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 7
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James Jackson ex dem. Thomas Cook against Philip Shepherd, a suit in ejectment involving the validity of a tax sale, was tried at the December Circuit, 1824. John L. Viele, for the plaintiff, sought to establish that the plaintiff make a bona fide pur- chase of lands in Moreau sold at a regularly adver- tised tax sale, and as such purchaser was entitled to the desmesne. Esek Cowen, for the defendant, proved that no demand of the tax was made on the premises, as required by the statute, and that there was personal property subject to distraint thereon at the time of the levy. A non suit was granted by Judge Walworth, which was sustained on appeal, as will be seen by a reference to 7 Cowen 88.
At the Circuit held by. Judge Nathan Williams in May, 1828, the libel suit brought by Hon. John 5*
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Cramer against Robert Martin and Solomon South- wick was tried. The alleged libel was published in the Albany Daily Advertiser and charged Cra- mer with corrupt practices as a senator. George W. Kirtland associated with him in the prosecution the well known Elisha Williams of Hudson, and the defendants secured the celebrated advocate, Samuel Stevens of Salem. They were among the foremost lawyers of that era of great men. Williams was undoubtedly, physically, the heaviest gun, for
he weighed over 300 pounds avoirdupois.
The
case attracted great attention, not only from the dis- tinetion of the parties, and the reputation of Messrs. Williams and Stevens as orators, but from the array of witnesses for the plaintiff to establish a refutation of the charges. It included such men as Elijah H. Kimball, Nicholas B. Doe, George T. Wright, William L. Fish, John C. Spencer, and Ambrose L. Jordan. The defense placed no wit- nesses on the stand. Mr. Stevens declined to
address the jury, but Mr. Williams dealt out to them one of his glittering and eloquent appeals, such as with which he was wont to daze the jurors of Columbia county half a century ago. One of his sentences was the following : "These defendants have brought here before you the most able and eloquent counselor in the state of New York, and this most able and distinguished counselor displays his most admirable eloquence by holding his tongue." Williams carried the audience and jury with him and secured a verdict for $5, 750 and costs.
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Cramer wanted but a vindication of his character, and it is said that he never collected his judgment.
The ejectment suit brought by James Jackson ex dem John Haverly against Wm. French which was tried before Judge Cowen at his first Circuit, November, 1828, is noticeable for a certain principle decided in it on its appeal to the Supreme Court, as reported in 3 Wendell 837. Judge Savage deliv- ered the dicta of the court, which incidentally states on one of the points involved, that "the privilege of not disclosing a communication made by a client to counsel is confined to counselors, interpreters and attorney's clerks ; but that a person present at such communication and in nowise connected with the connsel is bound to testify." Loiterers in attorneys' offices will thus see the awkward positions they might be placed in, and should take no offence at being requested to vacate on the appearance of a client. The opposing counsel were Daniel Cady and Marcus T. Reynolds. Cady, for the plaintiff, had a numerical preponderance of evidence at the trial, and the witty and wily Rey- nolds knowing that he would go to the jury heavy on that subject conceived a plan to outwit him. Coming to this point in his "summing up," he alluded to this discrepancy. To be sure there were five persons who established the plaintiff's case, and but three who sustained the defendant in his rights. Usually, he would allow, when equal advantages were enjoyed by all the witnesses to know the facts the side having the most was entitled
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to the point, as his Honor would undoubtedly charge. But there are acceptions to all rules. ".For instance, my brother, Warren (the district attorney) and I might differ as to what this (laying his hand on the bare poll of Mr. Cady) is. I should insist that it was a head, as you gentlemen, see that it is. He might declare that it was a squash. We could never reconcile our differences of opinion. We might agree to leave the matter to his Honor, who enjoys equal means of observation with us. Now gentlemen, if my opponent's argument which he is going to make to you is worth a rush, if his Honor should coincide with brother Warren, I should be orced to yield against my better judg- ment." A burst of laughter followed this sally, in which Cady, the court and jurors joined. Cady did not press that point to the jury and a verdict for the defendant was rendered.
CHAPTER X.
CAUSES TRIED IN THE OLD CIRCUIT COURT, CONTINUED.
The ejectment suit of James Jackson ex dem. John G. Van Schaick against Peter Davis, detailed in the preceding chapter. and that brought by the same plaintiff against John Vincent, reported in 4 Wendell 633, forms the basis of the established rule of law in this state, as laid down by the Court of Appeals in disposing of the Van Rensselaer "anti- rent"' cases, in all their phases. Vincent took a lease from the Van Schaicks, February 28, 1787, for sixty seven years at a rental of £9. The suit was brought in May, 1827, shortly before which time the rent had been demanded and refused. On the trial John L. Viele for the defendant admitted the taking of the lease. Defendant refused, how- ever, to pay the rent because he had taken war- ranty deeds or four distinct portions of the farm in question from one Ludlow and three other parties, who claimed the land as lying within their allot- ment of the Kayaderosseras patent. On this proof and admission Messrs. Huntington & Van Vechten rested the plaintiff's case. The defendant proved that by a survey made under the act of March 11, 1793, passed to adjust certain difficulties between
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the Halfmoon, Shanondhoi and Kayaderosseras patentees, the land was shown to be within the bounds of the latter's domain. The plaintiff in rebuttal showed that by that act itself the title of a party who did not sign the petition for its passage was not affected by it in the least. It was con- clusively proven that neither of the Van Schaicks signed the petition. Judge Williams, before whom the suit was brought to trial at the May Circuit, 1828, charged the jury that the lease was prima facie evidence of title in the lessors, and the defendant having acceped the lease was not to be permitted to deny his landlord's title And that a tenant for years forfeits his term by refusal to pay rent, and by accepting a claim of title from a hos- tile source. The latter being a species of rebellion against his liege lord. A verdict was directed for the plaintiff by the court. The defendant moved the Supreme Court to set aside the verdict, but it was denied.
The action which was brought by Amaziah Ford against Col. James Monroe, a nephew of the ex- president, attracted much attention forty years ago. Monroe was president of the Saratoga & Schenec- tady railroad company. which at the date of this action was in the process of construction. He resid- ed in the city of New York, and was for sevaral years a season guest at the Sans Souci. A servant of Monroe in driving his gig to the hotel one day in the season of 1831, ran over and killed a young child of Mr. Ford, in the street in front of that hotel.
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An action on the case was brought by Ford, and tried on the general issue at the May Circuit, 1833, before Judge Cowen. The court charged the jury that the action Linged on the negligence of the servant. The plaintiff should recover, if he should recover at all, for the services of the child, for the consequent illness of his wife, and for the expenses incurred by reason of the death of the child. A verdict was rendered for $200, which was sustained in the Supreme Court Oran G. Otis was the suc- cessful attorney, and William L. F. Warren, no doubt, fought gallantly at the head of the "forlorn hope" in this action in behalf of Monroe. The case is reported 20 Wendell, 210.
Any of the citizens of Ballston Spa, or others who frequented the county seat, whose memories extend back over the lapse of about forty years, will recollect the "Arcade" built by Harvey Loomis, then proprietor of the Sans Souci hotel and the "Low estate," in Ballston Spa. When the Schenc- tady and Saratoga railroad was chartered and the directors were securing the right of way, Loomis made an agreement with Col. James Monroe of New York, president of the board of directors, giving the company the right of way through the estate for a nominal consideration, and further stipulating that they should stop their cars in front of the Sans Souci hotel. By some means, the latter clause was omitted from the deed of conveyance. This subsequently led to vexatious suits at law. By the article of agreement between Loomis and
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Monroe, the former was to construct an "arcade" building on the north side of the railroad track across what is now Low street, in which were to be rooms for the accommodation of passengers, for the storage of baggage, and for offices for the use of the company's agents. Loomis fulfilled his part of the contract, but the board of directors refused to ratify the agreement of their president, and built a pas- senger depot on the west side of Bath street, op- posite where Marsden's hotel now stands, at which point they stopped their cars, instead of in front of the Sans Souci. Loomis then began an action against the railroad company to recover the moneys expended by them in building the "arcade." 'T'he suit was brought by his son Joseph H. Loomis and Cicero Loveridge, his attorneys. Alonzo C. Paige,
afterwards the distingu ished judge and attorney, for the company. The suit was brought to trial before Judge Cowen at the May Circuit, 1834. The plaintiff declared in assumpsit, and the defendant plead non assumpsit. The evidence for the plain- tiff was his agreement with Monroe. The defense proved by the books kept by their secretary that the proposition made by Monroe was not adopted by the directors, nor was he authorized to enter into such an agreement. The court entered a non- suit on the motion of Mr Paige. Loomis then brought an action against Col. Monroe, individu-
ally, to recover his money. A demurrer was entered and it was argued in the Supreme Court by Mr. Page for, and Mr. Loveridge contra. From
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the plaintiff's points, as reported in Howard's Appeal Cases, page 22, it appears that he endeav- ored to show that he offered to give free right of way through his lands to defendant if the company would erect their depot in Ballston Spa in front of his hotel. Defendant agreed that the depot should. be so built, and agreed with plaintiff that the latter should construct the same, and that if the company failed to make the payment for it, he would pay the same. The defendant claimed that the under- taking on his part was collateral and not original. and that his promise to pay was without consid- eration. The court held that the pleadings showed no request on the part of defendant to plaintiff to build the "arcade" for him, and sustained the demurrer. An appeal was taken to the Court of Appeals and the decision was affirmed. The final decision is noted in Howard's Appeal Cases page 28. The unlucky "arcade" stood for several years in a dilapidated state, an eyesore to all parties. Its fate, like that of the famous Ephesian temple, was somewhat tragical. The name of the constructing architect in each instance is lost to human ken :
" The youth who fired the Ephesian dome.
Outlives in fame the pious fool that reared it."
Erostratus has come down the stream of time as the crack-brained youth who burned the temple, and be it the office of these pages to commemorate the name of Thomas Staats, who solved the
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"arcade" question by blowing the structure up, or rather down, with a blast of gunpowder.
The next important case tried at the Saratoga Circuit was the suit brought by Minor S. Lincoln, a gentleman from Boston, against the Saratoga and Schenectady railroad company. This was an action on the case for negligence on the part of the defend ant's servants. It was tried at the December term, 1837. Messrs. Anson Brownand John W. Thomp- son were attorneys for the plaintiff. and Platt Potter of Schenectady defended the interests of the com- pany. Lincoln was a passenger on the train from Saratoga Springs to Schenectady August 31, 1836. A short distance from Ballston Spa the train came in collision with another coming from Schenectady. Plaintiff sprang off the cars and in falling fractured his leg. He was unable to return to his home until the first of December. He proved actual expenses to have been $690, and asked exemplary damages for his long and continued pain, and for his detention from business. Judge Willard in his charge to the jury held that the plaintiff was entitled to recover his actual damages, and they must con- sider his loss of reasonable profits of his business, but not any fanciful figures or conjectures as to the same. A verdict was rendr d for $8, 000 and costs, A motion for a new trial was made in the Supreme Court. It was argued for the motion by Samuel Stevens, and opposed by Nicholas Hill, jr. The motion was granted, the court holding that the negligence of the agents of the company should
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have been shown, and that opinions of witnesses as to Lincoln's damages from loss of time was inad- missible. It is reported in 22 Wendell, 425. A compromise was then effected by the company's agreeing to pay $5,000; which Lincoln accepted and the suit was withdrawn.
Next we come to the noted "Rector trial," which besides the other points of interest attached to it was probably the only criminal trial in the state, if not in the English speaking courts, where a man was tried for his life in the Circuit court, instead of the Oyer and Terminer. The prisoner, Thomas Rector, had previous been tried in the Albany Oyer and Terminer and convicted of murder in the first degree. A new trial was ordered on appeal, and on a certiorari the Supreme Court ordered Rector to be sent to the Saratoga Circuit for trial. Judge Willard insisted that he should try the indictment as circuit judge, and did so. The event of the suit precluded an appeal from his decision. Accord- ingly at the May Circuit, 1839, Rufus W. Peck- ham, district attorney of Albany county, moved the trial of Rector. He was assisted by Attorney General Willis Hall and Samuel Stevens. The prisoner was defended by Henry G. Wheaton and Ambrose L. Jordan. The notoriety of the case and the ability of the counsel caused the court room to be crowded during the eight days of the trial. After a thorough examination of a long special panel a jury was accepted consisting of David Hodges, Lewis Stone, Lansing Holmes,
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Joseph A. Sweet, Pardon Elms, George Thomp- son, Henry Patrick, John Rouse, Charles Patrick, Sylvester Blood, Thomas Arnold, jr. and William Mitchell. From the evidence it appears that between twelve and one o'clock on the night of March 11, 1838, Robert Shepherd and two men named Wilson and Whitney went to a bawdy house in Albany, kept by Georgianna Rector, mistress of the pris- oner. They were intoxicated and Georgianna refused to let them enter the house. They declared that they would go in. The prisoner came to the door, and seizing the door bar struck Shepherd on the front part of the head. He fell to the side- walk, and was taken to a surgeon's and died the next day. The evidence of the surgeons showed that there was a gash on the front of the scalp and that the skull was fractured near the base of the brain. There was no evidence of a second blow. The defense was that Shepherd died from the effects of the fall. Thirty-six witnesses were sworn for the people, and twenty for the prisoner. Among the distinguished surgeons sworn were Drs. March, McNaughton, Vanderpoel and Peter P. Staats of Albany, and Dr. Valentine Mott of New York. The jury convicted him of manslaughter in the second degree. He was then remanded by Judge Willard to the Albany Oyer and Terminer in which he was subsequently sentenced to states prison for seven years. Rector in his boyhood lived at Court House Hill in this county. The expenses of his trial were borne by his brother, Henry Rector, a
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distinguished architect of New York city. The first trial of Rector and the argument in the Supreme Court are reported at length in 19 Wendell, 569. The result of the trial in this county was owing to the obstinacy of one juror. On their first ballot they stood, I am told, eleven for murder in the first degree, and the other, the late Judge Stone of Gal- way, for a conviction of a minor crime. Finally the eleven deferred to his judgment, and thus the determination of Judge Willard to sit solus in a criminal trial was never reviewed, for Rector was glad to escape with the light punishment he received for his crime. Whether, as probably was the case, it was a clerical error that named the Cir- cuit instead of the Oyer and Terminer in the order changing the venue must ever remain in doubt.
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CHAPTER XI.
CAUSES TRIED IN THE OLD CIRCUIT COURT, CONCLUDED.
The philosopher of the Tribune in his graphic "Record of a Busy life" gives a full history of the several law suits which his trenchant pen drew upon him. His caustic criticisms of the men and times in which he lived were a terror to thin skinned politicians and nervous writers. Among those suits was the one brought by the well known author of the "Leather Stocking" series of novels, which thirty years since commanded great attention in the literary world and gave their author an extensive prominence. J. Fennimore Cooper was of a haughty imperious temperament, and the sharp manner in which the Tribune criticized both the man and his literary labors galled him severely. To obtain redress, he commenced a libel suit against Horace Greeley and Thomas MeElrath, the pro- prietors of the Tribune, laying his damage at $10,000. The suit was brought by his nephew, Richard Cooper, an attorney of great celebrity. The venue was originally laid in Otsego county, the home of Cooper. Pending a motion to change the venue to the county of New York it was finally stipulated that the cause should be brought to a
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trial before the farmers of Saratoga county. The selection was satisfactory to both parties. Cooper hoped that the impression made by laying the scenes of the "Last of the Mohicans" in this locality would tell in his favor, for the work was then fresh in the minds of the novel reading public. But Greeley trusted to the reputation he had made among the yeomanry as the editor of the "New Yorker" and the "Log Cabin." The reliance that Greeley always placed on the farming community was never misplaced, for it was one of the secrets of the great success of the weekly edition of the Tribune. Having sprung form a race of tillers of the soil he ever recognized the solid worth of their judgments. The suit was brought to trial at the December Circuit, 1842, before Judge Willard. During Greeley's attendance at the court in Balls- ton Spa, he had his quarters at a boarding house kept by the late Chester Stebbins. in the residence now owned by Joseph E. Westcot on Front street. Stebbins had been jailor under Sheriff Jennings, and was noted for his influence with jurors. Although an ardent democrat, he had conceived a strong attachment for the great Whig writer, and doubtless lost no opportunity to vent his opinion in public during the trial. The plaintiff's case was opened to the jury in a methodic, straight-forward manner by Richard Cooper. The evidence for the plaintiff, copies of the Tribune containing the articles offensive to the Cooper eyes and ears, was then read to the jury. The defendants offered no
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evidence in mitigation of damages. But Horace Greeley's confidence in his countrymen's love of justice was never shaken to the end of his life ; unless it might have been in that sad hour when his wearied and dazed brain gave way as he compre- hended the duplicity that had been practiced on him when he was a candidate for the highest office in the gift of the people. He managed the case of the defendants in person, and appeared in the trial without the aid of counsel. He opened and closed his case to the jury in a speech abounding in earnest arguments disclaiming the intention of in- juring unnecessarily the reputation of Mr. Cooper, and pleading the paramount duty of indepen- dent journalists to criticise and condemn all that was censurable as being detrimental to the interests of the great public, let the consequences be what they may. His earnest manner, the quaint drollery of the man, and his appearance before the jury made him many friends in this county, even among those who strongly opposed his political principles.
The great novelist, who had been bred to the bar, and who possessed no 'mean oratorical talents, fol- lowed and presented his case to the jury in an address full of glowing periods, and triumphantly demanded that the libellers of his fair fame should be mulcted in heavy damages. As he sat down the opinions of some of the spectators were that the "pioneer author of American fiction" was the best abused man in the country, and that Greeley and McElrath were the most unblushing blackmailers
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on the face of the earth. Judge Willard charged the jury that as the publication of the alleged libel- lous articles was proven, it was their province to measure the damage done to the reputation of Mr. Cooper. This they did by awarding him a verdict for $200 and six cents cost. This was regarded in all quarters as a substantial victory for the great editor. Mr. Greeley's last visit to Saratoga county was on the occasion of his delivering an address before the Agricultural Society at Saratoga Springs in September, 1869.
No one, who in these later years knows the ven- erable John S. Ford of Ballston Spa, and sees him to be a plain, easy going matter of fact citizen, would ever dream that he had ever been the cause, in a perfectly innocent way, of the incorporation of a certain section in the present constitution of this state. That he was, let the following facts demon strate. Mr. Ford has for many years been the owner of the track of land in the east portion of that village known to all the villagers as "Bona's woods." Wishing in the year 1840, in connection with Thomas J. Porter (who was a joint proprietor then with him in the premises,) to improve said lot which did not lay upon a public highway, they sought to open a private road to it through the adjoining close of Thomas C. Taylor. Taylor's agent, Thomas G. Young, refused to grant them the coveted privilege, so they applied to the high- way commissioners of the town of Milton. That nobody entered an order July 24, 1840, granting
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them the proposed relief. Ford and Porter then entered on the lands of Taylor and proceeded to lay out the proposed private road. An action in tres- pass was commenced. The plaintiff was repre- sented by Daniel Lord, Jr., and George G. Scott was defendants' attorney. To defendants' answer the plaintiff entered a demurrer that the statute authorizing the laying out of private roads was unconstitutional and void. The demurrer was argued before the Supreme Court at Rochester, in October term, 1842 by George H. Mumford of Roch- ester, in support, and Nicholas Hill, Jr., in oppo- sition. Greatly to the surprise of the latter, the unconstitutional feature was sustained by Judges Bronson and Cowen. Chief Justice Nelson wrote a dissenting opinion which is published along with the opinion of the court (which was written by Judge Bronson) in 4 Hill 140. Judge Nelson thought if it was by an oversight not a part of the lex scripta, it was a part of the great unwritten law of the state. He emphatically stated that ours was the only state in the union, if not in the civilized world, that had not a constitutional provision authorizing private roads. Judge Nelson was one of the members of the constitutional convention of 1846, and in that body took an early occasion to remedy this defect in the constitution of 1821, by securing the adoption of the seventh section of the first article of the present instrument, from which our courts derive their powers to adjudicate the . differences of citizens relative to property. It dis-
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tinctly points out the way in which private prop- erty can be taken or the use of another in a con- stitutional and common sense manner Thus, while Ford's woods still remain in their original sylvan state, his name should be linked with the adoption of this constitutional privilege, which is of so fre- quent application in these days of steam and pro- gress. The case was tried on its merits at the December Circuit, 1844, and the jury assessed the plaintiff's damages at twenty dollars. A subse- quent survey showed that Taylor's fence was inaccurately placed upon the highway line and that Ford and Porter's land had a frontage on the same of about thirty feet. This rendered a resort to the new constitutional provision nugatory. A feature connected with this case may be cited to illustrate the wide difference in the expense of liti- gation under the Code, as compared with that under the old Common Law practice. In these days when we read of fees ranging from $500 to $10,000 for arguing a case before the Court of Appeals, one may well be astonished to learn that Mr. Hill's fee for the argument of this case was only five dollars.
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