Sample Assumpsit
Cuthbert Bullit and Joseph L Fore vs. David Blackwell
Circuit Court Case File 3590
Assumpsit 1831
St. Clair County, Illinois
Transcription. File Jacket indicates this case is recorded in Record Book F2: 222
Paper case file located at the Illinois State Archives, Springfield
Words in [square brackets] are additions or guesses by the transcriber.
[Document 1 – Official certifications the document within is a true copy]
“The Commonwealth of Kentucky to the Sheriff of Shelby County Greeting: We command you that of the Estate of Cuthbert Bullit and Joseph L. Foore late of your bailiwick you cause to be made the sum Sum of $599.04 to be discharged by the payment of two hundred and ninety nine dollars fifty two and 1/2 cents with interest thereon at the rate of six per centum per annum from 27th October 1826 until paid which Liston T. Bell lately in our Shelby Circuit Court recovered against them for debt and interest by virture of a Replevin Bond, also 70 1/2 cents which in the same court was adjudged to the said Liston T. Bell for his costs in that Suit expended, Where of the Said Bullitt and Fore are Convict as appears to us of record, and that you have the Same before the Judge of our Said Court at hte Courthouse in Shelbyville, on the rule day to be held in the Clerks Office, on the Saturday Suceeding the third Monday in March next to render to the Said Liston T. Bell of the Debt Interest and costs aforesaid; And have then there this writ. Witness Samuel Levis Clerk of our Said Court this 30th day of January 1827 and in the 35th year of the Commonwealth
Saml Levis C.
upon which the following endorsements were made
Endorsed thereon ‘No Security of any kind to be taken and Specie is required.[‘]
Test. S. Levis C.”
[reverse side Document 1]
“This execution is entitled to a credit of two hundred dollars paid about the 25th Decr 1826 per receipt given
Test. S. Levis C.”
“I certify that on the 6th day of Jany 1827 Isaac Greathouse [-?-] filed in my Office an order from the plaintiff Liston T. Bell directing the whole amount of this Execution When Collected to be paid to him said Greathouse. 25th April 1827
Test. Saml Levis Clk. S. CC.”
“This Execution is for the benefit of Henry Burnett.
Ja. S. Whitaker atto for Plff”
“Satisfied and the money paid to Jas. S. Whitaker & Henry Burnett
Geo. Robinson DS for
Wm S. Boyd S.S.D.”
“State of Kentucky } Sct
Shelby County & Circuit}
I Samuel Levis Clerk of the Circuit Court for the Circuit aforesaid do hereby Certify that the within and above is a true copy of the Execution endoresements and return of the Sheriff, Now on file in my Office in the name of Liston T. Bell against Cuthbert Bullitt & Joseph L. Fore.
In Testimony Whereof I have hereunto Set
my hand, and affixed the Seal of my
Said office at Shelbyville, the 11th April
1831 & in the 39<sup.th< sup=””> year of the Commonwealth
Saml Levis Clk”</sup.th<>
[Document 2 -]
“State of Illinois St Clair County
St. Clair Circuit Court September Term 1831
Cuthbert Bullett who sues for the use & benefit of John F. Willett Junior, complains of David Blackwell in custody &c, in a plea of the case in assumpsit for th[is?] whereas heretofore to wit, on the 20- day of January 1819 the Plaintiff at the Defendants special instance and request became and was the Defendants special bail in a certain action pending in the Shelby Circuit Court in the State of Kentucky in a certain action pending in said Court in behalf of Lestin T. Bell, against the Defendant David Blackwell, and such proceedings were thereupon had that Judgment was rendered therein against the said Blackwell for the sum [of] one hundred seventy six dollars, with interest from the 22d Nov 1815 till paid, with costs and such proceedings were afterwards had that Execution was Paid against the said Blackwell, and returned unsatisfied, the said Blackwell having avoided and not having rendered his body upon Execution & no property being found wherewith to satisfy the same~ and afterwards, such further proceedings were had in said cause that a scire facias was issued against the said Cuthbert Bullit upon his endorsment of bail aforesaid, & such proceedings were thereupon had that afterward to wit on the 27 Sept 1826 Judgment was by sd Court rendered in favor of the said Lestin T. Bell against the said Cuthbert Bullitt, on his recognisance, as bail for the said Defendant David Blackwell and the said Cuthbert Bullett as the bail aforesaid, was afterwards to wit – on the 20 Jany 1827 – by force of an Execution upon said Judgment compelled to pay for the said Blackwell to the said Bell the sum of three hundred four dollars twenty two one cents paid and laid out for the said David Blackwell by the said Plff for the use of him the said Blackwell & as his special instance and request And the Defendant thereupon became liable, to pay the said Bullit, for the said money so paid, for his use & afterwards to wit
[reverse side Document 2]
on the day & year last aforesaid at the County & Circuit aforesaid to wit at the County and Circuit of St Clair aforesaid opened in consideration thereof upon him self and to the Plff for the use aforesaid faithfully promised to pay the sum last aforesaid, in a reasonable time & when thereto afterwards requested yet the often requested and the a reasonable time hath long since elapsed hath not the Defendant paid the Plff for the use aforesaid to his damages the sum of four hundred fifty dollars & therefore sues.
By [C Cowles?]”
vs
David Blackwell
in assumpsit $387.28 1/4
________________
Damages $395.37
________________
filed 15 Sept 1831”
| “1. Preamble |
Commonwealth of Kentucky Shelby Circuit SctPleas held before the Honorable Henry Davidso[n] at a Circuit Court Continued and held for the County of Shelby at the Courthouse in the Town of Shelbyville On Thursday the 27th day of September 1826~Be it Remembered that heretofore to wit, On the 31. day of December 1819 the Plaintiff Lestin T. Bell assignee of Ben R. Pollard filed here in the Clerk’s Office his Decleration in debt against the defendant David Blackwell which reads as follows, Towit. |
| Decl | Shelby County & Circuit Sct Lestin T Bell assignee of Benja R. Pollard Complains of David Blackwell in Custoday [—] of a plea that he the Defendant under unto him the said Plaintiff the Sum of one hundred and Seventy Six dollars which to him he owes and from him unjustly detains for that the said defendant in the 22 day of November 1815 in the County and Circuit aforesaid by his certain writing obligatory with his proper hand thereto Subscribed and to the Court now here Shown the date which is the Same day and year aforesaid Acknowledged that there was due from him |
| 2. contd |
the defendant to Benjamin R. Pollard one hundred and Seventy Six dollars and afterwards towit, on the 24 Aug. 1816 Towit, August 24 1816 in the County & Circuit aforesaid the Said Sum of $176. being then due and unpaid the said the said Benjamin R. Pollard by his certain endoresment On the back of said writing with his name thereto Subscribed and to the Court now here Shows the date where of is the Same day And year aforesaid, For value received did assign the Same to the Plaintiff without any manner of Responsibility On him said Pollard of which endorsment and assignment the said defendant On the [blank] day of [blank] 1816 had due notice in the parish and county aforesaid by reason of which assignment and force of the act of assembly in such case made and provided the Said Plaintiff as assignee of the said Ben R. Pollard acquired a right to demand and recover of said defendant the said Sum of $176. Yet the said defendant although Often requested hath not paid the said Sum of money or any part thereof but the Same to pay hetherto hath refused and Still doth refuse to the damage of the Plaintiff $180 & therefore he Sues &c
Whitaker for Plff Upon which declaration the following capias issued which together with the Endorsments and Sheriffs return thereon reads as follows towit, |
| 3. Capias &c & Sheriffs return |
The Commonwealth of Kentucky to the Sheriff of Shelby County Greeting We Command you to take David Blackwell if he [be] found within your bailiwick and him Safely Keep So that you have his body before the Judge of our Shelby Circuit Court at the Courthouse in the town of Shelbyville On the first day of our next February term to answer Lestin T. Bell assignee of Benja R. Pollard of a plea of debt for $176. Damage $180. and have then there this writ Witness John Nowland Clerk Protem of Our said Court this 31. day of December 1816. and in the 35th Year of the Commonwealth
John Nowland [Memo?] An action of Debt on a writing not under Seal for the payment of money and Bail required~ Whitaker for Plff |
| Special Bail | I Cuthbert Bullitt do hereby acknowledge myself Special bail for the within named David Blackwell in the Suit named in the within writ, as witness my hand this 20 day of January 1817
Cuthbert Bullett Came to hand January 7 1817. And I Executed the within writ on the within named David Blackwell January 20. 1818 Henry Smith DS for O. Clarke And now at this day towit at a Circuit Court |
| 4. Judgt &c |
Continued and held for the County of Shelby at the Courthouse in the Town of Shelbyville On the 27the day of February 1817. Came the parties by their attornees and by Consent the defendant Confesses Judgment for the debt in the declaration mentioned with interest and costs. It is therefore considered by the Court that the Plaintiff recover against the defendant One hundred and Seventy Six dollars the debt in the declaration mentioned With Interest thereon to be computed after the rate of Six per cent per annum from the 22 day of November 1815 til paid as also his costs in this behalf Expended and that the defendant by in mercy &c, Memo Execution of this Judgment is to be staied until first of May next, The Writing Upon which this Suit was founded reads in these words towit – |
| Note & Assignment |
Due Benja R. Pollard One hundred and Seventy Six dollars this 22d day of Nov 1815.
David Blackwell For value received I assign the within note to Lestin T. Bell, without any responsibility on me whatever, Aug. 24. 1816. Benj R. Pollard |
| Fifa | And Afterwards towit, On the 16 day of July 1817 the Following Fire Facias paid on said Judgment towit |
| 5. Fifa |
The Commonwealth of Kentucky to the Sheriff of Shelby County Greeting We Command You that of the estate of David Blackwell late of your bailiwick you cause to be made the Sum of One hundred and Seventy Six dollars with Interest thereon at the rate of Six per cent per annum from the 22d day of November 1815 till paid which Lestin T. Bell assignee of Benjamin R. Pollard late in Our Shelby Circuit Court recovered Against him for debt and interest Also $6.09 1/2 Cents which in the Same Court was adjudged to the said Lestin T. Bell assignee as aforesaid for his costs in that Suit Expended whereof the said David Blackwell is convict as appears to us of record, and that you have the Same before the Judge of Our said Court at the Courthouse in ShelbyVille On the Rule day to be held in the Clerks Office On the Saturday Suceeding the 3 Monday in August next to render unto the said Lestin T. Bell Ass. of the debeet interest and cost aforesaid. And have then there this writ, Witness John Nowland Clerk of Our said Court this 16 day of July 1817. And in the 26the year of the Commonwealth,
John Nowland |
| Order of Atto to Receive paper | I do testify that by order of the plaintiffs atto notes on the Bank of Kentucky or its branches or notes on Any other incorporated |
| 6. contd |
bank of this State or notes on the treasury of the United States will be accepted in discharge of the Whole of this Execution Attest John Nowland ClkUpon which the Sheriff of said County made the following return towit Came to hand 19 July 1817. No property found within may [sic] bailiwick whereby I can Satisfy this Execution or any part thereof Geo. Robertson DS for Wm Taylor SSC |
| Casa &d | And Afterwards, towit On the 24 day of March 1819 a Capias ad satisfaciendum issued therein which read as follows Towit. The Commonwealth of Kentucky to the Sheriff of Shelby County Greeting We Command you to take David Blackwell if he be found within your bailiwick and him Safely Keep So that you have his body before the Judge of Our Shelby Circuit Court at the [–?–] day to be held in the Clerks Office On the Saturday Suceeding the 3 Monday in May to Satisfy And pay Lestin T. Bell the Sum of One hundred and Twenty Six dollars with Interest thereon to be computed After the rate of Six per Cent per Annum from the 22 day of November 1815 until paid which the said Lestin T. Bell Late in Our said Court recovered against him for debt Also $6.55. which in Our said court was adjudged unto the said Lestin T. Bell for his |
| 7. contd |
Costs in that Suit Expended, whereof the said David Blackwell in Circuit as appears to us of record, and have then there this writ Witness Samuel Levis Clerk of our said Court this 24 March 1819, and in the 27 Year of the Commonwealth
Saml Levis Upon which the Sheriff made the following return towit ~ Ben R. Pollard DS for Samuel Tineley SSC. |
| Sci~ Fa~ & Retn |
And afterwards towit On the 27th day of May 1819 the Plaintiff sued Out of the Clerks Office of the Court Aforesaid a Sciri facias Against Cuthbert Bullett the Special bail of the Defendant Blackwell, which is in the [mins?] and figures following towit ~ The Commonwealth of Kentucky to the Sheriff of Shelby County Greeting, whereas upon a Capias ad respondendum which issued from the Clerks Office of the Shelby Circuit on the 31 day of December 1816 in favor of Lestin T. Bell Assignee of Ben R. Pollard Against David Blackwell for $176. upon which the Sheriff of said County was directed to take Special bail Cuthbert Bullett by his Certain Endorsment bearing date the 20 day of January 1817 made upon said Capias did acknowledge himself to be Special bail for said defendant David Blackwell whereby he undertook and bound himslef that Should the said David Blackwell be made Convict in the said Suit |
| 8. Contd |
that he would Satisfy and pay the Condemnation of the Court or render his body to prison in Execution for the Same or on failure thereof that he the said Cuthbert Bullitt would do it for him, And whereas Afterwards towit~ at a Circuit Court Continued and held for the County Aforesaid at the Courthouse in the Town of Shelbyville on the 27 day of February 1817 the said Lestin T. Bell recovered a Judgment Against the said David Blackwell for the said Sum of One hundred and Seventy Six dollars with interest thereon to be Computed after the rate of Six per centum per annum from the 22d day of November 1815 until paid Also $6.55 which in Our said Court was adjudged unto the said Lestin T. Bell for his costs by him a[bout?] his Suit in this behalf Expended, and whereas On the 16 day of July 1817 a Fire facias issued from the Clerks Office Aforesaid, against the David Blackwell for the amount of the said Judgment upon which the Sheriff of said County returned, ‘No property found within my bailwick whereby I Can Satisfy the within Execution or any part thereof~ [signed] Geo. Robertson DS For William Taylor SSC, And On the 24 day of March 1819 a Capias Ad respondism issued for t’he amount of said Judgment upon which the Sheriff of said County returned Not found, the defendant David Blackwell being no inhabitant of my bailiwick, Nevertheless Execution of the said Judgment Still remains to be made |
| 9. Contd |
as by the insinuation of the Said Lestin T. Bell we are informed, We therefore Command you to Summmon the said Cuthbert Bullitt to appear before the Judge of our Shelby Circuit Court at the Court house in the town of Shelbyville On the first day of Our next June Term to Show Cause if any he has or Can Show, why the said Lestin T. Bell Execution against him for the amount of the debt interest and Cost aforesaid may not have if to him it seems Expedient. And have then there this writ Witness Samuel Levis Clerk of Our said Court at his Office, this 27 day of May 1819. And in the 27 year of the Commonwealth
Saml Levis Came to hand 26 May 1819 And Executed the Same day on the within named Cuthbert Bullett, Benj. R. Pollard DS for Sam Tinsley SSC |
| Bond for Costs orderd |
And afterwards towit at a Circuit Court Continued and held as aforesaid at the Courthouse in the Town of Shelbyville On Thursday the 1st day of July 1819. Came the parties by their attornees And thereupon James L. Whitaker Came into Court and Entered into bond as Security for Costs for the Plaintiff which is Approved &c And ordered to be filed, And which in the words and figures following towit, Know all men by these presents that we Lester T. Bell and James L. Whitaker do promise to pay to Cuthbert Bullett and all the |
| 10. Contd |
Offices of the Shelby Circuit Court the Sum of $100. Current money the payment of which well and truly to be made we bind Ourselves Our heirs &c Jointly & Severally by these presents Sealed and dated July 1. 1819. The Condition of the above Obligation is Such that whereas Lestin T. Bell a nonresident has Sued Out of Clerks Office Shelby Circuit Court a Scifa ag[ains]t Cuthbert Bullett Special Bail for David Blackwell, now Should the said Bell or Whitaker Satisfy and pay all cost that may accrue in Consequence of Commencement And prosecution of said Suit in Case he Should be Successful, then the above Obligation to be void, Otherwise to remain in full force and virtue.
Lestin T. Bell by {seal} Attest W. Jennings. J.L. Whitaker {seal} And on motion of the defendant, Affidavitt being made it is ordered that this cause be continued until the next term |
| Judgt for &c Costs &c |
It is therefore Considered by the Court that the plaintiff recover against the defendant his Costs at the present term Occasioned by reason of this Continuance and may have Execution therefore &c And afterward towit at a Circuit Court |
| Pleas &c | Continued and held as aforesaid, on Thursday the 30th day of September 1819 Came the defendant by his attorney and filed two Special pleas herein, which are as follows, towit, |
| 11. Pleas &c |
ads } Bell} And the deft By his atto Came and Says that there is no Such record as is on the said Scire facias mentioned, And this he prays May be inquired of By the Court & the Plaintiff likewise,Plea 2d And for further plea in this behalf the defendant Says that he the said Plaintiff, his action aforesaid Against him the said deft Ought not to [-?-] & maintain, Because he Says that he the said Plaintiff nevertheless fore[-?-] to prosecute a Capias ad Satisfaciendum, on his Judgment Obtained in his favor Against him the said David Blackwell in the Sciri facias mentioned for a long space of time after the rendition of the said Judgment, viz, for the Space of two years & upwards, during all which time he the said Blackwell remained & resided in the limits of the said County of Shelby, liable to arrest the Execution of him the said Plaintiff and fully able to have discharged the amount of the Plffs said Judgment, And that Since that time, viz, on the [blank] day of [blank] he the said Blackwell in a public and open manner departed from the said County of Shelby & removed himself to the State of Illinois, whereby this deft is Prevented, By the [Negli]gence & Giving day on the part of him the said Plff from complying with his undertaking as Special Bail for him the said Blackwell By Surrendering his body to prison which he could |
| 12. Contd |
& would have done had a writ of Capias ad Satisfaciendum Been Sued Out in proper time, By him the said Plaintiff And this he is ready to verify wherefore he prays Judgment &c
J. Talle atty for ~ Deft And afterwards towit at a Circuit Court Continued and held as aforesaid at the Courthouse in the town of Shelbyville On |
| order &c & Demurer |
Tuesday the 29th day of February 1820 Came the Parties by their attornees, and to the Plea of the defendant herein the Plff by his attorney filed a demurer, which is as follows towit! And the Plff by his atto Came & says that for anything by said Deft in his Second plea set forth to or Carried & precluded from maintaining his Action afd Ought not, because he Says that the said Plea and the matters therein Contained are not Good & Sufficient in Law to bar the Plffs Action, nor is he bound by the laws of the land to answer thereto & this he is ready to verify &c Wherefore for want of sufficient plea he prays Judgment &c
Whitaker for Plff And the defendant a Joinder thereto, wherefore argument was heard and the Court being Sufficiently advised &c It is Considered that the recognizance of Special bail as appears in the Scire facias and record herein filed is insufficient to charge the defendant &c and therefore the Plaintiff Cannot Sustain his action against the defendant, It is therefore considered by the Court that |
| 13. Contd |
the defendant recover againt the Plaintiff his costs by him about his defence herein Expended, and may have Execution &c~ |
| Mo to Reconsider Judgment |
And afterward towit at the Circuit Court Continued and held as aforesaid On Wednesday the 1st day of March 1820. Came the Plff by his attorney and moved the Court to reconsider the Judgment herein rendered, which motion is ordered to be laid over &c~ And afterward towit at the Same Term Continued and held as aforesaid On Friday the 3d day of March 1820~ Came Again the parties by their attos and the Court being Sufficiently advised of and Concerning the Plffs motion to reconsider herein, It is considered that Said motion be overrated, and that the defendant recover his costs &c~ |
| Opinion Court of Appeals |
And afterward towit at a Circuit Court Continued and held as aforesaid On Monday the 26th day of June 1826 Came the Plaintiff by his atto and filed herein an Opinion of the Court of Appeals which is in the word and figures following towit
Court of Appeals Office April 19th 1826 Lestin T. Bell Plaintiff } Upon a W E to a
against } Judgment of the Shelby Ct Court
Cuthbert Bullitt Defendant}
The Court being now sufficiently advised of and Concerning the premises [promises?] delivered the following Opinion Towit |
| 14. Opn Contd |
Bell brought on Action of debt in the Shelby Circuit Court Against Blackwell. The Capias which required Bail was Executed upon Blackwell And by an Endorsment thereon in the form required by the Act of Assembly upon that Subject Bullett became Special bail.
Judgment was recovered By Bell but the amount thereof was not made by a writ of Scire facias which issued against the Estate of Blackwell, nor was Blackwell taken under a Capias ad Satess fac[i]endum which issued against him upon the Judgment, nor was he Summonded in Custoday by his bail or Otherwise. To Subject the bail to payment of his Judgment, Bell Sued Out a S[c]ire facias against Bullett upon his recognizance of Special Bail.Bullett Appeared to the Scire facias |
| 15. Opinion Contd |
demurer was intended to apply, the record Contains no Certain information, The demurer was Joined by Bullett And after a Suggestion of the filing of the demurer and Joinder the record S[-?-] Whereupon Argument was heard And the Court being Sufficiently Advised &c It is Considered that the recognizance of Special bail as appears in the Scire facias And record herein filed in insufficient to charge the defendant &c And therefore that the plaintiff Cannot Sustain his action against the defendant ~ It is therefore Considered by the Court that the defendant recover against the plaintiff his Costs by him About his defence in this behalf Expended &c To reverse that Judgment this writ of Error prosecuted by Bell. The Only difficulty that we have had to encounter in Our reflection upon the Present Contest Grows out of the defective State of the record. Whether we look to the Judgment of the Court or advert to the pleadings it is equally impracticable to ascertain to which of the pleas the demurer was intended to apply. Neither the Judgment or demurer Contains the Slightest Allusion to Either plea on Exclusion of the Other nor is the uncertainty as to the plea in any degree removed by the entry which was made by the clerk upon the record when the pleadings were filed. But apply the demurer to Either plea it is plain that the Judgment rendered by the Court Cannot be maintained |
| 16. Contd |
Considered with reference to the first plea it would no doubt have been Correct to Annule the demerer for that plea Goes to deny the Existence of Any Such record as that referred to in the Scira Facias and if in fact there be no Such record the Scire Facias unquestionably Cannot be Sustained and of Course the demerer Should be overruled. But the Judgment of the Court instead of Simply Overruling the demurer [implies] a decission against the Sufficiency of the recognizance of Special bail Mentioned in the Scire facias to Charge Bullett And that Owing to the insufficiency of the recognizance And not from Any defect in the first plea the Scire facias was adjudged not maintainable. In that Opinion however We Cannot Concur, The Scire facias is in the usual form And Contains nothing which according to the most, Strained and rigid Contraction Can warrant the Conclusion ~ unfavourable to the Sufficiency of the recognizance And were we at liberty to look into the record of the original action brought by Bell against Blackwell for the purpose of Examining as the [Court] below Seems to have done We should have no hesitation in pronouncing it to Contain Every essential acqui[tile?] to a value recognizance But in deciding upon the demurer it was neither Corrector proper for the Court to Search Out and decide upon the recognizance contained in the Original record. It was doubtless incumbent |
| 17. Contd |
upon the Court to Explore the whole of the record in this case And if the record of the Original Action [found] a part of this it would have been Strictly Correct to decide upon the Sufficiency of the recognizance therein Contained, But to [form?] a part of this record the Original record Should have been made So by bill of Execution or Otherwise, And as that appears not to have been done, the Court Ought not to have noticed or in their decision to have been at all influenced by anything in that record.In deciding upon the demur, therefore though it were admitted to Apply to the first plea, the Court unquestionably erred in adjudging the recognizance insufficient to maintain the Scire facias ~ And were the demurer admited to Apply Exclusively to the Second plea the Error of the Court would be Still more palpable. Every Objection which lies to the Judgment when Considered in reference to the first plea would not only apply with Equal force when applied to the Second plea but moreover the Second plea itself is intrinsically bad. By that plea Bell is alledged to have failed to Sue Out a Capias ad satis faciendum against Blackwell for whom Bullitt was Special Bail for two years after he had recovered Judgment and it is presumed that By pleading a matter of that sort Bullitt Supposed that after the lapse of two years from the date of the Judgment if in that time no Capias adsatisfaciendum issued there can be no recovery by Scire facias against |
| 18. Contd |
the bail. But according to no principal Can Such a Supposition be indulged. A Capias ad satis faciendum Must issue to charge the bail, but there is no law limiting the time in which it must issue, to have that Effect If therefore the demurer in terms had been made to relate exclusions to the Second plea as that plea Contains no Sufficient defence to the Scire facias the Judgment of the Court would have been incorrect, not only so far as it goes to pronounce the recognizance of Special bail invalid, but also in not Sustaining the demerer ~ Considered then in relation either to the first or second plea it was evidently incorrect to adjudge the recognizance insufficient to maintain the Scire Facias ~ But we have said the first plea contains a good defence to the action and thought it may have been incorrect to decide against the validity of the recognizance it would certainly have been proper to Sustain the plea, and as the legal effect of adjudging the plea Good would Go to defeat the Scire facias the question arises whether or not the Judgment which was rendered by the Court Should be reversed at the instance of Bell, who is Plaintiff in the Scire facias, according to former adjudications of this Court, the Judgment under Such circumstances would not regularly be reversed if the record Contained any thing Going to show that the demur was intended to Apply to the first plea, Only, and was So treated by the Court below |
| 19. Contd |
But there is nothing in the record from which Such an inference Can be drawn, To the Contrary as we have alredy Said it is utterly impossible to Collect from the record which plea the demurer was intended to Apply. It being therefore uncertain as to which plea the defendant intended to demur, the Judgment which was predicated upon the erroneous notion as to the invalidity of the recognizance of Special Bail Cannot be Sustained by drawing in aid the Goodness of the first plea, as to which no question may have been made in the Court below ~ It is therefore considered by the Court that the Judgment be reversed and the cause remanded to the Court below and further proceedings there had not inconsistant with this Opinion which is ordered to the Certified to said Court A Copy Test. J. Swigert C.C.A. |
| Order. Redocketing Suit |
Whereupon it is ordered that this be replased upon the dockett & Continued until the next TermAnd afterwards towit at a Circuit Court Continued and held as aforesaid at the Courthouse in the town of Shelbyville On Wednesday the 27th day of September 1826 Came the parties by their attornees and the Court being advised &c upon the Plaintiffs demerer to the 2d plea it is considered that said plea is insufficient and the demerer thereto be |
| 20 Judgment Contd |
Sustained and to the defts first plea ‘nul tiel’ record the plff filed a replication which is as follows towit’And the Plff by his Attorney Comes &c & for replication to first plea & Says that there is Such record as in the said Scifa mentioned and brings the Same here into Court &c Wherefore he prays Judgment &c
Whitaker for Plff ‘ And the Deft a joinder which was Submitted and the Court having inspected the record it is considered that there is Such a record as in the Scire facias mentioned, It is therefore Considered by the Court that the Plff have Execution Against the defendant for the Sum of one hundred and Seventy six dollars with interest thereon at the rate of Six per Centum per annum from the 22d day of November 1815 & Six dollars & fifty five Cents Costs the debt interest & Costs in the record and Scire facias mentioned And also his Costs by him About his Suit hereine Expended and the Deft in mercy &c ~ Costs of Sci Fa $8.92. A Copy Att [signed] Saml Levis C. Commonwealth of Kentucky Shelby County and Circuit Sct I Samuel Levis Clerk of the Shelby Circuit in the Commonwealth aforesaid do Certify that the above and |
| 21 Judgment |
foregoing 20 pages Contain a full and Complete transcript of all the record and proceedings had in the foregoing Suit between the parties therein named as fully as the Same remains in My Office
In Testimony Whereof I have hereto Alphabet Preamble – – – – – – -1 Declaration- – – – – -1.2. Capias and Sheriffs return 3. Special Bail – – – – -3. Judgment &c- – – – – -4. Note & assignment- – -4. Execution & Order to secure paper – 4.5.6. Casa &c- – – – – – – -6.7. Scire facias & Return-7.8.9. Bond for Costs &c- – -9.10 Judgment for Costs &c pleas &c – 10.11.12. Order &c & demurer – -12.13 Motion to reconsider Judgment – 13. Order overruling motion – 13. |
| 22 Contd | Opinion Court of Appeals – 13.14.15.16.17.18.19.Order Redocketing Suit- 19.
Judgment- – – – – – – – 19.20. Execution [—?] Bullitt – 23 Sheriffs return – – – – 24 Repl Bond – – – – – – – 24.25. Danl Mayes |
| 23 Exn &c | The following is the Execution which issued on the foregoing Judgment with the Endorsment & Sheriffs return thereon towit~ The Commonwealth of Kentucky to the Sheriff of Shelby County Greeting We Command you that of the estate of Cuthbert Bullett late of your bailiwick you Cause to be made the Sum of $176. with Interest thereon at the rate of Six per Centum per annum from the 22d Novr 1815 until paid which Lestin T. Bell lately in Our Shelby Circuit Court recovered against him for debt & Interest also $6.55 cents which in the Same Court was adjudged to the said Lestin T. Bell for his Costs in that Expended whereof the said Cuthbert Bullett is Convict as appears to us of record, and that you have the Same before the Judge of Our said Court at the Courthouse in Shelbyville, on the rule day to be held in the Clerks Office on the Saturday Succeeding the third Monday in December next, to render to the said Lestin T. Bell of the debt interest and costs aforesaid aad have then there this writ Witness Samuel Levis, Clerk of Our said Court the 10th day of October 1826 and in the 35th year of the Commonwealth Saml Levis C Cause of action accrued After 1st June 1824. Saml Levis C |
| 24 Shffs Retn |
Came to hand 10th Octr 1826. Levyed & Replevyed with Joseph L. Fore Security, bond herewith returned
Geo. Robinson DS for |
| Repl Bond |
Which Replevin Bond is as follows towit ~ Know all men by these presents that we Cuthbert Bullett & [Lestin T. Bell’s name erased] are held and firmly bound unto Lestin T. Bell in the Sum of $599.04 1/2 Cents dollars to the payment of which well and truly to be made, we bind Ourselves Our heirs Our Executors and administrators, firmly by these presents Given under Our hands and Seals this 27th day of October 1826. Whereas a write of Scire facias hath issued from the Office of the Circuit Court of Shelby County, in the name of the said Lestin T. Bell, against the estate of the above bound Cuthbert Bullett for one hundred & Seventy Six dollars debt with Interest from the 22d November 1815 Six dollars & fifty five cents costs, dated the 10th day of October 1826 returnable to the December rules of said Court, next ens[u]ing directed to the Sheriff of Shelby County which hath been levied On the estate of the said Cuthbert Bullett by George Robinson deputy for Seth Cook Sheriff of Shelby County, And the said Cuthbert Bullett prayed a replevin which is Granted him and his estate restored. On entering into this bond with the said [blank space] Security |
| 25 Contd |
Now the Condition of the foregoing Obligation is Such that if the above bound Cuthbert Bullett or any of them do well and truly pay the said Lestin T. Bell the afsd Sum of One hundred & Seventy Six dollars debt, one hundred nine dollars & Eighteen Cents interest Calculateed up to the present date Six dollars & fifty five Cents Costs & Seven dollars twenty nine and One fourth Cents, the Sheriffs half Commission, and fifty Cents for taking this bond, amounting in the whole to two hundred ninety nine dollars, fifty two & one half Cents, within three months from the date hereof with interest thereon at the rate of Six per centum per annum then this Obligation to be void, Else to remain in full force and virtue – $299.52 1/2
Cuthbert Bullett {seal} Teste Geo. Robinson DS for Commonwealth of Kentucky I Samuel Levis Clerk of the Shelby Circuit Court in the Commonwealth Afd do Certify that the above & foregoing Execution and replevin bond are truly copied from the Originals filed in my Office Att Saml Levis C |
[reverse side of Document 3]
vs
David Blackwell &cClerks fee $6.50
Paid by John F.
Willett Att Saml Levis C
[Final page – a cover jacket]
Execution A Copy
[End final page]
Assumpsit, Circuit Court Case File 3590, St. Clair County, Illinois]
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