Appeals Court - Cope v. Carter - Frederick County, Virginia *********************************************************** Submitted by: Charolette "Chocy" Brown Date: 30 April 2006 Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm *********************************************************** “Frederick County, Virginia Superior Court Order Book 1804-1812” Page 148 COPE V CARTER Appeal In the record of proceedings in the County Court of Frederick among others is the following: The Commonwealth of Virginia to the Sheriff of Frederick County Greetings you are hereby commanded to take Samuel COPE and William BARKET/BARKEL (?) if they be found either you bailiwick and them safely keep so that you have their bodies before the Justices of our said County Court at the Court house on the Monday before the first Tuesday in June next to answer Arthur W. CARTER of the plea of trespass on the case Damage four hundred dollars and have them there this writ Witness James Keith clerk of our said Court at the Court house aforesaid the 21st day of May 1801 and in the 25th year of the Commonwealth. Ja KEITH ----------------------------------------------------------------------- Mem’ for breach of contract no bail required. DANGEAFIELD pg ----------------------------------------------------------------------- Sheriffs return Executed on COPE and BARKEL no inhibitorst of my bailwick Charles McCORMICK for E WILLIAMS Shrff. ----------------------------------------------------------------------- 1801 June rules Appearances July rules rule to declare ----------------------------------------------------------------------- August rules Continued for Declaration ----------------------------------------------------------------------- September rules the Same ----------------------------------------------------------------------- October rules The Plaintiff by his attorney filed his declaration in the words and figures following Frederick County to wit Arthur W. CARTER complains of Samuel COPE and William BARTEL for this to wit that whereas on the ____day of ____in the year of our Lord one thousand eight hundred _______at the Parish of Frederick in the county of Frederick the said Defendants were commissioners as each were Copartners in the business of Waggoners and carriers and whereas on the same day and year aforesaid and the Defendants being Copartners as aforesaid to wit at the Parish and County aforesaid in consideration that the Plaintiffs at the special instance and request of the Defendants had then and there delivered to said William BARKEL one of the Defendants and partner of the other Defendant drove goods and chattels to wit four barrels of whiskey contain thirty three gallons each one double barrel of whiskey containing sixty eight gallons and five barrels of flour being in the whole two hundred gallons of whiskey of the value of one hundred and twenty dollars and five barrels of the value of seven dollars and four (?) barrels of flour of the value of forty two dollars to the safely carried by ___(?) and Defendants from the house of the plaintiff in the parish and County ___(?) _____ (?) Page 149 ___ (?) Alexandria and there to be delivered by the Defendants to the Plaintiff on his order or otherwise safely and securely to be deported in some store by warehouse there for the use of the Plaintiff for a reasonable award or hire to be therefore paid by the said Plaintiff to the Defendant they the said Defendants understood and then and there faithfully promised the said Plaintiff safely to carry the said goods and chattels from the house of the plaintiff aforesaid to Alexandria aforesaid and there faithfully to deliver the same to the Plaintiff on his Order or otherwise safely and securely deport them in some store house or warehouse there for the use of the Plaintiff yet the said Defendants not regarding their same promise and undertaking or their duty as common carriers but contriving and fraudulently intending and nihility (?) to devise (?) and defraud the plaintiff in this particular (?) did not deliver the said goods and chattels or any part thereof to the plaintiff or any person by his Order or deposit them as aforesaid for his use at Alexandria aforesaid or elsewhere wish’s requested by the Plaintiff so to do but the Defendants have hitherto altogether neglected and refused to deliver the said goods to the plaintiff or his order at Alexander aforesaid or deposit them in any store or warehouse there for the use of the plaintiff And whereas also afterwards to wit on the same day and year last mentioned at the Parish and County aforesaid the said Defendants were common carriers in copartnershiped followed the business of carrying goods and chattels and country produce of every description from the parish and county aforesaid to Alexandria and the other trading towns and places for a reasonable hire or wages therefore to be paid by the persons employing them according to the custom for the County for time immemorial used and approved and as such common carriers the defendants were under a legal obligation to do and perform their said business with fidelity and circumspection and whereas as on the same day and year aforesaid at the Parish and County aforesaid the plaintiff at the usual instance and request of the Defendants delivered to the said William BARKETT one of the Defendants in copartnership with the other Defendant and in the wagon used by them as partners other two hundred gallons of Whiskey of the Value of one hundred and twenty dollars in five vessels of the value of other seven dollars & other four barrels of flour of the value of other forty two dollars to be by them the said defendants safely carried to the Port of Alexandria (for a reasonable price therefore to be paid by the plaintiff to the Defendants) and there to be by them sold and disposed of for the best price that could be had for the same and the money produced by such sale to be brought & delivered by the Defendants to the Plaintiffs Yet the said Defendants not regarding their duty as carriers and the obligation aforesaid but contriving & fraudulently intending craftily and oublietty (?) to deceive and defraud the plaintiff in this particular did not safely carry the said goods and chattels to the Port of Alexandria there sell an dispose of the ____ (?) for the best price that could be had and bring & deliver the money procured by such sale to the plaintiff but conver__ (?) __ (?)and to his own us__ (?) __(?) plaintiff says he is injured and hath sustained same _____ ________ dollars. H. DANGERFIELD PA Page 150 J. DOE R. ROE Pledges fee ----------------------------------------------------------------------- and writ to plead ----------------------------------------------------------------------- 1801 November rules continued on rule to plead ----------------------------------------------------------------------- December rules writ on Ongoing ----------------------------------------------------------------------- At a Court continued and held for Frederick County the 4th day of March 1802. This day came the parties by their Attorneys and on the Defendants by their Attorney. It is ordered that the Judgment obtained by the plaintiff against them at rules held in the Clerks Office be sat aside and therefore the said Defendants by these Attorney plead not guilty which plea the Plaintiff by the Attorney Join. ----------------------------------------------------------------------- June Court. Continued. ----------------------------------------------------------------------- And at a Court continued & held for the County aforesaid the 5th day of August in the year aforesaid Came the parties by their Attorneys and thereupon same Jury to wit Adam KURTZ, Adam YOUNG, John BRADY, John HODGE, Nathaniel LEAN, Thomas WILLIAMSON, James NEWHAM, James SMITH, Jonathan LUPTON, Jacob POE, Michael RILEY and Thomas JACKSON who being elected tried and sweared the truth to speak upon the fore joined and not agreeing upon their verdict by consent of parties by their Attorneys Adam KURLY one of the Jurors aforesaid was withdrawn and the rest of the Jurors of the Jury aforesaid from rendering their verdict of and upon the premises are to allege the discharged and the cause continued until the next Court. ----------------------------------------------------------------------- November Continued for the Defendant And at a Court continued and held for Frederick County the 4th day of March 1803 Came the Parties aforesaid by their Attorneys and thereupon came a Jury to wit Barney FAGAN, William ESKRIDGE, Daniel CLARK, Nahum CHUNN, Philip RILEY, Conrad CREEMER, Michael COYLE, James WALL, Jacob GRAPES, James SENVALL (?), Thomas WINE, and John CROCKWELL who being elected tried and charged the truth to speak upon the Issue Joined the plaintiff showed in evidence to maintain the Issue on his Part 1st a Witness Henry FRIDLEY who exposed that the Defendant COPE told him in the lane near Winchester he COPE and the Defendant BARKEL were in partnership in waggoning that FRIDLEY mentioned to said Defendant COPE the claim of the Ptt and told him he had better settle it and the Plaintiff would probably indulge him, the said Defendant observed that he did not think he would indulge him the said FRIDLEY observed that if he COPE was willing he FRIDLEY would mention the business to the Plaintiff CARTER the said COPE did not request him to do so. 2nd William TAYLOR another witness who disposed that COPE the Defendant told him that the Defendant BARKEL was to draw one fourth of the Profits arriving from waggoning and that said BURKEL had one horse in the team and that BARKEL was to drive the team. 3rd Another witness Benjamin FULKINSON who deposed that on Monday (the month and year not recollected) he met COPE the Defendant who told him he had been after a load and had got one from CARTER the Ptt at Le____ (?) mill that he seen BARKEL on the same day who was looking for horses that he had not seen BARKEL since and believes that BURKEL runaway shortly afterward then another witness Henry TAYLOR who deposed that BURKEL applied to CARTER the Pltt for a load than and CARTER did not promise him the load saying he would get some person who was in his Lift (?) to carry for him that COPE the Defendant had come there in the morning and the witness seen him & CARTER the plaintiff talking together and he Page 151 ___ (?) COPE say he would and the team for the load that evening. 5th Another witness James (?) FULKINSON who deposed that he was at Thomas LEIRS Mill when BURKEL came up to load flour that said BURKEL then in his wagon four single barrels and one double barrel of whiskey which he said that he got from the Plaintiff CARTER that BARTAL when took in five barrels of flour belonging to CARTER the witness went with said BARTEL to Alexandria where BARKEL told him he had sold the whiskey (except one barrel which he sold upon the road) some at 2/3 some at 2/9 d some at 2p and further that BARKEL returned part of the way home with the team and then runawayd left the team on the road except one horse which he road away. 6th Another witness FRAZIER he deposed that it was customary some times & often times for wag goners to take flour to Alexandria & make sale thereof and bring back the money and that COPE had done so for the witness. The Defendant COPE on his part proved by the oath of John COPE that Henry FRIDLEY the plaintiffs witness came to the house of the Defendants COPE with a pistol in his hand & said he was in search of the Defendant BURKEL that the witness asked the Defendant COPE whether he and BURKEL were in partnership to which the Defendant COPE answered they were not this was in the presents of FRIDLEY who suddenly turned his horse round and swore by GOD he COPE had just told him he was in partnership and he FRIDLEY would go and swear to it the witness also deposed that he was present the whole time of the conversation between the Defendant COPE and the witness FRIDLEY and did not hear but if it had passed he would have heard the fact that FRIDLEY and he would swear to and proved by another witness William LEAN who deposed that he was working for the Plaintiff CARTER WHEN Defendant BARKEL brought the team to said CARTERS Witness asked M’as CARTER whose team that was M’as CARTER mad answer it was COPES team the witness further proved that the plaintiff CARTER directed the Defendant BURKET to sell the whiskey and flour he was to take down and to bring back twenty bushels of salt and the balance in money that CARTER observed after BURKEL went away I suppose this man (meaning BARKEL) is a truly man the witness answered that he had heard BARKEL was a drunken and quarrelsome man, the conversation took place before the load was taken __ (?), the witness further said that CARTER mentioned COPES name but does not remember what he said of him but did not hear him say that COPE was to be answerable and by Captain Thomas MILL prayed (?) that CARTER the Ptt went to the house of COPE the Defendant and asked COPE if there was not some salt there for him the said Defendant COPE answered there was salt there but whose property he would not tell if he CARTER chose to take it he might at his own origin CARTER then did take the salt COPE then asked said Ptt CARTER if he had otherwised said BARKEL to sell the whiskey and flour and bring up salt and other articles among the rest held to which CARTER replied he had so authorized said BARKEL the witness further proved that the Defendant COPE and BARKEL purchased of the witness a wagon and two horses that they entered into a joint bond because the Defendant BURKEL Page 152 could not get security in a separate bond that sometime afterwards ____(?) witness that the property was to be divided and asked him if one horse was not __ (?) more than the other he answered he was The witness further proved that it is the __ (?) custom of the country to employ ------of teams sometimes to sell their flour at market & bring back money or other articles directed but it was not customary to employ the driver of such owner to sell such flour without the amount of such owner And proved by ___ (?) Hannah COLE that she heard CARTER the plaintiff say that he had entrusted BURKEL to sell his flour and whiskey and bring back for him salt and rice and thereupon the Jurors Aforesaid in solemn form do say 7th The Jury find for the Plaintiff one hundred and nine dollars damages object to the opinion of the Court upon the demur to evidence filed in the cause. Nahum CHUNN. ----------------------------------------------------------------------- June Court in the year aforesaid Continued ----------------------------------------------------------------------- And at a Court continued and held for the said County the 5th day of August in the year aforesaid to the evidence being agreed and overruled It is considered by the council of the court that the plaintiff recover against the Defendants one hundred an d nine dollars the damage assigned by the Jury sworn in this cause at a former term and his Costs by him in this behalf expended & the Defendants in mercy From which Judgment and proceedings the Defendant prayed ____(?) to the next District Court to be holden at Winchester Appeal Bond as follows Know all Men by those Presents that was Samuel COPE, Charles MAGILL and Hugh HOLMES are held and firmly bound unto Arthur W. CARTER in the just and full sum of four hundred dollars to which payment well and truly to be made to the said Arthur W. CARTER his heirs executors administrators and assigns we bind __ (?) two our heirs executors and administrators jointly and acurally (?) ___ (?) by them presents sealed with our seal and dated this 5th day of August 1803. The Condition of the above obligation is such that whereas an action was brought in the County Court of Frederic by the said Arthur W. CARTER plaintiff against the said Samuel COPE defendant & said plaintiff hath recovered against the said Defendant Judgment for one hundred and nine dollar damages besides his costs and the said Defendant on his prayer hath obtained an appeal to the next District Court to be holden at Winchester it therefore the said Samuel COPE shall prosecute the said appeal with effect or pay and satisfy the amount of the recovery aforesaid and all such damages and Costs as shall be awarded by the said Court in case the Judgment of the said County Court be affirmed then the above obligation to __ (?) otherwise to remain in full fare and Virtue in Law. Signed sealed and delivered In the presence of The Court H HOLMES And at a Court continued and held for the County aforesaid the 7th day of June 1805. And order of the District Court was produced in the words and figure following Winchester District Court April Term 1805 Samuel COPE Against Arthur W. CARTER Appellant}Upon an Appeal from a Judgment of the County Court of recorded the 5th day of August 1802 by the Appellee against the Appellant for the sum of one hundred & nine dollars & the Costs This day came the parties by these Attorneys and therefore the two accept of the _____ (?) Page 153 of the judgment aforesaid being summoned unexpected it seems to the Court that the same is erroneous Therefore it is considered by the court the same be reversed “and annulled and that the appellants cover against the appealer his Costs by him expensed in the persecution of the appeal aforesaid here and it is ordered that the proceedings heard in the said causes in the County Court emboequent (?) to the issue be set aside and the cause is remanded to the county court for further proceedings therein to be had. A Copy Teste D LEE cu of Therefore It is considered by the court the cause be redocketed agreeable to the said order. ----------------------------------------------------------------------- And at a Court continued and held for the County aforesaid the 6th day of March 1806 Came the parties aforesaid by their Attorneys and thereupon came a Jury to wit John MORGAN, Zachariah N. SANDS (?), William HOOKER, James LITTLE, William STUBLEFIELD, Thomas KEENAN, Joseph HURFORD, Daniel OVERACRE, John RILY, Jacob FULMER, John BROWN & Joshua NEWBERRY, who being elected tried and charged the truth to speak upon the issue joined in solemn form do say We the Jury find for the Plaintiff one hundred and twenty five dollars & seventy seven cents damages upon the first court came Little foreman And the said Defendants comes here unto Court and prays that Judgment may not be rendered against him upon the verdict aforesaid alleging that the same ought to be stayed for the following reasons and others hereafter to be adjoined. 1st That the declaration contain two uninterested counts which cannot be joined in the same action That the first is a count on a special agreement and made in contract, and the record is on the custom and alleges a breach of Defendants duty as carrier which sounds in toil and that there cannot be joined in the same action. 2nd That in the said first count of the declaration on which the verdict of the Jury is founded it is no where awarded that the Plaintiff had paid the Defendants the hire or reward which is stated as the consideration of the contract and until the payment of which the carrier has a right to retain the goods committed to his charge nor is it averred that the plaintiff was ready to pay it, so that this was of the declaration be to him as true the plaintiff shows no title to recover— 3rd That in the said declaration it ought to be averred whether that the plaintiff was at Alexandria read to receive the goods in the declaration mentioned or that some other person was there ready to whom he had issue his order of which the Defendant had notice on that the said Plaintiff had afterwards specified some store or warehouse were the same were to be deposited for his use of which the Defendants had notice. 4th Because it is not covered in the said first count of the declaration that the plaintiff demanded the goods of either of the Carriers to which is essential to entitle him to recover for these and other errors apparent in the record and to be assigned at bar the Defendant prays that the Judgment of the Court many be arrested upon the verdict aforesaid. ----------------------------------------------------------------------- And at a Court continued and held for Frederick County the 7th day of March in the year aforesaid came the parties aforesaid by their Attorneys and the errors in order of Judgment pled in the cause being adjoined both sides it appears to the Court have that there is not sufficient matter contained therein to bar the Page 154 Plaintiff from his action aforesaid therefore it is rendered by Court that the Plaintiff recover against the Defendant the sum of one hundred and twenty five dollars and seventy seven cents the damages aforesaid by the Jury in the verdict found in this cause yesterday and his costs by him about his out in behalf expended and the Defendant in Mercy. ----------------------------------------------------------------------- From which Judgment and proceedings the Defendant by his attorney prays and Appeals to the next District Court to be holden at Winchester and having given bond and security to prosecute the same with effect appeal is allowed him Appeal Bond as follows. Know all Men by these Presents that we Samuel COPE, Joshua COPE and Joseph STEER are held and firmly bound unto Arthur W. CARTER in the just and full sum of five hundred dollars to which payment will and truly to be made to the said Arthur W. CARTER his heirs executors administrators or assigns we bind ourselves our heirs executors & administrators jointly and severally firmly by these presents sealed with our seal and dated this 7th day of March 1806. The Condition of the above obligation is such that whereas an action be brought in the County Court of Frederick by the said Arthur W. CARTER Plaintiff against the said Samuel COPE and William BARKEL Defendants & the said Plaintiff hath recovered the Judgment against the said Samuel COPE for one hundred and twenty five dollars and seventy seven Cents damages besides his Cost and the said Samuel COPE on his prayer hath obtained an appeal to the next District Court to be holden at Winchester if therefore the said Samuel COPE shall prosecute the said appeal with effect a pay and satisfy the amount of the recovery aforesaid and all such costs and Damages as shall be awarded by the said Court in case the Judgment of the County court be affirmed then the above obligation to be void otherwise to remain in full force and virtue in law. Signed sealed and delivered Samuel COPE seal in the Presence of Joshua COPE seal The Court Joseph STEER seal Appellants cost $86.88 Cents Appellees Costs $79.09 Upon the treat of this cause the following exceptions were filed. The defendant moved the Court to direct the Court to disregard the second court in the declaration as being faulty to which the Pff objected but they did so instruct the Jury to which opinion of the Court the Plaintiff excepts and prays that these his explanations ought to signed sealed and d’v which is done accordingly JB TILDEN (seal) Thomas STRIBLING (seal) Ja’s MARSHALL (seal) Jo TIDBALL. ----------------------------------------------------------------------- One the first of this cause the plaintiff offered evidence to prove that it was a general custom among the waggoners in this part of the County to take goods to Alexandria to sell them there & ___ (?) bring back money and goods in return to which evidences being given to the Jury the Defendants objected which objection was sustained by the Court and the said evidence not suffered to go the Jury to which opinion of the Court the Ptt except and prays that his exceptions may be signed sealed & d’v which is done according by Tho’s BUCK (SS) J A TILDEN (SS) Ja’s MARSHALL (SS) Js TIDBALL. On the trial of this cause the plaintiff counsel moved the Court to direct the Jury that if they are of opinion that COPE was purvey to and knew of the agreement with CARTER to sell the produce conveyed to Alexandria and bring back the money and proved they ought to find for the Plaintiff on the second count which Defendant End of page 154