USA > Missouri > The history of the bench and bar of Missouri : With reminiscences of the prominent lawyers of the past, and a record of the law's leaders of the present > Part 10
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Lebbens A. Pindall. A young Virginian who studied law with Judge Brockenbrough, a noted Judge and jurist of that State, was Lebbens A. Pindall. He was a young man of a good mind, bright and genial in his nature. He came to Paris in 1854, entered into co-partnership with James Carr, and his prospects for success at the bar were right good. He was gaining ground in his profession, but his veins being filled with Southern blood, he entered the Confederate service at the beginning and remained in it until the close of the war. He then located in Arkansas, where he and his brother, X. Pindall, did, for many years, a large and lucrative practice. He represented his county, Desha, two terms in the Arkansas Legislature. Mr. Pindall was a high-toned, honorable man, warm-hearted, a good lawyer. He had a bright future before him, but died some ten years ago, leaving an honorable record and a good property for his family. I knew him well and esteemed him highly, notwithstanding we sometimes had lawyers' "spats" in the courts.
ANECDOTES AND INCIDENTS.
Judge Redd was a great reader of dime novels. He seemed to read them for the intox-
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THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
ication they gave. Sometimes he would be so absorbed that he would forget to open Court on time. One day at Paris an hour past time for calling the docket, and no Judge appear- ing, Col. Anderson came in and remarked: "Take it easy, gentlemen, the Judge has ' Texas Joe.' " At one time the Judge became vexed at members of the bar twitting him about his (novel reading) habit and lie retorted: "Gentlemen, I have learned more law from dime novels than some so-called lawyers have from Blackstone." The Judge was usually tardy, but one time he was in a hurry to get through at Shelbyville and he opened Court and commenced calling the docket at 6.30 a. in. The word was hastily sent out and the members of the bar came rushing in rubbing their eyes.
Mr. Giles used to tell about going to try a case in a Justice Court, and the Justice did not have the statutes. Mr. Giles asked by what law he proposed to try the case. The Justice, with ready Irish wit, replied, "By the law of Moses." To another Justice of the Peace he was reading the law, which to the mind of the magistrate appeared contrary to right, and which caused him to exclaim with great emphasis: "Damn the law! I'm for justice ! "
Charles Clay, a distant relative of the great Henry of national fame, was far more than "six Roman lustrums," a Justice of the Peace in Monroe County, and was a good, kind man. After the writer had read the law to him once, he looked up and said: "You want me to take that law, do you? " The reply was, "Yes, you are governed by the law, are you not, Squire? " "Sometimes I am, and sometimes I ain't," was his reply.
On another occasion a lawyer was trying to rule the plaintiff to security for costs, when Squire Clay said to the plaintiff, "Have you a just cause? " "Yes," replied the plaintiff. "Have you your witnesses to prove it? " "Yes." "Well, then it shall never be said that in Squire Clay's Court a man was denied justice when he had an honest case and the witnesses to prove it, because he could not give security for costs." He entered this at length in his docket. This reminds the writer of the entry of a Texas Justice of the Peace. His docket read: "Comes now the plaintiff and asks for judgment on his account. Comes also the defendant riding on horseback, and for answer says to the Court, 'Go to hell you d-ds-n of a b-h;' wherefore it is considered and adjudged that plaintiff have and recover his account, amounting to $3.60, and that the defendant take back so much of his answer as refers to this Court, and that execution issue therefor."
One A. C. Mallory was a pettifogger and a Justice of the Peace in Clarence, Shelby County, for some years. He and Senator C. S. Brown, who was a fair lawyer and a nice man, were trying a case in a Justice Court, and the Senator read a decision of our Supreme Court, which clearly sustained his side of the case. He then threw the book down with an air of victory. Mallory picked the book up and said: "Gentlemen, that is all right, what Senator Brown read, but the most important part he did not read, and that part which was omitted gives the case to ine. What the Senator read was only the opinion of Judge Sher- wood, and there are four other judges. The decision says these four conquer " (he so pro- nounced the word concur). "The four conquered, and hence they are on my side."
When Mr. Giles was Prosecuting Attorney, Mallory had a young man arrested for seduction under promise of marriage. Mr. Giles found that the seduction occurred in Mon- roe County, though the parties thien lived in Shelby, and he suggested this to Mallory. The latter replied: "But it has continued over into this county." He evidently thoughit it would be like stolen property; the offense could be laid in any county into which it was carried. This same Mallory lived mainly in Monroe County and was a J. P. there.
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THE EARLY BAR OF NORTHEAST MISSOURI.
He only strayed over into Shelby a while and then returned to his first love. He ran against the Hon. Robert N. Bodine (now Congressman in the Second District) for Prose- cuting Attorney and had the boys laughing and yelling at "Robert," as Mallory called him, so that gentleman was considerably worried. He called "Robert" his "component" instead of his "opponent." He filed a petition for a divorce in which he said "the defend- ant 'intolerated ' plaintiff's condition," and Judge Theodore Brace sustained a demurrer to his petition on account of this word. In trying a case with Mr. Bodine, that gentleman read some decisions of the Supreme Court. Mallory replied: "Now here, gentlemen, Mr. Bodine has brought decisions from the Supreme Court. Why he well knows that those decisions were only intended for the Circuit Court, and were never intended to be used or followed in a Justice Court." He won.
As a specimen of a verdict, take the one rendered by an intelligent Monroe County jury before a J. P. given below. The facts brought out in evidence showed that Har- rison rented of Saunders a farm for which he agreed to pay $75, but in the fall Harrison died, and there being less property than the law allows the widow, it was all turned over to her, and she made a sale. Saunders said to her: "I have a lien on the crop for iny rent. Now, if I buy at your sale, can it go on the rent?" She answered affirmatively, and he bought $100 worth, some hogs being run $6 above real value. Saunders paid her $25. She said she was not able to pay all the rent, and it was agreed that $50 should go on the rent, and that Saunders should pay her $25 more, but as he did not do it immediately, she sued him for all of the $75. After two hours' deliberation the jury returned this verdict: "We, the jury, annul all contracts, and remit the landlord to his lien on the crop for his rent. We find that Saunders paid $6 too much for hogs, and that Saunders pay the costs .- JOHN LASLEY, Foreman."
Shelbina, Mo., January, 1898.
RIDING THE CIRCUITS IN SOUTHWEST MISSOURI.
BY CHARLES B. MCAFEE.
Before the war, Southwest Missouri had a number of able lawyers, among whom were John S. Phelps, John S. Waddill, Robert Crawford, John C. Price, William C. Price, Nathan Bray, Littlebury Hendricks, John R. Chenault, R. W. Fyan, James L. Rush, S. H. (Pony) Boyd, D. C. Dade, James F. Hardin, Mordicea Oliver, Burr Emerson, Sher- wood & Young, W. F. Geiger, J. H. Show and many others less known perhaps, but not attorneys of inferior ability. Some few of these died during the war; the others survived and were shining lights in the profession for years. Williamn C. Price, D. C. Dade, Mor- dicea Oliver and Judge Sherwood are still living; the others are all dead.
They were all old time lawyers. They "rode the circuits," had few books then, and took none with them. Legal arguments were worth listening to in those days. He who could make the better logical arguinent without the "precedents" to refer to, was regarded the better lawyer.
In Southwest Missouri, in the years after the war, a lawyer's practice was largely away from home, and often embraced several judicial circuits. The circumstances of those days generally involved an absence from home of from two to eight weeks and the attorney was in court almost every day that he was not on the road. This was before railroads penetrated this country and brought new lawyers into the various counties, supplied them with good legal talent and thereby broke up the "good old circuit practice." We have had less off- hand, sledge-hammer logic ever since. The lawyers use books now, and cite Hough, Nor- ton, Sherwood, Black, Brace, Gantt, Burgess and others, but I have heard some of these same jurists out on the circuit deliver better legal arguments, without books, than I have ever read in the "Reports."
A young attorney starting out on the circuit soon learned whether he could make a lawyer of himself or not, and soon succeeded, or quit and bought a farmi, or ran for Justice of the Peace. Circuit practice is gone now, and study of the "horn books " is supplanted by laborious attempts to fathom the "Reports." The railroads bred other calamities be- sides driving the game out of the country. The best law schools closed when circuit prac- tice ceased. The "sovereigns" don't come to court any more to "hear the lawyers plead."
When the war ended there were few lawyers in Southwest Missouri except in Spring- field; few counties had any, but Greene had plenty to spare. They resided in Spring- field and rode the circuit, mostly on horseback, over thirty or forty counties, but from 1866 to 1870 the country filled up rapidly, many young attorneys, fresh from college, located in every county. Bright young fellows they were, and others who were experienced attorneys, also came in droves.
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RIDING THE CIRCUITS IN SOUTHWEST MISSOURI.
This influx gave us a score or so of men who have developed into leaders in their pro- fession. Judge Baker and John P. Ellis anchored in Greene, as did John O'Day, Ben U. Massey, James R. Vaughn, O. H. Travis, J. C. Cravens, R. L. Goode and W. L. Geiger and many others, who although I am not permitted by lack of space to name them, are here now with their shingles out and are the peers of any named. There are likewise a number of excellent young lawyers, born and bred in Southwest Missouri, now perinan ently located in Springfield, but the good lawyers did not all originate or settle in Spring- field, although we claim to be a veritable hot bed in which good lawyers and great men are propagated and developed.
There is W. H. Phelps, who pitched his tent in Jasper. So did Brown, McGregor and other distinguished gentlemen. Morgan stopped in Barton, Stratton in Cedar, Benton and Hubbert in Newton, DeArmond and Graves in Bates, Reclio and Upton in Polk, Gibbs and Brumback and Joe Estis in Lawrence.
Very few of these young attorneys who caine here after the war, or who have entered the profession since the 'seventies, ever "rode the circuit," yet they have almost supplanted that "jolly old set" who now mourn over the joys of other days, sit about the courts and "listen " to these young fellows "plead " and wonder how they ever learned to be such good lawyers without "riding the circuits." But I suppose study, industry and hunger will accomplish wonders.
In those long past days when all lawyers rode the circuit, examinations for admission to the bar were not the dry affairs they are now. Lawyers were in demand and we "created" them. A knowledge of Blackstone, Greenleaf and Chitty helped a candidate along mate- rially, but committees (who practically admitted candidates then) were not very particular -if the courts could stand it the committee could. If the applicant had read the statute, and Kenney's "Questions and Answers" and presented good "credentials," he was ad- mitted to the bar and we all went along.
During an idle afternoon out on the circuit, an old Justice of the Peace lawyer applied for license. There was no local attorney in the county, therefore litigation was rather slack. The Court appointed the usual committee to take charge of the victim. We assembled in the applicant's room, where "Pony " Boyd was at once appointed Master of Ceremonies, Grand Inquisitor and Chairman of the committee. After the usual preliminaries, lasting some two hours, "Pony " called us from refreshment to labor on Blackstone's first volume, and the "inquiry " proceeded along about the following lines :
Question : What books have you read?
Answer. Law books.
Q. Then, sir, what is law?
A. (Confidentially ) Now, "Pony," I did not expect to be inade fun of. If I did not know what law is, would I be wanting a license?
The committee ruled that "Pony," the Grand Inquisitor, should answer the applicant's question, but he stood mute and repeated the question in this form:
Q. If you know, or have information sufficient to warrant a belief, as to what law is, impart that knowledge, or belief, or both, to this committee.
A. (Indignantly) "Pony," you ought to know that any one can answer such easy questions as that. If you are going to examine me, stop this trifling and ask me some- thing hard.
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THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
The committee reported favorably, he was admitted and "rode the circuit " for many years.
Early in 1865 Missouri Confederates started their homeward march. Nearly all who survived the cruel conflict returned in 1865-6, but owing to the disqualifying provisions of the Constitution of 1865 (which prohibited Rebels and their sympathizers from practicing law), very few lawyers returned. Many able lawyers entered the Southern army from this section, but they found other States where they could resume the practice of their profes- sion, after they laid down their arms. The people of these other States did not seem to be so much afraid of disarmed Confederates as our own loyal stay-at-home Drakeites. These disqualifying provisions of the Constitution created a great opportunity for many men in every vocation, as many of the best ante-bellum lawyers, being thus kept out of the State, inade a ricli harvest for us "loyal fellows " who could "Take the Oath," and created a place for those young attorneys who flocked into the State from all directions to supply the demand, and the greatest demand was in Southwest Missouri. Almost every man who went South (to enter the Confederate ariny or remain out of it), was sued by someone while gone or soon after he returned, provided he left property here or brought any back with him when he returned. Big damage suits were brought by the hundred in every county through which Shelby, Marmaduke or Price marched. Shelby, Marmaduke and Price were eaclı sued in many counties, and all of their soldiers, suspicioned of having any property, were joined as parties defendant. The soldiers of Shelby's entire brigade, so far as their names could be learned, were indicted for every crime named in the statutes, except for practicing law, teaching school and praying in public. The Sheriffs made hasty visits to every indicted "Reb," and he was placed under bond. They would all have been committed to jail, but fortunately (for them, at least) the jails had all been burned -that was the offense for which many of them were indicted. The courts could not afford to be very particular about bonds in those days; the Sheriff would have had to run a boarding house unless the Court was his friend. Whenever bail was refused or a bail-bond disap- proved, it was regarded as a huge joke on the Sheriff.
A majority, perhaps, of those Confederates who returned to their homes when the war was over were indicted for murder, arson, robbery, larceny or conspiracy, and quite a number were indicted during the war for treason against the State. They were almost all admitted to bail, for the reason before stated, and nearly all gave bond, and the greater portion who could not get bondsmen were practically paroled by the Sheriff. I never knew a single one of them to violate his parole. Phelps & McAfee defended very many of them and went bail for all of their clients. I was not worth much, financially, but I was "loyal" and was accepted as bail until I was obligated for about $100,000, and Phelps for very much more, until finally (when jails were improvised), the prosecutors began to make us qualify, which disclosed the fact that we were on bonds of indicted Rebels in aggregate sums of fifty times more than we were worth, and were consequently rejected and had to skirmish about among our personal friends for bail for these persecuted clients of ours. None of them were worth mnuch and the most of them were almost penniless, yet not one of them for whom we were bail, ever forfeited his bond. Furthermore, I have no recollec- tion of a single one of this vast indicted army that failed to answer "roll-call " in tlie Criminal Courts, and I am almost sure that none of them ever forfeited their bonds.
No one who went South, whether in the Southern Ariny or not, was competent (under the constructions then given the Constitution and laws) to sit upon a jury; nor were any of
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RIDING THE CIRCUITS IN SOUTHWEST MISSOURI.
their kin by birth or marriage competent jurors. No sympathizers were permitted to do jury duty. To practice law under such conditions taxed the ingenuity of the best "circuit riders." Under the ex parte condition of things it would not do to go to trial where we had a Rebel or sympathizer for a client.
The attorney who could write a third or fourth application for a continuance and inake it go, was confessedly the best lawyer. Strategy was worth much more than "book larn- ing" in those days, and diplomacy was at a premiumn. My lamented old friend, Judge Waddill, was admitted to be the best lawyer on continuances in all Southwestern Missouri. (He was not surpassed, however, by any in other branches of the law). He was hardly ever "driven to trial" until he wanted to try. The other side often hunted up and brought to court the Judge's own witnesses, but he was always equal to the occasion-he never went to trial. The Judge got into such a habit of securing continuances during these perilous years that he could not quit it after the necessity for it had passed. I once knew of him filing an application for a continuance just after he had reported the death of his client. He knew better, of course, but he was such a slave to the habit that having his blank application already filled out, he filed it out of abundant caution. He is gone now, but if he does not worry a continuance out of St. Peter on the "Great Day," none of the rest of us need try. Grand old man! He died "on the circuit" with his harness on. I have always regretted that he did not spare time from his busy life to write a work on "Continuances." However, we were all pretty good on continuances-we had to be.
At an early day in one of the counties out west of Springfield a Deputy Circuit Clerk made application for admission to the bar. He had absorbed more law perhaps by listening to the lawyers and observing their "strategy," and filing their pleadings, than he had acquired by reading Blackstone. However, he wanted a license, and His Honor turned him over to the tender mercies of the usual committee, who put him through the usual catechism on "Old Pike's" table of liquid measure, and there being no objections by any of the committee, as to his attainments on that branch of practice, we proceeded further as follows:
Q. What is the first pleading on part of the plaintiff?
A. A petition sometimes called a complaint or declaration.
Q. What is the first pleading on the part of the defendant?
A. An application for a continuance.
He was admitted without a dissenting vote.
When we had exhausted our rights on continuances, we applied for a change of venue on account of the prejudice of the inhabitants of the county. This gave us another stay for perhaps six months (we had only two terms a year then). We could often pick a flaw in the transcript, which we hailed as an interposition of Providence. The pleading then was for a rule on the Clerk for a perfect transcript, and we got another six months. We were now in another county, but before the same Judge, but we often worked him for another continuance. (Judge Waddill always did). If we failed to get one or two contin- uances and had to come to "taw" (as we called it when seriously threatened with a trial), we obtained a change of venue on account of the prejudice of the Judge. By this time if the Judge was not badly prejudiced, it was not our fault, so the affidavit was strictly trine, besides His Honor felt relieved to get a case off his docket even in that way. The office of Judge was no "bed of roses" in those days. Another change of venue was granted, and off it went as far as we could send it, yet some of the plaintiffs hung on and followed their
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THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
. cases; many others quit in disgust. The law was not so strict then about changes of venue and continuances as it now is. If it had been, the most of the ex-Rebels' property would have changed owners. In some cases the party on one side or the other died, and if we did not score another year's delay, we were not in luck.
It may be thought that these cases were by this time ready for disposition, and that somne facts about the way we tried them may be interesting. Waddill never tried any of lıis. A few were tried and the plaintiffs always won. The defendant's attorney sat by during the trial making objections and saving exceptions, giving the plaintiff rope, and making it pleasant for His Honor. Luckily on appeal, the few that were tried were gen- erally reversed and remanded. That was usually the last of them. It was much harder for an ex-Rebel to get a verdict then before a jury than it is now for a railroad company to get a verdict in the lower courts. It would have been an act of hari kari to have gone to trial in any of these war damage suits. Why, it was seldom, if ever, that some one of the petty jury empaneled to try a case did not have a similar case of his own pending against some other Rebel. This condition of affairs continued until 1870-71, when the Republican party got up a split over the policy of such laws. The result is a matter of history-dis- franchisement ceased. Every one thereafter was a competent juryman, and about ninety per cent of these long-continued suits were dismissed and the most of the others defeated. Nollies against Shelby and his command were entered or the indictments thrown in the waste basket.
I make these slight references to politics only because the practice in Southwest Mis- souri was vitally affected by the then existing laws, but I want to say, that the Republican members of the bar here were generally opposed to these laws, as was a majority per- haps, of the party in this portion of the State, as the election thereafter in 1870 amply proved. In fact the inovement to do away with all such obnoxious laws, originated with Republicans in Southwest Missouri and in Greene and Webster Counties. Nearly all of the lawyers who practiced in those eventful years are gone, but their places are well filled with those who had just commenced to divide business with the " Old Set," and who practically put an end to the old circuit practice, and there are hosts of bright young lawyers showing up all over Southwest Missouri ready to take the place of those who supplanted and suc- ceeded the " Old Guard." I regard it as only a deserved compliment when I write it down liere that the bar of Southwest Missouri is surpassed by the lawyers of no other section of the State. As a body they are well versed in laws, courteous, honorable and an honor to the profession, but I now think that some of them would have succeeded admirably in the days of " continuances and changes of venue " (I am on the bench now). They worry mnie no little.
The "circuit habit" became so fixed in the old days, that J. H. Show, of Greene, and Joe Estis, of Lawrence-two invincibles before Justices of the Peace, organized a Justice of the Peace circuit, embracing Greene, Lawrence and portions of adjoining counties. The Justices had regular law days then, and Show and Estis arranged to practice before them something after the plan of circuit riding in Southwest Missouri. They were rivals; always on different sides, they had 110 books and did not know enough law to embarrass them. They met in the western portion of Greene before Squire Blank (the Squire is still living, but Show and Estis are dead), on a case of unlawful detainer, in which the case seemed to depend more upon law than fact. Neither liad any law book or Reports. Show and Joe argued after the old circuit practice fashion for a whole day, and sorely perplexed the
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RIDING THE CIRCUITS IN SOUTHWEST MISSOURI.
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