USA > Indiana > Early Indiana trials: and sketches. Reminiscences > Part 3
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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
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EARLY INDIANA TRIALS.
faets 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-à mouth full. She sat some distance back from the witness-stand. The witness from Illinois swore posi- tively 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 ques- tion." " Certainly." She turned her head from the witness, slipped out her false teeth and wrapped them in her handkerchief, stepped quickly up to the witness, looked him full in the face, opened her mouth 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 beauti- ful natural teeth." The triumph of "art " in Elizabeth was com- plete. I afterward learned that she was at the ball, and the first impression of the Illinois witness was correct.
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A SMALL VICTORY DEARLY PURCHASED.
[MONDAY MORNING, JULY 13, 1857.
A SMALL VICTORY DEARLY PURCHASED.
SOON after I commenced my circuit duties, in 1824, I arrived at Lawrenceburgh, and stopped at the hotel of John Gray. The Circuit Court was to be held next day. After supper a well dressed, good- looking man called upon me to give me a little appeal case against John Ackerman, a farmer living in the northern part of the county. He told his story ; the case was in a nut-shell ; Ackerman had bought groceries of him in Cincinnati to the amount of eight dollars, and given his note for the amount; had frequently promised to pay the note, but having as often failed, the suit had been brought before a justice of the peace against Ackerman to recover the eight dollars and a few cents costs .- Ackermau appeared, by his lawyer, and filed a plea of " non assumpsit" upon oath, and there being no evidence to sustain the case, judgment was entered for the defendant, of course.
Some three months afterward the plaintiff heard of it and appealed the case, and had with him all the witnesses to prove it in court. The next day the case was called, and Messrs. Lane and St. Clair moved to dismiss the appeal, because it was not filed in time. Our statute then required appeals to be filed within thirty days of the date of the judg- ment to give jurisdiction to the circuit court. Judge Eggleston remarked that he had no discretion, the appeal must be dismissed, but considering the small amount involved, and the nature of the defense, he would suggest that it would be better to let a judgment go. I then proposed to defendant's counsel that if they would let me take judg- ment for the eight dollars and costs, the case should there end. After a moment's consultation with their client my proposition was rejected, and the appeal was dismissed by the court, at the costs of my client, and Ackerman left the court-room laughing over his triumph. But the end was not yet. The grand-jury was in session. I prepared an indictment for perjury against Ackerman for his oath in swearing to the plea before the justice. The evidence was clear and conclusive. The bill was found and returned before dinner. I quietly took out a bench-warrant and before Ackerman had left town he was arrested by John Spencer, the sheriff, and brought into court. His counsel, Messrs. Lane and St. Clair, immediately offered bail for his appearance from day to day-during the term the recognizance was entered, and the counsel remarked; "Ready for trial." "So is the State ; let a jury come."-The sheriff put a jury in the box. Walter Armstrong was foreman. Court adjourned till morning. The trial came on early. The evidence was heard. I opened the case briefly ; Mr. Lane followed
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with a powerful speech, but the evidence had "prejudiced" the jury against his client, and I had nothing to do but to sum up and read the statute punishing the offense. The court charged-the jury returned a verdict of guilty-two years in the penitentiary. Ackerman was called to hear judgment, but failed to answer. The recognizance forfeited, a capias ordered returnable to the next term. In vacation Ackerman was arrested, a motion in arrest overruled by the court, and Ackerman sentenced to the penitentiary at hard labor for two years. His farm was sold upon the forfeited recognizance, and his personal effects to pay his lawyers. I sketch this case for its moral.
A SHERIFF OUTWITTED.
IN early times, before the first land-sales of the beautiful White- water valley, where Connersville, Liberty, Cambridge City, Centerville and Richmond now stand, there lived upon the east bank of White- water, a mile above Connersville, a most remarkable woman by the name of Betty Frazier. She was a small, tough-looking, rather swarthy woman ; her husband, George Frazier, was a poor cripple, aud with their children was entirely supported by Betty. They had settled upon a small fraction of government land, intending to purchase at the sales. The land-office was at Cincinnati, and General James Find- lay was the Receiver. The spring of the year, after a severe winter, had come ; the sales were to take place the next winter, and Betty had the season before her to raise the money to pay for her land. She commenced with a young stock of hogs, caring for them daily, driving them to the best mast, and preparing a good patch of corn for the fat- tening process. She had one horse only to tend her crop, and to ride to Cincinnati when she drove her hogs down to sell, and buy her land.
One day about mid-summer she saw a horseman ride up to her cabin in full uniform. She met him at the bars : "Well, General Hanna, how do you do?" "Very well, Mrs. Frazier." "What on carth has brought you all the way from Brookville to my poor cabin ?" "I am very sorry to tell you, Mrs. Frazier, that I am the sheriff, and have an execution against your property." "Well, General, I always submit to the law ; come with me to the stable and I will give you my only horse as the best I can do." There were no "exemption laws" then. Betty and the General proceeded to the stable. It was a strong log building with a single door, no window, overlaid with a solid plat- form of logs, and filled above with hay for the horse. The door fas- tened outside with a large wooden pin in a log. " There, General, is the horse-take him." The General stepped in and commenced
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A BREACH OF PROMISE CASE.
untying the horse. Betty immediately fastened the door outside, driving the pin into the hole to its full length, and left the General to his reflections while she attended to her household affairs. Time passed away; night came on ; but no relief to the captured General. Morning eame, and with it eame Betty. " Well, General, how did you sleep last night." "Not very well. I am ready to compromise this matter; if you will let me out and show me the ford over Whitewater (the river was muddy and high), I will leave you and the horse and return the execution 'no property found.'" " Upon honor ?" " Yes, upon honor." Betty opened the door. The General mounted his horse and silently followed Betty down to the river side. " There, General, you will go in just above the big sycamore, and come out at that haw-bush you see." The General started; at the second step both horse and rider were under water out of sight, and the chapeau of the General was seen floating down the river. Still, he being one of the pioneers, and his horse a trained swimmer, gallantly stemmed the cur- rent, and exactly struck the haw-bush, his horse swimming to the very shore, while Betty stood on the bank screaming-" I guess the Brook- ville officers will let me alone now till I have sold my pigs and bought my land." The General rode on dripping wet to his brigade that mus- tered that day. But the end was not yet. Time rolled on ; the pigs grew to be well fatted hogs. Betty mounted her pony; the little boys started the hogs for Cincinnati; they had ten days to get there before the land-sales ; the distance was about seventy miles. Nothing unusual occurred on the road until they arrived at New Trenton, at Squire Rockafellow's. The night was stormy; the snow fell deep ; next morning found Betty at the usual hour on the pony, well wrap- ped, with an infant a few hours old in her bosom. She arrived with her hogs at Cincinnati the day before the sale, sold them for eash, and the late General Findlay told me that she stood by his side on the box and bid off her land, with her infant in her arms. Surely " truth is stranger than fiction."
A BREACH OF PROMISE CASE.
Soon after the county of Union was organized, I was employed by a little, hump-backed fellow, some twenty-five years of age, certainly one of the most perfect libels on creation that I had seen, to defend him against an action for breach of marriage contract. I confess I felt some curiosity to see the woman that would consent to marry him, much less sue him for refusing to say "yes " to the question of the Squire. Court arrived ; the usual declaration, laying special damages for divers, to wit, one hundred suppers, and calico dresses too numer-
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D
ous to mention, all preparatory for the wedding, was filed. It was a pure breach-of-promise case, without the common aggravation. Plea " non assumpsit ;" James Perry and James Rariden for plaintiff, and myself alone for the defendant. My client whispered " there she comes." I turned my eyes and sure enough there she was, a most beautiful girl, large, rather fleshy, raven hair, dark eyes, rosy cheeks, a mouth filled with beautiful white teeth. She walked gracefully forward and took a seat by the side of her counsel. A jury was impanelled; Judge Perry opened, with an eloquent address to the jury, and closed by asking the full amount of $5,000 claimed in the declaration. The witnesses elearly proved the marriage contract, which in fact my client did not deny ; one white muslin and two red calico dresses were positively proved, worth eight dollars, and there was some evidence, but not satisfactory, of a gingham dress with broad stripes. About the supper there was no question; it was proved beyond controversy, or the powers of argument, or in the language of Gen. Cushing it was a " fixed fact." Great preparations had been made ; one turkey aud six chickens had been roasted whole, large dishes of beans and potatoes, with a boiled ham, turnips and boiled cabbage in profusion. The old lady dwelt with evident delight upon the big custard pie that she had made "with her own hauds," such as no other woman in the neighborhood could make, "though she said it herself." All this looked bad for my client and my case. " We rest here. " "No evidence to offer, " said I; all I had was before the jury, in what the lawyers called "profert in curia." The case was opened by Judge Perry, with a most brilliant speech of some two bours. I followed and made only two points in the case ; first, that the plaintiff had sustained no damages in consequence of my client breaking his engagement, as she could marry a much better looking man any day ; and second, that the dresses would be needed in conr- ting other sweethearts, and the supper was eaten by the intended bride and her friends, and my client got none of it. Mr. Rariden in the close assailed with all his powers my positions, but seemed to press upon the jury the dresses and the extra " fixens " for the supper. The Court charged the jury with usual ability ; but the moment the judge touched the extra dresses and the supper, I saw that it was all over with my case. Foreman .- " We find a verdict for the plaintiff, eight dollars for the dresses, and three dollars and a half for the supper, total eleven dollars and fifty cents. " The Court .- " Judgment on the ver- dict. " " Gentlemen of the jury, you are discharged till morning, with the thanks of the Court for your just verdict in this important case."
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A LAWYER'S MANEUVER.
[TUESDAY MORNING, JULY 14, 1857.
A LAWYER'S MANEUVER.
AT the first term I attended at Vevay, I was employed by John H. O'Neal to defend him in an action of assault and battery by Thomas Mount. My client was a stout young man, and Mount an old man of quite inferior strength .- I was satisfied from the statement of my client that it was an aggravated ease. The counsel for the plaintiff, John Dumont, Steven C. Stevens and Amos Lane, my client told me, were to have half the damages as their fec. I knew, and had reason to fear their powers in such a case, with the stimulus of a " contingent," especially if they had the close of the argument before the jury. The case was called, and I filed the plea of "son assault" alone, to which they replied " de injuria," giving me the opening and closing of the argument. The cause was continued and at the next term referred to arbitration, and the term following an award was returned against my client for $1,000 damages; but the arbitrators had neglected to be sworn. The award was set aside on my motion at the next term, and the cause immediately called for trial. "Ready," said the plaintiff's counsel. "Ready," said I. A jury was immediately impannelled. I commenced the case without a word to the jury as to my expected proof. "Sheriff, call William O'Neal." The witness was sworn and took the stand. " William, will you state to the Court and jury what you know of an assault and battery committed by Thomas Mount on your brother John H. O'Neal, in Dearborn county, about three years ago ?" "Stop ! not a word!" said Mr. Lane, rising and addressing the Court. "We object to any evidence of any other assault and battery than the one laid in the declaration, in Switzerland county, and espe- cially of any one that took place more than two years before this suit was commenced." Judge Eggleston-evidently without his usual reflection-" The witness will eonfine himself to the case in Switzerland county." "I execpt." The witness knew nothing of the actual ease before the jury, and retired: The plaintiffs then proved a most aggra- vated case, and the jury retired under the charge of the Court. Judge Eggleston sat silent upon the bench, with his head resting upon his hands, for a few minutes, then raising his head : Mr. Sheriff, bring that jury into court." "Gentlemen of the jury, the Court erred in rejecting the offered evidence of the assault and battery in Dearborn county. This is not a local action. The statute of limitations is only a bar in a civil action where it is pleaded ; there is but one count in the declaration, charging but one assault and battery, and that the defendant has justified by his plea ; there is no new assignment or
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replication of aggravation ; the proof offered should have been admitted, and under the circumstances, although somewhat irregular, although the fault was with the Court, we will hear the evidence now." The proof of the assault in Dearborn, on my elient by the plaintiff, was positive; and the jury, under the charge of the Court, returned a ver- diet for the defendant. In the mean time the statute of limitations had run against the Switzerland case, and no other suit was afterward brought. It is due to the distinguished counsel to say that they had no idea or intimation that there had ever been any difficulty between the parties, except the one for which the suit was brought .- That fact was our only defense, and was kept a secret from the plaintiff's attor- neys, or they would, of course, have defeated the defense.
A DOGBERRY.
Shortly after this case, came on to be tried before the associate judges, Fugit and Atkinson of Decatur Circuit Court, a case against a man for refusing to work his two days on a school-house, the statute requiring each " able-bodied man " to work his two days. The case came up on an appeal. The facetious James T. Brown for the defend- ant, and I had the good luck to be employed by the school commission- ers. The case was important, as there were several other refractory cases waiting the result of this one. The case was submitted to the Court; the evidence was conelusive, and I opened to the associate judges, for the plaintiff; Mr. Brown arose with the greatest apparent confidence, addressing the Court, " There is one point in the case that is conelusive against the plaintiff." " What is that ?" says I. "You have not proved that my elient is an able-bodied man." As he said it his client walked up and stood directly fronting the judges. He was a man about six feet high, square-shouldered, with an arm as large as the leg of a common man, red head, wearing immense whiskers (mustaches were confined at that day entirely to the French barbers). "Mr. Brown," I said, "is that man your client." Brown gave him a contemptuous look. "Yes sir." "Do you contend that he is not an able-bodied man ?" " May it please your honors, I do not wish to pivot my case on that point." The argument closed; the case was with the Court. Judge Fugit, " Mr. clerk hand me the papers; the jury will be discharged till morning, as it will take the Court all the afternoon to deeide this case." The judge spread the papers and looked them over for some time, and at length began by reading aloud the summons, the subpenas for the witnesses and returns of the con- stable and sheriff. "There is some informality, but the Court thinks
A FAMILY DIFFICULTY-HOW IT WAS SETTLED. 33
they will do. We now come to the great question of the case : is the defendant an able-bodied man? Yes, Mr. Brown, that is the question. You plead well on that, but it was nothing but the plea of a lawyer ; yon admitted that the man that stood before us was your client, and the Court will take notice ' fishio,' as the law books say, that he is an able-bodied man, and no mistake; judgment for two dollars." This was the great leading case, and settled all others. My clients paid my fee of five dollars, congratulated me upon the result, and years after- ward gave me their united support for Congress.
A FAMILY DIFFICULTY -- HOW IT WAS SETTLED.
AFTER I went to Connersville, I purchased a farm below town ; and built the house the present residence of my friend, Samuel W. Parker. The builder, Richard Miller, was laying the foundation one morning when my next neighbor, Capt. Larkin Sims, who owned the farms imme- diately adjoining mine, came to where I was standing. "Good morning Mr. Smith; you are building a new house. It is said that lawyers' houses are built on fools' heads, but you will never get my head under this foundation." " I hope not, Captain," and he passed on. Some weeks after the Captain came to my office, and reminded me of what he had said ; "But," says he, "I have come to fee you-myselfand wife can not live together any longer." " Why Captain, what does this mean, you have got one of the best wives I know among all my neighbors. I will call down this evening and see you both -- there certainly can not be any thing irreconcilable between you." The Captain left without a word of reply, and that evening I walked down to his house. I was met at the door by the Captain and taken into his parlor. Sally, his wife, soon came in, and seemed glad to see me. Each party related their disagreements, with the cause, not forgetting the most minute particulars. The principal cause of the difficulty, at least on the sur- face, was, that one morning Sally requested one of her sons to take up the ashes from the fire-place. The Captain sent him off to plough, and Sally took up the ashes herself. I decided that the Captain was in the wrong. He smiled and said nothing, but Sally, perhaps too warmly, applauded my judgment. I then began to suspect that there was more at the bottom than the ashes. Some days after, the Captain called and required me to file a bill for divorce, on the ground that their difficulties were irreconcilable, and they could no longer live together. They had ten grown children, several of them married, with families. The bill was filed, the divoree granted, the property and
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children equitably divided, and Sally moved to the house, and part of the farm assigned her. The Captain kept the homestead, soon after married a young woman in Rush county, and brought her home ; but the end was not yet. The Captain was soon laid low, as all believed, upon a bed of death : his young wife refused to nurse him, and took her household goods and left. Sally heard of his condition, went to his house, nursed him by day and by night, watched over, comforted and encouraged, as in their former days. The Captain was finally restored to health, obtained a divorce from his young wife, and a few weeks afterward, the second marriage was solemnized between those, who should never have been separated. They sold their possessions, and removed to Missouri ; the Captain was soon after taken sick, and died, and his faithful wife, after nursing him through his last sickness, closed his eyes, and followed his remains to his last earthly resting- place.
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VARIETY.
[FRIDAY MORNING, JULY 17, 1857.
VARIETY.
LEST the variety of these sketches should invite criticism, let it be remembered that one of the greatest mysteries presented to our minds is the unlimited variety stamped upon all created things. Ask the astronomer if he can point to two stars in the firmament of the same magnitude and brilliancy. Ask the mineralogist if he can find two pebbles precisely alike in every particular, and then step into the HIall of the House of Representatives at Washington, and after looking at those columns of beautiful pebble marble that sup- port the dome, answer the question for yourselves. Ask the botanist if he ever finds two flowers, or even two leaves, that would bear the application of the microscope, and still be alike in every particular. Ask the pilot at the helm if he ever crossed the Atlantic in succes- sive voyages, with even the trade winds blowing upon his sails, with precisely the same force. Ask the navigators of the polar seas, if ever they saw two icebergs of precisely the same altitude and dimensions. Ask the divine if ever he preached two sermons from the same text precisely alike in manner and matter ? Ask the farmer if he ever saw two fields of wheat with precisely the same number of heads of precisely the same length, and containing the same number of grains of the same size. Ask the anatomist if ever he saw two human skeletons alike in all particulars. Ask the surgeon if he ever saw two fractures precisely alike. Ask the physician if he ever had two cases that were entirely alike in every particular. Ask the mental philosopher if he ever knew two minds precisely alike; and then ask yourself, reader, if ever you saw two faces that were exactly alike, after you became intimately acquainted with them. If these questions he answered as they must be, then it follows that as mind governs the action of men, the same variety is stamped upon all human actions, and hence the unlimited variety of actions that are being tried in all the courts of the civilized world.
The unwritten common law has long since been declared by Lord Coke, a great English jurist, to be " the absolute perfection of rea- son." It is understood by all courts, whose minds can arrive at that perfection. The statute laws are continually changing, and present a part of that endless variety that occupies the time of the courts. Modern legislators are not content to let the established and well understood statutes remain, but under specious pretexts, as to " reform and simplify the laws," as in this State, introduce innova
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tions that will take years to understand, and cost suitors millions to pay the expenses of re-educating the lawyers. There never was very great difficulty, on the part of a well-trained, legal mind, in deciding what the law is abstractly. The great difficulty is in the application of the law to the particular case. The same remark applies with equal force to the medical profession. I had a beloved brother, Moses B. Smith, M. D., of Philadelphia, whose remarks to me some years before he died I can not withhold. I had been absent from Pennsylvania-my native State-some eleven years, and returned a member of the twentieth Congress from the Third Con- gressional district of Indiana. The subject of the West naturally came up, and with it the practice of medicine. My brother was a physician of great experience and of a high reputation-a student of Dr. Chapman, and a graduate of the Pennsylvania University. " Brother Oliver, I learn that the Homeopathic physicians are getting into the West." "They are, and some like them very well." " Let me give thee (he was an Orthodox Qnaker) a word of advice growing out of my long experience." " I will gladly receive it." "In select- ing your family physician, take a regular old-school gradnate, but of the best common sense. I would rather trust my life with a strong, vigorous, common-sense Homeopathic or Thompsonian doctor, as much as I am opposed to their system, than with the most scientific Allopathist, who looks to his books alone, without the judgment necessary to make the application of his reading. Almost every thing depends upon the judgment in the application. Two physicians, regular graduates, may take similar cases, and hold in their hands the same medical work, describing and treating the disease. The one will let his patient die, while the patient of the other will get well. My next advice is, never employ a physician who does not be punctnal to the minute in his appointed calls. I owe much of my success to a strict observance of this rule. The mind greatly controls the success of the remedy, and nothing affects a patient more than to be disappointed by his physician in his calls."
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