USA > Tennessee > Old times in Tennessee, with historical, personal, and political scraps and sketches > Part 41
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Contemporary with these divines in East Tennessee was the Rev. Mr. Nelson, who was a minister of marked distinction. His work on infidelity is the cap-stone of his well deserved fame. His body now rests in the valley of his mountain home. A few years after this there arose in East Tennessee another brilliant star in the person of the Rev. Mr. Gallaher. After acquiring great distinction in his native State, he emigrated to St. Louis, and soon became the head of his Church in the South-west. He now sleeps on the bank of the great father of waters.
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The Rev. Isaac Anderson was the eldest of four brothers, all of whom became distinguished, if not great men. The Ander- son family are remarkable for their worth, their talent, and dis- tinction. The four brothers, all of whom are now dead, were Isaac, Robert, William E., and Samuel. Isaac was a great di- vine, William E. a distinguished lawyer and Chancellor, and Robert and Samuel each good lawyers and fine Judges. Through their long lives the poisonous breath of slander never tainted their unsullied fame. They were large, portly men, of fine per- sonal appearance. William E. was six feet eight inches high, of fine physique and commanding personnel; a man of great acute- ness and depth of intellect. I served with him in the Senate, practiced law with him, and before him as Chancellor. He had but few equals in the State. The great firm of Rucks, Ander- son & Grundy, of Nashville, existed for years, doing a sweeping and profitable practice. Chancellor Anderson was lured with the flush times of Mississippi, and moved to Vicksburg, where he died, after establishing a great reputation as a lawyer. He was a man of great humor, and noted for his sociability and fun. He was no office-lawyer, and was never known to study, but when called into a cause he was always equal to the occasion. He was "a wheel-horse" in any cause in which he appeared. All yielded to him the front rank, either to repel the attack or lead the column in the charge.
I practiced law with Samuel Anderson for twenty years, and appeared before him while he was a Judge. He was kind, cour- teous, and beloved by all. He knew nothing but the law, and devoted himself assiduously to it. He became a good and great Judge. Ned Keeble, of Murfreesboro, was a good lawyer, a fine orator, and a great wag, and knowing the confiding simplicity of Judge Anderson, got into a controversy with Charles Ready, also a fine lawyer and every inch a gentleman, upon the question as to which was the goose and which the gander. They were in the presence of the Judge, and Keeble maintained that the white one was the goose, while Ready insisted that the blue one was the goose and the white one the gander. Reasons were assigned on both sides, but when Keeble pointed to the fact that the white one guarded the young goslings, and would show fight to pro- tect them, as evidence that the white one was the goose, Judge
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Anderson was convinced, and gave it as his opinion that Keeble was right. An appeal was taken to the landlady, Mrs. Little, to determine the vexed question. All three went in, submitted the question to her, and she, being winked at, replied, certainly, the white one is the goose and the blue one the gander, and added that she thought everybody knew that. This excited the Judge, and he exclaimed, I told you so ; I knew I could not be mistaken. A hearty laugh was indulged in at the expense of the Judge, and he was at a loss to know what they were laughing about, until informed the next day, when he replied, "Well, the best of Judges sometimes make mistakes."
Many were the pleasant incidents that occurred while Judge Anderson was at the bar and on the bench. Among many that I could relate, I confine myself to one other. The Judge was holding court in DeKalb county. He was extremely kind and popular with the people, who familiarized themselves with him off or on the bench. His old friends would sit by him on the bench and use great familiarty with him. It was a cold day. The Judge and jury were seated around a hot stove. Old man Richardson was sitting next to the Judge, calling him occasion- ally uncle Sam. After the Judge got through charging the grand jury, Richardson said to him, " Uncle Sam, did you ever before in your life charge such a jury as this? See there is one fellow who has an eye out, another his nose bit off, the next a part of the ear off, and others are cripples. Now did you ever in your life before charge such a set of fellows?" This was said so the jury and others could hear it. Judge Anderson was bound to take notice of this slur on the jury, so he said, " Mr. Sheriff, take Mr. Richardson out of the court-house." Richardson got up and went toward the door, and said, "Never mind, Judge, I was just going out myself, but I shall say that is a terrible looking jury, sure."
I close this sketch by giving my readers Judge Anderson's charge to the jury on the
DOG LAW.
The county of Grundy had just been organized, when, in the month of April, 1848, the Circuit Court met at a place on the top of Cumberland mountain to transact the business of the
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county. The town consisted of one saloon, two or three small log-cabin dwelling houses, and one about eighteen feet square to be used as a court-house for the time being. Judge Sam. An- derson, by interchange with Judge Marchbanks, appeared to hold the court early Monday morning, when the jury was called, elected, and charged, and the clerk commanded to call the docket, whereupon William Armstrong, an old and efficient clerk of former days, responded (instead of the clerk who had been lately elected, but was not familiar with the routine of his duties), and proceeded to call the case of Alexander Caulston vs. John W. Nunnelly, the only case upon the docket. The Judge being somewhat elated with the idea that his court would have a short term, said, "Call the parties," when the Sheriff announced that the plaintiff and defendant were present, and also the yellow dog Sharp. This last remark to some extent disconcerted the Judge. There appeared before him two men, who seemed to be between the years of forty and fifty. The plaintiff was a lean, cadave- rous faced, hump-shouldered man, dressed in yellow jeans pants and brown hunting shirt, with his yellow dog standing by his side. The defendant was a tall, slender-limbed, long-haired, big-footed, sallow-complected man. The Judge asked if they had attorneys, which was answered in the affirmative, and soon G. J. Stubblefield, A. S. Colyar, F. T. Estill, and Peter Turney appeared for the plaintiff, and Wm. P. Hickerson, Hugh Francis, Washington Britton, and R. A. Campbell, for the defendant, and announced themselves ready on both sides. After considerable challenging on both sides, a jury was sworn, when about forty witnesses were called and sworn and put under the rule, and a constable took charge of them, that they might be kept in hear- ing of the call of the Sheriff. There being no room to put them in, they were sent to the woods. The Judge, with a forlorn and quisical countenance, demanded, "Gentlemen, what's this law- suit about?" when he was gravely informed that this was an ap- peal from a justice's judgment for ten dollars in favor of the plaintiff for the injury of the hearing of his slow-track dog Sharp, and he alleged that the injury had been inflicted by the hound puppies of the defendant, at his instance and connivance, all of which was denied by the defendant. The plaintiff then introduced his witnesses, who testified in substance that the plain-
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tiff was a hunter, and made a living for his wife and children pretty much by the chase; that he lived in the wilds of the forest on the top of Cumberland mountain; that deer and much other game abounded there, and that the yellow dog Sharp was a slow- track dog, and as such was highly esteemed by the plaintiff and his associates, and was of great value in his calling; the witnesses proving the damage to be various sums, from ten dollars to one hundred dollars. The plaintiff had been hunting on the day of the injury, and returning home in the evening passed through defendant's neighborhood, and the dog Sharp passed the road running near defendant's house, when the hound puppies of the defendant were heard chasing Sharp, and the children of defend- ant encouraging and urging the puppies in the chase, while the defendant was standing in his yard cognizant of the fact, and did not interfere to prevent it, and that when Sharp reached home he had been so worried and injured that it rendered his hearing de- ficient for the purposes of a slow-track dog, and in that regard lessened his value to the amounts above stated.
The defendant offered to put the character of the dog Sharp in issue, to which the plaintiff's counsel objected, and after much controversy on both sides the Judge overruled the objection and let Sharp's character in on the question of damages. Various wit- nesses proved Sharp had a bad character as a sheep-killing dog, as a dog that would break into spring-houses and tan-yards in quest of food, while others proved he had a good character, and they had never heard him accused of these depredations. The defendant then offered to prove special cases of Sharp's depreda- tions and misdeeds, to which the plaintiff's counsel again objected, and after an excited and energetic argument of counsel on both sides, the Judge overruled the objection, and witnesses were in- troduced to prove that sheep had been killed on the mountain, and Sharp had been seen in the neighborhood about that time ; that Nunnelley's spring-house had been broken open at one time and milk and butter taken, and Sharp had been seen in that vicinity shortly afterward; and that Sharp had been caught at one time in the tan-yard of one Roberts on the mountain, pulling hides out of the vat, etc. The testimony occupied the court from Monday evening until Wednesday evening, at which time both sides closed.
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The Judge said, " Gentlemen, we have already consumed un- necessarily a great deal of time, for the Court has not seen much to litigate about. The dog is here present, and seems to be in „good health. The Court would like to know whether counsel wish to argue this cause, and if so, how many on a side ?" The Judge stated that he was compelled to be at his court sixty miles away on Monday morning, and he had conscientious scruples about traveling on Sunday. The attorneys responded they would all like to say a few words on the case. The Judge reluctantly consented, with the remark that he hoped they would be very brief.
The plaintiff's counsel commented loud and eloquently upon the picturesque scenery, wild flowers, and dulcet tones of the songsters that gave such charms to the lonely hunter in these wild mountains; the indescribable emotions of excitement in the chase, and the unutterable satisfaction in the capture; with one companion to share his joys, and this was Sharp, who had been robbed of the only sense that made him efficient in these sports; the grief that it gave the master and the sadness it brought upon the matron and the little ones. They then described Sharp return- ing home in the dusk of the evening as he leaped into the little en- closure that encircled the cottage, and by the wag of his tale tel- egraphed to the mother and children that their loved one was coming from the jungles of the forest laden with the bountiful spoils of the chase; the greeting of the mother, the clapping hands and sparkling eyes of the little ones, the deprivation of which, damages in money sunk into insignificance.
The defendant's counsel most vigorously attacked the character of Sharp, and portrayed in elegant recitals the scenes of the milk- maid descending the path, with cheerful song, in the morning to the spring-house to find her lively anticipations blighted, and returning with saddened countenance to relate her story of gloom to the household; the farmer returning from the range of his Hock, to detail the sad news to his family, that the sheep had been slain, and their fond anticipations of an income to meet their wants and necessities blasted ; that the tan-yard had been entered and despoiled of the hopes of the blessings it would afford; and that the circumstances showed that Sharp was the cause of all these misfortunes, and they boldly asserted that the decisions of
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the State of North Carolina, and the common law of this country was that a sheep-killing dog was outlawed, and only held his tenure of life by sufferance, and that all men had a legal right to kill him, and asked the Judge to so charge the jury.
The argument continued until Saturday just after noon when the Judge charged the jury as follows :
" Gentlemen of the jury, we have been a long time engaged in the trial of this suit, and the time is now passed that the Court can reach the place where his court is to be held on Monday morning, but still we must do the best we can to decide this case, and to decide it correctly. The Court is not satisfied that he can be of any benefit in aiding the jury in their deliberatious or con- clusions, for the Court does not believe he understands the dog law, does not remember that he ever read anything about the dog law, and he is here on the top of Cumberland mountain where he is unable to get the aid of any books, if there be any written upon the subject, or if there has been any decisions bearing upon this case, but still it is the duty of the Court, made so by law, to charge the jury, which I will proceed to do, and if the jury should not be satisfied with the charge of the Court as being the law, then they must take the case and decide it for themselves. So, gentlemen of the jury, if you find from the testimony that the plaintiff was the owner of a dog named Sharp, of any value, and the defendant set his hound puppies upon the dog, and they wor- ried, bit, and abused him so as to impair his hearing, or other- wise, then the defendant would be responsible to the plaintiff to the extent of such injury in damages; or if the defendant did not set his puppies on the dog, and his children did, and were there hissing or otherwise encouraging the puppies to worry the dog Sharp, and the defendant was present and aiding and assisting by his presence or otherwise, then he would be responsible for what- ever damage was done to Sharp. But the witnesses seem to lay great stress upon the idea that Sharp was a slow-track dog. The Court has always been of opinion that a fast-track dog was of more value than a slow-track dog, but how this is you must de- termine from the evidence. The defendant has seen fit to put the character of the dog Sharp in issue, and the Court has per- mitted him to bring in testimony as to this question. Strictly speaking, whether a dog has any character or not, the Court does
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not know, although the Court has been a lawyer, ither as attorney or upon the bench, for over forty years. If he ever read any- thing about the dog law, it has now passed from his memory, but for the present this question is left to the jury to determine, un- der all the circumstances of the case. The Court has always been of the opinion that if a dog is a sheep-killing dog, he would be of no value, but the witnesses seem to prove, with a knowl- edge of all these facts, that the dog Sharp would be of some value notwithstanding, owing to his slow-track qualities, which the Court does not understand, and leaves this to be decided in the discretion of the jury. The Court would charge that if Sharp was a sheep-killing dog, and broke into spring-houses and com- mitted depredations therein, and went into tan-yards and pulled hides out of the vats, and gnawed them and otherwise despoiled them, and did this through malice and with intent to do mischief, then it would be a circumstance against him and detract from his value, but whether he did this or not, and whether he did it mali- ciously, is a question for you to decide under all the circumstances given in by the witnesses. But if Sharp did kill sheep and com- mit these other depredations, and whether he did or not is for you to say (for the Court is not allowed to charge the facts), and did not do these acts maliciously and for the purposes of mischief, but in quest of food to satiate his appetite as a matter of diet and for the purpose of gaining a living, the the Court would charge you that this would not be a circumstance against Sharp, and would not lessen his value ; but how this is, gentlemen of the jury, you must decide for yourselves from all the testimony given in the cause. The court is not satisfied that he did not do wrong in raling some of the testimony given in as competent, but the Court concluded, in doubtful cases, it was better to let it all in.
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"The Court has been asked to charge the jury that a sheep- killing dog is outlawed, and any man has a right to kill him un- der the laws of this State. The Court would state, to the jury that he is not satisfied whether this is the law or not, and is here on the top of Cumberland mountain where he can get no books to aid him in coming to a conclusion : he therefore derlines to charge that to be the law, and would now say to the jury, take this case and look to all the testimony as detailed by the wit- nesses and the law as laid down by the Court, and decide it, and
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decide it correctly and do justice between the parties." The Court further remarked to the jury that they had been nearly a week trying this case, and it was now nearly night, and he wanted them to decide that evening as he was compelled to go to another court and be there on Monday morning."
The jury retired and marched up to the saloon about sixty yards off, and immediately returned into court with a verdict for the plaintiff of two dollars and fifty cents. The Court then re- tired to his boarding house where he remained for the night, and next morning while he was at the breakfast table (being the Sab- bath), the clerk appeared with the minutes drawn up, and while the Judge was eating, read them to him, when the Judge re- marked that he did not know whether he had the legal right to sign the minutes on Sunday or not, he did not know how the law was, but he was going to sign them, whereupon one of the attor- neys for the defendant moved for a new trial ; the Court remarked that he overruled the motion, but being Sunday it need not be put upon the minutes, and adjourned the court until court in course.
The costs in this case were three hundred and twenty dollars, and the suit in the end broke up both the parties. They were moving to retax the costs, filing certioraris and injunction bills for five years after.
Mr. Britton, who is now dead, was a man of wit, a great mimic, was in the habit of entertaining the friends of Judge Anderson with a rehearsal of his charge on the dog law, accompanied with his theatrical action. This charge made a lasting impression on my mind, but for fear that I could not accurately give it to my readers, I called in my friend Gen. Stubblefield to write it out, which he has done with great accuracy. The Judge and four of the lawyers engaged in this cause now rest under the clods of the valley. The survivors, Judge Turney, of the Supreme Court ; Judge Hiekerson, late of the Circuit Court; Gen. Stubblefield. the distinguished Attorney General of the mountain circuit ; and Col. A. S. Colyar, a distinguished member of the Confederate Congress, and member of the last Legislature, alone survive.
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XXVI.
CONSTRUING THE STATUTES OF LIMITATION OF 1715 AND 1796-HOW JUDGE JOHN CATRON GOT ON THE SUPREME BENCH OF TENNESSEE.
THERE were many nien from 1810 to 1825 who had acquired distinction at the bar in what is known as the mountain district. During that period the Supreme Court held its sittings first at Carthage, in Smith county, and then at Sparta, in White county. Among those who had made considerable reputation, was John Catron, who rose from the county of Overton. He was of poor but honest parentage, and his education was only such as could be secured in the mountain country at that early period, and that was of course quite limited. He was a large, well-proportioned man, of swarthy complexion, with a fine black eye, and firm, manly features, indicative of intelligence, industry, and a purpose to succeed in whatever he might undertake-to paddle his own canoe and ask no favors. During his keeping of "Agricola" in the mountain country, he studied law, being his own instructor. He obtained a license and commenced the practice of the law about 1815. He was bold and as rough as the hills he traversed in his circuit. He soon exhibited an unusual knowledge of the law for one of his opportunities, and gave evidence that he was destined to make his mark in the profession. He removed to Nashville about 1817, and soon took rank with such lawyers as Felix Grundy, Jenkins Whitesides, Dickinson, Crabb, Foster, Hays, Balch, Wm. L. Brown, and others. He was a laborious student, careful, pains-taking in the examination of authorities and the preparation of his cases, and never appeared in a cause on the spur of the moment. His citations of authorities showed that he snuffed the midnight lamp in the labor bestowed upon the cases entrusted to his care. He was a harsh, unpleasant speaker, with a squeaking, unmelodious voice, and his gestures were like those of a man engaged in a fight ; but there was a con- tinued flow of hard, practical sense, while his argument was so
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enforced by homely illustrations, that his speeches were not only interesting but frequently convincing. He generally left a black eye before he came out of the battle.
In 1821 the Legislature placed an additional Judge upon the Supreme Bench, and Judge Catron had acquired such a reputa- tion at the bar that the honor fell upon him. The following is the history of that election : There arose much conflict of opin- ion among the Judges and members of the bar in regard to the proper construction of the statute of limitations-acts of 1715 and 1796 -- wherein it was provided that a party in possession of land for seven years under a grant, or a deed founded upon a grant- a bar having been formed-such person would be protected in his possession. The early Judges ruled that the deed under which a party held possession must be connected by a regular chain of title to the grantee. The later Judges held that all that was neces- sary was that the land should be granted, and the party to hold under a deed, and it was not necessary to connect the deed by regular chain to the grantee. The Supreme Court of Tennessee was equally divided on the question of construction.
About this time Patrick Darby, a man of great natural talents, and not less distinguished for energy than he was for want of principle, relying upon the early construction of the law, that before the possession could be protected, the party holding under a deed must have a regular chain of title to the grantee, went abroad and made champertous contracts with grantees and their heirs to institute suits all over Middle Tennessee against the par- ties in possession, who held under deeds but not connected with the grant. Nearly half the landed estate in Tennessee was being involved in litigation. The system of surveys in township, range, and section had not been adopted. North Carolina, under the cession act, reserved the right of issuing grants to her soldiers of the Continental Line. Tennessee issued grants founded on en- tries. Hence there was an interminable conflict of grants and entries. Lands in the infancy of the State could be purchased for a mere song. David Shelby purchased the six hundred and forty acres embraced in the flourishing young city of Edgefield, opposite Nashville, for a young mare, a rifle gun, and a pair of leather breeches. In early times little attention was given to the preservation of deeds or their registration, or the tracing of titles.
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A seven years' possession and cultivation of a part or the whole of the tract of land claimed by a party was held to be suffi- cient. Consequently half the population of Middle Tennessee were about to lose their lands through the litigation gotten up by Darby. The act of 1819 was passed for the purpose of guarantee- ing the possession and rendering it available merely by deed or an assurance of title in all cases where the land had been granted. But this act failed to settle the land troubles, because it could not have a retrospective operation. Something else had to be done, and the plan was finally adopted by the Legislature of putting another Judge on the Supreme Bench, who would construe the acts of 1715 and 1796 as giving protection to parties in possession of land under a deed without its being connected with the grant. Judge Catron, who had argued many cases against Darby, insist- ing upon that construction of these acts, was in attendance upon the Legislature then sitting in Murfreesboro, the members of which were in a private way debating the question as to who should be elected, who would give the desired construction to the acts of 1715 and 1796, and thus carry a majority of the Supreme Court in favor of that construction. It was said at the time that Judge Catron remarked to some of the members who were advo- cates of the proposed construction, that if no other man who could be relied upon could be found, he would accept the position. He was thereupon elected a Judge of the Supreme Court, and the decision was rendered which drove Darby out of the State and gave repose to the people and the country.
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