Filed 11th Jany 1832
W. Field clk

1832
Jany Term contd

Costs Taxed page 164

[Image of page 2]
In the Circuit Court of Conway
County of September Term AD 1831

Territory of Arkansas
County of Conway
Sct

Benjamin F Howard Plaintiff in this suit by William M K Ball his attorney complains of Benjamin Murphy of a plea of Trespass on the case upon promises:
For that whereas heretofore, to wit, on the ninth day of March in the year of our Lord one thousand eight hundred and thirty one at the County of Conway aforesaid and within the jurisdiction of this Court in consideration that the said Plaintiff at the special instance and request of the said Defendent had let to hire and delivered to the said defendent a certain keel Boat of the said Plaintiff of great value, to wit, of the value of one hundred and thirty dollars, to be had & used by the said defendent for a certain time in that behalf agreed upon by and between the said Plaintiff and defendent, to wit, from the ninth day of March to first of April A.D. 1831 he the said defendent undertook and then and there promised to take due and proper care of said keel boat, and to redeliver the same to the said Plaintiff at the expiration of the time for which the same was so let to him as aforesaid, and although the said defendent then and there had and received the said keel boat of and from the said Plaintiff for the purposes aforesaid, and although the time for which the same was so let to him as aforesaid, hath long since elapsed: yet the said defendent not regarding his said several promises and undertakings

[Image of page 3] but contriving and fraudelently intending craftily and subtly to deceive and defraud the said Plaintiff did not, nor would not take due and proper care of the said Keel boat, or at the expiration of the time for which the same was so let to hire aforesaid or at any time afterwards redeliver the same to the said plaintiff (altho' he was afterwards to wit on the first day of August in the year aforesaid at the county aforesaid requested by the said Plaintiff so to do) but the contrary thereof, he the said defendent took so little care of the said Keel boat, that by and through the mere negligence and carelessness of the said defendent in this behalf, the said Keel boat of the said Plaintiff of great value, to wit, of the value one hundred and thirty dollars, became and was wholly lost to the said Plaintiff, to wit, at the county aforesaid.

And whereas also afterwards to wit, on the day and year aforesaid, at the county aforesaid in consideration that the said Plaintiff at the special instance and request of the said defendent, had let to him and delivered to the said defendent a certain other keel boat of the said Plaintiff of great value, to wit, of the value of one hundred and thirty dollars, to be had and used by the said defendant, he the said defendent, undertook and then and there faithfully promised to take due and proper care of the said Keel boat, and to redeliver the same, and although the said defendent then and there had and received the said keel boat, of and from the said Plaintiff for the purposes aforesaid, yet the said defendent not regarding his said several promises and undertakings, but contriving and fraudulently intending craftily and subtly to deceive and defraud the said Plaintiff did not nor would not take due and proper care of the said keel boat, or redeliver the same to the said Plaintiff (altho he was afterwards to wit, on the first day

[Image of page 4] of August in the year aforesaid, at the county aforesaid requested by the said Plaintiff so to do) but on the contrary thereof he the said defendent took so little care of the said keel boat that by and through the mere negligence and carelessness of the said defendent in this behalf, the said keel boat of the said Plaintiff of great value, to wit, of the value of one hundred and thirty dollars, became and was wholy lost to him the said Plaintiff to wit, at the county aforesaid.

And whereas also, the said defendent afterwards to wit on the day and year last aforesaid to wit, at the county aforesaid was indebted to the said Plaintiff in the sum of one hundred and thirty dollars lawfull money for the use and hire of a certain other keel boat by the said Plaintiff before that time let to hire and delivered to the said defendent, and at his special instance and request and by the said defendent under and by virtue of that letting to hire before then had and used, and being so indebted he the said defendent in consideration thereof afterwards, to wit, on the day and year aforesaid, undertook and then and there faithfully promised the said plaintiff to pay him the said last mentioned sum of money when he the said defendent should be thereunto afterwards requested

And whereas the said defendent afterwards to wit, on the day and year last aforesaid at the county aforesaid in consideration that the said Plaintiff at the like special instance and request of the said defendent had before that time let to hire and delivered to him the said defendent a certain other keel boat, and that the said defendent had under and by virtue of the said last mentioned letting to hire before then had and used the same, he he the said defendent undertook and then and there faithfully promised to said plaintiff to pay him so much money as he

[Image of page 5] therefor reasonably deserved to have of the said defendent when he the said defendent should be thereunto afterwards requested and the said Plaintiff avers that he therefore reasonably desired to have of the said defendent the further sum of one hundred and thirty dollars of like lawfull money, to wit, at the county aforesaid whereof the said defendent afterwards to wit, on the day and year last aforesaid had notice. Nevertheless the said defendent not regarding his said several promises and undertakings, but contriving and fraudulently intending craftily and subtly to deceive and defraud the said Plaintiff in this behalf, hath not as yet paid the said several sums of money or either or any of them or any part thereof to the said Plaintiff (although often requested so to do) but the said defendent to pay the same hath hitherto wholy neglected and refused and still doth neglect and refuse. To the damage of the said Plaintiff of one hundred and fifty dollars and therefore he brings his suit &c;
WM K Ball atty
for the Plaintiff

John Doe
vs } Pledges to Prosecute
Richard Roe
The Clerk of the circuit court will issue a summons in accordance with the foregoing declaration returnable to the first day of the next Term, and endorse thereon this an action of Trespass on the case upon promises damages one hundred and fifty dollars
Wm K Ball atty
for Plff

(Endorsed)
Filed 16th August 1831
James Wand Clk

[Image of page 6]
County of Conway
Territory of Arkansas
United States of America
ss

The United States of America
To the Sheriff of Conway County Greeting:
You are hereby commanded to summon Benjamin Murphey if he be found within your Bailiwick, to appear before the Judge of our circuit court, at the court house in the County aforesaid, on the First day of our next September term, then and there to answer Benjamin F Howard to a plea of Tresspass on the case upon promises damage one hundred and fifty dollars and that you make due return of this writ to our said court

In testimony whereof I have hereunto set my hand as Clerk and affixed the seal of office this 16th day of August 1831 and of the Independence of the United States the fifty sixth.
James Wand Clerk
(seal)

(Endorsement)
This is an action of Tresspass on the case upon promises damages one hundred and fifty dollars
James Wand Clk

(Shff return)
This writ and declaration came to my hands the 16 day of August 1831
Jas. Kelleam. Shff Conway County

Executed this 17th day of August A.D. 1831 by reading this declaration and summons to Benjamin Murphey at his dwelling house in Cadron township
James Kelleam Shff Conway County A.T.
circular miles 18 miles .90
service 80
$1.70

[Image of page 7]
United States of America Territory of Arkansas } Sct
In the Circuit of Conway County September Term A.D. 1831
Benjamin F Howard Plff
vs } Tresspass on the case
Benjamin Murphey Deft
Monday 19th Septem. 1831
In this cause the defendent by Attorney filed his demurrer to the Plaintiffs declaration to the first and second counts to which demurrer the Plaintiff by his attorney enters his Joinder
"Demurrer"
B Murphey
ads
B F Howard
and the defendent comes by his council and defends the wrong & injury when &c and says that the matters and things set forth in the first & 2nd counts of the Plaintiffs decl. are not good and sufficient in Law and to the same demurs and for cause of demurrer according to the statute says that het said counts contain and set fourth a cause of action for negligence in keeping of a boat therein mentioned which causes are predicated on tort and exdetieto are Joined with other Counts founded on contract which are incompatible and by the law of the Land cannot be joined together
Linton for Deft

[Image of page 8]
Tuesday 20th September 1831
Benjamin F Howard Plff
vs } Case
Benjamin Murphey Deft
And now at this day the parties appeared by their respective attorneys and the Plaintiff Defendent having heretofore filed his demurrer to the Plaintiffs first and second counts in his declaration, and the Plaintiff by his attorney entered his Joinder and after hearing the arguments of council and the court being fully advised of and concerning the premises it is considered by the court that the said demurrer be Overruled and it is further considered by the court that the Plaintiff have and recover of and from the said defendent his costs laid out and expended in this behalf and have Execution thereof &c. and thereupon the defendent comes and pleads non assumpset to the Plaintiffs first and second counts in his declaration to which the Plaintiff joins issue in short on the record; and to the third and fourth counts in the declaration the defendent filed his plea of Tender and ten dollars was brought into court here ready to be paid to said Plaintiff to which plea the Plaintiff filed his replication to which replication the defendent Joins issue; whereupon came a Jury, to wit, William Standlee, Elisha Welbourn, David Vann, Simon Price, John Ball, John Belcher, Job Harris [Image of page 9] Silas McCoy, Persons Pate, John McDavid, Daniel Bland and John McCoy, good and lawfull men, who being Elected tried and sworn well and truly to try the issues Joined after hearing the evidence and the arguments of council retired to consult of their virdict and after some time came into court and not having agreed upon their virdict retired again to consult of their virdict.

Wednesday 21st Sepemr - 1831
Benjamin F Howard Plff
vs} Case
Benjamin Murphey Deft
And now at this day the Jury came into Court and returned the following verdict, to wit, we of the Jury find that the defendent did assume & promise in manner and form as the said Plaintiff hath thereof alledged in his declaration and that the defendent did not tender to said Plaintiff the sum of ten dollars as alledged in his plea and we assess the Plaintiffs damages for the non performance of the promises in the declaration to the sum of twenty five dollars. It is therefore ordered by the court that the clerk return the defendent the sum of ten dollars by him tendered in court which was accordingly done - and it is further considered by the Court that the Plaintiff have and recover

[Image of page 10] of and from the defendent the sum of twenty five dollars the damages by the Jury in their virdict assessed and also the costs by him laid out and expended in this behalf and may have Execution thereof &c.

"here follow the pleas"

And as to the 2nd & 3 and last counts in the plffs decl. the said deft comes by his attorney and defends the wrong & injury when &c. and as to all the several supposed promises and undertakings in the counts mentioned except as to the sum of ten dollars parcel of the said sum of one hundred and thirty dollars in the said last count mentioned says that he did not undertake in manner and form as the Plaintiff hath alledged against him & of this he puts himself upon the country And as to the said sum of ten dollars part of the $130 in the said last mentioned Count the said Deft says the plaintiff ought not to have nor maintain his aforesaid action against him to recover any more or greater damages than the said sum of ten dollars as parcel &c in this behalf because he says that after making of the said supposed promise and undertakeing in the count mentioned as to the said sum of Ten dollars parcel &c and before the issuing out of the summons of the said Plff. against this Deft. to wit on the 6th of June in the year 1831 at the county aforesaid he the Deft was ready and willing and then and there tendered

[Image of page 11] and offered to pay to the Plaintiff the said sum of ten dollars parcel &c to receive which of this defendent the Plaintiff wholly refused

And the said defendent in fact further saith that he the defendent hath always from the time of making the said several promises and undertakings in the said count mentioned as to he said sum of ten dollars parcel &c hitherto at & aforesaid been ready to pay and still is there ready to pay to the said Plff. the said sum of ten dollars parcel &c and he now brings the same into court here ready to be paid to the Plaintiff if he will accept the same and this he the defendent is ready to verefy wherefore he prays Judgment if the said Plaintiff ought to have or maintain his action against him to recover any more or greater damages than the said sum of ten dollars parcel &c in this behalf &c.

Howard
vs } Circuit of Conway
Murphey
Sep. Term 1831
And the said Plaintiff as to the plea of the said defendent by him secondly above pleaded, and whereof he hath put himself upon the country doth the like. as to the said plea of the said defendent by him thirdly above pleaded as to the sum of ten dollars parcel of the said sum of one hundred & thirty dollars, the said Plaintiff saith that he by reason of

[Image of page 12] any thing by the said defendent in that plea above alledged ought not to be barred from having and maintaining his aforesaid action thereof against to recover further damages than the said sum of ten Dollars parcel of the said sum above demanded in this behalf. Because he saith that the said defendent did not tender or offer to pay the said Plaintiff the said sum of ten dollars as the defendent hath above in his said last mentioned plea in that behalf alledged, and this he the said Plaintiff prays may be inquired of by the Country.
Ball atty for Plff

as to the above replication where
the Plff that put himself on the
country the deft doth the like
Linton for deft

Benjamin F Howard Plff
vs } Case
Benjamin Murphey Deft
And now at this day comes the defendent by Attorney and filed his two bills of exception which were signed and sealed by the Court, and the defendent prays an appeal which is granted whereupon the Defendent Benjamin Murphey together with William Standlee his security appeared in Court and severally acknowledged themselves indebted to Benjamin F Howard the Plaintiff in this action in the sum of one hundred dollars upon the condition that the defendent Benjm Murphey shall pay the damages and cost in case the Judgment

[Image of page 13] Judgement of the Circuit Court shall be confirmed by the Superior Court

"here follow the bills of exception"
Benjamin Murphey
ads} In Case
B.F. Howard

Be it remembered that after the Jury had found their verdict in this case the defendent moved said Court to instruct the clk not to enter up an order giving cost to the Plaintiff because the sum found by the Jury was within the Jurisdiction of a Justice of the peace the court overruled said Motion and gave Judgement for cost to which opinion the defendent excepts and to save the benefit of his exceptions prays that this his bill be signed sealed & made a part of the record which is accordingly done
Edw. Cross (seal)

Benjamin Murphey
ads } In case
B F Howard
Be it remembered after the trial of this case the deft produced the following reasons in arrest of Judgement Benjamin Murphey ads of B.F. Howard and the defendant comes by his council &c here the reasons the court overruled the motion upon the reasons to which opinion the

[Image of page 14] deft. by his council excepts and to save the benefit of his exceptions prays that this his bill may be signed sealed and made a part of the record which is accordingly done
Edward Cross (seal)

(Bill of Cost)
Clerks fees $16.10
Witnesses fees & witness book 16.70
Sheriffs fees 8.52
Jurors fees paid by Plff 3.00
Atto. fee Judgment on demurrer 3.00
Atto fee final Judgment 6.00
$53.32

Territory of Arkansas County of Conway ss
I James Wand Clerk of the Circuit Court in and for the County aforesaid do certify that the foregoing from page 1 to pag 13 inclusive is a true coppy of the records and proceedings had in said circuit court in a suit wherein Benjamin F Howard is Plaintiff and Benjamin Murphey is defendent

In testimony whereof I have hereunto set my hand and affixed the seal of the court at Harrisburg the 10th day of December A.D. 1831 and of the Independence of the United States the fifty Sixth year
James Wand Clerk

Previous Page | Next Page