On November 13, 1825, Peter Holliday possessed a promissory note for $133 that he had hopes of collecting. It is unclear why or how Holliday had gained possession of the note; presumably William English, in favor of whom the note was drawn, had given it to him as a payment of some sort. Holliday wanted to collect on it, of course, so he hired Ambrose H. Sevier as his attorney/agent to collect payment from Joshua J. Henness, the maker of the note. Holliday gave Sevier the note and Sevier gave him a receipt on November 14, 1825. For some reason, however, Sevier failed to collect on the note for Holliday. The resulting legal dispute between Holliday and Sevier spanned more than 10 years during which time the Arkansas Territory became a state and various other changes occurred throughout the area, the world and in the lives of the participants.

In mid-1827, when Holliday found that Sevier had neglected to collect his payment for him, he brought an action against Sevier in the Clark County Circuit Court in trespass on the case. Holliday's original declaration, filed in Clark County Circuit court on May 15, 1827, consisted of three counts against Sevier and claimed damages of $200. Thomas Hubbard was his attorney. The first two counts were for negligence in Sevier as an attorney in failing to collect and account for the note, and the third count was in trover for allegedly converting the note. The receipt that Sevier had given Holliday when he handed over the note to Sevier in 1825 was given in evidence in the lower court in Clark County. Daniel Ringo, the clerk of the Clark County Court, filed the declaration and issued the summons for Sevier on May 15. The summons was executed on Sevier on May 16, 1827 in Caddo Township of Clark County by James Miles, the sheriff of Clark County.

On September 10, 1827, Sevier appeared in court in Biscoeville and filed a general demurrer to Holliday's charges, basically denying all of them; Holliday filed a joinder to the demurrer. The case was apparently continued until the next term of the circuit court. Between that term and the next, Sevier survived a duel, married Juliette Johnson, the daughter of Superior Court Judge Benjamin Johnson, was elected Territorial Delegate to the U.S. Congress, and took his seat in Washington City in February 1828. The Clark County court convened on March 3, 1828 "near the dwelling house of Adam Stroud," Superior Court Judge William Trimble presiding. Judge Trimble made an order overruling the demurrer and, because Sevier had no other defense, the court ruled against him in favor of Holliday - this is referred to as a judgment by nil dicit. However, because the damages could not be determined from the declaration, the court ordered that a writ of inquiry issue directed to the sheriff of Clark county to summon a jury of twelve to determine the damages to be awarded to Holliday.

On July 8, 1828, Sevier moved and Judge Trimble ordered that the judgment rendered against Sevier be set aside and that he have leave to plead to the merits. Sevier's sworn affidavit in support of his motion stated that he had received of Holliday (via a Mr. Drew) a note to collect against Hennis and that Sevier then went to Tennessee where he left the note with Colonel Robert C. Oden, his law partner, to bring suit. He said that he believed that the suit was never brought. Sevier then sent his own attorney, Chester Ashley, to attend to the note. He thought Ashley had taken care of it, but when he had tried to find out, he had learned that Ashley was in Louisiana and did not return until the suit was over and a default judgment and writ of inquiry had been awarded against Sevier in favor of Holliday. He also stated that at the time Holliday had given him the note, Henness was very poor and could not have been expected to pay the note, thus the damages awarded to Holliday in the event of a judgment against Sevier should not have been for the amount of the note. Then he stated that he was in possession of the note and was willing to return it to Holliday, but that he had never received "one cent" on the note and thus could not have converted the proceeds. Sevier filed his plea and Holliday joined the issue. The court commanded the Sheriff to summon a jury. The jury came and consulted, but could not agree on a verdict. This jury was composed of Abraham Wells, John Callaway, Jesse Spencer, George Butler, John Ish, Willis Standley, James Bankston, Isaac Cates, John R. Richards, Thomas Neel, James Neel, and Hiram Moore. One of the jurors, Thomas Neel, was withdrawn (the record does not state the reason for his withdrawal) and the rest of the jury was discharged and it was ordered that the suit be continued.

On April 28, 1829, no judge appeared to hold court so it was adjourned and the case was picked back up in the summer term. On August 19, 1829, the parties consented to a verbal statement of Chester Ashley on oath in lieu of a written affidavit in favor of his motion to continue the case. Trimble entered the order to continue the case at the cost of the defendant. On March 30, 1830, the court finally picked the case up again. At that time, Judge Trimble ordered that a jury come to hear the evidence – the jury consisted of William Thornton, Archabald Huddleston, Jame Little, John J. Langley, H.E. Thornton (the foreman), Henry Ashabranner, Augustus B. McDonald, Joseph B. Riley, Benjamin Hardin, Samuel Lewis, Micajah McDonald, and Moses Guice. Sevier objected to the entry of the receipt into evidence, but the court overruled the objection and admitted the receipt. The court stated that the receipt was evidence conducing to provide a privity of contract between Sevier and Holliday. Sevier excepted to this ruling and filed a bill of exceptions. The jury found for Holliday and thus, the Clark County court entered a judgment for him in the sum of $164.04 ½.

On April 1, 1830, Sevier moved the court to arrest the judgment against him and filed his reasons for the motion. First, he stated that Holliday's declaration did not contain a statement as to whom the notes were payable, whose notes they were, nor that they belonged to Holliday in the first place. Also, the consideration for contract was not formally or expressly stated in the first two counts, nor was the contract stated with sufficient certainty. Furthermore, the conversion count was defective because it never stated that the note was Holliday's property or that it was converted to Sevier's use. Also, the second count was defective because it did not appear certainly whether the sum mentioned in that count was different from that mentioned in the first count. Nevertheless, on August 2, 1830, a writ of execution issued to the Clark County sheriff from the clerk Isaac Ward against Sevier for $168.04 ½ and $43.90. On August 10, 1830, Abner E. Thornton, the deputy sheriff, made an endorsement on the writ of execution, noting that he had received it. However, the sheriff of Clark County, Abner Wells, noted on September 27, 1830 that the execution was not served by order of Holliday's attorney.

Apparently at some point, Sevier filed an appeal from the judgment against him in the Clark County Circuit Court, although that document is not extant. The Superior Court issued a writ of error via clerk William Field, on October 15, 1830 to Isaac Ward, the clerk of the Clark County Circuit Court. The writ states that "because in the record and process as well as in giving judgment in an action of Trespass on the case. . . manifest error hath intervened to the great damage of Ambrose H Sevier: We being willing that the Error if there should be any be corrected and that speedy and full Justice be done between the parties . . . . do command you that this record. . . be certified to the . . . superior court . . . to the end that looking into the record . . .we may cause to be done in correcting the error what of right and justice should be done in the premises." By order of Judge Thomas P. Eskridge, the writ of error was made to operate as a supersedeas, suspending execution on the Clark County judgment until the appeal was resolved, and to be obeyed as such. To appeal, Sevier was required to guarantee that he would pay Holliday if the lower court's judgment was affirmed on appeal, so he and Samuel C. Roane entered into an appeal bond to Peter Holliday in the sum of $336.09. William Field, the Superior Court clerk, filed the bond on October 15th, 1830. On December 6, 1830, Ward certified the record to the Superior Court.

On January 10, 1831, Sevier argued his errors to the court and Holliday joined the errors. In addition to the errors stated above, he argued that the court erred in permitting Holliday to give in evidence to the jury the receipt given to English without showing any privity of contract between Holliday and Sevier. The judge, Sevier argued, erred by instructing the jury that the receipt proved a privity of contract between Sevier and Holliday. Chester Ashley and Samuel S. Hall were the attorneys for Sevier, and Ringo and Trimble were the attorneys for Holliday. Note that Trimble was the judge in the Clark County proceedings which had concluded in favor of Holliday. On January 12, 1831, the record was filed in the Superior Court and a week later, Court Clerk Herndon Haralson filed the writ of error to the Clark circuit court. The attorneys in the case argued their respective points on January 24, 1831 and the case was submitted to the court and taken under advisement. The court did not take it up again until July of that year. On July 12, 1831, William Field, the clerk of the Superior court, filed Sevier's assignments in error [these are the errors assigned on January 10, 1831 - see above]. In his assignments, Sevier argues that the suit should have been brought in the name of English – the person who had the legal interest. Furthermore, the count in trover was defective in not alleging that the plaintiff was possessed of the note as his own property and there was no privity of contract between the plaintiff and the defendant. On July 18, 1831, the parties moved for leave to re-argue the case - it is unclear whether they were given permission to do so, but the court soon rendered its decision.

The Superior Court opinion was delivered by Judge Eskridge on July 25, 1831. On appeal, Ambrose Sevier had relied on several grounds, but the court only recognized two of them. First of all, he had argued that the action was improperly brought in the name of Peter Holliday instead of the name of William English. The Superior Court ruled that the action should have been brought in the name of the person in whom the legal title resided (here, it was English) – this was a well recognized doctrine. The Court found that there was nothing in the record to show that the title was in Holliday or that he had any interest in the note. Holliday was only the naked bailee of the note or was an agent of English, but he could not recover on the note in his own name. The court reasoned that if Holliday was a naked bailee, then he had good title to it except as against English, the rightful owner, when he had possession. But when he voluntarily parted with possession of the note, he divested himself of all interest in it. The same result would obtain if he was an agent of English - a mere agent or attorney not having any beneficial interest in a contract cannot maintain an action in his own name. The court relied on the case of Gunn v. Cantine to support its conclusion. Secondly, the court noted that there was a defect in the count in trover because it was not stated that Holliday had possession of the note in controversy. This is a valid objection, the court wrote, but not important as the first point on appeal was decisive. The court stated that the first two counts in the declaration were fatally defective in not setting out a title in the plaintiff to the note. Thus, the court seems to be leaning in favor of Sevier in its opinion. From the Hempstead Reports, it appears that the Superior Court actually found for Sevier, reversing the Clark County Circuit Court on appeal. However, according to the Superior Court docket's official record of the opinion, because the court was divided in its decision, the Superior Court affirmed the judgment below and ordered that Holliday should recover of Sevier his costs of the appeal. There seems to be some missing information or pleadings or actions in the court, perhaps another appeal by Sevier, because two days after the court handed down its opinion, the parties appeared by their attorney and on motion it was ordered that the cause be continued until the next term of the court. It is possible that the Reports are wrong, because Hempstead compiled the volume decades later from the papers of Judge Benjamin Johnson and was not himself a witness to these decisions.

These parties continued their case four years later. There must have been some court action in the meantime, but any official documents recording such actions are absent from the Territorial records collection. The next mention of the case in the court's record book was on July 16, 1835, when the parties appeared and the court ordered that the cause be continued until the next term because there was no court competent to try the case. On January 19, 1836, the parties came again by their attorneys and the argument of the cause commenced. On January 29, the parties concluded their arguments and the case was submitted to the court and was taken under advisement until that fall.

That summer, Arkansas became the twenty-fifth state to join the Union. The Territorial Superior Court ceased to exist, and the law now diverged into two legal systems, that of the state, with circuit courts and the Arkansas Supreme Court, and that of the federal government, which in Arkansas consisted of the federal district court under the capable hand of Judge Benjamin Johnson. Sevier himself was elected by the first Arkansas state legislature to fill one of Arkansas's Senate seats. On November 9, 1836, the record of proceedings in the Clark County Circuit Court was again filed in the Superior Court. At some point, Sevier submitted a brief stating that the first and second counts in the declaration were defective in not giving a venue to the material facts, and argued that this want of was not cured by the verdict. He also argued that the judgments were defective in not showing whose notes they were, or that they were received by him for collection. Furthermore, the conversion count was defective in not showing when or where the note was converted or that the note was Holliday's to begin with. According to Sevier, who at this point was represented by Albert Pike, the court had improperly admitted the receipt into evidence. The text of the 1840 Arkansas Supreme Court decision tells us that at the 1837 January Term, the Supreme Court, holding for Sevier, reversed the decision of the court below and remanded the case. Holliday asked for a rehearing, which was granted.

The copy of the petition was filed January 20, 1838. This is the longest of our documents (thirty-six pages) and Holliday's counsel – Trapnall and Cocke – acknowledge that their argument may be somewhat prolonged, but explain that they believed it was necessary to cover all the points that could have possibly influenced the ruling of the judges because the Court was not explicit in stating what grounds it relied on to rule against him. This document is somewhat difficult to comprehend because of the complete disregard for grammatical convention, including rules of punctuation, in some cases by the writers. However, in their petition, they respectfully asked the court to reconsider the case because the petitioners believed the decision against Holliday was founded upon a misconception of the action and the grounds on which it rests. According to Holliday's counsel the court seemed to base its decision on the presumption that the note executed by Henness to English which Sevier received of Holliday for collection was the basis of the suit. Trapnall and Cocke argued that this was erroneous. They tried to distinguish the two contracts. They stated that the cause of the action was the failure of Sevier to fulfill his engagement as an attorney. The note, they contended, was the subject matter in regard to which the contract between Holliday and Sevier was made, but it was not the foundation of the suit. The note did not form any of the consideration for the contract between Holliday and Sevier. The professional skill and services of Sevier on the one hand and the fees and reward to be given by Holliday on the other formed the consideration. Since Sevier withheld those services and Holliday was greatly injured, Holliday had a right to a remedy. They conceded that Holliday did not have legal title to the note, but argued that he was the equitable owner. However, if the equitable holder employs an attorney and binds himself to pay the attorney to prosecute the equitable interest in the note, he is a legal party to that contract with the attorney and is legally entitled to all the damages he may sustain by its violation – i.e. the interest in the note. The interest in the contracts are distinct and separate and the relationship in which the equitable owner of the note (here Holliday) stands to the person obligated to pay it (here, Hennis) is distinct from that in which Holliday stands to the attorney (here, Sevier) with whom he has made the contract for the prosecution of his suit. This blending of contractual obligations is the misconception that Holliday's attorneys assign to the court. The confluence of contracts is what the court relied upon in laying down the principle (correct in itself, but inapplicable here) that a beneficial or equitable claimant cannot adopt legal proceedings in his own name. If Holliday had brought suit on the note, then the court's rule would have been applicable because English is the person in whom the legal interest in the note was vested. However, Holliday was suing on the contract between him and his attorney, not on the note itself. Thus, the only way the note comes into play is in assigning damages. First, the court should have found one way or the other whether Sevier had breached his contract as an attorney with Holliday. If he did, then the jury would have to find damages – the damages would have been based on the amount that Sevier was entitled to recover on the note if Sevier had prosecuted it correctly. If he was entitled to the proceeds of the note, then that would be the amount. If he was not entitled to the proceeds, then he would still win against Sevier, but there would be no damages. The question then, according to Holliday's attorneys, was: is there anything in the record to rebut the presumption that Holliday proved both his contract with Sevier and the injury sustained by Sevier's failure to carry out his promise?

This question led Holliday's attorneys to launch into a discussion about the standard of appellate review to be used by the Supreme Court. They stated that the court looked at the record with the view of ascertaining whether it contained evidence of all the facts necessary to establish the demand rather than ascertaining whether it furnished evidence that the jury and the court below erred. They contended that to get an affirmance of the judgment below, the evidence was not required to be shown to the court with all the fullness and precision requisite to establish it in the first instance before the inferior court. The rule is that the party who impeaches the validity of the judgment below must show affirmatively on the record such facts as prove conclusively that the court erred or the appellate court will presume its judgment to be correct. The appellate tribunal will presume the court below to have done right until the contrary appears. Next, they addressed the burden of proof that was laid upon the parties. Holliday's attorneys contended that the burden was on Holliday when he made his initial claim and that according to the jury and judge below, he had carried his burden. In appealing, Sevier took upon himself the burden, and was required to establish by a direct and positive showing that the judgment was illegal and unauthorized before he could overthrow it. According to Holliday, he had not done so. The court, however, apparently had made unwarranted presumptions in favor of Sevier. The court stated that it was authorized to look into the whole record, the circumstances under which the receipt was admitted, and the language in the bill of exceptions to see whether there was any other evidence entitling Holliday to the verdict - the court found that there was not any other evidence, but did not elaborate on what language or circumstances brought them to this opinion. Thus, Holliday's attorneys discussed the bills of exceptions to see whether they could correct the court's views. The bills of exceptions contained an exception to the admission of the receipt into evidence and an exception to the instruction of the court in regard to the legal effect of the receipt. Thus, from these two exceptions, Holliday's attorney argued, the court drew the inference that there could have been no other material evidence in the case. The court thus closed the door on all presumption that there were other pieces of material evidence to establish privity between Holliday and Sevier. Holliday's attorneys objected to this presumption. They raised three questions: 1) did the court err in admitting the receipt in evidence; 2) did the court err in the instruction given in regard to the effect of the receipt; and 3) did the language of the bills of exceptions preclude the presumption that other evidence was adduced at the trial below?

They again repeat that the basis of the suit is the contract between Sevier and Holliday not the note. Thus, at trial, Holliday had to prove privity of contract between him and Sevier; he had introduced the receipt as evidence of the contract. The court then had to decide whether the receipt conduced to prove a privity of contract. If it did, then the court was right in admitting it and giving the jury the instructions. The receipt showed that Sevier had received the note from Holliday; thus Holliday argued that it was necessary to have it in evidence and that the court did not err. Holliday's attorneys say the court was cautious in its instructions to the jury so the jury would not give the receipt too much weight - the court told the jury that the receipt conduces to prove a privity of contract, but that it was not conclusive and that more proof was necessary to establish privity conclusively. Since the jury found for Holliday, his attorneys argued that the appellate court must infer that there was additional evidence adduced which satisfied them of the privity.

Then the lawyers got to the real question: Does the language of the bills of exceptions preclude the presumption that other evidence was introduced at trial? They argued in the negative. Apparently the court had assumed that because Sevier's bills of exception only objected to the introduction of the receipt, there was no other evidence to prove that there was privity of contract between Holliday and Sevier. Holliday's attorneys contended that just because the bills of exceptions did not allude to other evidence showing a contract did not mean that it did not exist. The court had apparently believed that the single receipt excepted to excluded all presumption of more proof. Holliday's attorneys, however, dispute this belief and appeal to authority which states that the bill of exceptions, to repel the presumption of more proof, must not only set forth all the testimony, but must expressly declare on its face that it has done so. In the case of Trayear v. Harris, the court had ruled that when a bill of exceptions to the decision of the inferior court refusing to give the jury the instructions asked does not state that the evidence debated in the bill of exceptions was all the evidence given, the court of appeal will presume that other evidence was given that was sufficient to justify the decision. When the bills of exceptions on their face disclose that they embrace all the evidence, the appellate court can act with a full assurance that they have all the facts before them, and if error has been committed, they can rectify it. However, if they do not have the assurance that it was all the evidence, the court cannot know all the facts are reported, and should not therefore take upon itself to say that the judgment was wrong; the proof it does not know about may have been amply sufficient to warrant the finding of the jury and the judgment of the court.

Then the counsel launch into a discussion of the limits of an appellate court's power on appeal. They stated the basic rule, that after a trial court's verdict, the appellate court will presume every fact to be proven that is necessary to establish the plaintiff's demand. After the verdict, the appellate court must begin with a strong presumption in favor of the winning party below. Here, since Holliday won at trial, he had successfully proved the existence of the contract, that the note had actually passed to Sevier and was to be collected for his benefit, and that he was the person who had actually suffered the damages. Holliday's attorneys argued that the appellate court, instead of presuming for Holliday, rested its decision on presumptions against the verdict, and limited Holliday's evidence by presuming that the note was all the evidence produced. The court, they say, instead of presuming against the verdict should have done what it could to keep the verdict. The court assumed that Holliday had no legal, beneficial, or equitable interest in the note though it did not state what authorized this assumption. Then, from this presumption, the court went on to assume that Holliday was a mere bailee, but offered no basis for this conclusion. Holliday's attorneys argued that they were stripped of the presumptions that they were entitled to and that the court, instead of presuming in favor of the verdict, presumed in all instances against the verdict below. The same arguments were advanced for the trover count as well.

In conclusion, Holliday's counsel argued that the court should reexamine the case with "the light of those authorities beaming upon it" and stated that they trusted that the court would not disturb such settled principles. They contended that innovations on established rules should "ever be cautiously made and never unless experience has proven them to be unjust and oppressive." Furthermore, the rule that the court had violated was recommended by good sense and sound policy as well as the precedence and authority. At the end of their argument, Trapnall and Cocke offered for further authority in regard to the presumption after verdict the Territorial Superior Court's decision in the case of Fisher v. Eason.

On February 27, 1838, the clerk certified that the petition was a true copy of the original motion for annulment/reargument. Holliday's petition for annulment argued against the court proceedings in which Sevier's demurrer was overruled, a judgment was entered nil dicit and a writ of inquiry was awarded. This judgment was then set aside. Holliday's counsel, Trapnall and Cocke, stated that they were "unapprised" by what law this proceeding was had. The law, according to them, provided that a judgment by default may be set aside for cause, but a judgment by nil dicit was final and could only be set aside by the Supreme Court on error shown after the term of the court had passed at which it was entered. The counsel stated that setting aside the judgment was an obvious error to the prejudice of Holliday. They stated that upon the writ of inquiry, the verdict of the jury would have been the same amount that was on the issue and therefore the result was the same. Furthermore, even if the proceedings after the judgment were erroneous, if the errors did not change the legal result, then the judgment below must be affirmed. Thus, the counsel contended, the court should have affirmed the ruling below because the result would have been the same that it would have been without any supposed error alleged by Sevier. They stated that because the error did not prejudice the legal rights of the parties, the verdict was for the amount of the note and it would have been the same upon the writ of inquiry so the final result was not to Sevier's prejudice. Thus, they stated, Sevier could not be injured by a reargument of the case and irreparable injury and injustice would have been done to Holliday by a refusal.

At the 1840 July Term of the Arkansas Supreme Court, the final word (one hopes) was handed down by the Arkansas Supreme Court in Arkansas's first malpractice case. The court's decision can be found at volume 2 of the Arkansas Reports beginning on page 540. The court held that, in essence, despite the trial court's verdict and holding, Holliday had not proved that he had any type of ownership interest that could enforce the note. As an aside, the court noted that a client would have to prove "culpable" or "gross" negligence by an attorney to recover damages.

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