USA > Missouri > Boone County > The bench and bar of Boone County, Missouri; including the history of judges, lawyers, and courts, and an account of noted cases, slavery litigation, lawyers in war times, public addresses, political notes, etc > Part 9
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Judge Henderson is a most interesting and instructive talker, and has lectured to a large Bible class in St. Louis for a number of years past.
JUDGE JOHN HINTON
Judge John Hinton, who was a Virginia gentleman of the old school, served as a soldier during the Mexican War in the Doniphan's expedition, and became a colonel. He was elected probate judge of Boone county, served for nineteen years and his decisions were never reversed by the higher courts. For many years he lived on a farm four miles east of Rocheport and just south of the Rocheport Turn- pike, and proved a success as a farmer. Judge Hinton was ever ready with an answer, and could see wit, if there was any, even in a serious proposition. While he was on the probate bench, a lady from near Wilton appeared in court and complained that her husband was of unsound mind, and wanted a trial to be had. Judge Hinton asked her if her husband was unkind to his children, if he was mistreating her, if he was wasting his property; to all of which she replied that he was not. Judge Hinton then inquired what particular form of insanity he possessed, and the lady said, "Judge, he is not regularly insane ; but he is a great crank." Judge Hinton promptly said, "Well, madam, if I should summon a jury and try every man whose wife- thought he was a crank, the business of this court would be filled to overflowing."
In 1890, a paper was filed in the probate court, purporting to be the last will and testament of Lawson B. Stewart, deceased. The document had been written by a physician, and there was attested to it the names of three witnesses. In giving their testimony, however, the witnesses admitted that one of them had signed at the time the deceased signed the paper, but that the other two did not sign till after his death. Learning then that the law required two witnesses to a will,
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two more gentlemen were called in and signed the paper in the presence of Mr. Stewart's dead body. Judge Hinton rejected the pretended will, and, at the same time, advised the party not to send for a lawyer when they needed a blacksmith.
While Judge Hinton was on the bench, James S. French, an Ashland merchant, better known as "Blue French", presented an ac- count for allowance against the estate of one of his deceased customers. Mr. French's books showed that the account presented was correct, and no doubt it was, but he admitted that the entries on his account book were all made from memory, after the deceased's death. Of course, the account could not be allowed, but Mr. French was never able to understand such "legal technicalities".
While Judge Hinton was on the bench, a rather meddlesome per- son came to him to complain about some alleged misdeed of an admin- istrator. This was not the first complaint this person had made, but it was the smallest he had made. Judge Hinton said; "When I lived in Virginia, a man named James Rogers Smith was charged with arson, with robbery and with murder; but was lucky enough to be cleared every time. He joined the marine service, enlisting under the assumed name of 'Browning.' Not long after his enlistment, some one broke into a private apartment and stole some chewing tobacco. One of the knowing ones reported it to the officer in charge, and also told him that Browning had been charged with various offenses on land and that his real name was James Rogers Smith. The officer sent for him, told him that he knew his real name and was acquainted with his record, and that the severest punishment would be inflicted on him, if he was guilty of any other offense on that ship. Browning, alias Smith, replied, 'Well, Captain, you say that my real name is Smith, and I admit that I have gone under that name; and I also admit that I have been charged with various offenses, but do you think that a man who would commit arson, robbery and murder would be guilty of so small a matter as stealing chewing tobacco?' The officer admitted that he did not." With that, Judge Hinton turned in his chair and began writing ; and the telltale went about his business.
Another time, a complaining person called on Judge Hinton, say- ing that a certain man was not a suitable person to continue as executor, as he had been turned out of the church, for violating a church rule. Judge Hinton said, "That reminds me of what a noted Confederate officer said when objection was made to him that one of his subordinate officers had been talking ugly about his wife. He said, 'Well, sir, that is none of my business.' 'But,' said the complainant, 'General, this officer has been talking ugly about you.' The general re- plied, 'That, sir, is none of your business.'"
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THE JUDGES
Although a dignified man and an ideal jurist, Judge Hinton did not need an officer to preserve order in his court room ; but considered himself a peace officer. A man named Barnes once presented a claim against an estate, of which Elvin J. Nichols was the Administrator, and Judge Hinton disallowed the claim. After court had adjourned, Mr. Barnes was standing in front of the court house and complaining that the decision was unjust. He also said that he would have said something about it, if Judge Hinton had not been on the bench. At that moment, Judge Hinton passed by and overheard the con- versation ; he quickly turned and addressing Mr. Barnes, said: "Well, sir : I am not on the bench now, so let's hear what you have to say." Mr. Barnes thought it best not to say anything.
Before he was elected to the probate bench, Judge Hinton was in business in Rocheport, and before that he was a pilot on a Mis- souri river steamboat. During his first campaign, Judge Hinton promised the voters that he would pilot the administration affairs of the county as safely as he ever piloted a craft on the Big Muddy. And he kept his word.
JUDGE LEWIS M. SWITZLER
Judge Lewis M. Switzler held the office of probate judge longer than any other one man, except Judge John Hinton. Since retiring from the bench, Judge Switzler has been the regular attorney of the Boone County Home Mutual Fire Insurance Company. He is now the oldest living member of the Boone county bar.
Some years ago, Judge Switzler was attorney for Jas. M. Boswell, a Columbia merchant, who brought an attachment suit against the first woman physician Columbia ever had. After getting deeply in debt to various merchants, this lady started to leave the state, packed up her household goods and moved four large boxes to the Wabash station. Mr. Boswell sought the assistance of Judge Switzler, who advised an attachment suit; and the bond and affidavit were soon prepared. The officer attached the boxes, and started with them to the court house. Some three or four other attachments were procured, and the same goods were seized. Judge Switzler and his client were on hand and mentioned to the officials and parties that it must be remembered that Boswell's was the first attachment. When the boxes were opened, it was found that they contained old rags and old news- papers ; and at the bottom of one box was a pair of ram's horns, with these words written on a piece of paper, "What fools these mortals be." It was afterwards learned that the woman physician had secretly
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moved her furniture to Rocheport, and the same had been transported by boat to Kansas City.
During 1861-65, Judge Switzler took sides with the Union and served as deputy provost marshal of Boone county; and in 1868 he was elected supervisor of registration of this county.
JUDGE JNO. F. MURRY
"The first thing I did, as probate judge," said Judge Jno. F. Murry, "was to talk to a woman who said she wanted to be 'executioner' of her husband. I asked if her husband were dead, and I really felt better when she said that he was."
Judge Murry is now holding his third term as probate judge, hav- ing been elected the second and third times without any opposition. The judge pays little attention to the technical rules of evidence and procedure, but tries to get at the root of all matters, and hand out common sense and ordinary fair dealing in his court.
JUSTICE JOHN SLACK
Mr. Slack was formerly a justice of the peace in Howard county, before the organization of Boone county. He was one of the few citizens of this county who was a native of Pennsylvania, residing in Kentucky a short while. He was an extensive tobacco grower, and was twice appointed state tobacco inspector, the only Boone county man to be thus honored. Although a Thomas Benton democrat, and Boone county was a whig county, Mr. Slack was elected a representa- tive from Boone in the legislature of 1824. He was also a curator of the University. He was the first justice commissioned in Boone county, and he was appointed justice of Smithton township in November, 1820.
JUSTICE M. G. CORLEW
M. G. Corlew is the only justice of the peace of this county who had a suit against the county in the supreme court. Mr. Corlew was constable, before he was justice, and as constable he paid seven dol- lars into the county treasury, to which he afterwards learned the county was not entitled. Accordingly, he presented his claim to the county court, but that body refused to refund the same to him. Suit in the circuit court resulted in a judgment against the county, and so did the appeal to the supreme court (see County of Boone vs Corlew, 3 Mo. 12). Evidently the citizens and county of- ficials of the 'twentys and thirtys' litigated for the sake of principle.
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THE JUDGES
JUSTICE WM. W. TUCKER
Wm. W. Tucker, of Rocky Fork township, was one of the few justices of this county who had an interesting experience in the federal court. Mr. Tucker was summoned to serve on the grand jury at Jefferson City, but failed to appear. That was one thing that Judge Kreckel could not endure, and he never failed to remember that against a man. Some six months after, Mr. Tucker was in Jefferson City, and he had some business in the office of the clerk, Mr. H. C. Geisberg, when Judge Kreckel came in. On learning that Mr. Tucker was the juror who failed to respond at the previous term of court, Judge Kreckel said, "Mr. Clerk, enter up a fine of ten dollars against Mr. Tucker, and make the order nunc pro tunc."
JUDGE JAMES MCCLELLAND
Col. James McClelland, an officer in the War of 1812, was the only judge of the Boone county court to be nominated for lieutenant governor, although Judge Ben M. Anderson aspired for the democratic nomination in 1908. Judge McClelland was the whig candidate for lieutenant governor in Missouri in 1832, but was defeated by Hon. Lilburn W. Boggs. While Judge McClelland was on the county bench, the court appointed Warren Woodson treasurer of the board of in- ternal improvements, and required him to give bond for four thousand dollars. This was a voluntary association, composed of county judges and other progressive citizens, the object being to improve roads and build bridges, work in addition to that which the law allowed the county to do.
During his campaign for lieutenant governor, Judge McClelland never missed a term nor a day of court, but was always at his post of duty. He was one of the few county judges to die in office. He died in the summer of 1833.
In 1822, Judge McClelland donated the ground in Cedar town- ship on which the Bonne Femme Academy and Baptist Church were built. This was the first school and the second church of that denom- ination erected in Boone county.
JUDGE JAMES HARRIS
Hon. James Harris, for many years judge of the Boone county court, and the father of Judge David H. Harris, was a young man at the time of the contest for the location of the State University in 1839. Although he did not then have a dollar, he subscribed one hundred
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THE BENCH AND BAR OF BOONE COUNTY
dollars ; and the first money he made, he used to pay this subscription. Judge Harris died in 1881. He owned a large farm on the Columbia and Ashland gravel road, and kept a number of deer in his front pasture. Deer Park was named after his farm.
Judge Harris was the oldest member of the county court, and the other members were Judge David Gordon and Judge J. Y. Batterton. Judge Harris once said, "After any matter has been presented to the court, I always know what the other members of the court will say. Judge Batterton always says, 'We will take it under advisement'; and Judge Gordon always says, 'I think it is premature.'"
JUDGE SAML. N. WOODS
Judge S. N. Woods served as justice of the peace of Bourbon township, and also five terms as judge of the county court for the northern district. He was a plain outspoken man, and never tried to conceal what was in his mind; he was too frank to be a successful politician. It was told on Judge Woods, during one of his races, that his wife said "He was not two-faced; if he had been, he would cer- tainly turn a better looking face to the public."
A picture of Judge Woods may be seen in the county court room ; and his picture, and pictures of Judges C. C. Turner and Jno. S. Bedford, who comprised the court when the court house of 1909 was constructed, were placed in a metallic box in the corner stone. When the names of these gentlemen were written on their pictures, some one suggested that Judge Woods looked like "Sitting Bull", so that name was written on his picture.
At the trial of a road case in the county court, there was evidence pro and con as to whether a certain road in Perche township should be changed, and what kind of a road the old road was. Judge Woods was well acquainted with the old road. One witness said it was a "fair road", and Judge Woods misunderstood him; he thought the witness said an "air road", "That's it exactly," said Judge Woods, "a very good road for airships to travel over, but not suitable for wagons and buggies."
JUDGES SOLEMNIZE MARRIAGES
Shortly after he was appointed judge of the probate court, Hon. Jas. A. Henderson was called on to marry a couple, at the home of the bride's parents, some three miles from Columbia. Judge Henderson hired a livery team, and invited Hon. Lewis M. Switzler, then a young lawyer, to go with him. After making a beautiful talk, giving the
JUDGE PRIESTLY H. McBRIDE
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THE JUDGES
young people plenty of advice, Judge Henderson confidently expected a good supper and a good fee. The groom called the judge out into the hall, and taking out a ten dollar bill, asked him how much he charged. Judge Henderson looked wistfully at the bill, and, hoping that he would get all of it, replied that he made no regular charge. The groom smilingly said, "I am so much obliged to you, Judge. Hen- derson." Judge Switzler says that Judge Henderson looked as small as the point of a cambric needle.
When Judge Switzler became judge of the probate court, and married his first couple, the groom told him to charge his fee to the account of love and affection.
Prior to 1881, our statute did not require any marriage license ; but it did require the officiating minister, judge or justice of the peace to certify in writing to the marriage, and to file the same for record with the recorder of deeds. The recorder's fee was fifty cents, and, when the groom failed to pay, the officiating minister or justice often failed to file a certificate of marriage. At one time, Thomas B. Gentry, J. P., married a couple in the county court room, in the presence of a goodly company ; and, as soon as the ceremony was concluded, the groom called him to one side, and announced the fact that he had no money. But the groom further told him that he had some cord wood for sale, which the justice readily agreed to accept for his fee. Relying on that promise, the justice filed the certificate of marriage and paid the recording fee ; but never saw either bride or groom again, neither was the cord wood forthcoming.
Ben Cave, who lived in this county for many years, coming to Boone county when, as he expressed it, "there wasn't a tree missing in Columbia", told the following story a short time before his death. The first marriage in Boone county occurred in a log cabin which stood where Christian College now stands; and, as was customary, every person for miles around was in attendance. The cabin, which was a one story structure with a loft above, was the home of the bride's parents. At the appointed hour, the bride was in the loft, and several lady friends were helping to decorate her ; and Judge Lazarus Wilcox and a good company were in the room underneath. Unfortunately, the bride stepped on one of the loose planks, which flew up and precipitated her to the room below, her foot striking Judge Wilcox on the head as she fell. She was not ready to come down. Much was her embar- rassment and the embarrassment of the entire company, no one seem- ing to know just what to do. At that trying moment, the mother came to her rescue and called out, "Sal, run to the fodder shock." So Sal ran out the door of the cabin, beat a hasty retreat to the fodder shock.
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The mother climbed the ladder and procured the remaining garments for the daughter from the loft and soon the blushing bride returned and the wedding ceremony proceeded. In concluding, Uncle Ben Cave said, "This was one of the most interesting weddings Boone county ever had."
Before the days of the marriage license, the minister, justice or judge was required to ascertain the ages of the contracting parties to the marriage, and he was prohibited under heavy penalties from mar- rying a person under legal age. Judge J. W. Hickam was once prose- cuted for solemnizing a marriage, when the young man was under twenty-one; and this possibly accounts for the unusual certificate of marriage that Justice Hickam executed. It is as follows :
"I do hereby certify that upon April 1, 1838, I was called upon to marry Absalom Corn to Phebe Martin. I accordingly went to one Priestly Rogers where I found the parties. Before I proceeded to join them in the bonds of matrimony, I asked Mr. Corn some questions as to his age. He stated that he was twenty-one years of age the 25th day of December, 1837, and Mr. Rogers and others who were present stated that they had heard the mother of Corn say at different times that he was twenty-one years old Christmas Day, 1837. I had been acquainted with Mr. Corn for nearly three years, during which time he acted for himself, nor had I the least doubt but what he was of lawful age. I proceeded to join them in matrimony and went away. I had not left more than three minutes until I was informed that some one had said that Corn was not twenty-one years old. I immediately went back and told Corn what I had heard and that as I did not wish to involve myself in any difficulty and that if he would go to his mother and get a certificate all would be right. He stated that it would be unnecessary, that he would prove himself to be twenty-one years old. I then ordered him not to consider himself married; but he declined to comply with my order. J. W. HICKAM, J. P."
It is not surprising that the case against Judge Hickam was dis- missed.
Before the days of bridges across Perche Creek, John Slack, one of the early justices, was invited to marry a couple on the other side of the creek from his residence. Several hours before the appointed time, there was a heavy rain and the creek could not be forded. At that time, justices were few and ministers were fewer, and the distance to the nearest town was great and the roads almost impassable. A.c- cordingly, the justice stood on the east bank of Perche and the con- tracting parties stood on the west bank, and the marriage ceremony was performed with all the solemnities required by the statute. Mr.
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THE JUDGES
Slack had them to procure a lantern, so that he and the two witnesses could see that the bride and groom joined their right hands.
About 1828, Young E. Hicks and Richard Gentry, the former county judge and the latter a justice of the peace, left Columbia, in company with Amos Marney and others, to engage in the Sante Fe trade. As they neared Rocheport, they met a couple of young people on horseback, and evidently in great haste. Inquiry developed that they were running away to Boonville to be married. Justice Gentry was outside of his township, so he feared he did not have jurisdiction, but Judge Hicks knew he did have jurisdiction, so he performed the cere- mony, all parties being on the old state road. Judge Hicks was seated in his wagon, and the bride and groom were on the same horse.
Judge S. N. Woods was usually very careful, but occasionally he forgot to attend to an important matter. It is said that one of his neighbor boys wanted the judge to come one evening at eight o'clock sharp and officiate at his wedding, which the judge promised to do. Shortly after supper, however, Judge Woods proceeded to disrobe and go to bed, forgetting all about the would-be bride and groom. But he was unable to sleep; he tossed from one side of the bed to the other, till ten o'clock, when he heard some one coming in the front gate of his pasture. He wondered who it could be, when all at once he discovered that it was the young man, and his girl was with him; also two or three friends. The weather was mild, and the moon was bright. Without any apology; Judge Woods, called to them from his up-stairs window, "Join your right hands, I will marry you right here and now." And, without stopping to put on his breast pin, and indeed with nothing on but his night shirt, Judge Woods, to use his own language, "In three or four words, I made one out of two." And then to even matters up, the judge declined to make any charge.
CHAPTER VI
THE LAWYERS
SAMUEL WHEELER
Little is known of the first lawyers who came to Boone county, but the "Missouri Intelligencer", published at Franklin, in Howard county, mentions the fact that Anthony B. Lane and Samuel Wheeler practiced law in Smithton. An examination of the deed records show that Lane never had any deed to real estate here; but Samuel Wheeler had deeds to several pieces. In 1821, Reuben E. Gentry conveyed eleven-acre Lot No. 7 in Columbia to Samuel Wheeler ; and Wheeler sold and conveyed the same in 1822. This is the ground on which the Bible College of the Christian church and Library Building of the University are now situated. Wheeler also owned Lots 172 and 246 in Columbia ; in one of the deeds to Wheeler, A. B. Lane signed as a witness to the grantor's signature.
At the February term, 1822, Samuel Wheeler presented a peti- tion, which he and others had signed, to "The Most Worshipful Judges of the Boone County Court", asking the court to join in a request to the governor to appoint two additional justices of the peace for Co- lumbia township. And at the May term, 1822, the county court records show that Samuel Wheeler was allowed five dollars for legal services rendered the court.
In 1824, Mr. Wheeler gave a power of attorney to Jno. T. Foster, authorizing the execution of deeds to Wheeler's property in Boone county ; and the instrument was acknowledged before the county clerk of Bath county, Kentucky. As Foster afterwards executed deeds to Wheeler's property, and as Wheeler's name does not afterwards appear on our deed records or our court records, it is reasonable to infer that he left here and moved to Kentucky.
In the "Missouri Intelligencer" of 1820, appears the following :
SCRIVENOR'S OFFICE.
The subscriber takes this method to inform the public that in the future he will attend to drafting (when called on) all kinds of Deeds of Conveyance, Bonds, Contracts, Indentures, Letters of Attorney, or anything else in his line, according to the best approved form now in use, at his office in Smithton, Boon County
SAMUEL WHEELER.
(112)
JUDGE JNO. F. PHILIPS
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THE LAWYERS
A. B. LANE
A. B. Lane, the other Boone county lawyer residing at Smithton, also believed in the use of printer's ink, for he too carried an advertise- ment in the "Missouri Intelligencer" in 1820. . His card was as fol- lows :
A. B. LANE
Respectfully tenders his services to his friends and the publick as a Practitioner of Law, and flatters himself with a hope that, from his determined attention to business, he will meet with a small share of publick patrionage. His office is at Smithton, where he will be at all times found, unless absent on professional business.
Evidently Mr. Lane did not stay at his office as closely as he had expected, for on August 19, 1826, the commissioners of Boone county filed suit against him, founded on three notes for thirty-two dollars each, and Lane's interest in Lot No. 298 in Columbia at Seventh and Ash Streets, was attached. The ground for the attachment was that Lane had absented himself from his usual place of abode. The lot was afterwards sold by the sheriff.
TWO LAWYERS IN A DUEL
In 1824, Major Taylor Berry, one of the trustees of Smithton, and an extensive land owner in western Boone county, had a dis- agreement with Abiel Leonard, over some lawsuit. Berry and Leonard were both well-known Howard county lawyers, and both had practiced extensively in Boone county ; and Berry had served in the war of 1812. As a result of this disagreement, a duel was fought on an island in the Mississippi river near New Madrid county, and Berry was mortally wounded, dying some days thereafter. Public sentiment was then against dueling (see Act of December 13, 1822, R. S. Mo. 1825, p. 340), and, for fighting this duel, Leonard was disfranchised. In 1825, the Missouri legislature passed an act restoring his citizenship, and in 1855 he became one of the judges of the supreme court of Mis- souri.
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