and Terminer. By the codes of 1848 and ISfr, the methods of procedure and practice were made to conform as nearly as possible to the practice in the Supreme Court. This was done with the evident design of at . tracting litigation into these courts, thereby relieving the Supreme Court in a measure. In this purpose comparative failure resulted, however, litigants generally preferring the shield and the assistance of the broader powers of the higher court. Under the codes the judges can perform some of the duties of a justice of the Supreme Court at Chambers. The County Court has appellate jurisdiction over actions arising in Justices' Courts and, until their abolishment, Courts of Special Sessions. Appeals lay from the County Courts to the General Term until the adoption of the constitution of 1894, since which ap. peals are taken to the Appellate Division of the Supreme Court. County judges were appointed until 1847, since which time they have been elected. By the constitution of 1894, which abolished Courts of Sessions except in the city of New York, the jurisdiction of the latter courts was transferred to the County Courts.
Surrogates' Courts exist in each of the counties of the State, and are now courts of record having a seal. Their special jurisdiction is the settlement and care of estates of persons who have died either with or without a will, and of infants. The derivation of the powers and prac- tice of the Surrogate's Court in this State is from the Ecclesiastical Court of England through a part of the Colonial Council, which existed during the Dutch dominion in New Netherland. Its authority was ex- ercised in accordance with the Dutch Roman law, the custom of Am- sterdam and the law of Aasdom, the Court of Burgomasters and Schep- pens, the Court of Orphan Masters, the Mayor's Court, the Prerogative Court and the Court of Probates. The settlement of estates and the guardianship of orphans, which was at first vested in the director- general and Council of New Netherland, was transferred to the Burgomasters in 1653, and soon after to the Orphan Masters. Under colonial rule the Prerogative Court controlled all matters in relation to the probate of wills and settlement of estates. This power continued until 1692, when by act of Legislature all probates and granting of let- ters of administration were placed under the hand of the governor or
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his delegate; and two freeholders were appointed in each town to take charge of the estates of persons dying without a will. Under the duke's laws this duty had been performed by the constables, overseers and jus- tices of each town. In 1928 the governor was divested of all this power except the appointment of surrogates, and it was conferred upon the Court of Probates. Under the first constitution surrogates were named by the Council of Appointment, and under the second constitu- tion by the governor, with the approval of the Senate. The constitu- tion of 1846 abrogated the office of surrogate in all counties having less than forty thousand population, and conferred its powers and duties upon the county judge. By the Code of Civil Procedure surrogates were invested with all the powers necessary to carry out the equitable and incidental requirements of the office. The constitution also gave the Legislature authority for the election of special surrogates, who dis- charge the duties of surrogate in case of inability, or of vacancies, and exercise such other powers in special cases as provided by law.
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The constitution of 1894 made numerous changes in the character of the courts of New York State, some of which have been referred to in the preceding pages. It abolished the General Term, Circuit Courts, Courts of Oyer and Terminer, the Superior Courts of the city of New York and of Buffalo, the Court of Common Pleas for the city and county of New York, the City Court of Brooklyn, vesting their jurisdic- tion in the Supreme Court. Courts of Sessions, except in the city of New York, were also abolished. It also provided for the establish ment of an Appellate Division of the Supreme Court, to stand second to the Court of Appeals only. It directed the Legislature to divide the State into four judicial departments, and defined the Appellate Divis- ion as consisting of seven justices of the Supreme Court in the first de- partment (the county of New York), and of five justices in each of the other departments. The power of appointment to this court is vested in the governor. To the Appellate Division was transferred the jurisdiction exercised previously by the Supreme Court at its General Term, by the General Terms of the Court of Common Pleas for the city and county of New York, the Superior Court of the city of New York, the Superior Court of Buffalo and the City Court of Brooklyn, and such additional jurisdiction as may be conferred by the Legislature.
Under the act of February 12, 1796, this State was divided into seven districts, over which an assistant attorney-general was appointed by the Governor and Council of Appointment, to serve during pleas-
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ure. The office of district attorney was created April 4, 1801, the State being divided into seven districts as before, but subsequently several new distriets were formed. By a law passed in April, 1818, each county was constituted a separate district for the purpose of this office. During the period of the second constitution district attorneys were appointed by the Court of General Sessions in each county. Since then they have been elected by the people.
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The editor of this work has been requested by the publishers to pre- pare a sketch of the lives of the men who in the past have been repre- sentative members of the legal profession in Genesee county. The scope of this article does not include any lawyer now living. It is only of those whose earthly labors are ended that we are to speak. Within the limit of space assigned it will be impossible to give more than an outline of the lives of these men, many of whom have been among the foremost citizens of Genesee county. It is not claimed that mention is made of every lawyer who has practiced here, neither does this sketch include those who have pursued their studies or practiced in this county for a short time, but who have made their reputations elsewhere. In any community the members of the bar are always in a large sense public men. Many important judicial positions are necessarily filled from their ranks, while legislative and other official places are often occupied by lawyers. The bar of Genesee county forms no exception to this rule. There has never been a time when it did not inchide many men of recognized ability, and the bar as a whole has always compared favorably with that of any other county of anything like equal size. Of those whose names are here recorded only Martindale, Wakeman, Hewitt, Taggart, Peck, Glowacki, Ballard, Pringle, Bangs, Heddon, H. W. Hascall, Bissell, and Crofoot were personally known to the writer. The estimates given of the professional characteristics of the men who form the subject of this article have been derived largely from conversation with those who knew them as lawyers and citizens, and partly, of course, from such printed sketches as were available. The historical facts have been gathered from biographies found in many different places, from newspaper files, court records, recollections of old inhabitants, and in several instances from such meagre statements as are chiseled in marble in the cemetery, or are written down in not less formal phrase in the books of the surrogate's office.
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The first judge of the county was Joseph Ellicott, the same man who, as surveyor, blazed his way through the primeval forests of Western New York, and laid out the counties, towns and villages of the Holland Purchase. Mr. Ellicott was not a lawyer. He resigned the position of judge a short time after his appointment in 1803, and was succeeded by Ezra Platt. Of Judge Platt but little information is available, ex- cept that he discharged the few duties of the office until about 1812. His will is recorded in book 1 of Wills in the surrogate's office, at page 11, and is the third will entered in the county records. The first was that of Daniel Totten, recorded January 20, 1808, and the second, that of David Franklin, was recorded March 30, 1809, while the record of Judge Platt's will was made January 9, 1812, making three wills in four years.
The succeeding judges down to 1847 were John H. Jones, Isaac Wilson, John Z. Ross, William H. Tisdale, William Mitchell, Phineas L. Tracy, and Edgar C. Dibble. During the same period the surro- gates of the county had been Jeremiah R. Munson, whose name does not appear in any of the records of the office, Richard Smith, Andrew A. Ellicott, Ebenezer Mix, Harvey Putnam, Timothy Fitch, and Samuel Willett. Mr. Mix filled the office from 1821 to 1840. Under the law as it has existed since 1847 the functions of county judge and surrogate have been performed by the same official. The duties of surrogate prior to that date were few, as estates were seldom settled.
Richard Smith, whose portrait has for many years hung in the court house, over the chair occupied by the presiding judge, was born in Connecticut, February 12, 1379, and died December 31, 1859. He was a graduate of Vale College and removed to Genesee county in IS03. He was at one time a partner of Daniel B. Brown. Judge Smith sel- dom, if ever, appeared in court. It is not known that any of the other incumbents of the office up to that time were particularly prominent as lawyers, neither is much information available as to any county judge prior to Phineas L. Tracy. Judge Ross is spoken favorably of as a cit- izen and lawyer. He died October 27, 1826, at the age of forty years.
Few men have been more closely identified with the history of Gene- see county than Judge Tracy. He was born December 25, 1786, at Norwich, Conn., and graduated at Yale in 1806. He was admitted to the bar at Albany in 1811, and removed to Genesee county in 1813. For many years he had an extensive and lucrative practice, and was a man of marked force and ability. He was elected to Congress in 1897
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and again in 1829, and in 1841 was appointed " first judge" of the county by William H. Seward, then governor. After his retirement from the bench in 1856 he practiced law but little. He was for many years a member of the vestry of St. James's Church. His death occurred December 22, 18:6. An obituary published at that time says: "He would have been 90 years old on Christmas day. A good and just man, full of years and ripe for the harvest, has gone to his peace- ful rest."
The next county judge was Edgar C. Dibble, who held the office during the year 1846, and again from 1852 to 1856. Judge Dibble was a fairly well read lawyer, a man of good character, and he discharged the duties of his office satisfactorily. He died February 28, 1862, at the age of fifty-seven years. During the period of his professional career he was at different times in partnership with Timothy Fitch, John H. Martindale and Martin F. Robertson.
Judge Dibble was succeeded by Horace U. Soper, who served four years. Judge Soper is said to have made a good record upon the bench, but was never especially prominent as a practitioner. He was an amiable and agreeable gentleman, of attractive manners and large general information. He died January 15, 1878, at the age of seventy- two years, leaving no descendants.
Joshua L. Brown became county judge and surrogate in 1856 and held the office four years. He died at the age of forty-eight, June 19, 1860, a few months after the expiration of his official term, at St. Louis, Mo. Judge Brown was a good citizen, and a lawyer of exten- sive learning and decided ability. He is said to have possessed less aptitude for the trial of causes before a jury than for the other duties of his profession, although he tried a large number of cases. Before the court, or as a counselor in his office, he was a strong, safe man. A member of the bar now living tells how he had a habit during the trial of criminal canses, where, as often occurs, the defense was conducted by some young man designated by the court, of taking a seat near the junior thus assigned, when, as the trial proceeded, he would draw his chair up and make suggestions. After a little he would be on his feet arguing a law point, and in one case at the close of the evidence he pro- ceeded at once to sum up to the jury, much to the discomfiture of the young lawyer who had prepared, with great care, an address which was to make his reputation. Judge Brown was for many years a partner of Maj. Henry I. Glowacki. The firm of Brown & Glowacki enjoyed
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for many years an extensive and Incrative practice, which was at its full height at the time of Judge Brown's death.
Moses Taggart, who succeeded Judge Brown, died at his home in Batavia, February 17, 1883, at the ripe age of eighty two years. He was the Nestor of our bar, having been in active and continuous practice for about fifty-five years. During his eventful life he had endeared himself to the profession, of which he was an honored member, and was universally respected in the community where he had so long resided. As a lawyer he was thoroughly grounded in the elementary princi. ples of legal science. Throughout his career he was esteemed for his good judgment, safe counsel, and extensive research, rather than for any special ability as a trial lawyer. He had little liking or aptitude for the work of an advocate. A strong, helpful friend of young men, he had witnessed the career of every man at the bar at the time of his death, and it is safe to say that every one of the number felt a sin- cere attachment for the venerable and honored father of the fraternity. Judge Taggart was born at Colerain, Mass., August 21, 1199. At the age of eighteen years he left his native town to find a home in the newer region of Western New York, and traveled all the way to Byron on foot. His legal studies were pursued in the office of Phineas L. Tracy. Upon his admission to the bar he became a partner of Albert Smith, who at the time was an able and noted practitioner. At dif. ferent periods of his life he was in partnership with Daniel H. Chand- ler, Charles Henshaw, Seth Wakeman, and during the latter years of his life with his son-in-law, W. Harris Day. He was a member of the Con- stitutional Convention of 1846, and in 1851 was appointed justice of the Supreme Court to fill a vacancy caused by the death of Judge Sill. This position he filled until the close of 1853, and during the last year of his service became, under the then existing provisions of law, a mem- ber of the Court of Appeals. In 1860 he was elected county judge and surrogate of this county, and filled the office acceptably for two terms of four years each. In 18?1 Judge Taggart was appointed postmaster of Batavia, which position he held for about four years. He main- tained his excellent health and vigorous bearing almost to the end of his life, while his intellectual powers remained unimpaired to the last.
Charles Henshaw was born at Java, Wyoming county, and studied law with Gen. L. W. Thayer at Warsaw. He was elected county judge and surrogate in 1868, and died in office September 18, 1870, at the age of forty-eight years. A man of sterling worth, honest through and
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through, he possessed qualifications which rendered him in some re- spects the most remarkable lawyer who has ever practiced at our bar. It is doubtful if any other lawyer of this county has acquired so exten- sive a knowledge of the law itself. His memory was unfailing, and his familiarity with both elementary law and judicial decisions was vast and perfectly at his command. He could always say " on such a book and page you will find the law." He disregarded all forms, and fash- ioned his papers briefly and accurately to suit himself. Unwilling or unable to try a case before a jury, he seldom if ever appeared in this capacity. His judicial career, upon which he had fairly entered, gave great promise, and had he lived Charles Henshaw would have filled higher positions upon the bench.
Among the members of the legal profession who have practiced in Le Roy there may be mentioned Jacob Bartow, Alfred F. Bartow and Charles Bartow, his sons, Seth M. Gates, Charles Danforth, Samuel Skinner, Perrin M. Smith, and Augustus P. Hascall.
Jacob Bartow, although never distinguished as a lawyer, was a man of large attainments and rare scholarly tastes. He was a law student with Aaron Burr. He died about 1845. His son, Alfred F. Bartow, studied law with Heman J. Redfield, and later became his partner. He removed west and died several years ago in Chicago. Mr. Bartow was an excellent practical business lawyer, and was a prominent and respected citizen of Le Roy. He was for many years a member of the vestry of St. Mark's church, and took much interest in the work of that society. Charles Bartow studied law with A. P. Hascall, and during the time he practiced in Le Roy was in partnership with Hiram W. Hascall, and afterwards with John R. Olmsted. He removed to New York, where he died. Augustus P. Hascall was for a long time an hon- ored and prominent citizen of Le Roy. He served as presidential elector in 1848, and was a representative in the Thirty-second Congress. He died June 26, 1822, aged about seventy-six years. Charles Dan- forth was a graduate of Williams College, and was at one time judge of Common Pleas in this county. He was a good lawyer and gave sat- isfaction as a judge. Samuel Skinner was one of the earliest lawyers in Le Roy, and is said to have been an able, well-read member of the bar. He was a graduate of Williams College, and was possessed of scholarly tastes. He died in Le Roy about the year 1853. Perrin M. Smith studied law with Mr. Redfield and became a partner of Mr. Skin - ner. He removed from Le Roy to the West, where he died many years
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ago. Seth M. Gates practiced law in Le Roy for many years, and was an able man. He was proficient alike as an office lawyer and in the trial and argument of cases. He was elected to Congress in 1839, and soon after completing his term of service removed to Warsaw, where he died about the year 1876. During his residence in Le Roy he was ten years associated in business with David R. Bacon. Mr. Bacon was at one time a law partner of James Summerfield, but upon becoming connected with manufacturing interests several years ago retired from active practice of his profession. He died November 1, 1890.
Among the more prominent of the early Batavia lawyers may be mentioned Albert Smith, who in his day had a wide reputation for ex- tensive legal knowledge, and for his power as an advocate. He was a representative of the Twenty eighth and Twenty-ninth Congresses from this district, and served in the Assembly in 1842. At different times he was associated as a partner with the ablest lawyers of the county. Mr. Smith removed west soon after his service in the State Legislature, and has long since been dead.
Daniel B. Brown was born October 18, 1580, and died July 7, 1822, leaving, it is said, no descendants or near kindred. He is reputed to have been one of the most brilliant advocates who ever practiced in this county. He was somewhat intemperate in habits and erratic in dispo- sition, and consequently never won for himself the position which he otherwise would have gained. It is hardly probable that he is prac- ticing law in the other world, yet his tombstone bears the inscription, copied quite likely from his sign used while living: " Daniel B. Brown, Attorney and Counsellor at Law."
Levi Rumsey was a prominent citizen of this county at an early day, and was intimately concerned in that class of law business connected with the formative period of our history. But little information con- . cerning him is now available, yet an old citizen of Batavia well qual- ified to know and judge says of him, that in the prime of life he was not only the foremost lawyer of this county, but of Western New York. He was unquestionably a man of high character and of decided ability. Mr. Rumsey was district attorney of this county from 1829 to 1834. He was born in Connecticut, December 8, 1716, and died December 29, 1833.
Ethan B. Allen was among the most prominent of the early lawyers of the county, and was a man of high character and unusual attainments. In personal bearing he was "a gentleman of the old school." He was
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born in Columbia county, October 21, 1787, and died April 19, 1835. He was the father-in-law of that distinguished advocate and jurist, Isaac A. Verplanck. Mr. Allen was a State senator from this district from 1826 to 1830. Upon his tombstone are inscribed the words " intelligent, virtuous, and affectionate, he fulfilled the various duties of a legislator, a citizen, and a friend."
Daniel H. Chandler, who was for many years a prominent citizen of this county, was born in 1795, and died March 29, 1864, at Madison, Wis., where he had removed in 1842. He was district attorney of this county from 1834 to 1838. Mr. Chandler was an able and thoroughly equipped lawyer, combining in an unusual degree the characteristics of advocate and counselor. He was a partner at one time of Senator Ethan B. Allen, and later with Hon. Moses Taggart. Mr. Chandler is well remembered by quite a number of our older residents, all of whom attest his worth as a man and his talents as a lawyer. His ability as a trial lawyer brought him actively into the management of many notable cases, where he won for himself high commendation from bench, bar and clients. He was the father of the late Rear-Admiral Ralph Chand- ler, of the United States navy. After his removal to Wisconsin Mr. Chandler acquired a large practice, and fully maintained the reputa- tion he had gained here.
George W. Lay, the fourth son of John Lay, esq., was born at Cats. kill, N. Y., July 22, 1798. He graduated at Hamilton College, N. Y., in the class of 181 ;. He came to Batavia the same year and studied law in the office of Hon. Phineas L. Tracy. After his admission to the bar he became a law partner of Mr. Tracy. The firm of Tracy & Lay did and extensive law business in the territory now embracing the counties of Genesee, Wyoming and Orleans, and enjoyed a wide rep- utation and extensive acquaintance throughout the State. At that time the Genesee bar was composed of lawyers of marked ability and talent. John B. Skinner, Daniel II. Chandler, Ethan B. Allen, Heman J. Redfield, Daniel B. Brown, Moses Taggart, Albert Smith, and many others attended the courts and were in full practice. Mr. Lay was a close practitioner under the old system, and was noted for his skill and dexterity as a pleader. The partnership ended in 1832. Mr. Lay was at that time elected to Congress. He then became a partner with James G. Merrill and Horace U. Soper. In 1840 he was elected to the Assembly of the State of New York, and served as chairman of the canal committee. His canal report was characterized as a document of
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