USA > Indiana > Early Indiana trials: and sketches. Reminiscences > Part 4
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So it is in the practice of law. Every thing depends upon the application of the law to the facts of the particular case, and the variety of these facts, will continue to keep the courts in session throughout the civilized world to the end of time. The best lawyer is he who sees his case in all its phases, so as to distinguish it from all other cases, and be able to point out clearly to the mind of the court and jury, the difference or similarity in principle, between his case, and some other case in the reported decisions, that may seem to be against him.
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LORD MANSFIELD-SARGEANT TADDY.
LORD MANSFIELD.
WHILE the profession should spend their lives in the study, it is to be regretted that too many of our young lawyers leave off before they have fairly begun. Some years ago I was kindly invited by the Senior class about to graduate, to deliver the address at the commence- ment of the State University at Bloomingtons Dr. Wylie was then President. I was at the time a United States Senator. A ealled session was about to commence, and I had to decline the invitation. But I took the occasion to address the young gentlemen in a note, thanking them for their invitation, in which I called their attention to an anecdote of Lord Mansfield, and a young British lord, who had recently received his diploma as a counselor at law. They were sitting on opposite sides of the table at a hotel in London. Lord Mansfield .- " My Lord, will you refresh my recollection of the time the late murder was committed on London Bridge ?" "I recollect the time perfectly, it was the same night that I finished my studies." "Indeed, and have you finished your studies. You must be a remarkable young man, my Lord, to have finished your studies so young. I have been forty years at the bar, and on the bench, and I have scarcely begun my studies." The rebuke was deeply felt by the young lord. Without a word, he rose, bowed to Lord Mansfield, and retired from the room. This young Lord was at a late period of his life one of the justices of the court of Kings' Bench, and a profound seholar.
SARGEANT TADDY.
PARDON me, while my mind is aeross the great waters, for giving a characteristic anecdote of Sargeant Taddy, one of the most eminent practitioners of the King's Bench. The Sargeant indulged in a glass of wine at dinner, but was one of the best read of the class of students that applied to the court for admission with him. The custom then was to examine the applicants for admission in open court, before robed judges with their wigs and cocked hats on. The judges asked the questions in person, selecting the most difficult, and always requiring a perfect knowledge of the history of England before a license would be granted. The court met to examine the applicants. The class was composed of Taddy, Scarlett, and many other of the first minds of the age. Sargeant Taddy .- " May it please the court, will your lordships permit me to make a single request before this examination commences?" Chief Justice .-- " Most certainly." " It is simply this: I hope your lordships will bear in
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mind in this examination, that it is easier to ask a question than to answer it." The examination commenced and lasted hours. It was thorough, and the class being able to receive their diplomas, presented their lordships with a glass of wine, as was the custom of the day. The Chief Justice. - " Mr. Taddy, we have not forgotten your request ; do you think you could ask the court a question they can not answer?" Taddy, bowing-"Shall I try ?" " Yes, we will hear you with pleasure." "I will ask your lordships a question that must be familiar to you all, as it is in the history of England, I presume. Who was god-father to the first Prince of Wales?" Their lordships passed the question around, tried to refresh their recollec- tions, and took another glass of wine. Chief Justice .- " We give it up, Mr Taddy; not one of us can tell. Who was god-father to the Prince?" Taddy, with a triumphant smile on his countenance- " I have no knowledge whatever, my lords, upon the subject ; I merely asked your lordships for information." Another glass, and Sargeant Taddy was ever afterward a special favorite of the King's Bench.
At the time referred to it was the custom in England, and up to a much later date in America, for both judges and lawyers to indulge freely in rich dinners, wine parties aud cards. When I commenced riding the Third Circuit, it was the universal custom of the judges and bar, to meet after supper, in some upper room of the tavern, and play cards and drink, sometimes till near morning. I had never played a card in my life, nor did I touch a drop of spirits, and although I was one of the young attorneys, I set my face, my example, and my kind reproofs of the brethren of the bar, against their practice. I have lived to see it gradually give way, and finally cease- I trust and hope for ever.
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A MAL-PRACTICE CASE-A LEARNED WITNESS. 39
[SATURDAY MORNING, JULY 18, 1857. A MAL-PRACTICE CASE --- A LEARNED WITNESS.
Ar a term of the Rush Circuit Court, came on for trial an important case against Dr. Sexton for mal-practice, in failing to cure a case of whitlow on the plaintiff's finger. The doctor was one of the first sur- geons 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; Bethucl 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. Sex- ton was first called. Preparatory to the trial, the doctor had placed in my hands " Bell on Surgery," giving me an opportunity to under- stand his case. The prosecuting witness was a little pock-marked Irish doctor, whom I call by the uncommon name of Smith. He had been but a few years from the Emerald Isle, with a "rich brogue " upon his tongue, and a good spice of the blarney, and withal a very laudable ambition to become the competitor of Dr. Sexton .- Like death " he chose a shining mark." He professed to be a regular gradu- ate 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 doctoring 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 tri- umphantly pointed to the stiff fingers. "What more do you want but the hand ye see ?" The plaintiff rested, and my duty of cross-ques- tioning the Doctor commenced. "Doctor, you say this was mal- practice." " 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." Counsel for plaintiff .-- " We object ; it is a private document, and no notice has been given to produce it, nor has a subpena duces te cum been issued." The Court .- " Objection 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 mal-practice ; do you understand that the muscles were contracted and the fingers stiff, with the ends drawn into the palm of
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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 ?" " Certainly." " What would you have applied to the case ?" " A poultice of slippery-elm bark." "Doctor, what character of whitlow was this ? Was it seated under the cuticle Hear the root or side of the nail, or in the cellular membrane 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 perspiration 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 question is proper, the witness must answer." "I shan't answer- the Court may send me to jail." It was apparent to me that the doc- tor thought he could not make his position 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 wont 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 on the floor, and becoming more agitated. " Doctor, might not this have been a case of 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." " You 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." Verdict and judgment accordingly.
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A QUEER CLIENT, ETC.
A QUEER CLIENT.
JUDGE MORRIS .- " The case of Israel Cox es. James Greer." " Ready, " says Mr. Charles H. Test, for the plaintiff. " Ready," said I, for the defendant. This was an action of slander brought by Cox against Greer for charging plaintiff with stealing defendant's hogs. Plea, not guilty of speaking the words. Greer was an old, peaked-nosed, lantern-jawed man, with a head resembling an old possum and an eye as keen as a rat's ; he was generally about half drunk. The jury was sworn, the plaintiff's witnesses proved equivalent words to those laid in the declaration, but not the exact words. I had taken the words down, and had the dog-ears turned down in Espinasse to show that the proof of equivalent words will not do. The evidence was closed. Judge Test had addressed the jury in a most eloquent speech of some two hours, repeating Shakspeare, " He who steals my purse steals trash, but he who filches from me my good name takes that which naught enriches him, but makes me poor indeed." The court-room was in a little low log cabin on the west side of the public square, with only one window, and a pane of glass out of the lower sash. I rose with my back to the window, stated the issue, and in a loud voiee, " Gentle- men of the jury, the Court will tell you that proof of equivalent words won't do; I say you must find for the defendant; there is no proof that he ever spoke the words." I paused and at the moment my voice ceased in the room, old Greer, my client, run his head through the vacant sash by my side, and roared out at the top of his voice, "Smith don't lie ; I did say he stole my hogs and I will never deny it." I turned to the court, " I do wish the court would send my client to jail, he has been drunk and crazy ever since this case has been in court against him." Judge Morris .- "Sheriff, take him to jail and keep him there until the trial is over." " As I was saying, gentlemen, there is no evidence before you that the words were ever spoken by my client. You must be governed by the evidence given in upon oath." My position was ably met and contested by the closing coun- sel, but the Court charged with me, verdict and judgment for the defendant, and I had my elient discharged from jail after court adjourned, without resorting to a writ of habeas corpus.
PREJUDICIAL EFFECT OF EVIDENCE.
JUDGE MORRIS .- " the State vs. Chas. Malory, for larceny." "Ready for the prisoner," says James T. Brown. "Ready for the State," says the county prosecutor. The charge was for stealing a horse. The
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EARLY INDIANA TRIALS.
prisoner had assured Mr. Brown that there was not the least shadow of evidence against him. Brown had taken, or rather been promised, a fee contingent upon his acquittal, and took his seat by the side of the prisoner with apparent confidence. The jury was soon impanneled, and the owner of the horse testified that the animal was taken out of his stahle at night; that a light snow had fallen, and next morning he tracked the horse from the stable door, followed the track some ten miles at a rapid pace, and overtook the prisoner on the horse, tied his legs under the animal, brought him back, and put him in jail. The prosecutor rested, and waived the opening speech. Mr. Brown arose. " May it please the Court, gentlemen of the jury, one short hour ago I could have addressed you with pleasure and entire confi- dence in the innocence of my client, but since that time the evidence has been heard, and I must confess that it is well calculated to preju- dice your minds against my client." Verdict of guilty-sentence two years to the penitentiary.
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EARLY PRACTICE-SPECIAL PLEADING, ETC.
[MONDAY MORNING, JULY 20, 1857. EARLY PRACTICE -- SPECIAL PLEADING.
QUITE carly in the history of the courts in the Third Circuit, the science of special pleading, as taught by the first edition of Chitty, and Saunder's Reports, was made the daily study of the bar. Daniel J. Caswell and his partner, William C. Drew, were at the head of the special pleaders, and soon became a terror to all plaintiffs, and their attorneys. It was said that on one occasion they pasted a general demurrer on the back of the docket at Versailles, and got five dollars from each defendant for continuing each cause, with leave to the plaintiffs to amend by the next term. Such was the alarm, when they were employed, that old John Allen, of Franklin county, called up Judge John Test, his lawyer, about midnight one stormy night, took him around the corner of the house, and whispered in his ear -- " John, beware of them demurrers; I heard Caswell talking about my case." One of these demurrers was argued a whole day by Charles Dewey and Harbin II. Moore, two distinguished lawyers, before the associate judges of Clark county. Mr. Moore closed the argument in a powerful speech. One of the associate judges, who had just waked up-" Mr. Moore, do I understand that a demurrer means a dispute?" Moore, with great indignation and contempt- " Yes, your honor." "Then the opinion of the Court is that the demurrer go." Moore .- " Which way shall it go?" " Mr. Moore, I will let you know that you are not to ram your rascality down the jaws of justice in this court; take your seat." This was conclusive, and the entry was " the demurrer go."
JOHN B. WELLER'S CASE.
WHILE we practiced on the Indiana side, upon the strict rules of pleading of the Kings' bench, on the Ohio side they were on the other extreme, and maintained a kind of a quasi " oretenus " system. A citizen of Wayne county went over to Hamilton, Ohio, purchased several barrels of salt, and gave his note, under seal, for the amount-some sixty dollars. Failing to pay the note, suit was brought in the Wayne Circuit Court upon it. I was employed for the defendant, and John B. Weller, now of California, appeared for the plaintiff. The rest of the Indiana bar agreed to stand off, in word and deed, and see the result. I was to have five dollars for each time I could continue the cause. The case was not reached until near the close of the term, but was ultimately called. Mr
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EARLY INDIANA TRIALS.
Weller .- " I demand judgment." "I ask oyer of the note." Judge Egglestou .- " The oyer must be furnished." Mr. Weller .- " I forgot to bring the note with me; I must continue the cause." " I consent without an affidavit," and cause continued. Case called at next term. Mr. Weller .- " I have the note, and demand judgment." " I file ten special pleas and ask a rule to reply." Weller .- " I ask copies of the pleas, and ask the rule for replications to operate at next term." "I shall not object." Cause continued and copies furnished. The next term ; Case called. Weller .- " I file a replication to one plea and demurrers to the other nine." " I join in demurrer." Case argued. Judge Eggleston .- " Demurrer sustained to four pleas, and overruled as to five." "I ask leave to amend the four pleas." Judge Eggle- ston .- " Leave granted." By this time the case was so mixed up in special pleading that my young Ohio friend was completely hors de combat, and came across to my seat with a compromising look : " Well, Mr. Smith, what will you do to end this vexatious case ?" " Let the cause be continued and you may take judgment at the next term on the note." We had no defense-the note was just. " Agreed." Cause continued, and at the next term judgment was entered accord- ingly, but the end was not yet. Mr. Weller published me in one of the Hamilton papers as one of the most troublesome litigious lawyers he had ever met.
THE END OF THE MILITIA SYSTEM.
IN the early history of Whitewater, the military spirit ran high and all aspirants for honors and places were solicitious to make stepping-stones of militia offices. But in time the military spirit began to abate, and officers to resign. One instance I recollect : Our statute required all inferior officers, to serve five years, unless the brigadier general, for sufficient cause, would accept a resignation. Capt. William R. Morris, of Brookville, tendered his resignation to Gen. John T. Mckinney, and assigned his reasons. "First, I am not fit for the office ; second, the office is not fit for me." Gen. Mckinney .- " Resignation accepted on the first ground." The whole system scemed to be on its last legs, when all at once arose into public notice, in the county of Wayne, the man for the occasion, in the person of Major Lewis. He was a young man, like Julius Cæsar, of a weak body, but with the military ambition of a Charles XII. Although but a lieutenant he became a candidate for major, and having no opposition was triumphantly elected. The first step of the Major was to provide himself with a splendid blue uniform
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THE END OF THE MILITIA SYSTEM.
coat, covered with gold laee and large gilt-eagle buttons ; a coat that Napoleon himself might have worn while commanding at Austerlitz; a chapeau, in imitation of the one worn by Gen. Jackson at the battle of the Horse Shoe, surmounted by a towering red plume, with a white tip ; epaulets that might have graced the shoulders of Blucher as he led the Prussian army to the aid of Wellington at Waterloo; a trne Damascus blade in its brilliant scabbard, reaching to the feet ; boots of the Suwarrow order, reaching up to his seat, with a pair of gold-plated spurs with shanks a foot long. The great military parade, which was to revive the spirit of the revolution, was soon to come off, near the east fork of Whitewater, under the command of Major Lewis in person. Captains were required to he early in the field, with their respective commands, "armed and equipped as the law directs." The great and memorable day at last arrived. The parade-ground was early filled with waving plumes and crowds of anxious citizens. The aid-de-eamp of the Major came galloping into the field in full uniform, directly from head-quarters, and halted at the marquee of the adjutant. In a few minutes the order from the Major was given, in a loud military voice, by the adjutant mounted on a splendid gray charger : "Officers to your places, marshal your men into companies, separating the barefooted from those who have shoes, or moccasins, placing the guns, sticks and eorn-stalks in separate platoons, and then form the line, ready to receive the Major." The order was promptly obeyed, in true military style, when at a distance Major Lewis was seen coming into the field, with his aids by his side, his horse rearing and plunging, very unlike old " Whitey " at the battle of Buena Vista. The brilliant uniform of the Major and his high waving plume pointed him out as distinctly as the military bearing of my friend James Blake, when marshal of the day in after years at Indianapolis, marked him to the eye of thousands, who were looking for General William O. Butler, and who recognized the General at once. The line was formed ; the Major took position on a rising ground, about a hundred yards in front of the battalion ; rising in his stirrups, and turning his face full upon the line-" Attention the whole." Unfortunately the Major had not tried his voice before in the open air, and with the word " Attention " his voice broke, and " the whole" sounded like the whistle of a shrill fife. The moment the sound reached the line, some one at the lower end, with a voice as shrill as the Major's, cried out "Children, come out of the swamp, you'll get snake hit." The Major pushed down the line at full speed. " Who dares insult me?" No answer. The cry then commenced all along
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EARLY INDIANA TRIALS.
the line, " You'll get snake bit, you'll get snake bit." The Major turned and dashed up the line, but soon had sense enough to see that it was the militia system that was at an end, that it was not Major Lewis that was the main object of ridicule. He dashed his chapeau from his head, drew his sword and threw it upon the ground, tore his commission to pieces, and resigned his office on the spot. The battalion dispersed, and militia musters were at an end from that time forward in the Whitewater country.
SHARP PRACTICE.
To the credit of the young lawyers in those days, they almost committed to memory the few books we had, not forgetting the con- stitution of the State. Among the most industrious and learned was my friend Cyrus Finch, of Centerville, who died young. We had a little pass before the associate judges of Wayne county ; that the profession will appreciate at this day. The case was an assumpsit. I was for the defendant, and Mr. Finch for plaintiffs. He proved that my client had promised by parol to pay a debt another person owed his client. The evidence closed; I thought I "had " him, and took up the statute and read to the associate judges from the chapter on frauds and perjuries-" No action shall be brought to charge any person upon any promise to answer for the debt, default or miscarriage of another, unless the promise is in writing, signed by the party to be charged." This I supposed settled the case, but not so. Mr. Finch .- " Hand me that book. If the court please, that law is void under the Constitution of the United States; it reads, 'No State shall pass any law impairing the obligation of con- tracts.'" I saw I was gone. The Court .- " The Constitution of the United States must prevail : judgment for the plaintiff."
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A CASE OF ARSON-KENTUCKY PRACTICE.
[TUESDAY MORNING, JULY 21, 1857. CASE OF ARSON-KENTUCKY PRACTICE.
BEFORE taking up the Fall Creek trials for the murder of the Seneca
Indians, I will continue the recollections of some lighter cases. I have sketched an incident upon special pleading with a distinguished member of the Ohio bar, and have stated that the Indiana bar, in that science, were the closest practitioners. We had the pleasure often, also, of meeting the gentlemanly lawyers from the Kentucky side of the river, in our courts in Dearborn and Switzerland, and of seeing their mode of practice. I found their forte to be in speeches to the . jury, and not in watching the evidence in its introduction, as we did on the Indiana side. At a term of the Dearborn Circuit Court, a colored boy was indicted for arson in burning the barn of General Pike, near Lawrenceburgh. I was attorney for the State, and Messrs. Vawter and Armstrong, of Boone county, Kentucky, appeared for the prisoner, under some understanding that they were to have the boy for a term of years upon his acquittal. The evidence of the burning was first given to the jury. I then proceeded to give evidence of the confessions of the boy while the barn was burning .- The boy, being suspected by the neighbors, was seized and threatened, that unless he confessed and told all about it, he would be thrown into the flames and burnt alive. Under these threats the boy confessed, and told where he threw the chunk with which he had carried the fire to the barn. While all this evidence was given, the counsel for the prisoner sat quiet without making any objections, and when I closed, proceeded to cross-question the witness. I then proved by another witness that the chunk was found at the place described. The case here rested until after dinner. Court met; no evidence for the boy offered, and the argument commenced. I had little to say. The proof, as the case stood, was conclusive. Mr. Armstrong rose and spoke over four hours, with great eloquence, appealing frequently to the sympathy of the jury, but said nothing about the law of the case. Col. Vawter, the senior of the firm, then arose with Peak's Evidence in his hand, and com- menced with the law of the case, that confessions extorted from the witness by threats of personal violence were not evidence, and calling upon the jury to reject it. Had he made the objection to the court at the proper time, the evidence would have been excluded, and the prisoner acquitted, but his practice in Kentucky had suffered him to sleep upon the proper application of the law to his case at the right time. Judge Eggleston charged the jury. The prisoner was convic- ted and sentenced five years to the penitentiary.
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