This is a reproduction of a library book that was digitized by Google as part of an ongoing effort to preserve the information in books and make it universally accessible. https://books.google.com Halfacenturywithjudgesandlawyers JosephAugustusWillard I m ibarvarfc College Xibrar? FROM Ch.arl.eaD ..... Porter «l \ycc^c^^ f^^^u^c^ ,-.. HALF A CENTURY WITH JUDGES AND LAWYERS JOSEPH A. WILLARD CLERK OF THE SUPERIOR COURT OF MASSACHUSETTS BOSTON AND NEW YORK HOUGHTON, MIFFLIN AND COMPANY <9Cbe fitoroii&e prej% Cambri&ge 1895 f US /34WM" Copyright, 1895, By JOSEPH A. WILLARD. All rights reserved. The Riverside Press, Cambridge, Mass., U. S. A. Electrotyped and Printed by H. O. Houghton & Co. PEEFACE. Very often the preface is the most impor tant portion of a work. The stories, anecdotes, scenes, in this collec tion, by whatever name they may be called, are mainly from my own hearing and personal observation; as to those which are not so, I have endeavored to state the facts correctly. These I am sure I do not forget, though I may not have named in every instance the exact year of their occurrence. I should have been pleased to delineate and describe at greater length the personages who figure in these reminiscences, as their actual appearance is unknown to many of the younger members of the bar ; but the work would be too great. Moreover, I am not able to do it, currente calamo. Many of the anecdotes have been current among the senior members of the bar, and others have been told by me, and so have become known. IV PREFACE. I am handicapped very much in this : that, as I have said, the reader is not acquainted with the actual appearance of the persons re ferred to, their dress, their tones of voice, their tout ensemble, so to speak; and hence many sayings and doings will seem stale, flat, and unprofitable, and the point may be lost. It is quite essential to be acquainted with the dramatis personal to appreciate a joke in full. I have therefore, where I thought it proper, given names ; but in some instances a just re gard for the feelings of those living has led me to refrain. I have not written aught in malice, and I launch this trifle, trusting to the good-will of my brethren of the bar who have known me so long, and by whom I have always been treated with the utmost kindness and consid eration. CONTENTS PASS I. Quia Aperit ? 1 II. Cubia 54 III. Res Judicata 84 IV. Par Horridum 145 V. Obiter Dicta. Part I. .... 157 VI. Obiter Dicta. Part II 196 VII. In Re-Tort. Part 1 232 VIII. In Re-Tort. Part II 293 Index 383 HALF A CENTURY WITH JUDGES AND LAWYERS. QUIS APERIT? I shall begin by giving some account of myself. The ancestor from whom my branch of the Willard family descended was Major Simon Willard, born in the parish of Horsmon- den, county of Kent, England. He came to Massachusetts in 1634, and after a long and honorable career in the service of the colony was actively engaged in military duty in King Philip's War at the time of his death. He first took up his abode in Cambridge, and nearly two centuries later my father purchased the house and lot of land which had been the property of Simon, and subsequently resided there. A stone erected at Concord, Mass., where the Major afterwards lived, bears the following inscription : " Here on this farm dwelt Simon Willard, who did good service to the town and his coun try, for more than forty years." I am a descendant from Simon, in the seventh generation. My paternal grandfather was Jo 2 QUIS APERITt seph Willard, President of Harvard College. My father, Sidney Willard, who was graduated from Harvard in the class of 1798, was Professor of Latin, Hebrew, and other Oriental languages for nearly twenty-five years, as well as librarian and tutor. He was also a Representative in the Massachusetts Legislature in 1833, 1837, and 1843 ; Senator in 1834, 1835, 1839, and 1840 ; member of the Governor's Council ; and Mayor of Cambridge in 1848 and 1850. My maternal grandfather was Asa Andrews, a well-known lawyer in Ipswich, in the county of Essex, and a direct descendant of Ann Dudley, better known as Ann Bradstreet. I am of the fifth generation from Ann Bradstreet, wife of Governor Bradstreet. Mr. Andrews was appointed collector of the port of Ipswich by President Washington. He held his commission until the election of An drew Jackson, when he was removed. The United States government brought a suit against him and recovered $5000. Rufus Choate and Judge Otis P. Lord, then a practicing lawyer, saw the injustice of it, and brought a writ of i error in the United States Court at Washington. The judgment was reversed, and he in turn recovered judgment against the United States for $5000, which sum was paid to him, Mr. Choate and Mr. Lord giving their services. EARLY YEARS. 3 I was born in Cambridge, Mass., on the 29th day of September, 1816. My mother died one year after my birth. The first seven years of my life were passed in Cambridge ; the next year at Westford Academy, of which John Wright was teacher, and where I began the study of the classics. After that I returned to Cambridgeport, and resumed my studies at a school in which James Freeman Clarke was teacher. And here I will mention my second meeting with James Free man Clarke, some forty years later, when at a friend's wedding where he officiated I recalled myself to his memory as his old pupil, Joseph A. Willard, and received the following kindly criticism : " Oh, yes, I remember you well, — a very mischievous boy, but nothing malicious." Shortly after this, my father let his house in Cambridge to Rev. Mr. Coit, an Episcopal min ister who was settled there, and who married a sister of Wendell Phillips ; my father and I residing with them. I remained at school in Cambridgeport for some time. There was then no means of conveyance to Boston, except a stage, which ran twice a day to and fro, and was driven by Cyrus Morse, an old stage-driver; so I walked to my school twice each day. This stage carried the mail, the postage on letters from Cambridge to Bos 4 QUJS APERITt ton being then six cents. The fare was twenty- five cents. In the summer, the time of leaving Cambridge was eight a. m. and two p. M. The stage returned from Boston at twelve and six. In the winter, the time was an hour later in the morning and an hour earlier at night. Mrs. Morse, wife of Cyrus, had charge of me for a short time after my mother died, and always in after years regarded me with mo therly affection ; frequently as I passed her house on my return home from school when at Cam bridge, she had a slice of brown bread and butter ready for me. If I happened to be on the road when Mr. Morse came out from Boston with the stage, he always asked me to get on and ride with him while he distributed his passen gers at their several homes. When Morse got too old to drive he resigned ; and when he had partially lost his mind the ruling passion was so strong that he hitched lines to his tea-kettle and drove at home. The stage property was owned by James B. Bead, who also kept a livery stable, and who, knowing that I was developing a fondness for horses, often gave me a ride on horseback whenever any of his horses needed exercise. For greater accommodation of the public a two- hourly stage, established by Eben Kimball on April 1, 1826, and later an hourly, were put AN EDUCATED HORSE. O on the road, and other drivers were joined with Morse, in charge of these conveyances. In 1824, I remember being one of the school children in Cambridge who were arrayed, boys and girls, on each side of Main Street, with a badge pinned to each of them, on which was inscribed, " Welcome, Lafayette," with his likeness upon it ; while Lafayette sat in a barouche which was driven between the lines, the boys bowing, and the girls courtesying. At the house where I boarded in Cambridge- port lived a gentleman of singular character by the name of Amasa Clapp. He was a good singer. He had in his possession a handsome mare, which he had educated, and which would tell the time of day, take off the owner's hat, and perform various other tricks. Erastus Brigham, a brother of Chief Justice Brigham, was also a musician, and a friend of Clapp, and they often made the welkin ring with their songs and stories. Many years after, while riding horseback one day in Dorchester, I lost my way. Along the road came a rider in whose person I recognized Mr. Clapp. I said: "Mr. Clapp, where ami?" He said : " Who are you ? " I replied : " My name is Willard ; I boarded with you, at Cambridgeport, many years ago, 6 QUJS APERITt when I was a boy, and you had a horse which would tell the time." " That 's singular," he said. " I have one here now that will do the same thing. Charley, what time is it?" and by some means or signals, the horse pawed the hour and minute.