History of Walworth County, Wisconsin, Part 51

Author: Western Historical Co
Publication date: 1882
Publisher: Chicago, Western historical company
Number of Pages: 998

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Out of this grew a quarrel between Bradley Newall, a single man, and a man of family named Day, who, under this by-law, ignoring Newall's claim, built a shanty and settied upon it with his family. Newall went to Troy, where he enlisted the sympathy of Maj. Meacham and others, who returned with him to mete out what they deemed justice. They found Day with some of his friends in a state of siege in the cabin, with the door barricaded. The besiegers hold a short parley through the window, and were assured by Day and his party that they were armed, and that the resistance would be desperate. The besiegers thereupon commenced active siege opera- tions. They procured an oak log or timber, and, using it as a battering ram, stove the door in at the first assault. At this time, a gun was fired in the air from the window. with such undeadly effect as to rouse Maj. Meacham to feats of valor. He led the assaulting party through the deadly breach, entered the house, collared Mr. Bigelow. father-in-law of Day, and the heaviest man in the besieged party, dragged him out of the house and sat down on him, while his fol- lowers overpowered the remaining force, took ont the household goods and tore down the house. This was one of the few cases on record where the claim associations failed to adjust conflicting claims without resort to violence.

As the time approached for the land sale, a new danger, outside, threatened the settlers. Many of them had not sufficient means to purchase their claims, even at the minimum Goverment

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price of $1.25 per acre. The lands were to be offered by auction, and sold to the highest bid- der, at or above the minimum price. It was certain that these, the most desirable farming lands in the State, would find ready speculative purchasers, with cash in hand, ready and willing to pay double and treble the Government price for most of the desirable claims in the county, un- less some means could be devised to get rid of their competition at the sale.

The functions of the claim associations were accordingly extended, and the members entered in a solemn compact to stand or fall together at the land sale, and to allow no member to be overbid till all the land of the actual settlers had been bid in at the Government price.

Full lists of all claimants were made, and a committee or agent appointed to bid in each lot at the Government price when offered. The names of these important agents, so far as they can be ascertained, were as follows: Jesse Meacham, Gaylord Graves, for Troy and East Troy; R. H. Mallory, for Geneva and vicinity; Le Grand Rockwell, for Elkhorn; Jeduthan Spooner, of Sugar Creek, bid for the towns of Whitewater, La Grange, Sugar Creek and Richmond; Will- iam Hollinshead was the agent for Delavan and vicinity; he employed James H. Reese, of Chi- cago, to assist him in the work.

The sale was at first proclaimed to take place in November, 1838. The settlers were many of them unprepared to pay for their lands, and, through the intercession of Jesse Meacham, C. M. Baker and other leading residents of the county, it was postponed to February, 1839. It was a season of more intense interest to the settlers than any other that had ever occurred. Every town sent, in addition to their purchasing agent, a strong delegation of their most influ- ential. determined and muscular men. From some towns, nearly every man holding a claim went up in person to see fair play and secure his land. A thorough understanding between the associations of this and other counties within the limits of the Milwaukee Land District, that no person should be allowed to make a speculative bid on the claims of actual settlers, on pain of personal indignity or violence more or less disagreeable, as the case might warrant. So the sale opened and progressed, under the management of the United States officers. but under the supervision of a mild form of latent lynch law. which occasionally threatened aetivity sufficient to keep speculators in the background. The sale was attended by vast crowds from all parts of the district. They came in on foot, on horseback, and every other conceivable vehicle of locomo- tion then known, and the town was filled to overflowing while the sale lasted. Delegations from the same section generally took quarters together. often sleeping three in a bed or on the floor. Many took their rations along with them. All had a common interest in seeing the land sold to actual occupants, and few cases occurred where a speculator had the temerity to bid against the agent of a "claim club." Whenever such a bid occurred, the luckless bidder was seized and summarily dealt with. A ducking in Milwaukee River, accompanied with dire threats on a repetition of the offense, kept things satisfactory. Prosper Cravath, in an allusion to the sale in an address delivered before the Old Settlers' Society, summed up the discipline main- tained thus:

" In 1839, at the land sale, your own squatter sovereign law protected your homesteads from the money power and the land-sharks. He who had the audacity to break the least of your commands, you baptized in the Milwaukee River, and out he came, converted and reconstructed."

Mr. James Simmons, in his history of Geneva, gives the following sketch of the experiences of the Geneva delegation:

" The first land sale, as before stated, was appointed for November, 1838, and among those who went up to attend it was C. M. Baker. who, in his capacity of farmer, and to accommodate a friend, went on foot, driving a yoke of fat oxen to be sold for beef. On his return alone, upon an extremely dark night. he got benighted in the pathless depths of Milwaukee woods, but came ont right in the morning. He also went up with some forty others from this place and its vicinity in February, 1839. wading through slush and swollen streams; and, on his return, the thermom- eter marking zero, he was obliged to hire an Indian pony from some squaws to carry him across Root River. An agent who had been sent to Milwaukee by the Geneva Claim Club for that purpose secured quarters for them at a tavern on Walker's Point. Among the number who stopped there was Dr. McNish. The fare was coarse and the cookery bad, and the Doctor, hav- ing endured it as long as he could without boiling over, one morning, just as he was sitting down to the full breakfast table, picked up a biscuit, cold, hard, baked to a dark brown, and as suita-

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ble for a grape-shot as a Dutch cheese is for a cannon ball, and startled the whole company by throwing it with all his might against a thin pine door directly opposite, and then, rising in- stantly, he declared that it was an insult to a dog to offer him such trash, and left the table in high dudgeon.

" The Genevans remained at Milwaukee abont two weeks, occupying a room hired for them- selves, and, when at length their lands were offered for sale in their turn, McKaig, holding a map in his hand, annonneed the names of the claimants, and Mallary bid off the lands in their names."

It is believed that in every instance the settlers of Walworth County secured their land or had it bid off in their name. The usurers and land-sharks, though thwarted at the sale, did not fail of reaping a rich harvest from those so unfortunate as to lack the money with which to make the payment after it had been bid off to them. Having no longer the fear of the claim clubs before their eyes, they did a thriving business by furnishing the money required to make the payment. This had to be done within twenty-four hours of the time it was bid off to prevent a resale, and for such money furnished, the lender took for security the Government deed of the land. giving the borrower a bond for a deed on the payment of double the amount furnished, on such terms of payment and at such rates of interest as might be agreed upon. Thus many a poor settler paid double the price paid by his more fortunate neighbor, and it was many years before these usnrious claims were all wiped out.

As a matter of course, the close of the land sale ended the mission of the claim clubs, and they became extinct.

LEGAL LORE.

The administration of equity and justice began first in the courts of the early Justices of the Peace, who were appointed as soon after the settlements were begun as men of intelligence and probity were indicated by the settlers as eligible and fit for the position. Among the early Justices of the Peace some are remembered for their impartial decisions, some for their sound judgment, some for their sterling. common sense, and others for their arbitrary and eccentric modes of disposing of questions of law beyond their grasp of intellect, or outside their range of legal knowledge.

It is told of a Squire in Sharon, that, on becoming completely bewildered in a maze of legal sophistries, put forth by Robert Menzie, Esq., he brought the case to an unexpected termination. Bringing his fist down upon the table with an oath, he loudly proclaimed: "This court is riz! " and, taking his copy of the statutes under his arm, marched home, thus leaving the court and Menzie in a cataleptic state of suspended animation.

Among the early Justices of the Peace, before whom many important cases were tried, were: Perez Merrick, Spring Prairie, believed to be the first Justice appointed in the county; Thomas McKaig, Geneva: Gaylord Graves, East Troy: Daniel Salisbury, Spring Prairie; Hollis Latham, Elkhorn; Solomon Thomas, Darien; -- Searles, either in Sharon or Darien; Israel Williams, Williams' Bay, near the northeast corner of Walworth: Jasper Griggs, Delavan; Perkins S. Childs, Richmond; Christopher Douglass, Walworth. These, with perhaps one or two others, whose names are forgotten, were the early conservators of law and order, and it is believed that, though not overlearned in the law, their decisions were given as nearly in accordance with prin- ciples of equity and justice as in these more enlightened but less scrupulons times.

The majesty of the law with which they were invested enshrouded them with a dignity, when hearing a case, that no Chief Justice now possesses, and their decisions were considered as too important to be lightly made. There was no venality in the courts of those days. In that region, the old " Squires " of Walworth County kept the ermine spotless.

A few stories of the olden time will revive the memories of the ancient courts:

Thomas McKaig, of Geneva, was a Justice of acknowledged integrity, and intelligent, but not deeply versed in the law. The first criminal case in the county was tried before him, and Squire Williams as Associate. Two brothers named Huff, then living in the town of Salem, Racine County, came to Geneva to mill. On their return, they discovered a fat ox belonging to P. K. Van Velzer, which they drove into the woods, slaughtered, and hid the hide and beef under their meal bags, where they were found by the owner and others in search of the missing ox. Thieves were rare, and the spirits of the exemplary Genevans were stirred with righteous indig-

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nation. A purse was made up to bring the miscreants under the pains and penalties of the law, and C. M. Baker employed to conduct the prosecution. The elder brother was arrested and brought before Squire McKaig, who, not over-confident that he could manage so important a case single-handed, against two expert lawyers, associated with him Squire Williams. Before this full bench the case was tried. Gen. Bullen, of Southport, conducting the defense. The trial re- sulted in the conviction of Huff, who was thereupon sentenced to pay a fine of $40, and adjudged to work out the fine on the highway. The bond was given, but, owing to its getting misplaced, the fine was never worked out in full. It is not a matter of record as to whether Huff retained the beef and hide or not. If he did, the sentence showed that " the quality of mercy was not strained " on that occasion, as the ox stolen was worth $80. It is stated that Huff afterward paid Van Velzer for the ox, and subsequently changed his residence, becoming a forchanded and respected citizen.

In the first criminal trial in the District Court, that of R. T. Ostrander, indicted for perjury in swearing falsely before Squire McKaig, he being a witness, it came out in his cross-examina- tion by H. N. Wells, who was defending Ostrander, that the Squire had never been fully natur- alized, not having made his second application. This rendered him ineligible to the office, and all his acts and decisions as Justice of the Peace void and of no effect. As a consequence, in the case of Ostrander, a nolle prosequi was entered, and the sentence against Huff fell through. Worse still, several very worthy couples, who supposed they had been married by the Squire, were astounded at the disreputable life they had been leading since that time. A law was passed by the next Legislature, legalizing the official acts of the worthy but mis-appointed magistrate. Judge Baker, in commenting on the law passed, said:

" Now, I propose it as a moot question to my brethren of the bar, whether this law made valid the judgment against Huff to work out his fine on the highway, or made the alleged false swearing of Ostrander perjury."

Another novel and important case was that of Capron, Wheeler & Whipple, who sned Charles M. Goodsell, then a miller in Geneva, for damages resulting from his refusal to grind their grists (for their distillery) in tunn, as then required by law. E. Estabrook was for the prosecution, and C. M. Baker for the defense. The case, owing to local prejudice, was to be tried before Hollis Latham, Esq., at Elkhorn, some ten miles distant. The day appointed for the trial was bitter cold, and a driving snow-storm had set in. Mr. Baker proposed a postpone- ment to Estabrook, who curtly refused. Accordingly, both parties started for Elkhorn, Baker on horseback, and the prosecutors, with their witnesses and attorney, in a lumber wagon. Baker, unencumbered, reached the court at the appointed time, but the storm and a lost linchpin so de- layed the other party that a non-suit was granted, and Baker was on his return home before they put in an appearance.

Subsequently, the same suit was brought again, the second time before Christopher Doug- lass, Esq., of Walworth. This time it came to trial. The refusal of Mr. Goodsell to " grind the grist in turn" was in plain violation of the existing law, however it might appear in the higher code by which Mr. Goodsell conscientiously sought to square his actions. The case was decided against him, and judgment rendered. He appealed to the Circuit Court, and, pending the trial there, went to Madison, and procured the passage of an act, which is still in force, exempting millers from grinding for distillation.

The act was approved February 5, 1841.

Of Squire Williams, who sat in judgment with McKaig in the ox suit before related, the following is told by. James Simmons, Esq., alike creditable to his head and heart:

" Dining the absence of James Van Slyke from his home at the head of Geneva Lake, a suit was brought against him before Justice Williams, and judgment rendered against him far exceeding the justice jurisdiction (then limited to $50), and his property sold to satisfy it. The Justice, although intelligent and well informed on other matters, was not posted as to the du- ties and powers of his office. On learning the position in which this assumption of power had placed him, he bought back the property sold and returned it to Van Slyke."

One of the most celebrated cases of expensive litigation that occurred in early times was known as the " black stack " suit. The litigants were living in what is now the town of Sugar Creek .. Asa Blood, Freeborn Welch and William Bohall, three neighbors, entered into a joint arrangement to cut some hay on the Government lands. The result of their joint labors was, unfortunately

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for them, four stacks of hay. Each took a stack, leaving the fourth as common property, to be divided at some future time. Before the division was made, the stack began to sensibly dimin- ish, each hauling from what he deemed his share at his own convenience. Asa became dissatis- fied with the rapid shrinkage, and felt, when it had all disappeared without any division being made, that he had not got his share of the stack. He accordingly brought snit before Squire Thomas to recover from his partners his full share of what became afterward known as the black stack. The whole value thereof would not have exceeded $8. The case, for the conven- ience of the litigants, was tried before Squire Thomas, at the house of Hollis Latham, in Elk- horn. The array of counsel was out of all proportion to the amount involved in the suit. Ed. ward Elderkin and Charles M. Baker appeared for the plaintiff; Milo Kelsey and C. D. Pulver, for the defendants. A cloud of witnesses were summoned from Sugar Creek to prove the quan- tity, the quality and the value of the whole stack, and the quantity and value appropriated by the defendants, as well as to give testimony as to the terms of the copartnership, and the various conversations they had held or heard concerning the said stack and its joint ownership. The claims of the United States were not brought into the case. Everything else, relevant or other- wise, was offered in testimony. The case lasted four days, the intervening nights being spent by the witnesses and counsel in dancing. H. Bradley, now the Postmaster of Elkhorn, furnished the music. Whether it went into the costs of the snit, deponent saith not.

Blood won his case before the Justice, but the defendants took an appeal to the District Court, where the case was tried before Judge David Irvin. The case was eventually decided as in the court below. Mr. Elderkin, one of the counsel employed. who furnished a verbal report of the case, states that the total cost of the " black stack suit " to both parties, including lawyer's fees, conld not have fallen short of $1,000, while the amount in dispute did not exceed $3.

Another, nearly as expensive, grew ont of a misunderstanding between Christopher Payne and Elias Hicks. Hicks hanled three logs-one black walnut and two poplar -to Payne's mill

to be sawed. The custom was to notify the owner the day his logs were to be sawed, and he was expected to take his boards away forthwith. If they remained, they were at the owner's risk. Hicks was notified, but failed to appear, and, on demanding his sawed lumber, got neither satisfaction nor boards from Payne. He brought snit before Justice Dwinnell, who awarded him 61 cents damages, which threw the costs on Payne. He carried it to the higher court, where the case was tried three times, the jury failing to agree. At last the Judge got tired of the case, and threatened to strike it from the docket. Through the kind offices of mutual friends, the litigants agreed to a compromise. Their two sons were to flip coppers, best two in three, heads to win. The loser was to lose the case: the winner was to treat the crowd. Jackson Payne represented the interest of his father, as did Jackson Hicks that of Elias Hicks. The crowd adjourned to the hotel. where young Payne won the case for his father (flipping two heads to Hicks' one), who fulfilled his part of the agreement by treating. as he said, "about half the county." Mr. Edward Elderkin, one of the attorneys in the case, estimates the cost of the suit at over $1,000.

The ends of justice were not always subserved, nor the summonses of the magistrates heeded. A case of contempt of both court and officers occurred in Troy. Maj. Meacham, as has been recounted, led the party who demolished Day's house and ejected him from the premises. Day at once resorted to Justice Merrick for such relief or vengeance on his assailants as the law pro- vided or the court would administer. He procured a warrant from Justice Merrick, of Spring Prairie, for the arrest of the Major and his party. It was placed in the hands of Constable Solomon Harvey, who went up to Troy and arrested Meacham. The papers being duly served, he expressed himself as willing to be carried, but under no obligations to put forth any personal exertions in getting there. If the law required his presence at Spring Prairie, the law must get him there. He should neither walk ten miles to see Justice Merrick, nor would he furnish a conveyance, but he would offer no resistance. On the contrary, his passive carcass, weighing not less than 250 pounds, was at the disposal of Harvey, who was himself a man of slight build, and who had come unprepared for the emergency, mounted on a pony as diminutive as himself. The Constable returned, withont his prisoner, for further instructions. Squire Merrick found no law precedents that would warrant him in sending an ox team and a posse of men to load and haul in an nnresisting prisoner, so the case was dropped from his docket.

DECEASED )

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HISTORY OF WALWORTH COUNTY.

THE FIRST JUDGE,

The first District Court was held in the county in April, 1839. From that time forth, there was a convenient place of appeal from the judgments and decisions of the local magistrates, and litigation, as a natural consequence, increased. Those having a natural bent for the law had a new avenue opened where the strife could be prolonged and the costs accumulated.

The court was held in a small frame building in Elkhorn, built and owned by Le Grand Rockwell. Its conveniences were limited to one room, used also as the Register's and Clerk's office, and post office.

The first two cases tried were appeals from a Justice's court. It is stated by a chronicler that " the jury before whom the causes were tried was sent out under a burr-oak tree to agree upon their verdiet.

Hon. David Irvin was the first United States District Judge who presided in the county. He was a Virginia gentleman of the old school, and sustained the dignity of the law, while on the bench, as only such a gentleman could. He was a bachelor, of somewhat eccentrie habits. and, having no family on whom to lavish his affections, bestowed them in full measure on his horse, Pedro, and his dog, York. He was passionately fond of hunting, and prided himself on being an unerring marksman. It is stated that, although above all worldly bribes, the surest avenue to his favor was through praises bestowed on Pedro, or favors shown to York. Be that as it may, it is an historical fact that no prudent attorney practicing in his court ever spoke of Pedro except in terms of adulation, nor failed to keep on intimate terms of friendship with York.

He was a constant sufferer from neuralgie pains in his back, and heard his cases in a half- reclining position when the paroxysins of pain were most severe, having his seat constructed in the form of a lounge, with one end raised, into which clamps were set to sustain an upright board slanting back a little, against which he could recline.

His favorite game to hunt were of the smaller varieties --- prairie chickens, squirrels and pig- eons-as he averred the skill of a marksman was required to bring them down without shooting them to pieces.

No attack of his malady was so severe as to prevent his going on a hunt if he had set his heart on it. On a sunny Saturday in the late fall, he was holding court. The leaves had just turned brown and the sun shone brightly. The air was that of the balmiest Indian summer days. The squirrels, chattering in the near woods, could be heard even upon the bench, and diverted the attention of the worthy Judge to that extent that he was strongly moved to adjourn the court for the afternoon and go a-hunting He told to W -- , a member of the bar, who was himself a "mighty hunter," the struggles between duty and inclination which had filled his breast during the forenoon, and assured him that if the counsel could be indneed to ask a con- tinnance of the case till Monday, he should accede to the request, and that. in that case, he saw no further obstacle in the way of a squirrel shoot during the afternoon.

W -- undertook to bring about the desired result. During noontime, he casually men- tioned to the counsel in the pending case that the Judge was evidently laboring under one of his severest neuralgic attacks, and that it would be the handsome thing to at least offer a res- pite till Monday, as they knew his reluctance to adjourning the court on account of his ailment. On the opening of court in the afternoon, the counsel who was to be first heard stated to the court that he had noticed with regret the physical suffering under which His Honor had labored through the forenoon, and that he deemed it but courteous to postpone the further argument of the case till Monday, should the court so please. The Judge, at a glance from W -- , took in the situation, and, reclining on his lounge, with his face expressive of suppressed agony, thanked the gentleman for his kind offer, but did not feel free to adjourn the case, if he could possibly endure, unless the opposing counsel saw fit to join him in a request for a postponement. As the party was abont to arise to address the court, Judge Irvin saw, through the open win- dows, his dog, York, and Barney, another favorite hunting dog, trudging off toward the woods. He beckoned to W-, and, on his coming to his side, feebly rose from his reclining position, and, with a countenance that told the spectators of his pent-up suffering, whispered hurriedly in his ear: "I fear the counsel will insist on the adjournment of this case. I observe Barney

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History of Walworth County, Wisconsin, Part 51

Author: Western Historical Co Publication date: 1882 Publisher: Chicago, Western historical company Number of Pages: 998

Author: Western Historical Co
Publication date: 1882
Publisher: Chicago, Western historical company
Number of Pages: 998