USA > North Carolina > Western North Carolina; a history, 1730-1913 > Part 35
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"But Dr. J. S. T. Baird, who remembers seeing Judge Baxter at court while the Doctor was its clerk, between 1853 and 1857, with his hand bandaged from the effects of the wound, scouts the idea that Baxter sent the challenge. Elias Gibbs, who now (1912) lives near Henderson- ville, was sitting talking to Mr. Baxter when the challenge came. Col.
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Baxter read the challenge, showed it to him, then tore it into minute scraps and threw them on the floor. He accepted, and with his second, Terrell Taylor, father of Mrs. Joseph Bryson, went on horse-back to the South Carolina line, fearing the law in his own state. His (Baxter's) wife's suspicions became aroused after he left, so, she with a number of slaves gathered the torn fragments together and read them, discovering her husband's whereabouts. Col. Baxter was tinged with Quakerism, was a very conscientious and honorable man. When it came to fighting the duel, a large crowd of citizens had learned of it, and were present. Col. Baxter did not wish to show the white feather by not standing up, but without any intention of injuring his opponent, shot at his feet."7
Major Erwin was, by many, considered the "brainiest" man in the State; while Mr. Baxter afterwards moved to Tennessee where he was made United States circuit judge, and served with distinction till his death.
THE HYMAN-HILLIARD DUEL. In the Summer of 1855 John D. Hyman, editor of the Spectator said in his paper that the mail service was not as efficiently conducted as when it had been under the management of the Whigs. Dr. W. L. Hil- liard, now deceased, was then the postmaster, and a partner of the late Dr. J. F. E. Hardy. 8 Besides this, both were Democrats. Dr. Hilliard sent Dr. Hardy to Col. Hyman with a polite request for a retraction and apology, which were refused. Thereupon a challenge to mortal combat followed, which was promptly accepted, rifles designated as the weapons, and Paint Rock on the Tennessee line agreed on as the place of meeting.
Dr. Hilliard had married the year before Miss Margaret Love, a daughter of Col. J. R. Love, and was living over the drug store of Dr. Thomas C. Lester in a brick building, then on the site now occupied by the Falk Music Store. Between this and what is now Aston street, then a mere lane, lived Mr. James Patton. In the rear of Dr. Hilliard's apartments were his barn and stable, with a single exit, that on South Main street. The postoffice was just above his house and on that street. Capt. James P. Sawyer, or Captain Frank M. Miller, was the clerk in charge.
Now, Col. Hyman and his party had left the day before the duel was to be fought; but Drs. Hilliard and Hardy and Col. David Coleman, Dr. Hilliard's second, knew that the authorities had been informed of the contemplated duel and that they would be arrested if they should openly attempt to
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leave town. So they waited till nightfall, when they had the plank from the rear wall of the stable removed and slipped their horses out into the lane that is now Aston street. They were afraid also that if they followed the most direct route to Paint Rock, that down the eastern bank of the French Broad, they might be arrested. Consequently, they crossed the French Broad at Smith's Bridge and went down the left-hand side of the river. But it is forty miles to Paint Rock, and ride as hard as they could through the dark night, dawn was breaking when they reached the bridge at Warm Springs. As the duel was fixed for sunrise the Hyman party began to fear that the doctor had been arrested, but Col. John A. Fagg, who lived at Paint Rock, said that he knew Hilliard and that they need have no apprehensions.
According to the recollection of Francis Marion Wells, now 91 (1912) years old, and living on Grass creek, Madison county, within less than one mile from where the duel was fought, the Hyman party arrived at Paint Rock the day before that on which the duel was to be fought. People living in the neigh- borhood began to suspect the truth, and the authorities of Cocke county, Tennessee, were notified. So that when the Hilliard party reached the scene early on the morning of the day set for the duel, from forty to fifty men had assembled to see what might occur. Among these were peace officers of North Carolina. The belligerants, realizing that a duel in the circumstances would most likely be interfered with by the authorities of North Carolina or Tennessee, announced publicly that the effort to have the encounter take place had been abandoned and all parties started on their return to Asheville. This seemed to have accomplished its purpose, for no one followed. But when Hot Springs was reached the parties merely crossed to the left or western bank of the French Broad, not for the purpose of ascending the river to Ashe- ville, but of descending it to the Tennessee line by a road lead- ing to the mouth of Wolf creek. As they passed Mr. Wells' house he noted particularly the men who were present: They were John D. Hyman and John Baxter, his second, and Dr. Charles Candler, his surgeon. With Dr. W. L. Hilliard was his second, Marcus Erwin, 9 and Dr. J. F. E. Hardy, his sur- geon. Col. John A. Fagg was along to show the way. The duel was fought with rifles at fifty paces just about 100 yards
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over the North Carolina line. Dr. Candler told Wells that he weighed the powder and lead that went into each rifle. The road on which the duel was fought is partly grown up now, coming into the new road in a slightly oblique direction from the gap of the little ridge. The spot is about one and a half miles west of the French Broad river. As the party returned Col. John Baxter shouted to Squire Wells as he passed: "No- body hurt," which proved to be true. Only one shot was exchanged, a second shot not having been demanded. There is a tradition that but for the fact that Col. Fagg cried "Halt!" as the commands to fire were being given, Hyman would prob- ably have killed Hilliard, as the latter fired first, his ball striking the ground near Hyman's feet. Also that Hyman's bullet clipped a button from Hilliard's coat.
A ONE-SIDED DUEL ACROSS THE STATE LINE. All uncon- sciously two men of Cherokee county imitated famous duel- ists of former years by standing in one State and killing a man in another:
On the 11th day of July, 1892, William Hall and John Dockery were on the "State Ridge," which is the boundary line between North Carolina and Tennessee. They had a warrant for the arrest of Andrew Bryson whom they soon descried coming up the ridge in front of them. They hid behind a large oak tree until Bryson came within gunshot range, when Hall told him to surrender. Bryson was then just over the line and in Tennessee, whereas Hall and Dockery were in North Carolina. Instead of surrendering, Bryson started to draw his gun, when he was shot and killed. The case was tried and the defendants found guilty at the spring term, 1893, of the Superior court of Cherokee county. 10 A new trial was granted by the Supreme court at the February term of 1894, on the ground that at common law there could be no conviction unless the men who were killed were within the jurisdiction of the court at the time the shot was fired. 11 The defendants were re-tried and acquitted. The legislature at its next session passed a statute making such an act murder. 1 2
NOTES.
"From " Dropped Stitches," Ch. VIII.
"It was probated in January, 1828, and the certified copy was made March 11, 1848.
"Hon. J. H. Wheeler's "Reminiscences."
"Hon. A. C. Avery to J. P. A., Dec. 12, 1912.
"Dr. T. A. Allen of Hendersonville writes, November 12, 1912, that Dr. W. D. Whitted was Baxter's surgeon and T. W. Taylor may have been his second. But Col. Wm. M.
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Davies, a distinguished teacher of law at Asheville, was a boy in Hendersonville at the time, and insists that John D. Hyman was Baxter's second. It is difficult to state posi- tively who the second was.
Letter from Judge Avery to J. P. A.
"Mrs. Mattie S. Candler's "History of Henderson County," 1912. As Judge Avery heard of it while he was at Bingham's school and graduated there in 1857. it is clear that the duel was not prior to that date.
"Dr. Hilliard was born in Georgia in 1823. He practiced medicine in Asheville nearly forty years, and stood in the front rank. He was a surgeon in the Confederate army from May, 1861, to August, 1863, when he took charge of a hospital in Asheville. After the war he resumed practice, and died in 1890. From Dr. G. S. Tennent's " Medicine in Bun- combe, " 1906.
.Dr. W. D. Hilliard, Dr. W. L. Hilliard's son, and Theo. F. Davidson, however, agree in saying that Col. David Coleman was Dr. W. L. Hilliard's second. 10114 N. C. Reports, p. 909.
11115 N. C. Reports, p. 811.
12Chapter 169, Laws of 1895.
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A. S. Menman
CHAPTER XV BENCH AND BAR1
FIRST JUDICIARY ACT. 2 In 1777 (Ch. 115, p. 281) the State was divided into six districts, viz. : Wilmington, New Bern, Halifax, Hillsborough and Salisbury, in each of which places a Superior court for the trial of civil and criminal causes should be held, to consist of three judges who were to hold office during good behavior, the jurisdiction and terms being prescribed. It is sometimes thought that the Superior court was not established till 1806; but that is a mistake; the act of 1806 having simply prescribed two terms in each county after having changed the districts into so many circuits (Ch. 693, Laws 1806, p. 1050) but with the same jurisdiction.
COUNTY COURTS OF PLEAS AND QUARTER SESSIONS. ' These courts were provided for in the same chapter, and their juris- diction and terms prescribed. (P. 297, et seq.)
APPEALS. Provision was made in the act of 1777 (Ch. 115) for appeals from the County courts of Pleas and Quarter Ses- sions to the Superior courts, but none from the decisions of the Superior courts, till 1799. In that year was established (Ch. 520) 4
A CONFERENCE COURT, consisting of all the Superior court judges, who were to meet at Raleigh on the 10th day of June and December of each year, appoint a clerk and decide all "questions of law and equity which had arisen upon the cir- cuit before any of the judges of the Superior courts, which the judge sitting may be unwilling to determine, and shall be desirous of further consideration thereon, . . [by] a conference with the other judges; or where any questions of law or equity have already arisen on the circuit, and have remained undecided by reason of a disagreement of the judges on the circuit." (See 2nd Murphy's Reports.)
NAME CHANGED TO SUPREME COURT. In 1805 (Ch. 674, p. 1039) "the name and style of the court of conference shall hereafter be that of the Supreme court of North Carolina," and it was made the duty of the sheriff of Wake county to attend its sessions. It was not, however, till 1818 (Ch. 962) that the Supreme court, composed of judges elected for the
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purpose of hearing appeals, etc., alone, was provided for. The court was to consist of three judges to be elected by the legis- lature and to hold office during good behavior. Terms were to be held in Raleigh May and November 20th of each year. 3
TENNESSEE SUPERIOR COURT. " "The act of the general assembly of North Carolina, providing for or establishing a Superior court of Law and Equity for the counties of David- son, Sumner and Tennessee, was not passed till November, 1778. . .
. The first volume of the original record of the minutes of the Superior Court for the District of Washington-then the 'Western District'-at Jonesboro, shows that David Campbell alone held that court from the February term, 1788 (which was the first term), until the February term, 1789, at which latter term the record shows that Judge McNairy appeared and sat with Judge Campbell."
JUDGE SPRUCE MCCAY. This judge held the second term of the Superior court of Ashe county, in September, 1907. He had married a daughter of Gen. Griffith Rutherford, and lived at Salisbury. " It was he who had held the August, 1782, term of the "Court of Oyer and Terminer & Gaol De- livery," in Jonesborough, in what was then Washington Dis- trict, now in Tennessee. "He had the court opened by proc- lamation, and with all the formality and solemnity charac- terizing the opening of the English courts. On the first day of the term, John Vann was found guilty, by a jury, of horse- stealing, the punishment for which, at that time, was death. On the same day the record contains an entry to the effect that 'the Jury who passed upon the Tryal of Vann beg Leave to Recommend him to the Court for Mercy'; but no mercy was shown him by 'the Honl. Spruce McCay, Esqr.'
During the week two more unfortunates-Isaac Chote and William White-were found guilty of horse-stealing; and, on the last day of the term (August 20), Judge McCay disposed of all three of these criminals in one order, as follows : 'Ord. that John Vann, Isaac Chote & Wm. White, now Under Sen- tence of Death, be executed on the tenth day of September next.' This is the whole of the entry."" The author, John Allison, now a chancellor of Tennessee, says : "It is not probable that a parallel proceeding can be found in judicial history." He adds that "tradition in that country gave Judge McCay the character of a heartless tyrant." But the
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juries of that day and section of North Carolina seem to have been equal to the occasion; for at the same term of court the following incident is mentioned : "The juries could not be driven or intimidated into giving verdicts contrary to their convictions; and whenever they differed with the judge-and they always knew his views-in a case of weight or serious results, they would deliberately disperse, go to their homes, and not return any more during that term of court. In a case styled 'State v. Taylor,' the record shows that the jury was sworn and the defendant put on 'Tryal.' Nothing more appears except the following significant entry : 'State v. Taylor. The jury having failed to come back into court, it is therefore a mistrial.'"' 7
"LEWIS AND ELIAS PYBOURN." At the May Term, 1783, at Jonesborough, an order was made allowing these men "who is at this time Lying out" to return home upon giving bond for good behavior, which, probably was done. But whether it was done or not, seven years later, at the August term of the same court, 1790, Elias Pybourn was convicted of horse- stealing, and was sentenced to "the public pillory one hour. That he have both his ears nailed to the pillory and severed from his head; that he receive at the public whipping post thirty-nine lashes well laid on; and be branded on the right cheek with the letter H, and on his left cheek with the letter T.
JOSEPH CULTON'S RIGHT EAR. At the November Term, 1788, at Jonesborough, Joseph Culton proved by the oath of Alexander Moffit that he had lost his left ear in a fight with a certain Charles Young, and prayed that the same be entered on record, and it was so ordered.
WITHOUT PASS OR RECOMMENDATION. When a stranger came into the Watauga settlement he was asked to account for his being there, and if his explanation proved to be un- satisfactory, he was required to give bond for his good beha- vior or to leave. Wm. Clatry was a "trancient person " and was required to give security for his behavior, and return to his family "within five months, " he having confessed that he had left home and taken up with another woman.
However, it is not to Judge Spruce McCay to whom we are indebted for the following.
A GRUESOME RECORD. At the March Term, 1809, of the Superior court of Ashe, Judge Francis Locke presiding, the
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case of the State v. Carter Whittington, indicted for perjury was tried, the following names appearing as those of the jurors : James Dixon, Charles Sherrer, Daniel Moxley, Jo- siah Connolly, Young Edwards, Alex. Latham, Wm. Powers, Andrew Sherrer, Chris Crider, Thomas Tirey (Tire?), Charles Francis, Jesse Reeves. The jury found the defendant Carter Whittington "guilty in manner and form as charged in the bill of indictment." David and Elijah Estep, sureties, thereupon delivered up Carter Whittington, and he was ordered into the custody of the sheriff. "Reasons in arrest of judgement in the case of Carter Whittington were filed by Mr. McGimsey, 8 his attorney-after solemn argument, the reasons are over- ruled by the court."
" JUDGMENT.
"Fined £10, and the said Carter Whittington stand in the pillory for one hour, at the expiration of which time, both his ears to be cut off and entirely severed from his head, and that his ears so cut off be nailed to the pillory by the officers and there remain till the setting of the sun, and that the sheriff of this county carry this judgment immediately into execution, and that the said Carter Whittington be confined until the fine and fees are paid. Solicitor's fees of £1-6-8 paid by deft."
THE UNWRITTEN LAW IN 1811. 9 At the March term, 1811, of the Superior court of Ashe, Samuel Lowery, judge presid- ing, an order was made for the removal to Wilkes court, to be held on the third Monday of March, of the case of the State v. William Tolliver, indicted for the murder of a man named Reeves; and the sheriff of Ashe was required to "procure a sufficient guard of eight men from the proper officers of the militia to convey safely the said William Tolliver to the Superior court of Wilkes county," thus indicating either that there was danger of a lynching or a rescue. Tradition says that Tolliver was acquitted at Wilkesboro on the ground that Reeves had attempted liberties with Tolliver's wife. Robert Henry of Buncombe defended him.
HANGING OF DAVID MASON. When Dr. W. A. Askew was about fifteen years old he stayed all night with the late James Gudger, the ancestor of most of the Gudgers of this section, in what is now Madison county. Young Askew was then on his way from his home on Spring creek to see the "hanging" of a man named David Mason who had been convicted of the murder of his wife by cutting her throat in Haywood county. Askew rode to "town" (Asheville) with Dr. Montraville W.
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Gudger, a son of "Old Jimmie." The evidence upon which Morgan had been convicted indicated that he had slipped up on his wife while she was carding in her cabin home and killed her. Pierce Roberts was the sheriff of Buncombe then, and the execution took place in the woods below and behind Col. Lusk's residence on College Street, or where J. D. Henderson's residence now stands-there being two accounts as to its location. This must have been between 1847 and 1850. When asked on the gallows if he had anything to say Morgan called up Aaron Fullbright and another man whose name Dr. Askew has forgotten and pointing his finger at them said : "You have sworn my life away."
Twenty-five years ago (1887), according to Dr. Askew, a woman in Sevier county, Tennessee, confessed on her death- bed that she had killed David Mason's wife.
COL. DAVIDSON'S RECOLLECTIONS OF THE BAR. The late Col. Allen T. Davidson, in the Lyceum for May, 1891, says:
"I entered the profession of the law January 1, 1845, with Gen. R. M. Henry and J. A. B. Fitzgerald as my classmates. We were the stu- dents of Michael Francis of Waynesville. The gentlemen then in full practice were Joshua Roberts, Geo. W. Candler, Felix Axley, John Rolen, Michael Francis, N. W. Woodfin, John Baxter, George Baxter, Col. B. S. Gaither, Wm. Shipp, Gen. R. M. Henry and J. A. B. Fitz- gerald. These constituted the bar and rode the circuit, as we did then, until about 1855, when Judge A. S. Merrimon, Senator Z. B. Vance, Maj. Marcus Erwin, Gen. B. M. Edney, P. W. Roberts, and Col. David Coleman were added to the list. Several distinguished law- yers left the profession just as I entered, Gen. John G. Bynum and Gen. T. L. Clingman, who, added to the list, made an array of talent and sound ability rarely met with. The court usually began in Cherokee (where I then lived) in March and September, and we all joined and made the circuit from thence eastward to Asheville, where I usually stopped. We traveled together on horseback, stopped at the same hotels in the towns, and at the same wayside inns in the country; and it was not unusual to have ten or fifteen of us together at one of these country stopping places, where the wit and humor of the profes- sion broke loose in all its force, and good humor ruled the house. It is a fact that nearly all of those mentioned were gentlemen of fine humor, and but few given to strong drink, so that the jest and humor were of the best character, without boistering or noise. Mr. N. W. Woodfin was remarkable for his humor, clear-cut and original. Mr. Candler excelled in his country stories and when he took the floor he usually held it in silence till the climax, when there were uprorious bursts of applause. Mr. J. W. Woodfin was the sunshine of the circle, was always in a good humor, and told a story well. . I recall many of the stopping places, the first going from Asheville being James Patton's be-
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yond the Pigeon. Here we would meet a good-humored fine old gentle- man as landlord, with his big country fire-places, and roaring hickory wood fires, a table groaning with all that was desirable to eat, good beds and plenty of cheer, supper, lodging and breakfast, horse well fed and groomed, bill fifty cents, and this was uniform for twenty years. So at Daniel Bryson's on Scott's creek, same fare and same bill. At Wm. Walker's at Valleytown, one of the best houses in Western North Caro- lina, the bill for man and horse was fifty cents. A great staying place was N. S. Jarrett's on the Nantahala, at a place called Aquone. Here we met, here we chased the deer, here we beguiled the trout in that crystal stream with the fly, here we whiled away many a pleasant summer after- noon in these attractive sports. Good, dear old friends! I can see you all now" in fancy; but this vanishes and I remember that you are no
more. I must be allowed to close with a general resume in- tended to embrace the years between 1845 and 1861 : the profession was able, studious, painstaking and thorough. I have been an honest and careful observer of many deliberative assemblies; have watched with much care and interest the application and power of the human mind so as to learn from careful observation how great men, so-called, look at subjects and reach conclusions but after all I am bound to say that the trial of cases in the mountain circuit has impressed me more than the proceedings of any other body of men I have ever met for its sincerity, force and logic. Here we were, in a large and extensive district of country, the courts distantly situated, without books, at each town finding only the Revised Statutes and perhaps a digest; yet with these we tried our cases ably and well, and our contentions have been well sustained by adjudged cases. In court the common law pleading prevailed, beginning with the writ, thus bringing the defendant into court. Upon the appearance of the defendant the issues were joined and the case was ready for trial without circumlocution or clerical tal- ent. The fight was an old-field, drawn out set-to. As Judge Read says : "We drew the sword and threw away the scabbard; or, in less classical words, "The Devil take the hindmost." It is a fact, however, that with all the spirit with which the case was tried, often with the mani- festation of temper, no unkind or angry feeling ever went outside the court house, and we all closed the circuit to enter our homes as friends."
JUDGE V. JUDGE. When the county seat was at Jewel Hill Dr. J. S. T. Baird was clerk. A church was used for this purpose and having a window the sash of which was made to open by sliding along horizontally instead of being raised, as is usual, the presiding judge, needing air, tried to raise this sash, and failing kicked a hole in the glass. For this the late Col. John A. Fagg, then Chairman of the County Court of Pleas and Quarter Sessions of Madison county, fined his Honor, the presiding Judge, ten dollars and his Honor paid it!
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CERTIFICATE AS TO WHY RIGHT EAR WAS MISSING. From the minutes of the County court of Buncombe, October, 1793, it appears that it was "Ordered by court that Thomas Hopper, upon his own motion, have a certificate from the clerk, certi- fying that his right ear was bit off by Philip Williams in a fight between said Hopper and Williams. Certificate issued." This was necessary in order that the loss of a part of his ear might not cause those ignorant of the facts to conclude that the missing part had been removed as a punishment for per- jury or forgery.
WHERE THE SOW-SKIN LAY. As far back as 1840, prob- ably, James Gwynn of Wilkes county was solicitor of this cir- cuit, which embraced all the mountain counties except Ashe. James Gwynn of the East Fork of Pigeon river, Haywood county, is a near relative and bears his honored name. He married a Miss Lenoir of Fort Defiance, and was a man of very decided ability, though of little education. His spelling was execrable, but his power over a jury was great. Judge J. L. Bailey and Gen. Clingman knew and appreciated his ability, and through them two anecdotes survive. When Nathan asked David for an opinion of the man who took the ewe-lamb of another, and David had expressed himself thereon, then "Nathan said unto David, Thou art the man." 11 When attempting to quote this to a jury Mr. Gwynn got the names of the principal actors confounded with two other Biblical characters, and after detailing the circumstances of a hog- stealing case, pointed with his finger at the defendant and ex- claimed: "As Abraham said unto Isaac, Thou art the man." The other story was also of a hog stealing case; but had refer- ence specifically to a sow. The sow had been stolen and her flesh eaten. But the sow's skin had been discovered, and it was upon it and the place of its concealment near the defend- ant's home, that the solicitor relied for a conviction. "Where, gentlemen of the jury," he asked impressively, "was the sow skin?" He raised himself on his toes and shouted the answer: "Far up under the shadder of the Big Yaller, where the rocks are rough, and the waters run deep, and the laurels wave high (crescendo) the sow skin lay!"
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