The history of Madison County, Ohio, Part 40

Author: Brown, Robert C; W.H. Beers & Co., pub
Publication date: 1883
Publisher: Chicago, W.H. Beers & co.
Number of Pages: 1180

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On the 17th of May, 1810, the Associate Julges opened court at the same place. Letters of administration were granted to Ziba Wingett, on the estate of Luther Wingett (deceased). Ziba Wingett executeil a bond. together with Luther and Abijah Cary, as securities in the penalty of $700 ; the court thereupon appointe I said Carys and Thomas Gwynne appraisers of said estate. This was the first probate business executed in Madison County.

The first regular session of the Court of Common Pleas was opened at the house of Thomas Gwynne, Monday, July 30, 1810; present, Hon. John Thompson, President, Isaac Miner, and Samuel Baskerville, Associates. The following Grand Jurors were impaneled, viz. : Elias Langham, foreman, Andrew Cypherd, Hugh Montgomery, Curtis Ballard, Charles Atchison, Paul Adler, Thomas Foster, Nicholas Moore, William Blaine, John McDon-

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ald, Nehemiah Gates, William Gibson, Andrew Shields, Philip Lewis. and John Arbuckle. The court then appointed Ralph Osborn as Prosecuting Attorney ; and Robert Hume as Clerk. for the constitutional term of seven years. On the following day, the court met, pursuant to adjournment, the President and three associates being present. Its first act was accepting and ordering to be recorded the will of John Blair (deceased), Samuel Blair, and Samuel McNutt, being the executors of the same. Elias Lang- ham, having been appointed to examine applicants for the office of County Surveyor, recommended Patrick McLene, whom the court appointed to the position. The first indictment presented at this session was against George Blair, for assault and battery, who pleaded guilty, and was fined $1 and costs. Michael Dickev, John Graham, and Thomas Gwynne, were appointed apprais- ers of the estate of John Blair, deceased. Indictments were found against Philip Cryder, John Graham, and Nathan Frakes, and the causes continued. Ralph Osborn was allowed $25 as compensation for his services as prosecut- ing attorney, and after some other business, unimportant in this connection, all cases on the docket were continued, and court adjourned until the November term.

As an item of history, we give a verbatim copy of the will of John Blair, for the reason that it was the first will recorded in Madison County:

In the name of God, amen, I JOHN BLAIR, SR., of the County of Madison, and State of Ohio, being frail in body, but sound in judgement and memory, do ordain this my last will and testament, and do hereby revoke all and every former will or testament made at any time prior to this ; and, first, I recommend my soul to Almighty God, who gave it to me. Secondly, I allow all my lawful debts to be paid, of which the following is a true list, accord- ing to the best of my memory, viz. : By book account to Nathan Gregg, $28; also, Ephraim Doolittle $45, by book account ; also, $10 per note to Lyne Starling : also, $6 per note to John Brickell ; also, a book account to Dr. John Ball, supposed to be twelve dollars. Thirdly, I do hereby will to each and all my children $2 in cash, apiece, with which I request them to buy each of themselves a bible with. Fourthly, I do hereby will and bequeath to my loving wite, Susannah, all that traet or parcel of land which I obtained from James MeNutt, deceased, for service done to said MeNutt, by myself, whilst he was living, together with alt town lots which may be included in the bounds of the above mentioned tract of land ; also, I leave my loving wife all the late purchase of land that I made from James Galloway, Jr., to be dis- posed of as she thinks proper ; also, all my personal property that I now have, to her own proper use and behoof forever; and lastly, I do ordain my loving sons, Samuel Blair, and Samuel McNutt, executors of this, my last will and testament. In testimony whereof, I have hereunto set my hand and seal, this twenty-first day of July, one thousand eight hundred and ten.

J. BLAIR. [SEAL. ]

MICHAEL DICKEY, ANDREW SHIELDS, Witnesses present. ROBERT SCOTT,

The next term of the Court of Common Pleas began November 19, 1810, with Hon. John Thompson, President, Samuel Baskerville and David Mitchell, Associates. The Grand Jurors were Jonathan Minshall, Foreman, David Groves. John Timmons, John Simpkins, Daniel Wright, John Shields, John Blair. Charles Atchison, Paul Alder, Calvin Cary, Jr., Frederick Sager, William Ware, Patrick McLene, John Turner and Elias Brock. The first case was against John Graham, for retailing spirituous liquors without license. He was found guilty in two cases, and fined $5 and costs in each case. The jury in the trial of Graham were David Bradley, Abra- ham Johnson, David Harris, Henry Roby, Jacob Johnson, Peter Paugh, William Jamison, William Chard, John Scott, John Beetley, John Wilson and Frederick Loyd, which is the first Petit Jury that appears on record.

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Philip Cryder was arranged at this session for assault and battery on John Sutherland, pleaded guilty, and was fined $6 and costs.

One of the most noted cases during this early period was the trial of Tobias Bright, for killing Nicholas Monhem, an Indian. The story goes that Bright, with one of his neighbors, both residents of Jefferson Township, went up Little Darby on a hunting expedition, and, toward evening, called at the campof two Indians at the noted camping ground, near the " big mound," close to the junction of Spring Fork and Little Darby. After remaining a short time, they started for home, but when a few rods' distant, Bright wheeled around, and, without any provocation, shot one of the Indians dead. This treacher- ous act caused great indignation. both among the whites and Indians, and nearly led to more bloodshed, but during the summer of 1810, the excite- ment died away, through the prompt arrest of the murderer. In connection with this act, we find the following item on record, "Ordered, that Peter Paugh be allowed the sum of $3 for making one pair of handcuffs and fet- ters for the use of the county to put on Tobias Bright." On the second day of this session, the case came to trial, Bright pleading " not guilty." The jury were Jacob Johnson, Abram Johnson, David Bradley, Andrew Shields, Charles Ewing, William Ross, John Graham, John MeNutt, Samuel Blair, James Barr, Isaac Williams and George Blair. It is not strange. consider- ing the feeling against the Indians during the pioneer days, that Bright was acquitted. During this session, John MeNutt was fined $6 and costs for an assault and battery on James Blair. For this and all future terms, it was ordered that Ralph Osborn be allowed $33} for his services, as Prose- cuting Attorney during each term.

At the next term of the Common Pleas Court, held at the same place and beginning March 18, 1811, with Hon. John Thompson, President, Samuel Baskerville, David Mitchell and John Arbuckle. Associates, the fol- lowing Grand Jurors were returned, viz., Philip Lewis, Foreman, Jacob Vandevender, Jonathan Minshall, William Frankabarger, William Jamison, John Phoebus, Enoch Thomas, Curtis Ballard, John Kelso, Daniel Taylor, Henry Shover, Michael Dickey, Abijah Cary, Charles Atchison and John Wilson. A number of indictments were found, the majority of which were for assault and battery. Nathan Frakes, John Murfin and Samuel MeNutt were each fined $6 and costs for this latter offense.

A special session of the Associate Judges was held May 27, 1811, to try Usual Osborn, charged "with bantering one John Davis to fight a duel." Osborn pleaded " not guilty," and was acquitted.

On the 19th of August, 1811, the Court of Common Pleas began its next session. Ilon. John Thompson, President, Samuel Baskerville, David Mitchell and John Arbuckle, Associates. The Grand Jury were Joshua Ewing, Foreman, James Robinson, John Taylor, Jacob Vandevender, Peter Cutright, Nathan Lowe, John Mozier, Reason Franeis. Levi II. Post, John Cowan, Will- iam Ware. Samuel Taggart. James Graham, Samuel Mitchell and Peter Paugh. The three latter jurors not appearing, the Sheriff was ordered by the court to summon a talisman at once : thereupon Isaac Miner was returned. The first case tried at this session was the State vs. Samuel Blair, John McNutt and Samuel McNutt, " for a riot or conspiracy " against Elias Langham. They were found guilty, and fined $25, $15 and $6 respectively. and bound over to keep the peace for one year. The names of the jury in this case

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were Jonathan Alder, Frederick Lloyd, John Johnston, Jacob Coon. John Beetley, Hezekiah Bayliss, Garrison Waddle, Thomas Mullin, John Clarnoc, Richard King, Jesse Indicott and Leonard Alkire. Another jury during the session was as follows : Nicholas Moore, Andrew Shields, John Wilson, David Foster, John Blair, John Ross, William Jamison, Thomas Foster, James Marks, Charles Dickinson and Richard King. The case they tried was Isaac Williams vs. John Graham, for assault and battery, the latter being found guilty and fined $10 and costs. Simon Shover and William' Kirkley served on a jury in this session, taking the places of Richard King and Jesse Indicott, all the balance of the jurors being the same as the first chosen in the session.

The first term of the Court of Common Pleas held in London, the newly laid out county seat, was opened November 18, 1811, by the Hon. John Thompson, President, Samuel Baskerville, David Mitchell and John Arbuckle, Associates. The following were the Grand Jurors impaneled at this term: James Withrow, Foreman, Curtis Ballard, Richard Brock, James Pringle, Philip Cryder. Calvin Cary, Jr., John Kent, Daniel Brown, Peter Helphenstine, Samuel Timmons, John Shields, Charles Atchison and Philip Lewis. The Petit Jury were Thomas Pattison, Robert Soward, Nicholas Moore, Dennis Lane, Joseph Powell, Christopher Ladd, William Hume, James Criswell, James Barr, John Blair, David Bradley and John Kelso.

We have now ran through the two first years of the Court of Common Pleas, and the reader will notice that the majority of the cases tried were those in which muscular development took the leading part. The early set- tlers were in the habit of taking the law into their own hands. They were, as a rule, peaceable, yet ever ready to assert their personal prowess, or re- sent an insult, and woe betide the man who showed "the white feather." John Graham was considered " the best man" of his locality during the pioneer days of Madison County, and throughout these two first years of the county's career, we find his name figuring at every term of court in an assault and battery case, and in every instance he was found guilty as charged. Our object in giving the lists of jurors for 1810-11 is to trans- mit to these pages the names of many worthy pioneers who have long since been lost sight of, some of whom were prominent in enforcing civil law at that early day. Doubtless, each had a record worthy of preservation, and while the history of many will be found elsewhere in this work, some there are of which nothing can be gleaned but their names to rescue them from oblivion. We have, however, culled from the musty records of bygone days, " dimned by the dust of the years rolled away." names and events which we believe can properly be given a modest place in the pages of history.

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HISTORY OF MADISON COUNTY.

CHAPTER X.

JUDICIAL-THE BENCH-PRESIDENT JUDGES-JUDGES SINCE 1851-THE BAR- VISITING LAWYERS-RESIDENT ATTORNEYS-MADISON COUNTY BAR ASSOCIATION.

A MONG the prominent agencies which give shape and order in the early development of the civil and social condition of society, the pulpit, press and bar, are perhaps the most potential in molding the institutions of a new community ; and where these are early planted, the school, academy, and college are not long in assuming their legitimate position, and the main - tenace of these institutions secures at the start a social and moral foundation upon which we may safely rest the superstructure of the county, the State, and the nation. The establishment of courts and judicial tribunals, where society is protected in all its civil rights under the sanction of law, and wrongs find a ready redress in an enlightened and prompt administration of justice, is the first necessity of every civilized community, and without which the forces and press of society in its changeable developments, even under the teachings of the pulpit, the direction of the press, and the culture of the schools, are exposed to peril and disaster from the turbulence of passion and conflicts of interest; and hence the best and surest security that even the press, the school, or the pulpit can find for the peaceful performance of its highest functions, is when protected by and intrenched behind the bulwarks of the law administered by a pure, independent and uncorrupted judiciary.

The Madison County bar has from its beginning numbered among its members able jurists, talented advocates and safe counselors. Here, many eminent lawyers from the surrounding counties have, with "silver tongue of ready utterance," sought to make the wrong appear the better reason, or with honest purpose and manly courage maintained their client's cause; while others of the local bar are still upon the stage of action, who have been prominent in the advancement of the interests of Madison Coun- ty, and figured conspicuously in the councils of the State.

THE BENCII.

It will not be inappropriate to recall the names of the Judges of of the court who sat in the "old temples " and the new, and dispensed jus- tice with impartial hand. Material changes have been made since the first court was opened in Madison County, both in the organization of the court and in the general practice of attorneys; but as the different changes in the State judiciary has been given in the previous chapter, we will here confine ourselves to a record of the Presiding Judges under the old constitution and those who have sat upon the " Woolsack " in London, since the adoption of the new.

PRESIDENT JUDGES.

Hon. John Thompson comes first in the order of time. We have been unable to find anything further regarding the life of Judge Thompson than

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that he lived at Chillicothe, and occupied the bench in this county from 1810 to 1815 inclusive. Old settlers tell us that he was a small, compactly built man, a good Judge and a well-read lawyer. In August, 1811, he adopted the following rules for the government of those practicing law in the courts of Madison County, and which we here give for the sake of "auld lang syne." "First-Attorneys and counselors shall never make a motion unless they ask the court if they will hear such, and shall always stand in the place appointed for them. Second-They shall be orderly and treat each other with respect at the bar, make no noise or contradict any gentle- man addressing the court or jury unless moving the court to interfere, and if the gentleman thus contradicted talk back, he shall suffer suspension at discretion of the court. Third-No gentleman is to interfere with the papers of the court or Clerk. Fourth-Counsel shall consult and agree on separate and distinct points of law and fact, otherwise only one on each side will be permitted to speak. Fifth-Only one counsel shall be admitted on each side to examine and cross-examine witnesses. Sixth-In all causes, one counsel, before the introduction of testimony, shall open the nature of the issue and the testimony to be offered." Similar rules were laid down by Judge Thompson for the guidance of the prosecuting attorney and other officers of the court. The judicial business in those early days was insig- nificant compared with the present, but with the passing years it gradually increased, and the duties of the Judge became more arduous.

Orris Parish was the next Judge of the Court of Common Pleas. He was born in Canterbury, Windham Co., Conn., in the year 1782. His father was Reuben Parish, and his mother Zurilla Bishop. Orris received the early part of his education in the common schools of Connecticut. In 1790, his father's family, with those of his grandfather and uncle, Levi Parish, settled in Middletown (now Naples), Ontario Co., N. Y., where Orris attended such schools as were found in the first settlements in the wilderness, and he may have attended the academy a few terms, in Canandaigua, N. Y. In 1807 or 1808, he entered the law office of the late John C. Spencer, but, before com- pleting his course, his parents died, and he left Spencer's office, and finished his studies with his cousin, John Parish, in Windham, Windham Co., Conn. In 1811 or 1812, he emigrated to Ohio, and settled in Franklin, Franklin County. He was there during the war, and, in 1815, moved to Columbus, after the capital was fixed there. He acquired some distinction as a prac- titioner, especially in jury cases, where his style of oratory was very effect- ive. His services were consequently in large demand, and he had a large practice on the circuit, which, in those times, was traveled on horseback from court to court, even to distant counties, by the jolly lawyers of the olden time, among whom he was noted. He was a very eccentric man, and many stories are related of him, his free translation to a jury of the legal phrase, "rectus in curia," which he gave as " coming into court head and tail up," was long remembered by the fun-loving generation of that day, and has descended as a bon mot in the profession. In 1816, he was elected President Judge of the Court of Common Pleas for this district. At the legislative session of 1818-19, charges were preferred against him calling for an investi- gation of his official conduct. They were referred to a committee, and the Judge published his address to the committee, in which he says: " To you, gentlemen, I submit my official conduct, and of you I solicit the most rigid

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inquiry and the severest scrutiny ;" concluding, " I neither ask nor desire any other justice at the bar of my country or Heaven, than that which I have contributed my best exertions to measure out to those whose rights have been confided to my hand." The committee reported in his favor, and after- ward he resigned, and returned to the practice of the law, at which he con- tinued with great success, as his reputation as a jury lawyer was co-extensive with the State.

In 1817, he was married to Aurelia Butler, daughter of Judge Butler. of Madison County, N. Y., at the residence of her brother-in-law, Richard Douglas, in Circleville, Ohio. He built, on Fourth street, Columbus, a resi- dence known now as the Whitehill property, at present the residence of Chauncey N. Olds, a leading lawyer of the city. He and Gustavus Swan, David Scott and David Smith were the first four lawyers, that located in Columbus after it was laid out in 1812.

Upon the resignation of Judge Parrish, Frederick Grimke was appointed to fill the vacancy until the next session of the General Assembly, and served throughout 1819; but as Judge Grimke was regularly elected at a later date, we will omit any further mention of him in this connection, and take up his successor.

John A. McDowell, son of Samuel McDowell and Ann Irvin, was born near Harrodsburg, Ky., May 26, 1780. He studied law, and served with distinction on the staff of Gov. Shelby in the war of 1812. At the battle of the Thames, in Upper Canada, the British commander, Gen. Proctor, escaped from the field of battle, leaving his carriage and personal baggage, which were captured. Among the spoils was a heavy old-fashioned silver watch, with a seal, which was presented to Gov. Shelby, who detached the seal and gave it to his aid-de-camp, Maj. John A. McDowell, who retained it, and often exhibited it in after life as a trophy. It is now in possession of his relative, Joseph Sullivant, of Columbus, who preserves it as a memento.

On November 9, 1809, he was married to Lucy Todd Starling, young- est daughter of Col. William and Susannah (Lyle) Starling, and at the solicitation of his brother-in-law, Lucas Sullivant, removed to Franklinton in 1815, or early in 1816, and became a prominent and successful lawyer. In 1819, he was appointed Prosecuting Attorney of Franklin County, and in the session of 1818-19 was a member of the Legislature. In 1820, he was elected President Judge for this judicial district, and died September 30, 1823. He was a fine-looking, handsome man, of great talents and very popular ; but his bright future was cut short by his early decease, leaving two surviving children to mourn his departure to that land beyond the grave.

His successor as Judge of this district was Gustavus Swan, son of John and Sarah (Mead) Swan, born July 15, 1787, at Petersboro, N. H. His means of early education were limited, as his parents were poor, but, by his own perseverance and exertion, he obtained an excellent classical, mathematical and scientific course of instruction at the Aurean Academy, Amherst, Hillsboro Co., N. II. Dr. Reuben D. Murrey, son of Dr. John Murrey, and who subsequently settled in the city of Boston. and be- came one of the most celebrated surveyors in the country, was a fellow- schoolmate. Judge Swan always said he was indebted to Dr. John Murrey's aid in his studies and encouragement more than than to any one else for his

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subsequent success in life. He studied law with Samuel Bell, a celebrated lawyer, at Concord, N. H., who was afterward Governor of the State, and was admitted to the bar in New Hampshire.

He first came to Marietta, Ohio, in 1810, and remained a year there, and was admitted to the bar of Ohio. In 1811, he came to Franklinton, then the county seat of Franklin, and commenced the practice of the law. His ability and industry soon gave him high professional reputation, and he was employed in all the important cases, which brought him in constant conflict with Beecher, Ewing, Irwin, Baldwin, Grimke and other dis- tinguished leaders of the Ohio bar, who then rode the circuit, and practiced in the courts held at the capital of the State. Judge Swan, in these legal contests, involving nice questions, under the old rules of pleading, and re- quiring a thorough knowledge of the land laws, especially in the Virginia Military District, soon took rank among the first at the bar. He was a dil- igent student and fine speaker, having great power with a jury, and his practice extended through Fayette, Madison, Union, Delaware, Pickaway and Fairfield Counties, where his name is still associated, in the traditions of the people, with the pioneer lawyers of his day. He was the first Repre- sentative elected by Franklin County to the Legislature, as soon as she was entitled to elect alone, in 1812, and was elected again in 1817. He was constantly engaged in the practice of his profession until 1823, when he was appointed by Gov. Morrow Judge of the Court of Common Pleas, in place of Judge J. Adair McDowell, deceased, and was elected by the Leg- islature, on its meeting, for the term of seven years, and was the Judge when the court was removed from Franklinton to Columbus, in 1824, and made an able one. In pursuance of the resolutions of the General Assem- bly, passed January 22, 1825, he compiled the land laws for Ohio, including the State laws to 1815-16, an invaluable publication to the practitioner. Ile was subsequently promoted to the bench of the Supreme Court.

In 1830, he resumed the practice of law in Columbus, to which place he moved his residence in 1815. He continued from that date in active practice until 1843, doing a lucrative and extensive business. By this time, he had acquired a large fortune. He had been President, from 1823, of the old Franklin Bank of Columbus, incorporated by the Legislature February 23, 1816, whose charter expired January 1, 1843. On the organization of the State Bank of Ohio, and its branches, under the act of February, 1845, the old Franklin Bank, on July 1, 1845, organized as one of its branches, Judge Swan was elected one of its directors, and afterward Pres- ident of the State Bank of Ohio, he being considered one of the ablest financiers in the State. The duties of the place required his whole time, in connection with his other large private interests, and he retired from practice.

The last time he appeared as counsel in court was in defense of Will- iam Clark, a convict in the penitentiary, tried for the murder of Cyrus Sell. one of the guards, by a single blow with a cooper's ax. He was tried at the December term, 1843, of the Supreme Court of Franklin County, reported in the eighth volume of the Ohio State Reports, and convicted of murder in the first degree, and hung on February 9, 1844, with a female colored conviet, Esther, who had killed another prisoner. The defense was insanity, and there was an array of eminent counsel on both sides. Judge

3 . Cel an 2.

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N. H. Swayne conducted the prosecution, examining the medical experts for the defense, including his own family physician. Judge Swan, who had been generally successful in criminal cases; put forth his full powers, and confidently remarked, it is said, that he had never had a client hung in his life, and if Clark was, he never would put his foot in the court house again, as a lawyer ; and he never did, unless on his own business.

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The history of Madison County, Ohio, Part 40

Author: Brown, Robert C; W.H. Beers & Co., pub Publication date: 1883 Publisher: Chicago, W.H. Beers & co. Number of Pages: 1180

Author: Brown, Robert C; W.H. Beers & Co., pub
Publication date: 1883
Publisher: Chicago, W.H. Beers & co.
Number of Pages: 1180