Delaware County, Indiana - Chapter 8: Bench and Bar: Courts and Lawyers, 1924

Chapter 8: Bench and Bar: Courts and Lawyers

The long series of order books of the circuit court open with the minutes of the court as of the May term, 1828, as follows: "At the term of the Delaware circuit court holden within and for the county of Delaware at Munceytown on the 19th day of May, 1828, before the Honorable Miles C. Eggleston, president judge, and John Rees and Lewis Rees, associate judges of the Delaware circuit court, now present." It will be observed that William VanMatre, the first clerk of the court, spelled the name of the county seat '"Munceytown," whereas in the first records of the auditor's office and of the recorder's office it is given the common spelling of Muncietown, which seems to have been the generally accepted form, as well as that adopted by the Postoffice Department.

Further notations as of this term of court have it that Peter Nolin, the county's first sheriff, brought in the grand jury and Lemuel G. Jackson was appointed foreman of the same. The other members of this historic grand jury were Joseph Thornburg, Jonathan Reason, John Hardwick, William Stewart, Richard Thornburg, Henry Mosburgh, Jonathan Bentley, John Stewart, Jonathan Mills, William Battiman, Robert Gibson, Lewis Vansicle, Thomas Thornburg, Joel Spencer and Samuel McCulloch. Septimus Smith was appointed prosecutor "for the present term of this court, in the room of Cyrus Finch, the regular prosecuting attorney, and he was sworn as such." Smith and Finch were partners in law practice throughout the old Third judicial district. They were the founders of the Western Times at Centerville, in Wayne county, then the county seat of that county, and were among the most widely known of the lawyers who "rode the circuit" in those days. Septimus Smith was a brother of Oliver H. Smith, who exercised a large influence in the days of the development of Delaware county and who later served in Congress and in the United States Senate from this state (1837-43), his last days being spent in Indianapolis.

Initial Order Of The Court

The initial order of the court was that "William Blunt be appointed guardian for William Blunt Jones, son of Mary Jones, daughter of said William Blunt, and that he enter into bond for the faithful performance of said trust in the penalty of three hundred dollars, with David Baggs his security, to be taken by the clerk, which is done and he is sworn according to law." As will be noted elsewhere, William Blunt (or Blount) was one of the real pioneers of Delaware county, his lands here having been entered five years prior to the formal erection of the county, and he was a man of much influence in the formative period. He has been cited as one of the Revolutionary soldiers whose last days were spent in this county. He had gradually migrated from Tennessee up through Kentucky and into Indiana and came over here after having been for some years a resident of Wayne county.

Following this entry concerning the confirmation of this guardianship, it then was "ordered that the court adopt the following seal for a seal until a seal can be procured." And on the page was outlined a double circle, within the outer one of which were the words "State of Indiana." In the inner circle were the words "Delaware County - Seal."" Attorneys admitted to the bar of this court at this term were Charles H. Test and James Rariden, the former of Lawrenceburg and the latter of Wayne county and both of whom attained distinction. These apparently were the only "circuit riders" besides Septimus Smith to accompany Judge Eggleston here into the then practical wilderness to hold court. The permanent seal of the court was not designed and adopted until nearly four years later, when in the April term, 1834, it is ordered that "The court now here devise a seal for this court and adopt the same by the following description, to-wit: The said device on the seal is an ox, standing on his feet, and in the margin of said seal, encircling the ox, are the words following, to-wit: 'Circuit Court, Delaware County, Indiana,' engraved so as to make a permanent impression. A copy of this seal is stamped upon the margin of this record." And there it is to this day.

It should be kept in mind that there was no court house or other public building in old Muncietown at that time and but few houses of any description. All public gatherings were held in the tavern of Goldsmith Gilbert and it was here that this first term of the Delaware circuit court was "holden." In the Helm chronicle (1881) there is a delightfully reminiscent article by Minus Turner, then still living, one of the pioneer merchants and influential citizens of old Muncietown, who was here in 1827 and who recalled the first meeting of the court. "The grand jury held its session in the blacksmith shop on Walnut street, owned by David Baggs, the present site of the Episcopal church," Turner wrote. "The petit jury met under a buckeye tree which stood on the northwest corner of the public square. This tree was a very fine one. It had a large grapevine on it, which, with the tree's foliage, afforded a very good shade. I remember quite well, when the grand jury convened in the old blacksmith shop, that I climbed up in the loft and saw one of the jurymen climb out between the logs and go over into the hazel bushes and purchase some whisky of a fellow who was selling it there. He then crept back again and soon became very noisy and unmanageable. His case was reported to the judge and he was fined $10. Then he pulled out a long leathern sack, made perhaps of buckskin, which had all kinds of silver money in it. It bursted and the money spilled out on the floor. He told them to take what they wanted and hand the rest back. He was a very peculiar man and when under the influence of liquor he did not care what he said or did. His name was James Jackson and he was familiarly known as 'Devil Jim.' He went into the Gilbert bar room, after being fined, purchased a glass of whisky and chewed the glass up between his teeth. I remember seeing him - chewing and damning, with his mouth bleeding."'

At the ensuing November term (1828), John Rees, one of the associate judges, was the only one to appear and after a three days' wait for the other judges and none appearing, Sheriff Nolin "adjourned the said court until in course," and the next notation is that of the May term, 1829, present the same judges (Eggleston and the two Reeses), "present also Wm. VanMatre, clerk," and Sheriff Nolin (sometimes spelled Nolan in the old records) introduced the grand jury and Jacob B. Coon was appointed foreman of that body. "On motion, Martin M. Ray, Calvin Fletcher, Hiram Brown and Oliver H.

Smith, Esquires, are admitted and sworn as attorneys and counsellors at law of this court." These were "circuit riders." There were no resident lawyers here yet nor for some time afterward, the field not being at that time sufficiently promising to attract any of the young lawyers who were beginning to "find themselves" in the older settled communities throughout the district. At this (November) term, Martin M. Ray produced his commission as prosecutor for the Third judicial district and was sworn in. Fighting seemed to be the common offense of that period, for at this session there were no fewer than fourteen presentments for assault and battery and "affray." Bootlegging also was practiced, even as now, and there were several persons haled before the court for selling liquor without license. There was one charge for rape and two divorce cases were heard. One man was fined $2 for betting on a horse race.

Street Fighting A Common Incident

The ancient pastime of "affray" was long in passing, however, and street fighting was a no uncommon incident in the "good old days." An item in the Muncie Free Press of August 27, 1862, has it that "Another fight occurred in town last Saturday, in which one of the parties came off with a severe gash on the head and a badly pommelled face. No official notice was taken of it. . . . No less than fifty fights have occurred on our streets within much less than the same number of weeks and, to the best of our knowledge, not more than three or four of the offenders have been called to account by the authorities of the law. This thing demands redress, and if the present official incumbents can't do better, they would better throw up their commissions."

The town did not begin operation under its city charter until more than two years later, when perhaps more attention was given to street rows. The orders of the early police court would indicate, however, that intoxication was the chief offense against the body politic. Of the first fifty cases on the order book of the police court beginning with the administration of Job Swain as mayor in 1867, all but five are based on charges of intoxication. Of the remaining cases, two are "cow running at large," one "disturbing the peace," one "larceny of two turkeys" and one "fast driving.' None for "affray" or "assault and battery." The "fast driving' case is suggestive of the fact that the officers had highway traffic problems to

These numerous offenders against the laws relating to public intoxication could not plead lack of due notice that they would be held liable for their lapses. In the issue of his paper for March 30, 1865, Editor Duckwall, of the Free Press, who also was city clerk, gravely announced under a small-cap side head, "Take Notice," that "The city laws are now in force, and it will stand all in hand to give heed to their requirements. Gentlemen who have been in the habit of coming to town every Saturday night and getting tight (commonly called drunk) will have to abandon that practice or pay a pretty severe penalty for 'getting on a bust.' Liquor dealers should also be very careful not to sell liquor to men who will get drunk, as they are subject to a fine for making a man drunk."

How The Backwoods Bullies Were Lined Up

There is a certain historic significance in the fact noted above relating to the numerous presentments in the formative period of the court here of persons charged with affray or with assault and battery, such cases constituting the great majority of the entries on the docket of the early court. As Oliver H. Smith in the interesting reminiscences he preserved in his ''Early Indiana Trials" said: "The population of the country embraced in the circuit [the old Third] was a hardy, fearless and generally honest, but more or less reckless people, such as are usually to be found advancing upon the frontiers from more civilized life, and consequently there were more collisions among them . . . than is common in older settled and more civilized parts of the older states.""' And a record of many of these "collisions" is carried in the old order books of the Delaware circuit court under the head of ''affrays" and assault and battery. The fact that a man was haled into court for fighting was significant of the apparent determination of the leaders of the community to reduce without delay something of the old time boisterous frontier spirit and to compel a proper observance of the orderly processes of a developing social system in a region that so short a time before had been but a wilderness peopled by Indians and trappers and border adventurers often of the lowest order. Men long accustomed to the settlement of personal differences by bodily "collision" needed to be taught that law had come into the land and that orderly processes of adjustment were being established. Popular opinion had made dueling disgraceful and now plain assault and battery was in the way of going out of style. The debasing rough-and-tumble fights with all their horrors of gougeing and "kneeing"' and the like slowly were coming to be regarded as unsportsmanlike and the better elements in the community were insisting that the courts be the proper arbiters in the adjustment of personal differences. The old backwoods bullies not only were being lined up, but held up to public scorn.

That was in the days when certain liberties or freedom from durance were accorded prisoners charged with minor offenses, and particularly debtor prisoners, and the court established "prison bounds" as follows: 'Beginning at a stake bearing north 39 degrees and 30 minutes west of the center of the jail and distant therefrom 109 poles, thence south 84 degrees and 30 minutes, east 154 poles to a dogwood sapling; thence south 85 degrees and 30 minutes west, 154 poles to a hickory sapling, thence north 5 degrees and 30 minutes east, 154 poles to the beginning." If caught without these bounds the unlucky prisoner could be taken in charge by the sheriff and confined to the best of the latter's ability, for at that time there was no real jail. Referring to this period, Minus Turner's reminiscences, quoted above, have it that 'the county then had no jail and the sheriff must take the prisoners into his house and chain them down to the puncheon floor, which was accomplished by driving a staple into the puncheon and riveting the band around the leg. I never saw but one so secured, but this was the only security." Elsewhere in this work, in the review of allowances made by the early commissioners' courts, reference will be found to pay granted sheriff "for ironing prisoners." The offender who kept within "prison bounds" evidently exercised the better part of discretion in those days.

At the November term of court (1829), on motion of Oliver H. Smith, David Wallace (afterward Governor of Indiana, 1837-40), and John S. Newman were admitted to practice at the bar of this court. At this term a man charged with assault and battery on an Indian was found not guilty. The Indian was not in high favor in those days so close to the time of the frontier massacres. Sentimentalists had not then begun to regard him as a subject for poetry and song and it hardly is likely that a jury among the unforgetting pioneers could have been found to regard very seriously a mere charge of assault and battery against a white man who may simply have sought to put a redskin in his place. However, it was not long before that that Oliver H. Smith, then prosecutor, had secured (in 1824) a conviction for murder against white men who had killed some Indians over in what is now the neighboring county of Madison, the trial of that historic case having been held in the court at the Falls of Fall Creek (Pendleton), then the county seat, "the only trials where convictions of murder were followed by the execution of white men for killing Indians, in the United States up to that period." Other assault and battery cases were the principal further items on the order book for this November term.

At the opening of the ensuing March term (1830) Charles H. Test produced his commission as president judge of the Sixth judicial circuit (a new circuit having been created) and was sworn in. Lewis and John Rees (this time spelled Reese by the clerk) were continued as associate judges, William VanMatre clerk, and Peter Nolin, sheriff. James Perry produced his commission as prosecutor of the Sixth district and was sworn in. William N. Roe was foreman of the grand jury. On motion of Martin M. Ray, James Perry, Gustavus A. Evertts (who afterward became judge of the old Eighth circuit), and Caleb B. Smith were admitted to the bar. Caleb B. Smith, then living at Connersville, was a rising young lawyer, just past his majority. He was born in Massachusetts in 1808. An eloquent speaker and an attractive personality, he quickly made a name for himself in Indiana politics. He was sent to the Legislature, was elected speaker of the House, grew in favor in this district and was sent to Congress (1843-49). He and Abraham Lincoln campaigned together and were in Congress together. When President Lincoln made up his first cabinet Caleb B. Smith was named as secretary of the Interior, an office he occupied from March, 1861, to the time of his resignation in December, 1862. He died in January, 1864.

The Oath Against Dueling

In the October term (1830) Samuel Bigger (afterward Governor of the state - 1840-43), was admitted to the bar. The "circuit riders" were increasing in number. At. this term John Tomlinson and Samuel McCulloch succeeded the two Reeses as associate judges. That was in the days when public officials were required to take "the oath against dueling" and as a part of the oath to which the new as- sociate judges subscribed was the clause, "and that you have not sence the first day of January, 1829, eather directly or indirectly have not given or excepted a chalenge to any person or persons in or out of this state to fight in single combat with any deadly weapon and that you will not knowingly give accept or carey a chalenge aney person or persons in or out of this state to fight in single combat with any deadly weapon during your continiance in office so help you God." Dueling was under the ban, but good old fashioned combat apparently still was maintaining its popularity with the backwoodsmen for during this October term no fewer than eleven cases of affray or assault and battery were presented. In the meantime a sort of a jail had been built and the report of the grand jury on the condition of the jail to the court at this term had it that "we ' find it in decent order but we consider it insufficient as to lock and staple."

At the ensuing April term (1831), on motion "the court certify that David Kilgore, who is an applicant for admission to practice as an attorney and counsellor at law in the circuit and inferior courts of this state, is a man of good moral character."' In the following October term Kilgore (who afterward became a judge) was admitted to practice. At the October term, 1832, Samuel W. Parker and John W. Alley were admitted to practice. In the April term (1833) David Macy was admitted. The court was getting well under way. By this time the county had got up its first court house, a frame building, and the public business was being conducted in an orderly fashion. The growing business of the court was beginning to attract the attention of lawyers from the other county towns in the circuit and each successive term of court witnessed the gathering here of a growing number of "circuit riders," among those who were admitted to practice at the bar of the local court during the remainder of the '30s being Samuel C. Sample, William T. Brown, Andrew Kennedy, Jehu T. Elliott, Cyrus F. Dempsey, William G. Renner, Zachariah Puckett, Smith Elkins, Jeremiah Smith, Lot Bloomfield, Thomas C. Anthony, John B. Stitt, John Brownlee, Thomas D. Hawkins, Joseph Anthony, Morrison Rulon, John Marshall, Horatio M. Slack, Jacob B. Julian, Edward Johnson and Richard Winchell. On the first day of the September term of the circuit court, 1842, David Kilgore then president judge and John Richey and John Brady associate judges, on motion of Walter March, "the yankee lawyer," Michael Wilson, Levi L. Hunter, Clark M. Anthony,

William H. Ray, James H. Swaar, Thomas I. Sample and George Howell were admitted to practice. At that same term, under an order relating to the rules governing the admission of attorneys-at-law in the Eleventh judicial circuit, it was ordered (Rule 4) that "no answers are to be made by the members of the bar to any question or questions propounded to the candidate for admission, in cases where he fails to give correct answers to such questions." Friendly '"coaching" evidently had been carried to a point requiring judicial cognizance. Prospective candidates for admission to the bar were going to be made to stand on their own feet.

During the time the old courts in this state were constituted with a bench consisting of the president judge and the two "side judges," or until this system was abandoned with the operation of the new Constitution in 1852, the associate judges in this county, besides the two Reeses, mentioned above, were (in turn) John Tomlinson, Samuel McCulloch, William McCormick, William Van Matre, Eleazar Coffeen, John Richey, John Brady and John A. Gilbert, the two latter of whom were serving when the bench was abandoned in 1852. The longest tenure held by any of these associate judges was that held by John Brady, who became the first mayor of Muncie under the city charter in 1865, and who served as associate judge for a bit more than ten years, or from the time of his election in 1841 until the new order became effective in 1852.

Legislature Favors Two Local Redskins

The law against giving intoxicating liquors, or "spirits," as the old execution dockets have it, to Indians seems to have been invoked in quite a few instances. The fine in such cases seems invariably to have been fixed at $5, the additional costs in these cases ranging from $10 to $20. There seem, however, to have been exceptions to this law. It is an interesting historical fact that by an act of the Indiana Legislature of 1836 it was provided that Jacob Moscow and his son, James, otherwise called "Jim," who resided in Delaware county, were not to be considered as Indians within the provisions of the act to prevent the sale of liquor to Indians.

The Moscows, or Muscos, old Jake and his squaw Sally and their son Jim, were the last remnant of the Delawares left hanging here on the fringe of the white settlement which followed the departure of the Delawares. Tradition has it that Jake Musco had had a definite falling out with his clan prior to the Delaware exodus, a murder or some such act of violence having apparently separated him from his tribe, and he found that he and his family no longer were welcome in the tents of their clansmen, so they remained here when the others departed. They made themselves useful in their way to their white neighbors and were accorded friendly tolerance in the settlement. It is apparent, however, that the inhibition against the sale of "fire water" to the Indians left them bereft of their one remaining chief joy of existence. While, as a matter of fact the law prohibiting the sale of whisky to Indians was even more of a dead letter in some of the pioneer settlements than is the present prohibition law in some of our modern communities, it was inconvenient for Jake and Jim Musco to have to prowl around looking for some complaisant white bootlegger willing to take a chance on facing the court.

The practice in those days, according to old narratives, was for the Indian to make his wants known, pass over his coin and presently "find" his coveted bottle at a place where it wasn't lost. Jn the open bars it was no uncommon thing for a white man to buy a drink, set his untouched dram on the bar or on a side table and turn his back. Should a friendly redskin happen to be standing near the drink naturally would quickly be disposed of. The white man had not "sold" the liquor to the Indian, nor had the latter bought it. He simply had found it, which hardly could be construed as a violation of the law. But even this simple procedure apparently was found to be too inconvenient for Jake and Jim, who probably wanted their fire water when they wanted it and where. Law-making was not difficult in those days and it therefore probably was no serious task for some of the Muscos' influential white friends here to take the matter up at the capital and have things made easy for the Indians. This law relieving Jake and Jim from the normal inhibition was an act approved on February 6, 1836, "'to amend an act to prevent the sale of ardent spirits to the Indians, approved February 3, 1832," and provided "That Jacob, otherwise called Jacob Moscow, and his son, James, otherwise called Jim, who reside in the county of Delaware, shall not be considered Indians within the provisions of the aforesaid act, to which this is an amendment. This act to be in force from and after its passage."

After the death of the elder Musco, Jim Musco continued to make his home here and his last days were spent in this county. In a bit of reminiscence written by Samuel Cecil a quarter of a century ago concerning Jim Musco, Mr. Cecil observed that "he was quite old when he died, and I had the honor to help inter him in the Rees cemetery." In Minus Turner's reminiscences (1880) that pioneer relates that "'at the time of my location here (1827) a remnant of Indians frequently passed and repassed. They probably came here to hunt. A man, woman and boy were at that time located in a log hut on the north side of the river, near where the mill dam is situated. 'Indian Jake' was the father's name; 'Indian Sally' was the mother's name, and 'Indian Jim' was the son's name. Indian Jim afterward lived with Lewis Rees, six miles above town. He died some eight or nine years ago. Indian Jake died at John Smith's, who lived on the lot where Ben Rich now lives, on Jackson street. . . . The older ones were very much of the Indian character, wearing blankets, etc. Indian Jim was much different and was a very good, industrious Indian, and dressed in citizen's dress."

Ban On Public Treating To Influence Voters

It was during the time that Judge Kilgore was occupying the bench that a local "reform wave" led to the indictment of Goldsmith C. Gilbert, founder of the town of Muncie, who in 1842 was elected to represent this district in the Legislature and who died at Pendleton early in 1844 while returning home following the closing session of the Assembly for that year. This early application of a statute that now would come under the provisions of the corrupt practices act produced the presentment before the grand jury for the September term of court, 1842, of evidence which led that body to return an indictment against Gilbert charging that while the latter was electioneering for office he "did then and there unlawfully give a public treat with a view thereby, then and there, to obtain for himself votes for said office," and that he also "did then and there unlawfully direct one Jesse Stout to give a public treat with a view thereby then and there to obtain for himself votes for said office," ete. The order book does not reveal what, if any, disposition was made of this indictment.

The use of whisky in early political campaigns in Indiana, even as in later campaigns, was notorious, of course, but why this particular "public treat" should have been a matter of such particular consideration on the part of that grand jury of 1842 is a question now difficult to answer. It is convincing, however, that even in that day of "dirty politics" there was an element in the community that was earnestly seeking a way to clean up a bit, and that this element was no respecter of persons, for in some manner here was procured the indictment of the county seat's "leading citizen." On the seventh day of the September term of the circuit court, 1842, the court fixed recognizance bond "upon all indictments for publick treating to influence voters" in the sum of $100.

Records Of The Old Probate Court

Probate "Journal" No. 1 opens with a notation as of March 30, 1830, this initial session of the court having been held "before the honorables John Rees and Lewis Rees, associate judges of the Delaware circuit court and, as such, judges of the probate court of said county." The journal of the following November term (1830) was signed by Samuel McCulloch and John Tomlinson, who meanwhile had succeeded the Reeses as associate judges, the opening entry for this term noting that "said court, met according to an act of the General Assembly, did not go into business for want of the sheriff." At the beginning of the November term, 1834, the order book of the probate court began to be signed by John Tomlinson, "who now produces his commission from the Governor of Indiana to act as judge of the Delaware county probate court, with the necessary oaths indorsed thereon." This No. 1 journal of the probate court carries through the November term, 1839, John Tomlinson still sitting. A back fly leaf of the journal carries a poetic effusion, indicating a probable state of lovelornness on the part of some clerk or attache of the court who apparently did not care to insure literary immortality by attaching his name to the same. His plaint follows:

I turned it in each point of view, And turned myself round with a sigh; Still this was the state of the two - For, inverted, they came U and I.

Judge Tomlinson, who meanwhile had been elected to the Legislature, was succeeded in 1845 by Enoch Nation, who carried on as judge of probate until succeeded in February, 1852, by Samuel W.

Harlan, former clerk of courts, who was succeeded in January, 1853, by Walter March, the "yankee lawyer,'"' who was succeeded by Henry S. Kelley in November, 1856. Kelley was succeeded by Jacob M. Haynes, whose first orders were signed on February 4, 1861, and who was sitting when the jurisdiction of this court and of the court of common pleas was merged with that of the circuit court in 1872, John J. Cheney then being judge of the circuit court, which became a court of general jurisdiction. When the new constitution of 1850 became operative and the court of common pleas was established this latter court and the probate court were served by one judge, March, Kelley and Haynes thus having had dual jurisdiction. For nearly forty years the circuit court served as a court of generar jurisdiction and then to relieve the gradually growing docket of that court this county (joined with Grant county) was granted a superior court. Civil Order Book 1 of the superior court opens with the minutes of the April term, 1909, "begun, held and continued at the court house in the city of Muncie; present, the Honorable Patrick H. Elliott, sole judge of said court. Present also, Stafford B. Perdieu, sheriff of said Delaware county, and James H. Leffler, clerk of said court." The first notation of the court carries the ten rules of the court. Judge Elliott was succeeded as judge of the superior court in February, 1911, by Robert M. VanAtta, who served until succeeded by Robert F. Murray, the present incumbent of that bench, elected in 1918 and re-elected in 1922.

Gradual Development Of The Forty-Sixth Circuit

Under the judicial reapportionment act of January 1818, this having been before the lands in the New Purchase had been opened for settlement and while the Indians still occupied the territory comprised within the present bounds of Delaware county, the state was recircuited so as to create four judicial districts. The Third district under the terms of this reapportionment was composed of the counties of Randolph, Wayne, Franklin, Dearborn, Switzerland, Ripley and Jennings, as then constituted. The itinerary of this circuit began at Brookville on the second Monday of February; Centreville (then the county seat of Wayne county), the first Monday of March; Winchester, the second Monday in March, and so on until the judge and the circuit riders covered the district. John Test was the first judge of the Third circuit. Of him it is written that "few men of the second rank were as well and agreeably known as Judge Test." On the bench he observed much pomp and ceremony, put on "the latest robes of the profession and wore a queue that reached to his waist." Queues still were then worn by the "gentry" out here in the Midwest country and the judge was not alone in preserving this outward mark of inward dignity. Several of the lawyers and officers of this early court had been officers in the Revolutionary army "and liked to preserve something of their military bearing," as one commentator on the early courts of Indiana puts it. Judge Test was a native of New Jersey, but most of his life was spent in practice at 'Brookville. He served for three terms as a congressman from Indiana.

It will be recalled that when the Legislature of 1819 recognized the New Purchase and gave it civil division, dividing it into two counties, the name of Delaware was given to the eastern part of that . great tract, this extending to the second principal meridian, about twenty miles west of the present city of Indianapolis, the name of Wabash being given to the second county, this including all west of that meridian. This act erecting Delaware county provided that the 'adjacent counties in the already organized part of the state to the east "shall have concurrent jurisdiction throughout the said county of Delaware in all civil cases."" The country here in what is now Delaware county thus came under the jurisdiction of this old Third judicial circuit, the famous old Whitewater circuit, and whatever court restraint should be found necessary over here in the wilderness would be exercised by the court sitting at Winchester. Randolph county, it will be recalled, then extended to the northern, border of the state. The country was new to settlement here on the then western frontier and the developing villages or trading points, "settlements," as the pioneers long called them, would on occasion be filled with Indians trading their peltries and moccasins and the like for the calico, whisky, powder, lead, beads and such other articles as the white man had to offer for barter.

Interesting Sidelights On The Old Courts

There are many engaging narratives of the picturesque quality of the frontier settlements in Indiana, but this is not the place to go into that part of the story. This is a story of the courts. With proper acknowledgment to Oliver H. Smith's invaluable "Reminiscences," it may be said that the judiciary system of the new state then was, like the country, in its infancy. The circuit court was composed of a president judge, elected by the Legislature, who presided in all the courts of his circuit, and two associate judges, elected in each county by the people. These "side judges," as they then were called, made no pretensions to any particular knowledge of the law, but still they had the power to overrule the presiding judge and give out the opinion of the court, and sometimes they even "outguessed" the president judge, giving the most preposterous reasons imaginable for their decisions. The clerks of the courts as often as not had few qualifications for their duties; still they were honest and the most of them could write more legibly than many a United States senator. The initial court order books and records of the county clerks and recorders in Indiana will bear comparison for general intelligence of expression with those of the present day official copyists, and the mechanical aids now given the latter offer little improvement in the way of legibility on the precise quill penmanship often turned up in the old, time stained records. It also is being discovered that the record machines offer far more opportunities for error in transcription than did the faithful old quill in the hands of a thoughtful clerk. But this is a digression.

According to the Smith observations, the sheriffs of the old courts often "seemed to have been selected as candidates on account of their fine voices to call the jurors and witnesses from the woods, from the door of the court building, and their ability to run down and catch offenders." The most important personages in the country, however, were the young lawyers, universally called "squires" by old and young, male and female. Queues, as noted above, still were much in fashion, and nothing was more common than to see one of these young "squires" with a wilted hat that in its better days had been stiffened with glue, upon a head from the back part of which hung a queue three feet long, tied from head to tip with an eelskin, walking in evident superiority, in his own estimation, among a people in the court yard, sounding the public mind as to his prospects as a candidate for the Legislature. There were no caucuses or conventions then. Every candidate brought himself out and ran upon his own hook. If he got beat, as most of them did, he had nobody to blame but himself for becoming a candidate; still he generally charged it upon his friends for not voting for him, and the next season found him once more upon the track, sounding his own praises.

Court Day A Popular Attraction For Pioneers

The court rooms in those days were prepared and furnished with much simplicity, and yet they seemed to answer all the purposes absolutely essential to the due administration of justice. The building generally contained two rooms - the court room being the larger - at one end of which there was a platform elevated some three feet, for the judges, with a long bench to seat them. The bar, the "circuit riders," had their benches near the table of the clerk, and the crowd was kept back by a long pole fastened with withes at the ends. The crowds at that day thought the holding of court a great affair, the people coming for miles about to see the judges and hear the lawyers "plead," as they called it. The great variety of trials and incidents on the circuit gave to the life of the circuit rider an interest that all relished exceedingly. All was fun, good humor, fine jokes well received, though not always over refined; good appetites and sound sleeping, cheerful landlords and good-natured landladies at the head of the table. The circuit riders rode good horses, good travelers, trained to the corduroy mud roads and to swimming' swollen streams. The counties furnished too little practice for the resident attorney, so all looked to a circuit practice. Some rode the whole circuit, others but a few counties. Besides the circuit court, business was transacted - as it developed - in the court of common pleas, the probate court, the commissioners' court and for one year the duties of the last named were discharged by a court of justices, composed of one justice from each township. The probate court was abolished in 1853, its jurisdiction being transferred to the court of common pleas, established in that year and designed to have jurisdiction over probate matters and over all offenses which were less than felonies and not allotted to the special jurisdiction of the justices of the peace, and which was maintained until in 1872 when the circuit court was made a court of general jurisdiction, the latter now being relieved of some cases by the superior court and the juvenile court.

Judge John Test was succeeded as president judge of the Third circuit in 1819 by John Watts, of Dearborn county, a Baptist preacher, who in January, 1820, was succeeded by Miles C. Eggleston, who was president judge when court was opened here in 1828. "Courts and Lawyers of Indiana" (Monks, 1916) speaks of Judge Eggleston as "the best known trial judge of early Indiana, if he has ever had a superior at any time in the state." He is further referred to as "a small man, dignified and at times severe, but as a judge eminently fair and usually very kindly." Judge Eggleston continued on the bench until 1845. He was a brother of Joseph Eggleston, father of Edward and George Cary Eggleston. The Egglestons were Virginians. Meredith Nicholson in his "The Hoosiers" says of Miles Eggleston that he "was more distinctly an Indianian than any other member of the family by reason of his long residence in the state and by his public services."

In the meantime Allen, Union and Fayette counties had been erected and in 1824 the judicial circuits again were redistricted, the Third being enlarged to include Allen, Randolph, Wayne, Union, Fayette, Franklin, Dearborn, Switzerland and Ripley, to which was added Delaware upon the latter's erection as a civil unit in 1827. "Courts and Lawyers of Indiana," referring to this period of the old circuitriding days, says that "the amount of horseback travel required is almost unbelievable. In this regard the Third circuit at that time was the worst. It extended from Ft. Wayne to Vevay, a distance of 135 miles as the crow flies and at least 150 miles by the bridle paths of that day. The judge of this circuit lived at Brookville, making it necessary for him to travel approximately one hundred miles in February to open court on time in Ft. Wayne. The trip was not so bad if winter was still unbroken, but if the spring thaw had begun and the streams were not frozen it was necessary to swim at least a score of streams on the way. The summer trip to open court on the second Monday of August was not more atractive. If the weather was warm and wet the country from Winchester to Ft. Wayne was an endless quagmire. So dreaded was this road that the circuit riders frequently went around by Muncie [Muncietown] and Marion, striking the old Delaware trail, which was on the firmest ground in that country."

In 1830 the state was redistricted into seven judicial circuits, this county being apportioned to the Sixth, with Allen, Randolph, Henry, Wayne, Union, Fayette, Rush and Elkhart, and in 1832 Grant county was added to this circuit. In 1839 the state was recircuited so as to create eleven circuits and Delaware was placed in the Eleventh with Grant, Blackford, Wells, Adams, Jay and Randolph. In 1841 Madison county was added to this circuit and in 1844 Tipton was added. Other changes were made and in 1850 when the Constitutional con- vention was called the old Eleventh judicial circuit comprised Delaware, Grant, Blackford, Jay, Randolph, Madison and Hamilton. Charles H. Test, Samuel Bigger and James Perry were the successive president judges of the old Sixth circuit while this county was attached thereto. Morrison Rulo was elected president judge of the Eleventh but failed to qualify and the Governor appointed David Kilgore (1839-46), familiarly known as the "Delaware Chief," who was succeeded in the latter year by Jeremiah Smith, who was serving when the new Constitution went into effect in 1852. In this latter year Delaware county was attached to the Seventh circuit and so remained until in 1873 when it and Randolph county became constituted as the Twenty-fifth circuit. During this period of more than twenty years Joseph Anthony (1852-58), Joseph 8S. Buckles (1858-70) and Joshua H. Mellett. (1870-73) served as judges.

Concerning Judge Joseph Anthony, "Courts and Lawyers of Indiana" says that "he was an illiterate, paralytic tavern keeper of Muncie and it is hard to conceive at the present time (1916) how the voters of the circuit came to select such a man to preside over their courts. A large majority of the lawyers refused to try cases before him and had them continued from term to term with the hope that he would resign. When they found that he was going to serve his term out the lawyers in other counties prevailed upon the Legislature to organize a new circuit or attach their counties to some circuit al: ready organized. In fact, two years later the Legislature, by the act of February 9, 1855, restricted his jurisdiction to his own county and Blackford; Henry, Wayne, Randolph and Jay were detached from the Seventh and organized as the new Thirteenth. Judge Anthony went off the bench in the fall of 1858 and the Legislature of that winter reorganized the Seventh circuit to be composed of the counties of Delaware, Blackford, Hancock, Madison, Hamilton, Tippecanoe and Howard."

This is a pretty severe arraignment of a former well known citizen of Muncie and former judge of the court here, who previously had served as auditor, and in the interest of historical accuracy is subject to a bit of analysis and revision. In the first place, on the testimony of some still living in Muncie who have distinct recollections of Judge Anthony, it is only partially true. He was a paralytic, his useless legs requiring his use of two crutches, and he was a tavern keeper, proprietor of the old two-story frame tavern which for many years occupied the present site of the Kirby hotel, called then the Eastern hotel, but there is no special evidence that he was any more "illiterate" than many a lawyer of that period; certainly the firmness of his signature attached to the orders of his court in the old order books or the character of his records while serving as county auditor do not indicate illiteracy and there are old residents here who knew him who will declare that despite his shriveled legs he had a good head and was possessed of sound, common sense and as fair a conception of human equities as the average judge. Perhaps too just a conception to suit some of the quibbling lawyers over the circuit.

Politics of a viciously nasty brand dominated things in those days and the constant redistricting of the judicial circuits was as easy of accomplishment as the procuring of some of the infamous legislative gerrymanders swung by the politicians of the period, hence it probably would have been no difficult matter for a disgruntled lawyer to get a bill through the Legislature stripping the crippled judge of the greater part of his jurisdiction. The story carried by "Courts and Lawyers of Indiana" therefore seems to be somewhat deficient in "perspective," as well as apparently deliberately misleading. The late Leander J. Monks, of Winchester, in the neighboring county of Randolph, which was in this judicial district at the time of Judge Anthony's service on the bench, was the editor of the work above quoted. He was born at Winchester, got his initial law there and was admitted to the bar in 1869, going on up to his election to the bench of the Twenty-fifth circuit (1878) and afterward (1895) to the state Supreme Court. He was ten years of age when Judge Anthony retired from the bench and as he early took up law he no doubt became familiar, through the gossip of the older lawyers, with the traditions of the old circuit, some of these perhaps not very respectful toward the reputation of Judge Anthony. Tradition and fact are not always in agreement. It would seem that the memory of Judge Anthony has been subjected to an unnecessary slight in the book above quoted. However, that's another story.

The Creation Of The Present Circuit

When Delaware and Randolph counties were constituted as the Twenty-fifth judicial circuit in 1873, Governor Hendricks appointed John J. Cheney as the first judge of the new circuit to serve until the succeeding election. Silas Colgrove was elected in the fall of that year and served for six years, to be succeeded by Leander J. Monks, of Randolph county, who was on the bench when by the act of the Legislature of March 5, 1885, Delaware and Randolph counties were given individual circuit courts, the former constituting the Fortysixth circuit. Governor Gray appointed Orlando J. Lotz judge of the new circuit to serve until the next election. Judge Lotz was elected at that election (fall of 1886) and served until 1892, to be succeeded by George H. Koons for six years.

Orlando Jay Lotz, who was born in the neighboring county of Jay, was graduated from the National Law School at Washington, D. C., in 1874 and in the following year became engaged in the practice of law at Muncie, where he spent the remainder of his life. Following his term of service on the circuit bench he was elected (1892) to the bench of the Appellate Court of Indiana and served a term on that bench, this term of service terminating in January, 1897. Upon his retirement from the bench Judge Lotz resumed the practice of his profession at Muncie and was thus engaged until his death, February 5, 1902, in the very prime of life, he then being in the fiftysecond year of his age.

Judge Koons was succeeded by Joseph G. Leffler, who was elected in 1898. Judge Leffler served two terms and was succeeded on November 16, 1910, by Frank Ellis, who on May 20, 1913, "being unable on account of sickness to preside over said court (Forty-sixth judicial circuit of the state of Indiana) do hereby appoint William A. Thompson, a reputable practicing attorney of said Delaware county, to preside and hold said court until June 3d, 1913," and on that same day (May 20) Judge Thompson assumed jurisdiction. On the following June 3 Judge Ellis extended his appointment of Judge Thompson. Judge Ellis presently resumed the bench and continued to serve until the expiration of his term, to be succeeded by William A. Thompson, who ascended the bench as "sole judge" on November 17, 1916, and served until the beginning of the incumbency of the present judge, Clarence W. Dearth, November 15, 1922.

The prosecuting attorneys who have served this circuit since its creation in 1885 are as follows: Chauncey L. Medsker, who was serving at that time and continued until November 15, 1886, when he was succeeded by George W. Cromer, who afterward became congressman from this district and who was succeeded in turn by Joseph G. Leffler (afterward judge), Henry L. Hopping, Edwin M. White, Clarence W. Dearth (present judge), Albert E. Needham, Robert W. Monroe, Henry Long and J. Frank Mann, the latter of whom was succeeded in January, 1917, by Horace G. Murphy, who in the fall of 1919 became involved in a charge of conspiracy to defraud through use of the United States mails and was sentenced to serve two years in the Federal prison. Murphy resigned his office as prosecuting attorney on December 3, 1919, and was succeeded by Clarence E. Benadum, whom Governor Goodrich appointed to that office on that same day and who served until succeeded by Van L. Ogle, present prosecutor, in January, 1923. In its comment on the Murphy resignation and the Benadum appointment, the Muncie Star said: 'There is but one path that he [Benadum] can follow. It is straight and narrow, any side-stepping from this course will not be overlooked by the citizens of Muncie, who now are determined that the city shall rid itself of 'the name cast upon it through the malfeasance in office of some of our public officials." This was the same case that involved the mayor of the city (Doctor Bunch), a story that is told elsewhere.

In addition to the above prosecutors this court has received service in this office, beginning in the days of the creation of the old circuit, as noted above, from Cyrus Finch, who was the prosecutor when Delaware county was erected, Martin M. Ray, James Perry, William J. Brown, Samuel] W. Parker, Jehu T. Elliott, John Brownlee, Jeremiah Smith, John M. Wallace, John Davis, Joseph S. Buckles, James H. Swaar, William Garver, Silas Colgrove, Andrew J. Neff, William Brotherton, David Nation, David Moss, John H. Harrison, L. W. Gooding, D. W. Chambers, John W. Ryan, Alexander Gullett, Albert O. Marsh, Josiah E. Mellett and T. A. Spence, the latter of whom was in office when Delaware county was made a separate judicial circuit in 1885, the year in which the new court house got under way of construction.

Muncie Bar Association

The articles of association of the Muncie Bar Association, organized on September 22, 1905, declare that "the objects of this association are and shall be the study and better development and understanding of law as a science, the elevation of the profession, the cultivation of social intercourse among its members, the establishment and maintenance of a law library, the increase of the usefulness of social association in furthering the due administration of justice, and such other purposes and objects as may be for the best interests and betterment of said association and its members." The charter members of this association were Ralph S. Gregory, Joseph G. Leffler, J. Frank Mann, William A. Thompson, Walter L. Ball, Edward M. White, Frederick F. McClellan, James Bingham, George H. Koons (Sr.) and Frank Ellis. The late Ralph S. Gregory was elected first president of the association; Frederick F. McClellan, secretary, and Edward M. White, treasurer. Successive officers of the association are as follows: The late Judge George H. Koons, president during 1906-7; Adolph Silverburg, 1907-20; William White, 1920-21; Frederick F. McClellan, 1921-22, and the present president, George H. Koons (Jr.), elected in 1922. Successive secretaries - William T. Haymond, 1907-20; Ray Clark, 1920-21; William McClellan, 1921-22, and John J. O'Neill, the present secretary, elected in 1922. Following Edward M. White as treasurer of the association came Frank Ellis, Harry H. Orr, A. M. VanNuys and the present treasurer, Donald D. Hensel.

Harry H. Orr, James A. Perkins, Harry S. Redkey, Wilbur Ryman, Adolph C. Silverburg, Francis A. Shaw, Leonard E. Starr, Carey A. Taughinbaugh, William A. Thompson, Edward R. Templer, Clayton B. Templer, Ashton M. VanNuys, Omer G. Weir, Rollin Warner, Everett Warner, John T. Walterhouse, Will F. White, Frank R. Wilson, Harry Walk and Ira T. Young. An admirable law library is maintained in rooms off the circuit court room. Walter D. White is stenographer for the circuit court and Camilla B. Macy for the superior court. Albert O'Harra, former sheriff, is bailiff for the circuit court and John Readle for the superior court.