THE TRIAL
The March term of the Court at Chardon was at the beginning of its
third and last week. The important case in ejectment of Fisk _vs_.
Cole, was reached at the commencement of the second, and laid over for
the absence of defendant's counsel. This directly involved the title
of Cole to his land; a title that had been loosely talked about, and
generally supposed to be bad.
In the fall of 1837, a stranger by the name of Fisk appeared in the
country, placed a deed of the land in question on record; gave Cole
notice to quit, commenced his suit, and leisurely proceeded to take
his evidence in Conn, and Mass., and get ready for the trial. Bart's
trial of Coles's first case had rendered the latter an object of
interest; and it was generally felt that the new case was one of great
oppression and hardship; and popular opinion and sympathy were wholly
with Cole, and all the more so, as the impression was that he would
lose his land.
The people of Newbury, however, really believed that if Bart would
return and take the case in hand, in some way, he would win it; but
the Court had commenced, the case was called, and he still lingered in
the East. In the spring before he left Newbury, he had spent much time
in examining the case, looking up the witnesses, and with such aid as
his brother, the Colonel, could give, their names had been obtained
and they were all subpoenaed to attend. Among them were two or three
old hunters and soldiers, on the Western frontier.
Ford was in the case, and had made up the issue, and at the trial,
Bart had intended to secure the aid of Wade or Hitchcock. Except
himself, no one knew much of the case, and none had confidence that
Cole would prevail in the trial, and a general feeling of despondency
prevailed as to his prospect. On the afternoon of the third Monday,
Bart reached Chardon, from Albany, secured a room, assembled his
witnesses, talked up the matter with the old hunters, and by his
quiet, modest confidence, and quick, ready knowledge of all the
details, he at once put a new aspect upon the defence. Wade was also
in Chardon, and on that evening, Bart laid his programme before him
and Ford, who were not more than half convinced, and it was arranged
that Bart should go forward with the case, to be backed and sustained
by his seniors.
On the next morning he made his first appearance in Court, and in
person, air and manner, he had become one to arrest attention, in a
crowd, such as thronged the court room; and when his name transpired,
he was at once identified as a prominent person in the detection and
arrest of Brown & Co., whose name had become widely known; and men
scanned him with unusual interest. Some noticed and commented upon the
brown moustache, that shaded the rather too soft and bland mouth; and
observed the elegant tone of his dress, which, when it was examined,
resolved itself rather into the way his clothes were worn. Ford
introduced him to the lawyers present, with whom his quiet, modest
manner deepened the impression made by his person. As he took his
seat, his eye fully met the eager gaze of Judge Markham, from the
bench. Bart felt the earnest, anxious look of the Judge, and the Judge
thought he saw a shadow of sadness in the frank eyes of Bart.
A case on trial ran until late in the afternoon, when Fisk _vs_. Cole
was called, was ready, and a jury sworn. Mr. Kelly, of Cleveland,
appeared for the plaintiff, a very accomplished lawyer and a courteous
gentleman. He produced the record of the old Conn. Land Co., an
allotment and map of the lands showing that the tract in dispute was
originally the property of one John Williams. He then made proof of
the death of Williams, and that certain parties were his heirs-at-law;
and produced and proved a deed from these to the plaintiff. This made
what lawyers call a paper title, when the plaintiff rested his case.
For the defendant, Barton said he would produce and prove a deed
from John Williams, junior, only child of Williams, mentioned by the
plaintiff, to the defendant, directly, dated January, 1816, under
which he took possession of the land in January, 1817; and that he
also found a man in possession of the premises, who had possessed and
claimed the land for years, and whose right he purchased. It would
thus appear, whatever might be said of his written title, that he had
complete right by possession, adverse to the plaintiff, for twenty
years.
"You will do well if you sustain that claim," said Kelly,
incredulously.
"I shall labor for your commendation," was Bart's pleasant reply.
The deed was proven, as well as the relationship of John and John,
Jr. Bart also produced a book of the Probate records of Geauga County,
which he said contained a record of the administration of one Hiram
Fowler, which he might want to refer to, for a date, thereafter, and
if the Court would permit, he would refer to, if it became necessary.
He wished the record to be considered in evidence, for what it was
competent to prove.
"Certainly," from the Court, who made a note of it.
He then proved that Cole left Massachusetts early in the spring of
1817, but failed to show when he reached Ohio, whether in 1817, or
1818. One man remembered to have seen Hiram Fowler at work for him
on a tree fence, along the back line of it, during the summer of his
arrival on the land. He also made proof, that at a very early day,
tree fences were about at least three sides of the land, thus forming
a cattle range, and evidencing possession and occupancy. He then
called McConough, of Bainbridge, and men bent eagerly forward to
gaze at the old Indian hunter, who had been a sharp-shooter on the
ill-fated "Lawrence," in Perry's sea fight, off Put-in-Bay, and who
was also with Gen. Harrison at the Thames; a quiet, compact, athletic,
swarthy man, a little dull and taciturn. He said he was first on the
ground in 1810 or 1811, and found a man by the name of Basil Windsor,
who lived in a small cabin by the spring, near which he had then two
small apple trees. He was there again, with John Harrington, in 1816.
They drove a herd of elk through an opening, into and through Basil's
yard, at the south side, and back into the woods north, until they
came to a tree fence, when they turned east, and were headed off by
another hedge, and the elk were too tired to get over; and there
in the angle they killed two or three, when it came on dark. That
Harrington lit a fire, staid by the slaughtered elk through the night,
to keep the wolves from devouring them, and that he, McConough, went
and staid with Basil. That Basil was a sort of hermit, who lived in
the woods and kept two or three cows. That on their way to Court a few
days ago, he and Harrington went to the premises of Cole, and found
his house near the old Basil spring, and that one of the apple trees
was still standing there. The other had been recently cut down.
Harrington, a still more celebrated hunter and pioneer, and who
furnished a good idea of old Leatherstocking, and who was with
Winchester at the battle of River Raisin, from which he escaped,
and was one of Harrison's scouts, had been often at Basil Windsor's.
Hunters often found shelter there. He was there both before and after
the war; and he fully corroborated McConough.
Old Bullock was then called, a heavy-framed, sluggish giant, of that
strong, old-fashioned type of head and face, now nearly out of date.
He, too, had served in the army, and was a famous hunter and trapper.
He knew Basil, a man who avoided others, and who had met with
misfortunes "down country." "He had hunted and trapped all through
the woods about him, and knew of his having had fences to confine his
cows. Knew Cole; he came in in 1817, 18 or 19, couldn't tell which.
Cole showed him his deed; went with him to find his land, and found
it was the same on which Basil was living. Went with him to see Basil,
who thought it was hard. He said that the land was his'n. He had a
hundred and sixty acres; showed no deed or writin's. Cole finally
bought him out--his right, and 'betterments;' and gave him a horse and
harness, and we went down to Square Punderson's, to git writin's made,
and he wa'n't to home, and none was made. Basil took the horse and
left, and Cole moved into the old cabin. I knew about the slash
fences, and ketched a spotted fawn once, hid in one on 'em. I used
to cross over by the big maples, by the spring run, where Coles's two
children were buried, to go to my traps."
Bullock was put under a sharp cross-examination, but his story was not
shaken. He had a plenty of good-natured, lazy force, and took care
of himself. A witness brought in a short section of one of the apple
trees, which had twenty-nine rings showing its age, which made a
sensation.
Several other witnesses swore that when they were boys, they used
to hunt for cattle, on the bottoms, to the north of Cole's land, and
often got on to the old tree fences, to listen for the cow-bells. And
Bart rested his case.
One branch of this defence looked ugly. The defendant had not clearly
proven that he in person took possession of the land in time to
perfect his title by adverse possession. But he had shown another man
in possession, of some of the property, at least, and claiming it, and
he had purchased this right, whatever it was, had gone in under him,
and so succeeded to his possession, and right, if he had any.
This took the plaintiff by surprise, and when the defendant rested, he
and his counsel were on the alert to meet it. A note came in from the
outside, and the plaintiff and his counsel retired under leave of the
Court, for consultation. Meanwhile Judge Markham and the President,
who had taken much interest in the case, engaged in an earnest
conversation. Then Judge Markham came down from the bench, and calling
Bart to him, shook him warmly by the hand, and introduced him to Judge
Humphrey, and his associates. All of which the jury observed.
Upon resuming the case, the plaintiff produced his depositions, and
proved that the defendant's grantor, John Williams, Junior, was the
reputed natural son of Williams, of the Land Company, &c.; also called
witnesses to show that Cole came into the county in 1818. An attempt
was then made to impeach Bullock, which failed. Ward was then put on
the stand, and swore that he met Basil Hall, on a certain time, who
told him that he had no claim, right or title to the land whatever. He
also swore that he saw Hiram Fowler at work, mending the tree fence,
on the north, the summer that Cole came in.
Bart, who had evinced rare skill in the examination of his own
witnesses--a more difficult thing, by the way, than to cross-examine
those of an adversary--put him through a sharp and stinging
cross-examination. Under pretence of testing his memory, and of
showing bias, he took him over the whole course, and it appeared that
if he ever had the conversation he claimed with Basil, it must
have been after his sale to Cole; and got from him such damaging
statements, that it could be fairly claimed to the jury that the whole
case was prosecuted in the interest of Ward. If so, this would exclude
his testimony wholly. This was in the dark legal days, when not only
were parties excluded from giving evidence, but a pecuniary interest
in the result of the suit to the value of one mill, would render a man
incompetent as a witness.
Ward had not expected to appear as a witness at all, and though a
shrewd man, he came upon the stand not well knowing the legal ground
he was upon; and the questions came so thick upon each other, that
they fairly took his breath. If plaintiff objected to a question,
it was at once withdrawn, and another instantly put, so that he was
rather confused, than aided, by his counsel's interference.
It was certainly a relief to both Kelly and Ward, when the latter,
tattered and battered, was permitted, with the ironical thanks of
Bart, to retire; and the plaintiff's rebutting evidence closed. Bart
called two or three to sustain Bullock, and rested also. This was near
the close of Wednesday.
Mr. Kelly then arose, and delivered the opening of the final argument
to the jury, contenting himself with presenting his own case. He
only glanced at the case of defense, and said he would reserve full
argument on this, as he might, until he had heard from the other side.
As Bart arose to commence, the Court said:
"Mr. Ridgeley, we will hear you in the morning. Mr. Sheriff, adjourn
the Court until to-morrow morning."