USA > Ohio > Preble County > History of Preble County Ohio: Her People, Industries and Institutions > Part 17
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On April 20, 1809, John Kirby was granted a license to keep a tavern in Eaton. The first letters of administration were granted on November I, 1809, to William Denniston and Sarah Denniston, on the estate of James Denniston, deceased, and they gave bond in the sum of four thousand dol- lars.
On November 24, 1810, the first will, that of John Shoeman, was pro- bated and proven by three witnesses. Katherine Shoeman and Henry Eiken- berry were named as executors and gave bond in the sum of two hundred dollars.
On July 20, 1812, Peter Bowers was tried for stealing "one-half crown" of George Worthington, and was acquitted. This shows that the memory of English coins still lingered.
On July 6, 1814, the last will of Samuel Hawkins, deceased, was pro- bated and recorded. This is given because the deceased was so prominent in the organization of the county.
On October 15, 1814, the court abstracted the vote of the county and found that Thomas Worthington had for governor in the county one hun- dred and fifty-eight votes, and Othniel Looker for the same office had one hundred and ninety-four votes.
APPOINTING ADMINISTRATORS.
On May 6, 1815, Cornelius Van Ausdall was appointed administrator of the estate of Phoebe Van Ausdall, and from this date the court records show frequent appointments of administrators. The first insolvency case was that of William Miller, on February 9, 1819, who was adjudged in- solvent on his petition. July, 1819, David Shankland was appointed as guardian of Edward McGuire, being the first guardian appointed in the county.
It seems that there was not in those days such great objection to a man holding two offices, as there is now, for on April 20, 1809, the other two associate judges, in the absence of Judge Nisbet, elected him county. surveyor, and certified him as such to the governor, and he served as county
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surveyor and associate judge, and in the road records of the county his name will be found as the surveyor of roads laid out for many years later.
The roster of the associate judges:
1808-James I. Nisbet, John Meroney, John C. Irvin.
1813-Abner Dooley, Alexander Mitchell, James I. Nisbet.
1816-Jacob Romaine, Abner Dooley, James I. Nisbet.
1819-Peter Van Ausdel, Jacob Romaine, James I. Nisbet. 1822-Walter Buel, Henry Montfort, Peter Van Ausdel. 1829-Samuel Tizzard, James McClurg, Peter Van Ausdel. 1830-John Denney, James McClurg, Peter Van Ausdel. 1832-Henry Montfort, John Denney, Peter Van Ausdel. 1833-John Acton, John Denney, Henry Montfort. 1834-George Taylor, John Acton, Henry Montfort.
1835-Robert Martin, John Acton, Henry Montfort. 1838-William Curry, Robert Martin, John Acton. 1840-Peter Shidler, Robert Martin, William Curry. 1844-Samuel Robertson, Robert Martin, Peter Shidler.
1845-William Hall, Robert Martin, Peter Shidler. 1846-Peter Shidler, William Hall, James Gardner. 1849-James Gardner, William Hall, Benjamin Neal.
In 1851, Benjamin Neal resigned, or refused to serve longer, and on May 21, 1851, Jacob Chambers was appointed and the court as thus or- ganized continued to February 9, 1852, when first the probate judge began service.
On September 1, 1851, the new constitution, adopted by the vote of Ohio electors on the third Tuesday of June, 1851, became effective, and by the Legislature a law was enacted calling for the election of a probate judge for each county, whose court should be open the whole year. 50 Ohio Laws, page 311. Under that system we have ever since operated, the pro- bate judge being elected for three-year terms, and if more time is indicated, they were re-elected for a second term.
The probate judges of the county :
John V. Campbell, 1852-8. George W. Gans, 1858-1864. George W. Thompson, 1864-1870. John W. King, 1870-1876. Andrew L. Harris, 1876-1882. Robert W. Quinn, 1882-1888. William A. Neal, 1888-1894.
John A. Moore, 1894-1900. C. C. Foos, 1900-1906. Vergil V. Brumbaugh. 1906-1909. Then term changed to four years.
Arthur D. Davis, 1909, present in- cumbent.
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THE "PEOPLE'S COURT."
The probate court and its actions and procedure are given so fully, because it is the court that comes more completely in touch with all the peo- ple of the county than any other in relation to estates, wills, guardians, trustees, assignees, and orphans, so that it is often said that it is the people's court. The law makes it the court's duty to carefully examine the pro- ceedings and charges of all executors, administrators, guardians and trus- tees, and see that those who deal with and charge fees against estates and trustees shall deal fairly and honestly with those whose interests are in the power and keeping of those holding the estates, and it must be said to the honor of our higher courts, that it must plainly appear that the probate court has exceeded its power, or abused its discretion, before they reverse the decision of the probate court.
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CHAPTER XI.
COURTS AND BAR.
THE COMMON PLEAS COURT.
In the year 1813 an amendment to the constitution was adopted requir- ing that there should be at least one judge of the court of common pleas elected in each county. Before that the state was divided into judicial dis- tricts and sub-districts. Sometimes a sub-district contained many counties, and, of course, the larger and more populous counties then, as now, in the conventions generally voted the nomination and controlled the choice. In the early days of the state the judge traveled around his district from county to county, generally on horseback, and held court two or three terms a year in each county. Until about 1840 attorneys from neighboring counties often accompanied the judge and were employed in cases to be heard. This was called "traveling the circuit," and many able lawyers thus following the court came to this county and were heard in our court house who later ac- quired national fame. I have heard mentioned George B. Holt, Peter Odlin, Henry Stoddard, John McLean, Charles Hammond, Joseph H. Benham and Thomas Corwin and a number of others who can not be now remembered. The above list wll show that legal ability and oratory were not lacking in those early days, and the juries must often have been treated to brilliant displays of forensic ability and skillful and scientific legal fencing.
The first session of the common pleas court was held in Eaton at the house of Samuel Hawkins, August 23, 1808, by Judge Francis Dunlavy, of Lebanon, assisted by the three associate judges, who were all present; of course, the law requiring at least two of them to attend. Alexander C. Lanier was clerk, and Samuel Mitchell, the coroner, acted as sheriff, because of the contest begun by James Deniston against Jacob Fudge for the office of sheriff, and Mr. Fudge could not act until the court heard and decided the case.
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PROTECTION VERSUS FREE TRADE.
The grand jury was sworn and placed in charge of John Spacht, con- stable, as the bailiff, and John Halderman was made foreman. The court appointed Joshua Collett, an attorney of Lebanon, who was traveling the cir- cuit, as prosecuting attorney, because there were no attorneys in the county. The grand jury returned two indictments for retailing goods, wares and merchandise that were not the growth or manufacture of the United States, without first obtaining a license. One indictment was against Mary Wal- lein, of Somers township, and she pleaded guilty and was fined six and a quarter cents and costs, which she paid and was discharged. Another was against Philip Gunckle, of Montgomery county, but he produced the receipt of the county treasurer that he had paid four dollars and twenty-five cents, the regular license fee for the county, and he was discharged.
Several licenses to sell foreign goods were issued, and three licenses were issued to sell spirituous liquors. The sale of liquors by the drink at that time was almost wholly done by taverns, as all hotels were then called.
The contest against Jacob Fudge was called the first day and the plain- tiff came not. It was continued to the second day and the plaintiff was again solemnly called, and again he came not, and the court decreed that "the con- test be dismissed at plaintiff's costs and that the sheriff-elect stand as sheriff of course." The court granted an order allowing Joshua Collett ten dollars for services as prosecuting attorney for the term.
THE MARKET PRICE OF HOGS.
The first criminal trial of the county was on an indictment returned by the grand jury April term, 1809. James Sutton, of Somers township, was charged with stealing "one hog of the value of twenty-five cents," and pleaded not guilty, and Nathan Hornaday, Samuel Holliday, Samuel Stubbs, William Shipper, Isaac Enochs, Samuel Huston, Andrew Thorp, Frederick Miller, Hezekiah Hardesty, William Steel, Hugh Hamel and George Worth- ington, the first criminal jury impaneled, found him not guilty.
The first civil suit was by John Compton aganst Samuel Hawkins, for twenty-five dollars and forty-two cents, for which, with costs, he recovered judgment.
The first partition suit was brought August, 1814, by Lazarus Lanks- ton to partition fifteen acres in northeast quarter, section 28, township 4,
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range 3 east, and it recites that all the children of deceased but one are resi- dents of North Carolina.
The prosecution of violators of the liquor laws began early in the county, for at the December term, 1813, the grand jury indicted Thomas Murry, late of the township of Hardin, in the county aforesaid, did, on December 10, 1813, in the county aforesaid, without having obtained a license or permit as the law directs, sell and deliver for money to one Philip Helm, spirituous liquor, called whiskey, by less quantity than one quart, to wit: by the gill, contrary to the statute, and against the peace and dignity of the state of Ohio, to which Murry pleaded guilty and was fined. So the fight began in this county, and the end is not yet.
EXPONENTS OF A NATIONAL PASTIME.
In 1810 two men, Tobias Perkle and Henry Keck, of Twin township, were jointly indicted by the grand jury for unlawfully agreeing together to fight at fisticuffs, "and that they and each of them both together did fight at fisticuffs, etc., against the peace and dignity of the state of Ohio." After de- laying the matter a term or two, they both pleaded guilty and were assessed a small fine each. Their method of settling a personal dispute, while not to be commended, seems far superior to a jawing or slanderous backbiting match that we often see people engaged in.
Under the Constitution of 1802 the judges were appointed by the Leg- islature for the term of not over seven years, and under the Constitution of 1851, under which we now live, they were elected by the people of each ju- dicial district or sub-district for the term of five years, and in 1905 an amendment to the constitution made the term six years, and in 1912, by another amendment, at least one judge must be elected in each county for the term of six years, always provided they did not sooner die, resign or be removed from office for misconduct. In our district we have had judges die and resign, but have never yet suffered the disgrace of having a judge removed from office for his misconduct.
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These statements will help in understanding the list of judges given where the date of appointment is given, as the length of time served by a number of the older judges can not now be ascertained without reference to the files of the secretary of state, and some filled vacancies only :
1808-Francis Dunlay, of Warren county.
1817-Joseph H. Crane, of Montgomery county; two terms.
1820-Joshua Collett, of Warren county.
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1829-George B. Holt, of Montgomery county, and in 1843.
1836-William L. Halfenstein, of Montgomery county.
1850-John Burr, of Darke county.
1851-Abner Haines, of Preble county.
1852-William A. Rogers, of Darke county.
1855-Robert B. Harlan, of Preble county.
1857-James Clark, of Butler county.
1857-William M. Wilson, of Darke county, to vacancy.
1858-William J. Gilmore, of Preble county; two terms.
1860-Alexander F. Hume, of Butler county.
1864-1873-David M. Meeker, of Darke county; four terms. 1866-William Allen, of Darke county.
1875-Alexander F. Hume, of Butler county; three terms.
1879-James A. Gilmore, of Preble county.
1884-John W. Sater, of Darke county.
1890-Ferd Vandiver, of Butler county.
1894-John C. Clark, of Darke county.
Elam Fisher, 1895, two terms five years and one term six years, of Preble county. A. C. Risinger, 1911, present incumbent of Preble county.
It must not be understood that the judges named succeeded each other in our county in regular order, because this county was a part of the ju- dicial sub-district composed of two or more counties, and the judges in that district had to come here and hold the court, at such times as they arranged between themselves, which, since the 1851 Constitution became effective, has been at least three times each year. The time of holding court is called the term and named as of that month on which the term begins.
A LIST OF OFFICIALS.
The clerks of the court under the 1802 Constitution were numerous and were appointed by the court as needed, and frequently were designated as pro tem. clerks. Those so far as known who were regularly appointed and served as clerks are :
1808-Alexander C. Lanier. 1833-F. A. Cunningham.
1816-Walter Buel. 1846-R. S. Cunningham. 1819-Joseph C. Hawkins.
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Under the 1851 Constitution they were elected for three-year terms and often re-elected, and are:
1852-Lewis B. Ogden. 1888-L. D. Lesh.
1858-C. W. Larsh. 1894-W. W. Kinsey.
1864-Hiram Shank. 1900-L. L. Brown.
1870-D. B. Morrow.
1906-John Jones.
1873-W. D. Quinn.
1879-John Townsend.
1882-John R. Cook.
1913-L. L. Brown, present incum- bent.
In 1908 the term was changed to two years each.
PROSECUTING ATTORNEYS.
The prosecuting attorneys for the county have been :
1808-Joshua Collett.
1870-I. E. Freeman.
1818-David F. Heaton. 1873-John V. Campbell.
1828-John M. U. McNutt. 1874-I. E. Freeman.
1833-Solomon Banta.
1834-John C. McManus.
1837-Felix Marsh.
1838-Solomin Banta.
1843-Felix Marsh.
1846-George W. Thompson.
1850-Marcus B. Chadwick.
1852-William J. Gilmore.
1854-Marcus B. Chadwick.
1856-Robert Miller.
1862-L. C. Abbott.
1866-John W. King.
1879-I. E. Freeman.
1882-A. M. Crisler.
1888-John Risinger.
1894-A. M. Crisler.
1897-E. P. Vaughan.
1900-Michael Cahill."
1909-Hugh R. Gilmore.
1915-P. A. Saylor, present incum- bent.
SHERIFFS.
To complete the courts it is necessary to name the sheriffs who have been elected to the office:
1808-Jacob Fudge.
1822-John J. Hawkins.
1812-Paul Larsh. 1826-John L. Dickey.
1814-Samuel Ward. 1830-John P. Wilson.
1818-Paul Larsh. 1832-John Quinn.
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1877-Winfield Freeman, who re- signed, and I. E. Freeman filled the term.
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1836-John L. Dickey.
1876-William H. Snyder.
1840-George D. Hendrix.
1880-Court Corwin.
1844-Lott Lee. 1884-Daniel Peters.
1848-James Samson. 1888-Will Waters.
1852-John DeGroot. 1892-James W. Johnston.
1856-William Bauer. 1896-A. L. Borradaile.
1860-John R. Mccleaf. 1900-Barney Huffman.
1864-Moses Nelson.
1904-John W. Hoffman.
1868-John H. Bostwick.
1908-W. S. Boner.
1872-John Townsend. 1912-Ed Werts, present incumbent.
The coroners, as originally intended, were next to the sheriff, and in cases where he could not serve the coroner acted as sheriff, and the coroner was and can be elected from the laymen of the body politic, the same as the sheriff, and those duties are yet imposed by our laws upon the coroner. For a half century or more the coroners have been doctors, because of the pe- culiar duties imposed upon them, and hence are not popularly regarded as court officers. The list, so far as known, of those who have filled the office of coroner, is given in the roster of county officers.
A GLANCE AT THE LAWYERS.
There have been, including those now living, over one hundred attorneys, who have been admitted to practice law in the courts of this county, and who have to some extent at least been identified with the bar of this county. Some removed and made their homes in other cities and states, a number of whom rose to prominence in their adopted home, but the larger, much larger, number have gone to the Great Court of Last Record, where we hope the re- view of their cases will show no prejudicial error and that the judgment will be satisfactory in each case. It will be impossible for lack of space to give even a list of all who could be named, and it would be exceedingly dangerous to enter into a discussion of the merits and demerits of the living practition- ers, hence I shall content myself with mentioning some of the most promi- nent and most-talked-of attorneys who have crossed to the other shore, not forgetting those whom I knew and associated with in the practice and many of whom I learned to love and admire for their many manly qualities.
The first lawyer who actively practiced to locate in the county was David F. Heaton, born in North Carolina in 1792 and learning the tailor business. About 1812 he started in business at Franklinton, as that part of Columbus west of the Scioto was called, and enlisted as a staff officer of
:
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General McArthur in the War of 1812. After the war he went to Lebanon, where he and Thomas Corwin studied law together in the office of Thomas Ross, and a year or so later was admitted to the bar, and it seems came to Eaton to locate, for on September 7, 1818, he was appointed prosecuting attor- ney and the next year the county commissioners paid him $53.33 for one year's service. He was a Whig in politics and was elected either to the Senate or as a representative, for eight years from 1824, where he made a specialty of roads and land laws. In 1836 he removed to Washington, having been ap- pointed to a clerkship in the land office, and remained there until 1845, when he moved to Portsmouth, Ohio, and practiced law until his death in 1871.
A MANY-SIDED MAN.
John C. McManus, born in Pennsylvania in 1787, was the second lawyer to locate in the county. When a young man he was a government surveyor of Illinois lands and afterward studied law in Schenectady, New York, being admitted to the bar in 1812. He then came to Cincinnati and soon enlisted in the army of the Northwest for two years. In 1814 he located in Ham- ilton to practice law, and in traveling the circuit with the court he often vis- ited Eaton, to which he removed in 1818, and in 1820 returned to Butler county for three years, settling and adjusting matters of his deceased father- in-law, when he again returned to this county and settled in Jackson town- ship and continued to reside there until his death in 1852. He served as auditor and prosecuting attorney. He also served for five years as county surveyor, and was one of the best surveyors. He served for about twenty vears as justice of the peace, and also taught school for a number of years, and it is said that he tried to adjust and settle all controversies and only had a suit when all peaceful means failed. He is said to have been loved and re- pected by all for his learning, fairness and fearless espousal of the right, his gentlemanly and courteous conduct, and his efforts to help his fellow men. He is buried in what is called the Frame cemetery, in section 25, Jack- son township.
Perhaps the most talked about among the lawyers of that early period is John M. U. McNutt, for his brilliancy, quick wit and generous nature. Born of American parents, who lived in Nova Scotia, July 25, 1802, he re- ceived a college education, and came to New Lexington in 1822, and for two years taught school and studied law, and was admitted to practice in this county in July, 1825, and three years later was appointed prosecuting attor- ney and held the office for five years. In 1828 he was elected representative
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in the Legislature and served two years, and in 1832 was elected to the Senate and was regarded as one of the able men of the Legislature. He continued the practice of law until his death in 1837, and is said to have had the most remunerative practice of the county and to have been an unusually successful advocate before the juries of those days. Of nervous temperament and quick perception, he was resourceful and seldom caught unaware, but, withal, fair with the jury and to his opponent, abiding by the record made and holding up the strong points of his case. He acquired the reputation of not mislead- ing, which weighed heavily with the jury in their deliberations. In 1828 he married Jane C. Hawkins, the daughter of Joseph C. Hawkins, the clerk of the court, by whom he had one son, Joseph Gideon McNutt, born in 1832, and who was admitted to practice in the early fifties, but soon removed to Richmond, Indiana, and died there about 1877. The subject of this sketch delivered a number of public addresses, which were much praised by our older residents for their ability and learning.
SOLDIER AS WELL AS LAWYER.
Joseph Sevier Hawkins, generally called and known by the name of Sevier Hawkins, was born in Eaton, October 24, 1812, a son of Capt. Joseph C. Hawkins, and a grandson of Samuel Hawkins, who was so prominent in the early organization of the town and county. He was given what is called a common school education and in 1828 became a student in Miami Univer- sity, but on account of some prank of the students he was suspended for a term, after attending three years. He always claimed the suspension was unjust and never again visited the university until he went back as a trustee. He was a fellow student with Robert C. Schenck, Charles Anderson, Abner Haines and Felix Marsh, who were later men of more than local fame. After returning home, he studied law under his brother-in-law, McNutt, and was admitted to practice at Dayton at the same time as his classmates, named above, and began the practice of law at Eaton with his brother-in-law.
In 1840 he was elected a representative in the Legislature, and re-elected four times, and in 1848 was elected speaker of the House. He continued the practice of law in partnership with A. J. Hawkins and W. J. Gilmore, and was regarded as the foremost member of the bar and one of the most suc- cessful before court and jury.
He recruited a company for the Mexican War and was given a commis- sion as captain, but as the quota of soldiers for Ohio was filled when he reached Cincinnati he was sent home and disbanded the company. Always
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a Whig, he was earnest and energetic in the advocacy of his party principles. He died in August, 1852.
.. A PRACTICAL ABOLITIONIST.
Hon. Abner Haines was born in North Carolina, in March, 1804, and when but four years of age he was brought to Clinton county, Ohio, with his father's family, and worked on the farm, going to school winters until and before he became of age he began teaching school. In 1826 he came to Eaton and taught school a couple of years. He entered Miami University and by teaching in the winters and working in the summers he succeeded in securing a good education. In October, 1829, he married Nancy Thornberry, of Cam- den, who bore him one son and died within a year.
He studied law under J. M. U. McNutt, and was admitted to practice in July, 1831, and removed to Centerville, Indiana, and began practice of the law there. In November, 1832, he married Lydia Leas, and to them were born five sons and two daughters.
It is related of him that during the winter of 1831-2, two strangers abducted a negro boy in Richmond and took him west, intending to sell him into slavery, and did take him to St. Louis and sold him as a slave. Haines was employed by the Quakers to trace them and release the boy. With a young man named Gaar, he succeeded in trailing them across Indiana and Illinois to St. Louis, located the boy, got out a writ of habeas corpus, and, establishing the boy's identity, he was released. Haines brought him back to Richmond, making the round trip on horseback. The kidnappers had disap- peared and were never found. This feat, of course, raised the fame of Haines and rendered him well known over a wide area.
He returned to Eaton about 1837 and soon became one of the leading attorneys of the county. He took quite an active part in the location and construction of the Eaton & Hamilton railroad. In 1851 he was elected judge of the court, but after about four years resigned. He never forgot his Quaker training and was always bitterly opposed to slavery. When the Civil War began he left his party and supported the Republicans until 1872, when he returned to the Democratic party.
In 1876 he was elected to the State Senate. In March, 1877, while at Columbus, attending the session of the Legislature, when leaving a meeting of a Senate committee, he passed along a dimly lighted hall, and, stepping through an open door to the basement stairs, he pitched head-foremost to the bottom, alighting on his head and breaking his neck.
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