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Forbes
ads } certio
Simmons

Filed October 21st 1828
attest
Daniel Ringo DC
for D.E. McKinney Clk
1828 October term
Opinion ss

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Page 84

(side)

The record in this case was filed by consent, & the only question presented by it, is, whether a bill of exceptions can be filed to a decision of a justice of the peace- We think that it cannot. Suits tried by a justice may be taken to the circuit court, by appeal or certiorari, & in either case, decision of the justice may be taken advantage of. The decisions of the circuit as to this point is reversed; & affirmed, so far as it sets aside the proceedings of the justice & directing a new trial.

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N o 1
Territory of Arkansas.
County of Phillips
Township of St. Francis
United States of America
To the Constable of St. Francis Township in the County of Phillips Greeting
You are hereby commanded to summons Thomas Forbes to appear before me a Justice of the peace on Saturday the 19th day of May 1827, at my dwelling house, between my hours of ten in the forenoon and three o'clock in the afternoon of Said day to to answer unto James Simmons in an action on accompt.
Given under my hand this 4th day of may 1827
in St Francis Township Executed the within on Thomas Forbes, by reading the same in his hearing May the 7. 1827
Peter Edwards
Justice of the peace

Service 37 ½
Circular miles 30
$1.87 ½
Lewis McAdoe debity Constable

No 2
I hereby authorise Lewis McAdoe, to execute the following named papers, that is to one summons, on James Simmons, and one on Thomas Forbes, and also the following peapls that is to say one Stephen David and one on Shadricke J Cellems.
Given under my hand this 8th day of May 1827.
John H Rawls
Const of St Francis
Township PO AT
Executed the within subpoena on Samuel Edmonds in St Francis Township on the 19 day of May 1827 by reed the same in his hearing
John H Rawls
Constable

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No 3
June 1825
Thomas Forbes to
James Simmons Dr.
? ten dollars cash — $10.00
Filed 4th May 1827

No 4
James Simmons
vs
Thomas Forbes
Summons issued may the 4th 1827. and made returnable the 19th instant constable returned executed now as this being the 19th instant and the day set for trial James Simmons the plaintiff appeared and the Defendant Thomas Forbes and produced their several claims (or demands) and and after hearing the proofs and allegations of the parties it is adjudged James Simmons the plaintiff have and recover the sum of nine Dollars with his costs in that behalf expended of the said defendant Thomas Fores wherefore Judgment is entered against the the Defendant for the sum of nine dollars with costs of suit

Justice fees 87
services of sums 37 ½
circular miles 30 1.50

Peter Edwards
Justice of the Peace

I certify the foregoing is a true coppy of my Docket with all the original papers sent up
Given under my hand and seal this 3d day of July 1827

Peter Edwards
Justice of the peace

(seal)

Filed 27th July 1827
Geo W. Ferebee
clk

No 5
James Simmons
vs } at an account
Thomas Forbes

Be it remembered that when this cause was called the return on the writ of summons shewed to have been made by Lewis McAdoe as deputy constable and a paper returned therewith signed by John H Rawls constable [Image of page 4] by which a special deputation was given to said McAdoe which paper is marked A and prayed to be taken as part of this bill, and it not appearing that the said deputy was ever sworn, either before or after the service, it was moved by the defendant that the service should be set aside on the ground that the officer was not sworn which motion the Justice overruled, which opinion the defendant excepts to; and be it also remembered that on the trial the plaintiff offered himself as a witness to prove his account, and the defendant insisted on the right of asking the witness questions as to the manner of the accounts accruing which was objected to by the Justice to which opinion the defendant also excepts and prays that this his bill of exceptions may be signed and sealed and made a part of the records.
May 19th 1827

W.B.R. Horner
William S King
Thomas Forbes

6
Know all men by these presents, that we Thomas Forbes as principal and James H McKenzie as security, are held & firmly bound unto James Simmons in the penal sum of Fifty dollars, for the faithfull payment of which we bind ourselves, our heirs, executors &c jointly and severally firmly by these presents, signed with our hands and sealed with our seals this 24th day of May 1827

The condition of the above obligation is such that the said Thomas Forbes is about to sue out a writ of certiorari from the Circuit Court of Phillips County, Arkansas Territory, to remand a cause in which the said James Simmons before Peter Edwards Esqr a Justice of the peace on the 19th instant obtained Judgement against the said Thomas Forbes for the sum of nine dollars (or thereabout) with costs &c in an action on account. Now then if the said Thomas Forbes shall prosecute his certiorari to effect, or otherwise pay and abide the judgment of the circuit court aforesaid then this obligation to be null and void, else to remain [Image of page 5] in full force and virtue according to law
Signed, sealed and acknowledged before me this 23d May 1827
Geo. W. Ferebee
clk
Thomas Forbes (seal)
James H McKenzie (seal)

Filed 24th May 1827
Geo W. Ferebee
Clk

No 7
Territory of Arkansas
County of Phillips
The United States of America
To Peter Edwards Esquire one of the Justices of the peace for the county of Phillips aforesaid & Township of St Francis Greeting–
We being willing for certain reasons, to be certified of a certain plaint, and the Judgment thereon in our court before you, against Thomas Forbes, at the suit of James Simmons in an action on an account, brought and rendered; we command you that the plaint and judgment, aforesaid, as fully and entirely with all things touching and concerning the same, as it remains before you, by whatever names the said James Simmons, & Thomas Forbes may be called in the same, to the Judge of our Circuit Court, at Helena on the first day of our July Term next ensuing, you certify and send together with this writ, under your hand and seal that we may cause to be done therein, as of right we shall see fit to be done — In Testimony whereof I have hereunto set my hand and affixed my official seal, at office, this 24th May AD 1827 and of the American Independence the 51st

(seal)
Geo. W. Ferebee clk

This writ to act as a supersedeas
Geo. W. Ferebee Clk

No 8. Thomas Forbes
vs } Certio
James Simmons

Thomas Forbes by his atty, Hornor, assigns the following errors in the proceedings before the Justice: first that the process was not served by a sworn officer, second that the plaintiff offered himself as a witness to prove his account and [Image of page 6] the Justice positively refused to swear him in any other way than that the account is just, thereby precluding the defendant from all the rights of cross examination and moves therefore that the proceedings be set aside.
Hornor
Filed 11th July 1827
Geo. W. Ferebee Clk

No 9
Territory of Arkansas
Phillips County.
In the Circuit Court May Term 1828.

Thomas Forbes
vs} certiorari
James Simmons
Now as this day came the parties by their attornies, and the errors being submitted to the Court it is considered that the proceeding had before the Justice of the peace be set aside and a new trial awarded, and the Cause continued among the papers returned by the Justice was a Bill of exceptions taken from the Justices Court, and the Court decided that a Bill of exception would lie to the decision of Justice of the peace, to which opinion the defendants except and filed their Bill of exceptions- It is also considered that the said Thomas Forbes have and recover his Costs in and about his suit in his behalf expended as well in the Justices Court as in this
/sd/ Saml S Hall

No 10.
Thomas Forbes, plaintiff in certiorari
versus
James Simmons defendant in certio
Be it remembered that at the trial of this case before the Circuit Court in and for the County of Phillips, at its session in May Term AD 1828, on Friday the 23d day of May the plaintiff in error offered to read in evidence a paper purporting to be a bill of exceptions, taken before the Justice of the peace and signed by three persons, the defendant objects [Image of page 7] to the Bill of exceptions for this reason, that a Bill of Exceptions would not lie from the Court of the Justice of peace to the Circuit Court; which objections the Court overruled and gave as his opinion that a bill of exceptions did well lie from the Court of a Justice of the peace to the Circuit Court; to which opinion of the Court the defendant in error excepts and prays that this Bill may be signed, sealed and made a part of the record-
S.S. Hall (seal)

Territory of Arkansas } sct.
County of Phillips
I George W. Ferebee Clerk of the Circuit Court in & for the County aforesaid do certify that the foregoing is a true, perfect and entire transcript of all the papers and records of my office in relation to the foregoing cause. In Testimony whereof I have hereunto set my hand and affixed my official
seal at Helena this 29th day of September AD one thousand eight hundred and twenty eight & of the Independence of the united states the 53d
Geo. W. Ferebee Clk

(stamped seal)

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