University of Virginia Library

21. A HUNG COURT.

Most of our readers have heard of a hung jury, but have
they ever heard of a hung court? If not, I beg leave to
introduce them to an instance of it, and show how it came
about, and how it got unhung.

A justice of the peace in Alabama has jurisdiction in
cases of debt, to the extent of fifty dollars; and there
are two justices for every captain's beat. It was usual,
when a case of much interest came on, for one justice to
call in the other as associate. On one occasion, the little
town of Splitskull, in — County, was thrown into a
flutter of excitement, by a suit brought by one Smith against
one Johnston, for forty dollars, due on a trade for a jackass,
but payment of which was resisted, on the plea that the
jackass turned out to be valueless. The parties—the ass
excluded—were brothers-in-law, and the “connection” very
numerous; the ass, too, was well known, and shared the
usual fate of notoriety—a great deal of good, and a somewhat
greater amount of bad, repute. The issue turned
upon the worth of the jack, and his standing in the community.

Partisan feeling was a good deal aroused—the
community grew very much excited—several fights arose
from the matter, and it was said that a constable's election
had been decided upon the issue of jackass vel non; and—but
we doubt this—it was even reported that a young lady in
the neighborhood had discarded a young gentleman for the
part he took in favor of the quadruped, differing widely, as
she did—no doubt honestly—on the merits of the question,
from her swain. Unfortunately, politics at that time were
raging wildly; and the name of the jack being Dick Johnson,
and one of the parties being a whig and the other a democrat,
that disturbing element was thrown in. But it is only
fair to say, that the excitement on the actual merits of the
subject, to a considerable extent, blotted out party lines; so
that I cannot say that the ass was seriously injured by politics—few
are. This controversy got into the church; but
the church had soon to drop it—two of the preachers having
got to fisticuffs, and made disclosures on each other,
&c., &c., the danger being that it would break up the congregation.

It got, at length, into the lawyers' hands; and then, of
course, all hopes of a settlement of the controversy, except
in one way, were at end.

After the parties employed their lawyers, the note of
busy preparation rang more loudly throughout the excitement.
Forty witnesses a side were subpœnaed. The people
turned out as to a muster. The pro-ass party, and the
anti-ass party, made themselves busy in getting things ready

for trial. The justices preserved an air of mysterious and
dignified impartiality, and all attempts to sound them on
the question proved abortive. Little Billy Perkins, who
taught a singing school in the neighborhood, and who had
many arts and many opportunities for ingratiating himself
with the wife and daughters of Squire Crousehorn, did get,
he used afterwards to boast, some little item, in a private
way, as to the leaning of that jurist; and, on the strength
of it, laid a wager of a set of singing books and a tuning-fork,
against twenty bushels of corn, vs. the ass: but the
wary Squire Rushong, who was a bachelor, kept his own
counsel, and even kept away from all the quiltings and shuckings,
for fear his secret might be wormed out of him by
some seducing Delilah; or else, that he might, by refusing to
compromise his judicial character, compromise his matrimonial
prospects. But it was said that the Squire was
sweet on Miss Susan Smith; and it was easy enough to see,
that to take part against the ass, in the present aspect of
affairs, was the same as to give up all hopes of Miss Susan,
or, what was tantamount with the prudent Squire—any inchoate
rights or prospective interests in her father's estate.
And it was whispered about by some of the anti-ass party,
that, considering how cold Miss Susan had been to the Squire
before, there was something suspiciously sweet in the way
she smiled on him as he helped her into the ox-wagon from
the church door, when she was about leaving for home.
But I dare say this was mere imagination. The plaintiff,
Smith, was fortunate enough to employ Tom B. Devill, an
old lawyer who had great experience in the courts of the
county, especially in such fancy cases as the present; and
was justly distinguished throughout all that neck of woods,
for having the most “LIBELLIOUS” tongue in all that region:
while the rival faction were thrown upon young Ned Boller,
a promising disciple in the same department of the profession;
and who was considered as a “powerful judge of law,”
especially of “statue law,” but who had not the same experience
in the conduct of such important and delicate litigation.
Great was the exultation of the pro-assites, when it
was announced that their messenger—though the others had
got to the court-house first—had seen the Squire Tom B. before
their adversary; the pro-assite messenger, by sharp
foresight, having made his way straight to the grocery where
Tom was, and the other, by a strange mistake as to his
whereabouts, going to his office to find him. The pro-assites
swore there was no use in carrying the thing further—
it was as good as decided already—for “Tom B. Devill could
shykeen and bullyrag Ned Boller's shirt off, and give him two
in the game.” Anti-ass stock fell in the market, and there
was even some feeler put out for a “comp.”—but the proposition
was indignantly rejected.

The canvassing of the witnesses, and preparations for
trial, played the very mischief with the harmony of the
settlement. The people had come in from one of the older
Southern States, for the most part, and were known to each
other, and had been for many years, and before they had come
out:—unfortunately, being known has its disadvantages as

well as advantages. Such revelations! Some had run off
for debt, some for stealing—some had done one thing, some
another; and even the women were not spared—and, of the
rising generation—but I spare these details.

The plaintiff, knowing the advantage of having a persecuted
individual in view of the evidence, had brought
Dick Johnson under a subpœna duces tecum, on the ground;
and the groom, Hal Piles, made him go through the motions
very grandly—rearing up—braying his loudest, and kicking
up other rustics, indicating a great flow of animal spirits,
and great vivacity of manners. Accompanying all which
performances, Hal's ready witticisms—which he had picked
up at his various stands—though not remarkable for refinement,
seemed to excite no little merriment in the crowd
around, well qualified to appreciate and enjoy such rhetorical
flourishes and intellectual entertainment.

The trial came on. It lasted several days. The place
of the trial was the back-room of the grocery, the crowd
standing outside or in the front-room; but this not affording
space enough, it was adjourned to the grove in front of the
meeting-house; and ropes drawn around an area in front for
the lawyers, Court, and witnesses. The case was carried
through, at last, even to the arguments of the learned barristers;
but these we cannot give, as we were not present
at the trial, and might do injustice to the eminent counsel,
by reporting their speeches second-hand. It is enough to
say, that old Devill did his best, and fully sustained his
reputation; while Boller not only met the expectations of

his friends, but acquitted himself in the blackguarding line
so admirably, that even old Tom B. Devill asked the protection
of the Court: an appeal he had never made before.

At length the case was put to the justices, and they
withdrew to consider of their judgment. They remained
out, in consultation, for a good while. The anxiety of the
crowd and the parties was intense, and kept growing, the
longer they staid out. A dozen bets were taken on the
result; and fourteen fights were made up, to take place as
soon as the case was decided. At least twenty men had
deferred getting drunk, until they could hear the issue of this
great suit.

The justices started to return to their places—and “here
they come,” being cried out, the crowd (or rather crowds
scattered about the hamlet) came rushing up from all quarters
to hear the news.

Silence being ordered by the constable, you might have
seen a hundred open mouths (as if hearing were taken in at
that hole) gaping over the rope against which the crowd
pressed. Justice Crousehorn hemmed three times, and then,
with a tremulous voice, announced that the “Court ar hung,”
—one and one. Now here was a fix. What was to be
done? In vain the “Digest” was looked into; in vain
“Smith's Justice” was searched. Nothing could be found
to throw light on the matter. The case had to be tried: if
decided either way, “there was abundance of authority,” as
Rushong well suggested, to show that the defeated party
could appeal: but here there was no judgment. Ned Boler

insisted that the defendant had really gained the case,
as the plaintiff must show himself entitled to judgment before
he could get it; and likened it to a case of failure of
proof: but, on this point, the Court divided again. Tom
B. Devill argued that the plaintiff was entitled to judgment,
as he had the justice issuing the warrant in his favor,
and the associate was only called in as vice-justice, or, at
most, as supplementary, and supernumerary, and advisory:
and likened it to the case of a President of the United States
differing from his cabinet. But here the Court divided again.

The crowd outside now raised a terrible row, disputing
as to who had won the bets—the betters betting on particular
side's winning, contending that they had not lost, as such a
thing as a hung court “wasn't took into the calcu.”—but
their adversaries claimed that the bet was to be literally
construed.

At length a brilliant idea struck Mr. Justice Crousehorn—which
was, that his brother Rushong should sit and
give judgment alone, and then, afterwards, that he, Crousehorn,
should sit and grant a new trial. Accordingly, this
was agreed to. Justice Rushong took the bench, and Squire
Crousehorn retired. The former then gave judgment for
the plaintiff; which the crowd, not knowing the arrangement,
hearing, the pro-assites raised a deafening shout of
triumph, in which Dick Johnson joined with one of his
loudest and longest brays. But brother Crousehorn, taking
the seat of justice, speedily checked these manifestations
of applause, by announcing he had granted a new

trial, which caused the anti-assites to set up a counter-shout,
in which Richard also joined. So the cause was gotten
back again to where it was before, and then was continued
for further proceedings.

But what was to be done with the case now? If tried
again, the same result would happen, and there was no election
of new justices for eighteen months; the costs, in the
mean time, amounting to an enormous sum. The lawyers
now got together, and settled it. Each party was to pay
his own costs—Tom B. Devill took the jackass for his fee,
and was to pay Ned Boller ten dollars of his fee, and the
forty dollar note was to be paid to the plaintiff: an arrangement
whereby the parties only lost about fifty dollars a-piece,
besides the amount in controversy. But the heart-burnings
and excitement the great trial left, were incapable of compromise,
and so they remain to this day.

But this trial was the making of Ned Boller. His practice
immediately rose from $75 to $350 a year. And to
this day, so strong was the effect of his speech, that when
the Splitskullers want an hyperbole to express a compliment
for a speech, they say it was “nearly equal to Ned Boller's
great speech against the jackass.”