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Richard Byrd v. Absalom Fowler
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Transcript July term 1833 Attest Filed 13th Jany 1834 Costs Taxed page 176 The United States of America At a Circuit Court began and to be held in and for the County aforesaid at the Court House in the Town of Little Rock on the Twenty third day of January in the year of our Lord one thousand Eight hundred and thirty two it being the Fourth Monday of said month– Present the Honorable Benjamin Johnson one of the Judges of the Superior Court of said Territory and assigned by law to hold the Courts in Counties composing the second judicial Circuit of said Territory of which the Circuit Court of the aforesaid County of Pulaski is one. Be it remembered that on the Tenth day of November in the year of our Lord one thousand Eight hundred and thirty one a declaration & writ were filed in the words and figures following to wit. Arkansas Territory Richard C. Byrd plaintiff in this case by Crutchfield his attorney complains of Absalom Fowler defendant in this case in custody &c of a plea that he render unto him the sum of One hundred and five dollars Eighty nine cents which to him he owes and from him unjustly detains For that the said Defendant on the 3d day of January 1831 (meaning thereby the third day of January Eighteen hundred and thirty one) at Little Rock, to wit, in pulaski County aforesaid and in the Territory aforesaid and within the jurisdiction [Image of page 3] of this Court made his certain writing obligatory to which he the said Defendant has signed his name in short by the style and description of A. Fowler and by said writing obligatory sealed with the seal of the said Defendant and to the Court now here shown the date whereof is the same day and year aforesaid, he, the said Defendant promised to pay ten days after the date thereof to the said plaintiff or order by the style and description of "R. C. Byrd or order" the said sum of One hundred and five Dollars, eighty nine Cents for value received, with interest on the same at the rate of Eight per cent per annum from the time of the same became due till paid. Yet the said Defendant although often requested so to do hath not as yet paid the said sum of One hundred and five Dollars eighty nine cents aforedemanded or any part thereof to the said plaintiff but to pay the said sum of One hundred and five Dollars Eighty nine cents or any part thereof Either to said plaintiff or to the order of said plaintiff he, the said Defendant hath hitherto wholly neglected and refused and still neglects and refuses so to do to the damage of the said plaintiff of One hundred Dollars and therefore he brings his suit &c. Crutchfield attorney for The Clerk of Pulaski Circuit Court will issue a Capias ad respondendum on the forefoing declaration directed to the Sheriff of pulaski County and endorse thereon "this is an action of Debt for One hundred and five Dollars eighty nine Cents founded on a writing obligatory damage One hundred dollars Bail is required in the sum of Two hundred Dollars" Crutchfield atty for plaintiff Upon the Declaration in this case was the folowing endorsement to wit Executed the within writ by reading the same together with the within declaration to the within named Defendant and taking his body into custody in Big Rock township the 10th November 1831 and releasing the said defendant upon his giving Bail according to the Law Service $1.00 A.S. Walker Shff In testimony whereof I have hereunto set my hand as Clerk and affixed the seal of office this 10th day of November 1831 and of the Independence of the United States the Fifty seventh Jos Henderson Clerk (seal) Whereupon was the following endorsement Jos. Henderson Clerk Whereupon afterwards To wit on the 30th day of January Eighteen hundred
and thirty two the following proceedings were had And now at this [Image of page 6] day come the said Defendant by Howell his attorney and moves the Court to quash or abate or set aside or hold for nought the supposed writ original in this case issued which motion the Court overruled Whereupon afterwards to wit on the same day and year last aforementioned the following proceedings were had Richard C. Byrd Plaintiff On this day comes the Defendant by his attorney Howell and craves Oyer of the said supposed writing obligatory in the said plaintiff's declaration Mentioned. Whereupon afterwards to wit on the Thirty first day of January Eighteen hundred and thirty two the following proceedings were had Richard C. Byrd Plff And now at this day comes the Defendant by his Attorney and prays oyer of the supposed writing obligatory which was granted by the plaintiff by filing the original note and by the defendant received as Oyer. Whereupon afterwards to wit on this third day of February Eighteen hundred and thirty two the following proceedings were had Richard C. Byrd Plff And now at this day came the Defendant by Hall his Attorney and filed his plea of abatement to this case which plea was sworn to in open court by the Defendant Absalom Fowler. Whereupon on the thirty first day of January in the year Eighteen hundred and thirty two the following note was filed in the office of the Clerk of the Circuit Court for the County aforesaid in the words and figures following to wit $105 89/100 Ten days after date I promise to pay R. C. Byrd or order One hundred and five Dollars and eighty nine Cents for value received to bear interest at the rate of Eight per Cent per annum from the time the same becomes due until paid. Witness my hand and seal at Little Rock (A.T.) this 3 day of January
1831. Whereupon afterwards to wit on the third day of February in the year Eighteen hundred and thirty two the following plea was filed in the office of the Clerk of the Circuit Court for the county of pulaski aforesaid in the words and figures following to wit Absalom Fowler And the said defendant by Attorney comes and Defends the wrong and injury when &c and prays Judgement of the writ and declaration in this case because he says that before the issuing of the said writ, to wit, on the Eighth day of November in the year of Christ One thousand eight hundred and thirty one in the Circuit Court for Pulaski County the [Image of page 8] said plaintiff impleaded the said Defendant and exhibited against him his certain declaration & writ of Capias ad respondendum bearing date the day and year last aforesaid in a plea of Debt on demand of and upon the same identical writing obligatory in the said declaration in this present suit mentioned as by the record and proceedings thereof remaining in the Office of the Clerk of said Count for the County aforesaid more fully appears and that upon said writ of Capias ad respondendum bearing date as aforesaid this defendant was arrested by and surrendered himself into the custody of one Robert A. Callaway who represented himself to be the deputy of Alexander S. Walker Sheriff of said County. And the said defendant further saith that the parties in this and the said former suit are the same and not other or different persons and that the said former suit so brought and prosecuted against him the said defendant by the said plaintiff as aforesaid is still depending as this defendant believes in this said Circuit Court And this the said defendant is ready to verify wherefore he prays judgement of the said writ and declaration in this suit and that the same be quashed. Hall Attorney Sworn to in open Court by Absalom Fowler 3d. Feby 1832 Jos Henderson Clk Whereupon afterwards to Wit on the Sixth day of February in the year
Eighteen hundred and thirty three Richard C. Byrd And the said plaintiff saith that his said writ by reason of any thing by the said defendant in his said plea above alleged ought not to be quashed because he says that before the issuing of his said writ the said defendant was not impleaded by nor arrested at the suit of said plaintiff as said said defendant hath above in his said plea alleged nor is there any such other suit now pending in said Circuit Court between said plaintiff and said defendant in manner & form as said defendant hath above in his said plea in that behalf alleged and this the said plaintiff prays may be inquired of by the record Crutchfield Atty And the defendant doth likewise Hall Whereupon afterwards to wit on the Seventh day of February in the year Eighteen hundred and Thirty two the following paper was filed in the office of the Clerk of the Circuit Court for the County aforesaid in the words & figures following to wit R C. Bird Be it remembered that on the trial of this cause of the plea in abatement of the pendency of another suit for the same cause of action the Plff proved by the Clerk of this Court that on the day of issuing the writ in this case the plff's attorney came into the Clerk office and informed the Clerk that he dismissed the former suit and paid to said [Image of page 10] Court In testimony whereof I have hereunto set my hand as Clerk and affixed the seal of office this 27 day of July 1833 and of the Independence of the United States the fifty seventh Jos Henderson Clerk Upon which was the following endorsement Service – 33 Frederick Berry Con. Whereupon to wit on the same day and year last above mentioned the following proceedings were had Richard C. Byrd Plff And now at this day comes the parties aforesaid by their Attornies and the Defendant takes issue on the plaintiffs replication whereupon all and singular the premises being seen and by the Court here understood and mature deliberation being thereupon had the Court are of opinion that there is not any such other action depending in this Court for the same cause as is mentioned in the plaintiff's declaration in this present suit as is alleged by the defendant in his plea whereupon it is the opinion of the Court that the defendant doth owe the plaintiff the sum of One hundred and five Dollars and Eighty nine cents the debt in the plaintiff's declaration [Image of page 11] mentioned and that the plaintiff hath sustained damages by reason of the detention of said debt to the sum of Eight dollars and Ninety five Cents Therefore it is considered by the Court that the plaintiff do have and recover of the said defendant the sum of One hundred and five dollars and Eighty nine cents the debt aforesaid and also the sum of Eight dollars and ninety five cents the damages aforesaid sustained by the detention of said debt together with his costs by him about this suit in this behalf expended and the said defendant in Mercy &c. Whereupon afterwards to wit on the same day and year last aforementioned the following proceedings were had Richard C. Byrd Plaintiff And now at this day come the defendant by his Attorney and offered his Bill of Exceptions to the opinion of the Court delivered in this case which was signed and sealed by the Judge and ordered to be filed Whereupon afterwards on the 18th day of February in the year Eighteen hundred and thirty three the following paper was filed in the Office of the Clerk of the Circuit Court for the County aforesaid in the words and figures following towit Richard C. Byrd Plff The plaintiff moves the [Image of page 12] Court to have entered on the record nunc pro tunc the dismission of the suit between said parties which was commenced by issuing of the writ on the Eighth day of November 1831 and which said plaintiff by his Attorney did dismiss before the Clerk of this Court in vacation and paid the costs thereof on the 10th day of November 1831 and which the said Clerk failed to enter on the record and has since refused to do so Ashley Ringo & Whereupon afterwards to wit on the Twenty second day of February in the
year Eighteen hundred and thirty three the following Richard C. Byrd Plaintiff Pulaski Circuit Court January Term Eighteen hundred and thirty three And the said plaintiff says that the said Writ of the said plaintiff by reason of any thing by the said defendant in his said plea alleged ought not to be quashed because he says that there is not any such record of such former plea now depending in said Circuit Court against the said defendant at the suit of him the said plaintiff remaining in the said Circuit Court as the said defendant hath above in his said plea alledged and this he the said plaintiff is ready to verify Wherefore he prays Judgement and that the said writ now here in this term against the said defendant [Image of page 13] may be adjudged good and that the said defendant may answer over &c Crutchfield Attorney for plaintiff Whereupon heretofore to wit on the Seventh day of February in the year Eighteen hundred and thirty two the following proceedings were had Richard C. Byrd Plaintiff And now at this day comes the defendant by his attorney and prays an appeal to the superior Court of this Territory which was granted him Whereupon Robert Crittenden and Samuel S. Hall acknowledged themselves to owe and be indebted to Richard C. Byrd the sum of two hundred and fifty Dollars to be levied of their respective goods and Chattels, lands, and tenements upon condition that if the said Absalom Fowler shall well and truly prosecute his appeal prayed and granted in this case from the Judgement of this Court therein rendered against the said Absalom Fowler to the Superior Court of Arkansas Territory with effect and if the said Judgement shall be affirmed by the said Superior Court shall well and truly pay and satisfy all such debt, damages and costs as may be adjudged against him in said suit then this recognizance to be void and of no effect otherwise to remain in full force and virtue in Law [Image of page 14] Whereupon afterwards to wit on the Eleventh day of February in the year Eighteen hundred and thirty three the following proceedings were had Richard C. Byrd Plaintiff On this day comes the plaintiff by his attorney and having filed a certified Copy of the opinion of the superior Court delivered in this case moved the Court that the same be entered of Record which motion was sustained and the same ordered to be entered Which opinion is in the words and figures following to Wit Superior Court January Term 1833 The United States of America Absalom Fowler Appellant This day the parties appeared by their Attornies and the Court being
now fully advised delivered the following opinion and Judgement to wit
a consideration of this cause has led the Court to adopt a different conclusion
from that heretofore expressed It is found that suing out a Writ at Law
constitutes the pendency of suit without any further step and that neither
service of process nor any other proceeding is requisite to form the ground
of a plea of another Action pending for the same cause see Bacon abridgement
M P 23-5 Cocke 48-157 when in this cause the defendant in the Court below
shewed the issuing of a writ and declaration for the same cause he showed
prima facie at least [Image of page 15] the
pendency of a suit and it devolved then on the plaintiff to prove by competent
testimony that the suit had been disposed of and was no longer pending
The evidence introduced for the purpose was not in our opinion legal had
he moved the Court for leave to enter at that time a dismission of the
first writ or moved for an order directing the Clerk to make out upon
the record a statement of the facts and dismission as it actually occurred
we think that upon that state of the case the plaintiff would have been
entitled to succeed but having failed to do this and endeavoured to supply
the omission by parol testimony we think he committed an error in so doing
and that the Judgement must be reversed It is probable that even now by
directing his dismission of the first suit of record in the Circuit Court
he will be entitled to have judgement in that Court we do therefore direct
that the former order made in this cause at the present term of this Court
be set aside and that the Judgement of the Circuit Court be reversed with
costs and that the cause be remanded to the Circuit Court of Pulaski County
for further proceedings to be had therein upon which proceedings the Court
is to admit no parol It is therefore considered by the Court that the appellant have and recover of the said Appellee the Costs by him about his appeal in this Court expended and that he have execution therefor [Image of page 16] I William Field Clerk of the Superior Court in and for the Territory of Arkansas do certify that the foregoing opinion and judgement of the Superior Court is truly copied from the record in my office. In testimony whereof I have hereto set my hand as Clerk and affixed the seal of office this ninth day of February 1833 and the year of American Independence the 57 W Field Clerk (seal) Whereupon afterwards to wit on the twelfth day of February in the year one thousand Eight hundred and thirty three the following proceedings were had Richard C. Byrd Plaintiff On this day come the said plaintiff and having satisfactorily shown that he dismissed this suit on the eighth day of November 1831 before the Clerk of this Court in vacation having first paid the costs thereof and the said Clerk not having entered the same of record It is therefore on motion of said plaintiff ordered that the entry of dismission be now made nunc pro tunc the said suit is therefore dismissed as of the eighth day of November 1831. Whereupon afterwards to wit on the twenty first day of February Eighteen hundred and thirty three the following proceedings were had Richard C. Byrd Plaintiff On this day came the parties aforesaid by their attornies whereupon on [Image of page 17] motion it is ordered by the Court that the judgement heretofore given in this cause be reversed and on motion it is ordered that the Defendant have leave to amend his pleas. Whereupon afterwards to wit on the twenty second day of February Eighteen hundred and thirty three the following proceedings were had Richard C. Byrd Plaintiff The opinion and decision of the Superior Court on the appeal in this case having been spread and entered on the record of this Court, whereby, it appears that the judgement heretofore rendered in this case has been reversed by said Superior Court and the parties aforesaid are to proceed to trial on the issue made between them in said case unless either party deem it necessary to amend his pleading it is therefore ordered that the judgement heretofore rendered in this case by this Court be reversed and that the parties aforesaid proceed to trial on the issue heretofore made up in said case unless either of said parties ask leave to amend his pleadings whereupon the plaintiff having obtained leave for that purpose withdraws his replication (to the plea in abatement of said defendant) heretofore filed by said plaintiff and with the leave aforesaid now files in writing his new and amended replication to said plea Whereupon afterwards to wit on the Twenty seventh day of July in the year Eighteen hundred and thirty three the following proceedings were had Richard C. Byrd Plaintiff On this day came the plaintiff by his attorney and moved the Court for leave to amend his replication in this cause which is granted him by the Court Whereupon afterwards to wit on the Twenty ninth day of July in the year Eighteen hundred and thirty three the following replication was filed in the office of the Clerk of the Circuit Court for Pulaski County in the words and figures following to wit Pulaski Circuit Court Richard C. Byrd Plaintiff And the said Richard C. Byrd saith that his said writ by reason of any thing by the said defendant in his said plea above alleged ought not to be quashed because he admits that he did on the said Eighth day of November in the year of Christ eighteen hundred and thirty one in the Circuit Court of the County of Pulaski in the vacation of said Court, implead the said defendant and exhibit against him his certain declaration and writ of Capias ad respondendum bearing date the day and year last aforesaid in a plea of Debt on demand of and upon the same identical writing obligatory in the said declaration in this present suit mentioned and protesting that upon said writ of Capias ad respondendum bearing date as aforesaid the said defendant was arrested and surrendered [Image of page 19] himself into the custody of Robert A. Callaway deputy of Alexander S. Walker Sheriff of said County as said defendant in his said plea in that behalf hath alleged he says that afterwards to wit on the said Eighth day of November in the year of Christ Eighteen hundred and thirty one and before the commencement of this present suit he the said Richard C. Byrd before the trial of said Action in the vacation of said Circuit Court in the office of the Clerk of said Court having first paid all the costs which had accrued thereon dismissed the same to wit in the County of Pulaski aforesaid and this he, said Richard C. Byrd is ready to verify whereupon he prays judgement that his said writ in this present suit may be adjudged good and that the said defendant may be required to answer further thereto &c. Crutchfield Ashley & Ringo Whereupon afterwards to wit on the Ninth day of July in the year Eighteen hundred and thirty three the following proceedings were had Richard C. Byrd Plaintiff This day came the parties aforesaid by their attornies and the defendant demurred to the plaintiffs replication to the defendants plea to which demurrer the plaintiff joined issue all in short by consent whereupon the matters in law arising on said demurrer being argued and by the Court now here understood and it appearing to the Court that the said replication and the matters and things therein contained as the same are therein stated and set forth are not sufficient in law to support the plaintiffs writ in this behalf [Image of page 20] Whereupon on motion of the plaintiff leave is given him to amend his said replication which amendment was made and filed accordingly The replication aforesaid is in the words & figures following to wit Richard C. Byrd Plaintiff And the said Richard C. Byrd saith that his said Writ by reason of any thing by the said defendant in his said plea above alledged ought not to be quashed because he admits that he did on the said Eighth day of November in the year of Christ Eighteen hundred and thirty one in the Circuit Court of the County of Pulaski in the vacation of said Court implead the said defendant and exhibit against him his certain declaration and Writ of Capias ad respondendum bearing date the day and year last aforesaid in a plea of debt on demand of and upon the same identical writing obligatory in the said declaration in this present suit mentioned and protesting that upon said writ of Capias ad respondendum bearing date aforesaid the said defendant was arrested and surrendered himself into the Custody of Robert A. Callaway deputy of Alexander S. Walker Sheriff of said County as said defendant in his said plea in that behalf hath alledged he says that afterwards to wit on the said eighth day of November in the year of Christ Eighteen hundred and thirty one and before the commencement of this present suit he the said Richard C. Byrd before the trial of said Action in the vacation of said Circuit Court having first paid all the costs which had accrued thereon [Image of page 21] dismissed the same the said Clerk of said Circuit Court entered the dismission of said action of record to wit in the County of Pulaski aforesaid and this he the said Richard C. Byrd is ready to verify by the record of said Circuit Court wherefore he prays judgement that his said writ in this present suit may be adjudged good and that the said defendant may be required to answer further there to &c. Crutchfield and Ashley & Ringo for plaintiff Whereupon afterwards to wit on the fourteenth day of August in the year Eighteen hundred and thirty three the following proceedings were had Richard C. Byrd Plaintiff And now on this day comes as well the plaintiff by Crutchfield has Attorney as the Defendant by Hall his attorney, whereupon the defendant rejoins in short on the record by consent that there is no such record of dismissal of the former suit in manner and form as stated by the plaintiff in his replication to which issue is joined in short on the record. Whereupon this case on the issued joined is submitted the Court and the Court having seen and inspected the Record mentioned in the plaintiffs replication to the plea of said defendant and being now sufficiently advised of and concerning the same do find in favour of the plaintiff that there is such a record of the dismissal of said former suit in manner and form as the said plaintiff hath above in his said replication [Image of page 22] in that behalf alledged therefore it is considered that the said defendant do further answer to the said writ of the said plaintiff and the said defendant failing to say any thing further in Bar or preclusion of the plaintiffs action it is the opinion of the Court that the plaintiff ought to recover against the said Defendant the sum of One hundred and five dollars and eighty nine Cents the Debt in the plaintiffs declaration mentioned and the amount of the writing obligatory declared on and filed in this case together with the sum of twenty one dollars and Eighty three Cents the damages which he has sustained by reason of the detention of said debt therefore on motion and with the assent of the said plaintiff it is considered by the Court here that the plaintiff do recover against the said defendant the said sum of One hundred and five Dollars and Eighty nine cents the debt aforesaid and also the said sum of Twenty one dollars and Eighty three cents the damages aforesaid together with all the costs of this suit, in this behalf paid, laid out, and expended and that he have execution therefor and the said defendant in mercy &c Whereupon afterwards to wit on the Sixteenth day of August in the year Eighteen hundred and thirty three the following proceedings were had Richard C. Byrd Plaintiff On this day came the defendant by his attornies and filled his Bill of Exceptions which was signed and sealed and ordered to be made a part of the record Which Bill of Exceptions is in the words and figures following to wit Richard C. Byrd Be it remembered that upon the trial of this cause the said plaintiff offered in evidence the following entry on record to wit Pulaski Circuit Court January Term 1833 February 12. Richard C. Byrd Plaintiff On this day came the said plaintiff and having satisfactorily shown that he dismissed this suit on the Eight day of November 1831 before the Clerk of this Court in vacation having first paid the Costs thereof and the said Clerk not having entered the same of record it is therefore on motion of said plaintiff ordered that the entry of said dismission be now made nunc pro tunc. the said suit is therefore dismissed as of the Eighth day of November 1831 to which evidence the said defendant objected which objection was overruled by the Court and said evidence was read in evidence on said trial & thereupon the said Court decided the issued joined between the parties aforesaid in favour of said plaintiff against said defendant to all which decisions and opinions of the Court the Defendant excepts and prays that this his bill of Exceptions may be signed sealed and enrolled B. Johnson (seal) Whereupon afterwards to wit on the seventeenth day of August in the year Eighteen hundred and thirty three the following proceedings were had Richard C. Byrd Plaintiff On this day came the [Image of page 24] defendant by his attorney and prayed an appeal to the Superior Court of Arkansas Territory which is granted on his entering into bond with security according to law. Whereupon Robert Crittenden appeared in open Court and acknowledged himself to owe and be indebted to Richard C. Byrd the plaintiff in this cause in the sum of two hundred and fifty dollars to be levied of his goods and chattels lands and tenements upon condition that the said Absalom Fowler the defendant in this case shall pay the debt damages and costs that have accrued or that may accrue in case the judgement of the Circuit Court in and for the County of Pulaski at the present term of this court shall be confirmed by the Superior Court of Arkansas Territory, then, this recognizance to be null and void, else to remain in full force and virtue United States of America I William Badgett Clerk of the Circuit Court for the County of Pulaski and Territory aforesaid do hereby certify that the annexed and foregoing Twenty three pages contain a full, true, and complete copy of record of the proceedings had in said Circuit Court in the [case] of Richard C. Byrd vs Absalom Fowler. In testimony whereof I have hereunto set my hand as Clerk and affixed the seal of Office at Little Rock, in the County aforesaid, this tenth day of December in the year of our Lord One thousand eight hundred and thirty three and of American Independence the Fifty eighth year. William Badgett Clerk Fee Bill Richard C. Byrd Plaintiff Clerk Joseph Henderson ----- $17.70 United States of america I William Badgett Clerk of the Circuit Court in and for the County of Pulaski and Territory aforesaid do hereby certify that the amended and foregoing fee Bill contain a full true and complete Copy of Record of the Fees in the case of Richard C. Byrd Plaintiff and Absalom Fowler defendant. In testimony whereof I have hereunto set my hand as Clerk of said Circuit Court and affixed the seal of said office at Little Rock January the 13th 1834 and of this Independence of the United States the fifty Eighth year William Badgett Clk |
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