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 11
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be tried at that term. This is said to be the only instance in this county where 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 Havre. After a close search, twelve jurors were found acceptable to both the people and the pris oner. The evidence of the people showed by Job 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
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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, was 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 health 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 noon 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 then 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 ægis of the British flag.
The history of our criminal courts would not be
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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 O'Rourke, 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. The 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 licenseEto a saloon keeper was in violation of the sixth section of the excise law of 1857. Upon 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 Ger 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 father's talent for legal author- ship, and has compiled a " Digest of Criminal Decisions " in our state courts from 1777 to 1870. It was published by W. C Little of Albany. It was received by the bar with great favor as a work of exceedingly high merit and worth.
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ruling precedent to guide the action of the courts in the third department
During the period embraced in this chapter, Sheriff Thomas Low had been succeeded by Theo- 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 prime of life and 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 effect 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 thirty-first of the ensuing December, and any vacancy shall be filled by an election for a full term. Under the
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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 hearing 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 superseded 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-
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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 o; damages claimed is under $500 ; 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 counties 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 applicants have from time to time been adopted and modified by the General Terms. From that time, then, the
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roll of attorneys of a particular county became merged in the bar of the state.
The first civil action of importance tried 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 others. Isaac W. 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 plaintiff's as riparian owners had no right to use the surplus waters of the Fort Miller dam, which had 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 therein. That the state having built the damn it could not be deemed a nuisance at law. That the plaintiffs being riparian proprietors below the dam
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were entitled to the use of its surplus waters, and were entitled to damages. The jury rendered a verdict for $150 ind six cents costs. This inter- esting action, involving many intricate questions of riparian proprietorship, is reported at length in 9 Barbour 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 recover 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. Bullard 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 Voorlees 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
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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 necessity for resorting to such shrewd prac- tice, which, if justifiable 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 matrimonii affected the right of a wife's dower interest in the estate of her husband during her coverture. The suit was brought by Edward F. Bullard 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
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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, 1848, before Justice Cady, 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 New York Reports 95.
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,
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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 Young that he should ocenpy 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 Rensselaer & 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
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remembered by Saratogians as the "Plunket war") 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 put Lewis off at a point about a hun- dred 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- angh, 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
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obtain a surreptitious ride into consideration, in mitigation of damages. The jury found a verdict for the plaintiff for $65 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 the annals of American jurisprudence, 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 1834, he married Margaret Sheridan. That she lived with him until
9
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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 John Emperor 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 should be conveyed to him in trust for her in payment for her 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, 'which 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 weeks 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
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Waldron by Miller & 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 ont from inheriting it by the law, which placed the bar sinister upon their paternity.
The 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 which has never been fully settled by an appeal to the court of last resort. Messrs. Perry and Scott had ben appointed loan commissioners by Gov. Bouck, with the consent of the senate, in 1843, 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. The new commissioners were
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represented by Abel Meeker and James B. Mc- Kean, and the old board by George G. Scott, in person. The jury found that Carpenter and Snow were not duly appointed according 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, 1849. 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. Chatfield, 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 offices. 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. .
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