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 21
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a pun better than he, and his practice was brilliant ly illustrated by his efforts in the humorous vein. But it annoyed him greatly to have a wrong con- struction placed on his language. On the occasion alluded to, he began his closing address with these words : "May it please the court, and you, gentle- men of the jury ; I congratulate you that after days of patient toil this dam suit is about concluded." The chance adjective, properly used in this connec- tion, was taken in the profane acceptance by the bar, and the result was that Judge Hay was so con fused that it was some moments before he could gather the threads of his argument.
JUSTICE JAMES AND THE IRISHMAN.
Among the judges of this district who have pre- sided in our courts none will be remembered with a higher feeling of respect and reverence than Hon. A. B. James of Ogdensburgh. At one of his terms, held shortly after his accession to the bench, a son of the Emerald Isle was arraigned before him charged with selling ardent spirits contrary to the "prohibition " statute of 1855. He plead guilty ; and, in response to the question of " what do you have to say why the sentence of the law should not be pronounced upon you," replied : "Yer Honor, I intinded to obey the law. Whin it wint into effect I had jist a half barrel of whiskey in my sthore. I wheeled it behint the cellar door, and jist lift it there. And, ye see, yer Honor, when my frinds came in of avenin' to have a bit of a talk,
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they'd jist help themselves unbeknownst to me, and thin lave their money on the counter. Thin I put the money in the drawer yer Honor, for yer Honor wouldn't have me waste it, I know ye wouldn't." "I see Michael" said Judge James, " you stand sorely in need of protection from your friends, or they will ruin you. I will order that you be kept in the county jail for two months, and the sheriff will see that they do not plague you there. When you get out if they do not keep away from you just come and tell me, when I come here again, and I will see that they let you alone for one year."
MORRIS ENGLISH ON THE CIDER QUESTION.
At another term, one Timothy Crowley had been complained of for selling liquor without license at East Line. One of his steady customers was the late Morris English of Ballston. The latter was summoned before the grand jury to furnish evi- denence against his friend Crowley. It went against the grain, however, and he refused to tell whether he had ever drank any whiskey, etc., in Crowley's place. The district attorney sent him before Judge Potter, to be dealt with for contumacy. "Certainly a man of your apparent intelligence, Mr. English," said the judge gravely, "ought to be able to tell whether he ever drank any rum, whiskey, gin or spirits in a certain place." "Howld a bit yer Honor," replied Morris, with a twinkle of his black eyes, "ef yer Honor and meself were to sqnaze the
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juice of a peck of apples into a pitcher, I would know thin we had cider. But, if yer Honor squazed thim by yerself, how the divil would I be knowin' what ye had put into the pitcher." This attempt to convince the court that the average toper could not tell the nature of his potations cost Morris his personal liberty for two days, while confined on an order for contempt of court.
TAYLER LEWIS' LOVE FOR HIS OLD SCHOOL HOME.
Allusion was made in chapter 12, to the fact that Prof. Tayler Lewis of Union college, was in his early manhood an active member of our county bar. He was a son of Captain Samuel Lewis, a revolutionary veteran, who settled in the town of Northumberland. He was named in honor of Gov. John Tayler, and is very strenuous that the right orthography of his Christian name should be used. The following beautiful trait of him was told the author by one of the venerable professor's warmest friends. He makes it a matter of duty to visit Fort Miller once a year, and to carry with him a copy of the old spelling book from which he learned to read. Said he to this friend : "I go over to the site of the old school house and sit down where the front seat used to be placed. I then open my spell- ing book and get up and commence to read : ‘ No- man-may-put-off-the-law-of-God.'"' It is this rev- erence for the early associations of youth that has preserved the cheerful temper of the veteran scholar while suffering from the almost total loss of hear-
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ing, but which deprivation has not impaired his usefulness as an instructor or author. While sea- sons roll with continued sunrise and sunset, Christ- ians will bless the name of the author of the "Six days of the Creation," as that of the scholar who interposed an impassable barrier to the inroads of infidel materialistics on the authenticity and con- sistency of the Mosaic cosmogony. He is a brother of the late Gen. Samuel Lewis of Northumberland, who was better known to the citizens of this county than the distinguished professor, by reason of his long and useful citizenship in our midst.
· A DEFENDANT'S OPINION OF JUDGE CADY.
The last Circuit held by Daniel Cady in our county was that of February, 1854. He was then upwards of eighty years of age. Among the suits trien at that term was that brought by Ezekiel C. Little against Samuel A. House and Alexander C. Morrison. The res gesta of this action was some- what similar to that of Fullerton against Viall et al., ante., and was brought by Little, as a judg- ment creditor of the defunct foundry firm of Viall, House & Mann of Mechanicville, to set aside, as fraudulent, a mortgage given by House to his brother-in-law, Morrison, on his residence and real estate in Mechanicville. The mortgage claim as testified by Morrison arose from the sale of fast horses and other flash property by him to House, and the mortgage was given as security for pay- ment. The testimony was overwhelming in show-
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ing the fraudulent nature of the mortgage, and that it was given to attempt to secure the property from the creditors of the firm. Judge Cady was very severe upon House and Morrison in his charge to the jury .. As he was dealing out in unstinted terms his cool, logical deductions drawn from the testi- mony, Morrison beckoned to his counsel, Hon. A. B. Olin, to come out in the corridor. As the latter joined him, Morrison asked in a loud whisper : "Don't you think the o'd judge has outlived his usefulness ?" The jury thought otherwise, and Gen. Bullard had the satisfaction of recovering a portion of his clients money from House's estate.
A FRAUD IN LAW IS A FRAUD IN FACT.
.Until a recent decision of our Court of Appeals it was a mooted question both in English and Ameri- can courtswhether a fraud in law would vitiate a sale the same as a fraud in fact. The case in question being unparalleled on either side of the water in the annals of Anglo-Saxon jurisprudence, it deserves notice in the history of the bench and bar whence it emanated. In 1850, Calvin Dake of Fort Edward was indebted to Wilson & Grimwood, merchants, of Albany, to an amount exceeding $600, and wa then insolvent. To secure their payment, he pro- cured his brother, Ansel Durkee, to assign a mort- gage of $600 which the latter held on his property. Ar sel had no other property, and was a judgment debtor of Conrad Cramer of Northumberland in the sum of $68. Under proceedings supplementary to
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execution, William T. Seymour was appointed receiver of Ansel's estate, and he demanded that Wilson & Grimwood should pay the amount of Cramer's debt from the proceeds of the mortgage ; which they refused to do. Seymour then brought suit in the Supreme Court to recover. It was re- ferred to and tried before Hon. George G. Scott, who gave judgment for the plaintiff ; holding that a transfer by a party of all his property, leaving his just debts unpaid, was a fraud in law, even iť the assignor did not actually intend to commit a fraud in fact. On a motion at General Term for a newtrial, on the first argument the court was equally divided. It was again argued when Judge Willard was absent, and Judges Hand and Cady (Hand writ- ing the opinion) decided against the plaintiff on the merits, holding that a receiver could not attack a transfer for fraud. This opinion may be found in 16 Barbour. The case was retried before Judge Scott and, in the meantime the Court of Appeals having held that a receiver could attack a transfer
for fraud, he again found for the plaintiff. This judgment was affirmed at General Term, but the Court of Appeals sent it back for a new trial. Judge Mitchell wrote an opinion which concurred with that of Justice Hand. It was then referred to Chancellor Walworth and tried before him. Under the opinion of Judge Mitchell (supposing it was that of a major- ity of the court) he found against the plaintiff, but stated it to be against his own judgment. It was now the plaintiff's turn to appeal, and the General
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Term sided against him. About this time the opin- ion of the majority of the Court of Appeals was published. (See 4 Kernan 567.) It was written by Judge Denio. It now appeared that the court had granted a new trial not on the merits, but be- cause a certain question was excluded. On the second argument before the Court of Appeals, that tribunal decided the merits in favor of the plaintiff and settled the law that a transfer may be fraudu- lent in law, even if no wrong is intended. (See 19 New York 417.) The case was now tried the fourth time before Judge Bockes, who gave judgment for the plaintiff. The defendants then took the case again to the General Term and Court of Appeals on purely technical grounds, and final judgment was awarded to the plaintiff. It thus had four trials in the lower court, five arguments at General Term and three hearings in the Court of Appeals. The defendants were represented at first by Halsey R. Wing of Glen's Falls, then by Judge Rosekrans, next by Nicholas Hill, jr., and finally by William L. Learned of Albany, now presiding justice of the third department. General Bullard managed the plaintiff"'s case throughout. It was a great triumph for him. Indeed, a prominent jurist said : "Bul- lard has settled more points of law than any other man at the bar of this state." It will be remem- bered that the amount involved in the action was $58. The taxable costs, alone, which the defendant paid, amounted to $1,200. The total expenses of both parties must have exceeded $2,500.
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WHERE DID THE WITNESS GO TO ?
At one of the Circuits held since the adoption of the constitution of 1846, in one of the numerous actions where the locus inquo of a boundary line was the difficult kernel to extract from the legal nut, the plaintiff was called as a witness in his own behalf, and near the close of his testimony the following colloquy occurred :
Counsel for plaintiff -"Did you notify the de- fendant of the day when the survey was to be made ?"
Witness-" Yes."
Counsel for plaintiff-" What did he say in reply ?"
Witness-He told me to go to the d-1."
Judge (interrupting)-"Did you go ?"
Witness-" I am here, your Honor."
Judge (sharply)-"Call the next witness."
MITCHELL SANFORD'S POETIC FIGURE OF SPEECH.
The suit of Abba M. Stewart against the Sara- toga & Washington railroad company which was tried at the May Circuit, 1857, before Justice Rose- krans attracted much attention at the time. The plaintiff, ¿ daughter of Gen. John Stewart of Wat- erford, was injured seriously by an accident on the defendant's road, near Ganzevoort. She was noted for her great personal beauty previous to the accident, and was married to Mr. Benjamin C. Brown before the trial of the action. The plain - tiff's attorneys were I. C. Ormsby and Gen. Bul-
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lard, with Hon. John Cramer of Waterford, and Mitchell Sanford of Hudson, associated with them. Charles S. Lester, William A. Beach and Judge John Willard appeared for the railroad. San- ford's address to the jury carried them completely with him. Allowing to the plaintiff before the accident he indulged in the following flight : " Man never chiseled in marble such a perfect form as God Almighty made in hers." The jury reduced this poetic thought to the rude prose of a verdict for the plaintiff for $4.000 and costs of the action.
VARNEY'S DOG SUIT.
In an action brought by a plaintiff to recover the value of a dog alleged to have been poisoned by the defendant, Counselor Lewis Varney submitted the following points on a motion for a nonsuit, after the plaintiff's evidence had been received : "First, it appears that the plaintiff had given the dog away and was not its owner, and therefore is not entitled to recover. Second, the value of the property has not been proved. Third, no post mortem was held, and there was no proof that the animal was poisoned. Fourth, it is not shown that the dog tax had been paid in obedience to the statute of 1862, known as Judge Corey's dog law." Without awaiting an opinion of the court as to the merits of the third point, his opponent deemed the others fatal and withdrew his action.
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JUDGE THOMPSON AND THE VETERANS.
At the August term of Common Pleas in 1832, over a hundred veterans of the revolution, " vener- erable relics handed down to us from a former gen- eration," residents of this county gathered to pro- cure the certificates of identity from the court whi ;h would entitle them to the reward for their patriotic services of half a century before. Naturally, the the aged veterans, halt, lame and decrepid, either from honorable wounds or the palsying hand of Time, were somewhat talkative as they met their old comrades, and the din of their voices as they clustered in front of the clerk's desk, each anxious to be the first to procure his "papers," was such as to completely stop the proceedings of the court. At this moment Judge James Thompson thus ad- dressed them from the bench :
Gentlemen, you are here claiming to have been soldiers, and to have performed mil:tary service in the revolutionary war. Men who have been good soldiers retain the military habits acquired in the fieldl to the end of their lives. Your evident lack of disci- pline manifested here furnishes strong evidence to the court that there are imposters in your band. The court will bint to you that if you wish to be received with favor, you must exhibit tokens of soldierly discipline. Right about face! Forward, March !
The effect was electrical. The veterans executed the manœuvre as one man, marched to seats, saluted the bench and sat down ; giving the highest evidence that they were, indeed, the war-worn and thorough- ly disciplined soldiers who had encountered defeat, suffered in camps and finally triumphed under the starry ensign of their country's liberty.
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BIRTHPLACE OF HON. JOHN CRAMER.
Half a century ago one of the most energetic cit- izens, leading lawyers and promising public men of this county was Hon. John Cramer of Waterford. The author is indebted to Gen. Bullard for the fol- lowing incident attending Mr. Cramer's first ap- pearance on the stage of life, which is probably new to most of my readers and is of sufficient interest to be here related. His father, Conrad Cramer, was one of the first settlers in the Saratoga patent, living about three miles south west of the mouth of Fish creek. In May, 1779, on the approach of the band led by Thomas Lovelace, (on the raid in which he was captured and hung, December 14, ensuing, ) Mr. Cramer packed his family and movables in a wagon and started for Halfmoon point. They reached Simon's tavern (which stood near the river a few rods north of the present line dividing Saratoga from Stillwater, near Wilbur's basin) where the excitement overcome his wife and prematurely brought on the pangs of child birth. The little hotel was crowded with refugees, and the Cramer family could not obtain admittance. At this place and under these circumstances on the 17th of that May, the infant, who subsequently became Hon. John Cramer, state senator and representative in congress, was born. So frail, apparently, was his hold on life that it was thought to be impossible to induce respiration. He weighed less than four pounds, but a maiden aunt determined to save the little waif thus cast upon the sea of time-and suc-
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ceeded. He lived, a tall, broad chested vigorous man, far beyond the Psalmist's limit to the dawn o: the centennial of that liberty with whose birth his was so strangely contemporaneous, and died at his residence in the village of Waterford, June 1, 1870, in the 92d year of his age. He graduated at Union college in 1801, in the fifth class of that hon- ored institution of learning. He was member of assembly in 1806, 1811 and 1842; state senator in 1823.4-5 ; member of the constitutional convention of 1821, representative in congress from 1833 to 1837, and was appointed a master in chancery in 1805. The tory Lovelace was a a descendant of the colon- · ial governor, Lord Lovelace, who succeeded Lord Cornbury, December 18, 1708.
ANECDOTE OF HON. HENRY SMITH.
Ex-speaker Henry Smith of Albany is an attorney and counselor who frequently appears in our courts. Being gifted with the faculty of giving and taking a joke, quick at repartee, and eloquent withal, his appearance in a trial in our court room is the signal for a large audience to assemble. The following anecdote, in which he bears a conspicuous part, has found it way into print. At an Albany Circuit - in 1870, he and Hon. Lyman Tremain were oppos- ing counsel in a breach of promise case. The plain- tiff was a beautiful young lady of delicate organi- zation, and when she came to be cross examined by Mr. Smith she quailed and finally fell from her seat in a swoon. The sympathies of all the spec-
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tators, jury included, were at once enlisted in her behalf, and Mr. Smith saw that he must do some- thing to stem the tide. So when the next witness (a calm appearing, motherly old lady) was turned to him for cross examination by Mr. Tremain, he said : "Madam, you saw the plaintiff faint awhile ago ?" " Yes, sir." " You saw her face that it
didn't turn pale ?" " Yes, sir." " Well, people turn pale when they faint, don't they ?" "No, not always." "Did you ever hear of a case of fainting where the party did not turn pale ?" "Yes, sir." "Did you ever see such a case ?" "Yes, sir." "When, and where ?" "In this city." "Who was it ?" demanded Mr. Smith. "It was a negro,"
coolly responded the witness. The plaintiff won the case, it is probably needless to add. Equally fatal to his case was another desperate attempt that he made in trying an indictment in this county, a few years since. Two of the principal witnesses for the opposite side were a butcher aud a life in- surance agent. To break the force of their testimony he labored long and strenuously. He said that the bloody occupation of a butcher frequently so hard- ened his feelings and obliterated the tender senti. ments from his mind that he became callous and unable to discern properly between right and wrong. As to the insurance agent, who in his testimony acknowledged that he had followed all the occupa- tions which the poet Joel Barlow said the Yankee would do to achieve wealth at forty, except preach- ing and tin peddling, he was patricularly severe,
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closing with this declaration : "When a man. has followed every occupation that ingenuity has de- vised to avoid mental and manual labor, and failed to secure a livelihood, he is just fitted for a life insurance agent." People who have had their pa- tience drilled to the Laurentian formation by these adhesive agents will heartily agree with him. But his allusions we unfortunately ill timed, for there were two agents sitting on the bench, and three butchers in the jury box. The natural result was a disagreement. Whether the jury stood nine to three is a secret, but if a jury was ever excusable for disagreeing that was the one.
A SECRET EXPOSED.
For several years there has been a chronic charge that the constables sworn to attend juries in their deliberations were "leaky vessels;" because the secret of how the jury stood on different ballots, if they remained out an unusual length of time, was sure to be known to the public. But the charge was illfounded. The court house itself is the tell- tale. Last spring, when the jury in the Dr. T. E. Allen matter went to their room, the author was engaged in the law library room adjoining. Soon voices were heard through the stovepipe hole in the partition wall, and the result of that trial was known to those in the library twenty two hours before it was officially announced by the foreman of the jury, A. P. Blood, to the court. The secret, hitherto known only to a few, was thus explained
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and the credit of the constabulary force remains unimpeached.
MAXWELL'S COLORED JURY.
The first, and so far as known, the only jury composed solely of colored men ever impanneled in the state was sworn by a member of our county bar, acting in the capacity of a justice of the peace of the town of Milton, long before the fifteenth amendment was thought of, or Chief Justice Taney had, erroneously, been charged with holding that " negroes have no rights which white men are bound to respect." About thirty years ago, Sarah Gun- day, an aged colored crone living at the county seat, declared on oath before Justice Maxwell that "Sure to gracious," Roxana Williams, a frail Ethi- opian damsel, "had done gone and stolen. her shawl." A warrant for the arrest of the light fin- gered Roxana was issued and given to John B. McLean, the present deputy county clerk, but then a constable, to serve. The culprit was arrested and arraigned. Her counsel demanded a trial by her peers. A venire was issued and McLean started for the "peers." He found them in the persons of Peter Wentworth, Charles Johnson, John M. Nel son, Austin White and eight other "sunburnt" citizens. With them he appeared at the justice's door, and, it being a hot day in July, the latter instantly adjourned court to Ford's grove, in the east part of the village. The court was duly organ- ized, the justice sitting on a stump and the " chosen
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six, big with destiny," on a fallen tree. The evi- dence was taken, the counsel summed the matter, and the court delivered a most lucid charge. The constable was sworn and retired with his dusky charge to a secluded part of the grove Soon he yas seen returning, followed in Indian file by the jury. To the usual question Peter Wentworth, the · foreman, drew up his tall form, adjusted his "specs " and responded : "We find the prisoner not guilty, but Roxana must return Aunt Sarah's shawl."
LEGAL CHIROGRAPHY.
Most gentlemen who are invested with the degree of attorney and counselor soon afterwards attain the art of executing specimens of chirography which are peculiar to their learned profession. Whether it is a following of a custom "to the con- rary of which the mind of man runneth not ;" or, whether they seek to write a hand combining all the flowing outlines of the ancient Hebrew, the acute angles of the "heathen Chinee " and the uncertain twists of the modern Arabic is a mystery as deep as the Sphinx. Certain it is that with few excep- tion's no class of persons are guilty of causing so many infractions of the third commandment on the part of printers as the legal fraternity, unless it be the reverend clergy, whose illegible tangles prove quite often a cypher to which, like the Mexican hieroglyphics, no key of interpretation can be found. . A well known son of this county, who has
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achieved high fame at the bar, says that he writes three hands : "One that anyone can read, by study- ing it ; another that he can read himself, after deep deliberation; and a third that the d-I cannot read." The author once saw him at a Circuit hand up to Judge Theodore Miller, who was presiding, his minutes of evidence with a request that his Honor would decipher them at his leisure and consider them as a part of his argument on the mooted point. The butt of the joke lay in the fact that Judge Miller is allowed all around to be the cham- pion "crooked " chirographer of the bench and bar of the whole state.
It used to be related of Judge George Palmer of Stillwater that he once wrote a sharp dunning letter for a client to a slow debtor. He received it and was unable to translate it, or even to tell its origin. Going to Stillwater, a few days later, he took the "puzzle" along, thinking that probably Judge Palmer could explain the riddle. The latter under- took the task and after wrestling with the "pot- hooks" a moment said: "It's of no use, all the fiends in Hades could not read that," and impatiently turned over the page, where his own bold signature, "Geo. Palmer," confronted him. All at once it was clear as noonday, and the poor debtor regretted that he had not left the mystery unsolved.
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