USA > Ohio > Henry County > History of Henry and Fulton counties, Ohio : with illustrations and biographical sketches of some of its prominent men and pioneers > Part 15
USA > Ohio > Fulton County > History of Henry and Fulton counties, Ohio : with illustrations and biographical sketches of some of its prominent men and pioneers > Part 15
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It is certainly no disparagement to the many able jurists who aided in giv- ing to Ohio a uniform and perfect system of jurisprudence, to say that to Judge Swan is the bench and bar of Ohio most indebted for the desirable consumma- tion; and his work at once became the law of practice to bench and bar through- out the State, and remained so until the enactment of the code of civil proced- ure in 1853, after the adoption of the Constitution of 1851.
The common law as to crimes, and the mode of procedure in criminal cases, was never in force in Ohio-all this was the matter of legislative enactments. [I O. 132, 2 O. S. 387, 10 O. S. 287.]
The history of the various revisions and codifications of the statutory law and modes of procedure within Ohio is interesting, and is so concisely and ac- curately stated in the preface to the first addition of the revised statutes made by the codifying commission, appointed under the act of March 27, 1875, and published in 1880, that we copy literally :
"The first revision was made during the session of the Legislature held at Chillicothe, in 1804-5, at which all the laws, with few exceptions, adopted by the governor and judges, or enacted by the Legislature under the territorial government were repealed. That revision embraced statutes for the adminis- tration of justice, the conveyance of property, the collection of the revenue, the organization of the militia and the punishment of crime, and other statutes pre- viously adopted or enacted were amended and re-enacted.
"With these statutes for a basis other legislatures followed the example, and, accordingly, the laws were revised at the session of 1809-1810, the ses- sion of 1815-1816, the session 1823-1824 and the session of 1830-1831, each revision being an improvement on that which preceded it, the practice and other remedial statutes gradually becoming more liberal and the penal enact- ments more humane.
"In 1835 the statute relating to felonies was again revised and further pro- vision was made to simplify the practice, and in 1840, an act relating to the settlement of the estates of deceased persons, based on the statute of Massa-
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chusetts, was prepared by Joseph R. Swan and enacted by the General Assem- bly. The principal part of it has remained without change to the present day. At the same session the statutes in relation to wills, elections and other sub- jects, were revised.
"Meanwhile the statutes had become so numerous and had fallen into such confusion that a systematic republication of the laws in force had become a necessity. Fortunately the work was undertaken by one competent for the task, and it is only just to say that with the material before him, and in the ab- sence of all power to change it, perhaps no other man would have been able to- produce a collection of our statutes so admirable in all that pertains to the work of an editor, as Swan's Statutes of 1841. In 1854-5, in 1860 and in 1868, Judge Swan performed the same task of collecting and arranging the statutes in force, the notes to the edition of 1860 having been prepared by Leander J. Critchfield, and the notes to the edition of 1868 by Milton Sayler. While these editions of the statutes have now become comparatively useless, they are none the less monuments to the industry and ability of the gentlemen who were en- gaged in their preparation.
"In this connection it will not be out of place to notice a collection of the statutes of a more permanent character. In 1833-1835 (subsequently Chief Justice) Chase prepared an edition of the statutes. It included the territorial laws, whether adopted by the governor and judges, or enacted by the territo- rial legislatures and the statutes down to and including those of 1833. This embraced seven volumes of territorial laws and thirty volumes of the statutes of the State, and the whole was republished in chronological order in three vol- umes. The work was continued on substantially the same plan by Maskell E. Curwen, who republished in four volumes, the general laws from 1834 to 1860, inclusive. Since the death of Mr. Curwen, the work has been continued by J. R. Sayler, who has republished, in four volumes, the general laws from 1861 to 1875, inclusive.
"It will thus be seen that the statutes of Chase, Curwen and Sayler-all admirably edited-are a republication of all the general laws adopted or en- acted under the territorial and State governments from 1788 to 1875, inclu- sive, in the order of the original publication. While only a very small num- ber of the statutes which these volumes contain remains in force, the remarks of Judge Chase with respect to them in his first volume are entirely just. . Many questions of right and remedy,' said he, 'depend upon the provisions of repealed statutes. In reference to such questions the examination of the whole series of laws affecting them is a matter of absolute necessity. In addition to this, a knowledge of the acts repealed is often essential to a correct understand- ing of the law in force. No lawyer, nor intelligent legislator ought to be sat- isfied with knowing what the law is, unless he also knows what the law has. been."
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" Recurring to the subject of codification it is evident that it had engaged the attention of the people to some extent, previous to the adoption of the present constitution. Provision was made in that instrument for a commission ; and it was ordained that ' said commissioners shall revise, reform, simplify and abridge the practice, pleadings, forms, and proceedings of the courts of record of this State ; and as far as practicable and expedient shall provide for the abolition of the distinct forins of actions at law now in use, and for the admin- istration of justice by a uniform mode of proceeding, without reference to any distinction between law and equity.'
" In obedience to that provision an act was passed and William Kennon, William S. Groesbeck, and Daniel O. Morton were appointed commissioners. They confined their labors to the subject of practice in civil cases, and reported what was known as the code of civil procedure, to the fiftieth General Assem- bly, and that body on March II, 1853, adopted it. Though somewhat changed in language and arrangement, the principal part of it re- mains substantially as it was reported by those commissioners.
" With the growth of the State in population and wealth, the annual vol- umes of the general laws increased in size until the statutes of a general nature, in force, exceed two thousand in number. The subject of codification then began to attract attention here as in other places. In 1869 a bill prepared by Senators Charles H. Scribner, Daniel B. Linn, and Homer Everett, codifying the statutes in relation to municipal corporations, became a law, as did also a bill embodying a code of criminal procedure, which had been prepared by Sen- ator Frank H. Hurd. The subject was further agitated and finally, in 1874, Representative George W. Boyce, of Hamilton county, introduced a bill pro- viding for such codification. Subsequently, Senator Lucian C. Jones, of Trum- bull, Trumbull county, introduced a bill on the same subject, which, on March 27. 1875, became a law. [72 v. 87]. The following are its leading features :
"The governor was required, by and with the advice and consent of the Senate, to appoint three competent commissioners to revise and consolidate the general statutes of the State, and he was authorized to fill any vacancy in the commission.
" In performing the duty the commissioners were required to bring together all the statutes and parts of statutes relating to the same matter, omitting re- dundant and obsolete enactments, and such as had no influence on existing rights or remedies, and making alterations to reconcile contradictions, supply omissions, and amend imperfections in the original acts, so as to reduce the general statutes into as concise and comprehensive a form as might be con- sistent with clear expression of the will of the General Assembly, rejecting all equivocal and ambiguous words and circuitous and tautological phraseology.
"They were required to arrange the statutes under suitable titles, divisions, subdivisions, chapters, and sections, with head notes briefly expressive of the
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matter contained therein, with marginal notes of the contents of each section, with reference to the original act from which it was compiled, and foot notes of the decisions of the Supreme Court upon the same; and they were required to report the whole, in print, to the general assembly for its adoption.
" On the day of the passage of the bill Governor Allen appointed, and the Senate unanimously confirmed, Michael A. Daugherty, Luther Day, and John W. Okey as the commissioners. Commissions were issued to them on that day, and immediately thereafter they entered upon their duties. Judge Day continued to be a member of the commission until February 1, 1876, when he resigned, having been appointed a member of the Supreme Court commission, and John S. Brasee was appointed by Governor Hayes to fill the vacancy, and Judge Okey continued to be a member of the commission until November 9, 1877, when he resigned, having been elected a judge of the Supreme Court, and George B. Okey was appointed by Governor Young to fill the vacancy. No other changes were made in the commission."
The codified or revised statutes consist of four parts. The first part (Polit- cal) contains the enactments which are organic, being the frame-work and ma- chinery of our government ; the second part (Civil) relates to person and prop- erty ; the third part (Remedial) includes everything connected with civil pro- cedure in all the courts ; and the fourth part (Penal) embraces the provisions relating to crimes, criminal procedure, and jails and the penitentiary.
Constitution of 1802 .- Under the Constitution of 1802 the judicial power of the State, both as to matters of law and equity, was vested in a Supreme Court, in Court of Common Pleas for each county, in justices of the peace, and in such other courts as the Legislature might establish. "Such other courts " were never established in this section of the State.
The Supreme Court consisted of three judges-two of whom formed a quorum. It had original and appellate jurisdiction, both in law and in chan- cery, in such cases as the Legislature might direct, and which would be beyond the province of this chapter to enumerate. The Legislature was empowered to add another judge to the number after five years, and in that event the judges were authorized to divide the State into two circuits within which any two could hold court.
The Courts of Common Pleas consisted of a president and two associate judges. The State was required by law to be divided into three circuits with a president judge for each circuit, and not "more than three nor less than two" associate judges for each county. Any three of these judges constituted a quorum and composed the Court of Common Pleas, and had common law and chancery jurisdiction, and also jurisdiction of all probate and testamentary mat- ters and of guardians and minors, and of criminal cases. Clerks were appointed by the court for a term of seven years. Power was conferred on the Legisla- ture to increase the number of circuits and of the president judges after the
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expiration of five years. The Supreme Court was required to be held once a year in each county.
All judges were appointed by a joint ballot of both houses of the General Assembly, and held office for the term of seven years, " if so long they behaved well."
Justices of the peace were elected in each township and held office for three years. Their " powers and duties " were "regulated and defined by law."
The destruction of the records by the fire of 1847, renders it very difficult to give a detailed or concise history of the courts held in the county or the names and time of service of the officers.
Henry county was formed by an act of the Legislature passed 1820 [3 Chase, 2134]. By act of February 2, 1824 [3 Chase, 2137], the county was for judicial purposes attached to Williams, with the county seat at Defiance, and became a part of the second circuit. [1 Curwen, 115.] In 1834 the county was authorized to elect county officers, but it was not until 1835 that a perfect organization was had, and in that year the first court was held in Napo- leon, which had been made the county seat. The officers of that first court were: David Higgins, president judge; David J. Cory, Reuben Waite, and Pierce Evans, associate judges ; J. N. Evans, clerk; E. Husted, sheriff, and Frederick Lord, prosecuting attorney.
Judge Higgins was succeeded as president judge in 1837 by Ozias Bowen, who continued to hold the courts of the county until the Legislature on the 16th of February, 1839 [1 Curwen, 518], created the thirteenth judicial cir- cuit, which was composed of Lucas, Wood, Henry, Williams, Paulding, Put- nam, Van Wert, Allen, Hardin, and Hancock-Defiance, Auglaize, and Fulton had not then yet been created. Of this circuit Emery D. Potter was elected first president judge in the same month that the circuit was created, and con- tinued to hold the courts of the county until in the winter of 1844, when he resigned to take a seat in Congress, to which he had been elected in October preceding.
Judge Potter was succeeded by Myron H. Tilden, who continued in office about eighteen months, when he also resigned.
In February, 1845 [2 Curwen, 1086], the sixteenth circuit was formed and the thirteenth reorganized so as to be composed of the counties of Henry, Wood, Lucas, Ottawa, Sandusky, Huron, and Erie. Ebenezer B. Saddler, of Sandusky City, was elected president judge, and held court in the county until February 22, 1847 [2 Curwen, 1374], when the eighteenth circuit was created, consisting of the counties of Putnam, Van Wert, Paulding, Defiance, Williams, and Henry. To this circuit Fulton county was attached January 10, 1851 [2 Curwen, 1593]. George B. Way, of Defiance, was elected president judge at the same time the circuit was formed, and continued to hold the courts of Common Pleas until the Constitution of 1851 took effect.
19
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HISTORY OF HENRY AND FULTON COUNTIES.
The last term of the Court of Common Pleas, under the old judicial system, was begun and held in Napoleon, on the 19th day of November, 1851. The president judge was George B. Way, the associates, Amos Cole, Samuel B. Jones, and John Knapp; Hazel Strong was clerk, and Daniel Yarnel, sheriff; the prosecuting attorney was Edward Sheffield. At that term, which lasted only four days, the following preamble and resolutions were entered on the journal, vol. I, p. 342 :
" WHEREAS, By the organization of our new judicial system under the new Constitution, our worthy and esteemed president judge of this judicial cir- cuit, the Hon. George B. Way, leaves the bench, we feel it not only a high privilege but a duty to express our opinion and appreciation of his distinguished judicial career ; therefore, as embodying our feelings, we adopt the following resolutions :
" Resolved, That we look with regret upon the retiracy from the bench of the Hon. George B. Way, for, while occupying that high position, the clear- ness of his judgments, his high legal abilities, the variety of his attainments, the amenity of his manners, has shed a lustre upon his high station, and made the practice of our profession before him not only a pleasure but a sort of im- provement ; that it delights us to approve his official conduct and to pay spon- taneously this tribute to his judicial worth.
" Resolved, That, if in our practice before him, we may have said or done anything that has pained or temporarily wounded his sensibilities, we ask that it may be forgotten and forgiven.
" Resolved, That a copy of these resolutions be signed by the members of the bar present and presented to the Hon. George B. Way, and entered upon the minutes of the court, and a copy furnished to each of the Defiance papers for publication."
This paper was signed by H. F. Wait, William Sheffield, William H. Hall, H. S. Comminger, J. C. Spink, James O. Caldwell, James G. Haly, E. Shef- field, and William H. Moe.
Of these early president judges there are still living Emory D. Potter, of the city of Toledo, and Ebenezer B. Saddler, of Sandusky City. Myron H. Til- den, after his resignation, became president of the Cincinnati law school. Ozias Bowen was afterwards elected one of the supreme judges of the State, retiring in February, 1858. .
The Early Bar .- It was a good many years before the bar had a "local habitation" in Henry county. At the time of its organization Frederick Lord, who has already been mentioned as prosecuting attorney, and William B. Berry, who succeeded Lord as prosecutor, were the only attorneys living in the county. In 1840 James G. Haly was admitted to the bar, and became the third prosecuting attorney. He in turn was succeeded by James McKenzie, who, after serving one year, resigned and took editorial charge of the Venture,
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a Democratic paper started at Kalida, then the county scat of Putnam county. Mr. Mckenzie afterwards became one of the judges of the third judicial district under the new constitution. Mr. Haly was appointed and filled the unexpired term. Mr. Haly was succeeded by Edward Sheffield, and he in turn by Justin H. Tyler. Edward Sheffield, with his brother, William, settled in Napoleon about the year 1841, both being members of the bar. Ebenezer Lathrop, dur- ing the years 1841 and 1842, was a practicing attorney resident in the county. These persons constituted the resident attorneys under the old constitution. Much, however, of the little legal business then in the county was conducted by the
Circuit Riders .- There was a class of lawyers, eminent at least locally, who rode from county to county, mostly on horse-back, through the entire circuit along with the president judge. Among the most prominent of these practi- tioners may be mentioned all of those who had been president judges. An- drew (better known as Count), Coffinberry, John C. Spink.
The Constitution of 1851-The judicial system of the State of Ohio was considerably changed by the constitution of 1851, and is defined by the IV. Art. of that instrument.
The courts were then made to consist of a Supreme Court, District Courts, Courts of Common Pleas, Courts of Probate, Justices of the Peace and such other courts, inferior to the Supreme Court, in one or more counties, as the General Assembly might from time to time establish.
The Supreme Court is composed of five judges, a majority of whom consti- tute a quorum, and has an original jurisdiction in quo warranto, mandamus, habeas corpus and procedendo, with such appellate jurisdiction as may be pro- vided by law.
The District Courts were composed of the judges of the Courts of Common Pleas of the respective districts and one of the judges of the Supreme Court, any three of whom constituted a quorum, and it was seldom, after the lapse of a few years that a supreme judge was present, as it was held [19 O. S., 587] that the presence of a supreme judge was not necessary to give validity to the court. This court was required to be held at least once a year in each county, and had like original jurisdiction with the Supreme Court and such ap- pellate jurisdiction as was conferred by law.
The jurisdiction of the Courts of Common Pleas, and of the judges thereof, is also to be fixed by law.
A Probate Court, which is made a Court of Record, is established in each county, and given "jurisdiction in probate and testamentary matters, the ap- pointment of administrators and guardians, the settlement of the accounts of executors, administrators and guardians, and such jurisdiction in habeas corpus, the issuing of marriage licenses, and for the sale of land by executors, admin- istrators and guardians, and such other jurisdiction, in any county or counties" as may be provided by law.
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HISTORY OF HENRY AND FULTON COUNTIES.
All judges are elected by the electors, the supreme judge in the State at large ; common pleas judges in the several sub-divisions of the districts, and probate judges in the county. The term of offices of the probate judges is three years, of all other judges five years. The first election was in October, 1851, and the term of office commenced on the first Monday of February, 1852.
Justices of the peace were, as under the old constitution, elected in the several townships.
The State was divided into nine common pleas districts, with power in the Legislature to sub-divide the district. Henry county was placed in the third district, and by act of the Legislature, February 18, 1852, in the second sub- division thereof. [3 Curwen, 1710].
John M. Palmer was the first judge of this sub-division, being elected in October, 1851, and assuming office in the following February. His first term of court in Henry county was commenced on the 24th day of May, 1852.
In October, 1856, Alexander Sankey Latty, then of Paulding county, was elected judge of the sub- division. He was four times elected and served for twenty years, retiring in February, 1877. During most of his first term his sub-division consisted of the eight counties already mentioned, and necessitated twenty-four terms of the Common Pleas, with the district courts in addition. May 1, 1862 [1 Sayler, 328], the rapidly increasing business induced the Leg- islature to so remodel the districts and sub-divisions as to make the third sub- division of the third district consist of the counties of Paulding, Defiance, Will- iams, Fulton, Henry and Wood. It so remained until February 21, 1868 [2 Sayler, 1453], when Wood was transferred to the fourth sub-division.
In 1876, Selwyn N. Owen, of Williams county, was elected judge, and held the courts of Henry county until June 7, 1879 [R. S., Sec. 8020], when this district was so changed as to make Paulding, Defiance and Williams constitute the second sub-division, to which Judge Owen was then assigned ; Fulton, Henry and Putnam composed the third sub-division. John J. Moore, of Put- nam county, who had been elected in the second sub-division, of which Put- nam was then a part, became the judge for Henry county. Judge Moore was re-elected in 1883, but resigned in February, 1885, to take his place on the circuit bench, to which he had been elected the fall before.
After the resignation of Judge Moore, William H. Handy, of Fulton county, was appointed by Governor Hoadly. He was elected the fall following, and is now the judge of the sub-division, which still consists of the three last named counties.
Circuit Court .- On the 30th of March, 1883 [O. L. vol. 80, 383], the Leg- islature submitted to the electors of the State an amendment to the constitu- tion. This amendment was ratified at the October election of that year and became, and now is, a part of our fundamental law. By this amendment the judical system was so changed as to abolish the District Court and substitute
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the Circuit Court. The material change consists in the latter court being com- posed of three independent judges elected in the circuit, instead of the interme- diate court between the Common Pleas and the Supreme being held by the judges who held the Common Pleas. The State was divided into seven circuits and Henry county placed in the third, of which Thomas Beer, of Crawford county, John J. Moore, of Putnam county, and Henry W. Seney, of Hardin county, are the judges.
The Probate Court .- Harvey Allen was the first probate judge for the county. He was elected in 1851 and took charge of the office in February, 1852. He served two terms and died shortly after his term of office expired. He was succeeded by Thomas S. C. Morrison, elected in 1857, re-elected in 1860, again in 1863. Mr. Morrison was editor of the Northwest, had been admitted to the bar but never practiced law. He died in March, 1864, when William M. Beckman was by the governor appointed to the vacancy. In the following fall John M. Haag was elected, and re-elected in 1866. He was suc- ceeded by James G. Haly in 1869. Mr. Haly served for four terms, and was in 1881 followed by David Meekison, who is at present on his second term, which will expire in February, 1888.
Prosecuting Attorneys .- We have already given the names of the prose- cuting attorneys under the old constitution and will, in like manner in succes- sion, give those who have served since :
Edward Sheffield, William A. Choate, James A. Parker, James L. Robert- son, David Meekison, Martin Knupp, Richard W. Cahill.
Attorneys .- Among the attorneys who have been members of the Henry county bar since 1851, and not now in practice, here may be mentioned William H. Moe, John M. McFadden, Benjamin E. Sheldon, Joseph R. Swigart, John- son N. High, Wm. H. Hubbard, F. M. Rummell, A. L. Lessick, and C. E. Selfridge, removed ; Sanford R. McBane, Hiram H. l'oe, James L. Robertson, James A. Parker, William and Edward Sheffield, A. R. Scheble, and Romaine Tyler, deceased ; Andrew Crawford, who was a captain in the 14th O. V. I., three months service, was shot by mistake by one of his own men in West Vir- ginia ; William A. Choate, the colonel of the 38th O. V. I., was killed at the battle of Jonesboro. James G. Haly and Asa H. Tyler, who still reside here, have retired from practice.
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