Transcript of Proceedings, circa 6 June 1837 [Kelley v. Rigdon, Smith & Cowdery]

  • Source Note
  • Historical Introduction

Document Transcript

Pleas before the court of Common Pleas, within and for the county of and State of , on the fifth day of June in the year of our Lord one thousand eight hundred and thirty seven.
Be it remembered, that heretofore, to wit, at the March term of said court in the year aforesaid, Hezekiah Kelley by Perkins & Osborn his attorneys, sued out of the office of the of said court a writ of Capias against & others, in the words and figures following, to wit:
“The State of Ohio)
ss.)
Seal
To the of said . . . Greeting:
We command you, that you take , Joseph Smith Jr. and , of the firm of , and them safely Keep, so that you [p. 97]
have them forthwith before the Court of Common Pleas for said now in session at the court house in , to answer unto Hezekiah Kelley in a plea of the case, Damages three thousand dollars; and have you then there this writ. Witness the Hon. . President Judge of said court at this 22d. day of March A. D. 1837.
Clerk.”
Upon which writ was the following endorsment, to wit,
“Suit brought to recover of defts as endorsers of a note of hand made by , & by the name, firm & style of dated 18. June 1836 payable six months after date to the order of defts. at the Bank of Buffalo, and endorsed by defts to John V. Ayer and by John V. Ayer to A. C. Demerrit [Albert C. Demeritt] & by A.C. Demerritt to the plffs. Amt. now due for principal, int. & prot. $2158.00”
The foregoing writ was forthwith returned into court by the of our said , endorsed as follows, to wit:
“The State of Ohio ss.) I arrested the within named ; Joseph Smith Jr. and have them now in court this 25th. day of March 1837. the other is not found in my bailiwic.
2d. Shff. Geo W Purple Deputy.”
And thereupon special bail was entered, in the words and figures following, to wit:
“Hezekiah Kelley)
vs) In Case.
, Joseph Smith Jr.)
and )
The State of Ohio)
ss.)
Be it remembered that on the twenty fifth day of March in the year of our Lord one thousand eight hundred and thirty seven, & of the county of personally appeared before me clerk of the court of common Pleas for said county of and severally acknowledged themselves to owe unto Hezekiah Kelley the sum of six thousand dollars each, to be levied upon their several goods and chattels, lands and tenements and real estates, upon condition that if the defendants , Joseph Smith Jr. & shall be condemned in this action at the suit of Hezekiah Kelley the plaintiff they shall pay the costs and condemnation of the court or be rendered or render themselves into the custody of the of said for the same; or in case of failure that the said & will pay the costs and condemnation for them— Taken and acknowledged the day and year above written, before me, in open court.
Clerk.”
Whereupon it was ordered by the court that this cause be continued until the next term of said court.
Afterwards, to wit, on the twenty fourth day of April in the year aforesaid, the plaintiff by his said attorneys filed with the aforesaid his declaration in the words and figures following, to wit:
“The State of Ohio)
ss.)
In the court of Common Pleas vacation after March term 1837—
Hezekiah Kelley complains of , Joseph Smith Junior & , in a plea of the case for that whereas heretofore, to wit; on eighteenth day of June in the year of our Lord one thousand eight hundred and thirty six, one , [p. 98]
& partners in trade under the name, firm & style of at in the State of , to wit, at in the and aforesaid made their certain promissory note in writing and delivered the same to the said , Joseph Smith Junior & partners in trade under the firm of and thereby under the name of the said firm of R. Cahoon, J. Carter & Co. promised to pay to the order of the said , Joseph Smith Jr. & under the firm of Rigdon, Smith & Cowdery two thousand & fourteen dollars and seventy four cents in six months after the date of said note at the Bank of Buffalo for value received, which period has now elapsed— And the said , Joseph Smith Junior & under the name of the said firm of Rigdon, Smith & Cowdery then and there endorsed the same to John V. Ayer, and the said John V. Ayer then & there endorsed the same to the plaintiff; And the said & of the said firm of R. Cahoon J. Carter & Co. did not pay the amount of said note nor any part thereof although the same was presented at the Bank of Buffalo when the same is made payable, on the day the same became due and payment thereof demanded which was refused, and the said note then & there protested for nonpayment, of all which the said defendants then & there had notice and the said defendants under the name of the said firm of Rigdon, Smith & Cowdery in consideration of the premises, then and there promised to pay the amount of said note to said plaintiff on request; And also for that whereas the said Joseph Smith Junior & of the firm of Rigdon, Smith & Cowdery aforesaid heretofore, to wit: on the twenty first day of December A.D. 1836 at in the & aforesaid, were indebted to the said plaintiff in the sum of three thousand dollars for so much money by the plaintiff then & there paid, laid out & expended for the said defendants, and lent & advanced to the said defendants at their special instance and request; Also in the further sum of three thousand dollars for so much money paid by the plaintiff for the damages, interest, protest & postages incurred upon divers promissory notes endorsed by the said defendants, at their like special instance and request; And in the sum of three thousand dollars for so much money by the said defendants then & there had and recieved to and for the use of the said plaintiff; And whereas the said defendants afterwards, to wit: on the fourth day of March AD. 1837 at aforesaid in consideration of the premises then & there promised to pay the said several sums of money to the plaintiff on request; Yet they have disregarded their promises and have not paid the said several sums of money, nor any, nor either of them, nor any part thereof, to the damage of the plaintiff three thousand dollars, and thereupon he sues, &c.
By Perkins & Osborn his attorneys.”
And now at this term of said Court, that is to say, at the term thereof first aforesaid, comes the said parties and by their mutual agreement the issue of fact is submitted to the decision of the court, and the court having heard the evidence adduced, do find that the defendants did assume and promise in manner and form as the plaintiff in his declaration hath alledged against them, and assess the plaintiffs damages to two thousand & eighty three dollars and forty seven cents. It is therefore considered by the court, that the plaintiff recover against the defendants his damages aforesaid, so assessed, and also his costs & charges by him in & about the prosecuting of this suit in that behalf expended, taxed at ten dollars & fifty three cents. And it is ordered by the court that the defendants pay the costs & charges by them made about the defence of this suit taxed at one dollar & fifty six cents, and in default thereof, that execution issue to collect the same.
Prest [p. 99]

Footnotes

  1. 1

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

  2. new scribe logo

    Signature presumably of Van R. Humphrey.