When John's father died, his will provided that each of his minor sons, James Samuel, John, and Robert Franklin, (the only children named in his will) be given a horse and all the necessary accouterments of a horse upon their reaching a majority age. When the Civil War broke out in Kentucky, Sam, John, and Bob all decided to join the Confederacy. Their mother told the John she would buy a horse for him if he could find a suitable one. John found one. It belonged to a neighbor, Henry Austin. The problem was that Henry didn't want to sell.
Jacob Asbury's will on file at the Pendleton County Clerk's office,
Falmouth, KY
Recruiters for the Confederacy were in the area. Among them were my maternal 3-great grandfather, James Jenkins. "Preacher" Jenkins, Bob Asbury*, John Asbery*, David Fogle, Samuel Coleman Lowe, and possibly a few others from the neighborhood "pressed" Henry Austin's horse into the service of the Confederate Army on October 3, 1862.
This case was amended three times, appealed to the Court of Appeals, and many Callensville folks were deposed before the matter of the horse was settled. I particularly like this case since it's the only document that I have found that names all of Jacob Asbury's children and states that they are his children. It also contains a wealth of other genealogical and historical information.
It was originally styled, Henry Austin vs. John Asberry* Petition filed February 9, 1863, by attorneys Swope & Moore. The claim was that on October 3, 1862, John Asbery "forcibly entered the plaintiff's premises, took and carried away, and appropriated to his own use" a bay horse four years old of value $125. It further states that the defendant was a non-resident and in the Confederate Army. It asked for a judgment and attachment of any property owned by John Asbery. John was entitled to a 1/11th share of the farm that his father left to his mother. (I should note here that Henry Austin had previously been in a suit against his neighbors that shared boundaries with him, accusing them of encroachment.)
Henry Austin v. John Asberry
The first amendment to the case was dated April 25, 1863. The reason: "John Asberry is one of the sons & heirs of Jacob Asberry, of this county, and that Jacob died seized of acreage of one hundred acres." It asked for the attachment of John's 1/11th share.
Depositions were taken and from them, we learn many things. Number One: People see things from different perspectives. Number Two: People lie. Number Three: Maybe people forget. If we dig deeper, we can infer that people had different views on the war. Some may have been afraid their testimony would somehow incriminate them. Some may have harbored ill-will over political positions taken. One thing is for certain, it is hard to get an honest perspective without looking at what the war was doing to those left behind. Whatever people were feeling, seeing, sensing, and such, it is evident that conflicting stories were told. For details on this case, read this post from the Pendleton County Historical & Genealogical Society's Blog, Looking Back, Civil War & Uncivil Neighbors.
During much of my youth, I was told the family story of Mathew Jenkins and his father, the Reverend James Jenkins. James did not return to Kentucky to live after the war. The family legend is that he feared "retalliation for the deeds he'd done". His wife stayed in Kentucky near her sons. She refused to join him. Mathew eventually was drafted into the Union Army but not before he was arrested twice by the Provost Marshall on suspicion of being a Rebel. Mathew took the Oath of Allegiance after the first arrest. His second arrest was based on the word of a Union soldier from, and stationed, in Falmouth. This soldier claimed to have knowledge that Mathew was gone from home for five days and had been with the Rebel Army. Were his arrests retaliation for his father's deeds? What "deeds" did James Jenkins commit that caused him to fear retaliation? Maybe, his part in the stolen horse was the "deed". But just what was his part? Most placed him on the porch guarding the door of the house. They all said he ordered his new recruits there but some said he was the one that stole the horse. How much of what was being said in the neighborhood did James know? Did Mathew go to him and tell him Henry Austin suspected James Jenkins stole his horse? Is this what led Mathew to be arrested a second time? Maybe the Reverend feared his wife, since his son had been arrested twice! I think it's plausible that she could have had a cast iron skillett with his name on it, so to speak.
Different folks that were deposed said that John Asberry stole the house, that his brother Robert stole it, and that James Jenkins stole it. Henry Austin's son, James, said he clearly saw John; the moon was bright and they had known each other for years. David Fogle was also there and he saw Jenkins take the horse. He claimed John wasn't there. Now, one of those two lied, wouldn't you say? Why? What was in it for them? Was Fogle lying to protect the Asbury's interest in John's estate? Did James Austin have a bone to pick with John and was this his way of settling a score? Henry Highfill, tavern owner, claimed John spent the night at his place and couldn't have been present when the horse was taken. Did he lie? Was John there all night or just part of the night? How sure was Highfill of John's whereabouts? James Thompson, a neighbor, didn't recognize the horse John Asberry was riding, yet the stolen horse was from the neighborhood. Wouldn't it be hard to not recognize your neighbor's car? I'd think this horse would be compared the same way, after all it was the equivalent of a car. Mary Harrison, another neighbor, claimed to see Robert Asbury in possession of the horse shortly after it was taken. Did Robert and John look alike? Could it have been mistaken identity? Could she have been angry with Robert and this be her way of getting even? Or maybe, could she have been in love with John and not wanted his memory tainted? Or could she have justed wanted her "fifteen minutes of fame"?
In the end, the jury found in favor of Henry Austin. They agreed that John Asberry stole the horse. After all, John made it known he was going to have the horse no matter what. He was seen, in Tennesee, on the horse by the man that originally owned it and had told him he got the horse in Kentucky. Of course, that didn't necessarily mean that he'd stolen it but it looked bad in view of the testimony in the depositions.
Sometimes when I look at the depostitions and replay the family story in my mind, I have doubts. If John stole the horse, why would all those people lie? What other deeds could have been bad enough to keep James Jenkins from returning home if stelaing the horse wasn't the deed? What else was at play? How many of those testifying had Union leanings? How many Confederate leanings? Was politics at the core of the perjuries? Was it a way to turn on your neighbor? To show the Provost Marshall you were on his side? To gain the Marshall's trust?
This case raises more questions than it answers but it does cause one to think beyond the obvious question of 'Who really stole the horse'?
* The Asbury name has many spellings. In this case 'Asbery' seems to be the one used. I've used 'Asberr'y for John many times in this entry.
