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CHAPTER SIX

Six months before Thompson dropped the slander suit, on January 21, 1850. Peters colonists asked the Texas Governor to appoint a traveling land commissioner to examine each colonist’s proof to their land and issue some form of official certificate. The legislature agreed, requiring that the colonists have two witnesses to their arrival prior to July 1, 1848. At this time it was also settled that heirs of colonists who had died were entitled to their land and where two or more settlers had located on one section, the first arrival had preference. 1

During the summer of 1850 Thomas William Ward, as land commissioner, established temporary headquarters in McKinney and elsewhere. 2 Even before this, however, on April 29, 1850, Thompson Helms received Certificate No. 174, stating that since he had arrived in the Peters Colony prior to July 1848 with his wife and children, he was entitled to 640 acres. Typical of Ward’s certificates, which land they were entitled to was not described because while the land selected had been "surveyed by the Colony Contractors...[it] cannot be herein designated, there being no map or field notes of the Colony in possession of the Commissioner". Thompson’s two required witnesses were North Carolina born Jonas Dawson, a thirty-six year old farmer, who moved from Missouri and William H. Campbell, a forty-six year old farmer and a resident of Grayson County. 3 Both Dawson and Campbell were Peters colonists, 4 having arrived at the same time as Thompson.

On the same day, April 29, 1850, Robert Skaggs received Certificate No. 158 with the same land claim of 640 acres not designated. 5 So there is no question, and probably never was, that Skaggs was entitled to 640 acres. The question was to which 640 acres he was entitled. One of Skaggs’ witnesses was Caleb Hart, the local Justice of the Peace. Hart was a forty-five year old farmer, born in Virginia, who moved to Texas from Missouri. Skaggs’ other witness was Talton Cunnius, forty-nine, a Kentucky born farmer, who came to the Colony by way of Alabama and Arkansas. 6

The land disputed by Carter and Skaggs was surveyed after Skaggs received his Ward’s certificate in April. In May Fountain J. Vance, District Surveyor for Collin County surveyed the land with Thompson Helms and William Herron as chainmen. 7 The plot and field notes were finished May 20, 1850. In June Thompson dropped the slander suit. 8

Abraham Carter did not receive his Ward’s Certificate No. 290 until October 23, 1850. 9 It was witnessed by his brothers, John Carter, a thirty-six year old preacher, born in North Carolina and who came to Texas by way of Arkansas, and Bill Carter, a thirty-nine year old blacksmith and farmer who, like his brother, Abraham, was illiterate. He, also like his brother, was born in North Carolina and came to the Colony through Arkansas. Abraham’s claim was a little unusual as the land was surveyed in two parts. The first was for 573 acres, surveyed January 11, 1851. The other survey was for 67 acres, dated June 26, 1851. This gave him an unusually shaped claim.

Things were quiet as the lawsuits participants dealt with other related matters, but soon the issue flared up again. Sometime before late January 1851, two young men, John Campbell and Thomas M. Hicks, went on the disputed land and cut down and carried away some timber trees. Abraham Carter filed a complaint of trespass for damages under one hundred dollars in Caleb Hart’s Justice of the Peace Court. 10 Caleb Hart, a forty-six year old farmer and builder of the first grist mill in the area, had the section of land just south of Robert Skaggs. One the first Saturday in February, Caleb Hart summoned Campbell and Hicks to his residence on this land. Also summoned to appear the same day were John D. Brown, a sixty -four year old farmer, Thomas, Bill and John Carter, brothers of Abraham, and John Ledbetter. Others summoned for the February hearing were Jonas Dawson, Thompson Helms, James Wilson, Pleasant Wilson and Larkin McCarty.

John Campbell of Grayson County was probably the eighteen year old son of William H. Campbell, who witnessed Thompson’s Helms’ Ward certificate. Thomas Hicks may have been the nineteen year old member of Sarah Hicks’ household. Her husband, David, had died in 1850 at age fifty from "conjective fever," leaving her a widow. 11 Caleb Hart also summoned Robert Skaggs and Fountain Vance for the same day as the others. It is apparent by the appearance of Skaggs and the County Surveyor Vance that the boys’ defense would be that it was not Carter’s land.

At one point, Thomas Hicks asked for a continuation as he had not been able to get the testimony of Pleasant Wilson, Fountain I. Vance or Larkin McCarty despite the subpoenas. Hicks indicated that the testimony of these persons was material to his defense.

After the continuation, an additional witness, Upton Blackwell, was called. The sides of the controversy were again facing each other across a courtroom and once again Abraham Carter won. On March 1, 1851, jury foreman, Zachariah Roberts, a thirty-nine year old blacksmith, announced that the jury found for Carter and assessed damages of $15.00.

No doubt this judgment made the people supporting the Skaggs side most unhappy, since it was a replay of the District Court battle three years before when Skaggs sued the Carters for trespass for damages and lost. Although this case was on a Justice of the Peace court level, it must have caused Skaggs and his supporters to feel things were not going their way. Also, legal action was not without cost. It would severely impact Skaggs and his supporters to continue legal action, but they decided to continue the fight. One month later, on April 2, 1851, Robert Skaggs petitioned the District Court in McKinney as the next friend of Thomas M. Hicks and John Campbell, the two young men involved in the Justice of the Peace suit, for a writ of certiorari. 12 Writ of certiorari is a request for a higher court to review a lower court decision; in this case the District Court was asked to review the Justice of the Peace Court decision.

Skaggs’ petition lists several reasons for the writ of certiorari. Skaggs maintained, first of all, that the land upon which the trespass supposedly took place was not Abraham Carter’s. Skaggs, through his attorneys, noted that the lower court decision was irregular in that the court did not offer the parties the opportunity to have the matter in controversy submitted under statutes regulating arbitration, as the Justice of the Peace is required to do. Furthermore, Skaggs charged, the young men were minors (under the age of twenty-one) and therefore the judgment was illegal as minors cannot be tried in civil actions. Lastly, in the petition, Skaggs returned to his basic premise: the land on which the trespass took place belonged to him, as he would prove, he said, by reference to a survey and field notes made under a certificate issued to him by Thomas W. Ward, Commissioner for the Peters Colony. These were Exhibits A and B.

District Judge W. J. Todd agreed to the petition on the condition that Skaggs file a bond with good security. Skaggs posted a $30.00 bond with L. Routh, a thirty-three year old farmer, born in Tennessee who migrated from Missouri, as one of his sureties. The other surety was William Herron, the twenty-six year old farmer, who served as one of the chainmen during the May 1850 survey of Skaggs’ land.

Abraham Carter replied to Skaggs’ petition at the Fall Term of the District Court. Through his attorneys he stated that Skaggs’ petition was not sufficient in law for Carter to have or maintain action against him. Also, he stated, the petition did not make him the plaintiff in this as the law requires. Lastly, Carter maintained that the petition was "wholly defective," and that it said that the defendant (Carter) recovered judgment in Justice of the Peace court. Actually, this reply seems to be the weakest in the whole series of cases.

On October 1, 1850, Carter, through his attorney, Sam R. Campbell, admitted the young men, Campbell and Hicks, were infants and under the age of twenty-one years.

On October 2, 1851, Abraham Carter, "heir at law", requested a continuation to the next term of court, which the court granted. Carter asked for the continuation because of the "poor advice" of his attorney who said that Carter did not need to subpoena witnesses. As it turned out, Carter was informed otherwise on the first day of the court session. Carter found himself without testimony sufficient to proceed to trial. To these facts Carter gave oath to County Clerk J. O. Straughan.

Certainly the opposition had been busy arranging subpoenas to summon witnesses before Carter ever made his initial legal move in the case. On July 7, 1851, Pleasant Wilson, Jonas Dawson and Thompson Helms were subpoenaed. On September 30, 1851, H. Campbell, the father of John Campbell, and William R. Hicks, who at twenty-four was the oldest male in the Hicks’ household, were subpoenaed to appear. Eight days before, on September 22, Caleb Hart, the Justice of the Peace, was told to send to the courthouse a "full and perfect transcript of all the Entries made upon your docket together with all the original papers." On October 1 Upton Blackwell, Caleb Hart, J. L. Ledbetter (an eyewitness in the assault-with-intent-to-murder case) and Bill Carter were summoned. These last witnesses may have been subpoenaed by Abraham Carter the day before he asked for a continuation. Travel was slow in 1851 and it is likely that the subpoenas had not even been served, much less could the witnesses have been in court on October 2 when the continuation was granted.

On December 11, 1851, during the break in court action, Thompson and Abby’s family increased by one more with the birth of Francis Marion ("Doc"), the seventh child and fifth boy. During 1851, Thompson passed his 30th birthday, while Abby celebrated her 28th birthday.