USA > Indiana > Bartholomew County > History of Bartholomew County, Indiana : From the earliest time to the present, with biographical sketches, notes, etc. : Together with a short history of the Northwest, the Indiana Territory, and the state of Indiana > Part 36
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At that day a capias ad satisfaciendum could be issued against a defendant on a judgment against him, which required the impris-
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onment of the defendant in the county jail until the payment was made; this, unless he gave bond to remain within the prison bounds under the above order; a prisoner giving such bond, had the freedom of the town. The original name of Columbus was Tip- tona, and Luke Bonesteel and General John Tipton executed title bonds each for thirty acres, to John Farquar, trustee, constituting the territory of the original town of Tiptona, afterward Columbus; the change of the name was made by the County Commissioners, March 21, IS21.
The first civil causes appearing (June Term, IS21) are James Pendergrast, plaintiff, vs. Peter and Stephen Frank, defendant - In debt. William A. Beatty, Plaintiff, vs. William Stowers, Lewis Ritter and Alexander C. Craig, defendants - In debt. John H. Spurgin, plaintiff, vs. John Berry, defendant - In case.
At the October term, IS21, Davis Floyd, the President Judge for the first time presided. Sheriff Mckinney was fined $20 for contempt of court, the nature of the contempt not being disclosed. At a later day of the term (October, IS21) the fine was remitted. At that day the retail liquor traffic was licensed by the Circuit Court and the first license was granted on the 13th day of October, IS2I, to John Young.
At the April term, 1821, the first divorce suit, Polly Piatt vs. James Piatt, was instituted, and it appearing that the defendant was a non-resident, it was ordered that publication of the pendency of the suit be made four weeks " in some newspaper printed in the the state." At the October term the divorce was granted.
At the April term, 1822, the first indictment, State vs. Harmon and Van Blaricum, was finally disposed of by the conviction of Van Blaricum and a fine of " 614 cents." At the same term, David Stipp was " licensed to keep a tavern and retail spirituous liquors in the town of Columbus," and George Zowers was indicted " for challenge to fight a duel." At the following July term he was tried by a jury and acquitted. At the April term, 1823, it was " ordered that the seal, the impression whereof is here made on the margin, procured by the Clerk in pursuance of an order made here- tofore, be and the same is hereby deemed, adopted and recognized to be the seal of the court and that it be used, kept and preserved
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by the Clerk as such." No impression of the seal appears, and no previous order can be found.
At the April .term of court, 1822, the first rules of court, thirteen in number, were adopted, all in line with the present prac- tice except perhaps the 10th, rith, 12th, and 13th; they are as fol- lows:
"roth. The punctual attendance of counsel will not be dis- pensed with after appearance, and no suit dismissed will be re- instated or interlocutory judgment entered, will be set aside, when the same has happened by reason of a want of such punctual at- tendance, but upon proper affidavit and at the cost of the delinquent.
"IIth. The clerk will in no case permit papers to be taken from his office except by a member of the court from whom, except in term time, he will take a receipt. He will furnish parties apply- ing with copies they paying his fees therefor.
" 12th. 'Rules to plead shall be entered nisi and may be dis- charged or made absolute.
" 13th. No person will be permitted to appear in this court out of favor, unless he has first obtained the signature of the Presi- dent Judge of the court to his license, or unless he produces a well authenticated license from some court of another state in whose courts attorneys of this state are permitted to appear and practice."
At the April term, 1823, another rule of court was adopted read- ing as follows :
" It is ordered as a standing rule of this court, that if any party withdraw a plea, replication or other pleading in fact, and demur to the pleading to which his former pleading professed to be an answer, judgment upon such demurrer will be rendered and he will not be permitted to withdraw such demurrer. Further that after opinion intimated upon demurrer and joinder to any pleading, the party pleading such plea may amend, after which if demurrer and joinder be filed to such pleading, such plea may be amended; after which if demurrer and joinder be filed to such pleading so amended, judgment will be rendered and no further leave to amend will be given, but such party, if plaintiff, may dismiss his action without prejudice, or suffer a discontinuance, after opinion intimated as aforesaid the party demurring may withdraw his demurrer by
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pleading issuably to the country instanter." This, which to some extent modified the conunon law rule of practice, may seem harsh and calculated to defeat justice; still on the other hand, requiring as it did, close thought and thorough preparation, cases were promptly put at issue, clearly and well defined. So thoroughly up were attorneys generally in the science of pleading, that the penal- ties of the rule were but seldom incurred. The first court was in an old log house, owned by Luke Bonesteel, on lot 119, and near where the old county bridge afterward was; and until the court house on the public square was erected, courts were held at a room fitted up by Philip Sweetser and at the "taverns" of Thomas Hinkston and Newton Jones.
But two persons have suffered the death penalty in Bartholo- mew County, John Jones for the murder of John Ray on Saturday, June 11, 1831, and Kader Herring for the murder of John Comer. They were both executed at the same time on Friday, the IIth day of June, 1833, then on the outskirts of Columbus and near where the Elm (now Farley) House stands. They were exe- cuted by Sheriff John McKinney, surrounded by a squad of militia detailed by Col. Thomas G. Lee, Lieutenant Colonel Joseph McFall and Major Samuel Beck, in command of Major Beck. The militia escorted the condemned from the jail with drum and fife, to the gallows. Jones was haggard and weak, seeming fully to realize his situation; Herring was stolidly indifferent. On the scaffold prayer was offered by Rev. Joshua McQueen, and also a local Methodist preacher, who addressed a few remarks to the pris- oners, to which Jones responded with much emotion, but Herring said nothing. Jones and Ray were good citizens and fast friends, and probably would have remained so but for whisky. They had been treating each other, and, on their way home on horseback, Jones accused Ray of lying to Jesse Ruddick, when Ray struck Jones a powerful blow in the mouth, nearly unseating him. Jones feeling for his knife, Ray struck him again on the side of his head, and seized him by the back of the collar of his coat in such a way that Jones' first thrust with his knife struck his own mare in the neck, and striking at random again, he stabbed Ray through the heart. Jones was tried three times, each resulting in a conviction
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for murder in the first degree. There were two reversals by the Supreme Court; the last conviction was not appealed from. With the law administered as it now is, Jones would either have escaped or been convicted for manslaughter only. It is reasonably certain that the law was administered with too much hardship. Jones' son, Robert, impoverished, bankrupted himself in the defense of his father. He lived to be an old man, respected and honored by all, dying but a few years ago. Herring and Comer were good citi- zens and neighbors, and related by marriage, Comer's wife being Herring's niece. They were visiting Herring. Herring exhibited a cow bell, which he said he found. Comer claimed the bell, at which Herring took offense, and used such abusive language that Comer and wife started to leave, and Herring taking down his gun, Comer ran, but before he reached the yard fence, Herring shot him down. Herring reloaded his gun and stood guard over the corpse, refusing to permit any one to come near for hours, and finally left of his own accord. His defense was insanity, and his conduct on that occasion and evidence at the trial of frequent indications of in- sanity, as also of insanity in his family, together with his conduct, when executed, led many to believe that his plea was well taken. The belief soon became general that he was insane.
Judges of the Circuit Court .- Davis Floyd, a soldier in the War for Independence, was the first Judge. He had been tried for complicity in the Burr conspiracy and sent to jail for one hour, but restoring himself to public confidence by gallant service in the War of 1812, he was appointed Judge. He presided but one term (October, 1821), the Associate Judges presiding in his absence, until the 15th day of July, 1822, when William W. Wick, of Indianapolis, succeeded Judge Floyd as President Judge.
Judge Wick was a man of fine literary and legal attainments, and notwithstanding the fact that he was a politician, made an ac- ceptable Judge. He was twice Judge, a member of Congress, and filled many other offices with honor to himself and satisfaction to the people. He died. at Franklin but a few years ago. At the March term, 1825, he was succeeded by B. F. Morris, of Indian- apolis. Judge Morris was a ripe scholar, well grounded in the elementary principles of the law and served with much satisfaction
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to the bar and litigants until his term expired, when he was suc- ceeded by Judge Wick, who, at the expiration of his termi, was succeeded by James Morrison, of Indianapolis. Judge Morrison was pre-eminently qualified for the position. After he retired from the bench, and even from the actual practice of his profession, so highly was he esteemed as a judge of law and for his unswerving integrity, that important questions of law involving large interests, were frequently submitted to him by both sides, and his opinions cheerfully acquiesced in, thus avoiding the bitterness, delay and uncertainty of litigation. He always declined to investigate for an opinion favorable to the applicant, when applied to but by one side, but contracted in advance for an investigation, the fee being the same whether the opinion should be favorable or unfavorable.
William J. Peaslee, of Shelbyville, succeeded Judge Morrison. Judge Peaslee was not "learned in the law," and gave indifferent satisfaction. He was succeeded by Courtland Cushing-a good lawyer, but overbearing and arbitrary on the bench. Alexander C. Downey succeeded Judge Cushing. For a young lawyer, Judge Downey was admirably equipped in all respects for the position. Owing to inadequacy of salary he resigned. He has since served on the bench of the Supreme Court with distinguished ability, and is now engaged in the active practice of his profession. To fill the vacancy caused by the resignation of Judge Downey, Governor Willard appointed John W. Spencer. Judge Spencer was not a good lawyer; he was stolid, without sensibility. The celebrated Mewherter case was tried before him. Execution against Mew- herter for a large amount had been returned "no property found," and the plaintiff proceeded against him for execution against his body, charging that he had a large sum of money which he refused to apply in payment. Under the law, if the jury found that he had money, giving the amount, it was the duty of the court to imprison him until he disgorged. There is but little doubt that Mewherter had a large sum of money, but he was a bad, desperate man, and before and during the trial he assured his attorneys and others that the plaintiff would not gain anything but a dead body by a verdict against him. The jury found that he had some $13,000. Imme- diately upon reading the verdict Mewherter drew a pistol and shot
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himself dead. Of course there was the most intense excitement and confusion in court; not so, however, with Judge Spencer; he calmly directed the Sheriff to remove the body, and called the next case for trial. It was not tried that day. Joseph W. Chapman, of Madison, was the next Judge. He was an able lawyer, but too technical for a Judge, and at times testy. On the whole, however, he is kindly remembered by the bar.
John G. Berkshire of Versailles, succeeded Judge Chapman. When elected, Judge Berkshire was just starting out as a lawyer, and being an almost entire stranger to the Columbus bar, then one of the ablest in the State, it was greatly feared that he would not give satisfaction. In this, however, the bar was most agreeably surprised, for no Judge ever before or since gave more general sat- isfaction. Judge Berkshire was well-grounded in the elementary principles of the law; had a well-balanced, discriminating, legal mind, and above all he was eminently fair and impartial. By a · change, Bartholomew County was made one of a new circuit neces- sitating the appointment of a Judge which was received from Gov. Baker by Samuel P. Oyler, of Franklin. Judge Oyler made an acceptable Judge and was succeeded by David Banta, of Franklin, who during the short time he was on the bench in this county was in very poor health and for that reason did not appear to good ad- vantage, although a ripe scholar and good lawyer. He is now with restored health engaged in an active, lucrative practice. During Judge Banta's term by another change, Bartholomew and Brown were made a circuit, and Gov. Hendricks appointed James S. Hes- ter of Brown, Judge, who served under the appointment until the next election and was elected. Judge Hester was a trained lawyer, and until his health failed was one of the best Judges in'the State. He died before his term expired.
Nathan T. Carr, of Columbus, was appointed, and at the next election was elected for a full term. Judge Carr was not a well-read lawyer; he was a man of bright, but not well-trained or balanced intellect. Because of his mental make-up and disposition he was arbitrary and apt to take sides. Judge Carr was pre-eminently a jury lawyer. In politics he was bold, daring and aggressive, but too arbitrary and self-willed for a successful politician. He was
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elected to Congress to fill the vacancy caused by the death of M. C. Kerr, and the memorable Hayes-Tilden controversy was ad- justed during the time he served. Almost alone he stood out against a compromise, fighting it with great ability and bitterness; and predicting the result which in fact followed. But when adopted, and when it seemed to him that undue obstructions to its con- summation were interposed, he reminded his party colleagues that the compromise was the creature of their own folly, as he termed it, and insisted that it be faithfully carried out. His objection to the plan of adjustment afterward gave him high standing in his party, and but for his domineering disposition, he would have been a successful leader. Dying before his term expired, Governor Porter, on the unanimous request of the bar of both counties, ap- pointed Nelson R. Keyes, of Columbus, and although a Democrat in politics, so highly was he esteemed, both parties endorsed him for election, and he was elected without opposition, and is now serving with great satisfaction not only to the bar but to the peo- ple. He is a well-trained lawyer, fair and impartial. Judge Keyes came from Kentucky to Columbus, when quite young, al- most a stranger, and by his ability and gentlemanly deportment soon built up a large practice. Pecuniarily he made quite a sacri- fice in abandoning the practice for the bench.
Associate fudges .- John Pence, Thomas Hinkston, Ephriam Arnold, Samuel Downing, Nathan Davis, Jesse Spurgeon, David Hager, James Taggart, Hiram Wilson, Aaron Farmer, James W. Love, S. B. McKehan, A. A. Wiles, Joseph Hiner, Thomas Law- ton, George B. McQueen, Jacob Lain, James Hobbs, Sr., William Ruckle.
Fudges of the Court of Common Plcas. - Zachariah Tannehill was the first Judge. He was a farmer-politician, not a lawyer, never having read law. He had a copy of Greenleaf on Evidence; how or why he came by it no one ever knew certainly. It was suspected, however, that a certain attorney gave it to him, for on all occasions he read extracts from "Your Honors own book," which nine times out of ten, were wholly irrelevant, and insisted al- most invariably, to the satisfaction of the court, that the law as " laid down " by Greenleaf, covered the case under consideration.
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The comedy case of the State of Indiana vs. Arthur Muldoon, was tried wlfen Judge Tannehill was on the bench. Muldoon getting the best of the fight with Terry Murphy, Murphy, before his anger cooled, went to Samuel Kriddlebaugh, the prosecuting attorney, "a constitutional" lawyer, and made affidavit charging Muldoon with assault and batttery. They soon made friends and asked the prose- cutor to dismiss. He indignantly refused to " compound a felony." They then employed an attorney to defend. Terry Murphy had a twin brother, Patrick Murphy, and it was very difficult to distin- guish the one from the other, except that Pat wore goggles. When the case was called for trial, Muldoon and Murphy with goggles on, took seats at the desk of the attorney for the defendant. The prosecutor with much feeling informed the court of the cor- rupt attempt as above indicated, commanded Murphy to take his seat where "in the eye of the law " he belonged, which he promptly did, and on the stand denied that he ever had a fight with Muldoon, insiting that he was a " good mon and pacible gintleman." Showing him the affidavit, the prosecutor asked triumphantly : "Did you not make that affidavit?" "No sor." " Then who did?" " Me brother Terry, and it was no foight at al, at al, it was only a froiendly trial of strength." " Pray, sir, , inform the court who you are?" " Patrick Murphy, twin brother of me brother Terry." " Then what are you doing here?" " You called me sor, and besides me brother had to go to the State of Illinois and his eyes being bether and mine sore, he loaned me his goggles, and gave me a power of attorney to schwear for him, which you can see for yourself," showing the prosecutor a crumpled paper.
Judge Tannehill was succeeded by N. T. Hauser, an attorney of Columbus, who made an acceptable Judge. Ralph Applewhite, an attorney of Brownstown, was the next Judge. He was an edu- cated lawyer and made a most excellent Judge. Beatty McClel- land, an attorney of Columbus, was the next Judge. He was well read in the elementary principles of the law, and made an amiable, courteous Judge, giving good satisfaction. Japtha D. New, an at- torney of Vernon, succeeded Judge McClelland. He was a well equipped lawer, painstaking and conscientious. He afterward
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served in Congress and is now Judge of an adjoining circuit. Frank Emerson, an attorney of Brownstown, was the last Judge. He was a man of strong convictions and somewhat arbitrary. On the whole, however, he is kindly remembered by the bar.
Circuit Court Prosecutors .- John F. Ross, James Dulaney, Samuel T. Woolfolk, Harvey Gregg, Calvin Fletcher, W. W. Wick, Hiram Brown, William Herod, A. A. Hammond, W. J. Peaslee, II. O'Neal, John Dumont, B. F. Myers, J. J. Allison, Daniel Kelso, Frank Atkinson, George W. Richardson, K. M. Hord, D. W. Howe, N. T. Carr, W. W. Browning, Amos Burns, W. C. Duncan, Webster Dixon, Anderson Percifield.
Common Pleas Proscouting Attorneys in the Order of Their Service .- Samuel HI. Kriddlebaugh, N. T. Hauser, Ralph Hill, Geo. W. Yocum, Wm. Singleton, F. T. Hord, B. L. Smith, L. Gwin, J. D. New, W. L. Bane, J. N. Kerr, Marion Mooney, N. Crook, W. S. Swengel, Geo. W. Cooper.
Clerks .- Edward Ballinger, Joseph Mckinney, Isaac S. Board- man, N. Tomkins, William Herod, Albert Jones, S. Webber Smith, G. E. Miller, Z. H. Hauser, T. C. Burgess, G. E. Miller.
Sheriff's .- Joseph McKinney, Daniel Zeigler, Gideon B. Hart, J. Hubbard, John F. Jones, John McKinney, William Brown, James Herod, William Hobbs, N. O. Hinman, W. B. Horn, Samuel Stuckey, Richard Carter, Thomas J. Kennedy, M. McGrayel, D. Lynch, Frank Whittington, W. B. Davis, T. F. Everroad, Will- iam R. Spurgin, M. L. Thompson, T. C. Burgess, James S. Brown.
The Bar .- In early times and until about 1860, lawyers " trav- eled the circuit "; that is attended the courts of their circuit regu- larly, and even beyond the circuit. About the time above indicated, this practice commenced falling off, and has almost 'ceased, local attorneys doing largely the business of the county, where they are well supplied with libraries and otherwise better equipped for their work than attorneys from a distance are likely to be. In early times good lawyers were thoroughly conversant with elementary principles; knew almost by heart, Blackstone, Chitty, Coke upon Littleton, Selwins, Nisi Prius, etc., and reasoned by analogy. They were not case lawyers, because there were but few reports, and they difficult to get. They were intellectual giants.
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It is proposed to first give the names of attorneys, not of the county, who practiced at the Columbus bar at different times, and many distinguished names, not only as lawyers, but politicians, statesmen and judges will appear :
John F. Ross, Alexander Holten, R. W. Nelson, Daniel Grant, James Braman, John II. Thompson, Calvin Fletcher, Jeremiah Rol- land, John Kingsberry, Henry P. Thornton, William Baird, A. C. Griffiths, Daniel Bell, Jeremiah Sullivan, Thomas Douglass, Jo- seph A Hopkins, James Stoll, William Bullock, Patrick G. Good, M. G. Bright, Joseph G. Marshall, C. E. Walker, Steven C. Stev- ens, William M. Dunn, A. W. Hendricks, Thomas A. Hendricks, Harvey Gregg, George F. Waterman, Isaac Hawk, Milton Stapp, William Carpenter, W. W. Wick, John B. Scott, Henry Hurst, Hi- ram Brown, James Whitcomb, Andrew Davidson, George Lyon, James T. Brown, James Forsee, Charles Dewey, William J. Brown, Amos Lane, James B. Ray, William Brown, James Scott, Hugh O'Neal, Martin M. Ray, Humphrey Robinson, B. P. Taylor, Will- iam Quarles, Peter Rymen, W. J. Peaslee, A. T. Myer, F. Carvin, C. Cushing, H. M. Woodzard, C. P. Hester, Harry Brown, Daniel Kelso, O. S. Pitcher, Simeon Yandes, William T. Otto, W. B. Cook, W. H. Brumfield, Boyd Mahew, Joseph W. Chapman, L. Brougham, Isaac Nafler, S. H. Woolfolk.
Columbus Bar .- Such as are dead or have left the county will first appear, followed by the present bar:
James Dulaney, Philip Sweetser, R. S. Wheatley, William Herod, George E. Tingle, L. F. Coppersmith, Heman Barbour, D. B. Farmington, Thomas F. Thompson, John Lingston, Robert Wingate, A. A. Hammond, William F. Pidgeon, William Single- ton, N. T. Hauser, William Mack, Ralph Hill, W. W. Herod, Ferdinand Winter, Crocket Ricketts, Jeff C. Reeves, Charles E. Clark, Amos Burns, G. E. Richardson, George W. Richardson, Lafayette Pence, John N. Wheatley, George W. Arnold, S. Dry- bread, T. C. Woodburn, W. W. Browning.
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Philip Sweetser was born in New Hampshire, where he re- ceived a collegiate education. He taught school in Maryland and at the same time read law. In 1821 he came West, locating in Col- umbus, where he soon took high rank as a lawyer. He was with-
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out the gift of oratory, but calm, deliberative and earnest, and in this way a most effective advocate. He possessed the happy fac- uilty of seeming to be not the attorney for his client, but, on the contrary, the especial friend and adviser of the jury. Indianapolis offering a wider field, he located there in IS37, and soon ranked amongst the foremost of the bar at that place. He died in IS.43 in the fifty-fourth year of his life.
The high and honorable position occupied by William Herod, demands a more extended summary of his life and career. He was born in Bourbon County, Ky., and with his parents in his early youth moved to Boone County, in the same State. His parents were very poor in worldly possessions. The schools of that day were indifferent " winter schools," and consequently his education was limited. He taught school and at the same time read law with Edward Armstrong, of Burlington, Kentucky. In IS24, under the laws of Kentucky, he passed examination and was licensed to practice law, and in November of that year located in Columbus penniless and without friends. He was not long without friends, however, for by his engaging manners, high order of intellect, honesty and devotion to his profession, he soon acquired valued, life-long acquaintances and adherents, even if in after years he differed with them in politics. Mr. Herod was possessed of a strong, discrimi- nating legal mind, well-versed in the foundation principles of his profession, but was not a good case lawyer. He knew what the law ought to be, and was persuasively strong before the court, and usually convincingly so, unless the court was familiar with, or the attorney on the other side produced, a decision the other way. As a jury lawyer he had but few equals. He discouraged litigation; never brought a suit until he was satisfied that his client was in the right. In order to arrive at a correct conclusion in this respect, he invariably put his client through a searching cross-examination, to discover the weak points in his case, if any. If his client persisted in what he suspected to be but one side of the case, he would ask him what the other side had to say about the matter, why he re- sisted, and this would ordinarily disclose the weak point, if there was one. For the defense he pursued the same course, and if he found that there was no defense he would say so and refuse to de-
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