USA > Indiana > Rush County > Centennial history of Rush County, Indiana, Volume I > Part 10
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Captain Bracken, and he will give my character.'
'Captain Bracken, stand up and be sworn. Are you acquainted with the plaintiff, and how long have you known him?' 'T have known him from a boy.' . What is his character ?' . Well, he always dealt fair enough with me.' 'But for his honesty; you never heard anything against him for honesty ?' ' Well. I can't exactly say that ; he stole a fine hog from me that I had killed and hung up in the smoke house: I tracked him the next morning, and found the hog at his house, and he paid me for it.' Rariden laughed aloud, and my head fell at least forty degrees. The case was closed before the jury. The proof was positive. I sprang to my feet, and addressing the court, 'I ask the court to instruct the jury, that before they can find for the defendant the evidence must be so strong that if the plaintiff was on trial for stealing the hogs, they would send him to the penitentiary.' 'I admit that to be the law; let the jury take the case,' said Mr. Rariden. The jury retired to their room, and the court adjourned. I walked silently to the tavern, amid the jeers of the lawyers, and the exultation of my competitor for the verdict. The jury was out all night, and just as the court met in the morning, returned with a verdict of 'one cent damages for the plaintiff.' The defendant rushed up to me and tendered the cent. Mr. Rariden most indig- nantly stepped up to the foreman, 'How could you find such a verdict ?' 'Upon your own admissions.' .What did I admit ?' 'Mr. Smith said if we found for the defend- ant. we must send the plaintiff to the penitentiary, and von admitted that to be the law : so we could not think of sending a man well off, and with a good tavern stand. to the penitentiary, for stealing two little hogs, and poor at that.' Judgment was rendered for one cent in damages, and over $300 costs. All my imaginary income from the verdiet vanished, and the next time I heard from the parties, the tavern of the defendant was advertised bv the sheriff to pay the costs. This case has occupied more
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space than I would have liked, but it contains a profes- sional moral worth remembering."
TEETH IN TESTIMONY
"In an interesting trial at Rushville, in which I was engaged as counsel. my principal witness to sustain the case was a woman by the name of Elizabeth Blackstone. She had sworn positively to the facts of the case. Messrs. Test and Rariden, the counsel on the opposite side, saw that the case was with me unless they could impeach her testimony. She was a stranger, and none knew her character, good or bad. She had testified, however, that she was in the state of Ohio at a particular time. This was taken down by the counsel, and upon that point they expected to contradict and discredit her. After she left the stand, they called a witness that resided in Illinois to prove that at the time she stated she was in Ohio she was in fact at a dance in Illinois, where the witness was. Elizabeth wore a beautiful set of artificial teeth-a mouth full. She was at some distance back from the witness stand. The witness from Illinois swore positively to her person, and that she was at the dance in Illinois at the time, directly contradicting her. The counsel gave over the witness to me. Elizabeth whispered in my ear: 'Let me ask him a question.' 'Certainly.' She turned her head from the witness, slipped ont her false teeth and wrapped them in her handkerchief, stepped quickly up to the witness, looked him full in the face, opened her month wide exhibiting a few rotten snags: 'Did you ever see me before ?' 'No, I can swear I never did. You looked some like the lady I saw, but I see you are not the same woman. She had beautiful natural teeth.' The triumph of 'art' in Elizabeth was complete. I afterwards learned that she was at the ball, and the first impression of the Illinois witness was correct."
A MALPRACTICE CASE-A LEARNED WITNESS
"At a term of the Rush Circuit Court, came on for trial an important case against Dr. Sexton for malprac-
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tice, in failing to eure a case of whitlow on the plaintiff's finger. The doctor was one of the first surgeons in the state. I was employed to assist my young friend, Charles H. Test, in the defense : Amos Lane and James T. Brown for the plaintiff : damages claimed $10,000; Bethuel F. Morris and his side judges' on the bench. It was admitted that the fingers of the hand in question were drawn to the palm, and entirely stiff, when Dr. Sexton was first called. Preparatory to the trial, the doctor had placed in my hands ' Bell on Surgery,' giving me an oppor- tunity to understand his case. The prosecuting witness was a little pox-marked Irish doctor, whom I call by the uncommon name of Smith. He had been but a few years from the Emerald Iste, with a 'rich brogue' upon his tongue, and a good spice of the blarney, and with a very laudable ambition to become the competitor of Dr. Sexton. Like death 'he chose a shining mark.' He professed to be a regular graduate from a college in Cork, and with the most significant look would draw from his pocket a round silver medal, upon which was stamped .Dr. Smith, diploma,' and exhibit it to the gaze of the people. The doctor would have succeeded well had he confined himself to a country practice, and, as my ancient friend, Jeremiah Cox, of Richmond, said in the senate, to 'common doctor- ing with pills and powders, and let surgenary alone.' It seemed that he had heard of this whitlow case, had got up the prosecution against Dr. Sexton, and now stood upon the witness stand as the main, and indeed only witness for the plaintiff. He clearly testified to the mal- practice of Dr. Sexton, and most triumphantly pointed to the stiff fingers. 'What more do you want but the hand ve see ?' The plaintiff rested, and my duty of cross-ques- tioning the doctor commenced. 'Doctor, you say this was malpractice.' 'I do, sir.' 'Are you a regular surgeon ?' 'I suppose I am.' 'Have you a diploma ?' 'I have, sir.' ' Will you let me see it?' 'I will not, sir.' 'It is in your pocket, is it not?' 'It is, sir.' 'Then hand it out.'
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Counsel for plaintiff-'We object; it is a private docu- ment, and no notice has been give to produce it, nor has subpoena duces te cum been issued.' The Court-'Objec- tion sustained.' 'Well, Doctor, is not your diploma silver, about the size of a dollar?' 'Suppose it is-what's that to you.' 'You swear that this was malpractice; do you understand that the muscles were contracted and the fingers stiff ; with the ends drawn into the palm of the hand, when Dr. Sexton first called ?' 'I understand so.' 'Do you think you could have straightened the fingers and given elasticity to the joints in that state ?' 'Cer- tainly.' 'What would you have applied to the case ?' 'A poultice of slippery-elm bark.' 'Doctor, what charac- ter of whitlow is this? Was it seated under the cuticle near the root or side of the nail, or in the cellular mem- brane under the cuticle, or in the theca or sheath of the flexor tendons, or in the periosteum ?' It was evident that this question struck the doctor all aback. It was, in the language of my facetious friend, Jas. T. Brown, on another occasion, 'all Greek and turkey tracks,' to the witness. Witness greatly confused. large drops of per- spiration falling from his chin, and looking imploringly at the court, 'Must I answer such questions ? I did not come here to be examined as if I was before a college of physicians asking a diploma !' Judge Morris-' The ques- tion is proper, the witness must answer.' 'I shan't answer-the court may send me to jail.' It was apparent to me that the doctor thought he could not make his posi- tion worse than it was becoming on the stand, and that going to jail would be a fortunate escape. 'You could answer if you would, Doctor?' 'Certainly I could, in a moment of time.' 'But you won't do it?' 'Not I.' 'Doctor, do you think this was a case of paronychia ?' Of what did you say ?' 'Of paronychia.' 'I shan't answer.' 'You could answer if you would, Doctor ?' 'Surely I could,' stepping about the floor, and becoming more agitated. 'Doctor, might not this have been a case of 9
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onychia maligna ?' 'I shall answer no such questions.' . You could answer if you would ?' ' In a minute.' 'Don't some of the authors that you have read. speak of the disease under the divisions I have named?' 'I believe they do.' . Which of them, Doctor?' 'I shan't answer." 'You could tell me if you would ?' . Yes sir, I could name fifty of them.' 'Please name one?' 'I shan't do it.' ' Doctor, do not some of the authors you have read. say that in certain stages of the disease, it is proper to use lunar caustic and other escharotics ?' ' I tell you I shall answer no such questions.' 'Yon could give me the names of the authors if you would, Doctor ?' 'Indeed could I. as long as your arm.' Here the counsel for the plaintiff rescued the doctor. 'May it please the court, we will press this case for the plaintiff no further: let the jury find for the defendant in the box.' Verdiet and judgment accordingly."
THE MEGEE WILL CASE
The case which was perhaps more far-reaching in its effect on subsequent judicial decisions of a similar nature than any other ever tried in the state, was the Megee will case. The suit, Peter W. Rush et al. vs. Mary Megee et al, was brought in May, 1867. to contest the will of John Megec, deceased. The defendants asked a change of vene and JJudge Jeremiah M. Wilson of the Fourth Judi- cial Cirenit was appointed to hold this special term. Much exceptionally fine legal talent was employed on both sides, B. F. Claypool, D. W. Voorhees, and W. A. Cullen by the plaintiffs; Leonidas Sexton, T. A. Hen- dricks, O. B. Hord, and A. W. Hendricks for the defend- ants. The will was contested on the grounds that the testator was of unsound mind at the time of the making of the will. and the answer was a general denial. Megce had become obsessed with the idea that two of his rela- tives, Dr. Rush and Mr. Link, were in a conspiracy to poison him, and thus share in his estate. The evidence showed that he had mysteriously left his home without
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the knowledge of his family, had gone to Kentucky where he remained for some time, and while there had shot himself. It was held that every man is presumed to be of sound mind until the contrary is made to appear by evidence, and the jury found for the defendants, the court charging them with the costs of the trial. A motion for a new trial was overruled, and exceptions were properly taken by the defense, an appeal to the supreme court being allowed upon the filing of bond in the sum of $1,000. The case came up for trial in the supreme court in the May term of 1871. The evidence was voluminous, cover- ing 200 pages. Briefly, the question was this: If Megee was afflicted with delusions which related to his sons-in- law, Dr. Rush and Mr. Link, which were entertained at the time of the execution of the will, and believed that they designed to poison him, and persisted in that belief without reason, and against all evidence or probability, and if such delusion affected his judgment in disposing of his property among the members of his family just alluded to, such a disposition could not be maintained. But if, notwithstanding he entertained such delusions in regard to Dr. Rush and Mr. Link, he did not permit them to affect his judgment as to the members of his family, and his mind was not influened by them, his will would be valid. The vital question then became-What was the condition of his mind at the time of making the will ?
The judgment of the Rush county court was reversed at the costs of the appellees, and the cause remanded for further proceedings not inconsistent with this opinion. A petition for rehearing was overruled. The opinion of the supreme court cleared up many points of law, and estab. lished precedent for all time in cases of a like nature.
OTHER COURTS OF THE COUNTY
Besides the circuit court, business was transacted in the court of common pleas, the probate court, commmis- sioners court and for one year the duties of the last named were discharged by a court of justices, composed of one
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justice from each township. The probate court was abolished in 1853. its jurisdiction being transferred to the court of common pleas, and those presiding as judge of this court were: Elias Poston and North Parker, the associate judges from 1822: Elias Poston, 1829; Turner A. Knox, 1836; Pleasant A. Hackleman, 1837; Alexander Walker, 1841 ; and James Hinchman, 1848. The court of common pleas was established in the year 1853, and was designed to have jurisdiction over probate matters, and over all offenses which were less than felonies and not allotted to the special jurisdiction of justices of the peace. This was a very popular court, and much objection was raised to its abolition in 1872. Its jurisdiction was, in most cases, concurrent with the circuit court, and for a time appeals conld be taken from it to that court, but this provision was abandoned, appeals being taken directly to the supreme court of the state. The clerk and sheriff of the circuit court were the officers of the court of common pleas, and while it was in existence the office of judge was filled by Roval P. Cobb. 1853: Samuel A. Bonner, 1857: William Grose, 1861; David S. Gooding, 1862; William R. West, 1865: William A. Cullen, 1867 ; and William A. Moore, 1871.
The office of judge of the Rush Circuit Court has been held as follows in the order named: William W. Wiek, Miles C. Eggleston, Bethuel F. Morris, Charles H. Test. Samuel Bigger, James Perry, Jehu T. Elliott. Oliver P. Morton, William M. MeCarty, Reuben D. Logan, Jere- miah M. Wilson. William A. Cullen. Samuel A. Bonner. John W. Study, JJames K. Ewing. John D. Miller (died in office), David A. Myers. Douglas Morris, Will M. Sparks, Alonzo Blair. John D. Megee (appointed when Rush county was made a circuit by itself) and Will M. Sparks (re-elected in 1920).
OTHER OFFICERS OF THE COURT
The prosecuting attorneys of the Rush Circuit Court have been : Hiram M. Curry, 1822; Charles H. Test, 1823;
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James Whitcomb, 1826; James Perry, 1830; William J. Brown, 1832; Samuel W. Parker, 1837; David Macy, 1839; Martin M. Ray, 1841; Jehu T. Elliott, 1843; Jacob B. Julian, 1844; John B. Still, 1846; P. Y. Wilson, 1848; Benjamin F. Johnson, 1850; Joshua H. Mellett, 1851; Oscar B. Hord, 1853; William Patterson, 1856; Henry C. Hanna, 1859; Milton H. Cullum, 1861; Samuel S. Harrell, 1863; Creighton Dandy, 1865; Kendall M. Hord, 1867; Alexander B. Campbell, 1869; Elias R. Monforth, 1873; Orlando B. Scoby, 1874: John L. Bracken, 1879; Richard A. Durnan, 1880; Marine D. Tackett, 1881; George W. Campbell, 1886; Daniel F. Shields, 1890; David A. Myers, 1892; George W. Young, 1894; Elmer E. Roland, 1896; Ned Abercrombie, 1898; George H. Meiks, 1900; James V. Young, 1902; Elmer Bassett, 1904; J. Oscar Hall, 1908; Wilbur W. Israel, 1910; John C. Cheney, 1912; Albert C. Stevens, 1914, the present incumbent.
The clerks of Rush county have been: Robert Thompson, 1822; John L. Robinson, 1843; Pleasant A. Hackleman, 1847; George Hibben, 1856; John S. Camp- bell, 1860; Benjamin F. Tingley, 1864; James W. Brown. 1872; Jetson Smith, 1875; James W. Brown, 1879; James M. Hildreth, 1885; Thomas M. Green, 1892; Sanford M. Poston, 1900; William A. Posey, 1904; Verne W. Norris, 1908; Arie M. Taylor, 1912; George B. Moore, Jr., 1916; Loren Martin, appointed August, 1919, elected Novem- ber, 1920.
The sheriffs of Rush county have been : John Hays, 1822; N. W. Marks, 1823; William Bussell, 1826; Alfred Posey, 1830; Greenberry Rush, 1834; George W. Brann, 1836; Alvin N. Blacklidge, 1838; Nehemiah Hayden, 1842; Walter Brown, 1844; Harmony Laughlin, 1848; Nehe- miah Hayden, 1850; James M. Caldwell, 1852; Harmony Laughlin, 1854; Samuel Caskey, 1856; Harmony Laugh- lin, 1858; Samuel S. McBride, 1864; Alexander McBride, 1866; J. H. Cook, 1868; J. K. Gowdy, 1872; George W. Hall, 1874; Harrison S. Carney, 1876; George W. Wilson,
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1880; John W. Tompkins, 1884; Francis M. Redman, 1888: Benjamin L. McFarlan, 1892; William L. Price, 1896; William M. Bainbridge, 1900; William King, 1904; Clata L. Bebout, 1908: Voorhees Cavitt, 1912; E. M. Jones, 1916: and S. L. Hunt, sheriff-elect, 1921.
SOME NOTABLE FIGURES AT THE BAR
Many attorneys who have practiced in the Rush county courts have been known prominently, not only as attorneys, but have also occupied important judicial and political positions, both state and national. Among the foremost men at the bar in the carly days was Judge Charles H. Test, a son of the Hon. John Test. He was a young man of fine talents and great energy of character, at an early age taking a high position among the notables of the profession. In person he was slender, about the medium height, had a small head, high forehead and pro- jecting teeth. It is said of him that "he was not a very handsome man, and vet his countenance lit up so well when speaking that he passed without particular com- ment." The forte of the judge was before the jury on facts. He made a strong argument and his sympathetic appeals were unsurpassed. His habits were strictly tem- perate. He held the offices of president judge of the circuit, judge of the criminal court in Indianapolis, and after several years as secretary of state, returned to the practice in Wayne county. Samuel Bigger, judge of the circuit court, later became Governor of Indiana. Hugh B. Eggleston practiced here and then removed to New Orleans, where he took a commanding position at the bar. W. J. Brown, who became a member of Congress. secretary of state of Indiana, and assistant postmaster general in the cabinet of President James K. Polk, served as prosecutor in this circuit, George B. Tingley once represented Rush county in the state legislature, and was known as an astute lawyer. Finley Bigger was registrar of the United States treasury during the administrations
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of Pierce and Buchanan, and thereafter became a member of the Rushville bar. Pleasant A. Hackleman, though not particularly talented as a lawyer, was a brilliant orator. His forte was politics, and during the Civil War he rose to the rank of brigadier-general and was killed at the battle of Corinth, Indiana's only general to meet death in action. Leonidas Sexton was admitted to the Rush county bar in 1847, and in addition to being an able lawyer, was a keen politician. He was a member of the state legisla- ture, was lieutenant governor of Indiana, and a member of Congress from this district. George B. Sleeth, one of the most brilliant orators ever gracing the local bar, came to this county from Pennsylvania, worked on a farm, borrowed money from his employer to obtain an education at Farmers' College, near Cincinnati, studied law under Leonidas Sexton, and took a commanding place among the members of the profession. He was elected state senator from the district of Rush and Decatur counties, and in 1878, representative from Rush county. George Puntenney was a native of Rush county, having been born here in 1832. He received his education in the common schools of the day and at Fairview Academy and Rich- land Academy. He served in the Union army during the Civil war and was admitted to the bar in 1867 where he became distinguished. He was a newspaper man of ability and for many years edited the Rushville Jacksonian. Ben L. Smith was one of the most successful members of the local bar, where he practiced most of his life. He became widely known throughout the state and was selected as a trustee of the Knightstown Soldiers' and Sailors' Orphans' Home. Jesse J. Spann, a member of the bar for sixteen years, from 1871 to his death in 1887, was during the period one of the leaders of his profession. He was an able advocate and trial lawyer, although his legal knowledge was not so great as that of either Sleeth or Sexton. He was a member of the state senate where he made for himself an enviable reputation. Judge
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William A. Cullen, David S. Morgan and many others have by their achievements made bright pages in the history of the legal profession. Senator James E. Watson, who was engaged in practice here for a short time prior to his entrance into politics, was born in Win- chester. Ind .. and was admitted to the bar in that city in 1886. In 1893 he removed to Rushville, and almost immediately entered the political arena as a candidate for election to the United States Congress. He was elected to the 54th Congress (1895-7). He was also a member of the 56th-60th Congresses (1899-1909) from the Sixth Indiana district. Mr. Watson was Republican nominee for gover- nor of the state in 1908, but was defeated in the election by Thomas R. Marshall. In 1916, he took his seat in the United States Senate to fill the unexpired term of Ben- jamin F. Shively (deceased) from 1916-21 and in 1920 was re-elected to the Senate. Douglas Morris, a present member of the bar, was judge of the Rush Circuit Court for six years and for a like period (1911-16) was a justice of the Indiana Supreme Court. The venerable Frank J. Hall, present acknowledged dean of the bar of the Rush Circuit Court, was lieutenant governor of Indiana during the Marshall administration, 1909-13. Mr. Hall is a native of Rush county. a son of Squire William S. Hall. whose strong personal influence in behalf of better schools here in his generation has rendered his memory an endur- ing one in Rush county. There are two woman members of the bar, Miss Anna L. Bohannon, junior member of the
- law firm of Gary & Bohannon, who was admitted in 1919. and Miss Hannah S. Morris, admitted in 1921, who is practicing in association with her father, Douglas Morris.
NOTABLES FROM NEIGHBORING CIRCUITS
Among the practitioners at the Rushville bar during the past century there have been many from surrounding counties who have been recognized for their ability in both the practice of the legal profession and in political
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MEMBERS OF RUSH COUNTY BAR ABOUT 1875
Marshall Kiplinger, Claude Cambern, Arthur B. Irvin, Samuel F. King, Frank J. Hall, James W. Brown, John Q. Thomas, Thomas M. Green, John D. Megee, Jesse J. Spann, Geo. B. Sleeth, Geo. C. Clark, Leonidas Sexton, Wm. Cassidy, Geo. H. Punten- ney, Finley Bigger, William A. Cullen, Ben. L. Smith, Jefferson Helm.
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positions. A few of these have been: Oliver H. Smith, afterward a member of the United States Senate; James Rariden, afterward a member of Congress; James T. Brown, of Dearborn county, a profound lawyer with a keenness of sarcasm seldom equalled; Caleb B. Smith, afterward representative in Congress, and secretary of the interior under President Lincoln.
Oliver Hazard Perry Throck Morton, the fourth son of James Throck and Sarah T. (second wife) Morton, was born August 4, 1823, in a two-story frame house in Salisbury, Wayne county, Indiana, then kept by his father as a tavern. The Mortons were descended from an old English family, the Throckmortons, but changed the name soon after coming to this country, many of its members using Throck as a given name. At his mother's death in 1826, Oliver, who was then three years old, went to live with his maternal grandfather, John Miller, of Springfield (now Springdale), Ohio. In this family of stern Scotch Presbyterians he lived until he was fifteen, when, at his grandfather's death, he became a druggist's clerk in Centerville. He soon came to a misunderstanding with his employer, however, and he was then "bound out" for four years to his brother William to learn the hatter's trade. During this period his fondness for music asserted itself and he played in the village band on the cornet, clarinet and flute. Six months before the end of his apprenticeship, in 1843, he left his brother's establish- ment, and entered Miami University at Oxford, Ohio. He had a splendid physique, and his sociable disposition made him a favorite with his fellow students. Although an "irregular," he stood high in his classes, and attained some distinction as a debater. After leaving Oxford in the spring of 1845, he began the study of law in the office of John S. Newman, of Centerville, then a leader at the Wayne county bar. He said of Morton that he was "laborious in his studies, strictly temperate in his habits, and genial in his manners." Shortly after he had begun
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his studies with Newman he married Lucinda M. Burbank. of Centerville, Ohio, and to this happy marriage five children were born: John Miller, Mary Elizabeth. Sarah Lilas, Walter Scott, and Oliver Throck.
In the fall of 1845 Mr. Morton bought $200 worth of books from his preceptor, and entered the practice of the profession as his partner. This partnership continued for something over a year, and in the spring of 1847 he formed an association with Charles H. Test. In 1849 he practiced alone, and in 1850 with Nimrod H. Johnson, formed the law firm of Morton & Johnson. In 1853, he was elected judge of the Sixth circuit, but in the summer of the same year traded circuits with Judge W. W. Wick. of Marion county. He presided at the Rush Circuit Court, and his signature may be seen on some of the records in the clerk's office at Rushville today. But this calling was not to his liking-he longed for the battle of wits that comes to the attorney, and in the fall of 1852. having been a judge altogether less than eight months. he went to the Cincinnati Law School where he was a student for six months. In 1853 he formed a partnership with John F. Kibbey, under the firm name of Morton & Kibbey, at Centerville, and this partnership continued until Morton's election as governor of Indiana in 1860.
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