History of Kalamazoo county, Michigan, Part 28

Author: Durant, Samuel W. comp
Publication date: 1880
Publisher: Philadelphia. Everts & Abbott
Number of Pages: 761

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104

HISTORY OF KALAMAZOO COUNTY, MICHIGAN.

was confined to all matters where the amount in dispute exceeded one thousand dollars, except in actions of eject- ment, over which it had exclusive jurisdiction.

The powers of a Chancery Court were extended to the county courts June 13, 1818, and the Supreme Court was given concurrent jurisdiction with, and appellate powers over, the county courts, and the Governor was authorized to appoint a master commissioner in chancery for either court.

CIRCUIT COURTS.

The Circuit Courts of the counties of the Territory were created by the Legislative Council in August, 1824, and reaffirmed in April, 1825, the act to take effect in Sep- tember of the same year. These courts were held in each of the organized counties by the justices of the Supreme Court. They had original jurisdiction, within their re- spective circuits, in all civil actions at law where the amount due or demanded exceeded the sum of one thousand dollars, and concurrent jurisdiction with the county courts in all civil actions where justices of the peace had not jurisdic- tion, and of all actions of ejectment and capital criminal cases, and appellant powers over the county courts.

On the 15th of April, 1833, the Circuit Court of the Territory of Michigan was created, and all the organized counties of the Territory were made to constitute one cir- cuit. The presiding judge was appointed by the Governor, was styled the " circuit judge," and was required to be a person learned in the law. He held his position for four years. Associated with him were two judges, appointed in each county, who held their offices for two years. Any two of the judges might form a quorum for the transaction of ordinary business, but no flagrant crime could be tried in the absence of the circuit judge, unless the person charged therewith consented to a trial.

These courts possessed chancery and common-law juris- diction, original in all civil cases where justices had not jurisdiction, and had cognizance of all offenses not similarly cognizable by justices, and appellate powers over justices.

The Circuit Courts existing at the date of the passage of the act were denominated by the act " the Superior Circuit Courts of Michigan," but the business on their dockets was transferred to the new tribunal.

The State constitution of 1835 provided for a Supreme Court, and as many others as the Legislature should choose to provide, including a probate court in each county.

The Supreme Court was to consist of one chief and three associated justices, appointed by the Governor, on nomina- tion of the Senate, to serve for seven years. In 1837 the Legislature divided the State into four judicial circuits, the justices of the Supreme Courts holding the courts in the several counties. The jurisdiction of the courts remained the same as under the Territorial organization, except in chancery cases. Two associate judges were to be chosen in each county, one of whom was required to sit with the pre- siding judge. In 1840 the associates were empowered to hold courts in the absence of the presiding judge.

In April, 1848, the Legislature made a change in the courts : the Supreme Court was reorganized, and made to consist of one chief and four associate justices, and the State was divided into five judicial circuits. The supreme

justices were each to hold at least two terms in each county in the circuits assigned them, and in the execution of that duty to be styled circuit judges.

The constitution of 1850 vested the judicial powers of the State in one Supreme Court, Circuit Courts, Probate Courts, and justices of the peace. Municipal courts were to be provided at the will of the Legislature.

The judges of the Circuit Court in each of the eight cir- cuits of the State were to form, for the next six years, the Supreme Court of the State, after which the Legislature was to provide for a reorganization of the latter court by the election of one chief and three associate justices for terms of eight years, the term of one to close every alter- nate year; the Legislature to change the limits and in- crease the number of circuits; and the courts had original jurisdiction in all matters, civil or criminal, not excepted by the constitution nor prohibited by law, and appellate and supervisory powers over all inferior tribunals. The county clerks are clerks of the court.

COURT OF CHANCERY.

This court, which was provided for in the constitution of 1835, was created in 1837, and its early sessions were held at Detroit up to the year 1840. Its powers were similar to those of the Chancery Courts of England. The pre- siding judge was called a chancellor, and was appointed by the President of the United States. Registers were ap- pointed for each district.

In 1839 this court was given cognizance of the banks, and in 1841 the power was extended to partition and sale of lands, concurrent with the Circuit Court. The Supreme Court possessed appellate powers over this court.

PROBATE COURT.

Under the ordinance of 1787, for the government of the Northwest Territory, provisions were made for regulating the line of descent and for administering upon estates and wills. The widow's right of dower was made inviolate, and wills were to be attested by three witnesses, and when proven, were to be recorded within one year in the offices provided for such purposes. On the 31st of August, 1805, Governor Hull and Judges Woodward and Bates passed an act providing for the probate of wills and the administra- tion of estates in the Territory of Michigan. Wills were to be recorded in the office of the clerk of the District Court.

In January, 1809, this act was materially amended, and in 1810 the whole was repealed. In January, 1811, a new probate law was enacted and a register provided for, with the authority of a judge in the probate of wills, and in granting administration upon intestate estates; and wills were recorded in his office. A register was provided for each judicial district. Power to compel specific perform- ance, on contracts of decedents for conveyance of land, was vested in the register, and also the power to decree the sale of lands to pay the debts of decedents.

On the 27th day of July, 1813, the Governor and judges passed an act creating a Probate Court in each or- ganized county, which was held by a judge appointed by the Governor. A register of wills was also appointed by

THE COURTS.

105

the same authority, who was also register of deeds until 1835.

The Probate Court had full cognizance of mortuary matters, and the Supreme Court had appellate jurisdiction over the same. The probate law was amended from time to time by the Territorial authority, and by State authority since its admission into the Union, until at the present time the administration of estates is made very simple, and almost free from costs of court, the judge receiving an annual salary and keeping his own records. Litigation, of course, entails its own expenses upon the parties. In 1837 the power to sell real estate for the payment of debts was given the Probate Court, concurrently with the Circuit and Chancery courts.

The courts which are regularly held at Kalamazoo at the present time are the Circuit Court of the Ninth Judicial Circuit, which is constituted of the counties of Kalamazoo and Van Buren. Four terms of this court are held annu- ally at Kalamazoo, in January, March, August, and October.

The officers of this court are as follows : Circuit Judge, Hon. Josiah L. Hawes ; Prosecuting Attorney, Edwin M. Irish ; Clerk, Theron F. Giddings ; Reporter, George F. Hitchcock ; Sheriff, Lyman M. Gates; Under-Sheriff, G. M. Gates ; Deputy Sheriffs, George Patterson, Sheldon Allen ; Circuit Court Commissioners, Edwin M. Clapp, Jr., Volney H. Lockwood.

The Probate Court is set for the first Monday in each month, but its sessions are varied to suit circumstances.

The present judge is George M. Buck. The judge of this court keeps his own records.

UNITED STATES DISTRICT COURT.

The State is divided into two districts, known as eastern and western, Kalamazoo belonging to the western district. The courts are held at Detroit for the eastern, and at Grand Rapids for the western district.

THE FIRST COURT HELD IN KALAMAZOO COUNTY.

The first court held in the county was in 1831. The following, taken from the court records in the county clerk's office, is conclusive evidence of the time and place :

" At a county court holden in and for the county of Kalamazoo, at the house of Abram* I. Shaver, in said county, on the third Tuesday of October, A.D. 1831.

" Present, Bazel Harrison, Stephens Hoyt,f Justices.

" Court called and opened in pursuance of law. The court was ad- journed to the school-house near John Insley's, in Brady township,} at one of the clock, P.M.

"Court opened at the school-house in pursuance of adjournment.

" The grand jury was then called, empaneled, and sworn.

"Stephen Vickery appointed foreman.

"Panel of jurors' names : Thomas M. Stanley, John McComsey, James Noyes, John Kelley, John Cowgell, Jonathan Wood, Thomas Barber, Ransford C. Hoyt, John Insley, Isaac Sumner, Hosea B. Huston, Stephen Vickery, Josiah Rosecrantz, Justin Clark, Samuel Hackett.

" Charles A. Williams called and sworn to attend the grand jury.

* This name is indiscriminately written in the record Abram and Abraham. We give the correct orthography-Abram.

t This name is written Stephens Hoyt on the court record, but we believe it was properly Stephen.

# Brady township then comprised the south half of the county.

"George Shaw vs. A. I. Shaver and Ephraim Harrison. Appeal entered on docket .¿

"On motion to strike the foregoing appeal from the docket, and on hearing arguments of counsel, it is adjudged by the court that the motion be denied, upon condition that the appellants enter into good and sufficient recognizance on the 19th day of October present.

"October 19th. Court opened in pursuance of adjournment.

" A. I. Shaver and Ephraim Harrison, appellants, adv. George Shaw, appellee.

"On motion of L. I. Daniels, one of the attorneys in the case, ordered by the court that the recognizance in this case, signed by the above named appellants and Bazel Harrison, as security, be filed as the recognizance in said cause. Which cause was then adjourned to the next term of the county court, in 1832.

At this court the grand jury presented an indictment against Isaac Tolland for perjury, and also one against Henry Whipple, which were filed. The indictment in Tolland's case was quashed, on motion of Lyman I. Daniels, on the ground that Abram I. Shaver, who administered the oath to Tolland, was not a legal justice of the peace.

The grand jury and constable were allowed by the court a compensation of seventy-five cents per day each for their services.

It is said (sotto voce) by old settlers that the occasion of the sitting of the first court was made one in which judges, attorneys, jurors, and clients all joined in a grand social and bibulous reunion, where

" Mirth and fun grew fast and furious,"

which, if true, is no special discredit to the " wise and rev- erend seigniors" of Kalamazoo County, for they only imi- tated their equals of earlier days, and anticipated many another jolly occasion since, perchance. The clerk of the court was Stephen Vickery, and by his chirography it would appear that he was a scholarly gentleman, and fa- miliar with business forms.

FIRST COURT HELD AT BRONSON (KALAMAZOO).|

The first court held at the present county-seat, then called Bronson, in honor of one of its founders, was on the 16th day of October, 1832, on which occasion there were present Bazel Harrison, chief justice, and Stephens Hoyt, associate.

The first case was the United States vs. Hannah Carpen- ter, indicted for the crime of the woman whom Jesus of Nazareth bade "go, and sin no more." Hannah not ap- pearing to answer the charge, her recognizance was ad- judged forfeited, and she was fined twenty-five dollars and costs, and execution ordered issued.

At this term, John Hascall, Esq., was admitted to prac- tice law at the bar of the County Court of Kalamazoo County.

The appeal suit of George Shaw vs. A. I. Shaver and Ephraim Harrison was tried at this term, and the defend-

¿ This case had been before William Duncan, a justice of the peace, previously, and an appeal taken to the county court. It was a case of trespass.

| This court, according to George Torry, was held at the house of Titus Bronson. Several of the early courts were held in a school building which stood on the site of the Jewish Church, on South Street. The first court-house was erected in 1837.

" It has been stated that Titus Bronson officiated as associate justice, but his name does not appear of record.

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HISTORY OF KALAMAZOO COUNTY, MICHIGAN.

ants were fined forty dollars and costs, the whole amounting to sixty-one dollars and twenty cents.

At this term, also, Titus Bronson appeared as a litigant against Chauncy C. Merwin, in which case the jury brought in a verdict of thirty dollars and costs.

CIRCUIT COURT OF MICHIGAN TERRITORY.

The first session of this court for the county of Kala- mazoo was held on Monday, Nov. 4, 1833 .* William A. Fletcher, circuit judge, presiding, with Caleb Eldred and Cyren Burdick for associates.

The grand jury was composed of the following citizens : Seth Taft, Philip Gray, John E. Howard, Edwin H. Loth- rop, Thaddeus Smith, Asa Briggs, Jr., James Noyes, John Chandler, Rezin Holmes, Elijah Fletcher, James Taylor, Erastus Smith, Franklin Howard, N. E. Mathews. Edwin H. Lothrop was appointed foreman. In the absence of Cyrus Lovell, the district attorney, Judge Fletcher ap- pointed Lyman I. Daniels in his place for the term. The petit jury was composed of the following persons : John F. Gilkey, Daniel A. Plummer, Simeon Mills, David H. Dan- iels, Samuel F. Brown, Willard Mills, Samuel Brown, Sam- uel Woodruff, Levi S. White, C. Northrup, Loyal H. Jones, Phineas Hunt, Jr.

L. More and J. Humphreys were admitted to practice law at this court. The committee appointed by the judge for examining candidates was composed of Lyman I. Dan- iels, A. McGuffy, and C. Lancaster.

In the case of Shaw vs. Shaver and Harrison, appealed from the county court, the judgment was confirmed. At this term the grand jury presented bills of indictment for assault and battery against a number of individuals, among whom were Lyman I. Daniels, Erastus A. Jackson, Guy C. Merrill, and Robert Frakes. They were bound over to ap- pear at the next term in sums varying from fifty to two hundred dollars each. On the day of trial Daniels plead guilty and paid his fine. Bob Frakes also plead guilty, and was fined ten dollars and costs. It would appear as if they had engaged in a general fisticuff all around. Nathan Har- rison, who kept the ferry at Kalamazoo, also appears in the same rôle about this time.

The record shows that Hezekiah G. Wells was admitted to practice before the Circuit Court on the 23d of May, 1834.

At the May term of 1834, Nathan Harrison was licensed to keep a ferry over the Kalamazoo River, at Kalamazoo, and the following rates of toll were established: two horses

and wagon, twenty-five cents ; each additional horse, six and one-quarter cents; one yoke of oxen and wagon or cart, twenty-five cents; each additional yoke, twelve and one- half cents; one horse and wagon, eighteen and three-quar- ter cents ; one person and horse, twelve and one-half cents ; each foot-passenger, six and one-quarter cents ; each horse, led or driven, four cents.

The first declaration of a foreign-born citizen of his in- tentions to become a citizen of the United States was filed by Richard Knight, a native of Queen's Co., Ireland, born in 1811, on the 18th of November, 1834.

At a session of this court, held at Bronson, on the 21st of November, 1834, Robert McIntosh was indicted for gaming and for selling liquor to the Indians. This same man appears to have been a subject of a foreign power, for he entered his declaration to become an American citizen on the 29th of January, 1835.

Joseph Vickery appears as associate judge in 1835. In 1837 this was the Circuit Court of the then third judicial circuit of the State of Michigan.

At a session of the Circuit Court held at Kalamazoo, in October and November, 1836, Epaphroditus Ransom ap- pears as circuit judge, and Joseph Vickery and Caleb El- dred as associates. Stephen Vickery served as clerk until 1837, when Jeremiah Humphrey appears. Among the associate justices were William Logan in 1838, and David E. Deming in 1839. Luther H. Trask was clerk in the latter year.

CAUSES CÉLÉBRES.

Probably the most interesting cause ever tried at Kala- mazoo was the celebrated Vanderpool murder case, before Judge Charles R. Brown, of the Circuit Court, which com- menced on the 19th of October and ended on the 21st of November, 1870. It was the most noted trial in the his- tory of Western Michigan, and produced an immense amount of excitement during the twenty-seven days of its continuance.

George Vanderpool was arrested and tried at Manistee, in the spring of 1870, for the murder of Herbert Field. The jury found him guilty, and he was sentenced to the penitentiary for the term of his natural life. The murder of Field occurred on the 5th of September, 1869.

Vanderpool was incarcerated in the penitentiary, but within a few months thereafter, through the efforts of his counsel, of David Ward, of Oakland County, and others, a new trial was obtained, and the case was transferred to Kalamazoo County by order of Judge Ramsdell. The transfer was made on account of the pressure of public opinion in Manistee County. The prisoner was then taken to the jail in Kalamazoo, where he remained for a period of several months, awaiting the regular term of the Circuit Court.

The case was taken up on the 19th day of October. On the part of the prosecution, the State was represented by General Mccutcheon, of Manistee, George V. N. Lothrop, of Detroit, and Attorney-General Dwight May, of Kalama- zoo. On the part of the defense appeared Hon. John Van Arman, the noted criminal lawyer of Chicago, D. Darwin Hughes, of Marshall, Mich., and. Mr. Benedict, of Manistee County.

* " This court, it is said, was held in the blacksmith-shop which, old residents well remember, stood on the corner of Portage and South or Cherry Streets, east of the residence of James Taylor, Esq. From the time that the grand jury first began to find presentments until the court-house was erected, in 1837, they were obliged to hold their sessions in some convenient place outside of and away from the seat of justice. When the old jail was inclosed, a room was fitted up for the grand jury there, and that august body, after assembling to receive instructions from the judge, would take up their line of march for the shade of some greenwood tree, or meander gracefully away through the woods to the jail, and in either place, as the case might be, deliberate and decide upon the fate of the evil-doer, and then re- turn 'with solemn steps and slow' to the presence of his Honor, and disclose the result of its labors."-[George Torry's History of Kala- mazoo, published in 1867.]

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THE COURTS.

The jury consisted of the following persons, selected from a panel of eighty-three citizens of the county : Richard A. Sykes, of Kalamazoo; William E. Freer, of Pavilion ; William Oliver and Theodore L. Andrews, of Alamo; Milton Chamberlain, Wm. M. Woodard, Alonzo W. Ingerson, and Wm. T. Finch, of Cooper ; John Darling, Leverett Crooks, John F. Chandler, and Harrison Gray, of Comstock.

The trial continued for a period of twenty-seven days, creating intense interest as it progressed to the final close on the 21st of November. Very able arguments, continu- ing through several days, were made by counsel upon both sides, and the judge's charge to the jury was lengthy and elaborate. The wife of the prisoner attended at his side through the entire trial, and her presence-dressed in black-had a marked influence upon public opinion. But after all the long-continued examination of witnesses, the exhaustive arguments of counsel, and the able charge of the court, the jury were unable to agree, standing seven to five for conviction, as follows :

For conviction : Alonzo W. Ingerson, Harrison Gray, Milton Chamberlain, William E. Freer, John Darling, William M. Woodard, John F. Chandler.

For acquittal : T. L. Andrews, William Oliver, R. A. Sykes, William T. Finch, Leverett Crooks.

For twenty-seven days the jury had been absent from their homes, and when they were dischaged by the court there was quite an affecting meeting between them and their wives, who had come into court on the last day of the trial.

This case was tried a third time at Hastings, in Barry County, and the jury rendered a verdict of acquittal.

THE NEWCOMER TRIAL.

This somewhat noted case was first tried at the term of the Circuit Court held at Kalamazoo, in March, 1878. The plaintiff, Nancy J. Newcomer, brought suit against Dr. E. H. Van Deusen, medical superintendent of the Michigan Asylum for the Insane at Kalamazoo, for alleged false imprisonment and improper treatment. She was brought to the asylum from Calhoun County, in 1874.

The trial continued for two weeks, and resulted in a ver- dict of six thousand dollars for the plaintiff.

The counsel engaged for the plaintiff consisted of J. Logan Chipman and Fraser & Gates, of Detroit, O. W. Powers and Thomas R. Sherwood, of Kalamazoo; and on the part of the defense, of Gen. Dwight May, of Kalama- zoo, H. F. Severens and D. Darwin Hughes, of Marshall.

Great interest was manifested by the community generally ; the court-room was filled to its utmost capacity, and among the audience was a goodly proportion of ladies. The ap- pearance and testimony of Mrs. Newcomer produced a powerful influence in her favor, which probably had more or less bearing upon the action of the jury.

The case was submitted to the Supreme Court, which returned it to Kalamazoo for trial, at the same time virtu- ally deciding it in favor of the defendant. But, notwith-

standing this, the second trial was insisted upon by the plaintiff.

The case was taken up on the 13th of October, before Judge Shipman, and concluded on the 21st of November. After one argument had been made to the jury, the court interrupted the proceedings with an opinion in which he stated his reasons for instructing the jury to render a ver- dict for the defendant. This opinion was to the effect that the Supreme Court had virtually decided that if Dr. Van Deusen had exercised good faith in receiving and retaining the plaintiff, then he would be absolved from all liability in the present action. There was no evidence showing bad faith, but, on the contrary, there was evidence of good faith on his part, and hence, there being no conflict of testimony, there was no question of fact for the jury to determine, and the court instructed them to render a verdict of " no cause for action" without leaving their seats.

The opinion in this trial, so far as the public was con- cerned, was quite different from that manifested at the first hearing. The feeling naturally engendered by the appear- ance of the plaintiff, and which we may say is quite uni- versal in like cases, having had time to subside, the " sober, second thought" showed the case in a different light,-to which result, no doubt, the action of the Supreme Court contributed to a considerable extent. Another important factor in the guidance of public feeling was the unblem- ished character and quiet and manly bearing of Dr. Van Deusen, who, in all his intercourse with the people, has ever commanded their highest respect.

The case, in many respects, was a most remarkable one. There were about eighty witnesses sworn, including friends of the plaintiff from Toledo, Ohio, where she was prac- ticing medicine at the time of her seizure, the medical staff and attendants of the asylum, and others. The plain- tiff claimed that she was in possession of an income of seventy-five dollars per month from her practice, and that her health was seriously imperiled by reason of her confine- ment and certain drugs administered to her at the asylum. She fixed the amount of her damages at forty thousand dollars.

The testimony in the case covered twelve thousand folios, and the total expense of the long and tedious trial reached many thousand dollars.

After the close of the trial it was learned that the jury would have stood on a ballot nine for the defense and three for the complainant.

The decision of the court created a profound sensation ; but, with the exception of the plaintiff, her counsel, and a few friends, it was very generally received with great satis- faction, and Dr. Van Deusen was made the recipient of a most hearty ovation by hundreds of his friends a few even- ings after the trial.

The charge and opinion of Judge Shipman in this case is spoken of as a model of judicial literature. Judge Hawes was on the bench in the first trial, but declined to sit at the second hearing.

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History of Kalamazoo county, Michigan, Part 28

Author: Durant, Samuel W. comp Publication date: 1880 Publisher: Philadelphia. Everts & Abbott Number of Pages: 761

Author: Durant, Samuel W. comp
Publication date: 1880
Publisher: Philadelphia. Everts & Abbott
Number of Pages: 761