USA > Indiana > Courts and lawyers of Indiana, Volume I > Part 19
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An act of February 1, 1834, gave the Circuit court con- current jurisdiction in all suits at law or equity, cognizable by the probate judge who had power to issue a writ of habeas corpus.
In the Revision of 1843 the law organizing the court was simplified somewhat. The concurrent jurisdictions of the two courts were retained in all suits at law and equity, in all par- titions of real estate, in assignment of dower, and a few other minor cases. The court first taking cognizance of a case retained it. The right of appeal was given to either the Circuit or Supreme court, the usual rules prevailing in such practice.
The pernicious practice of special legislation which became common about 1840 rapidly undermined the Probate court. Twenty-eight separate new laws affected the court in 1844, the next year after the revision; fifteen laws of the General Assembly of 1845 dealt with the same court; twenty-two amendments were enacted in 1846; nineteen in 1847; twenty- five in 1848; at least thirty-seven changes were made in the law in 1849; and in 1850, under the shadow of the Constitu- tional Convention, it was amended a time or two. Most of these statutes were merely personal and meddlesome. It is hardly necessary to observe that no institution could live on the chop seas of such legislation. By 1850 scarcely any resem- blance to a system of courts remained. Each in large measure was a special court for the county in which it was located.
The Probate court does not seem to have given much satis-
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faction. The first report of the judicial committee to the Con- stitutional Convention failed to provide for the Probate court. Its duties were to be turned over to the Circuit courts. This report, made by John Pettit, an eminent lawyer of Lafayette, provoked a long discussion among the lawyers, in which may be read the history of the Probate courts during the twenty- one years of their existence.
William S. Holman, delegate from Dearborn, who had served as a probate judge, thought the convention would make a serious mistake if it failed to supply some better court for the probate work. "It has been," he observed, "the one crying evil of our judicial system. I know of no business connected with the administration of justice which is of more importance to the people than the probate business. The fact that its proceedings are mainly ex parte-business in which the widow and orphan are principally interested-is enough to satisfy any right-thinking and right-feeling man that the judges before whom it is settled should be not only competent in all that pertains to the judicial character, but also that they should be men of such personal integrity and legal attainment as to give them the entire confidence of the people." He thought that the widows and orphans of the state during the time of the court's existence could well have paid the salaries of com- petent judges rather than have sustained the loss resulting from the existing system. Mr. Holman proposed as a substitute for the Probate court a Circuit court which would hold at least three sessions per year devoted to probate business. He further characterized it as a "court without character and without standing," a court whose decisions were "five times wrong where they are once right." Instead of the thirteen judicial circuits then in existence, he would have made twenty- four and given the probate work to the Circuit courts.
In speaking on the same subject, Christian C. Nave, of the Hendricks county bar, said, "I admit frankly that the probate system is in many instances absolutely ruinous to widows and orphans, and that it is a curse rather than a blessing." However, Mr. Nave feared to turn the business over to the Circuit courts and proposed that "there be elected in each
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county one county judge to hold office four years who shall perform the duties of a surrogate and probate judge."
Alvin P. Hovey, of the Posey county bar, later a congress- man and governor, thought it impossible to devise a plan worse than the Probate courts as they then existed. "The judicial history of the world cannot present a more imbecile judicature of that kind than has existed in this state since 1816. The men who preside in these courts are generally honest and up- right, and are raised to the bench on that account, but there are but few of them who make any pretentions to legal acquire- ments, and yet the probate courts may be said to be the most important, in a practical point of view, of any courts in the state." He estimated that all the property of the state passed through the Probate courts every twenty-five years. The difficulty, he thought, was to be found in the refusal to pay a salary for this work sufficient to attract lawyers. "I find no fault with these judges as men; they no doubt do what they think is right; but every lawyer knows that there is more fraud and rascality, and more wrong done in these courts to the helpless, the widow, and the orphan, than has been perpe- trated in all other courts put together." The future governor instanced an executor's bills that were accepted by a probate judge, which included his cigar and champagne bills, traveling expenses in various parts of the United States and, finally, the cost of building himself a house.
Robert Dale Owen stated that there was no feature of the old government more universally condemned, and none on which the people demanded an improvement, more than the probate system. He insisted on holding the Convention in session until it had given the people some remedy for the iniquity.
David Kilgore, of the Delaware county bar, thought the subject of the Probate court as important a matter as had come before the convention. "Although it has been," said Mr. Kilgore, "the subject of legislation for thirty years, we still have a system that is calculated not only to unsettle land titles, but to tolerate frauds of the most abominable char- acter." Mr. Kilgore thought the great majority of probate judges were nothing but country squires and that it was only
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natural that when they undertook to administer chancery rules they succeeded only in making mistakes. He was sure of one thing only, and that was that the Probate court ought to go. He pointed out another unfortunate condition which had grown up largely as a result of the Probate courts. First-rate law- yers could hardly get a respectful hearing in a Probate court and if they had any business there it usually became necessary to take an appeal either to the Circuit court (when that was possible) or to the Supreme court, in either case involving heavy cost and much loss of time.
Henry P. Thornton, of New Albany, a member of the judi- ciary committee and a lawyer of ability, also found great dis- satisfaction with the Probate courts. "I heartily agree," he said "that this system has done nothing but furnish facilities for robbing the widow and the orphan, as well as for doing injustice to the creditors of the estates of the decedents; that the proceedings of those courts are such as to lay a foundation whereby all our land titles will be shaken and rendered doubt- ful." He favored a new county court, not alone for the pro- bate business, but to have cognizance over lesser crimes and suits at law.
Enough has been given here to show that the leading law- yers of Indiana in 1850 considered the old Probate court a failure. It was not only a failure in itself, but a constant source of corruption to public opinion. Nothing is more dan- gerous or costly to a community than misinformation in regard to the law. This is what usually was obtained at the Probate court. Legal advice at this court could be had without price and this caused it to be in considerable favor with the common people. When the opinions of the probate judge were overthrown in the upper courts it was attributed often, not to the error of the opinion, but to the smartness or trickery of the lawyers. The whole misfortune can be traced to the attempt to be too economical in county government.
JUSTICES' COURTS.
The Justices' court was one of considerable importance in our early history. Relatively, it occupied a more important position in the community than at present. Aside from his.
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strictly judicial duties, the justice was a man of great social prominence and usefulness. In a community composed in large measure of Southern people, the traditional English rev- erence for the country squire remained strong. First-class practicing lawyers were so scarce that much of the duty now devolving on them was done by the justices. Intelligence and education were then less widely spread than now, so that hun- dreds of such papers as are written now by any business man or farmer were then drawn up by the justice. He wrote out contracts, wills, deeds, mortgages, all kinds of notices-legal and otherwise-as well as counseled his neighbors on the prob- able effect of their intended actions. While a great many stories have been told at his expense, and though doubtless many a court held by him was ridiculous in the eyes of the lawyers, still he was a worthy officer.
The office of the justice was recognized by the Constitution in 1816 as follows: "A competent number of justices of the peace shall be elected by the qualified electors in each town- ship, in the several counties; and shall continue in office five years, if they shall so long behave well; whose powers and duties shall, from time to time, be regulated and defined by law." It is not considered good politics for a Constitutional Convention to be too specific, but in this case it redounded to the benefit of the people. Although a great many additional duties were added to the office, the main function remained the same through the period from 1816 to 1852.
The act which carried the above grant into an institution bears date of January 28, 1818. It gave the justice jurisdic- tion coextensive with the county in criminal cases. At his bar anyone could prefer a charge and have the one accused arrested and arraigned. If necessary, the justice might then commit, discharge, or let to bail the prisoner. In other words, he was a conservator of the peace for the county.
If the person arrested was charged with "riot, rout, affray, unlawful assembly, or breach of the peace," it became the duty of the justice, within thirty days, to have a jury of twelve qualified electors impaneled by the constable or sheriff and pro- ceed to trial. The highest punishment he could inflict was a fine of twenty dollars and costs. In default of payment the
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condemned could be taken to jail. If during the trial, the justice felt that he could not administer sufficient punishment, he could stop the trial and bind the prisoner over to the Cir- cuit court. It was not necessary that the county prosecutor attend these trials.
In civil cases the power of the justice extended only throughout his own township and to suits involving not beyond fifty dollars. The Justice was required to keep a docket and furnish copies of the record. Considerable latitude was given the parties to a suit. They could by agreement try their cause before the Justice himself, or have him call a jury ; or, by agreement, they could select three arbitrators who should hear and determine the suit. In this latter case the award could not be vacated by the higher court except for fraud. In all other cases an appeal would lie to the Circuit court, pro- vided the appeal was prosecuted within thirty days.
The Justices were not permitted to try other than trivial suits affecting real estate. If there was no constable con- venient to carry out his orders, the Justices had power to appoint one. By a law of the next Assembly the Justice was placed under one thousand dollars bond and compelled, when leaving the township, to deposit his docket with another Jus- tice of the township. The same law also gave the Justices' courts exclusive jurisdiction over suits wherein five dollars or less were involved. This was amended by the act of January 22, 1827, so that Justices might try cases in debt or assumpsit where as much as one hundred dollars was involved. In the Revision of 1831 Justices were given power to try replevin suits where the value of the article did not exceed twenty dol- lars. If the plaintiff demanded a jury and failed to recover at least twenty dollars he was compelled to pay the jury fees. The Justices' code of 1831 contains eighty-nine sections and twenty-four blanks for different writs and forms used in his court. This indicates that these courts were coming to be widely used.
The law of February 3, 1832, gave the Justice wider juris- diction at the expense of the Probate court. Executors, guard- ians, and administrators were permitted to sue in the Jus- tices' court if they could bring a similar suit in their own right.
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The limitations to jurisdiction with reference to trover and conversion were removed. In suits on account it was made imperative that the plaintiff include all his accounts in one suit. If there were evidence that the defendant was making away with his goods an execution could be issued on Sunday.
In 1833 the Justice was given permission to use a jury of six men in small civil cases. The parties were given the right to challenge the same as in the Circuit court. Two new misdemeanors were added to the criminal code this year, over both of which the Justice had exclusive jurisdiction. One was that of horse-racing on the public highway, and the other was shooting on, along, or across the same.
At this point it will be best to go back and notice another duty that at times devolved on the Justices. The law consti- tuting the board of county commissioners in 1817 had made it the duty of that board to designate what it considered a "sufficient number" of justices for each county. These had been duly elected from year to year till 1824, when a law, bearing date of January 31, 1824, discontinued the commis- sioners' office and transferred its duties to the county board of justices, composed of all Justices in the county. They were made a body politic and corporate. They were directed to meet in the following September, 1824, and organize, and meet thereafter every two months to transact county business. The clerk of the Circuit court was made their clerk and the sheriff did their bidding. At their January meeting they appointed the listers, constables, overseers of the poor, elec- tion inspectors, superintendent of school sections, fence view- ers, county treasurer and pound-keeper.
Each Justice had to attend on penalty of a fine of twenty dollars. They sat three days each meeting. The old board surrendered its business into their hands and passed out of existence. Thus the Justices became almost the whole county government.
This continued about eight years, until the law of January 18, 1831, restored the old method of doing county business through a board of county commissioners elected by the voters. An earlier law, dated January 20, 1827, had permitted Franklin, Fayette, Union, Henry, Rush, Shelby, Greene, Vigo,
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Park, Vermillion and Montgomery to resume their former commissioner from of government.
By the act of February 1, 1834, the counties of Harrison, Orange, Monroe, Parke, Hendricks, Johnson, Putnam, Owen, Clay, Spencer and Greene returned to the Justices' govern- ment of the county. Were one disposed to look for it, he might find here a conflict between New England and Southern ideas of local government, but such a quest would hardly be proper in a discussion of the courts. The next year (1835) Gibson, Decatur, Posey, Boone and Washington passed over to Jus- tices' government, the latter, however, changing back the following year.
In the Revision of 1838 the law governing Justices' courts is expressed in one hundred and five sections, with twenty-four forms of writs prescribed. A comparison of this with the earlier revisions shows a gradual widening of the powers of the court, which may be taken to indicate its growing popu- larity in the counties. In the Revision of 1843 the chapter on "Courts of Justices of the Peace" has grown into a code of three hundred and forty-six sections, besides the forms. It would be too tedious to trace the development further, espe- cially through the wearisome years of special legislation. The Justices' court suffered at this time much as the other insti- tutions of the state. Amendments were made to apply to a few or a single county. Not only a few of these special laws were enacted, but scores of them during the period from 1840 to 1850.
CHANCERY COURTS.
Chancery practice was regarded with great favor by some of the older lawyers, but as a rule was not resorted to by the younger members of the bar. The laxity of its rules enabled a good lawyer to secure justice by its use not attainable under the Common Law. The very laxity of its rules, on the other hand, made it a region of pitfalls and surprises to the young and unskilful lawyers. The Revision of 1824 defined the prac- tice for Indiana. It contains only thirty-three sections, the last four of which relate to the Master in Chancery.
This officer was to be appointed by the President Judge for each county. He held his office at the will of the court. His
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duties were to take the attestation of all bills in chancery as well as all applications to take depositions, and to administer oaths to witnesses. In a settlement of accounts he could also strike a balance. His fees were the same as those of the Jus- tice for corresponding work.
The Revisions of 1831 and 1838 follow almost exactly the words of the Revision of 1824. Somewhat wider power is given the Judges in issuing writs and in reviving cases already closed. The change, however, is negligible.
The Revision of 1843, on the contrary, shows a wonderful growth of the chancery practice. Especially was the power of the Master in Chancery expanded, making of him almost an independent trial court. The power of injunction was not restricted, but rather more carefully defined. It was to be used to stay waste, to stay all proceedings on judgments at law, to stay pending suits, and to grant reviews of judgments at law, or enforce restraining orders. Idiots and insane per- sons were placed under the care of the chancery side of the Circuit and Probate courts. The whole Chancery code was expressed in one hundred and ninety-four sections, as com- pared with the thirty-three of the former codes.
LAW PRACTICE.
Following in the old revisions, immediately after the chap- ter on Chancery Practice, is the chapter regulating the prac- tice in suits at law. In the Revision of 1824 only the sim- plest and most fundamental rules of Common Law practice are given, together with a few modifications, chiefly in the form of abbreviations. The language smacks of the old law. Capias ad respondendum, Alias, Pluries, Non est factum, Scire facias, Dedimus Potestatum, De bene esse, Jury de mediatate lingua, Non sum informatus are the only Latin phrases found in the ten pages of the regulations. Most of these are not un- familiar to the ordinary attorney of today. It is interesting to note that the Revisions of 1824, 1831, 1838 and 1843 con- tained glossaries defining Latin legal phrases. No less than eighty are defined.
In the Revision of 1831 at least eleven new sections were added to the chapter on Practice at Law, though little notice-
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able change was made in the practice during the decade of the thirties. In the Revision of 1843, however, the fifty-eight sections of the two former articles had grown into four hun- dred and eighty-eight sections, covering an even hundred pages. The subject had been disposed of in the former revi- sions in eleven pages.
These comparisons indicate a great change going on in the practice. From 1816 to 1835 the practice was featured by the appeal to the jury. A large part of the practice was in the Criminal court. In this the attorney depended almost exclu- sively on his appeal to the jury. Men like General W. Johns- ton, James Noble, Governor Ray or Amos Lane developed con- siderable powers in this field of oratory. Perhaps no one of our day would care to hear one of these men speak four hours on a provoke case, but the folks of that day enjoyed it. We read of juries wrought up to frenzy or melted to tears by the eloquence of these early barristers.
While this species of forensic eloquence remained charac- teristic of the old Circuit courts, lawyers as early as 1830 began to give more attention to the pleading side of the prac- tice. By 1840 many of the special pleaders had attained such skill in this line that, with an uncertain judge and an un- skilful attorney to oppose, they could almost prevent a case coming to trial. The Revision of 1843 shows distinctly the effect of this practice.
On the other hand, a study of the debates in the Constitu- tional Convention shows that the public did not think highly of this form of practice. In the old days a case was set down for trial and the people could gather in with the assur- ance that the trial would come off on schedule time, but by 1850 it had become customary to delay cases at bar for one or more years.
Horace E. Carter, a member of the Montgomery county bar, shows very well the attitude of the laymen to this new development in court practice. Speaking on the question of "Law Reform," he said, "Of all the questions which have agi- tated our people and which have operated as a reason for the call of this convention there is not one in which so much inter-
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est has been felt, not one reform which has been so loudly demanded." After adverting to the progress of the world, he remarked, "But shame to our state that it must be said the worse than useless formalities and technicalities of a hoary fabric of pedantry and absurdity has stood unchanged, boast- ing of its barbaric origin and defying modern innovation." This outburst has scarcely any application to the practice of the time, but it illustrates beautifully the style of many of the lawyers of that day. Later on he denounced the whole legal system as a "cunningly devised machine to make money and deceive the people." After quoting Jeremy Bentham, he quoted Judge Wells, of the United States Circuit court, who declared that "During the fifteen years I have practiced law I can say, with safety, that not one-half of the suits with which I have been familiar were decided upon their merits, or upon principles of substantial justice. This was not attributable to the courts, but to the system of practice and pleading."
One more quotation from Mr. Carter, who was voicing the sentiments of those clamoring for a reform in the practice of the law: "Our pleadings admit of a mass of imposture, trick and chicane. If, then, the system is what it is stated to be, and what every man knows it to be, who knows anything of the law, the system ought to be changed, or some other, better suited to our wants, substituted in its stead. That plan has been proposed by the committee in their report, the adoption of which I confidently expect by this convention. I would abolish the whole system of pleading; all the distinctions be- tween actions in law and between law and chancery, as well as between law and equity."
It is not thought advisable at this point to go further into this matter than merely to indicate that by 1850 there was a powerful reaction against the intricacies of special pleading which had grown up during the forties. All those nice dis- tinctions laid down in the Revision of 1843 were swept aside by the lawyers in the Convention of 1850. The era of special pleading was over. The study of the subject had had a power- ful influence in the development of the Indiana bar. Doubt- less many lawyers took advantage of their skill to circumvent justice, but on the other hand the day of the shyster who could
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blow for a half day to a jury, and for that reason pose as a lawyer, was gone. The practice compelled the lawyer to study his case, to understand the nature of the remedy asked and the means employed. One of the speakers urging reform un- wittingly indicated one of the best results of the old system: "A man mistakes his action-goes into law where he should go into chancery. He has an equitable defense, but can not plead it, but must let judgment go against him by default, pay the costs and then go to chancery to enjoin or set aside the judgment." To avoid just such a result as this the advocate had to devote his time to the study of the nature of his case and the possible remedies, rather than to improvising and committing a harangue for a jury. As stated above, the sys- tem was carried to extremes, but there can be no doubt that the study during the forties improved the bar.
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