Transcript of Proceedings, circa 8 November 1838 [JS for the use of J. Granger v. Smalling and Coltrin]

  • Source Note
  • Historical Introduction

Document Transcript

Pleas before the Court of Common Pleas within and for the County of in the State of Ohio at a Term of said Court begun and held at on the sixth day of November in the year of our Lord one thousand eight hundred and thirty eight.
Be it remembered, that heretofore to wit on the twenty eighth day of February in the year aforesaid Joseph Smith Junior for the use of sued out of the office of the Clerk of said Court a writ of against and in the words and figures following to wit:—
“The State of Ohio)
ss [scilicet])
seal To the Sheriff of said . . . Greeting:— We command you that you take and if they befound in your and them safely keep so that you have them before our Court of Common Pleas for said County at the Court House in on the third day of April next to answer unto Joseph Smith Junr. for the use of in a plea of the case damages one thousand dollars and have you then there this writ. Witness Clerk of said Court at this twenty eighth day of February AD 1838
Clerk.”
Upon which writ was the following endorsment to wit:— “This suit is brought on defendants note to the pl[ainti]ff for $500. date Sept 30. 1836 on demand with interest Amt. due $531.25.”
Afterwards to wit at the April Term of said Court in the year aforesaid the foregoing writ was returned into Court by the Sheriff of our said endorsed as follows to wit:— “The State of Ohio ss. [scilicet] I on this 5th day of March 1838 arrested and took his bail bond with Leonard Risk as surety conditioned that he appear at next term and enter special bail in the case. A copy of bond is herewith returned. The other def[endan]t is not found. 2d. Shff.” Whereupon it was ordered by the Court that the defendant be discharged from custody on filing common bail and that this cause be continued until the next term of said Court.
Afterwards to wit on the seventh day of May in the year aforesaid the plaintiff filed in the Clerks office aforesaid his declaration in the words and figures following to wit:—
“The State of Ohio)
ss [scilicet])
Court of Common Pleas after April Term 1838. Joseph Smith Jnr. for [p. 501]
the use of complains of (the Sheriff of said having returned not found as to against whom process in this cause was also issued) in a plea of the case for that whereas the said & on the thirtieth day of September AD 1836 at in the County of Geauga made their promissory note in writing and delivered the same to the said Joseph Smith Jr and thereby promised to pay to the said Joseph Smith Jr. five hundred dollars on demand with interest which period has now elapsed and the said defendant and then & there in consideration of the premises promised to pay the amount of said note to the said Joseph Smith Jr according to the tenor and effect thereof And also for that whereas the said and on the thirtieth day of September AD eighteen hundred & thirty six at aforesaid were indebted to the said Joseph Smith Jr in the sum of one thousand dollars for the price and value of goods then and there bargained and sold by the plaintiff to the defendant and the said at their request: And in the sum of one thousand dollars for the price and value of goods then and there sold and delivered by the plaintiff to the defendant and the said at their request: And in the sum of one thousand dollars for money then and there lent by the plaintiffs to the defendant and the said at their request: And in the sum of one thousand dollars for money then and there paid by the plaintiff for the use of the defendant and the said at their request: And in the sum of one thousand dollars for money then and there received by the defendant and the said for the use of the plff: And in the sum of one thousand dollars for money found to be due from the defendant and the said to the plaintiff on an account then and there stated between them: And whereas the defendant and afterwards on the thirtieth day of September AD 1836 in consideration of the premises then and there promised to pay the said several sums of money to the plaintiff on request: Yet they have disregarded their promises and have not nor have either of them paid the said several sums of money nor either nor any of them nor any part thereof; to the damage of the plaintiff one thousand dollars and thereupon he brings suit &c.
Perkins & Osborn Plffs. Attys.
Afterwards to wit at the June Term of said Court in the year aforesaid it was ordered by the Court that the defendant have leave to amend his plea and that this cause be continued until the next term of said Court. Afterwards to wit on the sixth day of August in the year aforesaid the defendant filed in the Clerks office aforesaid his plea and notice in the words and figures following to wit:—
“The State of Ohio)
ss. [scilicet])
Court of Common Pleas November Term A.D. 1838.
& )
ads)
Joseph Smith Jr. for )
Plea and notice in . In Assumpsit. And now comes the said defendant by his Attorney and [p. 502]
defends the wrong and injury when &c. and says that he did not assume and promise in manner and form as the said plaintiff has thereof in his said declaration complained against him and of this he puts himself on the country &c.
Attorney for Defendant.
The plaintiff in the above entitled cause will take notice;— That the said defendant on the trial of this cause will give in evidence and insist upon in bar of the plaintiff’s right of recovery that at and before the commencement of this suit the said plaintiff was and still is indebted to said defendant in the sum of two thousand dollars for the work and labour care diligence and attention of them the said defendants by them the said defendants before the commencement of this suit done performed and bestowed in and about the business of said plaintiff and for said plaintiff and at the special instance and request of said plaintiff: And also in the further sum of two thousand dollars for divers goods wares and merchandize and other personal property by said defendant before then sold and delivered to said plaintiff and at said plaintiffs like special instance and request: And also in the further sum of two thousand dollars for so much money before then by said defendant lent and advanced to and paid laid out and expended for said plaintiff at his like special instance and request: And also in the further sum of two thousand dollars for other monies before then by said plaintiff had and received to and for the use of said defendant.
Which said sums or so much thereof as may be necessary for that purpose the said defendant will have set off against any sums that the said plaintiff may prove against them on the trial of said cause and have a judgment in favour of the said defendant for the balance: And also the said & will prove on said trial that the said Smith at and before the commencement of this suit was and still is indebted to them the defendants in the sum of fifteen hundred dollars for that amount of notes then and now held by the said defendants, which notes were unauthorized Bank Paper and put in circulation by the said Joseph Smith &c.
for Defendants.”
And now at this Term of said Court that is to say at the Term thereof first aforesaid come the said parties and thereupon come a Jury to wit: Joseph Fuller Junior Nathaniel Moore Henry H. Ford William C Stanard Nathan P. Goodell William Phillips Dexter Otis Thomas Clapp Gurdon W. Huntington Collins Morse William C. Mathews and John H Wooden who being duly empannelled and sworn well and truly to try the issue joined between the parties and a true verdict to give, upon their said oaths do say that the defendant did not assume and promise in manner and form as the plaintiff hath declared against him. It is therefore considered by the Court that the defendant recover against the plaintiff his costs and charges by him in and about the defending of this suit in that behalf expended taxed [p. 503] at twenty three dollars and twenty four cents; and it is ordered by the Court that the plaintiff pay the costs and charges by him made in and about the prosecuting of this suit taxed at five dollars and thirty one cents, and in default thereof that issue to collect the same. The plaintiff gives notice of his intention to appeal to the Supreme Court.
Prst [p. 504]

Footnotes

  1. 1

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

  2. new scribe logo

    Signature presumably of Van R. Humphrey.