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History of Darke County, Ohio, from its earliest settlement to the present time .. (Volume 1) online

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supreme court was the third Tuesday of October, thus estab-
lishing and pereptuating among us the custom of court terms,
which still generally prevails, and which originated centuries
before in England, under widely different conditions, when
the sovereign, with a retinue, passed frorh county to county
to dispense justice to his subjects. This persistent survival
of institutions, long after the conditions in which they had
their origin seem almost entirely obliterated, is one of the
most suggestive phenomena of civilization. The president
and associate judges in their respective counties, anv three of
whom formed a quorum, had common law and chancery juris-
diction.

Although rude surroundings characterized the inauguration
of the first tribunals pro-\'ided for the administration of jus-
tice in Montgomery county, it must not be inferred that the
law? themselves, and the methods of procedure, were in like



DARKE COUNTY 451

manner riidimental. On the contrary, the estalilishment of
regular tribunals to hear and determine matters in dispute,
had been from time immemorial characteristic of all phases of
ci\-ilization. The first step, indeed, in the advance of man-
kind from a sa\age to a civilized state, is the substitution of
the principles of justice for the use of force, in the adjustment
of human controversies. Among the enumerated objects for
which the federal government itself had been organized but a
few years before, the second in importance was declared to be
"to establish justice."

The principles of the English common law constituted a
well defined system long before the colonization or even the
discovery of the American continent, and manj' of the pro-
visions of the great character of English libertv. forced from
King John by the barons at Runnymede in 1215, were trans-
planted to American soil from England and nurtured by our
forefathers until they bore fruit in the Declaration of Amer-
ican Independence and the ordainment of our splendid system
of American written constitutions.

But long before Runnymede, or even the conquest of Eng-
land by William of Normandy, back in the sixth century, a
celebrated Roman emperor, named Justinian, the son of an
illiterate savage, descended from one of the conquered tribes
that had yielded reluctant obedience to the yoke of imperial
Rome, at the instance of the David Dudley Fields, Judge Dil-
lons and other learned jurists of his day, had ordered a com-
mission, composed of the most eminent lawyers of the age, to
codify the existing common and statute laws of the expiring
empire.

The immense body of jurisprudence, wiiich had resulted
from the varied conditions of that wonderful people through
the experiences of a thousand years, commencing with the
twelve tables of the Decemvirs, and including the successive
revisions that had been made from time to time embraced a
monstrous and unwieldy mass, corresponding to our elemen-
tary, statute, common law, and court decisions. This vast
aggregate was again revised, condensed and classified into
what are known to the profession as "the code, Pandects and
Institutes of Justinian."

A historical sycophancy has thus ascribed immortal honor
to a titled monarch of ordinary capacity and gross passions
which the world wiJl forever owe to a bod)' of illustrious
lawyers ("most of whose names are long since forgotten), with



452 DARKE COUNTY

the celebrated Tribonian at their head, who, by the diligent
labor of years, achieved this mighty work, and rescued from
the debris of a perishing empire what is known as "the civil
law," the priceless legac}' of the dying mistress of nations
to the modern world.

This "civil law," together with what is known as the com-
mon law of England, established in the colonies by legisla-
tive enactment, or custom, being those principles, rules of
action, and usages applicable to the government and security
of person and property, constituted the basis of American jur-
isprudence as it existed when the first courts were organized
and held in ^Montgomery county in the year 1803, in the upper
room of the log tavern of George Newcom, in the infant town
of Dayton, Ohio.

The adjoining country was an almost unbroken wilderness.
The clearings were few and far between. It is to be regretted
that even tradition has not been transmitted to us a descrip-
tion of the occasion of the early holding of court in Dayton.
There must have been several chairs for the judges and law-
yers, whose duty required them to be present and a table of
some sort upon which a record of the proceedings could be
written. The clerk of court doubtless provided himself with
sheets of foolscap paper purchaseable at Cincinnati to keep
minutes upon. Seats for spectators were probably provided
on benches made of huge slabs or puncheons. There was
no formidable array of statutes or books ; such as were abso-
lutely necessary were brought in the saddle bag of the pre-
siding judge.

The conditions of the infancy of an American frontier com-
munity in the beginning of this century were' vastly different
from those existing now. Then emigrants came singly or in
very small parties, by slow and toilsome journeyings, either
in rude boats upon the streams, or on foot, with animals,
through a tangled wilderness, infested with wild beasts and
inhabited by savage Indians. They came, bringing with them
but few of the comforts or conveniences of the older settle-
ments, prepared to encounter all sorts of dangers and priva-
tions, until their own patient labor should supply them in
their new homes. None but the more courageous, frugal and
hardy would venture upon an enterprise so daring. Few ex-
pected that even during their own lives they would reap the
reward of their toils, but were cheered by the hope that to
their children and their children's children would come bless-



DARKE COUNTY 453

ing and abundance out of their labor and privations. The in-
stinct of self-preservation inspired a willingness to assist each
other, and their simple acquisitions were scarcely of sufficient
value to supply a temptation to transgress the tenth .com-
mandment. Under such circumstances, there was but little
of course to submit to the-adjudication of judicial tribunals —
still the courts were regularly held, as prescribed by law, and
as immigration increased, subsistence became less precarious,
property rights and land boundaries more important and spe-
cifically defined, traffic grew more active, and as a necessary
result of these better conditions, sources of litigation also in-
creased.

One of the most ancient memorials relating to civil or crim-
inal procedure in Darke county is the judgment of Enos
Terry, rendered as a justice of the peace, against a stray negro,
who was arrested, arraigned and tried before him for stealing
a brass watch from a soldier of the Greenville garrison in
1812. On the conviction of the negro, a sentence was pro-
nounced by Terry unknown to the books, and not set down
or nominated in the statutes. The negro was required to sub-
mit to one of two penalties at his own option. Either to bear
the infliction of the Mosaic lashes, save one, or be stripped
stark naked and climb a thorn honey locust before Terry's
door. Abe Scribner, who was present when the trial came
of? and sentence was pronounced, made a lifelong enemy of
Terry by suggesting to him that his two daughters (one of
whom afterwards married John Mooney, and the other Bill
Scott) in case the negro chose to climb the thorn, should as-
sist him up the locust.

Subsequently, John Purviance, David Briggs and Terry
were justices of the peace of Greenville township, which, as
yet, was co-extensive with the entire county, no other di-
visions being made until after the organization of the county,
pursuant to an act of the general assembly of December 14,
1816. .\t a later period, Samuel McClure, who lived on
Whitewater, and Jacob Carlaugh, who resided at Stillwater,
were commissioned justices.

To pursue the civil history of the township of Greenville
whilst it embraced the entire county and remained as a mere
appanage of Miami county, and to know who were trustees
or constables, would but little interest the reader of these
pages, and for that reason the further reference to that matter
is omitted. But it may as well be stated here as elsewhere.



454 DARKE COUNTY

that from the first setting-up of a civil policy in Greenville
township, when it was co-exterisive with the county, until a
county organization took place under the act of December,
1816, no dismemberment took place, and until a cutting-up
under the authority created and set in motion by that act, it
remained entire. On perfecting the new county organization,
its dimensions were considerably reduced, and subsequent
changes in its limits were made from time to time until 1828,
since which time its boundaries have been unchanged.

Between the signing of the treaty of 1814 and the organiza-
tion of the county in the spring of 1817, under the law of the
preceding winter, the emigration to the township, as well as
to the residue of the county, had increased the population
more than three-fold.

The lots in the town of Greenville were yet the joint
property so far as the legal title was concerned, of John Devor
and the heirs of the deceased Mrs. Armstrong; prior to her
death, contracts for several of them had been made with par-
ties wlio had paid for and were li\-ing on them, but as yet had
no paper title. Devor, soon after the treaty, moved up to
Greenville from ^Montgomery county ; he had now purchased
two additional sections, twelve hundred and eighty acres or
more of land, part near to and other portions more remote
from Greenville, and for the advancement of the town it was
necessary not only to perfect to the purchasers the title of the
lots already bargained, but to dispose of the residue, as well
as secure to the county the title of the one-third given as an
inducement to secure the location of the county seat.

Legal proceedings to accomplish the desired ends were in-
stituted in the court of common pleas of ]\Iiami county, to
which Darke, not yet organized, was attached. Under these
proceedings the selection of the lots for' Darke county was
made, decrees for title of those contracted away taken, and
the proper convej^ances executed and an appraisal of the resi-
due of the lots : as well as adjacent lands of the half section,
was made, and a sale by the sheriff of Miami county ordered.
A public sale by the sheriiT was had at Greenville'on the 11th
day of June, 1816, when more than fifty lots were sold to
purchasers on the usual terms of partition sales, part cash
and part in deferred installments. One tract of the adjoining
land was sold, but the residue, some two hundred acres, was
bid in by Devor to pre\'ent what he considered a sacrifice, anc?



DARKE COLTXTY 455

.some years afterwards became the subject of another suit in
partition in the cotirt of Darke county.

The organization of the county, under the act of December
14, 1816, may in some particulars be said to have a place in
the annals of the town and township of Greenville, and of
some of those particulars only will mention here be made.
The same general assembly that passed that act, elected
Joseph H. Crane, president judge of the first judicial circuit,
a position for which he was eminently fitted, and worthily
adorned until his election to congress in October, 1826 : and
also elected John Purviance, Enos Terry and James Rush as-
sociate judges of the court of comm.on pleas of Darke county.
The appointment of clerk of that court, and of the county
recorder, devolved upon the court. It was intended that
Beers should be chosen to the first of these positions, but he
wanted a few weeks' residence of the prescribed time to ren-
der him eligible, and Linus Rascom was chosen as clerk pro
tem ; until a subsequent term, and before that subsequent
term intervened Beers had "lost his grip" and Eastin [Morris
was duly chosen to that office for the term of seven years. The
associate judges had met in special term to appoint a county
recorder. There were two candidates, James Montgomery and
Abraham Scribner. Montgomerj- was a fair penman and
Scribner's chirography was, in after years, apth- compared, by
David Morris, to a furrow drawn bv a shovel plow through a
newly cleared field of beech land. The judges were at a stand,
and appointed a committee of two to report to an adjourned
session on the qualifications of the candidates. Neither me.n-
ber of the committee could have claimed "benefit of clergy,"
if his neck had been in jeopardy, for neither could read nor
write a word, Scribner made so much sport of the appoint-
ment, that at the adjourned session, the court, to stop his
mouth, gave him the appointment, which he held until his
resignation in 1822, and during his whole term, not a single
word was ever written by him in the books of his ofifice, the
entire clerical labor being performed by Dr, Briggs and Eastin
Morris.

The board of county commissioners selected Beers as their
clerk, which position he held until the legislature created the
office of county auditor in 1821 or 1822. It may as well be
stated here that in 1829, upon the death of David Morris,
Beers obtained the office of clerk, which he held until 1850,
when he was chosen president judge of tlie first circuit, which



456 DARKE COUNTY

he held until he was superseded under the new dispensation
brought in by the constitution of 1851. He also held for a
number of years the position of prosecuting attorney and jus-
tice of the peace. He was a sound and an able lawyer, re-
garded as an oracle in legal matters by all his acquaintances
yet he never appeared to advantage as an advocate before a
jury, nor in an argument to a court. His decease occurred
about 1862.

Soon after the organization of the county, the commission-
ers took measures for the erection of a jail, and one of very
humble character was erected on the north part of the public
square, not more than thirty feet from the north corner of
the cit\" hall. It was constructed with two apartments 'each
about fifteen feet square, the outside walls made of two thick-
ness of sound timber, hewed one foot square, set on a double
platform on the ground, of the same material, and overlaid by
another of the same character upon which the roof was
raised ; the apartments were separated by a partition similar
to the walls. To one apartment was a door, andone window
about two feet square; in the partition was another door lead-
ing to the other apartment, which had no other opening,
either door or window. A\'hen it had inmates in cold v^'eather,
the outer room was warmed by a kettle of charcoal, the
fumes of which escaped through the window and crevices
between the logs of walls and ceiling.

One of the timbers forming the floor was once cut in two,
being severed by an auger furnished to a prisoner through the
window by a friend outside ; the piece thus cut off was pushed
from under the wall, and the party confined escaped. The
jiece of timber was replaced and fastened, but some years
later was, by a prisoner, loosened and removed, but in en-
deavoring to escape he got wedged fast in the opening, and
could neither get out nor get back. The sheriff found him in
the morning and with some eftort released him from what was
close confinement. This structure was burned down by an
incendiary on the morning of Sunday, Alay 2, 1827. It
was erected by Alatthias Dean at a cost of about $200.00 in
coimty orders that would then bring them only about sixty
per cent, of their face in money. In 1827-28, a new structure
for a jail and jailer's residence of brick was erected on the lot
occupied by the new building of Matchett, AA'^ilson & Hart.
This was a less secure building than the old log jail. A'ery
shortly after it was completed a noted thief named Jonathan



DARKE COUNTY 457

I'.ayles, who had been committed for horse-stealing, got out of
it so rpysteriously that the jailer, William Rush, was indicted
and tried for aiding his escape; the jury before whom he was
on trial, after the case was le.'t to them, deliberated for sixt)'
hours without meat or drink (it was not then allowed to feed
a jury at the expense of the county), and being unable to
agree, were with the assent of the defendant, discharged, and
before another term came on, the statement of Bayles, who
had been arrested and committed at Fort Wayne for other
offenses, explained the manner of his escape, and so com-
pletely satisfied every one that Rush had no hand in it that
the prosecuting attorney entered a nolle.

It may as well be stated here that this second jail was de-
molished about 1840, on the erection of another on the south-
eastern part of the same lot, that is now superseded by the
fourth jail of Darke couunt}'. About a year after letting the
contract for the first jail, John and James Craig erected the
first court house of the county, a frame structure of two stor-
ies, about twenty-two by twenty-eight feet, the upper story
of which was reached by a stairway from the court room which
occupied all the lower story and was divided into a clerk's office
and jury room. If two juries were in deliberation at once, as
was sometimes the case, the second was sent to some private
house. This building was erected on the south part of the
public square, diagonally across Broadway and Main street
from the old log jail. In it courts were held until the summer
of 1834, when it was removed, and with alterations and addi-
tions, was converted first into a dwelling house, and lastly to
a whisky saloon on Third street, southwest of and next to
Odd Fellows hall.

The second court house, built by James Craig, who has
been named as one of the builders of the first, was located in
the center of the public square. Craig took the contract at
so low a figure that he lost from $1,500 to $2,000 in his un-
dertaking. On the erection of the present court house, the
second one was demolished to make room for the city hall, a
building that neither f^or convenience nor as an ornament is
any improvefhent upon the old structure. It mav also, in
this connection, be noted that no place of business was pro-
vided for any county officer, save the clerk, until the erection
of the second court house, and in that for only part of them^
The auditor, recorder, treasurer, tax collector and sheriff each
had to furnish his own quarters, at his own expense. The



458 DARKE COUNTY

commissioners first quartered themselves on their clerk, after-
ward, when the office of auditor was provided for, on him.
It may further be stated here, that from 1822 to 1826, the po-
sition of collector of the tax was sold at public auction to the
highest bidder. This statement requires an explanation.

County orders were at a discount in these years of from
thirty-seven and one-half to sixty-two and one-half per cent.,
the treasury generally being without funds, they could alone
be passed at their face to the collector in payment of the
county taxes levied on chattel property ; ior the tax denomi-
nated the state tax, cash or coined money, or what was its
equivalent, notes of the bank of the United States, was re-
quired ; yet in the annual settlement, a proportion of the land
tax was set off to the county, and this proportion the collector
could discharge by turning over to the county treasurer the
orders at their face \'alue, which he had bought at thirty-five
to sixty-five cents on the dollar. This chance of making a
little money enabled the collector to give a bonus for the
office. For several years, county orders were a special cur-
rency of inferior value. If you wanted to buy a horse or a
cow, ten bushels of wheat or forty acres of land, the price was
named as so much in cash, or a different value in county
orders.

In 1823, this state of things opened the door for a transaction
that gave rise to much excitement, ill-blood and evil speaking,
that for several years laid on the shelf a hitherto popular man,
then in place as public officer, although in after years he was
acquitted b)' the people of blame in the matter, save negli-
gence of duty, the fraud mixed up with it being laid to other
account.

On the annual settlement with the countv treasurer, the
county orders redeemed by him were delivered to the com-
missioners and auditor, and he was credited therefor, and the
law then required that they should be burned in the presence
of those officials. No schedule of their number, amount or
payee was made or kept, but only the aggregate to be inserted
in the credit to the treasurer ; at the settlement of the year
mentioned, when the bundle of orders were turned over there
was no fire handy to carry out the behest of the law, and fric-
tion matches had not yet been seen or known. The bundle
was left in the auditor's care, who was to fulfill the omitted
duty when he had a fire or lighted candle in his office, and
nothing more was thought of it.



DARKE COUNTY 459

Some months afterwards, several of these orders, distinctly
lemembered by the treasurer, collector and commissioners to
be of those previously redeemed, were found in circulation.
How they again got out was never definitely proved or
known, nor was it ever ascertained what amount had been
fraudulently reissued. Xo accurate investigation ever took
place, for the system of keeping books then in vogue in Darke
county afforded no means of making an accurate investiga-
tion. Some of the orders were tracked very near, but not
quite to the auditor. That officer was many years later placed
in a position of trust, in which his securities paid hea\ily for .
his default. His name is omitted, and the matter, only re-
membered after a lapse of nearly four score years by less than
a dozen persons now living, is only adverted to here, because
in the ensuing session of the general assembly, it gave rise
to an enactment, ever since in force, that on the redemption
of a county order, the treasurer should either plainly write or
print across the face of it "redeemed," with the date of its
redemption and subscribe to the statement his name officially.
It may as well be further stated here that one of those sure-
ties, by reason of public sympathy for his loss, was some years
after chosen to the same position of trust to which his busi-
ness attainments was not equal, and he had to entrust his
duties to subordinates whose rascality in turn made him a
public defaulter, and he was sued on his bond. It is not an
agreeable duty to the writer to narrate some of these oc-
curences, but truth requires that historv record facts, even if
they are unpleasant.

It is alwaj's of interest to peruse the first records of any
association or corporation, as by them we are enabled to learn
the ability and character of the men chosen to lead in civil
affairs and b}' comparison with the acts of later year, form
an estimate of the growth of improvements, increased wealth,
and, in some instances, disproportionate cost. These retro-
spective pages are generally favorable to the pioneers since
they seem to have acted with decision, economy and prudence.
To this end, we copy verbatim the record of the first session
of the court of common pleas for this county :

"Darke county organized !March 1, 1817. Court of common
pleas of Darke county, aforesaid, March 15, 1817. Before ses-
sion, to appoint a clerk pro tem. and recorder, Enos Terry,
John Purviance and James Rush, Esquires, associate judges,
as appears by their commissions. John Beers was appointed



460 DARKE COUNTY

clerk pro tern., to give bond 7th of April next. The appoint-
ment of recorder was postponed till 7th of April next. Court
adjourned until April 7, to meet at the home of Aloses Scott,
at Greenville. Signed, Enos Terry."'

These few lines, brief as they are, present the minutes, in
full, of the first special term, and are a marked contrast, in
simplicity, with the verbiage of later special terms.

The next session was held, pursuant to adjuurnnieut, as
shown by the following complete transcript of the proceed-
ings :

"Common pleas met agreeable to adjournment. The same
judges as on the 15th of March last. John Beers resigned
his appointment of clerk pro tempore and Linus Bascom was
appointed clerk pro tempore, in his room. Abraham Scribner
appointed recorder. Court adjourned without day. Signed,
Enos Terry."

The first regular term of the court of common pleas was in
June, 1817. Joseph H. Crane, of Dayton, was the first presid-
ing judge, with the associates above named. They all pro-