The twentieth century bench and bar of Pennsylvania, volume I, Part 73

Author:
Publication date: 1903
Publisher: Chicago, H. C. Cooper, jr., bro. & co.
Number of Pages: 1102

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gallon of whisky, fresh from the still, be- cause the rattlesnakes were numerous and vicious.

There is one fact in connection with the warrants and surveys on both the Kittatinny (Blue) and Tuscarora mountains which puz- złed me for forty years, until 1885, when it was solved in an ejectment case I was trying . in Snyder county for land on the Shade mountain. These warrants ranged around 1796, at which time these mountain lands were without any commercial value-no man would give one dollar for 1,000 acres. The timber was stunted, as it always is on the Medina sandstone composing these mountains, and even had it been well tin- bered, not a stick growing in 1796 could reach a market anywhere-no canal, no rail- road. Why, then, did these warranties pay the cash government price ?

I learned on the trial in Synder county, by the report of his agent and surveyor, of a Philadelphia owner of thirty tracts, that al- though the lands were then (1833) valueless, yet if coal was discovered, as the agent thought nearly certain, they would become very valuable. The lands on the Shade mountain were warranted about 1798. Again, in trying an ejectment in Sunburry, in November, 1893, the warrant under which we claimed title for the Northern Central railroad, was issued to Andrew Shuber, July 1. 1784. The land was coal-bearing, and mining was going on at the time of the trial. I was personally on the land, and the entire 470 acres was simply a field of conic sec- tions, not one acre could be farmed, nor room to plant a bed of onions, and no tim- ber. Now, why did Shuber pay money for this worthless land if, as is asserted, coal was not discovered in the Wyoming valley until 1812? Coal was known and used in England, A. D. 800, burned in London in 1240, in 1180, and in France it was discov- ered during the Roman occupation, and it is about certain that in the cuts by streams

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through the mountains coal would erop out, and although of no value at that day, for want of means of transportation, still far- secing men could reasonably count on a time when it must be used.

Now these Philadelphia speculators, being utterly ignorant of gencology, in tracing these mountains, would follow them across the Susquehanna river, and seeing what they supposed was their extension up into the coal regions, concluded that they were coal bearing; whereas, in faet, the mountains they did see, were the younger Pocono, and the old mountains that they had taken up on warrant lay buried miles deep under the eoal formations, and this explains why the valueless mountains were taken up before the plains and level valleys.

, Samuel Alexander practiced at the Perry bar, though living in Cumberland, up until he died, in 1845. He was a man of extraor- dinary ability, and had the faculty of taking an erroneous position and binding it abont and about, with the cords of illustration and argument, and dash it at a judge with im- mense energy.

In defending a man in a eriminal court he averred that the common law was made for common people, and that his elient was the commonest kind of a fellow and should be . in 1834, he went with Henry Burtorff, the aequitted.

At one time the judges of the supreme court held eircuit eourts for jury trials in the different counties of the state. Among other supreme judges was Frederick Smith, of Lancaster Dutch extraetion, with a slight Dutch flavor in his English, and Alexander had gone to Lewistown to try an ejectment for the widow Wilson, to recover a val- mable hotel, on the eenter square. Judge Smith was presiding. When Alexander opened his case for the widow. his appeal on her behalf was so energetic, and he played upon the sympathies of the court and jury until Judge Smith shed tears, and when Alexander closed his opening Judge Smith

looked down and said: "Mr. Alexander, if you can prove one-half of what you said, I never will allow a jury to bring in a verdiet against the widow Wilson." Whereupon some wag of a lawyer suggested to Alex- ander that he had better rest.

Andrew Carothers practiced at the Perry bar up to 1835, and the first lawyer I ever heard address a jury was Carothers. When a boy about twelve years old I wandered into the court room for the first time and saw a man sitting on a chair with maps and papers on a table before him, talking to twelve men in a box without a lid, about lines and trees and corners and stone piles. and this was Andrew Carothers arguing a suit in ejeetment. He had been poisoned in his youth by Mary Clark, a servant girl in the family. who was afterwards convicted of murder (some of the family had died) and hung, and he could not stand up to address a jury.

If you look into Rupp vs. Eberly, 79 State Reports, p. 141, you will find that it was held by the supreme court to be an executory de- viee. When the ease was tried before me a witness by the name of Merkle, an aged, in- telligent man, was called, and he said that after the death of the testator. John Rupp, husband of Elizabeth, only ehild and heir at law of John Rupp, the testator, to see Carothers for advice and construction of the will; that Carothers instrueted them that if no more children (they had then only one, Mary) the farm belonged to Elizabeth Burtorff. wife of Henry, and only child of testator. but that if another, or more chil- dren, were born. she would lose the farm, and the title would then rest in Elizabeth's daughter, Mary, and the after-born children as tenants in common. I was so perplexed to discover the reasons for Carothers' in- struction, that I interrogated the witness myself, having every confidence in Caroth- ers' opinion. But the witness said that

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Carothers gave no reason, but simply had told them to have no more ehildren, which they strictly obeyed, and the exeeutory de- vise never took effeet. Had any one said "executory devise," the whole thing would have instantly flashed upon my mind, but as it was I erred, and was reversed; still the testator never intended any such result. I only cite the case to show what an astute lawyer Mr. Carothers was.

Frederick Watts practiced at the Perry bar at least from 1830 until 1852. He was a very able practitioner, skilful in handling his cases, an able speaker, in full praetiee always, and of all the men I ever listened to, before a jury, I considered him the most ef- feetive. When he said "Gentlemen of the jury," all beeame hypnotized, and no one moved or spoke, nor withdrew his eyes from his handsome, dignified countenance; in fact, he faseinated all who heard him. To listen to him addressing a jury was to us all a dream of eestasy, only broken when he eeased. I have heard many, more eloquent, who lacked his magnetism. He was judge of this district from 1849 to 1851, and was a son of the David Watts before mentioned.

James H. Graham also practiced at the Perry bar until 1851, when he was elected judge, and continued judge until the fall of 1871. He was a very able man, a fine ejeet- ment lawyer, and in every way a dangerous opponent, and successful practitioner. He often told me that the most interesting ejeet- ment ever tried in the distriet was the case of Power vs. Darlington, an ejectment brought by a girl twelve years old, the issue in tail of John Power the tenant in tail, un- der the will of her grandfather, William Power, who owned 600 acres of land above the county seat, with improvements on 400 acres. The testator by his will divided the 600 acres into three farms, two with im- provements, and one of 200 acres cleared, but without buildings, devised a farm to each of his three sons, George, Washington

and William, by words creating a strict teeh- nical estate tail, in each devise. At the eon- elusion he said that his desire was that these farms should not pass out of the name of Power. This was construed by counsel that they eould sell to one another, but not to strangers. This advice was error, as a striet entailment could not be barred in that way. William conveyed his 200 acres to his brother John, in fee simple, and with general warranty, in 1835, and without barring the entailment, under the aet of 1799. William took the money, and going west, invested it in a lot in the city of Davenport, 66 feet on three sides and forty feet on the other, with two houses thereon, and of the value of $5,000, and in 1857 died, leaving one child, a daughter, the plaintiff. John Power had conveyed the loeus in quo to James Power, with general warranty, and James Power conveyed the same to Wilson Darling- ton, also with general warranty, and the issue in tail sued Darlington for the entire 200 aeres. I took hold of the defense and purposed to defeat the issue in tail by the warranty of her father; that is, she was liable to answer the warranty of her father, and the law barred her, because if she did recover the land it would be taken from her to satisfy the warranty, the war- ranties being eovenants real running with the land. Darlington owned them and could sue upon them if evieted. The common law barred the issue in tail, without assets de- scending from the tenant in tail; but this often proved a hardship, hence was passed the statute of the 6 of Edward I, chap. 111, A. D. 1278, which provides that if no herit- age deseend from the warranting aneestor the heir shall not be bound to answer the warranty, and if any heritage does descend the heir shall be barred for the value of the' heritage that is to him descended. Roberts' Digest, p. 210. In 1796, or thereabouts, the same principle of bar was applied at York by the three judges of the supreme court, in

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a case of collateral warranty; but ours was lineal warranty, which cut closer to the blood heir. Upon proof that the land in Davenport, Iowa, was, in 1857, when the tenant in tail died, equal in value to the lands in dispute at that time, Judge Graham promptly applied the English law of entail- ments and instructed the jury to find for the defendant, and the Darlington heirs, or their alience, holds the lands to this day. Again, we eontended that the issue in tail eould not reeover, because the tenant in tail, having conveyed in fee to his brother John, in 1835, there was adverse possession in the defendant and those under whom he elaimed for over twenty-two years, which would bar the tenant in tail's right of entry, cut off the inheritance, so that when he died in 1857 there was no inheritance to descend to the issue in tail, as held in Baldridge vs. McFar- land, in 2 Casey (26 St.), p. 338. Every occu- pier of land, who claims to occupy for himself, and not in subordination to an- other's title, is an adverse holder, within the Statute of Limitations, no matter how he acquires the possession.

Samuel Hepburn practiced at the Perry bar after 1848; was judge of the district from 1838 to 1848; was a rapid, quiek and efficient judge, and a troublesome opponent at the bar.

About 1855 the members of the Perry bar, who were to the manor born, and others who had loeated there, asserted themselves, had beeome strong enough to try their own causes, and emaneipated themselves from the thraldom of the Cumberland bar and sue- eeeded in a few years in drawing the entire practiee of the county, and after that the Carlisle lawyers came no more.

Of the attorneys who commenced with the new eounty was Benjamin McIntire, who died in 1883, and enjoyed a large practice. He was not a speaker, but an industrious preparer, and a careful business man, and practieed fully half a century.

Hon. Charles J. T. McIntire, son of above, eame to the bar about 1847, and was a man of brilliant talent, and a fine speaker. He prepared his cases with unusual care, and it was a pleasure to try his causes, because he never asked a judge to jump over a gap or broken link in the chain of proof like a frog, but had the entire way macadamized, the streams and ravines all bridged, so that the judge passed over the way with enjoyment, instead of perplexity. He was state senator for this district, and died in 1885.

Abner Harding was a resident practitioner for several years, was sharp, shrewd and a money-making lawyer, moving along quickly but buttonholing every man that could eommand a dollar. Ile moved to Illi- nois prior to 1844, became a contractor in building the Illinois Central railroad, and made a large fortune. He commanded an Illinois regiment at the battle of Fort Don- aldson, where he won great military fame.

James McFarland settled in Perry county in 1843, was admitted to the bar, practieed successfully, was an able and painstaking lawyer. He married Miss Overton, of To- wanda, who prevailed upon him to leave Perry in 1853, and settle in said town. He turned his attention to the geology of coal, and wrote the artiele on coal for the Ameri- can Cyelopedia, which displays great re- search, learning and ability. He also pub- lished a large volume on eoal, which gives new ideas as to its origin and composition ; also, he published a Traveler's Hand Book, which told the traveler the particular geo- logical formation, at every railroad station in the state. He died about ten years ago.

The Perry county bar is among the strongest in the state, and has several ex- perieneed lawyers.

William A. Sponsler came to the bar in 1846, and immediately entered upon a luera- tive practice. He was a man of great per- sonal magnetism, a skilful nisi prius jury lawyer, resourceful in utilizing facts, and

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rendering his case plausible and likely, had great weight with a jury and was very suc- cessful with his cases. He died in 1897.

William H. Sponsler, a son of the above, came to the bar and immediately developed great foree and skill in his profession, had marvelous industry and research, threw him- self into a case with intense energy, was sin- gularly fortunate in results and rose rapidly to position and fame. I know no man to whom I would sooner trust a cause. He is now located in Pittsburgh.

William N. Seibert came to the bar in 1869, and immediately commenced making reputation as a practitioner and advocate. He is a man of great industry, creeps over a case like a beetle, feeling every bump and depression and inequality, until he diseovers all that is in it, then handles the result of his industry with skill and judgment on the trial, and enjoys a luerative practiee.

William S. Siebert, son of the above, came to the bar in 1894, and as a young lawyer has made a reputation by his strict appliea- tion to business. He is the solieitor of the county commissioners.

Hon. Charles H. Smiley is to the manor born, has been a member of the state senate with distinetion, has been thirty years at the bar, enjoys a large practiee, tries cases with prudenee and skill, a hard worker, up to the fore in his duties as a citizen, and ranks as an elder among his more youthful com- petitors.

Hon. James W. Shull is to the manor born, came to the bar in 1887 and at onee stepped into a good general praetiee, was diligent, prompt, with excellent judgment and dis- played great skill in the preparation and trial of cases. He was elected president judge of this (41) district in 1901, and is rapid, thorough, fair, eourteous, kind, and gives promise of great usefulness in his judi- cial eareer.

James M. Sharon is a Juniata county man, and is located in Perry, at Newport, six

miles northeast of the county scat. He was admitted to the bar and is energetie and ef- fieient in his profession, has great natural ability with diligent industry, and has risen rapidly. He is at present district attorney of Perry county.

Luke Baker, who is ealled after the apos- tle of that name, was admitted to the bar in 1893, and has displayed great industry, and . tries his own cases unassisted, with alınost uniform success. He will rise rapidly in his profession.

Ex-Judge Barnett came to the bar in 1857, and is also to the manor born, was judge of this (41) distriet from 1882 until 1902, is a powerful reasoner, deeply versed in the prin- ciples of law and equity, is very learned and a fine classical scholar and mathematician, walks with the agility of a rope-dancer, a perfeet gentleman in his intereourse with others, has a large fund of mother wit, is most happy in his repartee, but says nothing in maliee. He made an exeellent judge, was quiek to comprehend and master the faets, and always ready to apply the law. Except myself he is the oldest member of our bar.

James M. Barnett, son of the above, was admitted to the bar in 1892, has risen to a leader at nisi prius with great rapidity, and is an able reasoner, well grounded in the elementary principles of law, familiar with the statutes, draws his documents and rec- ord papers with great aeeuraey and neat- ness, is eool, unexcitable and addresses a jury with direetness and foree. He is his father's partner in the praetiee.

James M. McKee is also a native of Perry county, and eame to the bar in 1898. He is a young man of good habits, affable, pains- taking, accurate in business, competent and laborious, is gathering a practice rapidly, and at this time is deputy distriet attorney, and has exhibited great skill in condueting eriminal proseeutions.

Jacob L. Markle, also to the manor born, was admitted to the bar in 1884, and has

B. J Junkin.

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ever since been employed in handling and working up a large praetiee. He is a man of great ability, and as a criminal lawyer un- doubtedly leads the bar. He is fortunate in results, his luek being proverbial, renders him generally sueeessful. He is a fine orator; charging the jury with grape and eanister, in quiek sueeessive shots, they have no time to analyze their aeeuraey or question the truth of his assertions.

George B. Roddey, also a native of the county, was admitted in 1898. He is a fine Greek seholar, was a tutor of Greek in Prineeton college, has been a great traveler through Greeee and historie and classical countries, walked over them on foot, living on the stinted fare of the country, walked over the mound of Marathon, has an analy- tieal mind, elosely devonring what he reads, and is well posted in law, with an aetive, en- ergetie push, walks as if on his way to a fire, has considerable praetiee, and will un- doubtedly beeome eminent in his profession.

Grafton Junkin is also a native of the county, was admitted in 1900. He is a grand- son of ex-Judge Junkin, is associated with him in practice and is rapidly aequiring familiarity with legal procedure, is accurate in his work and reliable in his searches.

John Motter was admitted in 1893. He is an active, pushing young man, attends faith- fully to business, has pieked up quite a prae- tiee, and reeently taken hold of the pension branch of the business and has made it a suecess.

William Ard, admitted in 1900, is to the manor born, is eonstantly in his office, has the courage to speak out in court, has ability and is a promising young lawyer.

John R. Mcclintock, also a native, was - admitted in 1837, was possessed of a fine legal mind, had a good practice; died about 1875. He had this peculiar idiosyncrasy, that in addressing a court he got many things wrong end foremost. For instance, he was presenting a petition in the estate

of John McCord, deceased, and he informed the court that John McCord died making his will. Judge Graham said that he was sorry to hear it and that MeCord was indis- creet in trying to write his own will, he should have employed a lawyer and thereby saved his life.

Arthur C. Lackey came from the Carlisle law sehool, was admitted in 1895, located in the borough of Duncannon, Perry county, a large manufacturing place, and is gathering up considerable local practice by his integ- rity and assiduity.

Walter W. Rice was admitted in 1901, and stood an exceptionally good examination, is well informed, a fine historian and mathe- matician, a pleasant and entertaining eom- panion, of untiring application, and event- ually will make his mark.

There were many others who, like Jonah's gom'd, suddenly eame and quickly disap- peared, whose history simply registers night and day, morning and evening, leaving no impress.

We elose by noting that the author of this history has himself been a member of the Perry eounty bar for over fifty-seven years, had many triumphs, and numerous defeats, praetieed his profession in eight counties of this commonwealth, and still appears in court and tries eases before a jury, and like Moses, his "eye is not dim, nor his natural foree abated," loves a land ease as a dog does a bone; within the last year has studied one hundred and eight elaborate briefs of title and written an opinion in each ease as the solieitor of the Pennsylvania Railroad company; is never so happy as when en- gaged in the trial of an intricate and compli- cated ejectment, involving the original war- rants and surveys, the old white-oak and stone corners, sight trees and pointers, and witnesses, established as far baek as 1781. whose bosoms when opened became wit- nesses, neither lying nor forgetting, verify- ing the marvelous accuracy of those seven-

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teenth century rattlesnake surveyors, who crept over rocky mountain peaks, scarcely accessible to a bald cagle, and defined moum and tuum with the ax and compass, and for whom for over the last half century the nee- dle has been at rest. Hc further tells you (in confidence, hoping that it will go no fur- ther) that he was a member of the Thirty- sixth Congress, and was judge of the judi- cial district for over ten years, and had the singular distinction of being president judge of two judicial districts for nine months at the same time (the Ninth and Forty-first) at a time when Cumberland county was in the district.

Ile held court for trial of jury cases of every character and varicty in ten counties of this commonwealth, and in nonc were causes better or more ably (if as well) tried than in this little county of Perry. It is not the magnitude of a county that makes the lawyer or gives him distinction; the man must make himself; it is not locality, how- ever brilliant, that sheds luster on the man, but the man must illuminate the locality. I heard Judge Reed say that for the differ- ence in the practice and chances of success. he would not pay the expense of transfer- ring his library from one county to another, and I believed him.

WASHINGTON COUNTY

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WASHINGTON COUNTY

BY RICHARD B. T.WISS

Prior to the year 1750, as far as any re- liable information goes, that part of south- western Pennsylvania ineluded within the original boundaries of Washington county, was untrodden by the English-speaking white man, and it was probably nearly a score of years later before the rude cabins of the pioneer settlers began to appear. Prior to 1771 this territory fell within the limits of Cumberland county, the county seat being at Carlisle, but upon the ereetion of Bedford county, in that year, the seat of justice was brought westward to within one hundred miles of Pittsburgh, greatly to the relief of the rapidly increasing settlers of the lands west of the Monongahela. Here courts were held, the names of Thomas Gist, William Crawford, George Wilson, Dorsey Pentecost and other men who figured eon- spicuously in the early history appearing among those who had in charge the judicial machinery. Early in 1773, in response to a petition from the inhabitants in the then western part of Bedford eounty, seeking re- lief from the hardships incident to their re- moteness from the seat of justice, an act was passed in the House of Representatives au- thorizing the ereetion of Westmoreland county, which, in addition to its eastern ter- ritory included within its limits all the ter- ritory west of the Monongahela river, which still later became Washington county, as originally constituted. Ample provision was made for holding eourts at what eame to be known as Hanna's Town, and such men as William Crawford, Thomas Gist, Arthur St. Clair, Robert Hanna, George Wilson, Alexander McClean, James Caveat, Joseph

Spcar, and many others who took an active and leading part in the carly struggles of these hardy pioncers, under commissions from the supreme executive council at Phila- delphia, eondueted the affairs of justice in the county. A well organized judicial sys- tem was maintained. There was the supreme eourt at the seat of government in Phila- delphia, whose justices, besides holding two sessions each year, traveled from eireuit to eireuit and held courts. Then there were the courts of common pleas, general quarter sessions of the peaee, orphans' eourts and those of the ordinary justiee of the peaee. This was the order of things while the coun- try was still under England's sovereignty, and under the provincial system of govern- ment, and substantially the same order pre- vailed after the Declaration of Independence by the colonies. The power and authority of the laws and courts, being originally cen- tered in, and emanating from the English government, were nullified by the disavowal of allegiance to the mother country, and to meet the needs of the case, the general as- sembly of Pennsylvania, in 1777, passed an act substantially reaffirming all then exist- ing laws, providing for the various exigen- cies that had arisen, and among other things " making ample provision for reorganizing and conducting the various eourts through- out the commonwealth. The work of the courts under the provincial system ended in the spring of 1776, and in the early summer of 1777, a new set of judges for Westmore- land county, which then embraeed the ter- ritory that at a later date formed Washing- ton county, was commissioned.

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The twentieth century bench and bar of Pennsylvania, volume I, Part 73

Author: Publication date: 1903 Publisher: Chicago, H. C. Cooper, jr., bro. & co. Number of Pages: 1102

Author:
Publication date: 1903
Publisher: Chicago, H. C. Cooper, jr., bro. & co.
Number of Pages: 1102