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Andrew Hemphill
vs } Transcript of Record of Hempstead Circuit Court
Ephraim Mirick

Filed 11th January 1832
Wm Field Clk

Costs Taxed pgs 139

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United States of America
Arkansas Territory } Sct
Hempstead county

Pleas before the Honorable the Judge of
the circuit court of the county aforesaid
at the court house in the town of Washington
in Said county on the 13th day of October
AD 1831

Be it remembered that Andrew Hemphill by his attorney, heretofore, to wit, on the 30th day of August 1830 filed in the clerks office of the Hempstead circuit court his certain declaration in writing in an action of detinue against Ephraim Mirick which said declaration is in the words & figures following to wit.

United States of America
Arkansas Territory } Sct
Hempstead County

In the Circuit Court of Hempstead County to the term thereof commencing on the first Monday in October AD 1830
Andrew Hemphill

Plaintiff in this suit by Hubbard his attorney complains of Ephraim Mirick defendant of a plea that he render to the said Andrew Hemphill a certain Obligation of great value to wit of the value of Six hundred dollars lawful money of the United States of America

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For that whereas the said Andrew Hemphill heretofore to wit on the twenty eight Day of April in the Year of Our Lord one thousand eight hundred and thirty, at the County of Hempstead aforesaid and within the jurisdiction of the Circuit Court for the county of Hempstead County aforesaid delivered to the said Ephraim Mirick a certain written obligation given and extended by Mess. Soher Goodman &c for the proceeds of fourteen bales of cotton to be delivered to them the said Soher Goodman &c by a certain John Bradly of the said Andrew Hemphill of great value. to wit of the value of six hundred dollars lawful money of the said United States America to be re delivered by the said Ephraim Mirick to the said Andrew Hemphill when he the said Ephraim Mirick should be thereunto afterwards as requested. Yet the said Ephraim Mirick although he was afterwards to wit on the ninth day of August in the year of our Lord one thousand eight hundred and thirty at the county of Hempstead aforesaid and within the jurisdiction the Circuit Court of Hempstead County aforesaid requested by the said Andrew Hemphill so to do hath not as yet delivered the said obligation to the said Andrew Hemphill but hath hitherto wholly neglected and refused and still doth neglect and refuse so to do and still unjustly detains the same from the said Andrew Hemphill to wit at the county of Hempstead aforesaid.
And whereas [Image of page 4] also the said Andrew Hemphill heretofore to wit on the day and year at the County and within the jurisdiction of the Court in the first count in this declaration specified was lawfully possessed of a certain other obligation in writing made and executed by Mess. Soher Goodman &c for the proceeds of fourteen bales of cotton to be delivered to them the said Mess. Soher Goodman &c by a certain John Bradley, which said fourteen bales of cotton the said Andrew Hemphill avers were delivered to them the said Mess. Soher Goodman &co by the said John Bradly and were of the value of six hundred dollars lawful money of the United States of America aforesaid of great value to wit of the six hundred dollars, like lawful money as of his own property, and being so possessed thereof he the said Andrew Hemphill afterwards, to wit on the day and year, at the county and within the jurisdiction of the court in the first count in this declaration specified casually lost the said obligation out of his possession and the same afterwards to wit on the day and year at the County and within the jurisdiction of the Court in the first count in this declaration specified came to the possession of the said Ephraim Mirick by finding Yet the said Ephraim Mirick well knowing the Said last mentioned obligation to be the property of him the said Andrew Hemphill and of right to appertain and belong to him hath not as yet delivered the said last mentioned obligation [Image of page 5] to the said Andrew Hemphill, although he was afterwards to wit on the Ninth day of August A. D. in the year of our Lord one thousand eight hundred and thirty at the County and within the jurisdiction of the court in the first circuit count in this declaration Specified, requested so to do hath not delivered the said obligation to the said Andrew Hemphill. and although often requested Since that time so to do hath not up to this time delivered the said last mentioned obligation to the Said Andrew Hemphill, and although often but hath hitherto wholly neglected and refused so to do, and hath detained and still doth unjustly detain the same from the said Andrew Hemphill to wit at the County of Hempstead aforesaid to the damage of the said Andrew Hemphill six hundred dollars. therefore he brings his suit Hubbard Pro Pltiff.

The Clerk of the circuit Court of Hempstead County will issue a Summons on the within declaration directed to the Sheriff of Hempstead County Commanding &c returnable&c and indorse this is an action of detinue damages six hundred dollars and no bail required.
Hubbard Pro Pltiff.

And on the same day, to wit on the 30th day of August 1830 a summons was issued which is in the words and figures following to wit.

Arkansas Territory
United States of America Sct.
To the Sheriff of Hempstead County greeting

You are hereby commanded to Summons Ephraim Mirick if be he found within [Image of page 6] 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 October Term, then and there to answer Andrew Hemphill to an action of detinue damage Six hundred 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 my office at Washington this 30th day of August 1830 and of the Independence of the United States the 55th
Allen M. Oakley Clk
H circuit. c.

And on said summons is the following endorsement, to wit.
This is an action of detinue, damages $600.00 and no bail is required.
Allen M. Oakley Clk
H. C.C.

Executed on the within named Ephraim Mirick on the 31st of August 1830 in Ozan Township by reading to him the within declaration & Summons. Service...............$0.80
D. T. Witter Sheriff

And at a court continued and held at the court house in the town of Washington on the 6th day of October 1830 before the Honorable Thomas P. Eskridge, the following proceedings were had in Said cause and entered on the record of Said court, to wit.

Andrew Hemphill
vs } Detinue
Ephraim Mirick
This day came the parties by their attornies and the defendant filed his plea herein to which the plaintiff filed his joinder.

Andrew Hemphill And Now at this day the [Image of page 7] defendant appeared by his attorney and filed his plea to plaintiffs declaration, to which the plaintiff filed his Joinder the defendant also filed his notice of set off in this cause. Which plea & Joinder in the following words and figures, to wit. Which plea and joinder in the following words & figures to wit.

United States of America

Territory of Arkansas
County of Hempstead Sct.

In the circuit court of the county aforesaid to the term thereof of October A. D. 1830

And the said Ephraim Mirick by Ringo & Conway his attorneys comes and defends the wrong and injury when &c and saith that he doth not detain the said obligations in the said declaration specified, or either of them in manner and form as the said Andrew Hemphill hath above thereof complained against him, and of this he the said Ephraim Mirick puts himself upon the country &c

Ringo & Conway
Attorneys for Deft

And the plaintiff doth the like.

Hubbard Atty P

And at a court continued and held at the court house in the town of Washington on the 18th day of October 1830, before the Honorable Thomas P. Eskridge the following proceedings were had in Said cause and entered on the record of said court, to wit

Andrew Hemphill
vs } Detinue
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Ephraim Mirick
This day the parties appeared by their attornies and by consent this case cause is continued until the next term of this court.

And at a court continued and held at the court house in the town of Washington on the 7th day of April 1831 before the Honorable Benjamin Johnson, the following proceedings were had in Said cause, and entered on the record of Said court, to wit.

Andrew Hemphill
vs } Detinue
Ephraim Mirick

This day the parties aforesaid appeared in open court, and this case is continued by and upon the oath of the ptf's attorney, and at the costs of the plaintiff. It is therefore considered by the court, that the defendant have and recover of the plaintiff the costs of the continuance in this behalf expended.

And in vacation, to wit on the 1st day of March 1831, the following order was made by the clerk of said court.

Clerks office of the Hempstead circuit court
In vacation, March 1st 1831.

Hempstead County } The United States of America
Arkansas territory

Andrew Hemphill
vs } Detinue
Ephraim Mirick

On motion of the plaintiff by Hubbard his attorney it is ordered that he have leave to take depositions generally to be read in evidence, at the trial of the above entitle cause.

Allen M. Oakley Clk

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And at a court continued and held at the court house in the town of Washington on the 6th day of October 1831 before the Honorable Ben Johnson the following proceedings were had in Said cause and entered on the record of Said court, to wit.

Andrew Hemphill
vs } Detinue
Ephraim Mirick

And now at this day the parties appeared by their attornies. Whereupon came a Jury, to wit. Robert Ervan, Rowland Hughitt, James Cole, Martin B. Lawrence, John McLeland, Thomas Davidson, Bartlett Zachary, Thomas Reed, Hesekiah W. Smith, John Campbell, Joseph Gibson, and Rucker Jackson, twelve good and lawful men of the county aforesaid, who being elected tried and sworn well and truly to try the issue joined between the parties aforesaid, and a true verdict render according to evidence, and after hearing the evidence and argument of counsel retired to consider of their verdict, and after considering of the Same returned into court the following, to wit. We the find that the that the defendant detains the obligation in the declaration mentioned, and find the value thereof to be four hundred and eighteen dollars, and six cents, and one cent damages.

James Cole Foreman

It is therefore considered by the court that the said plaintiff have and recover of the said defendant, the aforesaid obligation in the plaintiff's declaration mentioned if the same can be had and in default thereof it is further considered by the court that the said [Image of page 10] plaintiff have and recover of the Said defendant the Said Sum of four hundred and eighteen dollars and six cents, the value thereof, and one cent damages, in manner and form aforesaid, assessed together with his costs in and about this Suit expended, and the Said defendant in mercy &c

And at a court continued and held at the court house in the town on Washington on the 12th day of October 1831 before the Honorable Ben Johnson the following proceedings were had in said cause and entered on the record of said court, to wit.

Andrew Hemphill
vs } Detinue
Ephraim Mirick

This day the parties appeared by their attornies, and the defendant by his attorney moved the court to grant him a new trial in this case, which motion being argued, it is ordered by the court that the same be overruled.

Which motion is in the following words and figures, to wit.

In Hempstead circuit court
In October term 1831

Ephraim Mirick
Ads} Detinue
Andrew Hemphill

Now at this day comes the defendant and moves the court for a new trial of this cause, for the following reasons to wit.
1st The verdict of the jury is contrary to law.
2nd The verdict of the jury is contrary to evidence.
3rd The court misdirected the jury.
4 The instructions of the court to the jury were contrary to law and erroneous.
Ringo &. Conway deft atty.

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And at a court continued and held at the court house in the town of Washington on the 13th day of October A D 1831, before the Honorable Ben Johnson the following proceedings were had in said cause, and entered in the record of said court, to wit.

Andrew Hemphill
vs } Detinue
Ephraim Mirick

This day the parties appeared by their attornies, and the defendant by his attorney filed his bill of exceptions to the opinion of the court given in this case, which was signed and sealed by the court, and ordered to be made a part of the record. Whereupon the defendant prayed an appeal from the Judgment of this court to the Superior court, which is granted upon his entering unto a recognizance, with Daniel Ringo and George Conway as his securities in the sum of six hundred dollars conditioned according to law. Whereupon the said Ephraim Mirick Daniel Ringo and George Conway in open court appeared, and acknowledged themselves to owe and be indebted to the said Andrew Hemphill in the sum of six hundred dollars to be levied of their respective goods and chattels, lands and tenements, on this condition, that if the said Ephraim Mirick shall prosecute his appeal with effect or if the said Judgment shall be affirmed by the Superior court, shall well and truly deliver to the said Andrew Hemphill the obligation in writing in the plaintiff's declaration mentioned, or in default thereof pay the value of said obligation as assessed by the Jury, together with the damages and all the costs, that have or may accrue, then this obligation recognizance to be void, otherwise to remain [Image of page 12] in full force and virtue.

Which bill of exceptions is in the following words, to wit.

Be it remembered that on the trial of this cause the evidence before the Jury was in Substance as follows. The plaintiff offered in evidence a receipt marked A (here copy it) which receipt is in the following words & figures. Rec'd of Andrew Hemphill Mess. Soher Goodman &co obligation for the proceeds of fourteen bales cotton which they are to receive of John Bradley and which I will pay over to the said Andrew Hemphill when collected on April 28 1830.
Ephraim Mirick

He then introduced a witness who stated on oath that a short time before the commencement of this suit plaintiff called on the witness, and requested him to take the before mentioned receipt, and to call on the deft, and demand of him the payment of one two or three hundred dollars, the precise amount witness cannot recollect, or to deliver to him the obligation specified in the said receipt. Deft said he would not do either unless plff would pay him or allow him for same cotton receipt issued by Samuel Hemphill, the witness then left deft without receiving any money or the obligation mentioned in said receipt marked A. The plaintiff then produced in evidence the paper marked B being an account of sales of cotton at New Orleans, which is in the following words and figures, to wit. Sales of fourteen bales cotton received from [Image of page 13] Mr John Bradley and sold for account and risk of Mr. A. Hemphill of Arkansas Ty

Fourteen bales cotton To J Ogden & Co

A H 8 bales weighing
No 5...449
8 . .460
13 – 517
6. 433
4 – 470
11 – 447
12 – 455
7 – 468
3699 lb @ 8 ¢ 295.92

6 bales (picked) cotton
1-- 387
--410
10 -- 483
-- 459
-- 447
2 — 391
2577 lb @ ¢ 206.16- 502.08

charges

To freight on 14 bals to J. Bradley @ 4....56
" Picking 6 " net cotton......................150.....9
" Baging and rope on 2 bales...........50.....1
" Drainage 14 bales .........................@ 8 ....112
" Storeage on 14 bales .....................@ 20 ...280
"Weighing on 14 bales .....................@ 10 ...140
"Rearranging 6 bals laber ............@ 2 ½ ....15
"commission on sales $502.08 @ 2 ½ .... 12.55 84.02
$418.06
E. E. New Orleans May 15th 1830
Soher Goodman &co

which was read to the Jury without objection and defts counsel observed it might go to the Jury for what it worth.
The court then instructed the jury that if [Image of page 14] from the evidence they should find for the plaintiff, they ought to find for him the obligation in the declaration mentioned if to be had, and if not to be had, so much money the value thereof, and the criterion of the value of said obligation was the value of fourteen bales of cotton in New Orleans at the time specified in the sale bill of Soher Goodman before refered to and in ascertaining the value of said fourteen bales of cotton the Jury ought take all the evidence that had been adduced before them, and say from that evidence what was the value of said fourteen bales of cotton.

Whereupon the Jury retired to consider of their verdict, and then returned into court their verdict, which is in the following words.
We find that the defendant detains the obligation in the declaration mentioned and find the value thereof to be four hundred and eighteen dollars and six cents and one cent damages.

James Cole
Foreman

Whereupon the said defendant by his attorney moved for a new trial in this case for reasons in writing filed in this case. (Here copy them)
Which motion is in the following words and figures.

In Hempstead circuit court
In October Term 1831

Ephraim Mirick
Ads } Detinue
Andrew Hemphill
Now at this day comes the defendant and moves the court for a new trial of this cause for the following reasons, to wit.
1st The verdict of the Jury is contrary to law
2nd The verdict of the Jury is contrary to evidence
3rd The court misdirected the Jury

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4th The instructions of the court to the Jury were contrary to law and erroneous.
Ringo & Conway defts atty.

Which said motion the court overruled to which opinion of the court overruling said motion the defendant excepts, and prays that this his bill of exceptions may be signed sealed, and filed and be taken and considered as part of the record of this case court, and the defendant also offered on the motion for a new trial the affidavit of five of the Jurors in this case showing the manner in which they understood the court, and what amount they believed that said obligation was worth, which the court refused to hear read to which refusal the defendant excepted and prays that this bill may also be signed sealed and made a part of the record.

B. Johnson (Seal)

Which said five affidavits as alluded to in said bill of exceptions are in the following words and figures, to wit.

The undersigned being duly sworn States on Oath that he was one of the Jurors which tried the case of Andrew Hemphill against Ephraim Mirick in on action of detinue in the Hempstead circuit court at the October Term of Said court 1831 and further states that after hearing the evidence adduced on the trial of said case I understood the court to instruct the Jury that if the Jury believed upon the evidence that the defendant detained the obligation in the plaintiffs declaration mentioned then and in that event the Jury was bound to find the value of the fourteen bales of cotton in New Orleans at the date of the receipt given by said Mirick [Image of page 16] to said Hemphill for the said obligation and to find the said obligation to be of value equal to the amount of the value of fourteen bales of cotton at New Orleans at the time aforesaid, and that if the instruction aforesaid had not been given I as one of the Jurors aforesaid should have found the said obligation in said declaration mentioned to be only of value equal to three hundred dollars upon Absalom Mading's evidence a witness who proved he was instructed by said Hemphill to demand and receive of said Mirick a Sum of money not more than three nor less than one hundred dollars in the event of said Mirick refusing to give up the obligation aforesaid.
John Campbell
Sworn & Subscribed to before me this 10th day of October 1831
A M Oakley Clk

We the undersigned being duly sword stated on oath that we were two of Jurors which tried the case of Andrew Hemphill against Ephraim Mirick in an action of detinue in the Hempstead circuit court at the October Term of said court 1831 and further state that after hearing the evidence adduced on the trial of said case we understood the court to instruct the Jury that if the Jury believed upon the evidence that the defendant detained the obligation in the plaintiff's declaration mentioned then and in that event the Jury was bound to find the value of fourteen bales of cotton in New Orleans, at the date of the receipt given by said Mirick [Image of page 17] to said Hemphill for the said obligation and to find the said obligation to be of value equal to the amount of the value of fourteen Bales of cotton at New Orleans at the time aforesaid and that if the instruction aforesaid had not been given as two of as two of the Jurors aforesaid we should have found the said obligation in Said declaration mentioned to be only of value equal to the sum of money which Absolom Mading a witness proved he was instructed by said Hemphill to demand and receive of said Mirick in the event of Mirick refusing to give up the obligation aforesaid.

Rowland Hughitt Bartlett Zachary

Sworn & Subscribed
to before me this 8th day
of October 1831
A M Oakley, Clk

The undersigned being duly sworn States on Oath that he was one of the Jurors which tried the case of Andrew Hemphill against Ephraim Mirick in an action of detinue in the Hempstead Circuit Court at the October Term of said court, 1831, and further states that after hearing the evidence adduced at the trial of said case, I understood the court to instruct the Jury that if the Jury believed upon the evidence that the defendant detained the obligation in the plaintiffs declaration mentioned then and in that event the Jury was bound to find the value of fourteen Bales of cotton in New Orleans at the date of the receipt given by said Mirick to said Hemphill for the said obligation and to find the said obligation to be of value equal to the amount of the value of fourteen Bales of cotton at New Orleans at the time aforesaid and that if the instruction aforesaid had not been given as one of the Jurors aforesaid I should [Image of page 18] have found the said obligation in said declaration mentioned to be only of value equal to one hundred and fifty dollars as Absolom Mading a witness proved he was instructed by said Hemphill to demand and receive of said Mirick a sum of money between one and three hundred dollars in the event of said Mirick refusing to give up the obligation aforesaid.
H. W. Smith

Sworn & Subscribed
to before me this 10th October 1831
Allen A M Oakley Clk

The undersigned being duly sworn States on oath that he was one of the Jurors which tried the case of Andrew Hemphill against Ephraim Mirick in an action of detinue in the Hempstead circuit court at the October Term of said Court 1831 and further States that after hearing the evidence adduced on the trial of said case I understood the Court to instruct the Jury that if the Jury believed upon the evidence that the defendant detained the obligation in the plaintiffs declaration mentioned then and in that event, the Jury was bound to find the value of fourteen Bales of Cotton in New Orleans at the date of the receipt given by said Mirick to said Hemphill for the said obligation, and to find the said obligation to be of value equal to the amount of the value of fourteen Bales of Cotton at New Orleans at the time aforesaid and that if the instruction aforesaid had not been given I as one of the Jurors aforesaid should have found the said obligation in said declaration mentioned to be only of value equal to one hundred and fifty dollars as Absolum Mading a witness proved he was instructed by said Hemphill to demand and receive of said [Image of page 19] Mirick a sum of money some where between one and three hundred dollars in the event of Mirick refusing to give up the obligation aforesaid.
his
Robert X Ervin
mark

Sworn & Subscribed
to before me this
10th October 1831
A. M. Oakley
Clk

Costs of Suit to wit
Allen M. Oakley Clerk..........................................................................$11.27
T. Hubbard Atty........................................................................................6.00
D. T. Witter Sheriff....................................................................................1.23
James Gibson Sheriff.................................................................................0.76
Jury paid by plaintiff..................................................................................3.00
A. Block a witness....................................................................................2.00
A. Mading a witness.................................................................................2.00
This transcript...........................................................................................4.70
Certificate and seal & certificate..............................................................0.20
$31.46

Territory of Arkansas
County of Hempstead} Sct United States of America

I Allen M. Oakley clerk of the circuit court in and for the county aforesaid do hereby certify that the annexed and foregoing eighteen pages contains a true and perfect transcript of all the proceedings had in said case as appears from the records of my office.

In testimony whereof I have hereunto set my hand as clerk and affixed the seal of said court at Washington this 27th day of December A.D. 1831, and of the Independence of the United States the 56th.
Allen M. Oakley Clerk
(Seal)

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