USA > Indiana > Greene County > History of Greene and Sullivan Counties, State of Indiana > Part 61
USA > Indiana > Sullivan County > History of Greene and Sullivan Counties, State of Indiana > Part 61
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55 | Part 56 | Part 57 | Part 58 | Part 59 | Part 60 | Part 61 | Part 62 | Part 63 | Part 64 | Part 65 | Part 66 | Part 67 | Part 68 | Part 69 | Part 70 | Part 71 | Part 72 | Part 73 | Part 74 | Part 75 | Part 76 | Part 77 | Part 78 | Part 79 | Part 80 | Part 81 | Part 82 | Part 83 | Part 84 | Part 85 | Part 86 | Part 87 | Part 88 | Part 89 | Part 90 | Part 91 | Part 92 | Part 93 | Part 94 | Part 95 | Part 96 | Part 97 | Part 98 | Part 99
The summer term of 1855 of the Circuit Court convened on the 27th of August, with Judge Hughes presiding. The official bond, commission and path of office of Francis L. Neff as Prosecuting Attorney for the Sixth Judicial Circuit, appointed to fill the vacancy caused by the res- ignation of Theodore Reed, was ordered to be spread of record. The commission bore date of August 6, 1855. There was business of sig. nificance transacted during the term. Hon. James M. Hanna, by the appointment of Judge Hughes, presided as Judge during the term. Hon. Delana R. Eckles, Samuel H. Buskirk, Martin M. Ray and William Mack were admitted to practice as attorneys at law. The August term, 1856, of the Circuit Court was held by Hon. Ambrose B. Carlton, by the appointment of Judge Hugha It convened on August 25, and adjourned on the 29th. No important business was transacted; James C. Denny and Sewell Coulson were admitted to practice as attorneys and counsel- ors at law.
JOHN DOE VS. RICHARD ROZ.
The code practice has been in force in Indiana since May 9, 1853; there were still some lingering relics of the old system found among the canses still pepding. At this term, the remains of John Doe and Rich- ard Roe, who from time immemorial had been familiar to every lawyer and had supplied a legal fiction in actions for the recovery of real es- tate, were forever buried beneath the reform in pleading and practice, which provides that every action shall be prosecuted by the real party in interest, and upon the real party complained of. While John Doe and Richard Roe were mythical personages, our acquaintance with them as plaintiff and defendant is so many common law actions extending over a period of time whereof the memory of man runneth not to the contrary. The alacrity with which John always stepped in to vindicate the alleged right of the man out of possession and the equal promptness of Richard to insist that the man in possession was the lawful owner and entitled to retain his possession, that we cannot take a final leave of these knights
Digitized by Google
542
HISTORY OF SULLIVAN COUNTY.
errant of the common law without some feeling of regret. With the abolition of these fictions, and a modification and simplification of many of the terms by which land was held in feudal times, much of the intri- cate learning of the old common law has also faded away and is now mere matter of history. Those who had thoroughly studied the common law and by long years of practice had become thoroughly imbued with its principles, looked and admired it for its grandeur, wisdom and equal justice, and because it was the embodiment of great and just principles of social and political economy, founded upon the wisdom and experi- ence of ages, stood in awe when the ax was applied to even its smallest branches. Many of the old practitioners in the law regarded the ren- ovation as sacrilegious, and never became fully reconciled to the change. That the practice of the law has been greatly improved by legislation, there no longer remains a doubt, but because the mode of administering jus- tico has been thus improved, it is not certain that all legislation is equal- ly wise and beneficial. The truth is, we have far too much legislation in most all of the States of the Union.
The February term, 1857, of the Circuit Court convened on the 23d. Hor. James M. Hanna having been elected Judge of the Sixth Judicial Circuit, presented his commission, bearing date October 30, 1856, and it was spread of record. He took the oath of office and entered upon the discharge of his official duties in Monroe on the 31st of October, 1856. A roll of the attorneys made out by the Clerk for the use of the court, and found preceding the court docket of the term, shows the following attorneys had business in the court during the term: Samuel B. Gookins, John P. Usher, Delana R. Eckles, Samuel Judah, Joseph W. Briggs, S. R. Hamill, John T. Gunn, W. G. Neff, F. L. Neff, I. N. Booth, Michael Malott, Martin M. Ray, B. B. Moffitt, A. F. Estabrook, James C. Den- ny, W. E. McLean and Sewell Coulson. The August term, 1857, con- vened on the 31st of August, Judge James M. Hanna presiding. The roll of attorneys shown in addition to those in attendance at last term, the following, mostly attorneys residing in other counties: John W. Blackburn, David McDonald, Richard M. Thompson, Abner D. Scott and Usher F. Linder. Among the civil causes and by far the most im- portant one that had appeared upon the docket of the Circuit Court of the county up to that date, was the Trustees of the Vincennes University against Samuel Judah, brought from the Knox Circuit Court on a change of venue. A short history of this very interesting case will be found on a subsequent page of this history. No business of note was transacted at this term.
THE MURDER OF UNDERWOOD.
The February term, 1858, of the Circuit Court, convened on the 22d of February. On that day, Solomon Claypool presented his commission 88 Judge of the Sixth Judicial Circuit, which bore date December 21,
"Digitized by Google-
543
HISTORY OF SULLIVAN COUNTY ..
1857, and was spread of record. The official oath was adminintered to Judge Claypool by Thomas H. Nelson, as Notary Public of Vigo County, on the 27th of December. During this term, the case of the State of Indiana against Henry Todd, for the murder of M. Underwood was tried. The State was represented by John P. Usher, Samuel R. Hamill and Sewell Coulson, the regular Prosecuting Attorney, the late Milton Os- born, of Greenecastle, Putnam County, not being present. The de. fense was represented by Mesers. Joseph W. Briggs, Francis L. Neff and Willis G. Neff. Since the August term, 1857, of the Circuit Court, the Hon. Samuel B. Gookina, who had been elected to the Supreme Court bench October 10, 1854, to fill the vacancy occasioned by the resignation of Judge Addison L Roach.
Claypool was elected Judge of the Sixth Judicial Circuit at the first ensuing election after his appointment, which took place in October. He held the office during his full term of six years. His attachments to home and his family were unusually strong. Toward the close of each term of court when away from home, he became restless and anxious for the closing scene. He was always glad to see the curtain drop, and hear the court Bailiff in his monotonous tone proclaim the words: "Oh yes! Oh yes! Oh yes! the Circuit Court of Sullivan County now stands ad- journed till court in course." Claypool is not a poet-so far as the pub- lic is advised he has never composed a poem. He never repeats even a couplet, or illustrates an argument by a poetical quotation. His mind is mathematical, and deals in matters of fact; his logic or mode of reason- ing is not uniform and systematic; neither adopting the inductive or de- ductive system, but rather attempting to establish his point by exposing the absurdity of the proposition laid down by his opponent. He adopts the theory that everything inconsistent with a falsehood is a truism; and everything inconsistent with an absurd proposition must of necessity be correct, which of itself is a sophism. Judge Claypool can and in sev- eral instances has made very strong logical and telling argumenta.
CONTINUATION OF THE UNDERWOOD MURDER.
The case of the State against Henry Todd referred to, in which all the parties were colored persons, deserves some notice. The alleged mur- der occurred in the neighborhood of Sullivan. Todd, no doubt, was a vicious man; still there may well exist doubts as to whether he deserved the extreme penalty of the law that he afterward suffered. A number of the colored people of the neighborhood were assembled at Underwood's house, and had been, during the day and evening, drinking to some ex- tent. Todd, as well as Underwood, had retired to bed. A disagreement of some trivial nature arose between Underwood and his wife, over which they quarreled for some time. Todd espoused the cause of the female, and without much ceremony shot and instantly killed Underwood. The
Digitized by Google
544
HISTORY OF SULLIVAN COUNTY.
trial resulted in the conviction of Todd of murder in the first degree, and that he suffer death. He was sentenced to be hung on the 2d day of April, 1858. The records of the Circuit Court fail to show that any in- dictment was returned against him. The cause was appealed to the Su- preme. Court of the State, but at the time the Governot was absent from the State, perhaps at New Orleans, and there being no person anthorized to grant a respite in the execution of the sentence, he was executed before the Supreme Court had time to pass upon the case.
THE EXECUTION OF TODD.
The place of execution was surrounded by a high board pen, situated near and on the west side of the track of the Evansville & Terre Haute Railroad, abouttwenty rods east of south from Adam Marschino's present residence. At the same time that Todd was indicted, and as one of the same batch, an indictment was returned against William Adams for the larcery of a horse belonging to Thomas Turman. Adams was afterward tried and convicted, and sent to the penitentiary. His case was appealed to the Supreme Court, and was reversed because of the failure of the record to show that the grand jury had returned the indictment against him (see Adams vs. the State, 12 Ind. R.). Upon the announcement of the opinion of the Su- preme Court in Adams' case, the execution of Todd savored somewhat as a judicial murder-accepting the decision of the court in the Adams case as the law. The trial, conviction, sentence and execution of Todd was illegal. The Supreme Court has however expressly overruled the law laid down in Adams vs. the State, and as the law now stands, Todd's con- viction was legal. Henry Todd is the only man ever executed under a sentence of the law in Sullivan County.
Thomas B. Long, since for many years Judge of the Vigo County Criminal Court, was admitted to practice as an attorney at this term. The business of the court being unfinished at the close of the February term, and adjourned term was held on the 30th of August, 1858, at which very considerable progress was made in clearing the docket. Gov. Paris C. Dunning, Hon. John W . Foster, present Minister to Spain, David Sheaks, Lewis C. Stinson and Isaac Adkins were admitted to practice as attorneys. Judge Solomon Claypool, having been elected Judge of the Sixth Judicial Circuit at the fall election in 1858, at the February term, 1859, of the Circuit Court, which convened February 28, presented his commission and oath of office which were spread of record upon the or- der book. The commission covered the constitutional period of six years, and bore date November 6, 1858. John C. Moodey, of the city of St. Louis, Mo., and afterward one of the Judges of some of the courts in that place, was admitted to practice as an attorney as a matter of comity between States.
Digitized by Google
545
HISTORY OF SULLIVAN COUNTY.
CHAPTER VII.
BY JEWELL COULSON, RAQ.
HISTORY OF THE BENCH AND BAR CONTINUED-THE TRUSTEES OF VIN- CENNES UNIVERSITY VS. SAMUEL JUDAH-DECISION AND APPEAL-VIN- CENNES UNIVERSITY-OPINION OF CHANCELLOR KENT-EJECTMENT CASES-DISPOSAL OF THE PROCEEDS OF THE LAND SALES-END OF LITIGATION-OTHER TERMS OF COURT-WAR TIME-NUMEROUS IN- DICTMENTS-PREVALENCE OF CRIME-JUDGE ECKLES' SUPPER PARTY - THE LLOYD MURDER-THE FALSE IMPRISONMENT CASES-MURDER OF A STRANGER-MURDER OF A NEGRO-THE COMMON PLEAS COURT ABOL- ISHED-THE STATE VS. JOUN A. MCKEE-THE SHEPARD-ENGLE MUR- DER CASE-THE RAILROAD CASES.
A T the February term, 1859, of the Circuit Court, the case of the Board of Trustees for the Vincennes University against Samuel Judah came on for trial. This cause deserves more than a passing notice on account of the interest involved in the subject matter and amount in controversy, and the eminent counsel employed on either side of the cause and the extreme bitterness with which the litigation was carried on. Hon David McDonald, afterward appointed United States District Judge for the District of Indiana by President Lincoln, was a profound lawyer with fine literary acquirements, noted for his accuracy of judgment, high integrity as a lawyer, and moral and social worth as a citizen;, Usher F. Linder, of Illinois, one of the ablest and most eloquent and successful ad. vocates that has at any period appeared at the Western bar; Abner T. Ellis, of Vincennes, F. L. and W. G. Neff, of Sullivan, were present, and repre. sented the plaintiff. The plaintiffs had several other able counsel em- ployed who took part in the cause at some of its stages, but were not. present at the trial. The defendant, a sketeh of whose life and eminent learning and ability as a lawyer will be given, appeared in person and by Hon. Jobn P. Usher, late Secretary of Interior under Mr. Lincoln, then of Terre Haute and now of Leavenworth, Kan., and by Sewell Coulson, of Sullivan. Mr. Usher was a very thorough and painstaking lawyer, advocate and practitioner. In the management of a cause, he had no superior. The cause involved some $25,000 or $30,000. Some in- tricate questions of pleadings and practice under the code that had never before been adjudicated were raised in this case and finally settled. The trial commenced March 4, 1859, and ended on the 9th, resulting in a verdict and judgment in favor of the plainliff for $10,435. 75.
APPEAL TO THE SUPREME COURT.
The cause was promptly appealed to the Supreme Court by Mr. Judah, and was there reversed and remanded to the Circuit Court for a
Digitized by Google
546
HISTORY OF SULLIVAN COUNTY.
new trial. After the cause was returned from the Supreme Court, the venue was changed back to the Knox Circuit Court. The cause was twice in the Supreme Court. On the last trial, the university obtained a judgment of $500, which Mr. Judah paid.
At this term of court, John Thaddeus Gunn, who then had been prao- ticing as an attorney in the courts of Sullivan County for seven years, was naturalized and admitted to the full rights of citizenship. There is not a resident within the limits of the district of lands subject to sale at Vincennes but what had an interest in the subject matter that was in litigation in the suit of the Board of Trustees for the Vincennes Univer- sity against Samuel Judah. It is true that under the management of the Trustees, the benefits had heretofore been almost exclusively local, and benefited no one outside of the immediate vicinity of Vincennes. This, however, does not change the beneficent interest of Congress, nor alter the character of the trust. Indeed had it not been for the indefat- igable labor and most earnest perseverance of the late Samuel Judah, in the face of the most persistent obstructions both without and within, not a dollar of this fund would have been preserved to the Vincennes Uni- versity. The origin of the cause is best stated by the Supreme Court of the United States, in the case of " The Board of Trustees for the Vincennes University against the State of Indiana, as found in 14 Howard, United States S. C. Reports, 268, and 20 of Curtis, Reports, 172, and is here partially followed.
The Indiana Territory was organized by act of Congress of the 7th of May, 1800, Section 2, Statutes at Large, 58, with powers to legislate given by ordinance of July 13, 1787, entitled " An ordinance for the Government of the Territory of the United States northwest of the Ohio River. The or- dinance contained the following provision: "The Governor and Judges, or a majority of them, shall adopt and publish in the district, such laws of the original States, criminal and civil, as may be necessary and best suited to the circumstances of the district, and report them to Congress from time to time; which laws shall be in force in the district until the organization of the annual Assembly therein, unless disapproved by Con- gress, but afterward the legislature shall have authority to alter them as they think fit" On the 26th of March, 1804, an act of Congress was passed for the survey and disposal of public lands; by which these land districts were established and an entire township in each was reserved for the use of a seminary of learning to be located by the Secretary of the Treasury. The boundaries of the Vincennes Land District were the same as designated in a late treaty with the Wabash Indians. The Secretary of the United States Treasury, by letter of the 10th of October, 1806, located Township No. 2 south, Range No. 11 west, in Gibson County, for. the use of a seminary in that district.
- Digitized by Google -
-
547
HISTORY OF SULLIVAN COUNTY.
THE VINCENNES UNIVERSITY.
The Vincennes University was established by a Territorial act, dated the 29th of November, 1806, and an act supplemental thereto adopted September 17, 1807, which incorporated the same by the name of the Board of Trustees for the Vincennes University. The corporation was duly organized at Vincennes, on the 6th day of December, 1806, under the first-mentioned Territorial act, and has since continued as such incor- poration. The second section of the act of incorporation, after reciting the seminary lands granted under the act of Congress referred to, provided "that the Trustees, in their corporate capacity, or a majority of them, should be legally authorized to sell, transfer, convey and dispose of any quantity not exceeding 4,000 acres of said land, for the purpose of putting into immediate use said university; and to have on rent the remaining part of said township to the best advantage for the use of said public school or university. The university, by virtue of said act, and the organization of her Board of Trustees thereunder, and the acceptance of the proposed Congressional bounty, became possessed of the Gibson County Township of lands and the title thereto, in fact became vested in the university, or in the Board of Trustees for the use of the university, and so remained till the organization of the Indiana Territory as a State in 1816. On the organization of the State government, the rights and powers of the corporation were expressly secured by the first section of Article XII, of the constitution then adopted. Between the date of the organization of the Board of Trustees of the university, in 1806, and the year of 1820, the Trustees had disposed of 4,000 acres of the lands in said township, and had leased a part of the residue, and had erected a college building at Vincennes. In the meantime, some of the members of the Board of Trustees of the university had died, others had removed to France, so that there was not a number left sufficient to constitute a quorum for the transaction of business.
The State Legislature of 1820 came to the conclusion that this town- ship of land belonged to the State, and to preserve her rights therein, on the 22d of January of that year, by joint resolution of the two Houses, appointed a superintendent to take charge of these lands, and rent the improved portion and collect the rents, etc. On the 2d of January, 1822, the Legislature, upon the assumption either that the title was originally vested in the State, or that the Board of Trustees had expired through their neglect to preserve their corporate rights, appointed a Commissioner to sell these lands, and pay the money into the State treasury. The Com- missioner thus appointed sold large portions of this land, and as far as he had made collections, had paid the sums into the State treasury. Mr. Judah, in the meantine, had given the matter some attention, and was convinced that the title to the lands, notwithstanding the legislative action, remained in the university. Mr. Judah was a member of the 34
Digitized by Google
548
HISTORY OF SULLIVAN COUNTY.
Legislature of 1838, and was chosen Speaker of the House. During that session, he secured the passage of an act reviving the incorporation, and supplying the vacancies in the members of the Board of Trustees; but only upon the condition that the act should contain a proviso that noth- ing therein should be construed to in anywise affect the right of the State in and to the Gibson County Township Seminary lands. This act was approved February 17, 1838. Shortly after the passage of the above act, through the efforts of Mr. Judah, the Board of Trustees of the university was re-organized, perhaps with Mr. Judah a member of that body, and Secretary of the Board. Mr. Judah at once called the attention of the Board of Trustees to what he conceived to be its rights in the Seminary Township of land. The Board of Trustees, it seems, were not fully satisfied with the correctness of Mr. Judah's opinion as to its legal rights; at all events, they employed a promising young attorney of Vincennes, by the name of Gibson, to collect all the legislation, Na- tional, Territorial, Constitutional provisions and State enactments which, with a statement of the facts furnished by Mr. Judah, were forwarded to Chancellor Kent, of New York, for his opinion thereon. Chancellor Kent prepared and furnished to the Trustees an opinion in every partic- ular, except one, coinciding with Mr. Judah.
OPINION OF CHANCELLOR KENT.
The point of difference was upon the statute of limitations-Chan. cellor Kent held that, owing to the unaccountable neglect of the Board of Trustees, their rights had slept the sleep of death. On this point, Mr. Judah differed from Kent, and insisted that the statute of limita- tions did not apply. While that point was neither raised or decided in the after litigation, yet the opinion of Kent gave Mr. Judah much trouble, as, through the inexcusable officious conduct of one of the mem. bers of the Board of Trustees, who, without Mr. Judah's knowledge, and after the cause had been argued and submitted in the United States Su- premo Court, found his way to Washington City, hunted up Judge Taney, and placed Kent's opinion in his hands, and came near losing the case for his corporation. It raised a new question in the minds of the Judges that had not been before investigated. A re-argument of the case was ordered, in which it appears Mr. Judah was entirely successful in con- vincing the court that it had no application to the case; at all events, no mention is made of the point in the opinion of the court. After the receipt of Chancellor Kent's opinion, the Board of Trustees had so little faith in its rights to the land, that it refused absolutely to invest any money whatever in trying the title in the courts. After much persuasion, the Board of Trustees consented to bring actions of ejectment against the occupants of these lands, claiming title by purchase from the State of Indiana, but, as part of the contract, it was expressly stipulated that
Digitized by Google
- 1 -
.
549
HISTORY OF SULLIVAN COUNTY.
in no case was the Board of Trustees to be held liable for costs, and in case the board was defeated in the suits, Mr. Judah was liable to pay all costs and receive no compensation for his labor and expenses. In the event that the university was successful. Mr. Judah was to receive a fee of $5,000.
WJECTMENT SUITS.
Mr. Judah, under this agreement, in 1845 instituted sixty.odd eject- ment suits in the Gibson Circuit Court, to recover of the Seminary lands sold by the State, but the excitement and opposition was so intense that Mr. Judah did not deem it safe to attend the courts in Gibson County to try the causes, and the Presiding Judge, Embry, who was a purchaser of a part of this land himself, refused to grant a change in the venue in the canses. Matters remained in this condition till the meeting of the Leg- islature of 1845-46, when a law was passed authorizing the State to be substituted in the place of the defendants to the actions of ejectment then still pending in the Gibeon Circuit Court This act provided that a bill in chancery in the nature of an action of decision might be filed by the Trustees for the university against the State, in the Circuit of Marion County, setting up the facts, which should take the place of the pending suits in Gibson County Circuit Court. Accordingly, Mr. Judah, as the attorney for the Board of Trustees, prepared and filed the bill in Chan- cery in the Marion County Circuit Court, and from that time forward the State became the defendant. The cause was tried in the Circuit Court, and resulted in a finding and judgment in favor of the plaintiff. The State appealed from this judgment of the Circuit Court to the Supreme Court, where the judgment of the Circuit Court was reversed. Mr. Judah took an appeal from the decision of the Supreme Court of the State to the Supreme Court of the United States, where the judgment reversing the judgment of the Marion County Circuit Court was itself reversed, and the decision of the Marion County Circuit Court was ap- proved, and the cause was remanded to the Supreme Court of Indiana, with directions to affirm the judgment of the Circuit Court, all of which was done.
The Legislature of the State had, by sundry laws, appropriated all the moneys collected into the treasury arising from the sale of the sem- inary lands in Gibson County to an endowment fund of the State Uni- versity at Bloomington. The amount, with the interest, found due the Board of Trustees for the Vincennes University and final settlement of the decree was in the neighborhood of $66,000, but before it was tinally paid amounted to about $72,000. Various mandamus suits were brought in the Circuit Court of Marion County against the State officers, to com- pel them to pay over the money, and while the same were pending & proposition for a compromise was advanced. By this arrangement, the State was to assume the debt, issue her bonds due in thirty years. bearing
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.