James Demoss v. William Montgomery
|This case is related to the facts in Danby
v. Montgomery, the previous case. After Montgomery's note to Demoss
became due in September of 1823, James
Demoss alleged that on December 26, William
Montgomery had come into possession of a number of his goods, including
some horses, steers, harness gear, pots and ovens, "by finding."
Demoss alleged that Montgomery knew the goods were his, but refused to return
them. This wording is an example of the extreme formalism of pleadings at
this time. What had actually happened was that Demoss had delivered the
goods to Montgomery and received a receipt for them. Montgomery was supposed
to redeliver them to Demoss but allegedly did not. Demoss filed suit against
Montgomery at the Arkansas County
Circuit Court on February 16, 1824. He was represented by William
Pugh, Jr., an attorney new to the Arkansas Territory. His "form
of action" was trespass
on the case in trover, and he asked
for damages of $500. Clerk Eli
J. Lewis issued a summons for William Montgomery, which was served by
James R. Albrook,
Deputy Sheriff, in place of Sheriff James
Hamilton. Albrook served the summons on Montgomery in Mississippi
Township on March 10th.
On Wednesday, May 16, the circuit court met. Judge Thomas P. Eskridge continued the case till the next term. Montgomery, represented by attorney Ambrose H. Sevier, filed his plea, and Demoss made bond for $100. Robert McKay was his surety. On August 9, Lewis issued a summons to Cornelius Bennett to serve as a witness for Demoss at the September term of the court. Sheriff Terrence Farrelly served the summons on Bennett at Arkansas Post.
On Tuesday, Sept. 7, jurors were summoned: John Stillwell, John Wilkinson, James Boswell, John Clark, David Dollison, John Morrison, William Currin, Harold Stillwell, Jacob Barkman, Joseph Jacob, Francis Duvall and James Parry. After Demoss had "closed his testimony" the judge ruled that he had not made a case, and awarded costs to Montgomery. He ordered that a writ of scire facias issue against the security that Demoss had given.
In his decision, Judge Eskridge stated that Demoss had actually made a demand for the return of the goods on David Miller, Montgomery's agent, at Montgomery's house. Miller had refused to deliver the goods. Demoss asserted that Miller was Montgomery's agent and Miller denied it under oath. The judge ruled that a demand on an agent at the dwelling of the principal was not a sufficient demand and refusal to allow Demoss to recover. Attorney Pugh asked to file a bill of exception on behalf of Demoss, which would be examined by the Superior Court if the case was appealed. Eskridge agreed.
The bill, however, alleged different facts. The bill stated that the judge ruled that there was no evidence of an actual conversion, and no evidence of a demand being made on Montgomery. Eskridge refused to sign the bill of exception, but three attorneys signed it, including Montgomery's attorney: Sevier, Townsend Dickinson and W.B.R. Horner. Thus it was included in the record, which the clerk certified for appeal on October 4, 1824.
The case was filed with David McKinney, Clerk of the Superior Court, on Oct. 12. Two days later, in the case of Danby v. Montgomery, Montgomery lost to Danby on appeal, owing him $417 plus costs. On Oct. 16, Demoss v. Montgomery was dismissed by order of Pugh, Demoss's attorney. The record book contains no further information on the case.
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