Grant County, Indiana - Chapter 17, 1886

BENCH AND BAR - FIRST COURTS AND OFFICERS - THE GRAND JURY - WRIT OF HaBEAS CoRPUS - FIRST JURY TRIAL - FIRST CAUSES - THE DUNGEON - RESOLUTIONS OF THE BAR - CHANGE OF JUDGES - DEATH OF RICHARD WINCHEL - A RETROSPECTIVE VIEW - CHARACTER OF EARLY JUDGES AND ATTORNEYS - COURTS UNDER THE NEW CONSTITUTION - JOHN DoE vs. RICHARD ROE - LATER CIRCUIT JUDGES - FIRST MURDER TRIAL - DEATH OF JUDGE WALLACE - THE PROBATE AND COMMON PLEAS COURTS - ROLL OF ATTORNEYS.

HE first session of a circuit court in Grant County was held on Thursday, April 26, 1832, at the house of David Branson. Hon. 'Caleb Smith was the only presiding officer present and as the full court was composed of three judges (one president and two associates ), the law required two of them to be present in order to transact business. At the end of the third day the court was adjourned until court in course by the sheriff, Benjamin Berry. August 8, 1832, the two associate judges, Caleb Smith and Samuel McClure, met at the house of Riley Marshall in special session to receive the resignation of Jésse Vermilya, the clerk. Riley Marshall was appointed in his stead.

The first well organized court in the county began its session at the house of David Branson October 25, 1832, but it at once adjourned to the house of Riley Marshall in the town of Marion, there to remain until a courthouse should be prepared. The associates were yet the only judges present. Harvey Gregg was prosecuting attorney; Benjamin Berry, sheriff, and Riley Marshall was appointed clerk. On the motion of H. Gregg, Calvin Fletcher and Thomas C. Anthony were "admitted to practice as attorneys and counsellors of law at the bar of this court."

The First Grand Jury. - The sheriff returned into court the following "panel of grand jurors, good and lawful men of Grant County, householders and freeholders of said county, to serve as such for the present term to wit: Elias Murray, foreman; Isaac Elliott, John Lamb, Thomas Branson, Solomon Thomas, Uriah Mooreman, Joseph Henslow, David Branson, Benjamin Prickett, Reuben Overman, Samuel Broderick, Charles Baldwin, John Rupel, Champion Heloxy, Solomon Wright and Jesse Adamson, who being severally sworn and affirmed, retired under charge of Joseph Cadwalder, a sworn officer of the court, to consider of their presentments and indictments." This jury was composed of sixteen men, ten more than the law requires to-day.

The grand jury has long been one of the instruments by which the criminal law seeks to bring offenders to punishment. In accordance with the progress of civilization many changes have been made in some of the States and in other countries concerning the proceedings before this inquisitorial body. It has been thought by some to be too much of a star chamber affair where only one side is heard and where innocent persons are apt to be charged with crime. In keeping with this view the laws have been so regulated in some localities that evidence can be heard upon both sides of whatever matter is under investigation. But throughout all the grand jury has held its place as a favorite means in the hands of the officers of the law for proceeding against criminals. And it is doubtful ifa hearing on each side of a cause can bring about such satisfactory results as has always followed the old process.

After the retirement of the grand jury the court adopted the common scrawl containing the words " Grant County Seal" as the official seal of the court. The first case that appears upon the records is entitled John Rawlins vs. Samuel McClure and had been appealed to this court most likely from one of the justices of the peace. The president judge being absent and Samuel McClure, one of the associate judges, being a party to the action, the cause was continued John Dolman, who had been brought from Miami County, Ohio, as a witness before the grand jury in a case of larceny against Thomas Mason, was allowed the sum of $7 and was permitted to go in peace. On Friday the second day of the term, the case of John W. Cooley vs. A. D. Woodworth, another appeal case, was dismissed. The grand jury returned indictments against James Gerrard, A. D.

Woodworth, Murray C. Woodworth and William Gobel for assault and battery and against Jonathan Berry and Jesse Thompson for affray. Grant County was at that time in the Sixth Judicial Circuit of Indiana.

The third term of the Grant Circuit Court began on Monday, April 29, 1833. At that timé the Hon. Charles H. Test appeared as presiding judge with the same associates as before. Caleb B. Smith, David Kilgore and William J. Brown were admitted as attorneys. 'The last named presented a commission as prosecuting attorney for the sixth judicial circuit. Court now began in earnest. The second grand jury was composed of these men: William Roberts, foreman,, Joseph Cadwalder, Robert McCormick, Reason Malott, Joseph Lugar, Jonathan Goodwin, Jeptha Lutton, David Hiatt, Caleb Morris, Platt Sutton, William Prickett, Matthew Winslow, Thomas Haney and William Murray.

The first criminal cause was that of the State vs. Jonathan Berry and Jesse W. Thompson for affray. Berry pleaded guilty and was fined $2. Thompson had not yet been served with process. . William Goble said he was guilty of assault and battery, and the court assessed a fine of $1 against him.

The first petit jury in Grant County appeared in court on the first day of this term and was composed of the following named men: William Ballinger, Jacob Hensley, Aaron Hill, Iredell Rush, Axum Jewly, Thomas Mason, William Webb, William Jones, John Benlow, Abraham Murray, Robert Hurley, John Dunn, Murray C. Woodworth, Jonathan Berry, William Hiatt, Teedack Prickett, Nathan Morris and John Odell. There were eighteen of them in all, according to the custom of summoning an extra number to take the place of any that might be challenged.

At this term of court Nathan Branson, one of the prominent early settlers of the county, pleaded guilty to the charge of assault and battery. But in those days an ordinary fight was not considered so much of a disgrace. In fact it was expected that a man would defend himself from the slightest aspersion on his name by his muscle. Such notions are now somewhat obnoxious to the better classes, and "'fights" are correspondingly on the decrease.

At the October term, 1833, William J. Barnett presented a commission as sheriff, and Riley Marshall as clerk. The presiding judge failed to attend and the court was adjourned until "court in course."

Writ of Habeas Corpus. - The first writ of habeas corpus was sued out in behalf of Silas Hathcock in November, 1833. He had been tried on a charge of larceny before Ichabod Dilla, a justice of the peace in Grant County, and found guilty. He was confined in jail, and it was to be released from this that the writ was resorted to. It was tried before Samuel McClure, one of the associate judges, at the house of John Beard, November 18, 1833. The cause was. determined favorably to the defendant and he was released from jail.

The first term of court held in the courthouse at Grant County began on Monday, May 5, 1834. Until this time they had been held in the house of John Beard. John S. Newman, William Elliott and Andrew Kennedy were sworn as attorneys for this court. The criminal causes, for which indictments had before that time been found by the grand jury, now came up for disposition. Among them were the following: Thomas G. Noble, retailing without license; William Crawford and Samuel Burgess, same; Champion Helvey, selling spirits to Indians; Thomas G. Noble, same; Ralph Voorhis, retailing without license; John Rollins, assault and battery; Samuel McClure, obstructing navigation; A. D. Woodworth, assault and battery; John Murray, larceny; William Roberts, failing to return marriage; A. D. Woodworth and others, riot; Isaac Norman, giving spirits to Indians; Murray C. Woodworth, assault and battery ; Samuel Gilbert, giving spirits to Indians.

First Jury Trial. - The first trial held in Grant County before a traverse or petit jury was entitled State of Indiana vs. Samuel McClure. It was upon a charge of obstructing navigation. The jury was engaged in the case two days and at the end of that time returned this verdict: '' We, the jury, do find the defendant guilty as he stands charged in the indictment, and do also find that he continued and kept up the mill-dam and obstruction for the space of four weeks, and assess his fine at twelve dollars."

At this term the grand jury reported the jail as "unclean and dangerous to the health of the prisoners and without sufficient bedding." Upon this the county commissioners were ordered to show cause at the next term why these defects should not be remedied. This they did satisfactorily.

proportions, and it contained causes both civil and criminal of almost every grade and character. The method of practice was then so much different from what it now is, that an attorney of the present day will find himself somewhat puzzled to know just what some of the cases were about. The action for slander was one that came frequently into court. This was, most likely, the legitimate result of that same spirit which prompted men to resort to that mode of redress now championed by John L. Sullivan and others of his like. The first action for slander appears in the records for the May term, 1836. It was brought by Joseph Lugars against Benjamin Hillman. According to the records this same Lugars seems to have been a much slandered person about that time, for he frequently figures as plaintiff in actions of this kind. Actions for slander are seldom conducive to the peace and harmony of the neighborhood in which they originate. A judgment for damages beyond a mere nominal sum is hard to obtain; and such was the case in the early history of Grant County.

At the November term, 1836, the prison bounds were made to 'extend to and include the town plat of the town of Marion, in which the jail of said county is situated." Concerning the jail of Grant County in those days, the following report of the grand jury in November, 1837, will afford some information: "They find the jail sufficiently strong in their estimation for the safe detention of prisoners. They are of the opinion, however, that the board doing county business should provide stoves, or some means for the comfortable and safe warming of the jail. The beds should be provided with additional clothes, and the crevices in the walls of the debtors' room should be closed so as to prevent the cold and inclemencies of the weather from entering said room so freely as they may at present."

First Cases. - Besides those already given, there are added here several other cases that were the first of their kind to be brought into the Grant County courts. In May, 1837, the first case of perjury appears, and the plaintiff was William Lamb. It was disposed of some time later after several continuances. In November, 1835, Riley Marshall, who was then county clerk, was indicted for official negligence, and Ezekiel Jewel was at the same time charged with having committed forgery. Marshall pleaded guilty and was fined $1. Jewel was tried by a jury and acquitted. The first complaint for a divorce was filed in November, 1836, by William St. Clair.

He asked to have the bonds of matrimony between himself and Eleanor St. Clair forever dissolved. As she was a non-resident, the cause was continued for publication, and in May following the divorce was fully granted. Advertisement was made in the Richmond Palladium, as there was then no newspaper published in Grant County. In May, 1837, George Walker appeared as the first defendant in a prosecution for arson. He was tried by a jury, found guilty, and a fine of $300 was assessed against him, and he was sentenced to six years of hard labor in the State prison. This was also the first sentence imposing confinement in the penitentiary. At the same term James M. Gereard was prosecuted for usurpation of office. In May, 1838, Joseph Roberts pleaded guilty to disturbing a religious meeting, and was fined $1. At the same time Jacob Branson was fined for public indecency.

In May, 1838, Daniel James was succeeded by William Massey as associate judge. In November of that year Morton Jones appeared as clerk in the place of Riley Marshall. He was not permitted to hold it long for his death occurred in March following. The associate judges appointed James Trimble as his successor.

In the early days the habit of betting, or rather gambling, pervaded all classes of society from the high to the low. Indeed it can hardly be said that the custom has yet been done away with. A game of cards was, and is thought to be a dry and dull affair, unless there was "something up just to make it interesting." The grand jury at the March term, 1839, found a large number of indictments against various individuals for betting. Among them were two against John T. Elliott, the prosecuting attorney and two against Andrew Kennedy, one of the leading attorneys of the bar. Both pleaded guilty and paid a fine of $1 for each offense. Murry C. Woodworth, who was a conspicuous character of the county at that time, was called upon to answer nine indictments of the same kind, and James Sweetser to six. It is said to have been only a few games of poker. Even the Judges indulged themselves in this pastime, and one of the old attorneys now living in Marion boasts of having had several friendly games of poker with Judge Bigger about that time. At the March term, 1839, Charles W. Kent failed to respond when called upon to answer to a charge of assault and battery with intent to kill. He had been tried before a justice of

Judge Kilgore. - At the September term, 1839, Hon. David Kilgore presented his commission as president judge of the eleventh judicial circuit, of which Grant County was then a part. Caleb Smith and William Massey were his associates in the business of administering justice. Kbeneazar G. Cary was clerk and Henley James, sheriff. John Brownlee, who was just assuming the duties of prosecuting attorney, was called upon at this term to answer six indictments for betting. This he did by saying that he was guilty, and the court fixed his fine at 25 cents in each case. There were forty-six cases for betting on the docket fee at this term, and besides Brownlee's there appear such names as James Trimble, William C. Miles, James H. Linsey, John Lugar, William Malcon, Jacob Jackson, James B. Fulwiler, David O. Branson, A. T. Stephenson, A. J. Harlan and several others.

James Brownlee, Nathaniel McGuire and Andrew J. Harlan were certified in the record to be men of good moral character. At this term Phillip Fifer was sentenced to hard labor in the State prison for five years. A jury had found him guilty of rape. Ezekiel T. Dix was given a judgment of $200 against Abram Lee in an action for slander.

The Dungeon. - The grand jury at this term, after having concluded all other business, as the law requires, proceeded to examine the county jail; in their report is found this statement: 'The jail seems sufficient, clean and sufficiently strong for the safe-keeping of prisoners, with the exception of the door and the window of the dungeon, which the grand jury think are insufficient." What would the people of Grant County think of a dungeon and a debtors' prison to-day? Less than fifty years these were maintained in their full vigor. But imprisonment for debt has at last been abolished in Indiana, and the unfortunate poor man stands on an equality with the rich. The modern agitation of the subject has resulted in the total rejection of the dungeon and all prisons that approach it in re-

'semblance. The health and comfort of convicts and prisoners are guarded with a watchful care. During the year 1840 the grand jury constantly complained that the jail was kept too dirty.

In March, 1840, James Trimble, Jacob M. B. Miller and Solomon Wright were defendants in prosecutions for treating at an election. John Dolman was accused of being too avaricious and an indictment for usury was the result. In the records for this term appears the following order by the court: "That John T. Elliott, Andrew Kennedy, John Brownlee and Richard Winchel be fined in the sum of $5 each for contempt of the court in laughing." There has been written across this order these words: 'Struck out by order of the court." A $5 laugh would be more expensive than funny, but the court was evidently bound to maintain its dignity. John Brownlee and Andrew J. Harlan were required to answer charges, the former for "winning" and the latter for "losing."

The first case of bastardy came in at the October term, 1840. It was entitled State of Indiana on relation of Sarah Overman vs. Nathan Simons. In March, 1841, Josiah M. Harlan was certified to be a man of good moral character. At the October term of that year Robert Merryfield was appointed master in chancery for Grant County. In April, 1842, Samuel Patterson was found quilty of larceny and sentenced to one year's hard labor in the State prison and disfranchised two years. A new trial was granted, and that resulted in a verdict of fifteen days in the county jail and three years disfranchisement. In October Cimon Goldthwait and William J. Peele were declared to be men of good moral character. Standfield Reeves was found guilty of larceny, and the jury said he should work in the State prison for two years. At the time of pronouncing sentence a pardon from Gov. Bigger was produced.

Resolutions of the Bar. - - After the adjournment of court Monday, April 17, 1843, the first day of the term, the members of the bar held a meeting to pay appropriate honor to the memory of Roberts Merryfield, a member of the bar that died. The record reads as follows: On motion of Col. Jeremiah Smith, Thomas J. Sample, of Uniontown, was called to the chair, and Daniel D. Pratt, of Logansport, was appointed secretary. The object of this meeting having been stated by the chairman the Hon. Andrew Kennedy addressed the meeting in a few appropriate remarks on the life and character of the deceased. On motion of Mr. Smith it was ordered that a committee of three be appointed by the chair to repdre. tor this meeting a preamble and resolutions expressive of the sense of this meeting on this melancholy event. Whereupon the chair appointed Daniel D. Pratt, Andrew Kennedy and John Brownlee said committee, and on motion of John Brownlee the meeting adjourned until to-morrow morning at half past seven o'clock. The meeting again conyened pursuant to adjournment. The committee reported

WHEREAS, by the death of Roberts Merryfield, Esq., the members of the bar have lost an esteemed friend and brother, who bid fair to shine as an ornament to the profession, and of strictly moral habits, affable and kind to his fellow members of the bar and esteemed throughout the whole circle of his acquaintances. Though he had been but a short time at the practice of the law his industry, strength of intellect and native energy had already"given him a very respectable standing as a lawyer. Cut off as he was in the prime of life. in the spring time of his growing fame, his fate is another sad proof of the uncertainty of life and the certainty of death. Therefore,

Resolved, That the proceedings of this meeting be signed by the officers and a copy be delivered to the family of the deceased, ana also that they be published in the Democratic Herald of this town.

At this April term, 1843, E. G. Cary and Hugh M. Stephenson were declared by the court to be persons of good moral character. William Boxell was damaged to the amount of $200; so said a jury in an action for slander against David Campbell. In October following John Brownlee was appointed master in chancery for Grant County.

At the October term, 1845, Benjamin W. Farnish succeeded William Massey .as associate judge. The latter had been upon the bench for several year¢ in that capacity. Asbury Steele at the same time assumed the duties of clerk. James Woolsey was tried on a charge of lar¢eny and sentenced to a term of two years in the penitentiary and. five years disfranchisement. On another indictment an additional punishment was assessed, ten days in the county jail and he was distranchised three years. He was a horse-thief, a kind of character that infested northern Indiana to a large extent in an earlier day.

Accession of Judge Smith. - When the circuit court began its. session in April, 1846, Hon. Jeremiah Smith produced his commission as president judge to succeed Judge David Kilgore. It was during this term that the following record was made: "On motion of John Brownlee it is ordered to be certified of record that Robert T. St. John is a man of good moral character, it having been first. proved to the satisfaction of the court that the said Robert T. St.

John will be twenty-one years of age on the twenty-seventh of October next." Atthe term in October following David Kilgore was fined for disorderly conduct committed in presence of the court.

The first case of mayhem appeared on the records for the October term, 1847. It was against Samuel D. Kennedy, and he was found guilty by a jury, and fined $10.

Richard Winchell. - During the April term, 1849, the members of the Grant County bar held a meeting to express their feelings in regard to the death of Hon. Richard Winchell, one of their number. Judge Smith was made chairman, and the meeting was addressed by John Brownlee. A committee consisting of John M. Wallace, Isaiah M. Harlan, and John Brownlee reported the following resolutions:

WueEnreEas it pleased Divine Providence, on the 23d day of October last, to call from our midst a distinguished member of the bar of this circuit, our much esteemed and lamented friend, the Hon. Richard Winchell, whose high order of legal talents, united with a courteous, urbane and gentlemanly conduct, made him an ornament to his profession and endeared him to all with whom he had intercourse; and

WHEREAS the members of this bar are desirous of leaving some proper and becoming testimonial of their high regard for the exalted talents and many virtues of the deceased; and to express their lively sense of their loss and heartfelt sorrow which bis death has occasioned among them. Therefore,

Be it Resolved, That by the death of the Hon. Richard Winchell, the bar of the Eleventh Judicial Circuit has sustained an irreparab® loss; that his family are bereft of a kind and affectionate husband and indulgent father, and the country of one of its most attractive and useful citizens.

Resolved, That though we may no more behold his beloved form in our social circle, listen to his powerful and energetic eloquence at the bar, no longer hear the music of his merry laugh which mugically infused a spirit of life and hilarity, nor be again permitted to return the warm and affectionate grasp of the hand with which he was wont to greet us in days gone by, yet the sacred and endearing recollections with which his name and virtues were associated, secure for him a lasting place in our fondest remembrance.

Resolved, That by the death of the Hon. Caleb Smith, so many years belonging to this bench, the public have lost an upright and faithful servant and judge, the

Resolved, That we offer our sympathy to the family and friends of the deceased, in this bereavement that a chastening Providence has brought them to suffer.

Resolved, That this court be requested to spread at large upon its minutes, our proceedings in commemoration of our estéem for the deceased.

The Court thought that the court room should be carpeted, and ordered the county commissioners to have that work done before the next term. In October they were ordered to "purchase a suitable bell, to be hung in the cupola of the court house on or before the first day of the next term of this court." At this same term of court the bar held a meeting and passed a series of resolutions on the death of Associate Judge Benjamin W. Furnish, Among them are the following:

Resolved, That the conduct and bearing of Judge Furnish toward us as members of the bar, has ever been kind, gentlemanly and indulgent; that we have ever regarded him as a gentleman and an upright judge; and ag such, we, the members of the bar, deeply deplore his loss.

Resolved, That in the death of Judge Furnish, from our knowledge of him, we believe that the country has lost a good citizen, the church of which he was a worthy member, a bright ornament, and his family, who must feel most deeply the sad bereavement, a kind husband and an indulgent and loving father.

In November, 1852, Jeremiah Smith was superseded as judge by Joseph Anthony. Grant County was then in the Seventh Judicial Circuit, and the prosecuting attorney was Silas Colgrove, who presented his commission as such at that term. This was the last term of court held under the old constitution. At its close Judge Anthony made the following record: "In closing the first term of my service in the high station to which the favor of the people of this county in a great degree contributed to elevate me, I cannot feel that I do justice to them without expressing in this permanent manner that an indelible sense of gratitude is fixed on my mind toward the citizens of this county in common with the whole district; and it is due to them to say that I am de'ighted in the association in business that I am brought into when I notice the diligence and faithfulness of the officers of this court, and the zeal, ability and energy of the bar of your county, and to all for the courtesy, action, by which I am stimulated to strive to do better in time by improvement and experience, and thus make returns for what I acknowledge to be due to the country from me."

This is all very well for Judge Anthony, but if the like was to be done to-day, people would at once whisper of policy, and conclude that the author was thinking of future elections.

A Retrospective View. - At the close of the old regime in the judicial affairs of the State, it is perhaps well to take a last look at the judges who presided in those earlier courts of the county, and of some of the attorneys who were conspicuous at the Grant County bar. The changes that were brought about in the methods of practice, together with the composition and character of the courts, also deservé some special mention.

Of the Hon. Charles H. Test, the first president judge of the Grant Circuit Court, it may be said that he was, in his day, one of the ablest circuit judges in Indiana. He lived at that time in Centerville, then the county seat of Wayne County. In personal appearance he was far from attractive, and was generally voted one of the homeliest men of his time. His dress lacked much of being neat. Notwithstanding this he was a man who had many warm friends, and his ability was of asuperior order. His speech was short and sharp, and he was slight in stature. Upon the bench he maintained his dignity without austerity, and enforced the strictest rules in the conduct of his courts. It is said of him that on one occasion, when John Brownlee appeared in court in his shirt sleeves, the Judge ordered the bailiff to take him in charge and see that he had a coat put on. This was done as he directed.

Samuel Bigger, who succeeded Judge Test in this court at the May term, 1836, was one of the leading men of Indiana. His home was at Rushville, in this State, where he succeeded in the practice of his profession probably beyond his own expectations. He was. not so good a speaker before a jury as he was with a popular audience, and as a "stump" speaker he was in very good demand. He was a large and nice looking man, whose tastes inclined strongly to politics. In 1840 he was elected governor of the State, and he died in Fort Wayne in 1845. The older members of the bar yet have many pleasing recollections of his term as judge. tdi had endowed him with an abundance of common sense and ability. He was called General from having held that office under the old militia system of the State. His education was not extensive, but from general reading and close observation his knowledge of general matters became large. Before a jury he was effective, possess- - ing that pointed and passionaté eloquence which usually carries conviction with it. He excelled in the criminal law. As a judge, he was well liked, and his decisions were rarely reversed in the Supreme Court. After retiring from the bench, he again engaged extensively in the practice. He was of fine physique, and was much admired by all who knew him.

_ Judge Jeremiah Smith, who took his seat on the Grant Circuit bench at the April term, 1846, is said to have lived at Winchester. He, too, was an officer in the State militia, and was familiarly known as Colonel. In his profession he was a close student, and examined the authorities with great care. His decisions were only rendered after mature deliberation, and were, consequently, nearly always right. He was a better judge than an advocate, lacking the readiness and plausibility that are necessary in the successful practitioner. His ability as a public speaker was not above ordinary. Judge Smith was unfortunate in having his name in @ measure connected with a gang of counterfeiters that infested this portion of this county during his time. Some of his relatives were connected with it, but all attempts to identify his name with their unlawful transactions were futile, and those who were acquainted with him never for a moment doubted his innocence. But being of a sensitive nature, he was much embarrassed at the thought of being suspected of complicity in matters of so objectionable a kind.

The last term of the Grant Circuit Court under the old constitution was held in November, 1852. At this term Joseph Anthony, of Delaware County, was judge. He was not at that time considered as much of a lawyer, and he was brought to his high position more by a combination of circumstances than by his ability to perform the duties of the office. His valedictory, if it might be so called, is given elsewhere and may serve as an aid in estimating his character. This was his only term of court in Grant County.

Courts Under the, New Constitution. - The courts of Indiana. received a radical change under the new constitution. They were: organized throughout the State in the early part of 1853. Hitherto the old common law methods had been in vogue, but under the new order of things the practice was much simplified and many of the long and tedious forms were done away with. This change brought about much opposition from some of the older members of the bar throughout the State. They had studied the common law for years, until they had become imbued with its principles. To them it embodied the genuine wisdom of the ages that concerned law and liberty. They admired it for its grandeur and its equality. It had been so long the recognized channel through which justice had been sought that "the memory of man runneth not to the contrary," and they were reluctant to give up any of its well known avenues. Indeed, to many of these older practitioners the common law practice had grown to be of such paramount importance, and had assumed, to them, such beauty and symmetry that they held it in awe and reverence. It was therefore little short of sacrilege to attempt the pruning of this system even in its smallest branches. To such an extent was this opposition carried that many never became reconciled to the change, while some even went so far as to abandon the practice altogether.

One distinctive feature of the change was the abolishment of the office of associate judge. This was an office more for ornament than utility. The circuit judge then held court in several counties, and in each he was assisted by two associate judges, who were residents of the county. They were men that seldom, if ever, had any knowledge of the law and their decisions usually followed in harmony with the president judge. At this time, however, they folded away their ermine and took their final leave of the Indiana courts, leaving the task of supporting the scales of justice to a single judge.

John Doe vs. Richard Roe. - The present code practice in Indiana has been in operation since May 9, 1853. Under the old system many relics of feudal times were still lingering. Several fictions of the ancient common law were still retained, but under the new code the methods of pleading were much simplified and the fictions were all abolished. Thenceforth all actions were to be prosecuted and defended in the namos of the real parties. It was at that time that the famous mythical personages John Doe and Richard Roe were forever banished from the courts of Indiana. These were fictitious plaintiffs and defendants that were used in all actions to recover the possession of real property. This common law action of ejectment originated about the beginning of the fourteenth century on account of "the thousand nicities with which real actions are harassed and entangled." The readiness with which John Doe always came forward to assert the alleged right of the man out of possession, and the equal promptness of Richard Roe to maintain that the man in possession was the lawful owner, were such as. to command the devotion and sincere attachment of all true lovers of the old system. It was with deep regret that the old practitioners took leave of these knights errant of the common law. -

The Early Attorneys. - By reference to the early attorneys at the close, of this chapter it will be seen that no less than seventyfive men had been admitted as attorneys and counsellors of law at the bar of the Grant Circuit Court up the close of 1852. This list is nearly complete although an occasional name may have been overlooked in the records. Among them appear the names of some of the most conspicuous members of the Indiana bar. Of the very earliest attorneys Caleb B. Smith was perhaps the ablest and most widely known. In his day he ranked as one of the leading advocates of the State. David Kilgore is elsewhere mentioned. Andrew Kennedy lived in Delaware County, and for ten years probably had the largest practice of any man at this bar. He was a good advocate and his manners were pleasing to those with whom he came in contact. Asa Democrat he was one of the leading politicians of this portion of the State. Calvin Fletcher became one of the well known citizens of Indianapolis. William Coombs, who was admitted in 1836, settled at Fort Wayne and became one of the leading lawyers of northern Indiana over a large portion of which his practice extended. Judge Jeremiah Smith was admitted in May, 1838. John Brownlee was sworn as an attorney of the Grant Circuit bar at the November term, 1838, and from that day to this he has been one of its most conspicuous members.. If not the first resident attorney of the county he was the first to take rank as a reliable and successful lawyer. From 1839 to 1840 he was prosecuting attorney. He received a large practice for that time, and had for his opponents such men as Caleb B. Smith and Andrew Kennedy. Late in 1839 he was joined by his brother, James Brownlee. Both are now in the active practice at the same court where they began in early life, having spent nearly half a century at the same bar as practitioners of the law.

Daniel D. Pratt of Logansport, who became United States senator, is too well known to need an extended notice here. Others whose fame is coextensive with the boundary of the State were Samuel E. Perkins, John U. Pettit, Joseph K. Edgerton and John D. Defrees.

James H. Lindsey, one ofthe early resident attorneys of Marion, was admitted in March, 1839, and for about ten years continued here in the practice. In September of the same year Richard Winchell located here as an attorney and was one of the ablest of the early attorneys. He remained in active practice until his death. The resolutions passed by the bar at the April term in his memory are elsewhere given. John M. Wallace was admitted in March, 1840. He, too, located at Marion and at once took rank as one of the leading lawyers of the bar. He served two years as prosecuting attorney, from 1842 to 1844. He was, regarded as an able lawyer and a brilliant advocate. For several years he was one of the leading attorneys of Grant County. Robert Merryfield was admitted at the same term with Wallace. He was then but a beginner in the profession and his promising career was ended by an early death. Asbury Steele has been for many years a highly respected citizen of Grant County. He was for several years clerk of the court and in 1843 was admitted to the bar. Isaiah M. Harlan began his career as an attorney at the Grant County bar in October, 1840. Beginning in the fall of 1848 he was prosecuting attorney for three years. He, too, lived at Marion.

Later Circuit Judges. - The first term under the new constitution began in Grant County on Monday, March 28, 1853. Hon. John U. Pettit appeared as judge of the Eleventh Judicial Circuit, and John M. Connell as prosecutor. James W. Brown was still clerk, and Alexander Buchanan sheriff. Perhaps no man in the State was better adapted to the trying duties of reorganizing the circuit court under the new methods of practice than Judge Pettit. He was a resident of Wabash County. His mind was a storehouse of information on almost every conceivable subject. A ripe scholar and a great reader, he was thoroughly acquainted with the history, poetry and the current literature of the country. In law no man in Indiana had a more comprehensive knowledge. While sitting as judge but few appeals were taken from his decisions, and the supreme court rarely reyersed his judgments. Prior to this time he, had been a member of the Indiana Legislature, and had been United States Consul in Brazil. Beginning in 1854 he served four terms as a member of Congress, the first three as a Democrat and the last as a Republican. In 1862 he was commissioned colonel of the Seventy-fifth Regiment of the Indiana Volunteers, but was compelled to resign on account of' feeble health. At the September term, 1853, the following record was made concerning the adoption of a seal of the circuit court: os

I, the undersigned, judge of the Grant Circuit Court in said county and State, do hereby devise, adopt and.create the following as the seal of the said court from henceforth, to wit: To be of metal, circular, and its face of the exact dimensions of the seal impressions made on the margin of this sheet, and so engraved and inscribed as to make the following impression in relief, to wit: On the outer rim at the margin, milled diagonally with the diameter of the seal, within said rim the words and name following to wit: "Seal of Grant Circuit Court.'' Within said words a dotted circle parallel with the outer rim, and within said circle an eagle with expanded wings, an escutcheon on its breast, an alive branch in its right talon and three' arrows in its left, and above said eagle seven five-pointed stars, and six similar stars below. wae

During the same term this other record was made: "The committee on the application of M. L. Marsh to be admitted as an attorney of this court, on full examination now make their report in these words (here insert it), which report is approved by the court." But the report is not shown. It was probably favorable.

The first railroad litigation was begun in the March term, 1854. Suits were brought against the Marion & Logansport Railroad Company for the use of John Brownlee, but they were all dismissed at the cost of the railroad company. Another was by the Marion & Mississinewa Valley Railroad Company against John D. Marshall, to set aside subscription for stock, The.railroad company was successful in this suit.

Retirement of Judge Pettit - When the circuit court for September, 1854, met it was presided over by Hon. John Brownlee, as judge of the Eleventh District. At the April term, 1855, Hon. John M. Wallace appeared as judge. Perhaps Grant County has never had an abler lawyer than Johu M. Wallace. He was a splendid advocate, and as a judge had few superiors. He remained upon the bench a full term of six years, and in the civil war served as colonel of the Twelfth Regiment. He was soon after appointed paymaster of the United States Volunteers. He is elsewhere extensively noticed in this volume.

County was held at the April term, 1856. It was against Sarah Hubbard, and. came to this county from Wabash on a change of venue, The jury was composed of these men: George W. Webster, John Russell, Isaac G. Carter,-Enos Johnson, Jonathan Camblin, Samuel McNary, James F. Hall, Smiley Farth, James Hix, M. L. Ink, Joseph Brown and Davidson Culbertson. A verdict of guilty and imprisonment for life was returned by the jury. The prosecuting attorney was Orris Blake. At this same term of court Grant County had a murder case of her own. It was entitled the State vs, Maurice Neenan. Isaac Vandevanter, James F. McDowell and Andrew J. Harlan were appointed by the court to defend the prisoner, who proved himself to be a poor man, and unable to hire attorneys. The jury found him not guilty. Another case that attracted considerable attention was the State of Indiana vs. Joseph B. Davis, for manslaughter. It was tried at the April term, 1857, and consumed a large part of one week. The attorneys for the State were I. M. Harlan, Brownlee Vandevanter and McDowell. The defense was conducted by Steele, Thompson and St. John. It resulted in an acquittal by the jury.

In February, 1859, Conrad Slagle was found guilty of assault and battery with intent to kill. He was sentenced to the State prison for two years by the jury, but a new trial was given. He was again found guilty and given the same verdict as before. In June of the same year Benjamin Cline on the same kind of a charge, and received the same penalty as Slagle.

The September term, 1860, was the last of Judge Wallace's official term. As indicating the esteem in which he was held by the members of the bar, the following resolutions were passed by them on the 20th of September of that year:

Wuerkas the Hon. John M. Wallace, judge of the Eleventh Judicial Circuit of Indiana, having discharged the varied and laborious duties of that important place for the term of six years past, and

WHERBAS we, the members of the bar and officers of the court of Grant County feeling and believing it to be due to Judge Wallace to express our appreciation of his official conduct, and tender him a testimonial of our continued respect and esteem for the able, impartial and gentlemanly manner in which onerous duties have been discharged, therefore

Resowed, That we hereby tender to Hon. John M. Wallace our hearty approval of his official conduct and dignified bearing, trusting that he will accept our warm-

These resolutions were unanimously passed upon the motion of Howell D. Thompson. James F. McDowell was chairman of the meeting and R. B. Jones, secretary.

First term of Judge Biddle- - On the 18th day of February, 1861, Hon. Horace P. Biddle presented a commission as judge of the Eleventh Judicial Circuit, signed by Gov. Hammond, and dated October 26, 1860. At the same time M. H. Kidd was prosecuting attorney. In Judge Biddle Grant County had one of the ablest jurists upon the bench that Indiana has. He is now, and was then a resident of Logansport, and is one of the most highly respected men of the State. He served until the early part of 1867 upon the Grant Circuit bench. His eminent abilities as a lawyer and judge led to his elevation to the supreme bench of the State, and he was one of the conspicuous men of that court. In addition to his extensive knowledge of the law, he is well educated and a polished gentleman. His tastes are of a decidedly literary turn, and he has achieved some reputation as an author and poet.

Death of Judge Wallace. - The records for the November term, 1866, contain the following in reference to the death of Judge Wallace: "The sudden and unlooked for death on the 27th day of August, 1866, of Hon. John M. Wallace, a member of this bar and former judge of this court, is an event at once so mournful and so startling that the members of this bar can not suffer it to pass without thus publicly offering to this court an expression of their appreciation of his character as a lawyer and a gentleman and a profound regret for his sudden death in the very noon of his life." The resolutions are but a repetition of this and of other resolutions passed upon his retirement from the bench. Perhaps no man at the Grant County bar stood higher than Judge Wallace. As an able lawyer and eloquent advocate, but few were his equal, and no man in the county could have been more universally mourned. At the same time the bar passed resolutions concerning the death of Col. R. B. Jones, a member of the bar and former clerk of the court.

Character of later Judges. - Joshua H. Mellett assumed the duties of circuit judge in Grant County at the June term, 1871. He was probably as good a judge as has ever been upon this bench. His learning was deep in the law and he was painstaking and careful in the administration of affairs. He was courteous and affable in manners, thus winning the respect of the whole bar. He lives at New Castle in Henry County.

Judge Mellett's successor was Gen. James R. Slack, of Huntington, whose first term in this county was in April, 1873. He had gained a good reputation as a lawyer, but as judge many of the bar beheld his accession to the bench with misgiving. Notwithstanding this he succeeded in being a good judge. He was apt to be too hasty in his decisions. On the bench he was jovial as well as off, but he seldom allowed his appreciation ofa joke to interfere with the proper decorum of the court. He had many warm personal friends and a high ambition to go to Congress, but never succeeded in obtaining that distinction.

Henry B. Sayler was also a resident of Huntington and came to the circuit bench in this county in September, 1881. He had served four years in Congress and was a good speaker. It was expected that he would make an excellent judge, but his mind, though active on the stump and in political matters, was somewhat slow in accepting a legal proposition. Under his supervision business accumulated. He was well educated and possessed a good knowledge of the law. Owing to a change in the district in 1885 he was succeeded at the April term of that year by William H. Carroll, of Blackford County.

Judge Carroll has been upon the bench only & short time, but thus far is giving good satisfaction to both the bar and the public. He is not of that brilliant kind of men whose abilities are easily measured, On the contrary he is reserved and unostentatious in the performance of his duties, but seems always to have the necessary resources and information required in a wise and impartial judge. As a public speaker he is not fluent and deals mainly with facts, not fancies. His charges to the jury are clear and concise and embody the question at issue, thus giving the jury a right understanding of points they are called upon to decide.

The Probate Courts. - The first court of any kind held in Grant County was a probate court. It began its sessions on the 7th of September, 1831, at the house of David Branson. Under the old laws the associate judges were ex-officio judges of the probate court in the absence of a regular probate judge. Samuel McClure and Caleb Smith, who had beefi appointed associate judges, presented their commissions as such, signed by Gov. J. B. Ray and dated August 8, 1831. Jesse Vermilya was clerk, and Benjamin Berry, sheriff. Thus constituted, it continued in session two days. The first regularly appointed probate judge was James Trimble, whose first term was held in November, 1838. He continued in that capacity but one year and was then succeeded by Benoni C. Hogin. Since his time the following were probate judges: in 1844 both J. W. Goldthait and George F. Dunn, the latter continuing until 1848. At that date he was succeeded by Frederick P. Lucas, who held the office until it was abolished by the adoption of the new constitution. During all this time the court had jurisdiction in nothing but probate matters, but appeals could be taken to the circuit court. Probate matters were settled in the court of common pleas under the new constitution.

The Common Pleas Court. - At its establishment the court of common pleas was given exclusive jurisdiction of probate matters, and the old probate courts were abolished. This was another of the changes which the new practice brought about. It had original jurisdiction of all that class of offenses which did not amount to a felony, except those over which justices of the peace had exclusive jurisdiction. State prosecutions were instituted by affidavits and information. Under certain restrictions this court had jurisdiction over felonies, where the punishment could not be death, and in no case was the intervention of the grand jury necessary. In all civil cases, except for slander, libel, breach. of marriage contract, action on official bond of any State or county officer, or where the title to real estate was involved, this court had concurrent jurisdiction with the circuit court, where the sum or damages due or demanded did not exceed $1,000, exclusive of interest and costs. It also had concurrent jurisdiction with justices of the peace, where the sum due or demanded exceeded $50. When the court was organized appeals could be taken from it to the circuit court, but that right was afterward abolished, but appeals could be taken to the supreme court, and its jurisdiction was from time to time enlarged. The clerk and sheriff of the county officiated in this court as well as in the circuit court, and the judge was ex officio judge of the court of conciliation. This last had jurisdiction of causes of action for libel, slander, malicious prosecution, assault and battery, and false imprisonment, and extended to questions of reconciliation and compromise only. No attorney was allowed to appear for his client before the court of conciliation, but the parties were required to appear before the judge apart from all other persons, except that an infant was required to appear by guardian, and a female by her husband or friend. This branch of the court was abolished in 1867.

First Term in Grant County. - The first term of the common pleas court held in Grant County, began May 9, 1853. Walter March was the judge, and William Brotherton was the First District attorney. Judge March was succeeded by Henry S. Kelly in 1856, and then came John Green in 1860, and William Garver in 1864. The last named remained upon the bench until the court was abolished early in 1873.

Below is given a list of the prosecuting attorneys, with their first terms of court as such. Also a roll of attorneys which is believed to be nearly complete up to the new constitution. Since then it is almost impossible to give them with anything like completeness. A few that are not here given are spoken of elsewhere in this chapter. At the end is given a list of the present attorneys practicing at the Grant County bar, that are residents in the county.