Twentieth century history of Altoona and Blair County, Pennsylvania, and representative citizens, Part 11

Author: Sell, Jesse C 1872-
Publication date: 1911
Publisher: Chicago, Richmond-Arnold Publishing
Number of Pages: 1036

USA > Pennsylvania > Blair County > Altoona > Twentieth century history of Altoona and Blair County, Pennsylvania, and representative citizens > Part 11

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jury must have totally misapprehended the evidence. Judge Taylor said: "I see, Mr. Fisher, you have but little confidence in modern juries." Said Mr. Fisher, with a bow and the utmost blandness: "And very little more in modern courts." With this parting shot at courts and juries, he left the court room never to enter it again.

Of the lawyers resident here, Hofius, James M. Bell, George A. Coffey and the two Hammonds, Jolly, Louis H. Williams, Dunmire, Harris and Rawlins, ten in all, are dead. Hofius died during the sitting of the July court in 1859. He was a man of most brilliant parts. A most effective advocate before a jury; clear, logical, and at times emotional, he had wonderful power. Judge Black once said of him that he was the most effective cross, examiner he ever heard in- terrogate a witness. He died at the early age of forty. I cannot end this notice of him with more fitting words than those from Gray's elegy, used by Mr. Blair in his eulogy of him at a meeting of the bar after his death :

No further seek his merits to disclose,

Nor draw his frailties from their dread abode.

There they alike in trembling hope repose The bosom of his Father and his God.

James M. Bell died in 1870. He had re- tired from active practice many years be- fore. He was a man of great intellectual power, but seemed to lack the capacity to express his ideas with directness and point. Nevertheless, when in active practice, he was acknowledged by the profession as a very able lawyer. His name is connected as counsel with some of the most important causes tried in this and Huntingdon coun- ties.

George A. Coffey removed to Philadel- phiia in 1855. He was district attorney of the county from 1852 to 1854, acting instead of Joseph Kemp, who had been elected. He was United States district attorney for the eastern district, at Philadelphia, during the

war, and died about the year 1865. His ac- quirements were very extensive, and his talents of the highest order. Fluent, poet- ical, imagination unsurpassed, his addresses to a jury were intellectual treats. His tal- ents, however, seemed better fitted for the rostrum than the court room. As an orator - he was learned, eloquent and instructive, but he lacked that practical force, that homely illustration, which are so convincing with a jury.

Of those living, and who have not re- moved, we have them around us. Which of the three gentlemen, Banks, Calvin or Mc- Murtrie, can of right claim, by reason of years, the honor of being the father of the bar, I shall not undertake to decide. All were here before the county was organized, and, from appearance, there is not much dif- ference in their years. Mr. Blair, although admitted on the first day of the court, was then a young man ; and, while I have heard him addressed during the trial of a cause by Mr. Calvin as my venerable friend, in years, he is far behind either of the others. How- ever it may be as to years, I can only say to the younger brethren, their unexceptionable lives and professional success are worthy of all admiration. Neff, Hewit, Landis and myself were admitted about the same time. We all claim to be young men. Of the many still younger, so full of hope and promise in the profession of their choice, time will not permit me to speak. We who are older can only hope that on some appropriate oc- casion, thirty years hence, they, in the prime of physical and intellectual manhood, will be able to speak of us as the departed or older lawyers, who brought no disgrace on a noble profession, and as having made the world a little brighter and better by living in it.

CASES TRIED.

Of the cases tried, and suits entered, in the thirty years since the organization of the county, when compared with the popula- tion, the aggregate seems enormous. In

HISTORY OF BLAIR COUNTY

the common pleas, including judgment bills, appeals and centioraris, there have been entered 39,205 cases; in the quarter sessions, 2,619; in the oyer and terminer, 99, making altogether 41,913. In this are not included the large number of estates partitioned or appraised in the orphans' court, nor the trust accounts of assignees and other trustees, settled in the common pleas. There have passed through the or- phans' court for confirmation and allow- ance, 1,770 accounts of executors and ad- ministrators, many of them involving pro- tracted litigation before auditors and an exception to auditors' reports.

Judge Black took 44 verdicts, Judge Tay- lor 878; and there have been taken since, 495. Of course this, as every lawyer knows, does not show the extent of actual work done in the trial of causes; for many of them, after hours, and sometimes days, of trial, "go off," either by non-suit or settle- ment of the parties.

By the act of assembly erecting the county, all undetermined issues between parties resident on the territory out of which it was formed, were to be transferred to the records of the new county.

The first suit in the common pleas is one to No. 43, August term, 1826, of Hunting- don county, transferred. It is an action of debt by John Wilson and Rachael Buch- anan, executors of Dr. John E. Buchanan, deceased, against William Smith, executor of John Steel, deceased. When it was brought, in 1826, Judges Burnside, Adams and McCune were on the bench in Hunting- don county. Smith is marked attorney for plaintiff, and Allison and Steel for defend- ant. As appears from the record, more than seventy continuances were marked during the twenty years it stood on the Hunting- don county docket, and five after its trans- fer to Blair. It was then stricken from the record, under a rule of Judge Black's, "be- cause not moved in by either party for one whole year." This, after so long a life, was a most "lame and impotent conclusion." One

feature worthy of attention is, that, after pending all these years, in the courts of the two counties, the entire bill of costs taxed is only $21.63, of which amount the sheriff gets $2.65, and the prothonotary $8.65.

The first case brought originally, in this county, is a libel for divorce; subpoena is- sued 23d of June, 1846, by Mary Armstrong against her husband, John Armstrong. T. J. Coffey is attorney for libelant. John Cox, Esq., was appointed commissioner to take testimony, and a divorce was decreed there- on by Judge Black the 25th of March, 1847. The entire costs were $7.75. Divorces have become more costly since.

In the first year of the court 661 cases were entered in the common pleas, including original writs, centioraris and appeals. In 1856, ten years later, 1,090; in 1866, ten years later, 1,100; in 1876, ten years later, 2,717. Many of the cases included in this last number are judgments on building asso- ciation bonds, but still, the natural increase in legal business the last ten, has been much greater than in any preceding ten years.

Since the organization of the county many important cases, both civil and crimi- nal, have been tried, and in a number of them writs of error were taken, and they were reviewed in the supreme court.

At May term, 1848, of the supreme court, the first three cases were argued : Shoen- berger vs. Mulholland, Lowry vs. McMillan and Long vs. Labor. The first was a feigned issue to determine the right of Mul- holland to construct a lateral railroad over Shoenberger's land and the amount of dam- ages to the land owner. The case was with Mulholland, and the judgment was affirmed. The second was an action on the case for breach of promise of marriage, in which the plaintiff recovered and the judgment was affirmed. I noticed Mr. Banks was counsel for plaintiff in error. Judge Coulter, in the opinion of the court, says: "Seventeen er- rors are assigned, but the counsel, with a laudable economy at the time of this court, declined to press any but the twelfth :" and

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then goes on to show there is noting in that one, of substance. The third is Long vs. Labor, a case stated, on the construction of a will. The question was whether the chil- dren of these children, dying after the tes- tator, but before distribution, should share in the surplus. Judge Black decided they should. Mr. Calvin, of counsel for the other children, took a writ of error, and Judge Gibson reverses Judge Black. Mr. Banks was Mr. Calvin's antagonist. Mr. Calvin for the plaintiff in error, cites not a single authority, but he says, as the main point of his argument, "The will shows it was writ- ten by an ignorant man, and in ascertaining the intention, the court will pay but little attention to the technical terms used." Mr. Banks cites thirteen authorities. But, al- though he had the authorities, Mr. Calvin seems to have had Judge Gibson. While acknowledging the force of the authorities, he scrambles over them all, and treats the words of the will, to which they are applic- able, as "an accidental form of expression adopted by an unskilful and illiterate pen- man." These cases are all reported in 8th Barr.

The next cases argued in the supreme court were at May term, 1849, Hewit vs. Huling (first Jones, 27). George Buchanan and his son Alexander sold a tract of land, which be- longed to the son, to Geo. W. Henry for $2,600. Alexander, at the time, was not of age. Henry paid $800 on the purchase, but, unable to pay more, got General Porter Wil- son to advance the balance, about $1,900. After Alexander Buchanan came of age he conveyed the land, with consent of Henry, to Wilson, upon the condition that he should stand seized of the land until he was re-im- bursed the money advanced to Henry. A judg- ment having been entered against Henry, his interest in the land was sold upon it and pur- chased by Huling, who took possession. Wil- son alleging he had not been paid the money advanced by him to Henry, brought an eject- ment against Huling and Henry, and they con- fessed judgment, to be released on payment of

$925, amount still due Wilson, within nine months. This was not paid, and three days after the expiration of the nine months Wilson assigned all his interest to Peter Hewit, who issued Hab. Fa. Pass. and turning Huling out, who afterwards brought ejectment, which was the issue for trial. The question was whether the judgment in ejectment by Wilson, on the expiration of the nine months, without per- formance of the condition, gave him the land absolutely, or whether the deed to him from Henry to secure his advances only gave him right to the possession until he was paid out of the profits. Judge Black, in a very lucid opinion, decided the case was with the plaintiff Huling, and substantially directed a verdict for him. Hewit took the case to the supreme court. A number of errors were assigned by Mr. Miles, his counsel, all of which were over- ruled and the judgment affirmed. But, in the opinion affirming the judgment, the supreme court say: "Instead of framing a verdict in an equitable ejectment in such a way that an absolute title vests in the vendor on failure to pay at the time fixed in the verdict, we recom- mend that, if not paid at the time, it should contain a decree of sale, either by the sheriff or master, under the directions of the court, for the benefit of the vendor and vendee, and all persons having an interest in the proceeds." Here, in this case, in the supreme court from this county, we find the important suggestion of a decree of sale in equitable ejectments ; a feature in this class of cases which from that day to this has been the practice of Penn- sylvania.

The next cases are Royer's and McNamara's appeals from decree of court on exceptions to a guardianship account. Mr. Blair was coun- sel for the wards and Mr. Cline for the guard- ian. The questions involved were, sub- stantially, what was the extent to the liability of the guardian for his ward's money, lost by his negligence? As an example of vigorous expression in plain English, Judge Coulter's opinion is very interesting reading.

The next case is G. L. Lloyd vs. John Barr. Miles and Calvin were for plaintiff in error,

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and Bell for defendent. In the court below, Judge Black directed a verdict for Barr, the plaintiff below, holding an award of arbitra- tors offered in evidence as an adjudication of the fact; then in issue and constituting an es- toppel by former judgment between the same parties or their privies. From the large num- ber of authorities cited by Mr. Calvin, and his elaborate argument in his "paper book," he must have felt pretty sure of a reversal. The judgment of the court below was affirmed, doubtless much to his disgust.

The next case is Patterson vs. Lytle and Lytle vs. Patterson, two writs of error to the same judgment. Calvin was for Lytle and Banks for Patterson. Both parties assigned errors to the judgment of Judge Black on the exceptions to a report of auditors, who had stated an account between the parties on a judgment of quod computet. Judge Coulter says in his opinion reversing the judgment, that the case was "vehemently" argued by Lytle's counsel, Mr. Calvin. But I suppose the mild argument of Mr. Banks convinced the court, for his client got the judgment. All these cases were argued at May term, 1849, of the supreme court and are to be found re- ported in first Jones.

The next cases are argued at May term, 1850, of the supreme court. Fisher against Patterson is the first. The Legislature, by act of 16th April, 1840, had declared: "And if any person, not being licensed as aforesaid, shall be found hawking, peddling, or travelling from place to place to sell any goods, wares, or merchandise, every person so offending shall be liable to a fine of $50, to be recovered be- fore a justice of the peace." George W. Pat- terson ran a trading canal boat along the line of the Pennsylvania canal, stopping from place to place, selling goods for money or taking produce in exchange. He had no license. Fisher sued him for the $50 penalty before a justice and got judgment. Patterson appealed and the case came on for trial before Judge Black. The judge in his charge says: "Un- less the averments that defendant is a hawker and peddler are true, there can be no re-

covery. What is a hawker? One who sells goods by outcry in the streets. What is a ped- dler? One who carries about small commo- dities for sale on his back, or in a wagon or cart. These are the popular significations of the words and the only definitions given them by lexicographers. The Legislature hardly in- tended to use them in a larger or different sense. Penal statutes must be construed strictly. Your verdict ought to be for defend- ant." The plaintiff took a writ of error, and Judge Rodgers, in an opinion reversing the judgment, says: "In the construction of acts of Assembly, although our lexicographers are not to be utterly disregarded, yet the definitions of legal terms are rather to be sought in our books of reports, elementary treatises, and in our law dictionaries." And he holds that the words of the act are sufficiently comprehensive to embrace a canal or any other kind of boat.

At this time also was argued Hileman against Bouslough, in which it was finally set- tled that the rule in Shelley's case was the law of Pennsylvania. The case had been tried before Judge Black, and he held that Hester Bouslough, under a deed from her father, Joseph Rentch, took an estate tail, which de- scended to her eldest son, to the exclusion of her other children. A writ of error was taken and the case was argued by Miles for plaintiff in error and Bell for defendant in error. Mr. Miles, under the plea that there was a dis- tinction between this case and Shelley's; that, as there was a limitation over in default of issue, and in this none, the rule should not be extended. To sustain this proposition he made a most virulent, able and elaborate argument against the rule itself. But the supreme court held the difference between the two cases was immaterial and would not change the operation of the rule. Judge Gibson, in delivering the opinion of the court affirming the judgment, says: "The rule in Shelley's case ill-deserves the epithets bestowed upon it in the argument. Though of feudal origin, it is not a relic of bar- barism, or a part of the rubbish of the dark ages. It is part of a system; an artificial one, it is true, but still a system and a complete

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one." Although, in a subsequent case, the reasoning in Hileman vs. Bouslough is modi- fied, and it seemed once as if the application of the rule to a particular class of cases might cease, the supreme court in still later cases has declared its adherence to Hileman vs. Bous- lough in no uncertain terms. The paper book of Mr. Miles in this case is a work of industry, extensive research and learning such as I never saw in any other case. Of itself it is a com- plete treatise on the law of "estates tail," with a citation or reference to almost every im- portant case where the rule had been applied in this State or England. His professional conduct in that case is worthy of imitation by every young lawyer. The case is reported in first Harris, 344; Gibson, Rogers & Bell con- curring in affirming the judgment ; Coulter and Burnside dissenting.

Jackson vs. Summervilles was also argued at this term, and is the first of Judge Taylor's cases, which appears in the supreme court. This was an ejectment, brought by Summer- villes for a tract of land on part of which Gaysport is built. Mr. Blair and Thaddeus Stevens were counsel for Summervilles and Miles, Calvin, Banks, Hofius, Henry D. Foster and others for Jackson. The judgment was for plaintiff in the court below. A number of errors were assigned, but the one most per- sistently urged was that a judgment of a court of record was, even where actual fraud was alleged, a legal estoppel as to all those claim- ing to have been defrauded and who were par- ties to the judgment. But the supreme court held that even a judgment in a court of com- petent jurisdiction can be inquired into and overturned in a collateral proceeding, where fraud has entered into the procurement of it. The trial of this case excited great interest, both in the profession and out of it. The ablest counsel in the state took part. Mr. Blair, then a young man, by his masterly ef- forts, both with court and jury, placed him- self in that place in the profession he has ever since held with so much learning and ability. A second ejectment was brought and the case again tried, but after the jury came into court,

and before delivery of their verdict, a non- suit was taken.

Many cases were tried the years following and many of them were removed to the su- preme court, but as they possess no especial interest, and involved no new question, I pass on to the case of Walker vs. Reamey, twelve Casey, 410, which is a leading case under the married woman's act of 1848. Mr. Banks was for Walker and Calvin for Reamey. In affirm- ing the judgment of the court below, the su- preme court undertakes to restrict the words of the act which declare that a single woman's property shall continue hers as fully after mar- riage as before, and say, when the wife pur- chases property and pays for it, the presump- tion is that the money was her husband's even though she had received money from her father prior to the act of 1848.

Lloyd against Farrell is a case more curious than important to the profession. Farrell con- veyed a tract of land to Lloyd for the con- sideration of $6,000; paid $2,000 in hand and gave judgment bonds for $4,000. Farrell's two sisters recovered two-thirds of the land in ejectment on the ground that their brother held two-thirds of the land in trust for them, it having been purchased originally by their father. This judgment was affirmed by the supreme court. On application of Lloyd the judgments for the unpaid purchase money were then opened and he was let into a defence as to the two-thirds. The question on which the case turned was whether the purchaser took the title from Farrell at his "own risk." The tes- timony of William M. Lloyd, a witness to the article of agreement, as to what took place at the time the agreement was executed, was re- ceived under exception by Lloyd. The verdict was for Farrell. Lloyd took a writ of error, and the supreme court, in an opinion by Judge Strong, reversed the judgment on the ground that Judge Taylor erred in admitting the tes- timony of Wm. M. Lloyd. The case was again tried, and the same testimony offered, when it was excluded, and under the direction of the court a verdict was rendered for Lloyd. Far- rell now took a writ of error, assigning the

HISTORY OF BLAIR COUNTY

rejection of the testimony as error, and Judge Taylor was again reversed, in an opinion by Judge Sharswood, for not admitting it. Judge Taylor having died in the meantime, and I having at one time been counsel for Lloyd's administrator, Judge Butler of Chester county again tried the case, and there was a judgment for Farrell. The case was again taken to the supreme court and judgment affirmed. Mr. Blair was counsel for Lloyd and Hall for Farrell.

Laugham vs. Stiffler, before referred to, has been the Jarndyce and Jarndyce of the court. Brought originally in 1848, to Bedford county, it was transferred under the act creating the county to these records. Solomon Laugham married a daughter of one Dickey, who in 1836 died intestate, leaving a tract of land of about 200 acres, and six children.

The land was appraised at about $1,500, and Laugham, in right of his wife, accepted it at the appraisement and entered into recognizance with one Baird as surety, to pay the other five heirs their shares. He failed to pay, and judgment being entered on the recognizance the land was sold and bought by his surety, Baird, at sheriff's sale. He sold a considerable portion off in lots, and the village of Puzzle- town was built upon it. All this before 1843. In that year Laugham and his wife brought ejectment in Bedford county for the undivided one-sixth, alleging that the recognizance given by her husband only bound the shares of the other heirs taken by him, and the sheriff's deed passed no title to her sixth. The case was tried before Judge Black, and while the de- fendants admitted they took the fee of only the five-sixths, yet alleged the sale passed the life estate of the husband, and the wife could have no possession during his life. It was replied, there could be no sale of a life estate on a fi. fa. ; that sequestration was the only proceed- ing which would reach it. Judge Black so decided and directed a verdict for plaintiff, but at the same time entertained a motion for a new trial. Before the motion was argued the act of 24th January, 1849, was passed, validat- ing all sales of life estates on fi. fa.'s thereto-

fore made. A new trial was granted. In the meantime Gordon vs. Inghram was de- cided, declaring the act unconstitutional. It was again tried in 1860, with a verdict for Laugham, on which judgment was entered in 1863 by Judge Taylor. Mr. Banks took a writ of error, which was non prossed; then Solomon sued for mesne profits, and after a fierce contest got a verdict for three or four hundred dollars, which he alleged his lawyers kept for fees. He then commenced proceed- ings in partition, which were enlivened by a number of prosecutions for assault and battery, instituted by him or the citizens of Puzzle- town. The decree on the proceedings in parti- tion was taken to the supreme court and af- firmed. Then Solomon brought about fifty separate suits against the inhabitants of Puzzle- town for rents. These were all instituted be- fore an alderman and judgment was entered for plaintiff. The defendants appealed or cer- tioraried the proceedings. While these were pending, about two years ago Solomon at the age of eighty died. His wife soon after fol- lowed, and his heirs, and those concerned on the other side, referred all matters in dispute to A. S. Morrow, Esq., whose award was to be final and conclusive. He, a few weeks ago, after hearing, made a final award. I suppose from the organization of the county to his . death, Solomon never missed a court. I re- membere very well one Monday morning, be- fore Judge Taylor opened court, he asked : "Is the crier here?" when the reply was, yes; then he asked, "Is Solomon Laugham here?" On receiving the same reply, he directed the crier to call the court. Poor old man! He was guileless as a child, yet such a fondness for litigation I never saw in living man.

There have been tried in the oyer and ter- miner thirty cases of homicide. Of these eleven were found not guilty; three, Alexander Hutchinson, James Shirley and David McKim, were found guilty of murder in the first degree. The first, Hutchinson, was tried in 1850. After sentence his friends induced the legisla- ture to interfere by attempting legislation to relieve him from the death penalty. Nothing

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effective was done; but the warrant for his execution was withheld until Gov. Johnston, during whose administration he was convicted, was out of office. Gov. Bigler declined to issue it because, as he alleged, it was a duty of his predecessor which he was not bound to perform. Hutchinson remained in jail until 1853, when he escaped. Shirley was tried at March term, 1853, for the murder of his wife, and executed in August of that year. McKim was tried at April term, 1857, for the murder of Norcross, and executed in July following. The other convictions in the oyer and ter- miner were either of murder in the second de- gree or manslaughter.

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Twentieth century history of Altoona and Blair County, Pennsylvania, and representative citizens, Part 11

Author: Sell, Jesse C 1872- Publication date: 1911 Publisher: Chicago, Richmond-Arnold Publishing Number of Pages: 1036

Author: Sell, Jesse C 1872-
Publication date: 1911
Publisher: Chicago, Richmond-Arnold Publishing
Number of Pages: 1036