MONGOMERY v. SCANLAND

Original Record located at: TN State Library & Archives, Special Collections, Middle TN.


For the Plaintiff in error, argued, that Price Butler took and retained the possession of one Negro in controversy for five years, under a ? that the loan was bonafide and without the first vistage or badge of fraud, consequently it is not imbraced in the Staute of 1801, Chap 25, sec 2 enacted to prevent frauds and perjury.

?, That Mongomery had been possessed of the Negro in controversy for a longer period than three years before the Defendant took him from him, this possession vested in him, an indefeasible title to the slave, and would have afforded a complete bar under the act of limitations of 1715, Chap 25, ?to all actions that could have been brought against him for his, and will ? him to recover (his having cost that possession) in this action, not withstanding he appears in the has action of plaintiff, Nevly v. Blakly 3rd Hus & Mur 62, Brintive Chapman 5th Crauch 358, and Shelly v Guy 11th Weaton 377. and

Thirdly; the defendant in this case took the negro by virture of a blank desputation upon the back of an execution, that issued from the County Court of Jackson in favor of Samuel G. Smith v. Price Butler, for about $500.00. Young the Sherriff wrote the desputation all to the rusuting of the defendants name, handed it to Joel L Sittle and authorized him verbally to insert the name of any person he placed the name of the defendant was inserted but by whoever or when does not appear the reo? assigned for teh necessity of htis desputa tion is that the Plaintiff would have concealed the negro from a known Officer.

The minicucial power of the Sherriff is of great importance to the administration of Justice to the internal peace and tranquility of the country it is as much the policy of our judical system that the officers of judicial tribunals should be known as it is that the law should be, if the officer is not known he will not be respected or obeyed; hence in any instance he who executes or attempts to execute a process should be a known officer, otherwise he will be reserted? and this resistance will lead to inifinite treachery of the peace and as experience has taught us ever home? such desputation communicate no authority or power Housin v. Bounan 6th T.R. 1224123 ? Wilson 47. 4th Sherrifs are not authorized to coustitute special Bailiffs except upon urgent ?, this was not an occasion of that kind, and is therefore void and ineffectual by the act of Assembly of 1824 Chap 12 and ? Bacon S.B. Titter D. 320.

Montgomery v. Scanland

This was an action of transfer by the ? in error, Montgomery, against the Deft in Summer of October 1826 in the Circuit Court of Jackson County for the conversion of a negro ? named Matilda. A verdict and indicment was entered for the Defendant Scanland, and appeal in error takin to this Court.

A Bill of Exceptions taken on the trial showed that the negro in question was born the property of the Deft, that about the year 1814 Price Butler inter- married with the Deft's daughter, and in the year 1816 Matilda was permitted to stay at Butlers, and that she continued to stay there until the spring of 1822, when the Plf took her home to his own house. Butler about this time became indebted and soon afterwards, and his property was all taken and sold by his ineditors. Smith ? a judge ? adjacent Butler November term of Jackson County Court 1823 by $534 debt and $21 ? upon which exectuion appeared because this same term, and $166 made thereon by giving sale of property ? the return of this execution an ? was ? ?. and entered, "nothing found." As number of other executions for the ? ? between this last and the 1st of September 1826 when one ? indebted thus "of James Young sheriff of Jackson County, do hereby authorize Thomas Scanland, to execute and collect the within ? ? given under my hand and seal this 4th day of September 1826 James Young Sheriff seal came to hand the 10 Sept 1826 called on one negra ? named Matilda the property of Price Butler, and sold the 19th day of October 1826 to ? G. Smith for one hundred and ten dollars, Thomas Merlin Deputy Sheriff. It further appeared upon the bill of Execution, that during the reading the ? family Smith against Price butler, the ? ? objected to the desputation from Young Sheriff to the Deft; and ? Young examined who deposed that the execution was put into his hand, he had so objection to the ? an the negro, but was informed I ? a ? officer would not be ? to ? on her that? claimed her, and would prevent or buy. Hw wrote the ? ? ? "Morrces Scanland" gade it so the Jack L.

[difficult to read pages]

Hamilton Montgomery
vs In Trover
Thomas Scanland

And the plaintiff in error comes and assigns for causes of error the following -
1st The Jury found contrary to evidence.
2nd The Court erred in rejecting testimony.
3rd The CDourt erred in charging the Jury.
4th The Court erred in refusing a new trial.
For these and others to be assigned in argument the Judgment ought to be reversed, nulified ?

Cullon H. Detton Attos. for Deft.

State of Tennessee
Third Judicial Circuit Jackson County

Pleas before the Judge of the Circuit Court of Law and Equity begun and for the County of Jackson at the courthouse in Gainesboro in said County of the fourth Monday being the twenty fourth day of March in the year of our Lord one thousand eight hundred and twenty eight and the fifty second year of the independence of the United States, present the Honourable Nathaniel W. Williams Judge of the Circuit Courts of Law and Equity for said this Circuit. Hamilton Montgomery
vs.
Thomas Scanland

Be it remembered that heretofore, to wit, on the 11th day of October 1826, the plaintiff sued out a ca? and respondendum against the defendant in the words and figures following State of Tennessee. To the Sheriff of Jackson County Greetings: You are hereby commanded to take the body of Thomas Scanland if it be found in your county, and him safely keep so that you have him before the Judge of our Circuit court to be held for the county of Jackson at the court house in Gainesborough on the 4th Monday in March next to answer Hamliton Montgomery in a plea of trespass on the case to his damage one thousand dollars. Fail not and have you then and there this writ - Witness James W. Smith clerk of our said Court at office, the 4th Monday in September 1826, and of American Independence the 51st. Jas W. Smith Ckl.

I acknowledge myself the above named plaintiff's security for prosecuting his suit against the above named Thomas Scanland with sucess or failure thereof that he will satisfy and pay all costs and damages or I will do so for him. Witness my hand and seal this 11th day of October 1826. Robert Montgomery ? Thos. Hill

Endorsed issued 11th of October 1826 came to hand the same day issued executed October 12th 1826 E. Kirkpatrick D. Shff.

And accompanying said return was the following bond know all men by these presents that we Thomas Scanland, West Walker and Robert Scanland are held and firmly bound unto James Young Sheriff of Jackson County in the penal sum of two thousand dollars, which sum to be well and truly paid we bind ourselves and each of us and each of our heirs, jointly and severably, firmly by these presents. Th condition of the above obligation is such that where as these issued form the Circuit Court of Jackson County a writ in favor of Hamilton Montgomery against the above bound Thomas Scanland for a plea of trespass on the case to his damge one thousand dollars, which writ has been executed. Now should the above bound Thomas Scanland make his appearance before our next said Court, to be held at the Court house in Gainesboro on the 4th Monday in March, then and then defend sais such?? failure thereof, to pay and satisfy all such damages and costs as may accrue thereon, then the above bond to be said, else remain in full force. Witness our hands and seals, this 12th day of October 1826.

Thomas Scanland
West Walker
Robt. Scanland

And at March Term 1827 of said Court, the said Plaintiff by his attorney filed the following declaration, to wit, State of Tennessee, Jackson County, March Term of the Circuit Court 1827. Hamilton Montgomery by attorney complains of Thomas Scanland in custody of the Sheriff of Jackson County aforesaid of a plea of trespass on the case to his damge. For that whereas the Plaintiff, heretofore, to wit, on the 10th day of December 1826 a to wit in the State and Countyaforesaid, was lawfully possessed, as of his own property, of a certain negro girl slave named Malinda of great value to wit of the value of one thousand dollars, and being as possessed thereof, he, the Plaintiff afterwards to wit on the day and year aforesaid, at to wit, in the County of Jackson aforesaid, casually lost said Negro girl slave, named Malinda out of his possession, and the same afterwards to wit

On the day and year aforesaid, in the County aforesaid came to the possession of the defendant by finding or otherwise. - Yet the defendant well knowing the said Negro Girl slave named Malinda to be the property of the plaintiff, and of right to belong and appertain to him but continuing and fraudulently intending craftily and subtly to deceive and defraud the plaintiff in this behalf, hath not as yet delivered the said Negro Girl slave named Malinda to the plaintiff although often requested so to do, and hath hitherto wholly refused so to do, and afterwards to wit on the day and year aforesaid in the County aforesaid converted and disproved of said Negro Girl slave named Malinda to his own use - to the damage of the plaintiff $1000 and therefore he sues. E Dillon attorney for plaintiff.

And at said March Term 1824 of said Court the said defendant by his attorney filed the following plea, to wit, "And the defendant by his attorney comes and defends the wrong and injury when _____ for plea says the plaintiff aforesaid his action aforesaid ought not to have and maintain because he says he is not guilty of the __________ and conversion in manner and form as the plaintiff in the within declaration has alleged and of this he puts himself upon the County. Haggard for Defendant and the plaintiff likewise. Dillon attorney for plaintiff.

And at September Term 1827 of said Court, came the parties by their attorneys and by consent of the parties the trial of this cause is continued till the next term of this Court on the affidavit of defendant. And at March Term 1828 of said Court, came the parties by their attornies and by their consent and agreement and with the assent ??? of the Court Robert Montgomery who stands bound as prosecution security for the plaintiff in this cause is released from his liability in that behalf - Whereupon Alexander Montgomery came into Court and acknowledged himself prosecution security for the plaintiff in the room and stead of of said Robert Montgomery released, and agrees that if the plaintiff is cast in this suit that he will pay and satisfy all costs and damages that may be awarded by reason of his failure or that he Alexander Montgomery will do so for him.

And at said March Term 1828 of said Court came the parties by their attornies and there came a jury of good and lawful men, to wit, Tandy K. Witcher, David Cox, George Teel, Michael Price, James M. Calgin, John Sevezear????, Luke L. Price, James Roberts, Isaiah Vansandt, Josiah McClelland, Mounce? Gore and Gideon Brown, who being elected tried and sworn to speak the truth upon the issue joined in this cause, upon their oaths do say the defendant is not guilty of the? and conversion in the plaintiff's declaration mentioned, as the said defendant in pleading both alleged. It is therefore considered by the Court that the plaintiff take nothing by his suit and that the defendant go hence without day and recover against the plaintiff his costs by him about his defence in this behalf expended. And the plaintiff by his attorney moved the Court for a new trial in this cause which was by the Court overruled to which opinion of the Court the plaintiff excepts and tenders his bill of exceptions which is signed & sealed by the Court and made a part of the record; which is in the words and figures following, to wit, State of Tennessee
Jackson County
March Circuit Court - 1828

Hamilton Montgomery v. Thomas Scanland In cse. ____ for a Negro. Be it remembered that on Wednesday the third day of this term the above cause came on for trial and was tried before a jury when the plaintiff introduced the following evidence, to wit, Robert Montgomery, son of the plaintiff deposed that the negro girl Malinda in dispute was born the property of the plaintiff about the year 1811. In 1814 Price Butler married Lucinda Montgomery the only daughter of plaintiff, settled several miles off from him lived so some years in latter part or 1816 or early 1817 removed near to plaintiff the Girl in dispute went to Butlers house occasionally because fond of Lucinda's child and stayed there altogether at least most of the time.

Negro was 5 or 6 years old when Butler took her. Plaintiff was at first displeased with the match not having confidence in Butler's economy, but they became more reconciled and visited as others heard plaintiff say never would give Butler any of his property plaintiff has 4 children & 5 or 6 negroes. Gave each of the other children a negro gave witness land ___negro. Butler bought land when he went away let witness's brother have it - plaintiff gave Butler no land - had land worth say $1000 & stock in plenty - part of the land in dispute. Young had a debt against Butler - Witness security who paid the money - the horses sold of Butlers went to the satisfaction of so much of Young's debt witness paid the debt - no other negro went to live with Butler this one stayed til Spring of 1822 plaintiff ___________ himself of her - negro 15 or 16 years old when executed - heard demand and refusal before action brought - negro worth $350.

Elisha Sanders disposed that he heard plaintiff demand negro of defendant before action brought - plaintiff had negro is possession before defendant took her but does not know how long + plaintiff had her in spring of 1822 but she was occasionally backwards and forwards till Sevy or nearly the time being asked by plaintiff's counsel said he never heard any talk of plaintiff's want of confidence in Butler till after he began to break in 1822. Negro stayed a Butlers something like five years - when times became squaley took her away - talk of plaintiff secreting negro but knows nothing of it - he always believed negro Butlers' property - witness lived in about a half mile of Butlers' negroe's mother lived at plaintiff's house.

Abraham Smith deposed that when Defendant ex the negro heard Baily Butler, Price Butlers' brother advise defendant to be cautious how he meddled with the negro. Did not think Negro was Prices- Defendant said he did not know but always thought the negro was intended for Price Butler's wife.

Matthew M. Anderson deposed that the negro was _________ in 1822 thinks she was in Butlers' possession about five years. James Martin was sworn by whom plaintiff offered to prove that plaintiff was uniformly & always he never would give Price Butler anything & had not given the negro but was restricted by the Court to the at & before year 1817 and so had nothing to tell.

Cynthia Morrell disposed at first that she heard conversations only (by plaintiff after the year 1819. but afterwards that she heard plaintiff who is her uncle say he had not confidence in Butler & would not give him property - negro was as much at plaintiff's as Butlers - Butler married in 1814 - heard plaintiff say he had not confidence in Butler before he began to break - Butler was respectable when married. Amos Kirkpatrick deposed that he was a deacon of a church and plaintiff was about joining - plaintiff & witness had a talk about slavery - plaintiff said he would never give a negro away whilst he lived and then would know where they went - plaintiff seemed uniform in his declarations joined his church twice was sometime out - witness told him he was not afraid of plaintiff's sons but was of Butler as to hard treatment to slaves - thought negro in dispute worth between 2 & $300. Had as soon have a ewe & lamb as a negro. Never believed negro Butlers the last conversation was in 1819.

James Young Shff. disposed that he did not know the negro in dispute - but one described like her about 11 years old and likely would now sell for $350 in 1826 at $400. The plaintiff's evidence closed. The defendant then read the following records "State of Tennessee. _____ before the Justices of the Court of ___ as and Charles Sessions held for Jackson County at the Court house in Gainsboro on the first Monday being the 3rd day of November 1823 and 48th year of our Independence present David Rose, Amos Kirkpatrick, Joseph Hawkins and William Rash Justices.

Be it remembered that heretofore to wit on 26th day of May 1823 Samuel G. Smith sued out a cases and respondendum against Price Butler in the words and figures following, to wit, State of Tennessee to the Sheriff of Jackson County Greeting: You are hereby commanded to take the body of Price Butler if to be found in your county and him safely keep so that you have him before the Justices of the Court of Elias and Quarter Sessions to be held for Jackson County at the Court house in the town of Gainsborough on the first Monday in August next then and there to answer Samuel G. Smith of a plea of debt that he send is unto him five hundred and eighty dollars which to him he away and from him unjustly detains to his damage three hundred dollars. Fail not and have then there this writ. Witness Samuel G. Smith clerk of said Court at office this first Monday in May A.D. 1823 and 47th year of American Independence. Sam G. Smith clk.

I acknowledge myself the above plaintiff's security for prosecuting his suit against Price Butler, or on failure there of that he will satisfy and pay all costs and damages or I will do so for him. Witness my hand and seal this 19th day of May 1823. James T. Quarles seal Upon the back of which copies is the following endorsement and Sheriff's return issd 26th May 1823. Came to hand same day issued. Executed 30th day of June 1823. William Locke Shff. Which writ endorsed as aforesaid the Sheriff returned into court at August Session 1823 of said court together with the following Bail bond Know all men by these presents, that we Price Butler and Elisha Sanders all of the County of Jackson and State of Tennessee, are held and firmly bound unto William Locke Sheriff of the County of Jackson his heirs, executors ___ in the sum of eleven hundred and sixty dollars, current money, to which payment well and truly to be made and done, we bind ourselves and each of our heirs executors or administrators jointly and severally firmly by these presents, sealed with our seals and dated this 30th day of June A.D. 1823

The termination of the above obligation is such, that whereas ______ ad respondendum issuing from out of the Court of _____ and Quarter Sessions for the county of jackson came to the hands and possession of the aforesaid sheriff, by virtue of which he arrests the body of Price Butler of a plea of debt to answer Saml G. Smith that he send is unto him the sum of five hundred and eighty dollars which to him he owes and from him unjustly details to his damage three hundred dollars which writ has been executed. Now if the above bound Price Butler shall well and truly make his personal appearance before our next court on the first Monday of August next then and there to answer the plaintiff of the plea aforesaid and not depart said Court without leave first had and obtained and do and perform all things required by law, then shall the above obligation be null and void, otherwise be and remain in full force and virtue in Law & Equity. Price Butler [seal] Elisha Sanders [seal] I Will Locke sheriff in and for the county of Jackson and State of Tennessee, do hereby assign and transfer to Saml G. Smith the plaintiff above mentioned, his executors and administra- tors to be sued for according to the statutes in such cases made and provided. In testimony where of I have hereunto subscribed my name, and affixed my seal this 30th day of June A.D. 1823.

William Locke Shff.

And at said August Session 1823 of said Court for the plaintiff by his attorney filed his declaration which is in the words and figure, following to wit, State of Tennessee Jackson County, County Court. August Session 1823. Samuel G. Smith by his attorney complains of Price Butler in custody of the Sheriff of a plea of debt that he send is unto him the sum of five hundred and eighty dollars which to him he owes and from him unjustly detains; for that whereas the said Price Butler heretofore, to wit, on the thirteenth day of November A.D. 1822 at, to wit, in the County of Jackson and State of Tennessee aforesaid by his certain writings obligatory signed with his hand and sealed with his seal and now to the Court here shown the date whereof is the same day and year aforesaid promised on or before the first-day of March next after the date of said writing obligatory to pay to the said Samuel G. Smith or order five hundred and eighty dollars for value received of him. Yet the said Price Butler did not pay to the said Samuel G. Smith the aforesaid sum of five hundred and eighty dollars above demanded or any part thereof on the first day of March next after the date of said writing obligatory or at any time before or since, but to pay the same or any part thereof to the said Samuel G. Smith he the said Price Butler had hitherto wholly neglected and refused and still doth refuse although often requested so to do at, to wit, in the State and County aforesaid to the damage of the said Samuel G. Smith three hundred dollars and therefor he sues. Quarles atty for ____. with which declaration the plaintiff by his attorney filed the writing obligatory mentioned in said declaration which writing obligatory is in the words and figures following, to wit, On or before the first day of March next I promise to pay Samuel G. Smith or order five hundred and eighty dollars for value rec'd of him Witness my hand and seal this 13th day of November 1822. Price Butler seal did at said August Session 1823 of said Court the defendant by his attorney filed the following pleas, to wit, State of Tennessee Jackson County August term 1823 Samuel G. Smith v. Price Butler In debt. And the defendant by his attorney comes and defends the wrong and injury when ___ and for plea says the plaintiff aforesaid his actions aforesaid ought not to have and maintains because he says that he has well and truly paid the debt in the declaration mentioned and this he is ready to verify wherefore Mr.?? Haggard for Deft

And for further plea in this behalf the defendant says the Plaintiff aforesaid his actions aforesaid out not to have and maintain because he says that in the State and County aforesaid on the thirteenth day of November 1822 the said plaintiff in the said writing obligatory in the declaration mentioned said contract and agree to receive and did so add in the said writing the rate of twenty dollars for the delay of one hundred for the space of three months and in therefore usurious and this he is ready to verify wherefore he prays judgt. Haggard for Deft.

This day Price Butler appeared in open Court and made oath that the statements contained in the aforesaid plea are true Price Butler. Sworn to in open Court 6th August 1823.
Sam G. Smith clk.

And at November Session 1823 of said Court the plaintiff filed his applications to said pleas in the words and figures, following, to wit, State of Tennessee Jackson County Court. Samuel G. Smith vs Pride Butler. In debt. And the plaintiff comes and says that by reason of any thing alleged and set forth by the defendant in his first plea above pleaded he ought not to be barred or precluded from having and maintaining his action aforesaid thereof against him because he say that the defendant has not well and truly paid the said debt in the plaintiff's declaration mentioned and of this he puts him- self upon the Country. Quarles atty for ptff.

And the defendant likewise N. Haggard for Deft. And as to the defendant's second plea above pleaded the plaintiff
says he ought not to be barred or prohibited from having and maintaining this action aforesaid thereof against him for the whole of the debt specified and set forth in the planitiff's declaration execept the sum of twenty dollars which was ?ded in said writing obligatory over the legal interest. But as to the ballance of the debt in the plaintiff's declaration mentioned the plaintiff says he ought not to be barred and precluded from having and maintaining his action aforesaid thereof against said defendant because he says he (plaintiff) did not contract and agree to receive and add in said writing the rate of twenty dollars for the delay of one hundred for the space of three months and of this he puts himself upon the country.
Quarles Attorney for Plff.

Swon to 4th Nov. 1823 L.G. Smith Clk.

And the defendant likewise Nathan Haggard for Deft. And at said November Sessions 1823 of said Court came the parties by their attorneys and there came a jury of good and lawful men, to wit, William Butler, James Cason, John Reppeto, Charles Graves, George Apple, Henry Crowder, John Boyd, Stephen Langford, Robert Anderson, Edwin F. MCKinney, Henry Kearby and Phillip Myers who being elected tried and sworn the truth to speak upon the issues joined upon their oaths do say the defendant hath not paid the debt in the declaration mentioned as the plaintiff in replying hath alledged and the jurors aforesaid upon their oaths aforesaid do further say that said plaintiff did not contract and agree to receive and add in the writing obligatory in the declaration mentioned at the rate of twenty dollars for the delay and forbearance of one hundred dollars part of the sum in the writing obligatory mentioned for three months but that said plaintiff did contract and receive and did add in the writing obligatory in the declaration mentioned the sum of twenty dollars for the delay and forebearance of the whole sum mentioned in said writing obligatory for three months as he said plaintiff also by replying hath alleged and they do assess the plaintiff's damage by reason of the detention of the balance of his debt to twenty one dollars Be__d__ costs. It is therefore considered by the Court that the plaintiff recover against said defendant the sum of five hundred and thirty four dollars the balance of the debt in the declaration mentioned so found by the jury aforesaid together with twenty one dollars his damages aforesaid by the jury aforesaid assessed and also his costs by his about his suit in this behalf expended and the defendant in mercy ___.

State of Tennessee. tot he Sheriff of Jackson County Greeting: You are hereby commanded that of the goods and chattels, lands and tenements of Price Butler you cause to be made the sum of five hundred fifty five dollars and the costs hereunto endorses, which sum Samuel G. Smith lately in our Court of Pleas and Quarter Sessions held for the county of Jackson at November Session 1823 recovered against said Price Butler for debt and costs whereof the said Price Butler is convict and liable or appears to as of second; and have you the said monies before our said Court at the Court house in the town of Gainsboro on the first Monday in February next so as to render to the said Samuel G. Smith for his debt and costs aforesaid. Witness Samuel G. Smith clerk of our said Court at office this first Monday in November 1823 48th year of our Indepen= dence. Sam G. Smith clk. Take Bank notes. Endorsed Judgment send against Deft 4th day of November 1823 for Debt $534 for damages $21 Crt costs ____ and bond 1.40 ?? Rendering single judgment 1.00 This fieni facias 40 State tax 1.62 Sheriff arrest and bond 1.25 Alto Quarles tax fee 2.50 - $8.17 Smith clk. Issued 11th Novm 1823.

I William Locke Sheriff of Jackson County do hereby deputize authorize and empower James W. Hancock to execute this fieri facias with the same power as I am as Sheriff of Jackson County authorized to do myself witness my hand and seal this 12th day of November 1823. William Locke Shff. Seal

Came to hand 12th November 1823 Levied on one sorrele stud horse, one bay stud horse one gray horse one sorrele horse this 12th day of Nov. 1823 I after giving legal notice sold the sorrell stud horse for fifty dollars, the bay stud horse for forty dollars the gray horse for sixty dollars the sorrele horse for $16.00 making $166.00 after deducting my fees for levy commissions __ leaves $158.30 to credit this fi.fa. 22nd Nov. 1823. James W. Handcock Deputy Shff. State of Tennessee To the Sheriff of Jackson County Greeting. You are hereby commanded that of the goods and chattles lands and tenements, of Price Butler you cause to be made the sum of five hundred & fifty five dollars and the costs hereunto endorsed which sum Samuel G. Smith lately in our Court of Pleas and Quarter Session held for the County of Jackson recovered against said Price Butler for Debt & costs, where of the said Price Butler is convict and liable as appears to us of record, and have you the said monies before our said Court of at the Court house in the town of Gainsboro on the first Monday in May next, so as to render to the said Samuel G. Smith for his debt and costs aforesaid. Witness Samuel G. Smith clerk of our said Court at office this first Monday in February 1824 & 48th year of our Independence. Sam G. Smith Clk.

Endorsed Judgt 4th Nov. 1823 Deft $524.00 damages $21.00 $555.00 State tax 1.12 Clk. writ & bond 1.40 - 1 continuance 40 rendering Judgt. 100 - 2 fi.fas. @ 40 - .80 Shff arrest & bond 1.25 Jury & calling .16 Atts Quarles 2.50 - $9.13. Take current-Bank notes according to act of Assembly Sam G. Smith. By Shff's return on former fi.fa. $158.30 Issued 10th April 1824. Came to hand same day ___ Nothing found J.L. Little D.Shff'. And served Robert & Alex. Montgomery & Thos. Scanland with a garnishment to appear on tuesday the 2nd day of the term J.L. Little D.Shff." The above granted garnishees were examined in open Court at May Term 1824 but not judgment was rendered against them.

State of Tennessee.
To the Sheriff of Jackson County Greeting:
You are hereby commanded that of the goods and chattles lands and tenements, of Price Butler of your County you cause to be made the sum of five hundred & fifty five dollars and the costs hereunto endorsed which sum Samuel G. Smith lately in our Court of Pleas and Quarter Session held for the County of Jackson recovered against said Butler for Debt & costs, whereof the said Butler is convict and liable as appears to us of record; and have you said monies before our said Court of at the Court house in the town of Gainsboro on the first Monday in August next so as to render to the said Samuel G. Smith for his debt and costs aforesaid. Witness Samuel G. Smith clerk of our said Court at office this first Monday in May 1824 and 48th year of our Independence. Sam G. Smith Clk.

Take Bank notes according to act of assembly. Endorsed judgt.send 4th Nov 1823 for $555.00 Clrs costs writ & bond 140-1 continuances 40 Judgment final 100 3 fini faeces 120 State tax 1.62 Att. Quarles fee 2.50 Shff arrest & bond 1.25 By Sheriffs return for sale of horses $158.30 22nd Nov. 1823 Esd. 18th June 1824 Came to hand 17th day of July 1824 W. William Lock Shff Nothing found William Locke Shff. E. William Locke sheriff of Jackson County do hereby authorize & deputize David Griffith to execute the within writ by levy advertise and sale of property to receive and receipt for the money in the same manner as I am by law authorized to do and when done shall be as good and valid as tho' done by me given under my hand and seal this 19th day of July 1824, William Locke seal Sheriff of Jackson County.

State of Tennessee to the Sheriff of Jackson County Greeting:
You are hereby commanded that of the goods and chattles lands and tenements, of Price Butler of your County you cause to be made the sum of five hundred & fifty five dollars and the costs hereunto endorsed which sum Samuel G. Smith lately in our Court of Pleas and Quarter Session held for the County of Jackson recovered against said Price Butler for Debt and costs, where of the said Price Butler is convict and liable as appears to us of record and have you the said monies before our said Court at Gainsboro on the first Monday in November next so as to render to said Samuel G. Smith for his debt and costs aforesaid. Witness Samuel G. Smith, clerk of our said Court at office this first Monday in August 1824 & 49th year of our Independence.
Sam G. Smith Clk.

Take Bank Notes. Endorsed Judgment 4th Nov. 1823 for $555.00 clks costs writ & bond 140 1 continuance 40 rendering Judgment 100 - 4 fieri faciasis 1.60 State tax 1.62 Atto Quarles 2.50 Shff arrest & bond 125 $9.77 By Shff's return sale of horses $158.30 22nd Nov. 1823 By R. Montgomery's note 1other May 1824 $50. Est. 4 August 1824. Came to hand same day Est. Nothing found J.L. Little D.Shff.
State of Tennessee. To the Shriff of Jackson County Greeting:
You are hereby commanded that of the goods and chattles lands and tenements of Price Butler of your county you cause to be made the sum of five hundred & fifty five dollars and the costs hereunto endorsed which sum Samuel G. Smith lately in our Court of Pleas and Quarter Session held for the County of Jackson recovered against said Price Butler for Debt & costs, where of the said Price Butler is convict and liable as appears to us of record; and have you the said monies before our said Court, at the Court house in Gaines boro on the second Monday in May next, so as to render to the said Samuel G. Smith for his debt and costs aforesaid. Witness Samuel G. Smith clerk of our said Court at office this first Monday in February 1826 & 50th year of our Independence. Sam G. Smith Clk. Take Bank notes." Endorsed Judgt Nov 1823 $555.00 writ & bond 140 - 1 continuance 40 Judgment 100 11 fieri facias 240 State tax 1.62 By Shff's return __$208.30 Est. 22nd March 1826 Came to hand same day __ to property found J. Young Shff.

State of Tennessee.
To the Sheriff of Jackson County Greeting
You are hereby commanded that of the goods and chattles lands and tenements, of Price Butler of your county, you cause to be made the sum of five hundred & fifty five dollars and the costs hereunto endorsed which sum Samuel G. Smith lately in our Court of Pleas and Quarter Session held for the Jackson County recovered against said Price Butler for Debt & costs whereof the said Butler is convict and liable, as appears to us of record and have you said monies before our said Court at the Court house in the town of Gainsboro' on the first Monday in August next, so as to render to the said Samuel G. Smith for his debt and costs aforesaid. Witness Samuel G. Smith clerk of our said Court at office this 2nd Monday in May 1826 & 50th year of our Independence. Sam G. Smith Clk. Take Bank notes "Endorsed Judgment 4th Nov 1823 $555.00 writ & bond 140 - 1 continuance 40 Judgment 100 11 fieri facias 2 80 State tax 1.62 Atty. Quarles Tax fee 2 50 Shff arrest & bond 125 $10.97 ____ By Shff's return $208.30 Est. 15 May 1826. Came to hand 19 May 1826 no property found in my county whereon the levy August ____ 7th 1826. E. Kirkpatrick D. Shff. State of Tennessee. To the Sheriff of Jackson County Greeting You are hereby commanded that of the goods and chattles lands and tenements, of Price Butler of your county, you cause to be made the sum of five hundred & fifty five dollars and the and the costs hereunto endorsed which sum Samuel G. Smith lately in our Court of Pleas and Quarter Session, held for the County of Jackson recovered against said Price Butler for Debt and costs whereof the said Butler is convict and liable as appears to us of record and have you said monies before our said Court at the Court house in the town of Gainsb' sough on the second Monday in November next, so as to render to the said Samuel G. Smith for his debt and costs aforesaid. Witness Samuel G. Smith clerk of our said Court at office this first Monday in August 1826 and 50th year of our Independence. Sam G. Smith Clk.

Take Bank Notes. Credit by Shff's return 23rd Novem 1823 for $158.30 Endorsed Judgment rendered 4 Novem. 1823 for Debt 534.00 Damages $21.00 Bill of costs Writ & Bond 1.40 - 1 continuance .40 rendering Judgment 1 00 5 fieri facias @ 40 200 2 fieri facias @ 50 100 State tax 162 Attor Quarles tax fee 2.50 Shff arrest & bond 1.25 $11.17 Es_ 1st day of Spet. 1826 E. James Young Sheriff of Jackson County do hereby authorize thomas Scanland to execute and collectthe within fi.fa. Given under myhand and seal this 4th day of Sept. 1826. James Young Shff. seal Came to hand 10th Sept. 1826 Levied on one negro girl named Matilda the property of Price Butler and sold the 19th dayof October 1826 to Samuel G. Smith for one hundred and ten dollars. Thomas Scanland Deputy Shff. State of Tennessee. Jackson County. I Samuel G. Smith Clerk of the Court of Pleas and Quarter Sesssion for said County of Jackson do hereby certify that the foregoing is a true and perfect transcript of the record of the above suit wherein Samuel G. Smith is plaintiff and Price Butler defendant as taken from the records in my office. In testimony whereof I have seal hereunto set my hand and affixed my private seal, there being no seal of office, at office this 31st day of July A.D. 1827 & 52nd year of our Independence. Sam. G. Smith clerk.

State of Tennessee.
Please before the Justices of the court of Please and quarter Session held for the County of Jackson at the court house in Gainsboro' on the first Monday in May being the day of the month A.D. 1822 present the worshipped James M. Smith, Joseph Hawkins, Thomas Glenn, William Gray and David Rose Esquires.

Be it remembered that heretofore to wit on the 7th day of August 1822 James Young sued out a writ against Price Butler and Robert Montgomery in the words and figures following to wit, State of Tennessee. To the Sheriff of Jackson County Greeting: You are hereby commanded to take Price Butler and Robert Montgomery if to be found in your county and them safely keep so that you have them before the Justices of our next court of Pleas and Quarter Sessions to be held for the county of Jackson at the court house in Gainsboro' on the first Monday in November next to answer James Young of a plea of debt that he render unto him the sum of three hundred and seventeen dollars and twenty three cents which to him they owe and from him unjustly detains to his damage two hundred dollars. herein fail not and have them there this writ Witness Sam G. Smith Clerk of said Court at the first Monday in August A.D. 1822. Sam G. Smith clk.

I acknowledge myself the above named plaintiffs' security for prosecuting his suit against the defendants given under my hand and seal this 7th day of August 1822. Sam G. Smith seal
As upon the back of which writ is the following endorsement and Sheriff's return, to wit, James Young _ Price Butler and Robert Montgomery Iss'd 4th August 1822 leave to hand same day Iss'd L. A. Draper D.Shff. we do hereby acknowledge the service of the within writ this 24 August 1822. Price Butler Robt. Montgomery And at said November Session 1822 of the Court of Pleas and Quarter Sessions for the county of Jackson aforesaid came the parties in their proper persons and the defendants say they cannot gainsay the plaintiff's actions for three hundred and forty one dollars and sixty six cents, and confess Judgment for the same. It is therefore considered by the Court, that the plaintiff recover against the defndants the aforesaid sum of three hundred and forty one dollars and sixty six cents as confessed aforesaid and also his costs by him about his suit in this behalf expended, and the plaintiff agrees to stay the finance of excution until the first dayof April next.

And beit also rembered that on the 20th dayof August 1823 a fieri facias was issued by the clerk of the court aforesaid in the words and figures following to wit, State of Tennessee. To the Sheroff ofJackson County Greetings You are hereby commanded thatof the goods and chattles lands and tenements of Price Butler and Robert Montgomery if to be found within your county youcause to be made the sum of three hundred and forty one dollars and 66 cents which James Young lately in our Court of Pleas and Quarter Session for Jackson County at November Session A.D. 1822 recoverd against them for debt also the further sum of four dollars and 42 cents of suit in this behalf expended, whereof the said defendants are convicted and liable as appears to us of record, and have you those monies ready to render before the Justices of our next court of Pleas and Quarter Session to be holder for the county of Jackson at the Court house in the town of Gainsboro on the first Monday of November next unto the said Young for his debt and costs aforesaid herein fail not andhave them there this writ Witness Samuel G. Smith clerk of our said Court at office the 1st Monday of Augt. A.D. 1822 and 48 year of our aindependence. Sam G. Smith Clk.

On the above was endorsed the followng bill of costs, to wit, Judgt 5th November 1822 $ 341.66 writ & bond 1.40 Judgt 100 fi.fa 40 Tax 1.62 = $4.41 Take Bank Notes S.G. Smith. Also the following endorsement and sheriff's return, to wit, Fi.Fa. __ 311. __ James Young v. Price Butler and Robert Montgomery. Debt issued 20th August 1823. Came to hand 23rd day of August 1823 Serviced one gray horse and one sorrele and two bays 26 cows & calves 6 head of dry cattle )) head of hogs this 2_th day of August 1823, and the property delivered and not sold for the want of bidders October 13th day of 1823, and the following property levied on the second time on the 15th day of October 1823 and the property delivered on the first day of November 1823 and not sold for the want of bidders and levyed on the same property levyed on the third time and not time to sell and an alias fieri facias in the aforesaid cause was issued bythe aforesaid clerk of the Court aforesaid on the 15th November 1823 in the words and figures following, to wit, State of Tennessee. To the Sheriff of Jackson County Greetings:
Whereas a writ of fieri facias issued from the Court of Pleas and Quarter Sessions for Jackson County and to you directed in favor of James Young against Price Butler and Robert Montgomery tested the first Monday in August 1823 for three hundred and forty one dollars and sixty six cents with the fees hereon endorsed and whereas it appears that you have made the following return on the same to wit Levied on one gray horse and one sorrell and two bays 26 cows and calves 6 head of dry cattle 40 head of hogs this 27th day of August 1823 and the property delivered and not sold for want of bidders October 15th 1823 and the following property levyed on the second time on the 15th day of October 1823 and the property delivered on the first day of November 1823 and not sold for want of bidders and levyed on the same property levyed on this time, and not time to sell. William Locke Shff.

You are therefore hereby commanded to expose to sale the above described property to satisfy the aforesaid sum of three hundred and forty one dollars and sixty six cents, and the cost hereunto endorsed, and heave you those monies before our said Court at the Court house, to be held for Jackson County at the Court house in Gainsboro' on the first Monday in February next, so as to send in to said plaintiff his debt and costs aforesaid and have you then and there this writ fail not witness Sam G. Smith Clerk of our said Court at office this first Monday in Nov. 1823 & 48th year of our Indepen- dence Sam G. Smith clk

On which was indorsed the following bill of costs, to wit, Judgt. rend. 5 Nov 1822 $341.66 Clk writ & bond 1.40 Ri Judgt 1.00 2 fi.fas. @ 4 e = 80 State tax 1.62 =$4.82 Take Bank notes Sam G. Smith and the following endorsement and sheriff's return, to wit, N.D. No. 311 C. James Young vs. Price Butler and Robert Montgomery. Debt Issued 15th Nov 1823. Came to hand the same day iss'd William Locke Shff the within mentioned horses were taken away by virtue of another execution & the balance of the property within mentioned was sold by virtue of a fieri facias in this cause for the satisfaction of the same debt as from return in said fi.fa. William Lock Shff. by his deputy John Wilson. Also one other indorse- ment in words and figures following, to wit, Rec'd Clerk's costs and State tax from the Sheriff 5th Feby 1824 Sam G. Smith. And be it remembered that again on the 29th day of March 1824, another fieri facias was issued by said Clerk in the words and figures following, to wit, State of Tennessee

To the Sheriff of Jackson County Greeting:
You are hereby commanded that of the goods and chattles lands and tenements of Price Butler and Robert Montgomery of your county you cause to be made the sum of three hundred and forty one dollars and sixty six cents & the costs hereunto endorsed which sum James Young lately inour Court of Pleas and Quarter Session held for the County of Jackson recovered against them for debt and costs. Whereof the said defendants are convict and liable as appears to us of record; and have you the said monies before our said Court at the Court house in the town of Gainsboro'on the first Monday in May next so as to render to the said plaintiff for his debt and costs aforesaid. Witness Sam G. Smith Clrk of our said Court at office this first Monday in February 1824 and 48th year of our Independence. Sam G. Smith clk.

On which fieri facias was endorsed the following bill of costs, to wit, Judgt 5th Nov 1822 $341.66 writ & bond 1.40 Judgt 1.00 - 3 fi.fax. 120 State tax 1.62 = $522 Take Bank notes S.G. Smith. Also the following endorsement and Sheriff's return, to wit, Fi.fa No 311 C James Young v. Price Butler & Robert Montgomery. In. Debt Iss'd 29th March 1824 Came to hadn the same day iss'd William Locke Shff. Levyed on 4 head of horses & 9 head of cattle sale 30th April 1824, and the property not delivered J.L. Little DShff - The within is credited by $158.30 the 22nd Nov 1823 being the amount for which four horses were sold and which was credited on a fifa S.G. Smith v. P.Butler also 22nd January 1824 $27.17 on sale of cattle also $4.82 for the costs of this fi.fa. and be it rembered that again on the 10th day of May 1824 another fieri facias was issued by the aforesaid clerk,in the words and figures following, to wit, State of Tennessee. To the Sheriff of Jackson County Greeting: You are hereby comman= ded that of the goods and chattles lands and tenements of Price Butler and Robert Montgomery of your county you cause to be made the sum of three hundred and forty one dollars & 66 cents & the costs hereunto endorsed, which sum James Young lately in our court of pleas and quarter Session held for the County of Jackson recovered against said defendants for debt and costs, whereof the said defendants are convict and liable as appears to us of record and have you the said monies before our said Court, at the Court house in the town of Gainsboro' on the first Monday in the August next, so as to render to the said plaintiff for his debt and costs aforesaid Witness Samuel G. Smith clerk of our said Court at office this first Monday in May 1824 and 52nd year of our Independence. Sam G. Smith clk.

On which fieri facias was the following bill of costs endorsed, to wit, Judgt 5th Nov 1822 $341.66 writ & bond 1.25 = $6.87 Take Bank notes S.G. Smith Rec'd Clks fees S.G. Smith Also the following endorsement and sheriffs return, to wit, Fi.fa. No. 311 C. James Young in Price Butler & Robert Montgomery Debt Iss'd 10th May 1824. Came tohand 22nd dayof May 1824 William Locke Shff. July 15th 1824 Levied on wk horse 1 mare & colt Sale on 31st July 1824, and on that day it was satisfied J.L. Little D.Shffs The within is credited by $158.30 22nd Nov 1823 being the amount for which four horses were sold & which was credited in a fi.fa S.G. Smith vs. P. Butler. Also 22nd January 1824 with $27.17 on sale of cattle also $4.82 of the costs on this fi.fa. July 31st 1824 Rec'd the ballance in full of this execution. Sate of Tennessee Jackson County. E. William Gailbreath Clerkof the Court of Pleas and quarter Sessions for said County of Jackson, do certify that the ten foregoing pages contains a true and correct transscript of the proceedings had in the Court of Pleas and Quarter Sessions for said County of Jackson in the suit James Young vs. Price Butler and Robert Montgomery - Given under my hand and private seal seal (there being no seal of office yet provided) at office this 26th day of March 1828 and 52nd year of our Independence. William Gailbreath Clk.

During the reading of the record Sam G. Smith against Price Butler Pff's counsel objected to the deputation from Jas. Young to Deft. had Young examined who deposed that the execution was put into his hands he had no objection to levying on the negro but ws informed that a known officer would not be permitted to levy on her, that plff claimed her and would prevent a levy - He wrote the deputation all but the name Thomas Scanland - gave it so to Joel L. Little tellng him to fill the blank with any persons name he could get to levy it, and not to hold the witness responsible. Plff's consel having made the objection it was by the Court overruled the record finished and the witness further deposed that P. Butler became his deputy about Nov. 1819 acted till FEbry 1821 during which time he came embarrassed fell in debt to witness $600. Sam.'l G. Smith was clerk of Jackson County Court. Butler had of course to collect fees for Smith & Young was rejoiced when Smith told him he taken Butler's note so as not to hold Young responsible for Butlers collections Young req'd security of Butler who gave his brother in law Robert Montgomery.

Nancy Murray ndeposed that she boarded at & was an inmate of plff's house 6 months of the year 1820. Frequently heard plff's wife say the negro in dispute was given to Lucinda Butler & she told how the property was given out & divided had heard plff say substantially the same thing - plff was a still tongued man but never hinted any thing to the contrary while she lived there. There was no other under- standing in the family did not she ever heard him say he gave the negro to Butler.

__ Susannah Gordon deposed that she done the weaving of Butler's family, there was a grat deal of it The negro spun for Butler's wife while at plff's after she was taken back being asked by plff's counsel how shew knew said, the negro told her so - Mrs. Butler told her so and there was a difference in the thread. The negro was locked up at plff's spinning - crossed examined said she saw negroe's mother carry victual up stairs where the wheel was roaming & negro said it was so. Old Mrs. Morrell now dead told her & other women that Price Butler's wife named the negro in dispute at he birth - she Mrs. Morrell being the Granny.

Rich'd Gordan deposed that he knew the negro while in Butler's possession and she was understood in the neighbourhood to be Burtler's propety and was taken away just after Butler had a Boad sove descending the river and it began to be rumored about that Butler was broke. Wm. Hamilton deposed that he lived a great many years in the neighbourhood never more than 2 miles a number of years in 1 mile of plff and uniformly understood the negro was Butler's - had heard but one dispute ____ (Amos Kirkpatrick) and a great many still believe it - and that she was only taken back to save her from execution, had heard her called Butler's wife's from infancy did not recollect particularly the peoples names who spoke of it, the women he knew talked of it - it might have proceeded from the naming of the child.

Robert Scanland deposed that he had lived in neighborhood 20 years 7 or 8 miles - always understood she was Butler's property and would willingly have bought Butler's right while she stayed there - would not have bought of Butler after taken away for fear of a law suit. Never heard plff speak on the subject.

Henry Crowder deposed that it was always understood in the neighborhood that the negro belonged to Butler - she went to Butler's in spring of 1817 and was taken back in Spring of 1822. John Kirkpatrick deposed that she was called Butler's in the neighborhood.

Leroy B. Settle deposed that Price Butler was Deputy Sheriff but di dnot know of failure to pay cash that were collected. Was indebted to S.G. Smith but did not remember the date. Knows that Smith advanced to him Butler a sum of money to buy his load whichhe took down the river whenhe got his Boat Stove. at that time Butler had considerable property in his hands. this was all the evidence. - The Court charged the Jury, as follows. That the record as it stands in relation to the execution is beyond the reachof contradiction, beyond the influence of the testimony to impeach it. The statute of Limitations has no influence in the case. If the negro was given to Butler or if it was five years in his possession, she was liable to crditors. To destroy the legal implications of a gift, the father in law must clearly show it was a loan - , and so intended at the time. If the plaintiff retook the negro, after a gift to his son-in-law, and under the son's view of future embarassment with Young v. Smith, it would be fraudulent & void as to them. Such confeyances are void as well to present as future creditors.

The counsel for the plaintiff after verdict found moved the Court for a new trial which motion was by the Court overruled to which several opinions and charge of the Court the plaintiff by his counsel excepts and pray tha this Bill of exception may be signed sealed and made a part of the record in this cause which is done accordingly. Nath, W. Williams seal

From which Judgment the plaintiff by his attorney prays a writ of error to the next Court of erros and appeals for the third Judical Circuit to be held at Spart a on the second Monday in August next and to him said wrot of error is granted Whereupon came the plaintiff with Alexander Montgomery and Nathan Montgomery his security and executed bond for the prosecution of said writ of error with effect Which bond is in the words and figures following, to wit, Know all men by these presents that we Hamilton Montgomery Alexander Montgomery and Nathan Montgomery are held and firmly bound unto Thomas Scanland in the penal sum of five hundred dollars for the payment of which well and truly to be paid we bind ourselves our heirs executors and administrators jointly and severally firmly by these presents sealed with our seals and dated this 27th day of March 1828. The condition of the above obligation is such that whreas said Thomas Scanland hath this day obtained a judgment in the Circuit Court of Jackson County, at March Term 1828 against said HamiltonMontgomery for costs of suit of s'd Hamilton Montgomery against said Thomas Scanland from which judgment the said Hamilton Montgomery hat this day prayed and obtained a writ of error to the next Court of Errors & Appeals to be held for the third Judicial Circuit at Sparta on the second Monday in August next ___ if the said Hamilton Montgomery shall prosecute his said writ of error with effect or in case he fail therein that he pay and satisfy whatever Judgment shall be awarded against him then this obligation to be void else remain in full force & virtue. H. Montgomery seal
Alex'r Montgomery seal
Nathan Montgomery seal

Bill of Costs

DollarsCents

State Tax Clerk Smith Writ 100 bond 40
Clerk Quarles 1 continuance 40 prosecution security released 25
security taken for prosecution 25 jury 12
subpoenas for 23 witnesses at 12
17 probates of witnesses attendance at 6
Judgment final 100 motion for new trial 25
Motion for new trial overruled 25
Order for Writ of Error and bond 100
Bill of costs 50
Transcript of Record

Attorneys Haggard McCormick Hart & Owens _____ & _______
Sheriff Kirkpatrick 1 arrest & bond 1.25