USA > Indiana > Orange County > History of Lawrence, Orange, and Washington counties, Indiana : from the earliest time to the present, together with interesting biographical sketches, reminiscences, notes, etc > Part 53
USA > Indiana > Washington County > History of Lawrence, Orange, and Washington counties, Indiana : from the earliest time to the present, together with interesting biographical sketches, reminiscences, notes, etc > Part 53
USA > Indiana > Lawrence County > History of Lawrence, Orange, and Washington counties, Indiana : from the earliest time to the present, together with interesting biographical sketches, reminiscences, notes, etc > Part 53
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assault and battery on the body of Bailey Hobson. The first traverse jury of the county was called: Joseph Glover, William Milliken, Will. iam Reed, Samuel Lewis, John Dilyard, Alexander Kearby, William Dougherty, Joshua Hadley. William Holaday, George French, Henry Hollowell and Edward Moore. A. Duun appeared as Prosecuting Attor- ney, and John F. Ross for the defendant. The jury returned a verdict of not guilty.
THE VAIL-HOLMES MURDER CASE.
The next case called was a charge of murder against Dr. Gamaliel Vail, who had been bound over for his appearance at the Circuit Court in the sum of $1,000, by Samuel Chambers, Justice of the Peace, before whom a preliminary trial or examination had been held, Thomas MeMan- us being surety. The following was the bill of indictment:
" The Grand Jurors for the United States and the body of the county of Orange, aforesaid upon their oaths present, that Gamaliel Vail, late of the county of Orange, aforesaid. Doctor, not having the fear of God before his eyes, but being moved and seduced by the instigations of the devil, on the 28th day of November, in the year A. D. 1815, with force and arms at the county aforesaid in and upon one Joseph H. Davis Holmes, an infant in the peace of God, and of the United States, then and there being, felonously, wilfully and of his malice aforethought did make an assault and that the said Gamaliel Vail then and there felonous- ly, wilfully and of his malice aforethought did take in his, the said Gamaliel's right hand, a certain quantity of poisonous medicine, and did then and there felonously and wilfully and of his malice afore- thought give, administer and issue to the said Joseph H. Davis Holmes, which said medicine the said Joseph H. Davis Holmes then and there being did by the direction of the said Gamaliel Vail, take and put into his, the said Joseph H. Davis Holmes' mouth, and swallow down into his stomach, by means of which said giving, administering and issuing of the said poisonous medicine to the said Joseph H. Davis Holmes, in the form aforesaid to the waid Joseph H. Davis Holmes, in the county aforesaid, with the medicine aforesaid, was then and there poisoned and swallowed. of which said poisoning and swallowing he, the said Joseph H. Davis Holmes, did then and there languish, and languishing did then and there die, and so the jurors aforesaid upon their oaths aforesaid do say that the said Gamaliel Vail did him, the said Joseph H. Davis Holmes, in manner and form afor said felonously, wilfully and of his inalice aforethought, murder, contrary to the form of the statute in such case, male and provided and against the peace and dignity of the United States."
The defendant not appearing. the Prosecuting Attorney (Dunn), asked that the recognizance might be considered forfeited, whereupon a scire facius was issued returnable at the next term why execution should not
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be made npon the property of the defendant and his surety for $1,000. J. R. Ross, attorney for the defendant, moved that the indictment against his client be quashed for defects, which motion was sustained after due consideration.
THE FIRST SESSION AT PAOLI.
On the second Monday in July, 1816. the court again convened at the house of William Lindley, but immediately adjourned to Paoli and assembled in the new log court house just erected. James Chess was fined $30 for an assault and battery upon Joseph Glover. This was afterward remitted by the Governor. Adam Wible was fined $10 for an assault upon Abraham Rife, his attorney being John H. Thompson. John Rigney was also fined $5 for an assault upon Abraham Rife. Azor Charles sued James Nichols on a note for $40 and recovered judgment. John F. Ross was attorney for plaintiff. At the November term bills of indictment were returned for an affray, horse stealing, a suit for divorce-Josephi Renbottom vs. Hannah (Cox) Reubottom, several cases of assault, etc. Alexander Meek appeared as an attorney. By this time the court was in full running order. The majority of cases were for assault and battery. Henry Stephens appeared as an attorney. William Shoemaker bronght suit in November, 1816. against Samuel Fulton for slander, laying his damages at $1.000; A. Dunn attorney for plaintiff, and J. R. E. Goodlett attorney for defend- ant; also Henry Stephens. Plaintiff recovered judgment for $15 and costs. This was the first slander case in the county. In 1817 E. McDonald appeared as an attorney. Charles Dewey became Prosecuting Attorney in 1817. No other important cases were tried for several years except the murder of Michael Bunger.
THE BUNGER HOMICIDE.
On the 10th of July, 1818, Daniel and Michael Bunger were hoeing corn, when they became involved in an altercation which ended by Dan- iel striking Michael a violent blow on the side of the head with the heavy hoe, inflicting a wound three inches long and two inches deep, from which Michael died in a few minutes. Daniel was indicted by the grand jury and tried before Judge Floyd, Charles Dewey prosecuting and Henry Stephens defending. The jury decided that Daniel was insane, and thus incapable of committing a crime, whereupon a guardian was appointed by the court.
The usual court routine were suits of slander. covenant, riot, assump- sit, assault and battery, debt, trespass on the case, divorce. trespass, etc. E. P. Stows was admitted to practice in 1817. The famous fictions, John Doe vs. Richard Roe, or John Den vs. Richard Fen, were used at this time and until the adoption of the new constitution of 1852. The old attorneys were sorry to part with the old practice. aud deplored the
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innovation on a usage so old that the memory of man ran not to the contrary. It seemed a sacrilege on a time-honored custom, and during the remainder of their lives the old attorneys did not become reconciled to the statutory change.
THE LINDLEY-CHESS SLANDER SUIT.
A case which created much amusement at the time to outsiders was that of trespass on the case brought by Zachariah Lindley against James Chess for slander. The latter having a personal grudge against the former for some reason, which is said to have been a rigid enforce- ment of various merited judgments against him for sundry offences, in order to injure him, and if possible secure his dismissal from the office of County Sheriff, composed and published the following " poem: "
" ZACHARIAH LINDLEY'S MORNING PRAYER.
" Preserve me, Lord, throughout this day, A saint that doth most humbly pray: Oh, give me drink, and give me food, Of everything that's sweet and good; Ob. give me, Lord, a store of riches, Nor let me go with patched breeches. Let me have wine, oh, yes, and brandy. To me more sweet than sugar candy. Oh give me, Lord, constant protection; Teach me to lie at each election. Let me have jurors that for hire Can always clear a guilty 'squire. Raise me up to highest power. And give me whisky every hour.
That I may drink and have my fill. And for a vote can give a gill.
Do Thou make sure, then. my election, Nor give to Pinnick your protection: Let some device that I may use The peoples' suffrage still abuse; Oh. let my power still extend To help in law my warmest friend; Save me from lawyers Goodlett and Meek. And Thy great praise I'll always speak.
.Z. Lindley-The 100th Psalm and Sth verse. " This was a toast drank by a lady in this town, and every man in this county should drink it. The copyright is secured to the Sheriff."
Mr. Lindley brought suit for $5,000 damages for the libel, Henry Stephens being his attorney, but the case was finally compromised in somne manner not now remembered, James Chess was a notorious law. breaker, and a few years later engaged in counterfeiting and was ar- rested and prosecuted in the Lawrence Circuit Court. It was shown in
. " Let his days be few, and let alluther take his office."
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the trial that he had counterfeited forty-four eagles, current gold coin of the United States, whereupon he was convicted and sentenced to the penitentiary for a term of years. His counsel, Stephen & Kidder, ap- pealed the case to the Supreme Court, alleging in the complaint that no State court had jurisdiction in an infringement or violation of a law of the United States, but the judgment of the lower court was in all things affirmed at the cost of the appellant. Moore prosecuted the pleas of the State.
THE PUBLIC SERVICES OF ZACHARIAH LINDLEY.
Zachariah Lindley was the terror of evil-doers. He was a large, strong, active man, utterly destitute of fear, and made just such an officer as was needed in that early day of slack or absent law. Many a horse thief or other serious criminal, whom he had followed and ar- rested perhaps in one of the Southern States, was never heard of after- ward, the opinion prevailing that he took the law into his own hands and perhaps strung them up to a convenient tree without assistance or without benefit of clergy, thus to save to his county the costs of a long . and burdensome trial, and rid the earth of an encumbrance. A few years later than this a negro attacked Daniel Dayhuff with a knife or an ax and cut his abdomen so that his intestines protruded in a dangerous manner. The negro then made his escape into Kentucky, but was fol- lowed by Lindley and captured, but was never brought back. James Chess, who lived north in the edge of Lawrence County, it is said was constantly engaged in a case of assault and battery, and being a strong man, was usually the aggressor. He feared no man except Zachariah Lindley, but on one occasion he outwitted Lindley, which the latter afterward pleasantly confessed. Chess had violated the law in some manner, and Lindley went up to arrest him. Upon reaching his log residence the Sheriff knocked at the door, which was instantly opened and an arm thrust out. A violent twist was given the nasal organ of the surprised Lindley, and at the same time a pistol was leveled at him " by Chess. who had the "drop " on him at last. The Sheriff could not draw a pistol, for if he attempted it, Chess, who was courageous and dangerous, would shoot him without hesitation. He, therefore. made the best of the situation, and threw up his hands when ordered to do so by Chess, and marched out of the yard with as much dignity as he could command in such a humiliating position. Lindley was afterward leader of a band of regulators; he was also Colonel of the Thirteenth Regiment of Indiana Militia.
THE EARLIEST ASSOCIATE AND PRESIDENT JUDGES.
Comparatively little is known as to the professional character of the early members of the bench and bar of the Orange Circuit Court. David Raymond was the first President Judge and Samuel Chambers
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and Thomas Vandeveer the first two Associates. Judge Raymond lived in one of the counties on the southeast and is said to have been an able jurist for that day. The two Associates were well known to the early set- tlers of the county. They were rough old fellows, full of hard common sense, with personal honor far above reproach, and graced the position they were elected to occupy. It would seem that the office of Associate Judge was useless, but it greatly facilitated the transaction of court pro- ceedings, as the Associates in vacation could get matters well in hand for the few days of the court term.
PROFESSIONAL CHARACTER OF JUDGE FLOYD.
In 1818 Davis Floyd became President Judge. He was a tall, dark- complexioned man, with a heavy voice and rapid speech, and was specially skillful in the management of a case in court. He was emin- ently a "jury lawyer," but was also a good judge of law and a fair student. On the bench he was grave, decorous, but would "down" a lawyer detected in an attempt to impose upon his credulity or befog him with intricate legal technicalities. In 1817 John Pinnick became his Associate on the bench, rice Chambers, and in 1818 Samuel Cobb also became his Associate, rice Pinnick, resigned.
EARLY PRACTITIONERS AT THE ORANGE BAR.
The earliest attorneys at the Orange Bar were Alexander Duun, John F. Ross, John H. Thompson, Alexander A. Meek, Henry Stephens, J. R. E. Goodlett, Ebenezer McDonald, Charles Dewey, E. P. Stowes, David Raymond, Henry Hurst, William Hendricks, H. H. Moore, Davis Floyd, William R. Bobbett, Reuben Kidder, and a few others. These men were the flower of the bar of southeastern Indiana in early years. The most of them were men of great professional strength, old practitioners. learned in the law. skillful in practice, with high natural talent and character. Half of them became Judges of their Judicial Districts. There is scarcely a case in the Supreme Court Reports of earlier years from southeastern Indiana that was not argued, pro or con, by one or more of these attorneys. Those who more particularly practiced before the Orange Bar were Stephens, Goodlett, Dewey, Roas, Thompson, Meek, Dunn, Moore, and Hurst. Stephens was a man of unusual talent and culture. His advice was sought in nearly all the cases in- volving life or large property interests. Goodlett was not a brilliant practitioner. He was phlegmatic and deliberate and a good counselor, but lacked that readiness and rapidity essential to success before a jury. Ross was pre-eminently a jury lawyer. He was bright, apt, adroit, technical, persuasive. plausible, a good story teller and conversationalist, but was not a profound student of the principles of law. He became Judge of the Second Judicial District then comprising the county of Orange. Many of the cases appealed from his judgment to the Supreme
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Court were reversed upon well established principles of law or equity. He was a better advocate than a judge. But little can be learned of the professional character of Meek, Dunn, or Hurst. The latter is remem- bered as a man of great power in the court room. He possessed the highest personal magnetism and natural fitness for his profession, either on the bench or bar, not surpassed in southern Indiana. Meek was a worker. He was slow, but went to the bottom of his cases. but lacked dash. celerity and audacity. Goodlett lived in Paoli for a few years, and was counsel in many of the cases during the decade of the twenties and thirties.
PROFESSIONAL CHARACTER OF MOORE, THOMPSON AND DEWET.
One of the brightest lawyers of southern Indiana at that period, who lived for a time at Paoli, was Henry H. Moore. He was well educated, and was a prominent member of the Whig party. He became a candi- date for Congress and for the Governorship, but was beaten in both races. He was a natural orator, and full of fiery energy. At the bar he excelled as a pleader. He was brilliant rather than profound; wa quick at retort, adroit in debate, poetic in fancy, magnetic in manner, and was therefore a jury lawyer of the highest order. His papers, some of which may yet be seen among the county records. show care in prep. aration. John H. Thompson, who was at first attorney before the Orange bar. but afterward for many years as Judge of the District Circuit Court, was an excellent judge of the application of the principles of law or equity to the case in hand, and was rarely ever reversed in the Supreme Court. It took a skillful lawyer to conceal from him in the depths of conflicting evidence and argument the actual principles involved. He unraveled the web or skein of the most complex or baffling case. and presented the legal and equitable points with a deliberate accuracy surprising to the lawyers. He was well educated, slow. delib. erate. auburn-haired, tall, aristocratic, wore a wig, and was rather a poor pleader, as he lacked language, wit and forensic power. Politically, he was a Whig, but took little or no active interest in politics. Charles Dewey was in many respects the ablest lawyer ever a resident of the county or of southern Indiana. He was a hard student, and, to gain his point with the court, would, if necessary, cite scores of cases from all parts of the world, and in all times, involving the principles the appli- cation of which he sought. He was, therefore, a profound counselor. If his client's case possessed legal or equitable merits he knew it. His papers were models of strength. skill. pith and perspicuity. His judg- ment was excellent, his personal and professional character above calumny. his knowledge of the law deep and ready. He was a large man, of fice physique, was solid and deep in debate rather than flashy and oily, but gave sufficient rhetorical color to his arguments to render them interest-
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ing to the dullest listener. He never failed to gain the entire attention of court and jury. He was dignitied without stiffness, sociable without familiarity, sarcastic without bitterness, and. though an ardent Whig. applied himself solely and assiduously to the practice of the law. He removed to Clarke County about 1836-37.
SUNDAY EARLY COURT ITEMS.
In 1S18 and 1819 Hugh S. Ross, James R. Higgins, John N. Dunbar, Samuel Liggett. Jeremiah Bowland, Robert Holly, Henry A. Coward and others were admitted to practice at the Orange bar. At the March term. 1820, Wright Sanders was tried for murder. The details of this case cannot be given. The trial ran through several days and terms, and resulted in a verdict of manslaughter, the punishment being a fine of $50. imprisonment in the county jail one hour, and three stripes on the bare back. At this time the docket was quite full with cases of cove- nant. trover. assault and battery. foreign attachment. appeal. debt, case, trespass on the case, larceny, divorce. ejectment. murder, assumpsit, bas. tardy. adultery, slander. passing counterfeit money, nuisance, perjury, forgery, etc., etc. Jonathan Doty became President Judge in 1821, and Jacob Call in 1522. R. C. Dewey and Daniel J. Caswell. attorneys, were admitted to practice in 1821. Henry Hurst was Prosecuting Attor- ney in 1522. John R. Porter became President Judge in 1524; Thomas Vandeveer and Jolin H. Campbell being his Associates. In 1925 John Law was Prosecuting Attorney, and John Miles was admitted to the bar. Many cases during these years were for assault and battery, with intent to commit murder, and owing to the prevailing custom of fighting cannot be wondered at. It was often the case that excellent men were thus indicted. At the February term, 1926, Jacob Cooper and Hiram Cooper were tried on this charge, both being convicted of assault and battery, and the latter of the intent to murder as well. He was fined $25 and costs John Law prosecuted the pleas of the State: Dewey defended. Isaac Wells was the one killed. He was beaten so with a club that he afterward died from the effect. His own aggressive acts only prevented the jury from fixing a heavier penalty on the Coopers.
THE PORTIR-HOGGATT CONTROVERSY.
In 1822 John R. Porter. attorney, who had been serving William Hog. gatt as Deputy Clerk of the county, appeared in the county in printed hand.bills with affidavits from several per-ons to the effect that Hoggatt was guilty of malfeasance in office. Specific charges were made that he bad mi-appropriated court fund- to his own use. He answered in an open printed letter to the public. with affidavit- of persons whoin the complaint had charged were injured. showing that the charges were unjust. false, etc., but the matter remained in doubt and no lawsuits resulted. Under the authority of the Circuit Court an investigation was
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held, but with no damaging result to Hoggatt. Soon afterward Judge Call examined the Clerk's office, and made the following report:
ORANGE COUNTY.
STATE OF INDIANA, ! ss. October Term, 1822, Third Day of Term.
Having this day concluded the examination of the Clerk's office of said county, I report that I found all things in good order.
J. CALL. President Judge First Judicial Circuit.
THE BOLLS-GILLILAND MURDER CASE.
On the 30th of December, 1826, a short distance west of Paoli, Ben- jamin Bolls and John Gilliland became engaged in a fight, during which the former drew a knife and stabbed the latter in the groin, inflicting a wound about two inches long by two inches deep, from the effects of which Gilliland died in a few minutes. Bolls was indicted,- and the case came up for trial at the February term, 1827. After an exciting trial the jury returned a verdict of murder in the first degree, but upon a technical point a new trial was secured, and the case was continued until the July term, 1827. At this time the jury returned a verdict of guilty of manslaughter and fixed the punishment at sixteen years in the penitentiary, and a fine of $1 and costs. Soon after this, for some reason unknown, Bolls was pardoned by the Governor. John Law was Prosecutor, John R. Porter, Judge, and it is probable that Dewey was attorney for Bolls. Altogether the trial lasted eight days, and seems to have been hotly contested.
COURT OFFICERS AND ATTORNEYS.
In February, 1827, Albert S. White, Henry Collins, James Collins, William H. Hurst and Henry S. Henely were admitted to practice. Numerous cases of horse stealing and burglary came up about this time. On the motion of Charles Dewey, Isaac Howk was appointed Special Prosecutor for the February term, 1829, Law being absent. Eben D. Edson and Benjamin Hurst were admitted to practice in 1829. John F. Ross became President Judge in 1830. vice Porter. John H. Campbell and Joseph Hostetler were his Associates. William Hoggatt. County Clerk, died, and in December, 1830, James Collins was appointed to succeed him, but not qualifying he was superseded by John McVey, who for many years officiated in that capacity. In 1831 Jacob Moulder succeeded Campbell as Associate Judge.
THE HUNSTON.DOUGHERTY SUPREME COURT CASE.
In 1829 the first case was taken from Orange County to the Supreme Court, and was in substance as follows:
John Dougherty was the owner of a certificate for a quarter section of land on which one-fourth of the purchase money had been paid. He sold fifty acres* of this quarter section to Edward Humston, giving his
.This land was on Section 23. Township 2 north, Range I cant.
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bond in the sum of $500 conditioned to convey such fifty acres as soon as the title for the same was received from the United States. Humston then gave his notes to Dougherty for 850, payable in sawing, and after- ward paid the notes. He also executed to Dougherty his bond to pay into the land office the sum necessary to clear it out of the office, but before this could be done Dougherty relinquished half of the quarter sec- tion and obtained a patent for the remainder in his own name. Hum- ston took possession of the fifty acres and enclosed it with a fence. George Dougherty, son of John Dougherty, then procured from his father an assignment of the certificate and soon after a title to the fifty acres. He then expelled Mr. Humston from the land. Judge John F. Ross decided that Humston should have a conveyance for the fifty acres of land, provided he paid to the Clerk's office the sum of $20 for the benefit of George Dougherty, and appointed a Commissioner to execute the conveyance. The trial was a long one, lasting several days, and many witnesses were examined. John H. Farnham was the attorney for Humston, and Charles Dewey for George Dougherty. The latter appealed the cause to the Supreme Court and secured a reversal on the ground that, as the cause was in chancery, Humston not having paid all the purchase money for the land title, was not entitled to an equity of conveyance. This case elicited much interest at the time by reason of its importance, and the fact that it was the first case appealed from Orange County to the Supreme Court.
THE BOWLES-NEWBY SUPREME COURT CASE.
In 1830 the second case, as follows, was taken to the Supreme Court: William A. Bowles entered into a contract with Joseph Potts and John Parvin, owners of a brick-kiln, at Paoli, to deliver to him (Bowles) 70,000 bricks on or before May 1, 1829, and in consideration gave his note for $210, payable to Potts in twelve months, dated October 30, 1828. The bricks were not delivered, and suit was brought by Edward Newby, assignee of James l'otts, upon the note when dne; but Bowles pleaded fail- ure of consideration, and to this plea was a demurrer which was sustained by Judge Ross. The Judge accepted the argument of Charles Dewey, attor- ney for Newby, that the true consideration of the note for the money was not the actual delivery of the bricks but the undertaking to deliver them, that being the construction of the plea and so understood. The case was strongly argued in the Orange Circuit Court by Dewey and Isaac Howk, attorney for Bowles. The Supreme Court reversed the judgment of Judge Ross upon this ground: " The time for the delivery of these bricks in this case being prior to the time for the payment of the money shows clearly that it was the understanding of both parties that the delivery of the bricks should precede the payment of the purchase money, and no person can compel another to perform his part of the contract
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