Transcript of Proceedings, circa 3 April 1838 [L. Holmes and C. Holmes v. JS and Cahoon]

  • Source Note
  • Historical Introduction

Document Transcript

Pleas before the Court of Common Pleas within and for the County of in the State of on the third day of April in the year of our Lord one thousand eight hundred and thirty eight. Be it remembered, that heretofore to wit at the October Term of said Court in the year of our Lord one thousand eight hundred and thirty seven Lory Holmes and Charles Holmes by Hitchcock & Wilder their Attorneys sued out of the office of the of said Court a writ of Summons against Joseph Smith Jr. & , in the words and figures following to wit: [p. 63]
“The State of Ohio)
ss. [scilicet])
seal
To the of our said . . . Greeting:— We command you that you summon Joseph Smith Jr. & if they be found in your to appear forthwith before our Court of Common Pleas now sitting at the Court House in the town of to answer Lory Holmes and Charles Holmes in a plea of assumpsit to their damage fifteen thousand dollars as they say. Herein fail not but of this writ and your service make due return. Witness Clerk of our said Court at the 25th day of October Anno Domini one thousand eight hundred and thirty seven. Clerk.”
Upon which writ was the following endorsment to wit:
“Suit brot on note made by defts Oct. 5. 1836 for $5000. payable with use to plffs. May 1. 1837: Also on note made by defts Oct. 5. 1836 for $5000. payable to plffs with use Sept. 1. 1837: Also on note made by defts Oct. 15. 1836 for $200. payable with interest to plffs May 1. 1837: Also for money lent & advanced to defts: Also for money had and recd. to the use of plffs: Amt. appearing due $9840.00 Oct. 18. 1837.”
The foregoing writ was forthwith returned into Court by the of our said endorsed as follows to wit:—
“The State of Ohio, s.s. I have executed the command of this writ by leaving a copy of the same with the of Joseph Smith Jr. he being absent and by handing a copy of the same to . October 27. 1837. Dep. Shff.”
And thereupon it was ordered by the Court that this cause be continued until the next term of said court. Afterwards to wit, on the fourth day of December in the year last aforesaid the plaintiffs filed in the s office aforesaid their declaration in the words and figures following to wit:—
“The State of Ohio)
ss. [scilicet])
In the Court of Common Pleas, after October Term AD 1837 Lory Holmes and Charles Holmes complain of Joseph Smith Jr. and in a plea of assumpsit for that whereas the said defendants on the fifth day of October AD 1836. at in said made their promissory note in writing and delivered the same to the plaintiffs and thereby jointly and severally promised to pay the plaintiffs or order five thousand dollars with use for value received on the first day of May AD. 1837 which period has now elapsed and the said defendants in consideration of the premises then and there promised to pay the amount of the said note to the said plaintiffs according to the tenor and effect thereof: And also for that whereas the said defendants heretofore to wit, on the first day of October AD 1836 at in said in said made their certain other promissory note in writing and delivered the same to the said plaintiffs and thereby jointly and severally promised to pay the said plaintiffs or order five thousand dollars with use for value received on the first day of September AD 1837 which period has now elapsed and the said defendants in consideration of the premises last aforesaid then and there promised to pay the amount of the said last mentioned note to the said plaintiffs according to the tenor and effect thereof: And also for that whereas the said defendants on the fifteenth day of October AD 1836 at aforesaid in the aforesaid made their certain other promissory note in writing and delivered the same to the said plaintiffs and thereby jointly and severally promised to pay the plaintiffs or bearer two hundred dollars on or before the first day of May AD 1837 with interest for value received with interest, which period has now elapsed and the said defendants in consideration of the premises last aforesaid then and there promised to pay the amount of the said last mentioned note to the said plaintiffs according to the tenor and effect thereof: And also for that whereas the said defendants heretofore to wit on the first day of September AD 1837 at in said County of and State of were indebted to said plaintiffs in the sum of ten thousand dollars for the work labour care diligence and attention of them the said plaintiffs by them the said plaintiffs before that time done performed and bestowed in and about the business of said defendants and for the said defendants and at their special instance and request: And also in the further sum of ten thousand dollars for divers goods wares and merchandize and other personal property before them by said plaintiffs sold and delivered to said defendants and at the like special instance and request of said defendant: And also in the further sum of ten thousand dollars [p. 64]
for so much money before then by said plaintiffs lent and advanced to and paid laid out and expended for said defendants and at their like special instance and request: And also in the further sum of ten thousand dollars for other moneys before then by said defendants had and received to and for the use of said plaintiffs: And being so indebted they said defendants in consideration thereof afterwards to wit, on the same day and year last aforesaid at aforesaid, undertook and then and there faithfully promised the said plaintiffs to pay them the said several sums of money in this count mentioned when they the said defendants should be there unto afterwards requested: And whereas also afterwards to wit, on the first day of September AD 1837 at in said the said defendants accounted with the said plaintiffs of and concerning divers other sums of money for the said defendants to the said plaintiffs before that time due and owing and there in arrear and unpaid and upon such accounting the said defendants were then and there found to be in arrear and indebted to the said plaintiffs in the further sum of ten thousand dollars: And being so found in arrear and indebted they the said defendants in consideration thereof afterwards to wit on the same day and year last aforesaid at aforesaid undertook and then and there faithfully promised the said plaintiffs to pay them the said further sum of ten thousand dollars in this count mentioned when they the said defendants should be thereunto afterwards requested: Yet the said defendants their said several promises and undertakings in nowise regarding, but contriving &c. have not as yet paid the several sums of money in this declaration mentioned or any or either of them or any part thereof to the said plaintiffs, (although often requested &c.) but the said defendants to pay the said plaintiffs the same have hitherto wholly neglected and refused and still do neglect and refuse, To the damage of said plaintiffs of fifteen thousand dollars and therefore they sue &c. Hitchcock & Wilder Attorneys for Plaintiff.”
And now at this term of said Court that is to say at the term thereof first aforesaid come the said plaintiffs and the defendants being three times demanded to come into Court and defend this suit come not but make default. It is therefore considered by the Court that the plaintiffs recover against the defendants their damages by the Court here assessed to the sum of ten thousand and seventy one dollars and forty eight cents, and also their costs and charges by them in and about the prosecuting of this suit in that behalf expended taxed at ten dollars and thirty eight cents: And it is ordered by the Court that the defendants pay the costs and charges by them made in and about the defending of this suit taxed at sixty one cents, and in default thereof that issue to collect the same.
Prst [p. 65]

Footnotes

  1. 1

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

  2. new scribe logo

    Signature presumably of Van R. Humphrey.