History of the city of Toledo and Lucas County, Ohio, Part 101

Author: Waggoner, Clark, 1820-1903
Publication date: 1888
Publisher: New York and Toledo : Munsell & Company
Number of Pages: 1408

USA > Ohio > Lucas County > Toledo > History of the city of Toledo and Lucas County, Ohio > Part 101

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To write, therefore, of the carly Judiciary and of the carly history of the Bar in our locality, is necessarily to write, to some extent, of the living, and of events which are within the short span of a man's business life; and the marvel I speak of is, that in the midst of a great City, the center of a great population surrounding it, and within the memory of its citizens, we can commence our record at abso- lutely the beginning.

The early history of Lucas County, the date of its formation out of the large territory for- merly comprising the County of Wood, and the facts which led to the division of that ter- ritory, have, no doubt, been sufficiently told elsewhere in this volume, and will not need to be repeated here. As there stated, the County was organized in 1835, and became a part of the judicial subdivision then presided over by Judge David Higgins, of Norwalk, the first term of the Common Pleas Court being held on the 7th day of September of that year. The term was held by the associato Judges, the Presiding Judge not being present.

Judge Higgins first arrived in Toledo on the morning of April 27, 1836, where he was met by the three Associate Judges and opened

Court in a most formal manner. A Grand Jury was sworn and the men composing it were certainly among the most prominent citizens of the County. It is a fact, which every lawyer recognizes, that with the growth of Cities, the increase of wealth and business, and corresponding increase in the importance of matters litigated in the Courts, the charac- ter of juries decreases in corresponding ratio. To those who look upon the average jury in our Courts of to-day, and who know the prominent men of our early history, it will be interesting to read the names of the early jurors, and contrast them with the present ; and I cannot refrain from recording the names of that first jury sworn in Lucas County. They were Jacob Gnagy, Henry Dilgart, Allison Demott, Samuel Searing, Oscar White, Alonzo Noble, James John, Cornelius Wiltse, Silas Barnes, David Mills, James M. Whitney, Calvin Comstock, Coleman I. Kecler, Willard J. Daniels and Luke Draper. No 15 men of corresponding prominence could be obtained on a jury in the present age. Not because such are not liable to jury duty. Not because intelligence and reponsibility are not sought among the qualifications now, nor because of any fault in the system of the law, but for the reason that business men are not willing to perform this important duty of citizenship. Every excuse known to the law, and some not thus recognized, are resorted to for escape; and the laxity of the Courts in enforcing the law, their willingness to accept exeuses from the unwilling, while so many are anxious to serve, has resulted in the growth of a "class of profes- sional " jurors, who are rapidly bringing into disfavor a system, which, in my judgment, is indispensable to free government and the im- partial administration of justice through the Courts.

At that April term, 1836, of the Court, the only business transacted of a judicial nature was the following: On return by the Grand Jury of two indictments for petit larceny against John Wilson, his trial and conviction therefor followed with sentence in each case to six days' imprisonment in jail, and a small fine. The Sheriff, Cornelius G. Shaw, was amerced in the sum of $160 for failure to bring in the body of one Henry Morgan, a defendant in an action of assumpsit, in pursuance of a writ issued and a rule made requiring the Sheriff to do so. Andrew Coffinbury, who [513]

* Prepared by Judge John H. Doyle, of Toledo.

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then lived at Mansfield, was, on the opening of Court, appointed Proseenting Attorney, and for attending upon the Grand Jury preparing the indictments and trying Wilson upon each indictment, he was allowed by the Court the sum of $15.00. An entry was made in an ejeetment case substituting Robert A. Forsyth and Smith Daggett as defendants in place of the mythical " Richard Roe." Other proceed- ings at this term are noted elsewhere.

The first civil action commeneed in Lucas County, was entitled " Lyman Andrews, Ad- ministrator, vs. James Lindsley & C. L. Wing, trespass on the Case," with Spink & Coffinbury as Attorneys for plaintiffs.

One of the earliest cases tried grew ont of the controversy between Ohio and Michigan over the disputed boundary line.

After Ohio had asserted her right to territory to the Harris line, and had organized the territory into a County, an election was re- quired to be held in Toledo, and Benjamin F. Stickney, Platt Card, and John T. Baldwin were selected as judges and accepted. This was a violation of a "Pains and Penalties Act" of the Michigan Legislative Council, which made it an offense to acknowledge any other authority than Michigan in the disputed territory, and was an overt act against Michi- gan authority. Major Stickney had attended the session of Congress of 1834-5 as an active worker and warm partisan of Ohio, and in- curred the enmity of the people of Michigan therefor. In March, 1835, he visited Monroe, when, much to his surprise, he was arrested on a criminal charge, based on his serving as judge of the election a year before under the authority of Ohio, and was thrown into prison. He was detained until he obained bail, which was required for his appearance at the next term of Court. In July of the same year Governor Mason sent a force of 250 men to Toledo to arrest young Two Stickney, a son of the Major, who was then in Columbus under the protection of Governor Lucas. They ran- sacked the Major's house, and not finding young Stickney, concluded to arrest the " old rascal," and marched him off to Monroe. This expedition was under the command of Warner Wing, who is elsewhere mentioned as practic- ing in our Courts after the question was settled. Major Stickney was again impris oned, the charge against him being, after much consultation among the authorities, that of resisting an officer on the occasion of his former arrest. Bail was again exacted and given, but the Major did not return to Monroe at the subsequent or any other term of their Court, and his recognizance was forfeited and judgment entered against his bondsmen. They commenced an action against him in this County, and at the April term of 1838 the case was tried and judgment rendered against the defendant, which was affinmed by the Supreme

Court, at the term thereof first held in the County, at which Judges Lane and Grimke presided.

This much of the business of the Court is given as a history of its early work, because the names appearing in the records of its doings are identified with the history of the County, and to give a basis of comparision with the magnitude of the business of to-day.

The writer has often heard his father, who had been for some years a resident of the County, say, that he was one of the many who volunteered their services to Governor Lucas to protect the boundary by arms, and was present at many of the exciting incidents of the time.

The lawyers whose names appear upon the records and who attended the early sessions of the Courts in Lucas County, are the following: J. Stetson, John C. Spink, Pierre M. Irving, Richard Cooke, John M. May, Samuel M. Young, Joshua R. Giddings, Nathaniel Rath- bun, Emery D. Potter, Noah H. Swayne, George B. Way, Willard V. Way, Daniel F. Cook, Benj. F. Wade, James Purdy, Jobu Fitch, Warner Wing, Daniel O. Morton, II. C. Stowell, Benj. S. Brown, Henry Bennett, Henry Reed, Jr., Hezekiah L. Hosmer, - Perkins, John R. Osborn, Myron H. Tilden, C. L. Boalt, Ozias Bowen, L. S. Lownsbury, Edson Allen ; and later, Morrison R. Waite, Charles W. Hill, Caleb F. Abbott, Edward Bissell, Charles Pratt, Charles Kent, Edward Bissell Jr., and many others who belong rather to the present than the older Bar.

Butfew of these men were residents of Lucas County. Way & Cooke (a firm composed of George B. Way and Richard Cooke), Potter Fitch, Abbott, Morton, Allen, Lownsbury, Young, Rathbun, Brown and Daniel F. Cook, constituted the resident Bar; the last three being residents of Maumee, the others of To- le lo, which was then the County-seat. Spink, Bennett, Hosmer, W. V. Way, Stowell and Campbell, were of Perrysburg ; Boalt and Hig- gins of Norwalk ; Purdy, Coffinbnry and May, of Mansfield; Swayne of Columbus; Wing & Mclellan, of Monroe. Osborn & Tilden moved early from Norwalk to Toledo, and became prominent among the local Bar. Wade & Gid- dings, who were interested in some real estate speculations which brought them here fre- quently from Ashtabula County, had some business in our Courts. Ozias Bowen was from Marion.

The field of the early lawyers' labors was much broader in area than now. They traveled from County to County in the Circuit on horse- Fack or in wagons, for even the Stage-coach had not been introduced in the " Black Swamp region" generally enough to afford reliable means of travel. The lawyer's bag (not always the orthodox given one of the profession) con- tained his wardrobe, bis briefs and his lil razy ;

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the latter consisting mainly of Blackstone, Chitty and some work on pleading and prece- dents. Equipped with these, he started on his pilgrimage. Nearly the same men met in the different Counties, and fought their legal bat- tles-those associated to-day being pitted against each other to-morrow. They lived in Taverns, played cards, enjoyed the usual social pleasures ; discussed over again their cases and questions which arose in their trials; engaged in mental contest of wit and humor ; and, obey . ing an unwritten law that existed and was recognized by every lawyer, was good natured, gentlemanly and courteous to each other, with rare and regretted exceptions.

There was no term of the Supreme Court held in Lucas County until 1838, when Judges Ebenezer Lane and Frederick Grimke held a short term at Toledo. Judge Lane lived at Norwalk. He was the predecessor of Judge Higgins on the Common Pleas bench, but had been transferred to the Supreme Court in 1830. Judge Grimke lived in Chillicothe. It is not the purpose of this article to give extended notice of any member of the Bench or of the Bar, and certainly not of those whose long and distinguished service on the Supreme Bench, have become a part of the history of the State. The older lawyers speak with enthusiasm of the old Supreme Court, as it traveled over the State with such men as Sherman, Tod, Lane, Grimke and Hitchcock, as Judges; and there is an evident sadness in the half-concealed regret at the change that was wronght under the present constitution, which cannot be under- stood by the younger members ofthe profession.

Judge Iliggins was succeeded in 1837 by Ozias Bowen of Marion, who held our Court for two or three terms, until in the winter of 1838-39, when the Legislature made a new Jul- dicial Circuit of 10 of the Northwestern Coun- ties, including Lucas and Wood, when E. D. Potter was chosen as the President Judge. Ile immediately purchased of Jonathan Neely of Maumee a magnificent horse, on which he rode proudly on his journeys through his Circuit. He served his term and earned the title of an upright and honest Judge. The salary of the Judges was about $1,200 per annum, until 1842, when the Legislature reduced the pay to $2.00 per day (Sunday included), which was the magnificent sum for which Myron H. Tilden, in 1844, left his successful practice and became the successor of Judge Potter.

Ofthe five Judges who presided in our Courts up to about 1850, three are still living. Judge Potter, still an honored and respected citizen of Toledo; Judge Tilden in Cincinnati, whence he moved in 1851, and where he has been one of the Judges of the Superior Court of that City ; and Judge E. B. Sadler of Sandusky City, yet in the active pursuit of his profession. Judge Higgins left the profession in 1846, and

moved to Washington, where he took a position in one of the departments, which he hekl until his death in January, 1874, being then over 80 years of age. Judge Bowen was elevated to the Supreme bench under the present Constitution, served one term with much credit, and died about 1876.

The Judges of the Common Pleas Court, from the retirement therefrom of Judge Tilden, down to and including the present occupants of the Bench, have been and are as follows:

E. B. Sadler, L. B. Otis, John Fitch, Samuel T. Worcester, S. F. Taylor, Walter F. Stone, William G. Lane, William A. Collins, T. P. Finefrock, Reuben C. Lemmon, Joshua R. Seney, James J. French, Charles E. Penne- well, Birdseye W. Rouse, Cooper K. Watson, William F. Lockwood, John Mackey, John II. Doyle, Isaac P. Pugsley, David H. Commager, George R. Haynes, Lonis H. Pike, C. P. Wick- ham, J. M. Lemmon, J. L. Dewitt and John L. Greene. Judge E. B. Sadler was called to the Bench on the resignation of Judge Tilden in the Spring of 1847, and was succeeded under the new Constitution in 1851, by L. B. Otis, who served until 1855. Judge Fitch was elected in the Fall of 1854, taking his seat on February 9, 1855, under an act providing for an additional Judge for the subdivision. Ile held the office for 15 years, being succeeded in 1870 by Judge William A. Collins, who served one term of five years. Judge R. C. Lemmon was elected as the successor, and is now serving on his third continuous term, which will expire February 9, 1890.

The Legislature at its session of 1870-1, pro- vided for an additional Judge for the First Sub- division of the Fourth Judicial District; and at the Spring election of 1871, Joshua R. Seney was elected to such position. Hle resigned in November, 1874, when James J. French was appointed by Governor Allen to serve until the next annual election, at which time Birdseye W. Rouse was elected to fill the unexpired term, and also the full term thence ensuing. An additional Judge had also been created by statute in 1869, and Judge Charles E. Penne- well of Norwalk, and T. P. Finefrock of Fre- mont had successively held the office, when in 1879, John H. Doyle was elected to succeed Judge Finefrock and held the office until 1883, at which time his elevation to the Supreme Bench caused a vacancy which was filled by appointment of Isaac P. Pugsley, and after- wards by election of Judge Commager, who still holds the office. Charles P. Wickham, of Huron County, was elected to succeed Judge Rouse in 1880, and was re-elected in 1885, serving almost wholly in Huron, Erie and San- dusky Counties. He resigned in 1886, when he was elected as member of Congress from the Huron district. John M. Lemmon, of San- dusky County, was, by the Governor, appointed

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to fill the vacancy until the election of 1887, at which time John L. Greene, of Sandusky County, was chosen for the place.

In 1878 still another Judge was provided for by statute, and William F. Lockwood was chosen. Heserved five years. At the election in 1883, George R. Haynes was deelared elected, commissioned and served about four months, when, on a contest, the Senate declared Lonis HI. Pike elected, and he has since served. Judge Haynes was the following year elected to the new Circuit Court, created by constitu- tional amendment, and is now serving as Judge of that Court. At the November election, 1887, Judge Pike was a candidate for re-election, with Judge Pugsley as his chief opponent, when the latter was elected, his term to begin November 6, 1888.

I do not intend to write at length of the modern Bench or Bar. I have not space to do so at any great length of the earlier members of either. They were, in greater part, men who came here from the East in search of the El Dorado supposed to lie in the vast wilder- ness of what was then known as "the Far West." Educated in Eastern Schools of learn- ing and morals-in the main ambitious, ener- getic, young, hopeful, vigorous, moral and in- telligent men. The County was organized at a period of great speculation, nowhere more exciting and extravagant than on the Maumee. Money was poured into the Valley by Eastern capitalists to buy lands and lay out Cities, until the banks of the River became to a great ex tent a line of Towns "on paper." Speculation was at fever heat; prices were regulated only by the amount of advance over the last purchase which the owner would take; and the lawyer was an essential and tolerably well- paid adjunct of this condition of things. Ben- jamin F. Wade once told the writer that, coming from Cleveland to Toledo on a Steamer, he found a man, also a passenger, who was on his way from Baltimore to Toledo to sell River traet No. 6, now part of the Fifth Ward. Wade's solicitude was to get a contract out of him before the boat landed, Unable to get the seller to fix a price, he plumped an offer of $25,- 000 to him and closed the bargain to their mutual satisfaction, as the last price paid for it was in the neighborhood of $10,000, and Wade more than doubled his money. That tract of land was the subject of litigation for a good part of the time since and until about halt a dozen years ago, when, it is to be hoped, the titles were settled forever.

This period of speculation, fostered by the " Wild Cat " Banking system in vogue, begat an unhealthy credit system, which made the locality suffer in the succeeding panic that swept over the country ; and the business of the lawyer and the dockets of the Courts be- came greatly increased thereby. Many lawyers

laid the foundations of considerable fortune during this early period, while some were lost in the financial wreck that followed. The great future of Toledo was a matter about which none entertained any doubt in those early days, and most of them remained here through good and bad fortune, with their eyes turned toward the " promised land," which was a part of their faith until sight was closed to terrestrial things.

Among the resident lawyers of the carlier time we are writing about, Potter, Fitch, Allen, Young and Osborn; and of the latter period. Bissell, Pratt and Kent, are still residents of Toledo, and finding their early predictions fulfilled, are building greater hopes than ever on the future.

That was an able Bench and an able Bar. Indeed, Lucas County has always been dis- tinguished for the ability of its lawyers. A prominent Judge of the Supreme Court used to say, that it was a pleasure to preside over a District Court in Lucas County. The lawyers were better prepared, presented their cases better, and were more courteous and polite to each other and to the Bench, than those of any County to which he was called. The example and influence of those prominent among the early lawyers, has always been felt in the local Bar. Such men as Morton, Waite and Hill, could hardly fail to leave the impress of their character upon the future of the profession. Industry, study, thoroughness, and honesty were the lessons taught, and their successors were apt at learning.

The early lawyers, of course, had their peculiarities, weaknesses and failings, as have those who are now occupying their places. They were human, but good specimens of humanity. Judge Higgins was anstere and seelusive while on the bench, but impartial and sound. He would reprimand a lawyer for trivial departure from the decorum which he exacted during the sessions of Conrt, but would allow his own temper to lead him into absurd extravagances. Judge Bowen, on the other hand, was as mild and even tempered a man as ever wore the ermine; and yet, firm and fearless in the administration of justice, in which he never lost his temper and never car- ried the thinnest mark of severity.

George B. Way would fill a Court-room with a flood of eloquence, carrying Jurors and Courts with his magic words, and then, as com- pensation, would desert his office and his law books and give himself entirely up to a luxuri- ous indolence, or the pleasure of purely literary or artistic study.

Morton, with his magnificent physique, im- posing height and appearance, his thorough knowledge of the law, and fluent and matchless address, was the most formidable opponent among the early lawy ers. But he was wedded

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to polities. His great delight was in a political encounter, and he was ambitious to an ex- treme for political preferment.

Hill possessed more than most of men the two qualities-intense industry and acuteness. Ilis scent was as keen as a hunter's. His labor and toil in his cases were continuous, and necessarily his success was phenomenal. Out- side his profession he had two hobbies-the Public Schools and the Military. In the first, he was very useful, and contributed much to the perfection of the matchless Schools of Toledo. For the other he was not particularly adapted, but freely gave his best ability to his country during the War of the Rebellion as an Adjutant General of the State and in the field. This incessant toil finally broke him down physically and mentally, and the last years of his life were darkened by a clouded intellect and saddened by physical pain and financial troubles.

Andrew Coffinbury, who bore throughout his life the title of " Count," practiced law con- tinuonsly from 1813 until his death, May 11, 1856. His soubriquet was first playfully given him by his associates at the Bar, because of a supposed resemblance to Count Putfendorf, a distinguished German jurist. The "Count" was among the early lawyers who " rode horse- back " over the Northwestern Circuit from Mansfield, where he then lived; and was appointed Prosecuting Attorney at the term of Court in the Spring of 1836 held in Lucas County. He was a man of rare attainments, genial and affable at all times, and much beloved by his brethren. He moved to Perrys- burg abont 1839, and in 1841 entered into a partnership with his son, James M. Coffinbury, then just admitted to practice, and who opened the office for the firm's practice at Maumee City. James was elected Prosecuting Attor- ner for this County the same year, and held the office for several succeeding years. He moved to Findlay in 1845, and in connection with his practice, edited the Findlay Herald for about 10 years. From there he went to Cleveland in 1855. He was severely injured in 1875 by his carriage being struck by a freight train which resulted in the loss of one of his legs. In January, 1841, he married Miss Anna M. Gleason, of Lucas County. He was nominated by the Democrats of Cuyahoga County several times for member of Congress and Common Pleas Judge. In 1861 he was elected Judge of the Court of Common Pleas, and held the office five years.

John Fitch was born in Schodac, Rennsse- laer County, New York, February 16, 1806. His ancestors played an important part in American History by having descended from Thomas Fitch, Chief Justice and Colonial Governor of the Colony of Connecticut under George III. His grandfather, Thomas Fitch, was a Colonel in the Revolutionary Army.

He was admitted to the Bar in Albany, New York, after reading in the office of Thomas B. Ludlow of Nassau, in his native County, and of James Lynch of New York City. In the fall of 1836 he moved to Toledo, and was elected Prosecuting Attorney the first term at which he appeared as a practitioner in our Courts, a position which he held for a number of years. He was a terror to the criminal classes whom he was called to prosecute. A keen, skillful lawyer, he left no loop-holes for escape. He rose rapidly to distinction at the Bar, and in 1854 was elected Judge of the Court of Com- mon Pleas, taking his seat February 9, 1855, an was twice re- elected, retiring in 1870, after serving with distinction for 15 years. Like his early associates, Indge Potter and Mr. Young, he has passed his 824 year and is still living in our midst. Upon his retirement from the Bench resolutions of very complimentary character were passed by the Bar.

Of the very earliest residents of' Toledo, scarcely one attained to more honorable prom- inence than did George B. Way. Born in Baltimore, May 5, 1811, he attended both Yale College and Miami University, Ohio; was admitted to the Bar in 1832 ; opened an office at Urbana; was married with Miss MeCon in 1834; and came to Toledo in 1835, at the solicitation of several parties interested in the place. Mr. Way in 1836 took charge of a printing press and materials, which had been provided, and started a newspaper which was named the Toledo Blade, the first number of which was issued in the fall of 1836. At the same time Mr. Way opened an office for the practice of his profession, which led to early success. During the first three years of the Blade, Toledo was the abode of several gentle- men of fine literary attainment, who were interested in City real estate. Among these were Joseph R. Williams and Pierre M. Irving, the latter a nephew of Washington Irving, who from time to time contributed to the columns of the newspaper. The credit of conferring the name upon the Blade, seems to have been claimed for two parties-Mr Way and Mr. Williams. A writer in Livingston's Law Jour- nal in 1858, in a biographical sketch of Mr. Way stated that he named the paper, while Mr. Williams, in an article in the Blade of October 17, 1853, claimed such act as his, giving particulars.

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History of the city of Toledo and Lucas County, Ohio, Part 101

Author: Waggoner, Clark, 1820-1903 Publication date: 1888 Publisher: New York and Toledo : Munsell & Company Number of Pages: 1408

Author: Waggoner, Clark, 1820-1903
Publication date: 1888
Publisher: New York and Toledo : Munsell & Company
Number of Pages: 1408