History of Northumberland County, Pennsylvania, Part 23

Author: Bell, Herbert C. (Herbert Charles), 1868- ed; John, J. J., 1829-
Publication date: 1891
Publisher: Chicago, Brown, Runk
Number of Pages: 1424

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08. ment to the plaintiff for the sum of twenty-five pounds and three shillings.

Wils[on] William McCall.

Acknowledged the 27th

day of May, 1772, before me,

Wm. Maclay.

Jasper Scull Debt sans breve. The defendant in this action, (by Ed-

08. ward Burd, his att'y,) confesses judgment to the plaintiff

Burd.

Daniel Rees. for the sum of forty-three pounds, fourteen shillings.

Acknowledged this 12th day

of July, anno Dom. 1772,

before Wm. Maclay.

The second term opened on the fourth Tuesday in August, Justices Plunket, Hunter, Lemon, Moodie, and Potter, presiding. The first entry on the docket is the case of James Patton vs. James Gaily, Magaw for plaintiff, Wilson and North for defendant. The second case is an action for eject- ment brought by the lessee of Samuel McCroskey against Robert King, Wilson for plaintiff and Burd for defendant. The first application of the arbitration system occurs in the case of Michael Rega vs. William Blyth, Huck for plaintiff and Wilson for defendant, in which all matters at variance were referred to John Brady, Samuel Maclay, and George Wolf, who found for the plaintiff a balance of five pounds, eleven shillings, eleven pence half- penny. The causes entered upon the docket at this term are numbered to thirty-three, but it does not appear that many of them came to trial. In several instances no proceedings whatever are recorded, and a majority of the causes were continued to the following term. The names of Magaw, Wilson, Burd, Huck, North, Hartley, Weitzel, Robison, and Stedman appear as attorneys in connection with the causes entered at this term. Thomas Hartley, Casper Weitzel, Andrew Ross, and James Whitehead were admitted to the bar. The minutes are entered in a book; those of the preceding term were recorded on detached sheets of paper, and never transcribed to a more

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permanent receptacle. The minutes appear to have been somwhat neglected during the following years, but the appearance and continuance dockets are practically complete from the organization of the county.

But meager information is afforded regarding the early procedure of the common pleas court. Although the judges were not learned in the law, they were doubtless familiar with the practice in England and in the older coun- ties, while the presence of a respectable number of attorneys supplied what- ever deficiency of legal erudition may have been apparent in the bench. The prothonotary was evidently well qualified for the duties of his position, to which a relatively greater degree of importance attached at that early date than at a later period. It is not probable that the business of the court required any special rules for some years after the organization of the county; if any such were formulated it is not mentioned in the records.

At May term, 1789, in order to remedy the "manifest delays " and "great injustice done to suitors ..... by reason of the uncertainty of levies made upon writs of fieri facias," it was made a standing rule that in making return of an execution the sheriff should annex thereto a schedule of the property levied upon. At August term, 1789, "for the better regulating the practice of the court of common pleas in the county of Northumberland," the following rules were adopted :-

It is ordered by the court that for the future upon all judgments entered up, when the defendant shall not come forward at the return day of the writ of execution to complain of any irregularity in the judgment and execution, or to suggest any defense he may have, such judgment shall remain, and not be thereafter stirred.

And in all cases where there has been an appearance, and judgment has been entered by consent of defendant's attorney, or in cases of judgment by default, and such judgments have remained four terms, no motion shall be received in order to open such judgment.

And in order that the defendants may not be surprised, the sheriff, in all cases of a levy by virtue of any writ of fieri facias shall give notice to the defendant, or if ab- sent, leave notice at the last usual place of his residence, with a schedule of the prop- erty levied under penalty of an attachment.

The court further order and direct that an issue list be formed of the causes in- tended to be tried of a precedent term to the trial, and that the causes so put down for trial shall have a preference of all other causes, and shall not be put off but for some legal reason; and that the issue list so made shall be affixed in some public place in the prothonotary's office for the inspection of the parties concerned, in order to prevent a surprise; and that the causes so marked for trial in the issue list shall be considered in the same point of view as a cause ordered up by distringas at nisi prius, and be subject to the same rules and regulations, except as to serving written notice on the attorney; and in order to prevent any unnecessary expense in attending suits, the party, plaintiff or defendant, who so puts down his cause for trial, shall, if he does not bring on his cause for trial, pay all costs of the term.

Provision for an argument court was first made at November term, 1799, when the prothonotary was directed to prepare an argument list as well as a trial list, and Saturday of each court week was set apart "for hearing and determining arguments."

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HISTORY OF NORTHUMBERLAND COUNTY.

The earliest printed code of rules applying to the courts of this county that has come to the knowledge of the writer was published at Philadelphia in 1801 by William Young. The rules of the Supreme court, circuit courts, and courts of common pleas are published in the same volume; the "rules and orders for regulating the practice of the courts of common pleas" were established by the presidents of the several districts, but by what means this concert of action was secured is not stated. The various subdivisions relate to attorneys, security for costs, bail, certiorari, jury, judgment, declaration- plea, trial, witnesses, and arguments. Judge Rush was then president of the Third district, in which this county was embraced, and this code was proba- bly in force throughout his administration and that of his successor, Judge Cooper.

Judge Chapman instituted several changes immediately after his acces- sion. Perhaps the most important was that relating to the preparation of the trial list. The following minute occurs under date of August 31, 1811 :-

On consultation with the bar, the following regulations are established respecting the trial of causes, viz .:-

First .- That the remnants of the trial list, together with the additional causes or- dered for trial, be placed upon the list hereafter according to their seniority, subject, however, to the second regulation;

Second .- That fifteen causes be selected by the gentlemen of the bar, which fifteen are to be ready for trial on the Thursday of the first week.

A new code of rules, the first relating specially to the Eighth district, was compiled under Judge Chapman's supervision and printed by Andrew Kennedy & Son at Northumberland prior to April, 1814. This is a small pamphlet of twenty-six pages, and elaborates somewhat upon its predecessor of 1801.

A considerable period elapsed before the rules of court were again com- piled and published. On the 16th of April, 1836, upon petition from the bar of Northumberland county, Messrs. Bellas, Jordan, and McDonald were appointed a committee to revise and collate the rules of court for the Eighth district. Whether they acted in conjunction with similar committees from the other counties of the district or performed the work independently can not be satisfactorily ascertained, but in the following year a new edition of the rules was published at Williamsport by Eck & Eldred. This was done under Judge Lewis's auspices, and, with subsequent emendations and additions, this compilation was the authoritative manual of practice during his incum- bency and that of his successors, Judges Donnel, Anthony, and Pollock. A new code was formulated upon the accession of Judge Jordan; it was pub- lished in 1852. A revised edition, embodying the modifications and additions of the intervening period, was printed in 1867. The present "Rules of prac- tice in the several courts of Northumberland county," compiled by Charles M. Clement under the direction of the court, were adopted, January 21, 1878, six years after Judge Rockefeller's elevation to the bench.

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THE BENCH.

Justices from 1772 to 1790 .- The following justices were commissioned for Northumberland county under the provincial regime :-

William Plunket, March 24, 1772.

Benjamin Weiser, March 24, 1772.

William Patterson, 1773.

Michael Troy, 1773.

John Fleming, 1773.

Samuel Maclay, July 29, 1775. John Simpson, July 29, 1775.

Robert Robb, July 29, 1775.

Evan Owen, July 29, 1775.

John Weitzel, July 29, 1775.

Henry Antes, July 29, 1775.

The following justices were appointed by the Provincial Convention of 1776, which exercised the function of a provisional State government; (as there is a hiatus in the minutes of the court from May, 1776, to November, 1777,* it can not be positively stated that they transacted any legal busi- ness) :-

Samuel Hunter, September 3, 1776. James Potter, September 3, 1776. William Maclay, September 3, 1776. Robert Moodie, September 3, 1776. John Lowdon, September 3, 1776.

Benjamin Weiser, September 3, 1776. John Fleming, September 3, 1776. Henry Antes, September 3, 1776. John Simpson, September 3, 1776.

Under the constitution of 1776 the following justices were commissioned for the term of seven years :-

Thomas Hewitt (President), June 9, 1777.

Samuel Hunter, June 9, 1777.

Robert Crawford, June 9, 1777. John Weitzel, June 9, 1777. Robert Martin, June 9, 1777.

Michael Troy, June 9, 1777.

Samuel Allen, June 9, 1777.

John Livingston, June 9, 1777. William Maclay, June 11, 1777. David Harris, September 14, 1777. Frederick Antes (President), Novem- ber 18, 1780. Laurence Keene, January 19, 1784. Alexander Patterson, May 24, 1784. William Maclay, January 24, 1785. William Shaw, January 24, 1785.

John Aurand, June 9, 1777. William Shaw, June 9, 1777. William Irwin, January 27, 1785.

*On the 25th of August, 1778, the justices addressed a memorial to the Supreme Executive Council, representing "That this being the second court at which no State's attorney appeared, many persons have been admitted to bail who ought to have heen tried .. ; that the long suspension of justice in this county from February, 1776, to November, 1777, had rendered the people licentious enough, and a further delay of executing the laws must lead them to lengths perhaps too difficult to he recalled; that even tippling houses, the notorious promoters of vice and immorality and audacious opponents to law and order, remain unpunished." etc .- Pennsylvania Archives, Vol. VII. pp. 72-73.

Turbutt Francis, March 24, 1772. Samuel Hunter, March 24, 1772. James Potter, March 24, 1772. William Maclay, March 24, 1772. Caleb Graydon, March 24, 1772. Benjamin Allison, March 24, 1772.

Robert Moodie, March 24, 1772. John Lowdon, March 24, 1772. Thomas Lemon, March 24, 1772. Ellis Hughes, March 24, 1772.

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HISTORY OF NORTHUMBERLAND COUNTY.

Simon Snyder, January 27, 1785.

Samuel Wallis, March 1, 1785.

Robert Fleming, March 1, 1785. William Montgomery (President), April 7, 1785.

John Kelly, August 2, 1785.

Abraham Piatt, January 21, 1786.

Eli Mead, July 14, 1786.

William Cooke, October 3, 1786.

John Simpson, March 10, 1787. Samuel Weiser, October 30, 1787. Christian Gettig, November 2, 1787. Joseph Jacob Wallis, November 2, 1787.

George Hughes, February 26, 1788. John Weitzel, June 19, 1789. William Hepburn, July 2, 1789. Jasper Ewing, July 29, 1789.

The foregoing list is based principally upon that given in Volume IIId of the Pennsylvania Archives, Second Series. It is not entirely complete, how- ever, as the local records show that David Mckinney and Matthew Smith officiated as justices in 1780 and John Buyers in 1783-86; the latter fre- quently presided in the quarter sessions.

President Judges .- During the colonial period the presiding justice was chosen by his colleagues, and does not appear to have enjoyed any particular distinguishing title. Section VIth of a law passed on the 28th of January, 1777, for the organization of the courts under the constitution of 1776, pro- vided "That the president and Council shall appoint one of the justices in each respective county to preside in the respective courts, and in his absence the justices who shall attend the court shall choose one of themselves president for the time being."

The title of "president of the courts " appears in the constitution of 1790; it was superseded in popular usage by that of "president judge" within a comparatively brief period, and the latter occurs in the constitution of 1873. Under these various titles the succession in Northumberland county has been as follows :-

William Plunket, 1772-76. Thomas Hewitt, 1777-80.

Ellis Lewis, 1833-43. ·

Charles G. Donnel, 1843-44.

Frederick Antes, 1780-85.

Joseph B. Anthony, 1844-51.

William Montgomery, 1785-91.

James Pollock, 1851.

Jacob Rush, 1791-1806.

Alexander Jordan, 1851-71.

Thomas Cooper, 1806-11. Seth Chapman, 1811-33.

William M. Rockefeller, 1871, present incumbent.

Though not required to be learned in the law, the presiding justice during the colonial period and under the constitution of 1776 was usually a man of larger intelligence than his colleagues, and was expected to be present at every session of the court, while attendance on their part was largely optional. In the transactions of the early courts of this county there was little oppor- tunity for the exercise of legal acumen or the application of forensic erudi- tion, and a bench of this kind, composed entirely of laymen, was well adapted to the people and the times. Deliberative judgment, fairness of purpose, and integrity of action were sufficient qualifications in the members of the court

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at the period when local litigation did not yet embrace the perplexing ques- tions relating to land tenure, corporations, and kindred matters that engage the attention of the courts so largely at the present day.

William Plunket presided over the county courts under the colonial regime. He was a physician by education and profession, and a biograph- ical sketch occurs in the chapter on the Medical Profession in this work. Of the twelve justices commissioned on the 24th of March, 1772, he was proba- bly the only one who had personal knowledge of the methods of procedure in the English courts, and on that account was probably chosen to preside. In administering the criminal law, his sentences were characterized by great severity. He presided over the courts for the last time at May sessions, 1776.

Thomas Hewitt, the first president of the courts under the constitution of 1776, resided in Chillisquaque township, where a tract of three hundred eight acres was surveyed to him in pursuance of warrant dated June 12, 1773. It is probable that he continued to reside there for some years; in 1789 he was assessed with three hundred acres of land and a grist and saw mill, and was, with a single exception, the largest tax-payer in the township. In 1772 he was one of the first county commissioners, and held that office several years; in 1776 he was elected to the Assembly; on the 8th of July in that year he was one of the judges at an election held at George McCand- lish's for members of the Constitutional Convention; he was a member of the Committee of Safety in 1776-77; and on the 9th of June, 1777, he was appointed a justice of the courts, over which he presided from November in that year until 1780.

Frederick Antes was from Philadelphia county, which he represented in the Provincial Conferences of June, 1775, and June, 1776. The date and circumstances of his settlement in Northumberland county are not known, but on the 18th of November, 1780, he was commissioned as president of the courts, and it is fair to presume that he had resided in the county for some time prior to that date. In the same year he was appointed commissioner to receive forage and supplies at Sunbury and Wyoming. In February, 1782, he became treasurer of the county, which office he filled almost contin- uously until 1801. He was elected to the Assembly in 1784, 1785, and 1786. His residence was at Northumberland; Priestley mentions him in his "Mem- oirs," referring especially to his mechanical ingenuity in assisting him to devise apparatus for his chemical experiments. He died at Lancaster, Penn- sylvania, September 20, 1801 .*

* The following obituary appeared in Kennedy's Gazette: "Died at Lancaster on Sunday, the 20th of September, in the seventy-third year of his age, Frederick Antes, treasurer of this county : and on Monday his remains were interred in the Presbyterian burial ground of that place. In him his wife has lost a good husband, his children an indulgent parent, and the public a very useful member of society. Previous to his decease he was one of the two persons who had undertaken to clear the river Susquehanna."

On the 12th of June, 1796, as ascertained from the same paper, Miss Catherine, daughter of Colo- nel Frederick Antes, married Simon Snyder, of Seliusgrove, who was Governor of Pennsylvania from 1808 to 1817.

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HISTORY OF NORTHUMBERLAND COUNTY.

William Montgomery was one of the most prominent citizens of old Northumberland county, whether his military, political, or business career be considered. Born in Chester county, Pennsylvania, August 3, 1736, he entered public life as a delegate to the Provincial Conventions of January and June, 1775, serving also in the Conference of June, 1776. He was col- onel of the Fourth battalion of Chester county militia, which he commanded at the battle of Long Island in 1776 and during the march across New Jer- sey, after which it became part of the "flying camp." In 1774 he purchased a tract of land at the mouth of Mahoning creek, embracing the site of Danville, Montour county, Pennsylvania, and removed thereto in 1777. He was elected to the Assembly in 1779, 1780, 1781, and 1782, and became a member of the Council of Censors in 1783. In 1784 the Assembly elected him to Congress, but he resigned in the following year, and on the 7th of April, 1785, was commissioned as president of the courts of Northumberland county, retiring from this office in 1791. September 27, 1785, he was appointed one of two commissioners to lay off part of the purchase of 1784 into districts; June 24, 1785, member of a commission for the improvement of the Susquehanna; April 18, 1785, deputy surveyor; July 23, 1787, mem- ber of a commission for adjusting the claims of Connecticut settlers in Penn- sylvania, and, July 18, 1801, associate judge of Northumberland county, serving until the erection of Columbia in 1813. In 1790 he was elected to the first Senate of Pennsylvania. He was a pioneer in the establishment of mills and factories and the opening of roads, and was identified with nearly every project of his day for the development of central Pennsylvania. He died at Danville, May 1, 1816, and is buried in the cemetery at that place.

Jacob Rush was the first judge for Northumberland county, " learned in the law." He was born in Byberry township, Philadelphia county, Penn- sylvania, in 1746, and was a descendant of John Rush, a captain in Crom- well's army, who immigrated to America in 1683. The death of his father in 1753 left him an orphan at the age of seven years, but a moderate inheritance enabled him to obtain a liberal education; in 1765 he graduated at Princeton, where he was a classmate of the Rev. James Waddell, the blind clergyman to whose eloquence Attorney General Wirt renders such a flattering tribute in his "British Spy." He was in active service in several campaigns of the Revolutionary war. In September, 1777, he was admitted to the bar at Philadelphia, where he rose rapidly in his profession and early reached the favorable notice of leading men of the day through the influ- ence of his brother, Dr. Benjamin Rush, a signer of the Declaration of Inde- pendence. He was a member of the Provincial Convention held at Phila- delphia in January, 1775, and represented Philadelphia county in the Assem- bly in 1779-80. On the 26th of February, 1784, he was commissioned a justice of the Supreme court of Pennsylvania; he also served as a member of the high court of errors and appeals prior to the adoption of the consti-

Im D. Rockefeller

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tution of 1790. In 1791 he was appointed president of the courts of the Third judicial district (composed of the counties of Northumberland, Northampton, Berks, and Luzerne as erected by the act of April 13, 1791), and presided over the quarter sessions at Sunbury for the first time, November 21, 1791. To this position he brought a judicial experience probably unequaled by that of any of his successors upon their accession to the bench. He continued to perform the duties of his extensive district (which, in 1801, embraced Lycoming and Wayne counties in addition to those mentioned) until January 1, 1806, when he was commissioned president judge of the court of common pleas for Philadelphia county. In this position he remained until his death, January 5, 1820.

David Paul Brown, a practicing attorney of Philadelphia county forty years and author of " The Forum," gives his estimate of Judge Rush in the following language :--

He was a man of great ability, and great firmness and decision of character. He was also an eloquent man. Perhaps there are few specimens of judicial eloquence more impressive than those which he delivered during his occupation of the beuch. An accurate idea of his style may readily be formed from an extract from his charge to the grand jury in 1808, and his sentence pronounced upon Richard Smith for the murder of Corson in 1816. We refer as much to the high moral tone of his productions as to their literary and intellectual power. Some of his early literary essays were ascribed to Franklin, and for their terseness and clearness were worthy of him. Judge Rush's charges to the jury generally and his legal decisions were marked by sounduess of principle and closeness of reason. Having been a judge of the Supreme court and of the high court of errors and appeals, he never appeared to be satisfied with his position in the common pleas; yet, his uprightness of conduct and unquestionable abilities always secured to him the respect and confidence, if not the attachment, of his associates, the members of the bar, and the entire community. He was one of the gentlemen of the old school, plain in his attire, unobtrusive in his de- portment, but, while observant of his duties toward others, never forgetful of the re- spect to which he himself was justly entitled.

As an author his works include: "Resolves in Committee Chamber, De- cember 6, 1774 " (Philadelphia, 1774); "Charges on Moral and Religious Subjects " (1803); "Character of Christ " (1806); and "Christian Baptism " (1819). In Reed and Dickinson's controversy regarding the character of Benedict Arnold, he espoused the cause of the latter. A novel, "Kelroy," was written by his daughter, Rebecca (Philadelphia, 1812). His name is perpetuated in local geographical nomenclature as the designation of one of the most important townships of Northumberland county.

Thomas Cooper was commissioned president judge of the Eighth district (to which Northumberland, Luzerne, and Lycoming counties were assigned by the act of February 24, 1806), March 1, 1806. He was a native of Eng- land, born at London in 1759 and educated at the University of Oxford. He also studied medicine and law, and, as evidenced by his after pursuits, made chemistry a subject of special attention. In this his investigations doubtless

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HISTORY OF NORTHUMBERLAND COUNTY.

derived inspiration from his acquaintance with Doctor Priestley. Cooper was a resident of Manchester, England, in 1789, when, according to Binns's " Recollections," he went to Paris as the colleague of Watts, the inventor of the steam engine, to represent the Manchester Philosophical Society in the French Convention. His reply to Burke's " Reflections on the French Revo- lution " brought him into collision with the authorities; considerations of personal safety led him to seek a residence in America, and, with others sim- ilarly circumstanced, among whom was the son of Doctor Priestley, he planned " a large settlement for the friends of liberty in general near the head of the Susquehanna in Pennsylvania."* In 1793 he removed to the United States;t although the proposed settlement was abandoned, the project brought him to Northumberland, and there he resided during his subsequent connection with affairs in this county. At November sessions, 1795, on motion of Daniel Smith, he was admitted to the bar of Northumberland county. Stewart Pearce says that he was a man of learning, and " in advance of the age in his knowledge of minerals and geology. He carried with him a hammer and acids, breaking rocks and testing their mineral qualities, and was supposed by some ignorant persons to be, on that account, impaired in intellect. He was the firm friend of freedom, and his bold pen caused his imprisonment under the Alien and Sedition laws. After his liberation Governor Mckean appointed him one of the commissioners to carry into effect the Compromising law of 1799 and its supplements. To his energetic action were due the quiet and harmony that speedily ensued in this long troubled and unhappy coun- try."} His personal appearance and professional characteristics were thus described by Charles Miner in 1800: "Short, rotund figure, stooping for- ward; has a florid, high, English countenance and complexion. His forte is, to seize two or three strong points and present them forcibly to the court and jury. He never wearies by long speeches; never uses a word, or an illustra- tion, or an argument that is not to the purpose; a man of extraordinary en- dowments and of most distinguished genius."§

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History of Northumberland County, Pennsylvania, Part 23

Author: Bell, Herbert C. (Herbert Charles), 1868- ed; John, J. J., 1829- Publication date: 1891 Publisher: Chicago, Brown, Runk Number of Pages: 1424

Author: Bell, Herbert C. (Herbert Charles), 1868- ed; John, J. J., 1829-
Publication date: 1891
Publisher: Chicago, Brown, Runk
Number of Pages: 1424