The weekly intelligencer. [volume] (Lexington, Mo.) 1891-1901, 1897-12-18

I1iChSp lOuuS duu
By singular coincidence, and as if
this case was enamored of greatness,
the four counties lex loci wherein it
domiciled for time are lowered with
the names, and serve to eternize the
fame and memory of four of Americas
grandest statesmen, the immortal
Jackson, the great commoner, Clay,
the profound diplomot, Buchanan, and
the matchless revolutionary orator,
Patrick Henry. And the names of
George Washington, Thomas Jeffer-
son, John Marshall and King Ferdin-
and, as well as the Scriptural nomen-
clature of Daniel, Benjamen, Jesse
| and Matthew are to be found in the
Christian appellations of the jury.
Among the witnesses who testified in
this case orally or by deposition we're
Gen. A. w. Doniphan distinguished in
military and civil life; Austin A. King,
| then governor of the state and after
| wards member of congress; Sterling
Price, also governor at the time of the
trial, and formerly q member of con-
gress and speaker of the 11th and 18th
general assemblies OF Missouri and the
beloved cbieftains of the confederates
in the late war. Gov. Price, as a wit
ness, attended court one day, travelled
276 miles, claimed his per diem and
mileage, amounting to S14 go, which
was adjudged against Birch, who paid
1t on execution under protest. Whether
"Old Pap" ever returned the money or
whether Birch ever sued Price before a
Justice of the peace to recover it, does
not appear in the record of this case.
VIM. II. Burlington, then auditor of
state, and who subsequently, returned
to his native state, Virginia, and died
there, was also a witness, claimed one
days attendance and 504 miles of mile
age and was paid S26.90, also under
protest by Birch. What was the
ultimate fate of the 1926 80 is not dis
closed by the record.
Mai. Nathaniel p. Holden, as gallant
knight as ever flashed a sword in the
Mexican war, and for several years
representative from johnson county in
the state legislature and a receiver of
the land Office at Warsaw, was also a
witness, testifying In person on the trial
of the case IN Henry county.
VIM. Mckee, the then editor of the
Missouri Democrat, and years after
wards convicted and imprisoned for
completely in the great Whisky Ring
trials in 1876, was a witness and tes-
titled by deposition and refusing to
answer questions, was committed to
Jail by the notary public, Hon. Samuel
A. Bennett, at one time reporter Of the
supreme court.
The name of John NJ. Clayton, then
secretary of state Ia the cabinet of
President Zachary Taylor, also figures
In this remarkable record, the tdocu-
ment bearing his official signature, IS
impressed with the great seal of the
United States and dates the 18th year
of our national independence. 1t may
be interesting, at least to the legal
profession, to know what service this
imposing document could perform IN
slander suit in circuit court OF Mis-
souri, II became necessary and essen
tial in this way. At that time the law
required the petition and answer 10 be
sworn to, and Col. Benton being in
Washington City, made his verltca,ion
to his answer before one, VIM. Thomp-
son as justice of the peace, and being
10 the district of Columbia, his official
character as such officer was certified
to by the secretary of state. On the day
of its issue, July 10th, 1850, Washing
ton City and the entire nation was
under pail of gloom and griet at the
sudden death of ths illustrious chief
magistrate, Zachary Taylor.
Hon. James n. Burns, then quite
young man but destined to become one
of the abIest members of congress that
has ever represented Missouri, was also
q witness.
During the eventful and long con-
tinued progress of this legal jou't be-
tween these
TWO INTELLECTUAL GIANTS
every form of pleading known 10 the
common law or the code, was resorted
to and exhausted by their astute and
skillful counsel. Motion for judgment
on the pleading, to elect, to strike out,
to make more specific, to exclude, to
admit, to suppress, to change the
venue, to set aside, to arrest, demurrer,
reioinder, surrejoInder, rebutter, sur
rebutter, and to continue, all attest the
technical display of legal ingenuity and
professional pertinacity.
Tho petition was amended by way of
supplemental claim for damages, ask
Ing for ten thousand dollars.
The petition also charged Benton
with publicly calling Birch
SHEEP KILLING CUR DOG.
The answer denied the speaking Of
the words as charged and averred that
the words spoken were sheep biting
cur, and 1t was not only edifyiDg but
amusing to listen at the charming
eloeuence of Doniphan, the touching
pathos of Hudgins, tho impassioned
diction Of Rout, the legal erudition of
Voris, the cold incisive logic OF John
son, the classical learning of Garden
shire and the Websterian profundity of
Hicks In their brilliant and impas-
stoned efforts with "exhalations whz-
zing in the air. to show the court the
damnatory dI.tinction between the
words "killing" and ''blting" when
applied to a sheep, and, notwithstand-
Ing the maxim deminimus non curat
lex, the difference whatever 1t is, was
allowed.
The dispositions In this case also refer
inter alios to the following distin-
guished names whose fame and history
constitute large and brilliant part of
The pride and glory of the state:
Edward Bates, Frank P. Blair, B.
Gratz Brown, Thos. l.. Price, James S.
Rollins, VIM. F. SwitZler, Adam B.
Chambers, Nathaniel Pasohal, Henry
s. Geyer, Hamilton r. Gamble, VIM.
B. Napton, John b. Henderson, James
o. Broadhead, Willard p. Hall, John
s. Phelps, D. r. Atohisou, Claiborn F.
jackson, Robert E. Acock, Id omne
genus, but fail to make any reference
to the sheep, the cur or the negro
wench, presumably for the reason of
| non- on-acquaintance. The statutory pro-
cess of collecting testimony through
the medium of the deposition was