USA > Indiana > Vanderburgh County > History of Vanderburgh County, Indiana, from the earliest times to the present, with biographical sketches, reminiscences, etc. > Part 42
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BENCH AND BAR.
eight hundred and eighteen, the day appointed by an act of the general assembly of the state of Indiana, for holding the first circuit court in and for the said county of Van- derburgh, when present the Honorable David Hart, president judge of the fourth judicial circuit court in the state of Indiana:
" Ordered by the court that Hugh McGary be, and he is hereby appointed clerk of the circuit court for the county of Vanderburgh, until a clerk be commissioned and qualified, who thereupon appeared in court and took the oath to support the constitution of the United States, the state of Indiana, and the oath of office.
" The sheriff, John B. Stinson, returned a panel of grand jurors, who being called, appeared as follows, to-wit: John Patterson, foreman; Andrew Sullivant, John Beach, John Slow, George W. Jacobs, James John- ston, William Wagnon, George Sircles, Jesse McCallister, Nathan Young, Lewis Tackett, Luke Wood, and John Neal, thirteen good and lawful men, who, being tried and sworn received their charge and retired to consult upon presentments, etc.
"On application of Jacob Call, and it appear- ing to the court that the said Jacob Call, Charles Dewey, Richard Daniel, John Law and William Prince, have been duly licensed, ordered that they be admitted to practice law in this court as attorneys and counsel- lors at law."
The court appointed John Law as prose- cuting attorney for the term, and added three men, Patrick Calvert, John Armstrong and Ezekiel Saunders to the grand jury, the law then requiring that jury to be composed of sixteen men.
With the dispatch usually characterizing grand juries of that period, two indictments were returned that same day, both for adul- tery, one against Daniel Robertson, and the other against Mary Tindal. The ordering'
of a capias for each of the indicted parties returnable instanter, completed the business of the court for that day. On the following day the grand jury returned bills against Matthew McClair and Daniel Robinson for assault and battery, also one endorsed not a true bill, against William and James John- son for larceny. But little more business of consequence was transacted, and the court adjourned "until court in course," having been in session two days. The record for the last day is not signed, and the term was held by the president judge alone, his asso- ciates not having been elected.
The second term of the circuit court be- gan on the 25th day of May, 1818, at the house of Hugh McGary. In addition to David Hart, the president judge, there ap- peared at that time John McCrary and William Wagnon as his associates. John Law was again appointed prosecuting attor- ney. On the first day of this term occurred the first trial by jury in the new county. This was in the case of the state of Indiana against Matthew McClain for assault and battery. That jury was composed of the following men: William R. McGary, George Linxweiler, Levi Warren, Edward Hill, John Neal, Peter Linxweiler, Luke Wood, John Beach, John Slow, Peter Vandeventer, John Tyler, and Andrew Sullivant. The jury found the "defendant not guilty in manner and form as he stands charged in the indict- ment." The first civil cause tried by the court appears in the records of that day and was an action for debt, entitled Joseph A. Pat- terson and others versus Harrison Johnson.
During this term John B. Stinson was al- lowed $30 for his services as sheriff for the year, and John Law, $100 for his year's services as prosecutor. The adoption of a seal, the trial of Jesse McGary and other matters of interest occurring at this time are mentioned in other connections,
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PERSONNEL OF THE COURT.
David Hart, the first president judge, was an able lawyer who came to Vander- burgh county from Kentucky, and for a time practiced as an attorney in the district to which the new county of Vanderburgh was attached. His home was in the town of Evansville, and in later years he was one of the proprietors of the Upper enlarge- ment. His ability as a man of affairs and his wide acquaintance with the prominent men of his day in many parts of the state gave him considerable influence and enabled him to stamp his individuality upon the legislation of the state. His family returned to Ken- tucky, where his descendants became hon- ored citizens. His successor, Richard Dan- iel, was a most peculiar character, his eccentricities of thought and action always attracting attention. But little is known of his personal career. Both before and after being on the bench he was a successful practitioner and rode the circuit through all the counties of southwestern Indiana. The records in this and neighboring counties in- dicate that he was connected with much important litigation, and tradition says that he was an able lawyer and a good judge. Associate judges were residents of the country and were not required to be " learned in the law." No citizen is sup- posed to be ignorant of the law, but the manifest ignorance of some associate judges caused the courts, as formerly constituted, to be called facetiously, courts of 100- one judge and two naughts. However, in Vanderburgh county some of the best citi- zens sat on the bench as associate judges. The first of these, elected in 1818, were John McCrary and William Wagnon. John McCrary was a native of North Carolina, born in 1771, and came to Indiana territory when forty years of age, locating near the northwest corner of what is now Vander- burgh county. When he came the country
was new and Indians were troublesome. In 1813 he was on the spot where Evansville now is; a rude cabin covered with deerskins and buckhorns, occupied by Hugh McGary, was the only house in the vicinity. He was a minister of the gospel and a very devout man. Following his settlement in Indiana he purchased extensively through the Wa- bash valley, and later was instrumental in establishing the Christian order in this sec- tion. He was reared in a Presbyterian home, was educated in that faith, and in Tennessee, where he lived before coming northward, was a prominent revival preacher. He lived in Indiana twenty-six years and in 1835 moved to Illinois. He had become far advanced in life; his children were all mar- ried; and two years later he followed some of them to Iowa territory, where he lived until his earthly career was ended, in 1859. In IS24, he was chosen to represent Vanderburgh and Warrick counties in the state legislature. Politically, he was a whig, and later a re- publican. He retained his political zeal to the last. On the bench he was upright and just. Hon. George W. McCrary, of Iowa, in later years secretary of war, and United States judge, was his grandson.
William Wagnon represented a different type of the pioneer. He early settled on section 33, in what is now Perry township, and subsequently removed to the northwest corner of the township, where he died when about ninety years of age. He was a rough character, unscrupulous, and of a low grade, mentally and morally. He wielded consid- erable influence in his day, however, and served for some time as a justice of the peace after leaving the bench. He sold whiskey to the Indians unlawfully, so it is reli- ably stated, and thus put the lives of the settlers in danger. He was several times prosecuted in the courts for adultery, and
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BENCH AND BAR.
was divorced from his wife because he aban- doned her and lived with another woman. There was an indictment against George Wagnon, a son of the associate judge, and himself a rough character, to be tried at the March term of the court, in IS20. The president judge, James R. E. G oodlett, did not arrive until the Thursday after the court met. On Tuesday morning, Richard Dan- iel, the attorney for George, moved the court to quash the indictment, and briefly argued the motion, when John Law, prosecuting attorney, suggested that as one member of the court was the father of the defendant, and as both must concur in order to render a decision, the court might feel a delicacy in passing upon the motion before the arrival of the president judge. The judges took the indictment and whispered together a few minutes, when Judge Wagnon responded that the court did not feel any delicacy about the matter, and that the indictment was bad and must be quashed, and that his son George should go hence without day or date. This is verified by the record.
At the second term of the circuit court, held in May, 1818, the first indictment for murder was returned by the grand jury. It was drawn by John Law, prosecuting attor- ney, and charged Jesse McGary with killing his wife Catharine. McGary was one of the rough and uncouth backwoodsmen, and resided in what is now Scott township, near the Gibson county line. When arraigned he pleaded not guilty, and his trial was deferred until the next term of court. His bond was fixed in the sum of $10,000, and was signed by John B. Stinson, Hugh McGary, William R. McGary, Daniel Miller, Richard Carlisle, Robert McGary, David Whetstone, Andrew Sullivant, William Blevens, George Linxweiler, Zadock McNew and David . Brumfield. He was put on his trial at the March term, 1819, clearly, earnestly and forcibly, though sel-
before a jury composed of Presley Pritchett, John Connor, Clark McCalister. Charles Evans, Benjamin McNew, John Armstrong, Isaac Farmer, William Blevens, jr., Peter Linxweiler, James B. Robertson, Robert Gibson and Morrison Fitzgerald. The ver- dict was " not guilty." The circumstances of the case were peculiar. Domestic trouble of some sort had entered McGary's cabin, and one day as his wife was coming in the door he sent a ball from his rifle through her heart. His acquittal was ob- tained on the ground that he had shot at a dog, not knowing that the woman was about to enter the house. ~
Judge James R. E. Goodlett succeeded to the president judgeship in 1820, and for twelve years presided in this circuit. Born in Culpeper county, Va., he came to Indi- ana in 1816 when about twenty-six years of age, and settled at Corydon. He soon moved to Paoli, and as early as 1818 went to Princeton, where he was practicing his profession when elected to the bench. He subsequently moved to Evansville, and after his retirement from the judgeship practiced law for a time in this part of the state. Leaving here he went to New Albany, thence to Bedford, where he became a com- mon pleas judge, and died while on the bench about 1857. He was phlegmatic and deliberate, a good counselor, a careful and wise judge, but not a brilliant practitioner, lacking that readiness of resource and rapidity of thought so essential to eminence as a jury lawyer. He was well versed in law, however, studied his cases well, and made up by thorough preparation what he lacked in celerity of thought. His method- ical habits and long experience as a judge made him slow in debate, and his arguments were without any display of enthusiasm or oratorcial ability. The law and the facts,
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ASSOCIATE JUDGES.
dom eloquently, presented, were depended on to carry his points. Because of these qualities he was generally successful as a practitioner. On the bench he was rigid and austere. It was his common prac- tice to fine attorneys for contempt upon meager provocation. The records show that he admitted James McKinney to prac- tice at the March term, 1821, and on the same day fined the gentleman fifty cents for contempt. The usual amount assessed against those offending the majesty and dignity of the court was $3. When he be- came a practitioner the "tables were turned," and fines for contempt were freely imposed upon him.
In 1822 another change in the personnel of the court occurred, when William Olm- stead replaced Judge Wagnon, and a wider difference in worth than existed between these two men can scarcely he conceived. Judge Olmstead was not a lawyer, but a cit- izen of high character, honorable and upright in every social relation. In 1818 he emigrated from New York state and settled in what is now Center township, where he lived for many years. He was intelligent and progressive, and did much to elevate and give tone to society. He was a man. of unblemished reputation, served satisfactorily as associate judge and county commissioner and by his pure and wise private and public life rose to a lofty place in the esteem of the people. His fitness for the bench was generally recognized; he served in that ca- pacity for twenty-two years - by far the longest service of the kind rendered by any citizen of Vanderburgh county.
For fourteen years, from 1825 to 1839, John M. Dunham was the colleague of Judge Olmstead on the bench, and for honesty and integrity was perhaps the peer of any man in the county. He was well educated, conscientious, thoroughly just,
generous, manly, and for many years a prominent citizen of recognized worth. His residence was in the city, about where Blount's plow factory now stands. In early times he was engaged in general merchan- dising, and succeeded in amassing what for those days was a great fortune. He was a prominent church member and intimately associated with many efforts to advance and better the moral tone of the community. His character and career, in all respects were worthy of admiration. His successor, John W. Lilliston, who served from 1839 to 1842, was his inferior in mental capacity and moral strength. Mr. Lilliston had few traits worthy of emulation. He was ungenerous, at times unscrupulous, and in pressing those unfortunate enough to become his debtors was without mercy. His disposition in this respect gained for him the sobriquet of "old Black Hawk." At one time he made a profession of religion, but shortly afterward fell into possession of certain notes issued by a church society in the city to complete the construction of a house of worship. He obtained possession of the church property and on Sabbath morning sent word to the minister and his congrega- tion that the key of the house was in his hands and that the church building was his property, which they could not enter with- out committing a trespass punishable at law. He had little refinement, was a citizen of the rougher sort, and is now chiefly remembered by the characteristics referred to. He re- moved from the county, and, it is said, finally failed in business and died in poverty.
One of the most interesting of the early civil or chancery cases was that of Joseph M. McDowell et al. vs. John J. Audubon et al. It derives its chief interest, not from the amount involved or the character of the transaction on which it was based, but from the subsequent career of the principal re-
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BENCH AND BAR.
spondent, Audubon, the famous naturalist. His establishment of a steam saw-mill at Henderson in early times and the failure of the enterprise are familiar facts. In 1819, Joseph M. McDowell, William R. Bowen and Jonathan Anthony filed a bill in chancery against Jacob Gall, John J. Audubon, Thomas Litton and John Baddollet, reciting that Gall, through one Jacob Rouse, had en- tered 569 acres of land, in fractional sections 2 and 3, township 7 south, range II west, and offered to sell the same for $300 to the complainant, and that Gall, having lost his certificate, a trip to Vincennes was made by Mr. Anthony to examine the record, when, everything being satisfactory, the purchase was perfected and the money paid. The character of the ancient pleadings is so well exemplified in the papers of this case, that they are freely quoted from in this connec- tion. After reciting the facts of the pur- chase of the land by the complainants, and exhibiting in detail all papers connected with the transaction, the bill proceeds as follows:
" Your orators further state, that some short time after their having so purchased as above, they indirectly understood that a mercantile speculating Frenchman by the name of John J. Audubon, who your orators pray may be a defendant and party to this suit, with proper and sufficient apt words to charge him with the premises, had, a little while previous to your orators' purchase, made some kind of bargain with the said Jacob Gall respecting the said land, which information, though indirect and indistinct, induced your orators, who being plain men and unversed in the arts of intrigue, chicane and duplicity, and becoming somewhat alarmed, to enquire of the said Gall the par- ticularities of the transaction between himself and said Audubon respecting the said frac- tional sections of land, when lo! the said Audubon's pretended purchase was surrep-
titious and malum in se, and of so shameful a character that it did not become indispen- sably necessary to be narrated by your ora- tors in their bill, they would willingly and through charity let it be hid, to be hereafter brought up in judgment against Mr. Audu- bon before the awful bar of heaven's chan- cery! But inasmuch as your orators consider this pretended contract of said Audubon with said Gall as void ab initio from their fraud and perjury and subornation of per- jury afterwards committed and transacted, for your orators are informed and verily be- lieve that the said John J. Audubon, and who, combining and confederating with divers other persons, to your orators at this time unknown but whose names, when dis- covered, your orators pray may be made defendants and parties hereto with proper and apt words to charge them with the premises, had written an assignment and transfer on the back of said Jacob Gall's certificate for the aforesaid two fractional sections of land, which he had artfully in- duced him to sign by making certain une- quivocal assurances, in which he, the said Gall, at that time too credulously confided; but the said Audubon's deceptions could not, nor did not, last very long, for shortly after the assignment, as it became, and was by the regulations of the land office at Vin- cennes, necessary that the said assignment should be acknowledged before some one judge or justice of the peace, wherefore they, the said Gall and Audubon, appeared before William Wagnon, Esq., then one of the justices of the peace in and for the said county of Vanderburgh, and when the said Gall, fortunately for himself, family and friends, rehearsed over and related to the said Wagnon, in Audubon's presence, and hearing their contract and agreement respecting the said land and the considera- tion of the assignment thereof, the said
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THE AUDUBON CASE.
Audubon was obliged to show his cloven foot and denied the terms as previously agreed upon, whereupon the said Gall per- emptorily and unhesitatingly refused to ac- knowledge the said assignment and transfer and demanded back his aforesaid certificate of said Audubon which was affrontingly refused by him. This put the said Gall to some considerable embarrassment, but still supposing that the said Audubon had some modesty and veneration for truth and char- acter: he had little, in fact no idea of the abominable force which was afterward acted; for it appeared that he, the said Audubon, then, or shortly afterward, repaired to one Thomas Litton (who your orators pray may be made a defendant and party hereto with proper and apt words to charge him with the premises ) as a justice of the peace (whose name in that character is a reproach to the community) in and for the said county of Vanderburgh and by persuasions, or which is the more likely, bribes by the said Audu- bon, he, the said Litton, was induced to, and did affix to the said certificate and assign- ment a writing purporting to be an acknowl- edgment made by the said Gall before him, when in fact and truth the said Gall never did acknowledge the same before any judge or justice whomsoever, nor did he intend nor would he do so after discovering said Audu- bon's fraud and deception, and when this abominable conduct came to the ears of said Gall and through him to the world, the said Litton, fearful of an indictment or prosecu- tion for perjury, and other high crimes and misdemeanors, made a precipitate departure and fled to parts unknown - maybe to the Mr. Baddollet was notified by subpoena, Gall, Audubon and Litton by advertisement. No answers were filed, and at the May term, 1820, the complainants obtained a de- cree by default. Mr. Audubon had removed to Louisville, Ky., and in March, 1821, filed marshes and fens of Florida, to mire his guilt and remorse, or to the banks of the Mississippi, where by its accretions he might bury his infamy. And your orators are apprehensive that John Baddollet, Esq., register of the land office for the district of his answer. The former decree was opened.
Vincennes, who your orators pray may be made a defendant and party hereto, with apt words to charge him with the premises, not being officially informed of your orators' aforesaid assignment and transfer, and through the deception and imposition of said Audubon, may grant and issue, if he has not already done so, a final or patent certificate, for the aforesaid fractional sec- tions of land to the said Audubon or to his assigns, instead of to your orators, as the bona fide assigns of the said Jacob Gall, thereby materially injuring and oppressing your orators; all which said actings, pre- tenses and doings of the said confederates, are contrary to equity and good conscience, and tend to the manifest injury and oppres- sion of your orators. In tender considera- tion, whereof, and for that your orators are remediless in the premises by the strict rules of the common law, and relievable only in a court of equity where matters of this nature are properly cognizable." It was asked that " the said confederates may re- spectively make full, true, direct and perfect answers upon their respective corporal oaths, according to the best of their respect- ive knowledge, information and belief to all and singular the charges and matters as aforesaid, as fully and in every respect as if the same were here again repeated, and they thereunto particularly interrogated." The complaint then goes over again at great length the entire ground, interrogating the respondents as to all the details of the trans- action. The complainant's attorney was William Prince.
BENCH AND BAR.
In his answer, "reserving to himself all manner of exceptions to the manifold defects and want of substance in said bill," he de- nied generally the statements of the com- plainants, and stated his case substantially as follows: He had advanced Gall the money necessary to enter the land, upon his prom- ise to furnish 2,500 saw logs at $1 each; which contract was never fulfilled. The certificate showing first payment and a deed from Gall were placed in his hands, to be held until the logs were delivered, the trans- fer being made in the presence of David Megley and George Lindsey as witnesses. He advanced money to carry on the work of cutting timber, and Gall, instead of pay- ing his debt, plunged deeper and deeper. until at length, being led to examine his se- curity, he found it not in the form required by law. But "believing Gall incapable of such conduct as he was subsequently led into by his co-partners," he let the matter rest, till one day he was besought by Gall to help him out of a difficulty. Gall had been arrested in Henderson for a debt of $180, and was about to be committed to "gaol." He declined to assist further the unfortunate man unless he would agree to make a proper transfer to secure his already heavy indebtedness. This Gall agreed to do in the presence of witnesses, on the strength of which Mr. Audubon be- came bail, and later paid the $180.00. On the day following the arrest Mr. Audubon proceeded to Gall's house in this county, and procured what he thought was a proper assignment, the acknowledgment being taken by Esquire Litton, a neighboring justice of the peace. "At this time your respond- ent," so runs the answer, "believes that Gall was influenced by a sincere desire to do what he himself called an act of justice to your respondent in securing him from the danger of being a sufferer in consequence cal plot by the excessive quantity of ardent
of the advances he had made, and he thinks that Gall would have continued the straight and correct line of conduct toward your respondent which he was then pursuing, had not McDowell and his co-partners upon whom the infamy attached to the continu- ance of this nefarious transaction must and will fall-had not those 'plain men, unversed in the arts of intrigue, chicane, and duplicity,' stepped between Gall and honesty, and by means of their promises and his necessity, tempted him to do the deed for which he indeed will have to answer at the awful bar of heaven's chancery!" Mr. Audubon then proceeded to Evansville to have the county clerk certify Litton's official character, and was told by McGary, the clerk, that the transfer was not yet in proper form. He re- turned to have the corrections made-a sim- ple alteration in form -- and reaching Gall's house, found there William Wagnon, " an- other plain man, unversed in the arts of intrigue, chicane and duplicity," also a jus- tice of the peace. Finding this officer at hand it was suggested that a new and proper transfer be made, to which Gall assented, but Wagnon refused to take the acknowledgment, declaring that he wanted the land to remain in Gall's possession, and intimating that he wanted some of it himself. However, Wagnon took Gall aside and re- mained absent with him for some time. Upon his return "the aforesaid type and representation of justice, William Wagnon, expressed a willingness to take the acknow- ledgment, but Gall had been steeped with liquor, and now in a brutal and drunken manner refused to sign. The respondent then says: " Your honorable court will ob- serve that this revolution was affected by completely dissipating every sentiment of honor and justice that still had remained in the breast of the miserable tool of their diaboli-
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