Transcript of Proceedings, circa 25 October 1837 [Rounds qui tam v. JS]

  • Source Note
  • Historical Introduction

Document Transcript

Pleas before the Court of Common Pleas within and for the County of in the State of Ohio on the twenty fourth day of October in the year of our Lord one thousand eight hundred & thirty seven.
Be it remembered that heretofore to wit, on the ninth day of February in the year above written, qui. tam. sued out of the office of the Clerk of said Court a writ of Summons against Joseph Smith Jr. in the words and figures following to wit:—
“The State of Ohio )
s.s. )
Seal
To the Sheriff of our said County. . . Greeting:— We command you that you summon Joseph Smith Junior if he be found in your to appear before our Court of Common Pleas, to be held at the court house in the town of the twenty first day of March next to answer who sues as well for the State of as for himself in a plea of debt for one thousand dollars, damage one thousand dollars, as is said. Herein fail not but of this Writ and your service make due return. Witness the Honourable President of our said Court at the ninth day of February Anno Domini one thousand eight hundred and thirty seven. Clerk.”
Upon which writ was the following endorsment to wit:
“Suit brot. to recover of def[endan]t a penalty of $1000. incurred "by acting on the 4th. day of Jan.y. 1837. as an officer of a Bank not incorporated by law of "this and denominated “” contrary "to the Statute in such case made and provided. Amt. claimed to be due $1000. Feby. 8. 1837.”
Afterwards to wit, at the March term of said Court in the year aforesaid, the foregoing writ was returned into Court by the Sheriff of our said County endorsed as follows to wit:—
“ The State of Ohio, ss. [scilicet]} I have executed the command of this writ by leaving a true copy of the same with the endorsments thereon with the wife of the within named Joseph Smith Jun. at his residence he being absent. this 10. of Feb. 1837. 2d. Sheriff”
And thereupon it was ordered by the Court that this cause be continu[e]d until the next term of said court. Afterwards to wit, on twenty second day of April in the year aforesaid, the plaintiff filed in the office of the Clerk aforesaid, his declaration in the words and figures following to wit:
“The State of Ohio) Court of Common Pleas, after March Term A.D. 1837
ss. [scilicet])
who sues as well for the State of as for himself complains of Joseph Smith Junior in a plea of debt, For that the said Joseph Smith Junior on the fourth day of January in the year of our Lord one thousand eight hundred and thirty seven at in said County of Geauga, did act as an officer, servant, agent and trustee of a Bank called “” which said Bank was not then and there incorporated by law; contrary to the Statute in such case made and provided, whereby and by the force of the said statute the defendant has forfeited for said offence the sum of one thousand dollars, and thereby and by force of said statute [p. 362]
an action hath accrued to the plaintiff who sues as aforesaid to have and demand of and from the defendant for the said State of and for himself the said sum of one thousand dollars, one half for the said State of and the other half for the plaintiff: And also for that the said defendant afterwards to wit, on the day and year last aforesaid at aforesaid in the County of Geauga aforesaid did act as an officer of a certain other Bank called and denominated “which said last mentioned Bank was not then and there incorporated by law by then and there assisting in the discounting of paper and lending money for said Bank contrary to the Statute in such case made and provided, whereby and by force of the said statute the said defendant has forfeited for said last mentioned offence the further sum of one thousand dollars; and thereby and by force of said statute an action hath accrued to the plaintiff who sues as aforesaid to have and demand of and from the said defendant for the said State of and for himself the said last mentioned sum of one thousand dollars; one half for the said State of and the other half for the plaintiff. And also for that the said defendant afterwards to wit, on the day and year last aforesaid at aforesaid in the County of Geauga aforesaid did act as an officer of a certain other Bank not incorporated by law; contrary to the statute in such case made and provided, whereby and by the force of the said statute the defendant has forfeited for said last mentioned offence the further sum of one thousand dollars and thereby and by force of said statute an action hath accrued to the said plaintiff who sues as aforesaid to have and demand of and from the defendant for the said State of and for himself said last mentioned sum of one thousand dollars, one half for the said State of and the other half for the plaintiff: Yet the said defendant though often requested so to do has not paid the said several sums of one thousand dollars nor any nor either of them to the said State of and to the plaintiff who sues as aforesaid, but has always neglected and refused so to do; which is to the damage of the plaintiff the sum of one thousand dollars, and therefore he brings this suit &c. Plff. Atty.”
Afterwards to wit, at the June term of said Court in the year aforesaid, this cause came on to be heard upon a to the declaration of the plaintiff, and was argued by counsel: On consideration whereof it was adjudged by the Court that said demurrer be overruled with costs. Whereupon on motion of the defendant leave was given him to amend, on payment of costs. And it was ordered by the Court that this cause be continued until the next term of said court.— And now at this term of said Court that is to say at the term thereof of first aforesaid, come the parties and thereupon come a Jury to wit: Guy Wyman, Caleb E. Cummings, John A. Ford, William Crafts, David Smith, George Patchin, Ira Webster, Stephen Hulbert, William B. C[a]rothers, Jason Manley, Joseph Emerson and Thomas King, who being duly empannelled and sworn well and truly to try the issue joined between the parties and a true verdict to give, do find that the defendant is indebted to the plaintiff in the sum of one thousand dollars. It is therefore considered by the Court that the plaintiff recover against the defendant his debt aforesaid so found as aforesaid, and also his costs and charges by him in and about the prosecuting of this suit in that behalf expended, taxed at twenty three dollars and thirty five cents: And it is ordered by the Court that the defendant pay the costs and charges by him made in and about the defending of this suit, taxed at seventy five cents, and in default thereof, that execution issue to collect the same. The defendant excepts to the opinion of the Court, and files his Bill of Exceptions, signed and sealed by the Judges thereof, in the words and figures following to wit:—
“Joseph Smith Jr. . Rounds .} Debt.— This cause came on for trial before the Court and Jury [p. [363]]
upon the pleadings; and the Pl[ainti]ff in order to maintain his suit introduced witnesses and offered to prove by them that the “” described in the declaration existed at the time therein stated at in said County; but it appearing that said was organized by written articles of association then in their possession, the def[endan]t by his counsel objected to such proof without first showing notice to said to produce said articles: but the Court overruled said objection and admitted the evidence. The Plff. did not provide any of the bills loaned in Court. The Plff. further offered to prove that before and at the time in the declaration mentioned said “” consisting of sundry individuals, carried on the business of issued issuing paper or bills of the likeness of and similitude of Bank Bills of various denominations which would pass and circulate by delivery of which (among others) produced and offered in evidence and subscribed by the deft.) the following is a copy to wit:
“[Kirtland Safety Society bank note—now missing from docket]”
That said at the same time loaned said paper or bills to sundry indivividuals, that the deft was a director in said “” and that he assisted in issueing and loaning the same; to which the deft by his counsel also objected; but the Court overruled said objection and admitted the evidence, and the Plff. rested.— And thereupon the Deft by his counsel moved the Court to charge the Jury that the statute upon which the suit was founded was not in force, that the loaning of said paper or bills was not a loaning of money money if the statute was in force, and that there was no evidence which would authorize them to return a verdict for the Plff. But the Court charged the Jury that said Statute was in force that a lending of the paper or bills was a lending of money within the statute and that if they found that the deft was a director in said “[”] and assisted in issueing and lending said paper or bills it would constitute him an “officer” within the meaning of the statute, and that for the purpose of coming to a conclusion they might take the whole testimony as well the appearing of the defts ma◊◊ as any other before them for that purpose, and the Judges on motion of the defts counsel have in open Court signed & sealed this Bill of Exceptions.
L.S. Storm Rosa Asst Judge Seal
Daniel Kerr Seal John Hubbard seal”
Prest [p. 364]

Footnotes

  1. 1

    TEXT: “Seal” enclosed in a hand-drawn representation of a seal.  

  2. 2

    TEXT: “L.S.” (locus sigilli, Latin for “location of the seal”) enclosed in a hand-drawn representation of a seal.  

  3. 3

    TEXT: Instances of “Seal” are enclosed in hand-drawn representations of seals.  

  4. new scribe logo

    Signature presumably of Van R. Humphrey.