Chancery Record, Court Case, George W. Humphrey vs. William Rothwell, Albemarle County, VA Contributed for use in USGenWeb Archives by Valerie Ward valerieak1@hotmail.com (An effort has been made to faithfully transcribe these records, but errors are still possible.) *********************************************************************** USGENWEB ARCHIVES NOTICE: All documents placed in the USGenWeb Archives remain the property of the contributors, who retain publication rights in accordance with US Copyright Laws and Regulations. In keeping with our policy of providing free information on the Internet, these documents may be used by anyone for their personal research. They may be used by non-commercial entities, when written permission is obtained from the contributor, so long as all notices and submitter information are included. These electronic pages may NOT be reproduced in any format for profit. Any other use, including copying files to other sites, requires permission from the contributors PRIOR to uploading to the other sites. The submitter has given permission to the USGenWeb Archives to store the file permanently for free access. http://www.usgwarchives.net *********************************************************************** Chancery Case 42 1852-011CC To the Judge of the Circuit Superior Court of Law and Chancery for Albemarle County. The Bill of Complaint of George W. Humphrey of said county respectfully represents. That about the day of Febr 1848 Wm L Rothwell and William Rothwell, his father, executed their joint bond payable to your orator for the sum of $286 upon a credit of twelve months. The said Wm L Rothwell being principal and the said Wm Rothwell, his father being the surety in said bond. And about the day of Febr 1849 the said Wm L Rothwell executed his individual bond, payable to your orator for the sum $11.44 upon a credit of twelve months each of said bonds at the time of its execution being delivered to your orator. Your orator is unable to state on what day of the month either of said bonds bears date. These bonds were held by your orator until the 12th day of January 1850 no part of either being paid. On the day last mentioned the said Wm. L Rothwell came to the mill of your Orator in said County with a__ in his hands and remarked to your Orator that he wished to take in his bonds ___ as will be observed the last and smaller bond was not then due and will not be due until sometime in February 1850. Your orator replied to him that the bonds were at his, your orator's dwelling house and they would have to be repair there to procure them. Thereupon the said Wm L Rothwell and your orator went to the said dwelling house which was a very short distance and upon getting there your ora__ got them from their place of deposit and handed them to the said Wm L Rothwell. He immediately pushed the larger bond in his pocket and asked for a slate and pencil with a view as your Orator supposed of calculating the amount of the respective bonds. The slate and pencil were furnished him about which time he put the second and smaller bond in his pocket and commenced, seemingly making a calculation on the slate. He suddenly ceased using the slate and asked your Orator how much plank of his, the said Wm. L Rothwell, he , your orator, had used at your orator's mill. He, the said, Wm L. Rothwell, having sometime pervious hauled timber to said mill to be sawed in to plank. Your Orator replied to his said inquiry that he could not with certainty say, but he supposed there was some 450 feet, yet if he, the said Wm L. Rothwell, thought there was more, he your orator was willing to settle and allow him for the quantity he, Wm L Rothwell, might allege to have been and pay him either in money or plank as he, the said Wm. L. Rothewell might prefer. The said Wm L Rothwell, as if seeking a difference and making a pretended difficulty ___ of a plank and its amount, to the surprise of your Orator indicated a real or affected excitement, rose from his seat _____ he would settle in no such way, that he could prove the amount or quantity and instantly seizing his hate and gun started away. Your Orator greatly amazed at conduct so strange and unaccountable demanded of him a return of the said bonds or their payment. The said Wm L Rothwell made no reply but continued on his way and tho again called to by your Orator and the demand for the bonds or their payment repeated, he went off carrying along said bonds. Your Orator thus deprived of his bonds and of the evidence of the indebtedness of the said Rothwells to him finds himself (except the possession of said bonds by your Orator within a very short time before the sd day of Jany last) without testimony of the facts, herein before set forth, save a discovery from them, no one being present on the occasion alluded to at your Orator's house, but two of your Orator's children, one a boy about 6 years of age, too young your Orator supposes to testify and the other a boy about twelve years of age who from physical infirmity would hardly be deemed a competent witness, even were your Orator inclined in such a case to introduce in his behalf members of his family to testify. Besides which, said children may not have been present during the entire interview between your Orator and the said Wm. L. Rothwell. Your Orator as stated being without testimony to sustain (except the fact of the possession by him of sd bonds within a very short time prior to the sd day of Jany last) the allegations of his Bill except through a discovery from the said Rothwells, in tender consideration whereof and for as much as he is altogether remed___ in the premises at common law and cannot be relieved therein but by the favorable aid and assistance of a Court of Equity, where matters of fraud and of this nature are properly to be discovered and enquired into and the benefit of the answer to your Orator; to the end therefore that the said Wm. L. Rothwell and Wm Rothwell be made defendants hereto and may true, distinct and perfect answer respectly make to all and singular the matters and things herein thereby charged, and that in as full and ample a manner as if the same were here again particularly repeated and interrogated. That the said defendants may set forth and discover whether they did not execute and deliver to your Orator the said bond of the day of Feby 1848, for $286, due and payable twelve months after its date and that they may set forth and discover the true day of the month on which said bond was actually executed or bears date and if not executed in the month and year and for the sum and on the credit as herein by our Orator alleged, that they may set forth and discover what is the true day, month , year, sum and credit upon and for which it was actually executed. That the said Wm. L. Rothwell may set forth and discover whether he did not on the day of February, 1849 execute and deliver to your Orator the bond for $11.44 due and payable twelve months after its date that he may set forth and discover the true day of the month on which the said last bond was executed or bears date and if not executed in the month and year and for the sum and on the credit as herein by your Orator alleged, that he may set forth and discover what I the true actual day, month, year, sum and credit upon and for which it was executed. That the said defendants and each of them may be required to set forth and discover whether either of them has at any time paid on said bond for $286 any ____ whatever and if either of them pretend to allege any payment thereof, they or the one so pretending, may be required to set forth and discover when and where and what sum or sums were paid and hot the same was paid, also, who was then and there present and in what money such payment or payments were made? Whether in Silver, gold or bank notes? If in the latter, let him or them say on what Bank of Banks said notes were? their size and des__ty and when, how and from whom such Bank notes were procured? That if the said Wm. L. Rothwell shall pretend or allege that he has paid the second and last bond for $11.44 falling due in Feby 1850, that he be required to set forth and discover the same facts and afford the same information and discovery ____ing said payment or payments towards said last mentioned bond as are sought by the interrogatories concerning any payment or any sum or sums of many towards the said bond for $286, as if said interrogatories were here again repeated touching said bond for $11.44 and that he particularly and plainly set forth and describe why and for what reason and how it came that said last mentioned bond was paid either in part or whole before it became due. That the said Wm. L. Rothwell may set forth and discover whether he was not at your Orator's mill on the said 12th day of January 1850? Whether he did not then and there say to your Orator, he wished to take in said Bonds? Whether he and your Orator did not thereupon repair to the dwelling house of your Orator, being but a small distance off with the view of getting said Bonds? Whether after reaching said dwelling house, he , your Orator, did not procure said bonds and place them in his possession? Whether he did not thereupon put said bond of $286 in his pocket? Whether he did not then ask you orator to furnish him with a slate and pencil? Whether his request was not complied with? That he the said Wm L Rothwell may say and discover for what purpose he wanted said slate and pencil? Whether he did not apparently commence figuring on said slate? What was the figuring or calculation he was making and for what object? Whether about the time he was finished with said slate and pencil, he did not put the second and smaller bond I n his pocket? Whether he did not make the inquiry touching the plank herein before set forth? Whether you Orator did not make him the reply concerning said plank herein before mentioned? Whether he the said Wm. L. Rothwell did not thereupon repeat the words or the substance of them, already herein before charged and immediately go off carrying along the said bonds? Whether your Orator did not more than once demand of him the immediate return of said bonds or their payment? and whether in utter de__ and disregard of the rights of your orater, he did not persist in withholding and retaining said bonds? That he may set forth the amount of said plank as claimed by him when if approximat__ at all towards the true quantity, well, as you Orator alleges fall far short on value of the amount of said bonds. That ____ the said Wm. L. Rothwell pretend or allege that he did not on the 12th day of Jany 1850 come to your Orator's mill and from thence go to the dwelling house of your Orator for the purpose and object as herein before alleged and charged by your Orator, let him set forth and discover for what other purpose and object he did come to said mill and particularly let him declare and discover why and for what ob___ or ______ he and your orator went from __ mill to the said dwelling house. That the said Wm L Rothwell may be required to produce and file with his answer, the said two bonds and that the court will by its decree, require him to account with and pay to your Orator, the amount __ the said second and smaller bond of $11.44 with interest which may have accrued therein and __ by its decree, require the said defendants, William L. Rothwell and William Rothwell to account with and pay to your Orator the amount of the said bond of $286, with all interest which may have accrued on it and that your Orator any be further and otherwise __ lieved in the said premises according to equity and good conscience and as the nature and circumstances of his case shall require. Set a subpoena ____ South halls B __ Albemarle County, to wit, George W. Humphrey came before me a justice of the peace for said County and made ___ that the facts set forth in the foregoing bill are true. Given under my hand this __ day of Feby 1850 William ___ Bibb JP. The answer of William L. Rothwell to a Bill of Complaint exhibited against him and another by George W. Humphrey in the Circuit Superior Court of Law and Chancery for the County of Albemarle. The respondent reserving the full benefit of all proper exceptions to said Bill, answers and says, that regarding this Bill as the mere vehicle of Danderous imputations upon him very poorly and insufficiently disguised under the affectation of seeking a discover of him. He finds it difficult so far to restrain his feelings of indignation and contempt as to be able to state with composure all his transactions with the complainant in any wise connected with the remarkable tale, which he has fabricated. Lest, however any want of fullness of detail or manifestation of heat on his part should be interpreted to his disadvantage, he has determined so to discipline his feelings as to state with great minuteness and without passion the train of circumstances, conducting the complainant to this step. By a plain and simple statement of facts, he proposes to develop the shameless scheme of attach upon him, formed and declared by the Complainant in a moment of passion and now deliberately pursued in this Bill. Upon those facts, he can well afford without the aid of invective or abuse, simply to leave the Complainant to the reprobation he deserves from all honest men. In the beginning of the year 1848 your respondent asked the complainant for the loan of one hundred and fifty dollars. He said he had that sum and more and that if your respondent chose to take of him the $150, he must also take any excess he might have on hand and give him 10 percent a year. Your respondent assented to the proposal and on the 7th day of Jany 1848 the complainant came by appointment to his house bringing the money he was to loan him. The sum, he proposed to lend was $260, (two hundred and sixty dollars). Your respondent calculated the interest at the stipulated rate, for one year and for fear of some inadvertent error, handed his calculation to another person who was present. His computation of the interest, $26 (twenty six dollars) for the year being found correct, he executed a bond for the sum of $286, (two hundred and eighty six dollars) payable to the Complainant twelve months after date and observed to him that his father would also, on presentation sign it as his security. This occurred as before stated on the 7th day of January 1848, the date of the bond in question. This is the only bond your respondent ever gave the complainant. All that he says of a bond due him from the respondent for the sum of $11.44 (eleven 44/100 dollars) falling due on the day of Feby 1850, is a pure fabrication. Your respondent denies all knowledge of such bond and if he complainant exhibited a bond purporting to be such, it was of his own manufacture. It is not possible that if such bond existed, it could have so utterly escaped the recollection of your respondent. In the month of Decr 1848 the respondent collected of Wm. P Turman? the sum of $250, which he was owing him and of C. P. McKennie about fifty dollars for pork sold him. Intending the larger part of this money to meet his bond to the complainant and wishing to stop interest after the lapse of the year, your respondent waited on the Complainant and told him that he had enough money to play off his bond, but having had the misfortune to lose a horse he desired to retain a part of it to buy another, but that he would be glad if he would take $200 (two hundred dollars) of it. He declined however, to take it, saying he did not wish to receive a part without the whole, that he had no present use for it and that your respondent had better keep it till he was ready to pay the whole. After this, the respondent paid away $30, (thirty dollars) of this money in the purchase of a mare from Wm. A. Ramsey as at the price of $65 (sixty five dollars) $30 cash and his bond for the balance of $35. ___ This purchase was made, the respondent was deferring the discharge of the bond to the Complainant in pursuance of the agreement aforesaid, not knowing how much he might find it necessary to use in the purchase of a horse. Your respondent hastened to replace the sum paid Ramsey, so that he might be able to discharge his bond aforesaid. To this end, he borrowed from Wm. P. Yarman? at April Court 1849, the sum of $30 (thirty dollars). On the 6th of April thereafter your respondent on his return from his father's met the Complainant between his grist and saw mill, who then asked him to pay this bond. He told him, he had the money at home and if would go with him he would pay him. The complainant objected, it was too late in the evening for that and asked him where he would be at work in the morning. When told in reply that the respondent would be sewing oats on Morris Powell's bottom, which he had rented, the complainant asked him to bring the money with him and said he would meet him there after an early breakfast. Accordingly the net morning the 7th of April 1849, the respondent rolled up $300 (three hundred dollars) being in bank notes in a piece of black paper and put it in his purse. After reaching the Bottom the complainant met him there. The bond was produced, the calculation of interest made for the 3 mons elapsed from 7 Jany 1849 when it was due which calculation was made by the respondent on the envelope of the bank notes. This interest at the note of 10 percent per annum being found to amount to $6.50 (six 50/100 dollars) the respondent paid to the complainant the sum of $292.50 (two hundred and ninety two 50/100 dollars) and took in the bond, relying as is usual on the possession to supply the place of a formal receipt. He carried the bond home, and filed it away as is his habit, among his papers. Your respondent knows not what became of the loose paper on which the calculation of interest was made, but presumes it was thrown away as valueless. During this settlement, the brother in law of your respondent, William T. Yarborough, was at some short distance from them harrowing in the oats that had been sewn, but not in a situation as he is informed to observe more than that they were making some calculations and a settlement. This bond ever after remained in the custody of your respondent. So far every thing had transpired smoothly. There was no cause of ______ difficulty or dispute with the complainant. About Nov or Dec 1849, however, the respondent went to the saw mill of the complainant with the view of exchanging some plank which he had had sawed there, for other plank of a different description. As far back as Jany 1848, the respondent had hauled there six long 18 ft in length and varying from 2 ft to 2 ½ ft in diameter at the base for the purpose of being sawed into flooring. Having afterwards given up the idea of building the house for which he ordered this flooring, he left the plank at the mill or at least his part of it being one half of it, supposing it would always be ready at his call. On the occasion just indicated your respondent did not find the complainant at home, but went with his miller to ascertain if his plank was still on hand. He found it was not there and he appealed to the miller, to know what had become of it, who replied that he did not know whether Mr. Humphrey had used or sold it. Your respondent complained of this treatment and determined as soon as he could see Mr. Humphrey to make further inquiry into it and demand payment for it. This interview was casually brought about on the 12th day of January of the present year, rendered so memorable by the conduct and fictious of the complainant. On that day, the respondent had been fowling and on his return home in the evening the complainant's mil lay in his way. When he reached the saw mill, he saw there the complainant, his tow children mentioned in his Bill and a Black man. He seemed to be finishing his last saw log. The respondent turned in and after the usual salutation remarked to him that he seemed to be out of work. He relied yes! that he had sawed up every thing clean. He went on in rather a boastful way to speak of what he could do if his customers would only bring in their logs. That he could do their sawing on a moment's warming. About this time a boy came with a turn of corn, which led them both to move on in the direction of the grist mill. Having his claim for plank on his mind, the respondent said to him, "there is a little balance due me for plank, that has never yet been settled." He replied "there were three logs sawed for me." "I said no! there were six," he persisted however there were only three. The respondent then asked him how much he thought they would average to the log. He said he thought they would average 100 or 150 feet. Recalling the size of his logs as before stated and irritated by what he conceived so false an estimate, the respondent remarked petulantly "I intend to have pay for all my logs or for none, and that I was able to prove the logs I had hauled there." He said, that if I got more than he allowed I would have to get it by law. Provoked by this defiance I then said , " I considered that any man who had acted as he did in that matter, was dishonest and I looked upon him as a rogue." He replied that "if I was not cautious how I talked he would make me pay for it". I told him if he could make me pay, he was welcome to do it. I told him further, I was going straight home, would make out my account and would place it in the hands of an officer. I then started home, parting with him just in front of the door of his grist mill. When I had gotten off some five or six paces, he said "the money I loaned you, you can't prove that you paid it, and I intend to make you pay it at the risk of my life." I turned round and addressing him by such abasive epithets as his effrontery provoked (and which it would be scarcely decorous here to recall if he did not insist on so minute a discovery) said to him, "Yes! you sneaking, low life, scape gallows, scoundrel, you are mean enough to make me pay it a hundred times over, if you could." Thus ended this interview. The deep impression made on the respondent's mind, by the profligate audacity of the complainant's menace, has enabled him to recall the terms of their conversation with uncommon accuracy and he trusts that the literal ___ in which he has rendered this quarrel through a desire to meet all the complainant's requisitions for a full discovery will not be deemed to conflict with the gravity of these pleadings. The respondent went on his way home greatly ruffled and excited. He had no sooner entered his house than his countenance betrayed his excitement and the inquiries of this wife led him to a statement of the whole affair to her, his sister-in-law, and mother-in-law, who were all present. A suggestion that by possibility he might have lost or ____ the bond, led them to make a search. His papers were kept in a table drawer up stairs. Himself, wife, and sister-in- law, went up together and commenced together the search. The respondent took his pocket book, his wife a bundle of papers and his sister-in-law, another bundle for the purpose of making the proposed examination. His sister-in-law, in her bundle soon came across this bond. After reading it to herself she exclaimed "here is the bond" and read it aloud before passing it to the respondent. Thus, the respondent is fortified with impartial and irre____able proof of the false pretences and flagitious misrepresentations of the complainant. The respondent carried into effect his purpose? of warranty the complainant for the plank. He proved the delivery of six instead of three logs as the Complainant pretended and got a judgment for upwards of 70 feet for his half of the timber while the complainant falsely placed the whole product in plank at from 300-450 feet only. The Bond for the $286 paid off by the respondent is herewith exhibited marked (A) to be take as a part of this answer. It will be seen that the complainant's statement of its bearing date in February is false. After this minute statement of everything at all connected with the Complainant's fabrication it is almost needless for the respondent to add that the story of his going to his house, getting possession of the bonds, making calculations on a slate and then carrying off the bonds is a pure fiction, wholly and absolutely false. The foregoing narration __ is believed gives a full and explicit answer to all the complainant's interrogatories, save as to the Bank notes with which he paid off the $286 bond. At this distance of time, he cannot state of what bank they were nor precisely of what size. He believes they were all notes of Virginia Banks and that they were fifty and thirty dollar notes among them, though of course this is a mere impression. For fear, however, of some omission your respondent proceeding to answer the special interrogatories, says that it is false, that he ever executed or delivered to the complainant on the day of February 1849 or on any other day, his bond for #11.44 due and payable twelve months after dates, that it is false that while at complainant's mill on the 12th day of January last, he expressed any with to take in any bonds whatsoever, that it is false, that he and the complainant on that day repaired to the dwelling house of the latter with the view of getting any bonds whatsoever or for any other purpose, that it is false that the complainant at this dwelling house procured the bonds in question, or any other bonds and placed them in this respondent['s possession. That it is false, that the respondent did then put said bond of #286 in his pocket. T hat it is false, that the respondent on that day, either asked for, or used a slate in the presence of the complainant for any purpose whatsoever. That it is false, that he did on this or any other occasion procure from the complainant his bond for $11.44 payable on the day of Feby 1850, and put the same in his pocket without have first paid it. That it is false that the complainant on this day and occasion demanded of him the return of any bonds whatsoever. That it is false that the respondent at any time whatsoever persisted in withholding or retaining any bonds the rightful property of the complainant. These special negations, coupled with the general allegations of this answer suffice to display ____ fruitful the complainant has proven himself in fictions devised for purposes of revenge upon this respondent for the boldness with which he denounced his attempt to cheat him and for the determination to maintain and have his rights in small as well as great matters. The character and standing of the complainant among his neighbors justifies the respondent __ the supreme contempt with which he looks down upon this impotent attempt to asp___ his character with these foul charges of the most audacious fraud. While he is advised that his explicit denial of the bill will entitle him to its dismissal apart from all testimony, he desires to reserve for future consideration the feasibility of availing himself of the institution of this suit, to place among the records of this cause the proofs he may command to sustain his allegations and to prove the complainant's capability, from his general character of such _____ and falsehood. And having fully answered the respondent prays to be hence dismissed. Albemarle County This day personally appeared before me a Justice of the Peace for said County, Wm. L. Rothwell party to the foregoing answer who made oath that its allegations are true. Given under my hand this fourth day of March 1850 John Cochran JP. Geo W. Humphrey vs. Wm L Rothwell In Chy This cause came in this day to be heard on the Bill and Answer with general _______. Thereto and was argued by Council. On consideration whereof the Court doth adjudge ____ and decree that the Plaintiff Bill be dismissed and that said Plaintiff pay unto the defendant his costs by him about his emit in the behalf expended.