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 6
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The March term, 1847, was the last held under the old constitution. First judge Thomas J. Mar- vin with judges W. L. F. Warren, John Gilchrist and Lewis Stone sat on the bench. Thomas Low was sheriff ; James W. Horton, clerk ; and Hiram Boss, crier. The most important case tried at that term was the indictment against Thomas B. Thomp- son, Joseph Bitely, Sanford Olmstead, Levi Olms- tead, Jacob Wallace, John Doty John C. Fullerton, John Vanderwerken and David DeGarmo for tear- ing down the Fort Miller state dam across the Hud- son river. The defendants were farmers owning the fee simple of lands in the town of Northumberland which they claimed had been flooded by the state contrary to the well known legal maxim that "private property cannot be converted to the pub- lic use without due compensation." In the course they took under the cover of that principle they acted in accordance with the advice of Judge Hay. At the trial the state was represented by Hon. John Van Buren, attorney general, and District Attor- ney Beach. The defense was conducted by JJudge Hay and John K. Porter. The former was par- ticularly severe in his address to the jury upon
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what he termed the "Fort Miller canal ring," who had "inported Prince John to aid William A. Beach in the warfare they were waging against the honest yeomanry of Northumberland." The jury found a verdict of acquittal.
In addition to the other judges mentioned who sat in the Court of Sessions were Seymour St. John of Providence and Joshua Mandeville of Water- ford. In the clerk's desk had sat successively Alphens Goodrich, Archibald Smith, Horace Good- rich and James W. Horton. John Dunning had been succeeded as sheriff by John R. Mott, John Dunning, Lyman B. Langworthy, John Dunning, John Vernam, Joseph Jennings, Samuel Freeman, Robert Spier, Isaac Frink, and Thomas Low ; and as jailor by Chester Stebbins, Thomas Low, Row- land A. Wright and Philip H. McOmber, Major Buel, the old crier, had been followed in that "old publicfunctionary" line by Nathaniel Stewart and Hiram Boss. Thus closed the criminal court records of this county under the old system.
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CHAPTER VIII. THE COURT OF COMMON PLEAS.
The Common Pleas as it existed in the state under the constitutions of 1777 and 1821, was in all essen- tial elements the successor of the original colonial court of the sanie name established in New York by the order of the governor and council May 15, 1689. Besides the Common Law jurisdiction inherent in it as a court of the realm, which was recognized by the state constitutions before mentioned ; it had statutory authority confided to it by successive leg- islatures until its scope embraced power to try local and transitory actions wherein the amount sought to be recovered did not exceed a certain sum named in the statute, which was fixed by different legisla- tures at various sums ; to hear appeals from jus- tices' courts and to grant new trials ; to have the custody of insolvent debtors, and to grant release to such insolvents ; to hear and determine suits in partition of lands ; to issue permits for ferriages ; to have the custody of the persons and estates of lunatics ; to try and determine suits in ejectment, and such other jurisdiction, either original or on appeal from the court below, as from time to time was confided to it by the legislature in their wis- dom, until it became so burdened that it was
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unequal to its task, and the difficulty to get a hear- ing at its bar was such as to apply to it throughout the state the witty epigram applied to that of our county at a certain period by the late Horatio Buel of Glen's Falls :
"The sloth is slow, the snail is slow ; They dearly love their ease : But the slowest thing on all Gods's earth Is the Saratoga Common Pleas."
The first term of this court held in the new court house convened August 24, 1819, with First judge James Thompson and judges Abraham Moe, Salmon Child and John Prior on the bench. At the first term the court. ordered that two solitary cells be prepared in the goal for the reception of convicts who may be sentenced to punishment therein. They also took measures to alleviate the woes of those unfortunate poor debtors who were consigned to the county jail because they were guilty of not having enough of this world's goods to satisfy the claims of their creditors. They fixed the limits within which this class might secure labor to sup- port themselves and families, and woe to them and their baïlors if they wandered beyond the stated "metes and bounds." The "limits" were enlarged at different terms until in August, 1829 it was "ordered that the jail limits for this county be altered and established according to the boundaries and surveys made by James Scott, and that as soon as the said "James Scott makes a description and map thereof and files the same in the clerk's office
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of this county the said jail limits shall take effect." They were accordingly filed August 29, 1829, and remain to this day as then established. The "limits" are as follows :
"Beginning on the north line of the town of Ballston at the southeast corner of land belonging to Stephen Smith and runs thence north fifty-four chains and ninety one links io a post set in the ground ; thence west nineteen chains and thirty-eight links to a post set in the ground ; on the easterly side by the road running northerly from Ballston Spa to Greenfield thence north eleven chains to a stake set in the ground ; thence west fifteen chains and thirty one links to a stake set in the ground ; thence south twenty- five chains aud eighty six links to a stake set in the ground ; thence west thirty-four chains and sixty-nine links to a stake set in the ground; thence south sixty two chains and thirty-eight links to a stake set in the ground ; thence east sixty nine chains and thirty- eight links to a stake set in the ground ; thence north twenty-two chains and sixteen links to the place of beginning, containing five hundred acres of land. The above courses being run as the mag- netic needle pointed in the year 1769."
The imprisonment of a debtor was in the main all unsatisfactory process in the collection of debts. The debtor usually found friends to bail him for the "jail liberties," and many were the devices used by both parties, the creditors to entice him beyond the boundaries and thus render the bailors liable for the debt, and the debtor to return surreptitiously to his home and then keep his "weather eye" turned in the direction of his prosecutor to watch for any sudden movement on his part. This was usually done on Sunday, on which day he was at liberty to go where he pleased, for no civil process could be then served, and when once at home the
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temptation to remain was too strong to resist. From many anecdotes, I select the following as illustra- tive of the state of affairs between these two impor- tant classes of the body politic. A country merchant having a debtor "on the limits" hired a man to induce the latter to go with him to spear suckers in the Gordon creek one fine May evening, and as soon as they had crossed the fatal line an officer stepped from his ambush and served the process on the sheriff. The matter was then in readiness to come mence an action for an escape against the sheriff, who was now bound to pay the debt and then look to his securities for remuneration. The other was that of a man in Stillwater, who was unable to pay his physician's bill, and in consequence soon found himself enjoying a "sojourn at the Springs." After a few weeks this got to be irksome, and he yearned for the society to be found at the "South end of the lake." So trusting to his ability to outwit his adversary he returned home. After several days he learned from his scouts that the enemy was in motion, and at once he began a "masterly retreat"' on Ballston. It was a bright summer's night, and as he was trudging on foot and had just crossed the Mourning-kil he heard the sound of a wagon in the rear. Hastily seeking cover, he saw his creditor drive leisurely by. Taking a convenient distance he brought up the rear in the march to the court house. Sheriff Dunning was aroused by the creditor and informed "that - -, a judgment debtor confined in the jail limits had escaped and
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was then at his home in Stillwater." This assertion was instantly negatived by the debtor, who had arrived opposite where the clerk's office now stands, and indignantly pronounced it a falsehood.
But the time came when it was no longer a crime to be "poor but honest," and the statute abolishing imprisonment for debt, excepting those of a tortuous origin, took effect March 4, 1832, and the "jail limits," except for debtors whose delinquencies are of a quasi criminal nature, ceased to exist. It went to the shades to be gathered with the whipping post, the cucking stool and other "liberties" secured to the English speaking citizen by that famous instru- ment obtained on the banks of the Runnymede by rebellious barons from the unwilling king.
All topics relating to highways and bridges were a part of the common law jurisdiction of this court and frequent questions arose in this county in the early years for it to determine. The towns of Mil- ton and Saratoga by reason of the Kayaderosseras and Fish creeks were put to an undne expense to maintain free bridges for the use of the public, and they justly asked that the county should be taxed to assist in maintaining those on the great thorough- fares. At the August term 1822, the following entry is made in the minutes :
On reading and filing the petition of the commissioners of high- ways of the town of Milton on their appeal from the determin . aton of the board of supervisors of the county of Saratoga against the application of the said commissioners to the said board of supervisors pursuant to section 33 of the "act to regulate highways," passed March 19, 1813, for such sum of money to be raised on the
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said county as would be sufficient to defray the expenses of erect- ing and repairing bridges in the said town of Milton, and praying that the-said determination might be revised. And the court now having revised said determination, and it having been duly made to appear to the court that the said town of Milton is unreasonably burdened by having to erect and repair necessary bridges across the Kayaderosseras: It is therefore ordered, that the said super- visor raise the sum of $500 on the said county for the purpose of erecting and repairing bridges in the said town of Milton.
With the amount thus raised the commissioners erected the two stone culvert bridges known for nearly half a century as the "Blue Mill" and "Fac- tory village bridges." They were substantially built by Joseph Barker, but now both have been re- moved ; the latter by the march of improvement, and the former by the freshet of October 13, 1869. A curious circumstance connected with this was the fact that Mr. Barker was visiting in Ballston Spa at that time, and from the railroad above he wit- nessed the fall of the old bridge. Similar rules were entered subsequently regarding bridges in Saratoga.
Previous to 1823, all causes heard in this court by appeal were heard on pleadings de novo, but in the April term that year the court simplified the practice by ordering that thereafter appeals should be "heard on the pleadings in the courts below." This required greater care in the joinder of issues in the lower court, and rendered obsolete a class of men who had gained a precarious livelihood by an irregular practice without license in courts not of record, and by the mystifications they threw their
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cases into gained for themselves the soubriquet of "pettifoggers." The naturalization of aliens was one of the duties of this court, confided to it as a court of record by the laws of the United States, and at every term certificates of citizenship were issued, and in many instances the parties thus naturalized became prominent citizens and business men of the county. The first to be naturalized in the present court house were Stephen and Thomas Titcomb of Waterford.
The want of system in the care and preservation of the records in the clerk's offices of the several counties led the legislature to pass a statute April 18, 1826, requiring indices of deeds and mortgages to be made and kept in said offices ; and, at the August term, 1827, the court entered an order directing county clerk Thomas Palmer to make such indices. And, on the minutes of the April term, 1842, the following order was given to county clerk Archibald Smith by Thomas J. Marvin, first judge :
"Whereas the minutes of the courts of this county not having been engrossed on the books of record provided for that purpose for several years past, and it being necessary for the due preserva- tion of such minutes that they should not be left in the form of more blotters as they now are: it is hereby ordered that the clerk of the county have the said minutes duly engrossed in the said books, and in the manner hitherto practiced in his office."
The promptness with which all the records of the county have been properly engrossed and the ac- curacy with which they have been kept for the past thirty years by the veteran clerk James W. Horton
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is the secret of the hold he has upon the people of this county, outside of party lines, and which has caused his repeated re-elections until he is now serving his eleventh term.
Another common law jurisdiction of this court was the case of the public fisheries, and I find an order entered at the August term 1830,. forbidding under a penalty of twenty-five dollars, the taking from Saratoga lake, or any of its tributaries, or outlet, of the fishes known as pike and Oswego bass, by any means within three years from April 1, 1831. Similar rules were entered at subsequent terms relative to the taking of certain other choice species of fish, by other means than fair angling, from Saratoga, Round and Ballston lakes and the pond of the Ballston Spa mill company.
In the year 1818, congress passed an act pension- ing the veterans of the Revolution, but its terms were such that but a few of them availed themselves of its benefits. Among those who did so was San- bun Ford of Ballston Spa, better known as "old Bona," from his ardent admiration of Napoleon Bonaparte, before the latter had expressed his Im- perialistic ideas. In 1799, Ford an.l Henry Good- rich were the only Jeffersonian republican voters in Milton. He died in 1848 aged 95 years. Con- gress enacted another pension bill June 7, 1832, granting pensions to the survivors of the war for Independence. It was passed mainly through the efforts of our representative, ex-Speaker John W. Taylor, then serving his last term in the House of
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Representatives. At the ensuing August term of Common Pleas in this county, certificates that they were the persons mentioned in their discharge pa- pers were issued to Col. John Ball, Judge Salmon Child, Major Ezra Buel, Captain Kenneth Gordon, Thaddeus Scribner, Samuel Downing and one hun- dred and twelve other revolutionary veterans. At each subsequent term of the court for several years, these venerable men applied for the sum which a generous government had awarded to those who had withstood the mighty throes which gave it its birth. Among others a certificate was granted to David Goodhardt ; but it subsequently appeared that al- though he had "fought at Saratoga," it was in the legion led from Hesse by the Baron de Reidesel, and his claim which had been the work of an unscrupu- lous claim agent, was thrown out. No blame was attached to the aged German who had been a re- spected citizen here many years, having abandoned Burgoyne's army at Albany, for he was now in his dotage; but the claim agent had a narrow escape from being "put where he would do the most good."
The actions tried in this court were mostly of a light nature, similar to those now tried in the coun- ty court, and no material interest now attaches to either the plaintiffs or defendants in connection with their causes of action, so that the field for sketching the workings of the court is necessarily a limited and barren one. The time now approached when the court was to be abolished with all its ancient and time honored machinery. It went, not
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"Like the baseless fabric of a vision And left not a wrack behind :"
for it still exists in the memories of the upright judges who sat on its bench, and in the recollections of the eloquence of its bar. The constitution adopt- ed by the people November, 1846, went into effect January 1, 1847. The old courts of the state were superseded by the new ones established, which were to go into active work July 1, 1847, and all original suits pending in Common Pleas were transferred to the new Supreme Court, and all pending appeals from justices' courts to the new county court. - Therefore, by the direction of Judge Marvin at the close of the April term 1847, on the twenty-first day of the month, crier Hiram Boss sounded for the last time the ancient form : Hear ye, hear ye, all man- ner of men, this term of the Court of Common Pleas and the Court of General Sessions of the Peace held in and for the county of Saratoga is now ad- journed sine die."
CHAPTER IX.
CAUSES TRIED IN THE OLD CIRCUIT COURT.
The first circuit court held in the present court house convened May 25, 1819, with Chief Justice Ambrose Spencer on the bench. Prior to the adop- tion of the constitution of 1821, the several circuits were successively held by Judges Jonas Platt, John Woodworth and Joseph C. Yates. By the act of the legislature passed April 17, 1823, under the provisions of the constitution of 1821 the state was divided into eight districts, and no changes were to be made in them during the continuance of this court. At least two Circuit Courts and Oyer and Terminers were to be held annually in each county. The constitution provided that the gover- nor and the senate should appoint a circuit judge for each district, with the same tenure of office as the Supreme Court judges ; who hereafter were to only have appellate jurisdiction, and their number was reduced to a chief justice and two puisne judges. Each of the circuit judges had equity ju- risdiction in his own district as vice chancellor. - Under the authority of the constitution and the statute Governor Yates and the senate, April 21, 1823, appointed the following distinguished coun- selors to be circuit judges, viz : Ogden Edwards,
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Samuel R. Betts, William Duer, Reuben Hyde Walworth, Nathan Williams, Samuel Nelson, Enos T. Throop and William B. Rochester.
There are no reported cases that were tried at the Saratoga Circuit under the first constitution during the time embraced in this chapter ; but the suit brought by Aletta Beekman against Judge Harvey Granger, which was tried May 29, 1821, before Judge Woodworth, is deserving of mention. It was for damages to the real estate of the plaintiff, situated on the banks of Saratoga lake, by the stop- page of the waters in the outlet of the lake, occa- sioned by the mill dam of the judge at Granger- ville. It was claimed that what is now termed the "drowned lands" was caused by such obstruction. James Scott, the surveyor, performed a singular feat of engineering in surveying the lands thus flooded, by rowing over the courses in a skiff. The principle that water will "pile," or accumulate, by reason of obstructions to its natural course did not then obtain credence among hydraulic engineers, and it being proved that the height of defendant's dam was below the level of the surface of the lake, a verdict was rendered for the defendant by the jury, which consisted of James Dunn, Palmer Cady, Preserved Wait, Ezra Starr, Benj. Carpenter, William Jeffords, jr., Thomas Fellows, Luther Landon, John W. Creal, John Gilbert, William Mills and Cornelius Rowley. John V. Henry and James McKown were the plaintiff's attorneys, and Esek Cowen and Wm. L. F. Warren for the de-
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fendant. This question of the "piling" of waters has long been a disputed one among hydraulic engineers. The recent case of Bullard against the Saratoga Victory Company for damages accruing from a stoppage of the natural flow of the waters of the same Fish creek by the defendant's dam was decided adverse to such principle by Justice Lan- don. The Supreme Court of Vermont went to the opposite extreme from that held in the case of Beekman against Granger, when it pronounced the opinion that a mill dam is an obstruction to the natural flow of the stream, even above a "ripple."
The first Circuit under the new system convened July 28, 1823, with Judge Walworth on the bench. Among the actions tried before him, and in which he enunciated opinions that have since been adopted by the highest courts of the state, and which are still the ruling precedents on the points covered by them, is the suit of James Jackson ex dem. John G. Van Schaick against Peter Davis. S. G. Hunt- ington and A Van Vechten were counsel for the plaintiff, and John L. Viele and Samuel A. Foote for the defendant. It was an action in ejectment brought to recover a part of lot 3 and the whole of lot 4 in the Halfmoon patent. The plaintiff pro- duced a lease executed by Christina Van Schaick and John G. Van Schaick and Anna his wife to Alexander Brevoort (from whom the defendant claimed title) dated January 1, 1784, for the term of seventy years at an annual rental of £4, New York currency. The defendant besides the general
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issue plead adverse possession commencing in 1798, since which time neither Davis nor his grantors had paid the rental, nor had such been demanded. Judgment was rendered for the plaintiff, from which an appeal was taken to the Supreme Court. It is reported in 5 Cowen 123. The judgment was affirmed. Judge Sutherland, who pronounced the opinion, held with the court below that "when the relation of landlord and tenant was created, immediately or remotely, the succeeding tenant is bound by the acts of his predecessors as by his own. Mere length of time will not raise a pre- sumption of evidence. Mere non-payment of rent, or non-demand of rent for twenty years will not raise a presumption that the landlord's title is extinguished."
At the June Circuit 1824, before Judge Nelson, the ejectment suit brought by James Jackson ex dem. Gerrit Bogart against Eliphalet King was tried with a jury. Kirtland & Huntington were plaintiff's attorneys, and Levi H. Palmer and John L. Wendell were the opposing counsel. This was one of a number of suits brought to regain ancestral rights by Gerrit Bogart, whose wife was the grand- daughter of Magdalena, or "Peggy" Peltz, who it was claimed was the granddaughter of William Appel, of whom a patent to land in Halfmoon (now Clifton Park) was granted Sept. 10, 1708. The defense in this, and the other suits was adverse possession. The plaintiff's claim of title was sought to be established by proving the records of
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marriages and baptisms in the Reformed Protestant Dutch church of the city of New York. By this it appeared that one William Appel and his wife had their son Simon baptized May 26, 1695. Mag- dalena, a daughter of Simon, was baptized in 1719. She was married to Abraham Peltz, August 25, 1745. She died in 1795. Bogart's wife was thus the fifth in descent from Appel, the patentee. *
The defense objected to this evidence, but it was received by the court. The defense then offered in evidence documents showing that there were two William Appels living in New York in 1695, as tending to show that the Appel mentioned in the church records was not Appel, the patentee. Also,
that during the revolution Peggy Peltz told Elsie Van Deusen that all the property she owned was two houses in New York city. At the conclusion of the evidence Judge Nelson remarked that "there were two questions in the case at bar : whether the testimony was competent to prove descent in the plaintiff ; and, also, whether there was sufficient in the case to allow it to go to the jury." Both questions he disposed of adverse to the plaintiff, and a non-suit was ordered. An appeal was taken, and a new trial was granted. This case is reported in 5 Cowen, 237. Pending this motion for a new trial, another of these Peltz heirs suits, that of Charles Pioneer against David Schauber was, tried at the June Circuit, 1826, before Judge Walworth.
*From this Gerrit Bogart is descended William H. Bogart, the well known "Sentinel, of the New York World."
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On hearing the evidence the court directed a ver. dict for the plaintiff. It was affirmed in the Supreme Court. The several claimants of adverse possessions to this disputed territory then made common cause against their foe and carried this case to the Court of Errors, where the Bogart- Pioneer claims were effectually quashed by the reversal of the decision of the court below. It held that if Gerrit Bogart, who was an attorney in prac- tice residing in Schenectady, but sixteen miles from the lands in question, had held a valid claim of title, he would not have suffered it to lie dormant for over thirty years, while the occupants under a show of title were improving their fanns. The case is fully reported in 2 Wendell 14.
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