Filed 19th January 1831
W Field clk

1804 gR

Costs Taxed page 128

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Be it remembered that heretofore to wit, before the Honorable James Woodson Bates Judge of the fourth Judicial circuit of the Territory of Arkansas at a court began and holden at the Courthouse in and for the County of Arkansas on the fourth Monday of January in the year of our Lord one thousand Eight hundred & twenty nine, Sam C. Roane Prosecuted and sued out of the Circuit Court aforesaid a writ of Summons in the following declaration to wit

Territory of Arkansas
Arkansas County
In the Circuit Court in & for the said County
To January term 1829

Sam C Roane complains of Hewes Scull of a plea of Trespass in the case. For that whereas, heretofore on the 7th March 1828 at the County of Arkansas & within the Jurisdiction of this Court, made and signed his said due Bill or note and delivered the same to Plaintiff which said due Bill or note is here ready to be shewn to the court and is in the words & figures following viz Due Same C Roane one hundred & sixty dollars & five cents value received N.B. This note to be paid when Mrs Sarah Embree shall settle her accounts with H Scull March 7th 1828 Signed Hewes Scull

and the said Plaintiff avers that he and Mrs Sarah Embree personally appeared at the Store and Counting Room of said H Scull Dft, in the Town or Post of Arkansas on the 17th day of January 1829 and before the issuing of the writ in this case and tendered to settle and pay said debt, the accounts & demands of Hewes Scull deft against said Sarah Embree, when and where the said deft refused to settle said demands against said Sarah Embree, by reason of which refusal the Deft became bound by the terms of said note or due bill to pay to the plff, the sum of one hundred and sixty dollars and five cents and being Indebted then and there undertook & promised to pay the said $160.05 to Plff. And for this, whereas afterwards viz in the 7th day of March 1828 at the County aforesaid the said defendant being indebted to the Plaintiff in the sum of $160.05 for money advanced and paid by the Plaintiff to defendant at the special instance & request of Deft and the defendant being so indebted to Plaintiff then & there undertook & promised to pay the said $160.05 to Plaintiff when he should be there to afterward requested And for that whereas afterward at the time and place first aforesaid the Deft was indebted to Plaintiff in the sum of $160.05 for monies assumed and paid by Plaintiff at the special instance and request of [Image of page 3] Deft and being so indebted then & there undertook & promised to pay the Plaintiff the aforesaid sum of $160.05 when he should be thereto afterwards demanded. yet the said Plaintiff saith, that he has often requested the Debt to pay and discharge the above demanded sum of $160.05 to wit at the town or Post of Arkansas on the 17th day of January 1829 and before the issuing of this writ but the defendant has hitherto wholly refused to pay the said $160.05 to the Plff or any part thereof to the damage of Plaintiff Two hundred dollars & therefore he sues
Signed Sam C. Roane

on which declaration was endorsed the following) in pro persona memorandum to wit
The Clerk of the Circuit Court pro Arkansas County will issue a writ of summons endorsed on the foregoing declaration, directed to the sheriff of Arkansas County and endorse this an action on the case damage $200

January 17th 1829 (signed) Sam C Roane
Declaration filed 17th January 1829
Eli J Lewis Clk

at the January term aforesaid the Defendant by his attorney James H Lucas craved oyer of the note set forth in the Plaintiffs declaration filed 20th January 1829 in the following words to wit -

Sam C. Roane
vs } January term Arkansas Circuit Court 1829
Hewes Scull

and the said Hewes Scull by his attorney comes into Court here and craves oyer of the note set forth in the Plaintiffs declaration
signed James H Lucas
for Defendant

whereupon the following order & continuances was made thereon at the aforesaid January term (to wit)
Sam C Roane Plff
vs } bare damage $200
Hewes Scull Deft

Oyer craved and the case continued to the next term of this court.

Note
Due Sam C Roane one hundred and sixty dollars and five cents value Received N B This note to be paid when Mrs Sarah Embree shall settle her accounts with H Scull
March 7th 1828 Hewes Scull

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Afterwards to wit at a Circuit Court held at the court House in & for the County of Arkansas on the fourth Monday of May in the year of our Lord one thousand Eight hundred & twenty nine the case being called the defendant by his attornies Lucas & Cummins filed then their several demurrers & plea marked A in the following words (to wit):

Arkansas Circuit Court
May term 1829

Hewes Scull
ad Lectam } Trespass on the Case
Sam C Roane

And the said Hewes Scull having craved oyer of the writing set forth and declared in the first count of the Plaintiffs declaration and the same being read and shown to him by Cummins his attorney comes and defends the wrong and Injury when &c and says that the said first count of the said declaration and the matters therein contained in manner and form as the same are above stated and set forth are not sufficient in Law for the said Sam C Roane to have or maintain his aforesaid action thereof against him the said Scull and that he said Scull is not bound by the law of the land to answer the same and this he is ready to verify wherefore for want of a sufficient count the said Scull pray Judgment &c
And the Plaintiff Joins (signed) Roane

And the said Hewes Scull further says that the said second count in the Plaintiffs said declaration and the matters therein contained in manner and form as the same are above stated and set forth are not sufficient in Law for the said Plaintiff to have or maintain his aforesaid action thereof against him the said defendant and that he the said Scull is not bound by the Law of the land to answer the same which he is ready to verify wherefore he prays Judgment &c
Joinder (signd) Roane

And the said Scull says that the said third count and the matters therein contained in manner and form as the same are above stated and set forth are not sufficient in Law for the said Plaintiff to have or maintain his aforesaid action thereof against him the said defendant and this he the said Scull is not bound by the Law of the land to answer the same which he is ready to verify, wherefore &c he prays Judgment &c as above
Lucas & Cummins for deft
Joinder (signd) Roane

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And the said Scull for Plea in this behalf says that he did not undertake and promise in manner and form as the said Sam C Roane hath above thereof complained against him and of this he puts himself upon the county
Lucas and Cummins for deft
And the Plaintiff doth the like
Roane

Whereupon at the aforesaid May term of the Circuit Court held at the court House in the county of Arkansas Present the Honora. James Woodson Bates the three several demurers aforesaid being fully argued to the Court and the Court having considered of the same the following order & decision was made thereon (to wit)

Sam C Roane
vs } case
Hewes Scull

This day the parties appeared and the defendant having filed three several demurrers to the Plaintiffs declaration when Plaintiffs joined in said demurrers severally when on argument of council the Court being sufficiently advised of and considering the premises

It is ordered and considered that each and severally the three demurrers of defendant to Plaintiffs declaration be and the same are hereby overruled & the declarations adjudged sufficient and It is further considered than the Plaintiff have and recover of the defendant his costs about his defence in this behalf expended on each of the said three demurrers. Whereupon the defendant by his council Cummins filed his plea to the first count to the Plaintiffs declaration in the words following to wit

And the said Hewes Scull by Cummins his attorney for further plea in this behalf as to the first count in the Plaintiffs said declaration says that the said Sam C Roane ought not to have or maintain his aforesaid action thereof as stated in the said first count against him because he says that the said Sarah Embree did not appear at the counting room of the said Hewes Scull at the Post of Arkansas on the 17th day of January 1829 or at any other time before the issuing the writ in this case, and under to settle & pay the accounts and demands of the said Hewes Scull against the said Sarah Embree which he the said Scull prays may be required of by the county
filed 29th May
Cummins for Deft
& the Plff doth the like Roane

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Afterwards to wit at a circuit Court held at the Court house in and for the County of Arkansas the fourth Monday of September in the year of our Lord one thousand eight hundred & twenty nine the defendant Hewes Scull having filed his affidavit for a continuance the following order was made thereon

Sam C Roane
vs } action of debt
Hewes Scull

Upon affidavit filed by the defendant continued untill the next term of this court at Defendants costs of this term

Afterwards to wit at a circuit Court held at the Court house in and for the county of Arkansas the fourth Monday of January and for the county of Arkansas the fourth Monday of January in the year of our Lord one thousand Eight hundred and thirty a motion was made by the Plaintiff Sam C Roane to wit to withdraw a demurrer and the following order was made thereon

Sam C. Roane
vs
Hewes Scull

Sam C Roane in proper person moved the Court and obtained leave to withdraw a demurrer that had been filed in this case without his leave. Whereupon the parties being prepared the Sheriff being required to summons a Jury and having returned the same the following order was made thereon on the trial of the case

Sam C Roane
vs
Hewes Scull
This day the parties appeared & the Plaintiff having joined issue to the two several pleas of the defendant whereupon came a Jury to wit Wm Barly Wm B Summers R Peeler H MKinsey J Weaver J McLain J Manior Shem Harris D.T. Strickland, E Kepler A Williams & L Simmons who being elected tried and sworn well and truly to try the issues joined between the parties after hearing the Evidence and arguments of council retired to consult of their verdict when they returned into court and being called but Eleven answered to the call of the court and being unable to give a verdict they were by consent of the Parties discharged by the Court and the cause continued untill the next term of this court on the trial of this case the Plaintiff moved [Image of page 7] the court to instruct the Jury on the points of law involved and in this case which instruction was given by the court as set forth in the defendants bill of Exceptions Marked A which was then drawn signed, sealed and made a part of the Record

Which bill of Exceptions is in the following words to wit

Arkansas Circuit Court
January term 1830

Be it remembered that on the trial of this case the court on the Motion of the Plaintiff instructed the Jury that from the face of the note upon which this suit is brought and set forth in the first count in the declaration the defendant Scull was bound to have coerced a Settlement of his accounts against Mrs Embree by suit or otherwise and that from the lapse of time from the date of the note to the commencement of the suit the defendant Scull should be liable for the amount of the Note to which opinion of the court the defendant by his council excepts and prays that this his bill of Exceptions should be signed, sealed and made a part of the Record
filed 26th January 1830 signd JW Bates (seal)

Afterwards to wit at a circuit Court held at the court house in & for the county of Arkansas on the Third Monday of may in the year of our Lord one thousand Eight hundred and thirty the Plaintiff in this case having filed his affidavit for a continuance the following order was made thereon

Sam C Roane
vs } action on a note damage 200 dolls
Hewes Scull
The Plaintiff in this case having filed his affidavit that he is unable to attend this court for certain Reasons assigned It is therefore ordered by the court that this case stand continued untill the next term of this court at the Plaintiffs costs for continuance

Afterwards to wit at a Circuit Court held at the Court house in and for the county of Arkansas on the third Monday of November in the year of our Lord one thousand [Image of page 8] Eight hundred and thirty the parties being in Court and the Sheriff having returned a Jury the following was their verdict and the order made thereon

Sam C Roane
vs
Hewes Scull
Now at this day the parties appeared by their council and having required a Jury the Sheriff returned the following panel to wit. Harold Stillwell John Taylor William Case Eli J Lewis Peter Lindsay Edward Linsey Right McIlmore Thompson Simpson John Larkey John Clark Peter Stillwell James Rogers twelve good and lawful men of the county who were elected tried and sworn well and truly to try the issue joined and having heard the Evidence returned the following verdict. We of the Jury find for the Plaintiff Sam C Roane one hundred and seventy seven dollars 65/100 in damages with costs of suit the defendant having excepts to the opinion of the court in the charge given to the Jury when they were about to return the same was signed and made a part of the record Marked B

Which bill of Exceptions Marked B and filed November 16th 1830 is in the following words (to(wit)
Arkansas Circuit Court
November term 1830

Sam C Roane
vs } assumpset
Hewes Scull
Be it remembered that in the trial of this case the Plaintiff set up and proved but the demand as described and set forth in the first count of the declaration and contained in the note therein described It was also proven by the admissions of the Plaintiff and Defendant that the condition mentioned in the said note was inserted because the Plaintiff had assured to Defendant to pay him the amount of Madam Embree's account in defendants books but Plaintiff afterwards refused to pay the amount of said account although he had monies of Mrs Sarah Embree's in his hands to discharge it because [Image of page 9] he understood that the account had not been adjusted and that nine items had been disputed the amount claimed by defendant Scull being more than the Plaintiff S C Roane was instructed to pay by Mrs Sarah Embree to defendant the Plaintiff returned Mrs Embree her money in discharge of his agency And further that this note was given for a ballance of Money which Defendant held in his hands belonging to Plaintiff but was then agreed to be retained according to the Stipulations of said note as being near the amount of Mrs Sarah Embree's account. Upon this State of Evidence the Court instructed the Jury in the Motion of the Plaintiff that from the face of the note upon which this suit was brought and set forth in the first count in the declaration the defendant Scull was bound to have coerced a settlement of his accounts against Mrs Embree by suit is otherwise and that from the lapse of time from the date of the note set forth in the declaration to the commencement of this suit the Defendant Scull should be liable for the amount of the Note to which opinion of the court the Defendant excepted and prays that this his Bill of Exceptions may be signed sealed and made a part of the Record
Signd JW. Bates (seal)

Whereupon the defendant moved for a Judgment in this case on the verdict of the Jury when the following order was made thereon and an appeal to the Superior Court granted which order and appeal are in the following words (to wit)

Sam C Roane
vs
Hewes Scull
Now on this day the Plaintiff moves for a Judgment in this case on the verdict of the Jury rendered in his behalf whereupon it was considered by the court that the Plaintiff have and recover of the defendant the Sum of one hundred and seventy seven dollars 65 cents damages together with his costs in his behalf expended and the defendant being in Mercy &c. And the defendant thereupon by his council prays and appeal to the Superior Court which is granted by the court on the Defendants filing bond with security on the Sum of [Image of page 10] Three hundred and Fifty five dollars 70 cents which was accordingly done

Whereupon the following bond was presented to the Court and filed and approved of

Know all men by these presents that we Hewes Scull as principal and ABK Thetford & James H Lucas as security are held and firmly bound unto Sam C Roane his heirs & assigns the just and full sum of Three hundred and fifty five dollars 70 cents as witness our hands & seals at Arkansas the 18th day of November 1830

The condition of the above obligation is such that whereas at the November term 1830 of the Circuit Court of the County of Arkansas the said Sam C Roane having recovered of the said Scull one hundred and seventy seven dollars 65 cents in damages and an appeal to the Superior Court being prayed for by said Scull. Now therefore if the judgment of the Circuit Court should be confirmed and the said Scull shall well and truly pay the amount as shall finally be adjudged against him and the costs of this appeal, then the above obligation to be void otherwise to remain in full force and virtue

In testimony whereof we have hereunto set our hands and seals the day and year here before mentioned as written

Hewes Scull (seal)
ABK Thetford (seal)
Jas H Lucas (seal)

Territory of Arkansas
County of Arkansas
I Hewes Scull clerk of the circuit court for said county do hereby certify that the foregoing nine pages contain a true perfect & entire transcript of the Record and proceedings in the case determined in said Court wherein Sam C Roane is Plaintiff and Hewes Scull defendant taken from the original Record still remaining on file in my said office

In testimony whereof I have hereunto set my hand & the seal of the said court this 1st day of January 1831 and of the Independence of the United States the 55
Hewes Scull clk

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