St. Joseph County, Indiana - Chapter 6: County Business, 1907 (part 1 of 2)

Chapter 6: County Business

Edwin Nicar, and Mr. Nicar by Timothy E. Howard, who was himself succeeded in 1883 by George H. Alward, the elder. Mr. Alward died during his term, November 11, 1885, and the county commissioners appointed his son, also George H. Alward, to fill out his term. In 1886 William C. McMichael became clerk, and in 1895, George M. Fountain. In 1903, George H. Alward became clerk again, by election, and in 1907 was succeeded by the present incumbent, Frank P. Christoph. Thirteen different men have filled the office of clerk of the circuit court from the organization of the county.

Sec. 2. - The Recorder. - On the expiration of Lathrop M. Taylor's term as county recorder, in 1837, he was succeeded by William H. Patteson, who served for two terms, and was succeeded by Lott Day, Jr.

By an act approved February 16, 1852,* the county recorder was required to provide an official seal for his county. Before any such seal should be used, it was provided in the act that "an accurate description of the impression thereof, attested by the proper recorder, and the impression of such seal, shall be filed in the office of the clerk of the circuit court, and by said clerk recorded in the order book of said court."

On February 28, 1853, Mr. Day, then recorder, adopted a seal for his office, and filed for record in the office of the clerk of the St. Joseph circuit court a description reading as follows : ' ' Said seal is about one and one-half inch in diameter, with two circles on the outer edge, between which are the following words, 'Recorder of St. Joseph County, Indiana.' Inclosed in the inner circle or center of said seal is the following design : An axeman and two trees; and in the distance a buffalo and rising sun." An impression of the seal appears on the margin of the order book.^

Reece J. Chestnutwood, the elder, who held the office until 1867. Mr. Chestnutwood is still (1907) living in the city of South Bend, in the ninety-second year of his age.

Alexander N. Thomas became recorder in 1867 and served for eight years, being succeeded, in 1875, by John Groff. Harrison G. Beemer succeeded to the office in 1879, and w^as himself succeeded in 1883 by Thomas M. Howard, who served for eight years. William D. Shimp became recorder in 1891, Jeremiah Hilclebrand in 1895, and Josiah P. Reed in 1899. Noah Lehman, the recorder elect, will take the office January 1, 1908.

Sec. 3. - The Auditor. - By an act approved February 12, 1841,* the office of county auditor was created. The auditor was by the act made clerk of the board of county commissioners, or virtually county clerk, and was required to perform all the duties in relation to county business theretofore enjoined upon the clerk of the circuit court. After the expiration , of the term of L. M. Taylor, in 1837, his successor, Tyra W. Bray, as clerk of the circuit court, continued to act as clerk of the board of commissioners until the enactment of the foregoing statute and the election, on the first Monday of August, 1841, of George W. Matthews, the elder, who was the first county auditor. Schuyler Colfax, who was a stepson of Mr. jMatthews, acted as deputy auditor during his incumbency. This was the first experience in public life of the man who was afterwards three times speaker of the national house of representatives and also vice-president of the United States. Mr. Matthews served as county auditor until his resignation August 1, 1849. The board of commissioners selected Aaron B. Ellsworth to fill the vacancy, and in 1851 Mr. Ellsworth was elected by the people, and held the office until 1859, when he was succeeded by Woolman J. Holloway. Mr. Holloway held the office until 1867, and was then succeeded by Alfred Wheeler. Mr. Wheeler was succeeded, in 1875, by William

D. Smith, and Mr. Smith in 1883 by Aaron Jones. Then followed Robert Myler, George W. Loughman, John M. Brown, and John W. Harbou, the present incumbent, whose second term will begin January 1, 1908.

Sec. 4. - The County Agent. - The county agent was an officer having charge of the real estate and other property of the county. His duties in the beginning seem to have been confined to affairs connected with the organization of new counties, and were provided for in section four of the act to establish seats of justice in new counties, approved January 24, 182-4."^ He was to be appointed by the board doing county business, and was the fiscal officer of the county.

William Brookfield was appointed by the board of justices as the first agent of St. Joseph county, at a called session of the board held for that purpose, ' ' at the house of Alexis Coquillard in said county, on Tuesday, the 14th day of September, 1830." The order of appointment reads:

"Ordered by the board of justices of St. Joseph county that William Brookfield be appointed agent of St. Joseph county; and he is required to give bond and security in the penal sum of five thousand dollars. Alexis Coquillard and Lathrop M. Taylor are accepted by said board as his securities."

' ' Ordered by the board aforesaid, that John Egbert be appointed county agent of said coimty, and he is required to give bond under the penalty of six thousand dollars. Jacob Egbert and William McCartney are approved of by the board as his securities."

At the January term, 1832, the board made the following allowance: "Ordered by the board aforesaid, that John Egbert be allowed the sum of six dollars for his services for the past year as county agent." At the September term, 1832, he was allowed fifteen dollars additional for his services to that date.

"Ordered by the board aforesaid, that Anthony Defrees be appointed county agent in and for said county, in the room of John Egbert resigned ; and said Defrees is required to give bond and security in the penalty of six thousand dollars. Peter Johnson, L. M. Taylor and Jacob Hardman are approved of by the board as his securities."

The most important duties transacted by the county agent of this county were the negotiations for the sale of the town lots donated to the county, in consideration of the location of the county seat, first at Mr. Brookfield's town of St. Joseph's, and afterwards at South Bend; and also matters in relation to the erection of the county buildings. The office was abolished and its duties transferred to the county auditor, subject to the orders of the board of county commissioners, by an act approved May 13, 1852.«

Sec. 5. - The Sheriff. - Although the constitution of 1816 provided for the election of both a sheriff and a coroner, yet neither of these officers is mentioned in the act of January 29, 1830, for the formation of St. Joseph county. None seems to have been elected, nor is there any record of the appointment of either such officer by the board of justices or by the board of commissioners.

The legislature, however, by an act approved February 9, 1831,^ seems to have recognized that Samuel L. Cottrell was appointed by the board of justices as our first sheriff, for the year 1830. The act is as follows:

"Whereas, it is represented to this general assembly, that Samuel L. Cottrell acted as sheriff' to the board of justices of the county of St. Joseph, from the month of August in the year of our Lord one thousand eight hundred and thirty, to the month of November in the same year, without being legally elected and commissioned: and some doubts having arisen as to the legality of the proa. Special and Local Acts, 1852, p. 32. 1). Special Acts, 1830, pp. 97, 98.

"Be it enacted by the general assembly of the state of Indiana, that the acts and proceedings of said board of justices of the county of St. Joseph, for and during the time aforesaid, be and the same are hereby declared as legal and valid, as if the said Samuel L. Cottrell had been sheriff of said county, according to law, at the taking place thereof. ' '

The board of commissioners also, by an order entered on the third day of their first term, September 7. 1831, recognized Mr. Cottrell as having acted as sheriff during the first year of our county history, and made him an allowance for his services, as follows: "Ordered by the board aforesaid, that Samuel L. Cottrell be allowed the sum of twenty-two dollars for services rendered said county as sheriff."

Sec. 6. - The Coroner. - The office of coroner, closely related to that of sheriff, was held by Samuel L. Cottrell beginning in 1834 ; Edmund Pitts Taylor, 1835 ; Daniel D. Custard, 1838; Jacob Hardman, 1840; Leonard B. Rush, 1841; Israel De Camp, 1843; Truman Fox, 1845: Richmond Tuttle, 1847;

Sec. 7. - The Treasurer. - The office of county treasurer wa.s at first an appointive one. By an act approved January 8, 1831,« it was made the duty of the boards doing county business, "at their first meeting after the first day of February annually, to appoint some respectable elector as county treasurer." This officer was required to give bond to the satisfaction of the board, and to perform duties similar to those now required. His compensation was fixed at "one and a half per centum, for all moneys received, and one and a half per centum, for all moneys paid out for the county; excepting, however, moneys arising from the sale of lots at county seats, in which case he shall receive no more than two per centum for both receiving and paying out."

As we have already seen, John D. Lasly was appointed by the board of justices as first treasurer of the county for the year 1830. This was the first order made by our first county board.'^

Aaron Miller was appointed second treasurer of the county, by an order of the board of county commissioners, made September 7, 1831, as follows:

"Ordered by the board aforesaid, that Aaron Miller be appointed county treasurer of said county, from this time until the first of March next, and until his successor be appointed and qualified ; and that said Aaron Miller is required to give bond with good security in the penal sum of two thousand dollars. William IMcCartney and Benjamin

By an act approved February 12, 1841," the office was made elective by the people, and the term tixed at three years. The constitution of 1851 made the office a constitutional one, but shortened the term to two years,- also, as in case of other county officers, limiting the incumbent to two successive terms. ^

The bonds given by the county treasurer from time to time may be some indication of the constant growth of the county since its organization. As we have seen, the first treasurer, John D. Lasly, was required, in

1831, in the sum of two thousand dollars. John K. Wright, in 1850, gave a bond of forty -three thousand dollars; Robert B. Nicar, in 1851, a bond of fifty thousand dollars; Solomon Miller, in 1856, eighty thousand dollars : and the same treasurer, in 1858, one hundred thousand; John H. Harper, in 1860, one hundred and thirty thousand; Hiram Miller, in 1870, one hundred and fifty thousand; Simon Yenn, in 1892, three hundred thousand; William H. Oren, in 1894, four hundred thousand; and Adam Hunsberger, in 1903, seven hundred and fifty thoiisand. William C. Stover, the present county treasurer, who is also ex-offieio city

Sec. 8. - The Surveyor. - County surveyors, as appears from an act approved February 4, 1831,* were originally "appointed in each and every county, by the boards doing county business in the respective counties." Afterwards, by an act approved February 2, 1833,^ the power of appointment to this office was placed in the circuit court, and the duration of the office was fixed at three years. The right of appointment was still later placed again in the county board, but the term remained three years.''

While it does not appear from any order of record made by the board of justices that any surveyor was appointed by that board, yet it is quite evident that William Brookfield acted in that capacity during the years 1830 and 1831. He was a deputy United States surveyor, and made the first land surveys of the county. He platted his o\^ti town of St. Joseph's, the first county seat; and also platted for Coquillard and Taylor the toA\Ti of South Bend, the permanent county seat.

aforesaid, that William Clark, the county surveyor, be requested to procure certified copies from the registers of the diiferent land offices wherein the lands lying in said county have been sold, the field notes of the townships, ranges, sections, fractional sections and quarter sections, as originally surveyed; and deposit the same in the recorder's office of said county, according to law. ' '

Tyra W. Bray was appointed surveyor by the board of commissioners at the September term, 1832. He held the office until 1836, when Thomas P. Bulla succeeded to the office ; and thereafter continued to hold it until 1856, serving the last four years by election under the new constitution.

In 1851 the office became a constitutional one, and elective by the people of the count^^ The term was fixed at two years, but there was no limitation as to the number of terms which an incumbent might fill.*

Milton W. Stokes succeeded Thomas B. Bulla in 1856, and held the office until March 12, 1864, when he was succeeded by William D. Bulla, who held until December 5, 1865. William J\I. Whitten became surveyor in December, 1865, and held the office until 1868, when Milton V. Bulla was elected: he continued in office until 1872. In 1872, Mr. Whitten was again elected. In 1874, Arthur Joseph Stace became county surveyor and held the office until 1880 ; when ]\Ir. Wliitten was again elected. j\Ir. Whitten held the office from 1880 until 1888 ; when Benjamin F. Waldorf was elected, continuing in office until 1892. In 1892 William E. Graves was elected; and in 1894, George H. Leslie. Frederick W. Keller succeeded to the office in 1899 : and Titus E. Kinzie, the present incumbent, became surveyor in 1905.

Sec. 9. - The County Board.^ - The first county board, called the board of justices, and consisting of Lambert MeCombs, Adam Smith and Levi T. Arnold, served but a part of the year 1830. Elected in August of that

The first board of commissioners, elected in August 1831, consisted of Aaron Stanton, elected for three years; David Miller, for two years; and Joseph Rohrer, for one year. Thereafter, the requirement of the act organizing the board was, that each year one commissioner should be elected for three years, from the district represented by the commissioner whose term should expire at the end of the current year. The term of each commissioner was fixed at three years; and in case of a vacancy the commissioner elected should serve only until the end of the term, the design being that one commissioner should go out and one come in each year.

At the election held on the first day of Augaist, 1832, John Ireland, of the first district, was elected commissioner for three yeara, to succeed Joseph Rohrer, whose term expired that year. At the same election, John Martindale, of the second district, was elected commissioner for one year "to fill a vacancy occasioned by the resignation of David Miller." And at the same election Benjamin Hardman, of the third district, was elected commissioner for two years, to fill the vacancy apparently occasioned by the departure of Aaron Stanton from the county. Afterwards commissioners were elected for full terms or to fill vacancies, as follows: In 1833, Lott Day and Rejoiolds Dunn; in 1835. Orlando ]\I. Hurd; in 1836. William H. Patteson; in 1837, George Holloway and Alonzo Delano; in 1840, Thomas D. Vail; in 1841, Oilman Towle ; in 1842, ^Matthew B. Hammond; in 1843, Thomas D. Vail; in 1844, Oilman Towle: in 1845, i\Iatthew B. Hammond; in 1846, Ranson Hubbard; in 1847. Oilman Towle; in 1848, Samuel M. Chord: in 1849, John Drulinger; in 1850, Oilman Towle; in 1851, Edwin Pickett; in 1852, John Drulinger; in 1853, Oilman Towle; in 1854, John Hammond; in 1855, John Drulinger; in 1856, Oilman Towle; in

1857, John Hammond; in 1858, James C. Williams ; in 1859, William F. Bulla ; in 1860, Francis R. Tutt; in 1861, James C. Williams; in 1862, Oilman Towle; in 1863, Clement Studebaker ; in 1864, Nathaniel Frame ; in 1865, Oilman Towle ; in 1866, John C. Knoblock; in 1867, Nathaniel Frame; in 1868, Oilman Towle. (There was no election in 1869, for the reason that the legislature had provided for biennial elections, instead of annual elections, as formerly. Had there been an election in 1869, commissioner John C. ,Knoblock's successor would then have been chosen; as it was, Mr. Knoblock held over until the election of Dwight Deming, his successor, in 1870. Mr. Deming, through a misundertsanding, held his office for three years, instead of holding for two years only, and so filling out the term for which Mr. Knoblock had held one year. Many errors of this kind occurred at this time in different counties. To correct these mistakes, and restore the terms to the reg-ular length of three years, one commissioner coming in each year, as intended by the original act of January 19, 1831, organizing the board of county commissioners;* the legislature passed a remedial act, approved March 7, 1885.^ In accordance with the provisions of this act of 1885, the term of commissioner Jacob Eaton was afterwards extended from 1885 to 1890, and thus the error which had existed from 1872 to 1890 in the terms of the commissioners of the second district was corrected. Since 1890, the terms are each three years, and one commissioner succeeds to the office each year, according to the original plan of the act of 1831.^ In 1870, Dwight Deming became county commissioner; in 1871, Albert Cass; in 1873. Dwight Deming; in 1874, John Ernsperger; in 1876, Dwight Deming and William D. Rockhill; in 1877, r. See Commissioners' Record, No. 11, for the opinion of the county attornery, according to which the error in commissioners' terms was corrected.

John Ernsperger; in 1879, Dwight Deming and William D. Rockhill; in 1880, Newton Jackson and Charles O. Towle ; in 1882, Isaac Early and Samuel Bowman ; in 1883, Charles O. Towle; in 1885, Jacob Eaton and Dixon W. Place; in 1886, Charles O. Towle; in 1888, Dixon W. Place; in 1889, James Dougherty; in 1890, Jacob Eaton; in 1891, John Olinger; in 1892, James Dougherty; in 1893, John N. Lederer; in 1894, Peter H. Reaves; in 1895, John D. Fulmer; in 1896, Samuel Bowman; in 1897, Peter H. Reaves; in 1898, John D. Fulmer; in 1899, Samuel Bowman; in 1900, Isaac Newton ]\Iiller; in 1901, Marion B. Russ. (In 1901, the legislature, by an act in force March 11, 1901," provided that the terms of county officers, including those of county commissioners should "begin on the first day of January next following the term of office of the present incumbent.") In 1903, Herman A. Fohulka succeeded to the office of county commissioner; in 1904, Isaac Newton Miller; in 1905, Marion B. Russ; in 1906. Barney C. Smith ; and in 1907, Daniel A. White.

Ii. The Circuit Court

Sec. 1. - The President and Associate Judges. - By article fifth of the constitution of 1816, it was provided that, "The judiciary power of this state, both as to matters of law and equity, shall be vested in one supreme court, in circuit courts, and in such other inferior courts as the general assembly may from time to time direct and establish."

The same article of the constitution further provided. That the circuit courts should each "consist of a president, and two associate judges"; that the state should be divided into three circuits, for each of which a president should be appointed, who should reside within his circuit ; that the legislature might increase the number of circuits and presidents as the exigencies of the state might from time to time require ; that all judges should "hold their offices during the term of seven years, if they shall so long- behave well, and shall, at stated times, receive for their services, a compensation which shall not be diminished during their continuance in office;" and that, "The presidents of the circuit courts shall be appointed by joint ballot of both branches of the general assembly; and the associate judges of the circuit courts shall be elected by the qualified electors in the respective counties." There was this further provision, that "The president alone, in the absence of the associate judges, or the president and one of the associate judges, in the absence of the other, shall be competent to hold a court, as also the two associate judges, in the absence of the president shall be competent to hold a court, except in capital cases, and cases in chancery. ' '

In the act approved January 24, 1831,^ the legislature provided that the president should receive a salary of seven hundred dollars a year, to be paid out of the state treasury; and that the associate judges should receive two dollars per day, while attending court, to be paid out of the county treasury. By an act approved February 15, 1838,^ it was provided that, in the absence of any presiding judge of a circuit, any other presiding judge of the state might hold court in such circuit. This was, in effect, a provision for a change of venue from a judge, and was so intended by the legislature as shown by the preamble to the act. Express provision was afterwards made for changes of venue in case the presiding judge should be disqualified for any cause. In such case the special judge was allowed three dollars a day for his services.'' seven circuits; the first consisting of the counties of Vermilion, Parke, Montgomery, Fountain, Warren, Tippecanoe, Clinton, Carroll, Cass and St. Joseph. In St. Joseph county provision was made for two terms of court, beginning on the first Mondays of May and November, each year. By the same act, the terms in Cass county were made to begin on the fourth ]\Iondays in April and October; and, in order to enable the judge to come immediately from Cass to St. Joseph, the legislature, by an act approved February 3, 1832,« pro\dded that the terms in St. Joseph county should begin on the Mondays following the terms in Cass county, which provision in some cases made a week's difference in the dates of the beginning of the terms in St. Joseph county.

By an act approved January 7, 1833,^^ the eighth judicial circuit was organized, consi.sting of the counties of Carroll, Cass, Miami, Wabash, Huntington, Allen, Lagi-ange, Elkhart, St. Joseph and Laporte. Each of these counties was given one week's court, except Allen and Elkhart which were given two weeks each. The terms in Cass county began, as formerly, on the fourth Mondays of April and October; those in Allen, on the Mondays succeeding the terms in Cass: those in Lagrange in like mariner, succeeding the terms in Allen ; those in Elkhart, succeeding the terms in Lagi^ange; and those in St. Joseph succeeding the terms in Elkhart. This arrangement usually brought the terms of St. Joseph county in June and December. By a re-arrangement of terms in the eighth circuit, in an act approved January 28, 1834,*' the terms of the St. Joseph circuit court were transferred to the first or second weeks of April and October. By an act approved January 30, 1835,*^ the terms in St. Joseph county were again changed to the first weeks of April and November. By an act approved February 4, 1836,'^ definite days were named for the several counties for the year 1836, the terms for St. Joseph being- Monday, the eighteenth of April and Monday, the third of October, of that year.

By an act approved December 9, 1836,^^ the ninth judicial circuit was formed, consisting of the counties of Elkhart, St. Joseph, Porter, Lake, Newton, Starke, Pulaski, Marshall, Fulton and Kosciusko. The length of the term in St. Joseph county remained one week; the terms to begin on the first Mondays of April and October. The district and terms of St. Joseph county remained unchanged in the act dividing the state into eleven districts, approved January 28, 1839,^ except that the terms were made two weeks each. By an act approved January 20, 1841,*^ it was provided that the terms in St. Joseph county should begin on the fourth Mondays of March and September.

By article seventh of the constitution of 1851, our .judiciary system was completely changed. The associate judges were discontinued, and provision was made for the election for six years of one judge for each circuit. By an act approved June 17, 1852,^ the state was divided into ten circuits, St. Joseph county continued to be in the ninth circuit; which now consisted of the counties of Lake, Laporte, Porter, St. Joseph, Marshall, Starke, Fulton, White, Cass, Pulaski, Howard, Carroll and Miami. By an act approved June 18, 1852,s' the length of each term in St. Joseph county remained two weeks; and the terms were fixed for April and October, each year, succeeding the terms in Marshall county. By an act approved

January 21, 1853," the eleventh circuit was created, and the counties of White, Cass, Howard, Carroll and Miami were transferred from the ninth to the eleventh circuit; while Jasper county was for a time added to the ninth circuit. By an act approved February 3, 1853,^ the terms in St. Joseph county continued to be in April and October, but following the terms in Laporte ; with a proviso that the first term of St. Joseph county in that year should begin on the twentyeighth day of February. By an act approved March 1, 1855,^ a like arrangement was continued, except that each term was one week earlier. By an act approved February 15, 1859,'^ the terms in St. Joseph county were advanced still another week, following Porter instead of Laporte.

Sec. 3. - -The Circuits Under the Constitution OP 1851. - By an act approved March 6, 1873,^ the legislature re-organized the judicial circuits of the state, increasing the number to thirty-eight. In this act it was provided that "The counties of Laporte and St. Joseph shall constitute the thirty-second circuit." The terms in Laporte county were made five weeks each, beginning on the firet Monday in February, the fourth Monday in April, the first Monday in September, and the third Monday in November, each year. The terms in St. Joseph county were made four weeks each, beginning on the Mondays following the Laporte terms. The arrangement so made continued for twenty-four years ; when, by an act approved January 30, 1897,^ the legislature finally created a separate district, with unlimited terms, for St. Joseph county. Section second of that act reads as follows :

"The county of St. Joseph shall constitute the sixtieth judicial eircuit, and the terms thereof shall be held as follows, to-wit : Coma. Acts, 1853, p. 32.

mencing on the second Monday of September and first Monday of November, February and May of each year, and shall continue in session so long as the business thereof shall require. ' '

It was found that the November term, as so fixed, came too near the September term; hence, by an act approved February 28, 1901,* this section was so amended that the November term should begin on the third ]\Ionday of November instead of upon the first Monday. No further ehange has been made, and St. Joseph county continues to be a circuit by itself, with four terms of court each year. The ternxs are practically continuous during the year, beginning on the second Monday of September, and each term ending just before the beginning of the next term, until July in each year, when a summer vacation is taken.

Sec. 4." - The First Session of the Court. - The first session of the St. Joseph circuit court, of which we have any record, was held at a term beginning on Monday, November 29, 1832, the day fixed by the act of the legislature approved February 3, 1832.^ According to the provisions of this act, taken in connection with those of the act of February 10, 1831,^ it would seem that terms of court should have been held in May and October, in the year 1831. and also in May, 1832. There was dissatisfaction, as well as some sharp criticism, for what was looked upon as neglect of official duty in relation to this matter. The county records show that juries were drawn by the board of commissioners for a term that should have been held in November, 1831; as also by the board of justices for a term that should have been held in November 1830. But the records do not show that any court was held at either of these times.*^ that the jurors selected for 1830 or 1831 were ever called to serve in court, or indeed that there was any term of court held in either of these years, yet there are traditions that such sessions of court were actually held. Mr. Timothy G. Turner, w^ho, in 1867, published a ' ' Gazetteer of the St. Joseph Valley, ' ' tells us of enquiries concerning this matter made by him among the older residents of the county, then living; and in that publication, he makes a statement of what he learned as to the November term, 1830, of the St. Joseph circuit court :*

"It is, however, a matter of doubt," he there says, "whether this court was ever held. Mr. Samuel L. Cottrell, now living at South Bend and who was then sherifl', has an indistinct recollection that it was. He thinks at least one of the county judges was present, that court was duly opened in the woods near the bank of the river, below Water street, and inunediately adjourned. Other persons remember to have been present at some time, about that date, when a court was held by county judges; but the first court of which there is any record, and at which there was a presiding judge, was held at South Bend, on the 29th day of October, 1832, by the Hon. John K. Porter, presiding judge of the first judicial circuit, to which the county was then attached. It lasted but for one day, and was held in the bar room of Calvin Lilly's hotel, then standing on Michigan street, [on the west side of the street, between Jefferson and the first alley north.] The old building is now in existence, and Ls used by Studeba.ker Brothers, on Jefferson street as a ware room."

The proceedings of that first and only day of the October term, 1832, of the St. Joseph circuit court, as set out in order book number one, are as follows :

"Be it remembered, that on the 29th day of October, in the year of our Lord A. D. 1832, a term of the circuit court for St. Joseph county, state of Indiana, was begun and held at the house selected by the county commissioners in the to"\\Ti of South Bend. Present John R. Porter, president judge of the first judicial circuit of the state of Indiana, also William INIeCartney, Senr., and John Banker, Esqr^., associate judges of the St. Joseph circuit court;* also Andrew Ingram, prosecuting attorney of the first judicial circuit of the state of Indiana; also Daniel A. Fullerton, sheriff of said county, and Lathrop M. Taylor, clerk of said county of St. Joseph. And the court was opened in due form of law. Now comes Daniel A. Fullerton, sheriff, and returns the venires which were heretofore issued. The following grand jurors appeared and answered to their names, viz. : Lowdy Stevenson, Eli Roe, Pleasant Harris, Nathan Greene, Robert Redding, Peter Johnson, George Wilkenson, Anthony Defrees, John Smith, sen., Stanton Porter, John Massey, William P. Howe, Frederic Beuter, William Runion, Peter Rupel, Jacob Harris, George Holloway and Jacob Bowman. Whereupon the court appointed George Holloway foreman ; and the said grand jurors were severally sworn, and retired to deliberate. And Calvin Lilly was sworn as bailiff for said grand jury.

"On motion of E. Egbert, Esqr., J. A. Listen, E. Egbert, A. Ingram, Thomas B. Brown, William M. Jenners and C. K. Green were admitted to practice as attorneys and eounsellers at law at the bar of this court.

a. Chapel W. Brown was one of the associate judges, elected at the first county election, in August, 1830. He, together with Judge Banker, held the first term of our probate court, in January, 1832. as authorized by the act of February 10, 1831, organizing the probate court. He was succeeded by William McCartney. See Subd. 3, Sec. 1, of this chapter, "The Probate Court." It does not appear that Judge Brown ever sat in the circuit court. In Subd. 3, of this chapter, it is shown that while Judge Brown was elected in August, 1830, he did not qualify till the day he held probate court, January, 1832. It would seem that in this interval William Brookfield was associate judge, by appointment, perhaps. He took the acknowledgment of the plat of South Bend as associate judge, Mai-ch 28, 1831. See Chap. 11, Subd. 1, Sec. 3; also Subd. 3. of this chapter, Sec. 1.

"And now, at this day, comes the complainant, by E. Egbert, his attorney, and it appearing to the court, upon affidavit filed, that the defendant in this ease is a non-resident of the state of Indiana, it is thereupon ordered by the court that the pendency of this suit be published for three weeks successively, sixty days prior to the next term of this court, in the St. Joseph Beacon, a paper published in the town of South Bend, notifying the defendant to appear at the next term of this court, to answer said petition ; or the matters therein contained will be heard in her absence.

"And now, at this day, comes the plaintiff, by his solicitor; and it appearing to the court, upon affidavit filed, that the defendant in this case is a non-resident of the state of Indiana, it is thereupon ordered by the court that the pendency of this bill be published for three weeks successively (sixty days prior to the next term of this court), in the St. Joseph Beacon, a paper published in the town of South Bend, notifying the defendant to appear at the next term of this court, and plead, answer or demur to said bill : or the matter therein contained will be heard in his absence.

"On motion of A. Ingram, it is ordered to be certified on the record, that C. K. Green, an applicant for a license to practice law, is a young man of good moral character.

"Now, at this time, come the plaintiffs, by Ingram, their attorney, and this cause is continued by operation of law until the next term of this court. And time is given.

[A case almost identical with the preceding case was that of The Heirs of John Hall, by their guardian and next friend, against The Heirs of George Cicott.]

"And now, at this time, comes the plaintiff, by his counsel, and the defendant, by his attorney, comes also and files his demurrer, in these words (here insert), to which the plaintiff files his rejoinder. And the court thereupon, after mature deliberation, sustains the said demurrer to the plaintiff's said bill. It is therefore considered by the court that the plaintiff's said bill be dismissed, with leave to amend his bill in ninety days; and the said plaintiff' pay the costs of this demurrer within ninety days, or attachment to issue,

"Now comes the said plaintiff, by Evans, his attorney, and files here his bill against the said defendants; and it appearing to the satisfaction of this court that Louis Cicott, James Cicott, Joseph Cicott, Francis Cicott, Mary Ann Labada, Hagget Fisher, and the unknown heirs of Ferris Compo, deceased, heirs at law of George Cicott, deceased, by the affidavit of Benjamin Coquillard, defendants to said bill are not inhabitants, and live without the state of Indiana; it is therefore ordered that notice be given of the pendency of this cause to the said defendants, by three successive publications in the St. Joseph Beacon, a newspaper of general circulation published in the county of St. Joseph and state aforesaid, sixty days prior to the next term of this court, that they be and appear on the first day of the next term of this court, to show cause, if any they have, why the prayer of said bill shall not be granted; and it is further ordered that process issue against the said Zachariah Cicott, in this behalf directed, etc. And this cause is continued to the next term of this court, with leave to the plaintiff to amend his bill.

"Now, at this day, comes A. Ingram, Esq'"., prosecuting the pleas of the state of Indiana, and the defendant comes also; and being set at the bar of the court, and it being demanded of her how she will acquit herself of said charge, for plea thereto says she is guilty. It is therefore considered by the court that the said def*^ do make her fine to the state of Ind. in the sum of five dols., and that she stand committed in the custody of the shff. until the fine and costs of said suit are paid or replevied.

"The grand jury empanelled to enquire into the body of St. Joseph county do report that they have examined the jail of said county, and do find in said jail one prisoner; and further do find said jail insufficient and uncomfortable.

county from the first to the eighth judicial circuit; and also iixed the terms of court for June and December, in each year. The second term of the St. Joseph circuit court, accordingly, was held in June, 1833. The record shows the court to have been held in a "court house," and also shows the presence of a new president .judge and a new prosecuting attorney. The proceedings of this second term opened as follows :

' ' At the June term of the St. Joseph circuit court, conmienced and held at the court house in the town of South Bend, in the county of St. Joseph and state of Indiana, on the first Monday of June, being the third day of June in the year of our Lord one thousand eight hundred and thirty-three.

"Gustavus A. Everts produced his commission bearing date the ninth day of January in the year of our Lord one thousand eight hundred and thirty-three, from his excellency Noah Noble, governor of the state of Indiana, appointing him president judge of the eighth judicial circuit of said state, for and during the term of seven years from the ninth day of January, 1833.

"On the back of which commission is the following endorsement, to-wit : ' State of Indiana, Sixth Judicial Circuit, ss. I, Charles H. Test, president judge of said sixth circuit, certify that Gusta\ais A. Everts personally appeared before me on the 25th day of February, in the year of our Lord 1833, and being duly sworn deposeth and saith that he will support the constitution of the United States and the constitution of the state of Indiana, and that he will well and faithfully and impartially discharge the duties of president judge of the eighth judicial circuit of the said state of Indiana, to the best of his abilities.

date the eleventh day of August, in the year of our Lord one thousand eight hundred and thirty, commissioning him clerk of the St. Joseph circuit court for the said county of St. Joseph, for and during the term of seven years from the 11th day of August, 1830." And endorsed on such commi.ssion is his oath of office, sworn to on the twenty-fourth day of August, 1830, before Samuel L. Cottrell, sheriff of St. Joseph county.

So much of the record of said term as shows the names of the jurors then summoned is also here given, as indicating persons then prominent citizens of the county:

"Daniel A. Fullerton, sheriff of the county of St. Joseph, now returns into court the venire of the grand jury heretofore issued, and brings into court the following jurors named in said venire, to-wit: Horatio Chapin, who was sworn as foreman, Simeon Mason, William Roe, Samuel Witter, Adonijah Rambo, Samuel Ritter, Warren Burk, James Garrett, Abraham Whitmore and Abraham Smith, ten in number, being of the regular panel of grand jurors. The sheriff now summons the following bystanders, to-wit: John D. Lasley, Londy Stephenson, John Becraft, William Stanfield and John Ireland, who being accepted by the court, together with the above named ten of the regular panel, were sworn as the grand jury of this term; who retired under the charge of Reuben Hildreth, a sworn bailiff, to deliberate upon matters touching their present service.

' ' The following grand jurors of the resrular panel, being three times solemnly called, answer not, to-wit: Samuel Newman, Lot Day, John Egbert, Daniel Edwards, James Palmer, Henry Augaistine and John Weaver, but herein wholly make default. It is therefore ordered by the court that an attachment do issue against the above named delinquents, returnable at the first day of the next term of this court, to render excuse, if any they have, for failing appear as grand jurors."

known lawyers to practice in court, as follows: "On motion of J. A. Liston. John B. Chapman, Martin M. Ray, D. H. Coleriek. Joseph L. Jernegan, Samuel C. Sample and William 0. Ross are admitted to practice as attorneys and connsellers of law at the bar of this court, and they are severally sworn as such. ' '

The seal of the court was also adopted ac ihis term, by the following order: "The court now devise aaid adopt a seal, and order a description thereof to be recorded, which is done as follows: 'Indiana. St Joseph County. ' The device whereof is an eagle, bearing in his talons a bunch of darts, an olive branch and an escutcheon. An impress of which said seal is annexed to this entry and description."

At this second term of the St. Joseph circuit court a considerable increase was shown in litigation. During the six days' session there were thirty-six cases considered by the court, distributed as follows: Domestic' attachment, two ; attachment for contempt, one ; action on bond, one; forfeiture of recognizance, two ; to keep the peace, one ; trespass, two: trespass in trover and case, one; insolvency, two ; divorce, two ; chancery cases, five ; suppression of ferry license, one ; appeal from county commissioners as to ferry license, one ; appeals from justice of the peace, fifteen.

It is shown by the record of this June session that Jolui IB. Chapman appeared in court and produced his commission from jXoah Noble, governor of the state, commissioning him as prosecuting attorney of the eighth judicial circuit for the term of two years from the tenth day of Januarj^ 1833.

"The grand jury now come into court, and return into court sundry bills of indictment found by them, and sig-ned by their foreman as true bills; which are filed by the clerk as such. And the grand jury further make the following ' presentment of the insufficiency of the county jail, to-wit: The grand jurors for the state of Indiana, empanelled, sworn and charged in the circuit court of St. Joseph county to enquire in and for the body of the county aforesaid, upon their oath present that they have examined the jail of the county aforesaid, and find that the same has been broken open by some person to them unknown, by cutting a log from one side, rendering the said jail insufficient for the detention of prisoners; and we further present that the said jail is wholly insufficient for the safe keeping of prisoners in other respects.

"Ordered by the court that writs of capias ad respondendum do issue, on all indictments found at the present term ; and that each of the defendants in said bills named are required to enter into a recognizance in the sum of $25.00, with surety in the like sum, except where a different amount is endorsed on said bills.

"It is ordered by the court that the clerk of this court certify to the board of county commissioners the number of days the grand jurors and petit jurors served at this term of the circuit court ; as also the number of days the associate judges served at this term. ' '

The names of the associate judges are not mentioned in the proceedings of the term, the record of each day's proceedings being signed only "G. A. Everts."

"On motion of Albert S. White, Esqr., Hugh McCulloch, Esqr., is admitted to practice as an attorne.y and counsellor at law at the bar of this court, and is sworn as such.

"On motion of Jonathan Listen, Esqr., it is ordered by the court to be certified of record that John D. Defrees, an applicant for a 'license to practice as an attorney and counsellor at law, is a man of good moral character. ' '«

Sec. 6. - Other Sessions of the Court Under the Old Constitution. - The record for the December term, 1833, beginning Monday. December 9, 1833, shows that Gustavus

A. Everts was present as president judge and William IMcCartney and John Banker as associate judges. Lathrop M. Taylor was clerk; Samuel L. Cottrell, sheriff, and John

The jurors attached to show cause why they should not be punished as for contempt for failing to attend at the June term were each found to have had suflficient excuse, and were discharged.

Ten cases of indictments for selling spirituous liquors were considered by the court at this term. There was one conviction, the trial being by a jury, and a fine of twelve dollars and fifty cents and costs was assessed against the defendant. Three divorces w^ere granted. The grand jury again found the jail "wholly insufficient for the confinement of prisoners, there being a large hole in one corner of said jail and otherwise deficient and wanting much repair." Among the indictments returned was one ' ' for keeping and exhibiting a gaming table," and the defendant was required to enter into a recognizance in the sum of one hundred dollars, and bail in the like sum.

The final order of adjournment at this term was signed only by the associate justices, William McCartney and John Banker. Chapel W. Brown does not appear in the records of the circuit court as one of the associate judges, although he sat with Judge

The act of January 28, 1834, brought the first term of our circuit court for that year in April.« The session convened on Monday, April 7, 1834. The judges and other officers were the same as at the December term, 1833, and the character of the litigation was but little different. The final order of adjournment was again signed by the associate judges, this time with the explanation, "previous to signing Judge Everts having left the bench. " -

At the October term, 1834, the officers of court were unchanged, except the prosecuting attorney. In the following entry it is shown that one of the most distinguished men of the local bar was advanced to that position :

"Now comes into court Sanuiel C. Sample, Esqr., and produces a commission from his excellency, Noah Noble, governor of said state, commissioning him, the said Sample, prosecuting attorney of the eighth judicial circuit. On the back of which commission was the oath of office endorsed."

At this term there were numerous prosecutions for violations of law, - gaming, selling liquor to Indians, affray, assault and battery, contempt of court, to keep the peace, rout, drunkenness, burglary, larceny, as also cases of slander.

The grand jury again reported "that the jail of said county is totally insufficient in point of strength to confine prisoners, and that the same wants repairing. The same we find clean and wholesome.

On this report it was "ordered by the court that the clerk of this court certify down to the board of county commissioners a copy of the aforesaid jail report, together that it is the order of this court that said commissioners have said jail repaired in a good and substantial manner to contain prisoners."

On Thursday, the first day of January, 1835, a special term of the St. Joseph circuit court was held for the trial of Alexis Provoncille, indicted for burglary and larceny. The following jury was empanelled to try the case: Simeon Mason, Ezekiel Thomas, John Rudduck, Jr., Londy Stephenson, Seymore Stilson, John Rose, Alexander Blake, Timothy Mate, Henry Smith, Francis R. Tutt, William Middleton and Samuel Good, - "twelve good and lawful men, householders and freeholders of the said county of St. Joseph, who are chosen, elected, tried and sworn to well and truly try the issue joined, as aforesaid." The defendant was convicted, and was sentenced to state's prison for two years and fined five dollars. This was the first case of imprisonment in the state's prison from St. Joseph county.

At the April term, 1835, the officers remained as before. The prosecutions for violations of the criminal law continued numerous, particularly those for gambling, and for keeping gaming tables. There were two indictments for vending merchandise without license, and one for betting on a horse race. At the October term, 1835, the officers of the court were unchanged, and the character of the litigation continued to show numerous violations of the criminal law. Gambling was still the chief offense, but there were also nine indictments for selling intoxicating liquors without a license, and one for selling spirituous liquors to Indians. Two indictments were returned for violations of the astray laws. There were actions also to keep the peace, and several suits for slander.

At the October term, 1836, Samuel C. Sample was presiding judge, and Joseph L. Jernegan prosecuting attorney. The associate judges remained as before.

At the October term, 1840, Gustavus A. Everts was prosecuting attorney; and at the April term, 1841, the office was again filled b}^ William C. Hanna.

At the March term, 1844, Ebenezer M. Chamberlain became president judge, and at the September term of the same year Powers Green and John D. Robertson became associate judges.

At the October term, 1848, George Pierson was prosecuting attorney, and at the April term, 1849, Theodore S. CoMdes. Philo Bennett was associate judge at the September term, 1851, and James S. Frazer, afterwards judge of the supreme court, was prosecuting attorney at the same term.

Sec. 7.- - Sessions op the Court Under THE New Constitution. - Under the constitution of 1851, which took effect on the first day of November in that year, the offices of president judge and associate judges were discontinued. The office of circuit judge simply took the place of president judge, although the several president judges were continued in office until the ends of their respective terms. By the act of June 18, 1852," re-arranging the circuits, it became doubtful on what day the October term of the St. Joseph circuit court for that year should begin. Accordingly Judge Robert Lowry, a. Special and Local Acts, 1851-2, pp. 102-105.

"It being the opinion of the majority of the bar of this court that there may be much doubt -whether court can be legally held in this county commencing on this day, under the laws heretofore in force; that by the act of the last session of the general assembly the old law may be considered as being repealed and a different day fixed for holding said court in this county. It is therefore ordered by the court that all writs, suits, complaints and proceedings pending in said court, both civil and criminal, be and are hereby continued until court in course, and that publication hereof be made in the St. Joseph Valley Register. And court adjourned until court in course.

At the February term, 1853, Thomas S. Stanfield presided as "judge of the ninth judicial circuit, and ex officio judge of the St. Joseph circuit court," as was then the official title of our circuit judge. Don J. Woodward was the prosecuting attorney at this term. Alvin S. Dunbar appeared as deputy prosecutor under Mr. Woodward for several terms.

There was a special June session in the year 1853, at which the Hon. William E. Stuart, one of the judges of the supreme court, presided, for the reason that Judge Stanfield had been interested as attorney in several ca.ses then on the docket.

At the April term, 1855, Morgan H. Weir was prosecuting attorney, but frequently appeared by William G. George, as deputy, or as special prosecutor appointed by the court. Mr. Weir resigned during the next year.

At the April term, 1857, Albert G. Deavitt was judge and Mark L. De Motte, who had been appointed to fill a vacancy caused by the rasignation of Judge Stanfield, became ill after his appointment and was succeeded by John B. Niles, prosecuting attorney. Mr. De Motte, prosecuting attorney, usually appeared by William G. George, and sometimes by James Davis, special prosecutors.

At the April term, 1858, Andrew L. Osborn was judge. At this term the court promulgated and had spread of record a set of rules for the government of the business of the court. Reuben L. Farnsworth wa^* appointed special prosecuting attorney. As Judge Osborn was disqualified to try a number of cases in which he had been attorney, there was a special term for June, 1858, at which Charles H. Test, judge of the twelfth circuit, presided. At the April term, 1859, Thomas S. Stanfield was appointed special judge, and William B. Biddle appeared as prosecuting attorney. In April, 1861, D. J. Phillips was prosecuting attorney, and in April, 1865, Aaron Gurney.

At the April term, 1867, Alvin S. Dunbar was appointed special judge, to hold for the term instead of the Hon. Andrew L. Osborn, who was ill. At the October term of the same year William H. Calkins, afterwards representative in Congress, was prosecuting attorney.

At the March term, 1873, the thirty-second judicial circuit was fonned, consisting of St. Joseph and Laporte counties. Four terms, each for four weelis, were assigned to St. Joseph county. Judge Stanfield continued to preside as judge of the new circuit. An important order for the rearrangement and improvement of the court room and the clerk's and sheriff's offices was made at this term. It was one of the most commendable a.cts of Judge Stanfield 's public life, though for a time it occasioned much adverse criticism.

At the June term, 1873, George Ford, by appointment of Governor Thomas A. Hendricks, appeared as prosecuting attorney; and at the December term of that year James A. Crawley became prosecutor. At the De-

At a special term, opened on July 25, 1876, the Hon. Horace P. Biddle, judge of the supreme court of the state, presided in the trial of important cases. Judge Stanfield having personal interests, by reason of which he deemed it improper for him to preside.

At the December term, 1876, the Hon. Daniel Noyes appeared for the first time as judge of the St. Joseph circuit court. He continued thereafter to preside for the period of eighteen years.

At the March term, 1885, Andrew J. Egbert was prosecuting attorney, and was succeeded at the December term, 1887, by Abraham L. Brick, who, like Mr. Ford, held the office until his election to congress.

An adjourned term of court was held, beginning July 23, 1889, at which the Hon. Joseph A. S. Mitchell, then a member of the state supreme court, took the bench for the trial of an intricate case involving the rights of the various owners of the water power generated by the dam in South Bend over the St. Joseph river. By agreement of parties Judge Mitchell appointed former supreme Judge James S. Frazer referee, to hear and report upon the evidence. The case was finally adjudicated to the satisfaction of all parties, chiefly by reason of the measurements and well-considered system of weirs devised by civil engineer John F. Meighan and adopted by the court.

Judge Stuart, Judge Biddle and Judge Mitchell were the only judges of our supreme court to sit in the St. Joseph circuit court in the trial of causes during their terms as judges of our highest court. Almost as great honor Avas done us by that eminent jurist, James S. Frazer, who, however, had left the supreme b'^neh before sitting here as referee in our noted hydraulic case.

most promising young lawyers, but very soon failed in health. His deputy, Francis M. Jackson, acted for him during the greater part of the time, until the death of Mr. Connolly in the spring of 1893. Mr. Jackson was appointed by the court special prosecutor for the May term, 1893, and soon after was commissioned by Governor Claude Matthews to fill the office until the beginning of the term of Mr. Connolly's successor, Oliver M. Cunningham, in the fall of the same year.

In 1894 the Hon. Lucius Hubbard took his seat as judge of the St. Joseph circuit court, and in 1895 the Hon. John C. Richter, now judge of the Laporte circuit court, became prosecuting attorney of the circuit. In 1897 St. Joseph county became the sixtieth circuit of the state, and Judge Hubbard was retained as first judge of the new circuit. Thomas W. Slick , was the prosecuting attorney.

In 1900 the Hon. Walter A. Funk became judge, an office to which he was last year reelected. In 1901 George E. Clarke became prosecuting attorney. He held the office until 1905, when he was succeeded by George A. Kurtz. The present prosecuting attorney, Joseph E. Talbot, took his office at the beginning of the current year.

Of the judges of the St. Joseph circuit court, Samuel C. Sample, Thomas S. Stanfield, Albert G. Deavitt, Lucius Hubbard and Walter A. Funk were at the time of their incumbency citizens of this county, as were also the following named prosecuting attorneys : Samuel C. Sample, Joseph L. Jernegan, George Ford, Andrew J. Egbert, Abraham L. Brick, Peter D. Connolly, Francis M. Jackson, Oliver M. Cunningham, Thomas W. Slick, George E. Clarke, George A. Kurtz and Joseph E. Talbot. The remaining judges and prosecuting attorneys were citizens of other counties attached to our judicial circuit.

Iii. The Probate Court New York

of the constitution of 1816, authorizing the establishment of courts inferior to the circuit court, the legislature, by an act approved February 10, 1831,* provided for the organization in each county of a probate court, consisting of one judge, to be elected every seven years by the voters of the county. The court was given "original and exclusive jurisdiction in all matters relating to the probate of last wills and testaments,- - granting of letters testamentary, letters of administration, and of guardianship; including also "the protection of minors, idiots and lunatics, and the security and disposition of their persons and estates." The probate court was also given concurrent jurisdiction with the circuit court in actions "in favor of or against heirs, devisees, legatees, executors, administrators, or guardians, and their sureties and representatives;" also "in the partition of real estate." and some other like cases.

The procedure as to pleadings, writs, trial, judgment, executions, etc., was in all respects .similar to that in the circuit court, including the right to trial by jury. There might be an appeal either to the circuit court, or directly to the supreme court. The clerk of the circuit court and the sheriff of the county were alike officials of the probate court. As finally fixed by statute, the court met regailarly on the second Mondays of February, May, August and November, - except in case the circuit court or the board of county commissioners should be in session on such day, when the probate court was to sit on the succeeding Monday. The sessions of the court were limited to six days, and the compensation of the judge was three dollars per day.

ary 10, 1831, for the organization of the probate court, there being at the time no probate judge qualified to hold the court. Previous to the holding of this term of court the clerk, as authorized by the same statute, had issued letters testamentary on one estate, and letters of administration on another. The record of those first letters issued in this county, and also the record of the first session of our probate court, were entered up in the order book as follows:

"On application of Joseph Garwood to the clerk of the St. Joseph probate court, letters testamentary issued to the said Joseph Garwood on the estate of his father, Jonathan Garwood, late of said county, deceased, in vacation of said court, by his filing bond with John Wills and John Drulent as his securities, in the sum of five thousand dollars.

"On application of John D. Lasly to the clerk of the St. Joseph probate court, letters of administration issued to the said John D. Lasly on the estate of Basile Prunie, late of said county, deceased, in vacation of said court, by his filing bond with Alexis Coquillard and Peter F. Navarre as his securities, in the sum of five hundred dollars.

"At the first term of the St. Joseph probate court, begun and held on Thursday, the fifth day of January. A. D. 1832, at the house of Calvin Lilly, in the town of South Bend, in a room furnished by Alexis Coquillard, it not being convenient for said Coquillard to furnish a room in his house, as provided by law ; before the honorable John Banker and Chapel W. Brown, associate judges of the St. Joseph circuit court and sole judges of this court, there being no probate judge qualified in said county according to law to hold court.

from the eleventh day of August, 1830, dated the hour of eleven o'clock on the second Monat Indianapolis the 24th day of October, day of February, being the eleventh day of thereon, an impression whereof is made on 'This day came James P. Antrim and afthe margin of this page ; which this court firmed that he would support the constitution

The order of adjournment of this first one- his abilities and judgment faithfully disday term of court then followed: "And no charge the office of probate judge, in and for of the estate of Pricillia Garwood, and the ordering- of a citation to require John D. Lasly to file a sale bill and make settlement of the estate of Basile Prnnie.

At the February term, 1834, Elisha Egbert appeared as judge of the probate court. Judge Eg-bert continued to preside until the November term, 1838, when John J. Deming succeeded to the office. In 1846 Edward F. Dibble became judge, and in 1848 Judge Egbert came upon the bench for the second time and served until the court was abolished under the constitution of 1851. The last entry in the probate records reads : ' ' And court adjourns sine die. Signed August 25th, 1852. Elisha Egbert, Probate Judge."

Iv. The Court Of Common Pleas

Sec. 1. - Organization. - The seventh article of the constitution of 1851, as originally adopted, provided that "The judicial power of the state shall be vested in a supreme court, in circuit courts, and in such inferior courts as the general assembly may establish." Under the power so granted the legislature, by an act approved May 14, 1852,* provided for a court of common pleas, to consist of one judge, elected by the voters of the proper district, M-ho should hold his office for four years. ' '

This court was given the jurisdiction of the old probate court, with certain additional civil and criminal jurisdictimi, inferior to the jurisdiction of the circuit court. It was the old probate court greatly improved, and with its powers and usefulness much enlarged.

By an act approved June 11, 1852,* provision was made for the election of a district attorney in every common pleas district. The duties of this officer in the court of common pleas were quite similar to those of the prosecuting attorney in the circuit coui^:, except that his jurisdiction, like that of the common pleas judge, was in general limited to prosecutions for misdemeanors. As in case of the oid probate court, appeals might be taken from the court of common pleas either to the circuit court or to the supreme court. Appeals from justices of the peace might be taken to the court of (fommon pleas or to the circuit court. There were four terms of court each year. At first these terms were fixed for the first Monday of January in each year, and for the first Monday of every third month thereafter. The length of each term was made to depend upon the population of the county, varying from one to three weeks. The clerk, however, in the absence of the judge, was, for many purposes, required to keep the court open "on every judicial day of the year.""-

As the common pleas districts were at first arranged, the counties of St. Joseph, Marshall and Starke formed one district.^ But, by an act approved March 5, 1859, Laporte, Marshall, St. Joseph and Elkhart were formed into one common pleas district; while in the act numbering the several common pleas districts, approved March 11, 1861, the district composed of the counties of Laporte, Marshall, St. Joseph and Elkhart was named the seventeenth common pleas district.^ Sec. 2. - The Court in St. Joseph County. - The court of common pleas of St. Joseph county held its first session beginning on the first Monday of January, 1853. Although the court was in effect a continuation of the old probate court under the constitution of 1816, yet there were two sides to the court, law and probate. Separate records were kept, all civil and criminal business being transacted on the law side; while on the probate side were considered chiefly matters relating to the settlement of estates and guardianships.

"Be it remembered, that at a term of the court of common pleas of St. Joseph county and state of Indiana, established according to law, begun and held at the court house in the town of South Bend in the county of St. Joseph, in the state of Indiana, on Monday, the third day of January, in the year of our Lord one thousand eight hundred and fifty-three, and before the Hon. Elisha Egbert, judge of the district composed of the counties of St. Joseph, Marshall and Starke and ex officio judge of the said court of common pleas of St. Joseph county; and also present Samuel M. Chord, clerk of the court of common pleas of St. Joseph county ; and also present Benjamin F. Miller, sheriff of said county. And at the hour of one o'clock P. M., on said day,' said court was opened in due form of law. Thereupon it was ordered by the court that the commissions of said judge, clerk and sheriff of said court be entered of record on the order book of said court. ' '

In vacation of court, on January 13, 1853, the judge and clerk, -as required by the act of May 14, 1852, organizing the court, "proceeded agreeable to law to devise and adopt a seal to be used for said court, and it is described as follows : Said seal is about one and three-quarters inch in diameter, with two circles on the outer edge, between which are the following words in capitals, to-wit : Court of Common Pleas of St. Joseph County. In the inner circle or center of said seal is the following design, to-wit : A female with a spear and a pair of scales, with the word Indiana immediately over her head."

There were only three judges of the St. Joseph court of common pleas, Elisha Egbert, who held the office until his death, in 1870 ; Edward J. Wood, who held until the January term, 1873, and Daniel Noyes, who was elected in 1872 and held the office until the court was abolished by the act of March 6, 1873.

The district attorneys during the existence of the common pleas court of St. Joseph county were : In 1853, Horace Corbin ; in 1854, James L. Foster, and Edward F. Dibble ; in 1855, Joseph Henderson ; in 1857, Andrew Anderson, Jr.; in 1858, Reuben L. Farnsworth; in 1859, Amasa Johnson; in 1861, James Davis; in 1861-2, Charles P. Jacobs; in 1863, William Andrew; in 1869, Joseph D. Arnold; in 1872, William B. Hess, and in 1873, George Ford.

Sec. 1. - Slavery, as Known in Indiana. - Very many important cases affecting the rights of the people in their persons and property were passed upon from time to time b\ the three courts of St. Joseph county. To some of them reference has been made in the preceding pages. No case, however, has at any time been tried in our courts which roused the people to a higher pitch of interest at the time, or was productive of more la.sting results upon the community, not only of this county, but of all northern Indiana, than the fugitive slave case that came before Judge Egbert in the old probate court in 1849. The conflict in relation to slavery was growing warmer year by year over the whole country, and nowhere more so, perhaps, than in this state. Indiana, as we have seen, had originally been slave territory. The ordinance of 1787 for the government of the northwest had declared that ' ' There shall be neither slavery nor involuntary servitude in said territory," and this prohibition was repeated in both our constitutions. But though prohibited by law, slavery did exist in fact. Even as late as 1840, as we have seen, the existence of slaves in Indiana is shown in the United States census. From the first settlement the question was a burning one in our commonwealth, and this fire was destined to be

But to the jieople of St. Joseph county in the year 1849 the existence of slavery seemed a thing" afar off. The great body of our citi- ;^ens knew of the institution only as something, as it were, in a distant land, something of which they had read or heard people talk. They had not as yet come in contact with it ; it was a thing quite removed from their daily life. Railroad communication, which now brings the uttermost parts of the land so close to one another, was then unknown. Kentucky was not nearer to us than California or Oregon is now. Neither was the condition of slavery aired among the people by any national uplifting of the subject that set the real nature of the institution before their eyes, or called upon them to take action in regard to it. The compromise measures of Henry Clay had not yet been passed, nor had the fugitive slave law been enacted. The slavery dispute was as yet smoldering, and had not burst into flame. Such was the condition of the public mind of the people of St. Joseph county upon the subject of slavery when a most remai-kable object lesson was brought before them. The slave and his master were found pleading the great issue in our simple probate court."

Sec. 2. Our Slave Case. - John Norris, residing south of the Ohio river, a little below the town of Lawrenceburg, Indiana, claimed to own as slaves a family consisting of David Powell, his wife Lucy, and their four children, Lewis, Samuel, George and James. The family was allowed to cultivate a plat of ground and sell the produce where they pleased; and David and his boys often crossed the river to Lawrenceburg to make sale of their crops. During the night of a. The St. Joseph County Fugitive Slave case was fully treated in a paper prepared for a History of St. Joseph County, published in 1880 by Chapman & Co.. of Chicago. The writer shows himself to have been familiar with the facts, but does not give his name. We have somewhat abbreviated the narrative. Chapman, Hist. St. Joseph County, pp. 618-626.

Saturday, October 9, 1847, the whole family disappeared from Kentucky. The alarm was given next morning and several persons started in' pursuit. Norris and his party hunted through southern Indiana for two months without success, though they fouml in several places articles belonging to the fugitives.

Two years afterwards, in September, 1849, Norris started north with eight men, and at midnight on the 27th of that month, they l)roke into the house occupied by the Powells, about eight miles from Cassopolis, Michigan. The house was in the woods, about half a mile from any other dwelling; and David Powell and his son Samuel were at the time absent from home. Norris and his party compelled the mother and her three children to rise from their beds and go with them ; and, hurrying them off to their covered wagons, they started for Kentucky. A guard was left at the house to prevent the other inmates from giving the alarm. After a short time, however, the news spread and pursuit commenced. A neighbor, Wright Maudlin, overtook Norris and his party about noon next day near South Bend, Indiana, thirty miles from where they had started. JNIr. Maudlin immediately applied to Edwin B. Crocker, an attorney of South Bend, stating what he knew of the circumstances, that he had no doubt the Powells were free people, that he had known them as quiet and industrious persons, and never heard any intimation that they were slaves; that they had purchased a small tract of land, on which they resided at the time of their abduction, and that they were laboring hard to pay for it.

A petition for a writ of habeas corpus was drawn up, and signed and sworn to by INIr. Maudlin, averring that Mrs. Powell and her son Lewis were deprived of their liberty by some person whose name was unknown, under pretense that they were fugitive slaves; and averring that he verily believed they sheriff, for service. Mr. Day called upon sev- were free persons. On this petition the Hon. Elisha Egbert, probate judge, ordered a writ of habeas corpus to i&sue. The writ was placed in hands of Eussell Day, deputy eral citizens to accompany him in serving the writ. In the meantime, the report having spread that a party of kidnappers with their captives were in the vicinity, the whole community was aroused, and the people, in a state of excitement, ran about anxiously inquiring into the matter. The deputy sheriff overtook Norris and his captives about a mile south of the town, where he had stopped in the woods to feed his horses. His party was well armed and made quite a display of their weapons, and at firet evinced a disposition to resist all legal proceedings. The writ, however, was served by reading; and after a parley in which the deputy insisted that Norris and his party would not be allowed to proceed without a fair trial of his claims, he at last agreed to go back to town and proceed to trial on the writ of habeas corpus. By this time thirty or forty persons had arrived from town, two of them with guns; but no attempt was made to do violence to the kidnappers; and Norris and his party drove back to town, followed by the deputy sheriff and the people. Meanwhile another writ of habeas corpus, for all four of the captives, was sued out, and directed to Mr. Norris, whose name had now been learned. The first writ was dismissed. At the request of Norris, the deputy sheriff took the custody of the captives until Norris could procure counsel. In a short time he secured the ser\aces of Mr. Liston and ]\Ir. Stanfield, to conduct his defense. Mr. Crocker and ^Ir. Deavitt appeared for the captives.

The fugitive slave law not then being on the statute book, the only law under wiiich Norris could hold his captives was an old statute of 1793, not having any particular reference to the recovery of runaway slaves, but intended, in general, for the arrest of persons who had violated law in one state and then fled to another. It was contended against Norris that he had not complied with the terms of this statute, and therefore had no standing in court to hold his captives. In his favor it was contended that he had a right to arrest his slaves wherever he found them. No authority was introduced to sustain this contention; and Judge Egbert, after a full and candid hearing, ordered the Powells to be discharged.

The court w^as crowded with an anxious audience, listening to the argument of counsel and awaiting the decision of the court. Everything had been conducted with order and propriety, and no one anticipated the scene that followed the decision of the court. The judge spoke in a low tone of voice, so that but few had heard him. Mr. Crocker, however, stated the decision in a voice that all could hear. Norris, in the meantime, had gathered his men around the captives seated within the bar; and the moment the decision was repeated by Mr. Crocker the Norris party seized each of the captives with one hand, brandished their weapons with the other and threatened to shoot the first man that interfered. This action took place before adjournment of court and while the judge was still sitting on the bench. Up to that time everything had been quiet among those gathered in the court room ; but upon this display of force the people rose to their feet in a state of excitement. Some ran out to spread the alarm through the town ; others crowded around the Norris party and their captives, calling upon them to put up their arms. Notwithstanding their excitement the citizens made no attempt to rescue the captives by force. At length the Norris party put up their arms, the excitement subsided, and the sheriff, at the request of Norris, locked up the captives for safe keeping.

This was on Friday. During that evening and the next day several warrants were issued against Norris and his men for assault and battery, and one for riot, based upon their violent proceedings in the courthouse. Saturday was occupied in trying these cases; court, which was to begin its session the On jMonday morning, accordingly, when next Monday morning. Two suits were also the habeas corpus case came on for trial, begiin by the Powells against Norris and his Norris refused to appear, saying that he did men, for trespass and false imprisonment; not want the negroes; but would make the and they were held to bail in the sum of one citizens pay for them, which suited him betthousand dollars in each suit. On Saturday ter. The sheriff, in his return, stated that evening another writ of habeas corpus was he held the captives as the agent of Norris, issued against Norris, charging him with hav- under the state writ, which was set out in ing placed the captives in jail, returnable full. A replication to this return was filed, also on ]\Ionday morning. sworn to by Lewis Powell, excepting to the rection the captors had taken. During Sat- and several witnesses were examined in relaurday and Sunday great numbers of these tion to the facts of the case. The court, after perated state of min^, though conducting and neighbors of the captives now came forthemselves with coolness and moderation. ward, conducted them out of the courthouse

On Saturday, a citizen of ^Michigan made to a wagon and quietly drove off to their affidavit before a justice of the peace in South home in Michigan. On the bridge^ as they Bend that Norris and his party had been crossed the St. Joseph, they halted and gave guilty of kidnapping in Michigan, and had hearty cheers. They then rode on, singing fled from that state to Indiana. On this affi- their songs of freedom and rejoicing over the davit a writ was issued, but not served; for fortunate escape of their friends. The proseit afterwards became apparent that Norris cutions against Norris and his party were and his men would be pleased to be arrested now dropped, and in a few days they also so as to give that as an excuse for not ap- quietly departed for their homes. Thus pearing in court on Monday morning to ended one of the most exciting episodes that answer in the habeas corpus case. ever took place in northern Indiana.

Huntington, then on the bench, who ruled for the claimant. The case was afterwards tried before Judge McLean. In his charge to the jury, the judge favored the claim; Avhich was, for Lucy, forty years of age, five hundred dollars ; for Lewis, twenty years of age, eight hundred dollars; for George, sixteen years of age, seven hundred and fifty dollars; for James, fourteen years of age, seven hundred dollars; and for claimant's expenses, one hundred and sixty-five dollars and eighty cents. The jury allowed the claims, substantially a,s made, the verdict, in the aggregate, being for two thousand eight hundred and fifty-six dollars. During the years 1850 and 1851, twelve additional suits were brought against fifteen defendants for five hundred dollars' penalty each, for violation of the statute of 1793. Twenty-five other suits were threatened, if these should prove successful. These penalty suits were, however, decided in favor of the defendants, and the litigation came to an end. Such, in brief, was the most famoiLS case ever litigated before the courts of St. Joseph county, and by St. Joseph county lawyers.

On Tuesday, November 1, 1831, the board of county commissioners, then consisting of Aaron Stanton, David Miller and Joseph Rohrer, being in session at the house of Alexis Coquillard, on the second day of the November term of the board for that year, took the first step for the erection of buildings in which the biLsiness of the new county could more conveniently be carried on. The order of the board made on tha.t day in relation to the matter is as follows:

Sec. 1. - The First County Jail. - "Ordered by the board aforesaid, that the county agent be required to sell out to the lowest bidder, on the eighth of this month, at the hour of one o'clock on said day, the building of a county jail, of the following dimensions, to-wit : The jail to be thirty feet long and sixteen feet wide, with a partition wall through the center of the building; all the timber of the walls to be of good white oak timber, and to be hewed at least one foot square; as also both the under and upper floor to be of like timber, of one foot square ; the foundations of the building to be laid one foot .and a half below the surface of the ground, and to be raised six inches above the ground; the sills to be fifteen inches wide, and the log's for the floor to be let in on the silk six inches, and the logs to be rabbeted out that go on the top of the floor and let down over so as to completely cover the ends of the logs and prevent the floor from being raised; the building to be raised with a half dovetailed notch, in each of the corners as well as the partition wall; the story to be eight feet between the "under and the upper floor; the upper floor to be the ends of tlie logs cut off about six inches at each end, and the under side of the ends to be cut out or blocked off about four inches and let down on the logs, so as to prevent them from slipping out; the plates to be rabbeted out over the ends of the floor logs and onto them ; the roof to be put on with good white oak rafters, covered with good sheathing and good joint pine shingles; the gable ends to be done up with good poplar weather boarding; the corners of the building to be raised up plumb, and the comers to be sawed dowm smooth; the outside door to be cut out one foot from the partition wall, and to be two feet wide and four feet high in the clear when finished. There shall be an iron rod run up through the ends, or a foot from the ends, of the logs on the side of the door opposite the partition wall, of one inch bolt, and to extend six inches into the log below those cut out, and six inches up into the log above those cut out, and running through the same. The door shall be made of white oak plank of two inches thick, and be made double with said planks; the door shall be hung on three strap hinges, the straps to be three inches broad and half an inch thick; and the door shall also be lined with iron straps, to be put on within four inches of each other, and on each .side of the door; and said straps, as well as the hinges, shall all be riveted through the door within four inches of each other; the straps, other than the hingas, shall be at least one-eig-hth of an inch thick; the door to be hung on hooks to be in proportional size to the straps, and two of the hooks to be set upwards and one turned downwards; the lock of the door to be set in the inside by the contractor; the lock t-o be furnished by the agent ; the hooks on which the door is hung- to be entered into the timber well ; and the cheeks of said door shall be lined with grood white oak plank, one and a half inch thick, to be well spiked on. There shall also be another door made in the center of the partition wall, to be two feet wide and four feet high in the clear of said door after being- finished ; the cheeks of said door shall 'be faced with good oak plank, one and a half inch thick and well pinned on ; the door shall be made of two inch white oak plank ; the door shall be hung- on two strap hinges, to extend across the door and hang- on two sufficient hooks driven into the wall; the whole of the door to be driven with spikes within four inches of each other; the contractor shall put the lock on furnished by the 'agent. There shall be a window cut out in each end of the house, two feet wide and one foot high ; and there shall be bars of iron in each of said windows, of one and a quarter inch square, and sihall be placed up and down in the windows within two inches of each other, and the ends of said bai^s shall be sunk in the lower and upper logs at least three inches.

"And the jail shall be put on the southwest corner of the public square in the town of South Bend, and shall set lengthways north and south on the line of said lot, and the door shall be on the east side of said house. The undertaker shall be required to g:ive bond and security to be approved of by the agent, in the penal sum of one thousand dollars. The contract to be completed by the last Monday in April next ensuing the date hereof. The contractor will be entitled to receive a county order on the county treasury as soon as the contract is completed for the building of said jail. All the work to be done in a good, workmanlike and substantial manner."

Such were the plans and specifications for the first jail of St. Joseph county. As in many other cases, since and before, the work does not seem to have been completed according to the plans, nor to the satisfaction of the county commissioners. This will appear from the following- record:

"The board of St. Joseph county commissioners met at the usual place of meeting on Saturday, the 28th day of April, 1832, in the town of South Bend; it being a special meeting of said board to receive the jail built for the said county. Present, David Miller and Joseph Rohrer, Esqr^.

"The commissioners, after a full examination of the said jail, are of opinion that it was not finished according to contract; and by an agreement with the said Woods & Mc- Cormic [the contractors], they took the said jail off of their hands.

"Ordered by the board aforesaid, that Andrew Woods be allowed the sum of two hundred and six dollars and ninety cents, in full for his half in building a jail for said county, to be paid out of the first money that may come into the treasury from any donations made the county for the location of the county seat.

"Ordered by the board aforesaid, that Denis McCormic be allowed the sum of two hundred and six dollars and ninety cents, out of the first moneys that may come into the county treasury from any donations that have been made to said county for the location of its county seat, in full for his half in building a jail for said county."

five dollars. This time the work was done according' to agreement by one of the most competent and reliable of our early contractors. At the ensuing September term, September 9, 1835, an order was made which has a strange sound at the present day. Orlando Hurd, then one of the county commissioners, was '"'authorized and empowered to rent or let out the two upper rooms attached to the jail of said county, for the purpose of having the .jail and other property belonging to said county ^larded and taken care of."

Perhaps this primitive wooden jail, its Avails and floors of white oak timber, "hewn at leaist one foot square," held its inmates quite as securely as the steel cages of our modern structure, "the best jail in the state," hold the incorrigibles of our day. If the officer then in charge was as competent as his successor in charge to-day, we have little doubt that our first jail of white oak was amply sufficient for the purpose.

Sec. 2. - The First Court House. - But the new county needed a court house nearly as much as it did a jail. At the January term, 1832, the board of commissioners met as heretofore at the house of Alexis Coquillard ; but "it not being convenient for the said Coquillard to furnish them a room in his house, by request of the said Coquillard the commissioners adjourned to the house of Calvin Lilly in the town of South Bend, in a room provided for them at the request of the said Alexis Coquillard." The need of a permanent place to attend to the public business was thus forcibly brought to the attention of the board, and on the third day of the session-, Wednesday, January 4, 1832, the following entry was made in the records of the board :

"The court house shall be forty feet square, and built of brick. The foundation shall be made of good, durable arch brick, and sunk one foot below the surface of the ground.