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Congreve Jackson�s executor (John Gains or Gaines) vs John Holladay�s administrator (David Hampton)
Filed November 25, 1822 Clark County Circuit Court Kentucky Submitted by Lyndon Comstock, lyndoncoms@aol.com, 9/15/2006
[Introductory notes by Lyndon Comstock:
This suit concerns the ownership of a seven year old boy, Daniel, and who has to pay whom for him. This boy was sold at a public auction in Winchester, Kentucky on December 28, 1818. His well being was, needless to say given the mores of slavery, never even a point of discussion in these proceedings.
Congreve Jackson was the purchaser of Daniel. John Holladay was involved because he was the administrator of the estate of Ambrose Bush�who had been the owner of Daniel�and Holladay was the person who sold Daniel to Jackson. Nancy Julia (Bush) Comstock inherited Daniel from her father. Probably the key point of the case is whether or not she authorized Holladay to sell Daniel, which she apparently denied. With the help of her nephew Bunwell Lanford (or Sandford?), she kidnaps Daniel back from the Jackson family in 1822. Lyndon Comstock was Julia�s husband and thus became the nominal owner of Daniel at the time of Julia�s inheritance, however, Lyndon left Julia, and Kentucky, in 1814 and may never have even known about any of these proceedings.
This case is inter-related with as many as nine other Clark County cases from 1817-1829. Four of those cases are specifically raised in the proceedings of this case: Francis Walker vs Lyndon Comstock and John Holladay; Jeremiah Bush vs Lyndon Comstock and John Holladay; Nancy Jackson vs Bunwell Lanford (or Sandford, the spelling is uncertain) and Julia Comstock; and Jeremiah Bush vs John Holladay�s administrator (David Hampton). I intend to transcribe all of the related cases as I obtain them from the Kentucky archives. Additionally, Jackson�s executor filed an additional suit against Holladay�s administrator on February 22, 1826. The documents pertaining to this second suit are included below after the end of the main suit.
This was a long-running and convoluted case: there were three jury trials and two Kentucky Court of Appeals opinions for this case. There was also an appeal from the third trial but there is no record of any action upon the third appeal. The records of the Court of Appeals, which was the supreme court of Kentucky at the time, were lost in a fire in 1864; the documents included here all come from the Clark County Circuit Court records.
Once I�ve received the available documents for all of the inter-related cases, I will put together a summary.
I�ve changed the page order of the documents in this file as I received them to put them into chronological order.
Comments by me, including the page titles, are in brackets and/or italics. I have tried to retain the spelling and punctuation of the handwritten original, which is often only barely legible. A number of the pages have portions of the margins with some text missing and the cover page is particularly frayed.
If you have comments, please contact me at lyndoncoms@aol.com]
Cover pages
Jackson Execr vs. Holliday�s Admin 332 [332 is the bundle number for the file] Dec / filed Nov 25 1822/ 1823 March Cond Deft Costs/ June Cond Defts Costs/ Sepr jur Defd [?]/ 1825 June opin ct of appeals returned Jud reversed ord. to be reinstated on the Dockett/ Septr jury oped Plt & appl granted/ Plts cost [remainder missing]
[The following is written at right angles on the cover page.] We of the Jury find for the defendant. [signed] Jas Thomas [?] [This is the outcome of the September 1823 trial.]
[Different handwriting on the cover page] We of The Jury find for The plaintiff Six hundred & Twenty nine dollars 85 cents damages. [Signed but signature is illegible, something like RDWest.][This is the outcome from the October 1825 trial. Plaintiff�s costs of $40.17 were added to this to bring the total judgment awarded from this trial to $670.02]
[There are also a series of notations on the cover page pertaining to court costs, all of which that are included in this list amount to less than $10.]
[The surviving portions of this cover page do not include the results of the 1826 Court of Appeals ruling and the 1827 trial, however, these can be deduced from the other documents.]
Complaint (This is apparently the original 1822 complaint filed by the attorney for the plaintiff. Portions of the margin of every page are missing. Most of the information in this complaint is also referenced elsewhere, including the 1827 appellate decision.)
Clarke Circuit ct
John Gains Acting Executor of the will and testament of Congreve Jackson complains of David Hampton, Administrator of all and singular the goods and chattel right and credit of John Holladay deceased at the time of his death in a plea on the case for this that the said John Holladay in his lifetime, to wit on the __[blanks in original] day of __ in the year __ at said Circuit possessed a negro boy slave named Daniel and declared to the said Jackson in his lifetime that the said negro boy was the proper slave of the said Holladay in his capacity of Administrator of the estate of Ambrose Bush deceased and thereby deceitfully and fraudulently induced the said Jackson to [buy?] said negro slave from said Holladay as administrator aforesaid and give him there for the sum of four hundred and fifty dollars, which said sum of money the said Jackson then and there [paid?] to the said Holladay�and the Plaintiff in [missing word] says that the said negro boy, Daniel, was not [then?] and there the property of the said defendant administrator of Ambrose Bush deceased, but [at time?] and place of said sale and affirmation, the [slave?] boy was the proper slave of one Lyndon Comstock [and?] of right to said Comstock did [belong to?] Nancy Julia Comstock, the wife of said Comstock, after [two or three missing words], to wit on the __[blanks in original] day of __ in year __ at said Circuit, took and led said negro boy, being of the value of $600 [missing word] out of the possession and hands of Nancy Jackson (to whom said negro had been assigned by plaintiff in part of her distributive share of said Jacksons personal estate she being one said Congreve Jacksons children and distributees) [missing word] proper slave of said Lyndon Comstock.
[Second count�these counts are highly repetitive from one to the next and seem to each be slightly different variations on the nature of the alleged fraud] And the Plff further saith that the said Congreve Jackson in his lifetime, to wit on __ [blanks in original] day of __ in the year __ at said Circuit, bargained with the said John Holladay in his lifetime, to buy from the said Holladay, another [although the word �another� is used here, this apparently refers to the same Daniel�there must be a legal rationale for this phrasing] negro boy slave named Daniel of which the said Holladay was then and there possessed in his capacity of administrator of the estate of Ambrose Bush deceased and the said Holliday, knowing the said negro boy to be the proper slave of Nancy Julia Comstock, then and there deceitfully & fraudulently sold said negro slave Daniel to the said Congreve Jackson deceitfully & fraudulently warranting the said negro slave [to be?] his the said Holliday own negro, as administrator, for a great sum of money [to wit?] $450 to be paid by the said Congreve Jackson therefor to the said Holliday [and?] afterwards on the __ [blanks in original] day of __ in year __ at said Circuit, the said Nancy Julia Comstock took and carried said negro boy as her own negro boy, from possession of one Nancy Jackson (to whom said [said?] negro boy had been also assigned by the Plff [as part?] of her distributive share of said Congreve Jackson�s estate, she being one of said Congreve Jackson�s children and distributees)
3 count � And the Plff further saith [that?] said John Holliday in his lifetime to wit on the _ [blanks in original] day of __ in the year __ at [said?] Circuit was possessed of another negro boy slave named Daniel and the said Holliday being so possessed of said slave did then and there falsely and fraudulently [assert?] to the said Congreve Jackson that said negro boy was then then and there the property of Julia Comstock and that [missing word] the said Holliday was then and there legally authorised and empowered by the said Julia Comstock to sell [the?] right title and interest in said slave and the Plff saith that the said slave [was?] not then and there the property of [said?] Julia Comstock but was then and [there?] the property of the said Nancy Julia Comstock and of one Lyndon Comstock who was then and there the husband of the said Julia Comstock and the Plff further saith that the said Holliday was not then and there legally authorised and empowered by Julia Comstock to see her (the said Julia�s) interest in said slave, which affirmation the [said?] Holliday then and there knew was false and the Plff saith that the said Congreve Jackson then and there confiding in [the?] affirmation so made, by said Holliday was then and there falsely and fraudulently and deceitfully induced by the [said?] Holliday to purchase said negro [boy?] Daniel from the said Holliday at [the?] price of four hundred and fifty dollars [missing word] the said Congreve Jackson, afterwards, to wit, on the __ [blanks in original] day of __ in the year __ at said Circuit paid [to?] said Holliday and the Plff [saith?] that the said Holliday did then and there deliver the said negro to the said Congreve Jackson in pursuance of said [sale?] � and afterwards, to wit, on the __ [blanks in original] day of __ in the year __ at said Circuit after the death of said Congreve Jackson, the said negro slave came to the possession of the Plff as the acting Executor [of the?] last will and testament of said Congreve Jackson deceased and the Plff did [then?] and there, as Executor aforesaid assign the said negro slave to Nancy Jackson as part of her distributive share of the [personal?] estate of the said Congreve Jackson deceased the said Nancy Jackson being then and there one of the children and distributees of said Congreve Jackson and the Plff saith that the said Nancy Jackson did thereupon [take?] said negro slave into her possession and maintain and keep him until the __ [blanks in original] day of __ in the year __ at said Circuit, when [then and?] there the said Nancy J. Comstock and one Bunwell Landford took and led [the?] said negro out of the possession of said Nancy Jackson
4th count And the Plff further saith that afterward, to wit on the __ [blanks in original] day of __ in the year __ at said Circuit, the said John Holliday in his life time was possessed of a certain other negro boy slave, also named Daniel, and the said Congreve Jackson deceased, in his life time, then and there bargained with the said Holliday in his life time, to buy from [him?] the said Holliday knowing the said boy to be the property of Lyndon Comstock and Nancy Julia Comstock his wife, then and there falsely deceitfully and fraudulently sold said negro boy slave to the said Congreve Jackson [and the?] said Holliday then and there falsely deceitfully and fraudulently warranting the said negro slave to be the property of him the said Holliday for a great sum of money, to wit, the price of $450. to be paid the said Congreve Jackson therefor to the said Holliday [when?] in truth the said negro boy was then and there the property of the said Lyndon Comstock and Nancy Julia Comstock his wife �
5th count � And the Plff saith that afterwards, to wit, on the __ [blanks in original] day of __ in the year __ [at?] said Circuit the said John Holliday in his life was possessed of one other negro boy slave named Daniel and the [said?] Holliday then and there deceitfully and fraudulently affirmed to the said Congreve Jackson, in his life time, that (he, the said Holliday) had then and there authority to sell the right title and interest [of?] Julia Comstock in said negro slave [and?] the said Congreve Jackson then and there confiding in said false and fraudulent affirmation so made by the said Holliday, did then and there purchase from the said Holliday all the right title and interest of the said Julia Comstock in said slave, at the large price of four hundred and fifty dollars which the said Congreve Jackson afterwards to wit on the __ [blanks in original] day of __ in the year __ at said Circuit paid to said Holliday for said Julia Comstock�s right title and interest in said negro sold as aforesaid by the said Holliday to said Congreve Jackson � and the said Plff saith that the said Holliday fraudulently deceived the said Congreve Jackson in said purchase in this, that the said Holliday had not at the time [of?] said sale and affirmation a [legal?] authority to sell the right title and interest of said Julia Comstocks [missing word] said negro as the said Holliday [had?] then and there falsely and fraudulently [then stated?] and affirmed which the said Holliday then and there well knew.
All which is to the damages of the Plff $1000.
Wherefore he sues &c [&c means the same as etc]
And the Plff brings here into Court his letters testamentary grated [sic] him [missing word] the last will and testament of said Congreve Jackson, whereby it affirms that he is the acting executor of the last will and testament of said Congreve Jackson
Hanson for Plff [Samuel Hanson, the attorney for the plaintiff]
Subpoena for David Hampton dated November 25, 1822 (I have not bothered to transcribe the text of the subpoenas. The subpoenas were issued by Samuel Taylor, clerk of the court.)
Subpoenas March 1823 for William Rask, George B. Didlake, James Baber, Henry Schooler, Jesse Wilcoxon, Jeremiah Bush, R. French, Thos H Berry, George Hampton and Nancy Julia Comstock.
Subpoenas March 1823 for Thomas H Berry, Essa (Essarilla) Gourdon or Jourdan, Stanley Baber Jr), and William Rask.
Defendant�s not guilty plea filed April 1, 1823 (there is a note on the cover page stating �withdrawn by ord ct.� this must be in reference to the 1824 Court of Appeals decision. A new not guilty plea was made in 1825.)
And the defendant comes and defends the wrong and injury when [illegible word] and says, as to all the counts in the plaintiff�s declaration, that he is not guilty in the manner and form the plaintiff in his declaration hath alleged, and of this he puts himself upon the country and the plaintiff likewise
And for further plea in this behalf, as to the first, third, and fifth counts in the plaintiff�s declaration he says that the said Congreve Jackson did not pay to the said John Holladay said sum of four hundred and fifty dollars, as he has therein alleged, and of this he puts himself upon his country Allan & Simpson for deft and the plaintiff likewise
Subpoenas dated June 10, 1823 for Jesse Wilcoxon, Stanly Baber, and Jeremiah Bush
Subpoena of Oliver Hart (I have not bothered to transcribe the text of subpoenas)
Notice of Deposition of Oliver Hart dated June 27, 1823
Mr John Gains [illegible] of Congreve Jackson
Take notice that I will myself, or by agent, take the deposition of Oliver D Hart, de bene esse [a legal term which means sufficient for the present] on the 3rd day of next month at the Office of Oliver Keen Esq in the Town of Lexington, to be read in evidence in a suit at common law pending in the Clarke Circuit Court, in which you are plaintiff and I am defendant � June 27th 1823 David Hampton adm of John Holladay decd
Deposition of Oliver D. Hart of Lexington, KY on July 3, 1823 concerning Lyndon Comstock
The deposition of Oliver Hart taken pursuant to an order of the Clarke Circuit Court made at [then?] June Fourth [?] 1823 taken at the office of Oliver Keen in the Town of Lexington County of Fayette on this third day of July 1823 to Read as evidence in the Said Circuit aforesaid in a Suit now proceeding Wherein John Gaines Executor of C Jackson Decd are plaintiff and John Hollidays administrator are defendants.
The deponiant [sic] being of lawfull age and first duly sworn
Depose and Saith that he was well acquainted with Lindon Cumstock in the year of 1808 in the Town of Lexington during the time he acted as foreman in the Rope walk of James Wire [sic�name is actually Weir] in said Town and Continued his acquaintance until the year 1812 at which time he left Lexington as Lieutenant in Captain Harts Company [the Lexington Light Infantry] for Kennedy [apparently means Canady, that is, Canada] he afterwards Returned to Lexington and stayed but a short time Some time in February 1820 this deponant [sic] went to Orleans and met with the sd Lindon Cumstock who was in good health and stated he was from South America. this Deponant further states that the said Cumstock was married to Julia Bush the daughter of Ambrose Bush of Clarke County Kentucky.
And further this deponant Saith not.
[signed] Oliver Hart
The foregoing Deposition of Oliver Hart was taken sworn and Subscribed to pursuant to notice [illegible word] before me a Justice of the Peace for the County aforesaid this third day of July 1823.
[illegible words, then signed O Keen]
[Notes by LC on this deposition: I have not yet been able to determine if Oliver Hart was related to the Hart family, as in Captain Nathaniel Hart or his father Thomas Hart. There is an Oliver Hart in the 1820 census for Fayette County.
New Orleans is in Orleans parish and presumably could be called by the name Orleans. River traffic from Kentucky regularly went down the Ohio and Mississippi to New Orleans. Also, there is a sheriff�s note in the file, apparently from earlier in 1823, that �Oliver Hart is at New Orleans him not found.� Since Lyndon was said to have shipped out from the East Coast in 1814 and was said to have been �from South America,� I believe that Orleans refers to New Orleans rather than to, for example, Orleans, Indiana.
There is a James Weir in the 1810 census for Fayette County (but no James Wire). In a Memoir of Lexington by William Leavy, James Weir is noted as a prominent businessman in Lexington who owned, among other things, a rope walk and bagging factory. Leavy also states that Oliver Keen was a lawyer in Lexington.]
Subpoena for Nimrod L. Finnell for the September 1823 trial, executed by James Brasfield, who also executed many of the other subpoenas.
Subpoenas March-September 1823 subpoenas to Oliver Hart, William Rash Jr, George B. Didlake, Thomas H. Berry, Jeremiah Bush, Julia Comstock, Jesse Wilcoxon Junr, James Baber, Henry Schooler; also Nimrod L Finnell and Levy Hart.
Subpoenas for the September 1823 trial for William Rask Junr, George B. Didlake, Thomas H. Berry, James Hamilton, James Baber, and George Hamilton. Also for James Browning, Jeremiah Bush, and Jesse Welcockson.
Deposition of Nimrod L. Finnell on September 25, 1823
The deposition of Nimrod L. Finnell taken at the tavern of James Lampton in the Town of Winchester on the 25th day September 1823 � to be read as evidence in the Clarke Circuit Court where in John Gains Executor of Congreve Jackson is complainant and David Hampton administrator of John Holliday decd is defendant who being of lawful age and first duly sworn deposeth and saith that by the request of John Holliday administrator of Bush decd he inserted the following advertisement in the Ky advertiser of the 26th December 1818 to wit, Will be sold to the highest bidder in the 28th Inst [Instant] being court day, before the door of John Dudley in Winchester a likely Negro Boy seven years old the property of Julia Comstock, to satisfy several Executions, one half of the purchase money down, and the other half in three months the purchaser giving bond with approved security. John Holliday Dec. 19, 1818
on the same manuscript the following advertisement was also inserted
N.B. all those indebted to the estate of Ambrose Bush decd are earnestly requested to make payment as there can be no longer indulgence given. John Holliday adm
This deponent also states that John Holliday paid him for inserting the said advertisements and further the deponent saith not.
[signed] N.L. Finnell
The foregoing depostion of Nimrod L. Finnell was subscribed and sworn to before me a justice of the peace for Clarke County at the time and place mentioned in the Caption parties being present Given under my hand this 25th day of September 1823 [signed] Benj Buckner
Bill of exceptions (appeal) filed by the plaintiff Sept 29, 1823�this is an appeal stemming from the 1823 trial
Jackson�s Executor vs Holliday�s Administrator
On the trial of the cause the Plff proved that Ambrose Bush died possessed of sundry slaves besides other personal estate � that John Holliday obtained from the Clarke County Court letters of administration on his personal estate and that after the death of said Holliday the defendant Hampton was by the same Court appointed administrator of said Holliday�s estate � that Congreve Jackson having duly made and published his last will and testament, whereby he constituted John Gains his Executor died
The Plff then proved that Ambrose Bush owned the negro boy Daniel, in Plffs declaration mentioned and that said boy came to the hands of said Holliday on the __ [blanks in original] day of __ in the year__ agreed with the heirs at law of said Bush that they might divide the slaves of said Bush among them � that Julia Comstock [the phrase �the wife of Lyndon Comstock� is crossed out] was one of the children and heirs at law of said Bush and as she was not living in the State, said Holliday agreed to act as her agent in said division, by virtue of a letter of request from her to that effect � that the said heirs at law mutually agreed to an article of agreement whereby they agreed to abide by any allotment or division of said slaves which may be made among them by Isaac Hockaday James Browning and Henry Courtnay the said article was executed by said Holliday as agent for said Julia Comstock � that by the allotment made by said Hockaday and others, pursuant to said article the said negro boy Daniel was assigned to the said Julia Comstock that the allotment was acquiesced in by the parties to said article and each one took their respective negroes into possession with assent of said Holliday except that said Holliday retained the possession of said negro boy Daniel [missing word?] that afterwards, to wit, on the 19th day of December 1818 said Holliday caused the following notification to be inserted in the newspaper at Winchester and which reads in the words and figures following: (here copy the said advertisement from the deposition of Nimrod L. Finnell filed in this cause) that agreeably to said notice said Holliday exposed said negro boy Daniel to sale at auction and the Plaintiff�s testator, Jackson, became the purchaser at the price of $450 which was duly paid to said Holliday by Jackson [to?] whom the said boy was immediately delivered by said Holliday � that after the death of Jackson said negro boy was allotted to Nancy Jackson, one of his children and heirs at law as a part of her distributive share of said Jackson�s estate that while said boy was in the possession of John Gains, the Plaintiff, the said Julia Comstock and one Bunwell [last name illegible- apparently Lankford] forcibly took said negro out of the possession of said Gains, that thereupon the said Nancy Jackson brought an action of trover and conversion [this is a legal action for recovery of property wrongly taken by a defendant] in this Court against said Julia and Bunwell in which action a verdict and judgment were rendered for the defendants before the present suit was instituted.
The article of agreement above mentioned was not produced but its loss being proved [illegible word] evidence of its contents was given as above set forth.
The defendant then read in evidence the proceedings of a suit now defending in this Court between Jeremiah Bush Complainant and Lyndon Comstock and John Holliday defendants which read in the words and figures following to wit (here insert them)
The defendant then read in evidence the proceedings in a suit formerly pending in this Court between Francis Walker Complainant and Lyndon Comstock and John Holliday defendants which read in the words and figures following, to wit (here insert them)
The defendants then proved that said Holliday sold the negro boy Daniel by virtue of and in satisfaction of the decrees being set forth. The defendant further proved that Julia Comstock is the wife of Lyndon Comstock and that they are both now living.
The Plff then moved the Court to instruct the Jury that neither of said decrees now both confirmed conferred upon said Holliday the [illegible word] to sell said negro boy Daniel or the distributive share of said Lyndon Comstock and his wife Julia, in the negroes of Ambrose Bush aforesaid, which motion was resisted by defendants and overruled by the Court
The defendant then moved the Court to instruct the Jury that if they were of opinion from the evidence that the said negro boy Daniel was allotted to said Julia Comstock, as a part of her distributive share of said Ambrose Bush�s negroes and that the sale of said negro was made by Holliday to Congreve Jackson in virtue of the Decrees in [illegible word] of Walker before mentioned, the Jury ought to find a verdict for the defendant inasmuch as said decree authorized such a sale and thereby a valid title in said negro boy passed to said Jackson, the purchaser � which motion [illegible word] opposed by the Plaintiff, the Court sustained and instructed the Jury as moved for by defendant � for which opinion of the Court [illegible word] the instructions asked for by the plaintiff and granting the instructions [asked?] for by the defendant, the Plff [through?] his counsel excepts and prays the Court to sign, seal, &c. this his Bill of Exceptions which is accordingly done.
[signed by the judge, the first initial is illegible] Clark [?]
[Note at bottom of page:] and proven furthermore that the negro in contest was the whole of the distributive share of the said Julia Comstock of the estate of Ambrose Bush decd
1824 Court of Appeals opinion
State of Kentucky Court of Appeals December 17th 1824
John Gaines Executor of the last Will and Testament of Congreve Jackson deceased against David Hampton administrator of John Holliday decd
upon a Writ of Error to reverse a Judgment of the Clark ct ct
The court being now sufficiently advised of and concerning the premises and having inspected the Transcript of the record of the Judgment aforesaid delivered the following Opinion To wit: �This was an action on the case brought by Gaines as Executor of Jackson against Hampton as administrator of Holliday for a deceit alleged to have been committed by Holliday in his life time in regard to the title of a slave sold by him to Jackson.
Hampton for plea alleged that �he is not guilty in manner & form as the plaintiff in his Declaration hath alleged� and upon the plea issue was Joined [?] and a Verdict and Judgment were rendered thereon for the Defendant to reverse which the plaintiff presents [?] this Writ of Error. It is most manifest that the plea is bad that the issue Joined [?] thereon is immaterial: The Declaration does not alledge that the Defendant was guilty of the deceit but that his intestate was and as the plea only denies that the Deft was guilty it is plainly not responsible to the allegation : It is therefore considered by the Court that the Judgment aforesaid be reversed and Set aside and the cause remanded that a repleader [a second pleading] may be awarded and further proceedings there had not inconsistent with this Opinion Which is ordered to be certified to said circuit court.
A copy Teste Jas. L Dallam D for F.P. Blair c.c.a. [Francis P. Blair, Clerk, Court of Appeals ]
Record of costs. This cost accounting is included following the end of the 1824 Court of Appeals opinion and apparently refers to costs up to that time. It includes a fee of 50 cents for a copy of the opinion and comes to a total of $39.71 � .
Subpoenas August-September 1825 subpoenas to Richard French, Micah Fauk [?], Thomas H. Berry, William Rash Jr., George B. Didlake, James Baber, Jeremiah Bush
Subpoenas. August 1825 subpoena for Nimrod L. Finnell to appear in September 1825. August 1825 subpoenas for September 1825 appearances for Jeremiah Bush, Jesse Wilcox, and Stanley Baber
Defendant�s not guilty plea filed October 12, 1825. (The filing of a new not guilty plea was apparently prompted by the 1824 Court of Appeals opinion ruling the prior plea invalid.)
and the defendant comes and defends the wrong &c and says as to all the counts in plaintiffs declaration that the said John Holladay, defts intestate, was not guilty in manner and form as the plaintiff in his declaration hath alledged, an of this he puts himself upon the country Allan & Simpson for deft And the plff likewise
And for further pleas in this behalf, as to the first, third and fifth counts in the plaintiffs dec he says that said Congreve Jackson did not pay to the said John Holladay said sum of four hundred and fifty dollars as he has therein alledged, and of this he puts himself upon the country Allan & Simpson and the plaintiff likewise
Defendant�s motion for instructions to the jury for the 1825 trial. (Although no dates are given within this document, it is clear that the 1826 Court of Appeals opinion refers to these instructions, hence this motion was made at the 1825 trial.)
The defendant moves the Court to instruct the jury �
1st That if they believe from the evidence that John Holladay decd sold the negro boy Daniel as administrator of Ambrose Bush, and that said Daniel belonged to the estate of said Ambrose Bush decd and at the time of the sale Holliday was administrator of Ambrose Bush decd and held him in that capacity that the sale was valid, and they must find for the defendant
2nd That if they believe from the evidence said Holliday at the time of the said sale of Daniel sold him as the agent of Julia Comstock believing he had authority so to sell him, that they must find for the defendant, and the plaintiff cannot recover in this form of action.
3rd That mere division of the slaves of Ambrose Bush decd, by and with the consent of the admr, did not take the property out of the possession of Holliday as Adm only so far as he consented, that the distributees after the division should have the possession of the slaves so allotted to them �
4th That if they believe from the evidence that at the time of said Division of the slaves of Ambrose Bush decd the admr of said Bush and the distributees present, believed, that Linden Comstock the husband of Julia Comstock was dead, when in fact he was not, and that Holliday acted under that belief as agent on that occasion for Julia Comstock, by a letter from her and not from Lynden Comstock her husband, that then so far as it regarded the interest of said Lynden Comstock & Julia Comstock said division of said slaves was not binding on them and Holliday as the admr had a right to hold the slave Daniel ad admr of Ambrose Bush
5th If the jury believe from the evidence that sale of the negro boy Daniel was made by defendants intestate, to said Jackson in good faith, and without fraud, concealment or misrepresentation, then the plaintiff cannot recover in this form of action, and that the jury must find for defendant.
[the following note is then appended at right angles:] 1st and 4th instructions asked for given and balance overruled
Plaintiff�s motion for instructions to the jury for the 1825 trial. (Although no dates are given within this document, it seems clear from the 1826 Court of Appeals opinion that this motion was made at the 1825 trial.)
That if the jury believe from the evidence that the intestate Holladay sold the slave in Pffs declaration mentioned as Administrator for Ambrose Bush deceased (having said negro in possession) � or that he sold him as his own property - (having him in possession at the time of said sale) they must find for the Plaintiff, if the Jury believe from the evidence that said slave was not the property of said Holliday as administrator in individual right or was then the property of Lyndon Comstock or Julia Comstock unless they believe that said Holliday had authority or license from said Lyndon Comstock to sell said slave.
That if said Holliday agreed to an allotment and division of Ambrose Bush deceased�s slaves among his heirs at law and distributees and that the negro slave Daniel with his assent was allotted to Julia Comstock on account of her share of said Ambrose Bush�s negroes and retained by said Holliday for her under said allotment that he had no right to sell said negro slave to Pff�s testator as the administrator of said Ambrose Bush
Bill of exceptions (appeal) for the defendant filed October 14, 1825. This document recapitulates the trial and notes the objections to rulings of the court by the defendant. This refers to the 1825 trial.
Be it remembered that on the trial of this cause the plaintiff proved that Ambrose Bush died possessed of sundry slaves and a considerable personal estate, that John Holliday after the death of said Ambrose Bush, was legally appointed his admr and acted as such.
The plaintiff then proved that Ambrose Bush owned the negro boy Daniel in the plaintiffs declaration mentioned and that said boy & other estate of decedent came to the hands of said Holliday as administrator that Holliday on the day [day not given in original] of November in the year 1818 agreed with the heirs at law of said Bush among them that Julia Comstock was one of the children and heirs at law of said Bush and she was not living in this state, that she was intermarried with one Lyndon Comstock, who was alive, and also living out of the state, and that Holliday in said division agreed to act as the Comstocks agent by virtue of a letter from said Julia Comstock That the said heirs at law mutually executed an article of agreement, whereby they agreed to abide by any allotment of said slaves which might be made among them by Isaac Hockaday James Browning and Henry Courney, that said articles was executed by said Holliday as agent for Julia Comstock that they the allotment made by the said Hockaday and others pursuant to said article the said negro boy Daniel was assigned to the said Julia Comstock, that the allotment was acquiesced in by the parties to said article, and each took their respective negroes into possession with the assent of said Holliday except, that the said Holliday retained the possession of said negro boy Daniel. That afterwards to wit on the 19th day of December 1818 the said Holliday caused the following notification to be inserted in the newspaper at Winchester, and which reads in the words and figures following.
�Will be sold to the highest bidder on the 28th instant being court day before the door of John Dudley�s in Winchester a likely negro boy 7 years old the property of Julia Comstock to satisfy several executions, one half of the purchase money down and the other half in three months the purchaser giving bone with approved security � December 19th 1818 John Holliday
N.B. all those indebted to the estate of Ambrose Bush decd are earnestly requested to make payment as there can be no longer indulgence given. John Holliday adm
That agreeably to said notice said Holliday exposed said negro boy Daniel to sale at auction and Congreve Jackson became the purchaser at the price of $450, to whom the said boy was immediately delivered by said Holliday � the plaintiff also proved the payment of part of that part of said purchase money which was to have been paid down
The article of agreement above mentioned, was not produced, but its loss being proved, [illegible word] of evidence of its contents was given in [?] as above set forth. The plaintiff also proved that before this suit was brought said boy Daniel was seen on horseback, behind one Bunwell Landford, the nephew of said Julia Comstock and that at said time the said Landford & Julia Comstock both lived at the said Jeremiah Bush.�s And the foregoing being all the testimony introduced by the plaintiffs, the defendant moved the court to instruct the jury that the law was for the defendant, and that they must find for the defendant, as in case of a non-suit, which motion was opposed by the counsel of the plaintiff, and overruled by the court, to which opinion of the court overruling said motion the defendant excepted.
The defendant then proved that said sale of said boy Daniel by said Holliday was made under and by virtue of a decree of the Clarke Circuit Court in a suit in Chancery in which Frances Walker was complainant and Lyndon Comstock and the said John Holladay defendant, and also a decree of the same Court in a suit still pending in which Jeremiah Bush is Complainant, and the said Comstock and Holladay, defendants. And also proved that part of the money arising from the sale of said boy, amounting to about two hundred dollars had been paid by said Holliday to the said Jeremiah Bush on said decree � And further that the said negro boy Daniel was the whole of the distributive share of the estate of said Ambrose Bush belonging to said Lyndon Comstock in the hands of said Holliday at the time of rendering said decrees in said suits in chancery except the said Comstock�s interest in the sum of about three hundred dollars or whatever was left of said sum after the payment of the cost of certain suits against said Ambrose Bush�s estate for which said three hundred dollars was intended by said Holliday, and said Comstock�s interest in said balance , was one seventh part, there being seven distibutees � And the defendant then offered to read in evidence the dccrees and proceedings in said two suits in Chancery, which read in the words and figures following to wit. (Here copy the proceedings in the suit of Walker vs Comstock &c and then the proceedings in the suit of Bush vs Comstock &c)
To the reading of which decrees & proceedings in Chancery in evidence the plaintiff objected, on the ground that they were totally irrelevant, and showed no authority in the said Holliday to sell said boy Daniel, and the court sustained said objection and refused to allow the defendant to read said decrees and proceedings as evidence, to which opinion of the court the defendant by his counsel also excepted
The plaintiff by his counsel then moved the Court to instruct the jury that if they found for the plaintiff, the criterion of damages was the said sum of $450 the purchase money with interest thereon at the rate of six per centum per annum, from the time it was paid, by the terms of said sale, which instruction although opposed by defendant, the court gave, to which opinion of the court the defendant likewise excepted � The defendant then moved the court to instruct the jury that if they believed from the evidence that the said Congreve Jackson and those claiming [?] under heirs [?] had said boy Daniel in possession by virtue of said sale, that for so long as they believed from the evidence said possession was continued, they ought ot make a reasonable allowance for his use, in abatement of damages, which instruction was opposed by the plaintiffs counsel, and refused by the court, to which opinion of the court refusing said instructions, the defendant also excepted � And now prays his Bill of exceptions to be signed sealed and made a part of this record, which is done accordingly � [signed by the judge] George Shannon
Bill of exceptions (appeal) for the Plaintiff filed October 14, 1825. Despite having won the 1825 jury trial, the plaintiff also filed an appeal.
Jackson�s Executor vs Holliday�s admr
After the Plff had introduced his testimony as stated in the Bill of exceptions filed by the defendant herein he then offered to read to the Jury the record of the proceedings in the action of trower & conversion brought by the present Plff against Bunwell Landford and Julia Comstock which record reads as follows (here insert it) to the reading of which record the defendant objected and the Court refused to permit the Plff to read said record to the Jury to which opinion of the Court the Plff excepts and prays the Court to sign seal &c this his bill of exceptions, which is accordingly done. [signed by the judge] George Shannon
Subpoenas. May 1827 subpoena for a June appearance for Nimrod L. Finnell
Subpoenas issued in May 1827 to appear in June 1827 for George B. Didlake, Thomas H. Berry, and Jeremiah Bush. One gathers that this date was postponed until September.
A subpoena for Jeremiah Bush to appear at the September 1827 trial.
A subpoena for Nimrod L. Finnell to appear at the September 1827 trial.
A subpoena for Thomas H. Berry and George B. Didlake to appear at the September 1827 trial.
Court of Appeals decision dated October 21, 1826
Court of Appeals decision dated October 21, 1826. This opinion was apparently written by Judge Mills. Allan was said to be the attorney for the appellant and Hanson the attorney for the appellee.
State of Kentucky Court of Appeals October 21st 1826
David Hampton Admr of John Holladay applt against John Gaines Exor of Congreve Jackson appellee
upon an appeal from a Judgt of the Clark Circuit Ct
The court being sufficiently advised of & concerning the premises delivered the following opinion, to wit.
John Gaines as Executor of Congreve Jackson brought an action on the case against David Hampton the administrator of John Holliday, and declared with several counts. In the first, he declares that John Holliday was possessed of a slave which he represented to be his proper slave, held by him (Holliday) as the administrator of Ambrose Bush, and thereby deceitfully and fraudulently induced said Jackson to buy him at the price of 450 dollars. But that the slave was not part of the estate of Bush, and did not belong to said Holliday as such, and belonged to a certain Lynden Comstock, whose wife had taken the said slave away from one of the female distributees of the said Congreve Jackson, to whom the slave has been assigned by the plaintiff, in the distribution of his estate.
The second count, is the same in substance with the first, except that Holliday, the intestate of the defendant, is charged with selling the said slave as administrator of Ambrose Bush, knowing him to be the proper slave of Nancy J. Comstock, and with concealing that fact.
The third count charges, that Holliday was possessed of the slave, and represented him to be the property of Nancy J. Comstock, and that he was authorized and empowered by the said N. J. Comstock to sell the slave, all which he knew to be false, but that the said slave belonged to Lynden Comstock, husband of the said N. J. Comstock; yet he induced the said Congreve Jackson to buy and pay for the slave by the aforesaid fraudulent representations; and then follows the allegation that the slave was taken away as in the other counts.
The fourth count avers that the slave belonged to Lynden Comstock and his wife, and that said Holliday well knowing the fact, sold the slave as his own, concealing the truth and misrepresenting his title, and the slave was lost as before.
The fifth count states the slave to be the property of N. J. Comstock - that Holliday was possessed of him, and falsely and fraudulently represented that he was authorized by her to sell him, and did profess to sell the right of said N. J. Comstock to the boy, which Congreve Jackson purchased, when in truth and in fact he had no authority or right to sell the slave and that N. J. Comstock had reclaimed him as stated in the first count.
The defendant pleaded that his intestate was not guilty; and on the trial the plaintiff proved that the slave in question belonged to the estate of Ambrose Bush deceased, of which Holliday, the defendant's intestate, was administrator; that Holliday had assented to the distribution of said Bush's estate, and with the distributees had united in choosing men to divide - that all the distributees were present, except Nancy Julia Comstock, a daughter of said Bush, who with her husband lived out of the State, and that Holliday himself represented her as agent in said division, by virtue of a letter from her to that effect, and signed as agent for her a written agreement, evidencing the division - that each distributee took their portions, and acquiesced in the division, and Holliday for Comstock & wife, took into his possession the slave in question, and kept him for them, they not being in the Country, and this slave was allotted to Mrs. Comstock, in full of her share of the estate. That some time afterwards, Holliday caused an advertisement to be inserted in the public newspaper printed at the court house of the County, to this effect:
"Will be sold, to the highest bidder, on the 28th instant, being court-day, before the door of John Dudley, in Winchester, a likely negro boy, seven years old, the property of Julia Comstocke, to satisfy several executions. one-half of the purchase money down, and the other half in three months the purchaser giving bond with approved security. December 19, 1818. (signed) John Holliday
He further proved that Congreve Jackson the plaintiff's testator, became the purchaser at the said sale, which Holliday conducted & complied with its terms, and Holliday forthwith delivered him the slave, and that on the death of said Jackson, the slave was assigned to one of his daughters, and was taken out of her possession by a relation of Julia Comstock, who now lived in this country with her, and the slave could not be regained from them.
The defendants' counsel moved the court to instruct the jury on this evidence as in case of a non suit. The court overruled the application.
The defendant then proved that he sold the slave, by virtue of two decrees of the same court, rendered in two suits in chancery, the one of Francis Walker against Lynden Comstock and John Holliday, as administrator of Bush, defendant, and the second Jeremiah Bush complainant, and the same defendants. In the first suit the decree was final, in the latter, interlocutory only and then attempted to read in evidence the records of said suits in chancery.
But they were objected to, as conferring upon Holliday no authority to make said sale or to sell the title of Julia or Lynden Comstock in the slave and as irrelevant. The court sustained the objection and would not suffer these records to be read.
The plaintiff moved the court to instruct the jury, that if they found for the plaintiff, the criterion of damages was the sum paid for the boy with legal interest thereon from the time it was paid, and the court gave the instruction.
The defendant then applied to the court to direct the Jury that they ought to make a reasonable deduction from these damages for the use and hire of the boy, for the time that Jackson and his representatives held him. But the court refused this instruction. To all these opinions of the court the defendant excepted, and spread the whole on record, and has prosecuted this writ of Error, contending that all these decisions or some one or more of them, are erroneous.
As to the motion to instruct the jury, as in case of a non suit, it can not be sustained [that is, the defendant�s request for �non-suit� can not be justified] on the ground that the evidence varied from all the counts in the declaration. For to say nothing of any other, the evidence substantially comported with the third and fifth counts, and conduced to prove the allegations therein contained. To wit, that the plaintiff assumed upon himself the right to sell the title of Julia Comstock & that the property was hers and he had no such authority.
Another ground on which the defendant below may have relied on in this motion was that the evidence was insufficient to sustain either count. To sustain the motion, for the want of a sufficiency of evidence, the deficiency ought to be clear, leaving out some link in the chain necessary to a recovery, and free from any evidence conducing to supply it. It is true the evidence here of the fraud or false representations of Holliday that he had authority to pass the title of Mrs Comstock, or that which descended from her father, of whom she was known to be a daughter, was not of the strongest character. But still no one could read his publication of the sale, and then see him expose the slave in pursuance thereof, but must have drawn the conclusion that he had authority; for his words and actions plainly shewed that he assumed that authority, either by virtue of a power from her or her husband, or from executions against her, and as the authority to sell a slave may be private, or verbal, and not of record, the person who claims to exercise it, ought to produce it, and the onus probandi lies upon him, when the authority has been assumed and is afterwards put in issue. The law will in favor of an officer of justice presume that he does his duty until the contrary appears, and this doctrine has sometimes been carried so far, as to put the party impeaching his acts, to prove a negative; but the rule is not extended to individuals, as Holliday appears in this transaction. Neither he nor his representatives can require their adversary to prove negatives--or that there was no authority. We therefore, conceive that the evidence here, weak as it is, was prima facie sufficient to call upon his representative to prove his authority, and the court did not err in supposing the evidence adequate to this purpose.
[The court is here stating that the buyer reasonably presumed that Holladay had authority to sell Daniel and that, once Holliday was sued for selling a slave he didn�t actually own, that it was up to Holliday to prove that he did have authority to sell the slave.]
On the rejection of the decrees in chancery, as irrelevant, and not proving any authority in Holliday, to dispose of the slave, we think the court below equally correct. In the first of these cases, the complainant had set up in his bill sundry demands against Lynden Comstock as a non resident and alleged that he was entitled to a considerable sum of money, and a portion of the slaves in right of his wife, as one of the distributees of Ambrose Bush, which were in the hands of said Holliday as administrator and Holliday is made a garnishee in the bill, with a prayer that the said estate might be subjected to his demands. On a final hearing the court liquidated the demands against Lynden Comstock, and decreed that Holliday should pay the sum so ascertained, "out of the money in his hands, as administrator of Bush, provided the distributive share of Mrs Comstock should amount to so much," after a previous decree of Jeremiah Bush was satisfied. Bush's decree, which was the remaining one offered, was of the same nature founded on a bill setting up demands against Lynden Comstock, and praying to subject the funds coming to him, and in the hands of Holliday, and it was interlocutory only. The court in that interlocutory decree ascertained the amount to be recovered by Jeremiah Bush, and to enable the court to decree payment out of the funds of Comstock in the hands of Holliday, appointed commissioners to take an account and report the money and property in the hands of Holliday, coming to Lynden Comstock in right of his wife, as one of the heirs of Ambrose Bush, and to make their report to court. No report was ever made and the cause remained on the dockett undecided. It is very evident that these decrees did not furnish any authority to Holliday nor had they subjected the slave in his hands. The first one is only to have the residue of money, and not slaves, after Bush's decree was satisfied, and it is still uncertain whether Bush's decree will ever subject either money or slaves. These decrees did not authorize any sale by Holliday, nor were they executions, as his advertisement alleges. They, therefore, furnish no appology for the sale of the slave nor do they conduce to prove even a mistake in a selling without authority, and of course they were properly excluded.
As to the instruction given relative to the criterion of damages, there is too great difficulty in sustaining the decision of the court below.
This is an action on the case for the fraud, and the criterion of damages, are in such cases, in a great measure left to the judgement of the Jury. The law, no doubt, requires that the compensation in damages should equal the injury occasioned by the fraud, and that injury was equal to the value of the slave lost and the price agreed to be given was no doubt strong evidence of that value. But to decide that interest should be given on that value as matter of law, was fixing a criterion which trammeled the discretion of the Jury, who might give or withhold it as to them should seem equitable. If the plaintiff in this instance had elected to bring indebitatus assumpsit to recover back the money which he had paid, and had treated the sale as a nullity, he would not, according to the best authority, have been entitled to the interest thereon as matter of law, and he ought not in this action to be allowed to recover interest on the supposition that the law had fixed the interest and the principal as a legal criterion of damages. The judgment, therefore, of the court below, on this point, can not be sustained.
But we approve of the refusal of that court to instruct the Jury to deduct from the damages the reasonable hire of the slave during the time the plaintiff's intestate held him.
This hire could not belong to Holliday who had no title to the slave, and as far as appears in this suit, no authority to sell him. For it, Jackson, or his representatives might be held accountable to the true owner of the property and in an action of detinue that hire could be recovered by the real proprietor. Of course no other person could be entitled to it.
It is therefore considered by the court that the judgement be reversed, the verdict set aside, and the cause remanded for new proceedings not inconsistent with the opinion herein, which is ordered to be certified to said court.
a copy teste [court clerk�s signature is illegible]
Records of costs
Jackson�s Ecor vs Holliday�s Admr taxation costs of suit on final determination ($57.45 � ) Issued
This document states that these costs were determined Sept. 1827 and gives the details of the Plaintiff�s costs of suit. Among the costs it lists $3.00 for Atts fee and tax on writ; $36.70 � for �Costs from commencement of suit up to and including Sept Term 1825 per old taxation on co opinion Ct appl filed� and various other costs which subtotal $57.45 � to which a .70 � cost labeled �Ecor &c� is added, bringing the total to $58.16. These costs would have been added to the total amount of damages awarded by the jury. There is no record in the file of the total amount of damages awarded from the 1827 trial but they are presumably at least as much as the damages of $629.85 awarded at the 1825 trial.
Bill of Exceptions (appeal) by defendant filed on October 6, 1827. There is no indication within the case documents that the Court of Appeals ever acted upon this appeal from the third trial.
Jackson�s Executors vs. Hollidays Adm
Be it remembered that on the trial of this cause at the present term. The plaintiff introduced L Finnel as a witness who proved that John Holliday in his lifetime caused to be issued, in a newspaper published in the Town of Winchester, the following advertisement (here insert it) which advertisement, including the Nota Bene at the end of it the plaintiff read in evidence to the jury � We also introduced Thos Berry who proved that on the day mentioned in said advertisement the said John Holliday sold said negro boy in the Town of Winchester and that Congreve Jackson became the purchaser of him at the price of $450.
We then proved by Richard French, that in the year of 1818 but before the sale of said boy made by Holliday there was a meeting of the distributees of Ambrose Bush, decd and men were appointed there by agreement amongst themselves to divide the slaves belonging to the estate of said Ambrose Bush decd and at that time a division of said slaves was actually made at which division the said John Holliday was present and consented to the same, and acted as the agent of Julia Comstock one of said Bush�s daughters who was not herself present.
That the division as then made was reduced to writing and signed by the distributees of said Ambrose Bush or so many of them as were present and that said John Holliday signed it as agent for Julia Comstock that he acted on that occasion himself as agent for one of the distributees, and after the division was finished, said [illegible word] having been transacted in the Country, he the witness by request brought said instrument of writing with him into Town for the purpose of having it recorded, that after keeping it in his possession some considerable time without having it needed, he brought it into thie Court to be used as evidence on the trial of same suit he could not recollect exactly what suit it was, but he believed it was the suit of Jackson�s Executor against Julia Comstock. On the trial of the said cause it had been used as evidence, that he had never seen it since, nor did he know what was then done with it, nor what had become of it, that he had made diligent search amongst his papers for it, but could not find it anywhere.
We also proved by Samuell Taylor, Clerk of this Court, that said instrument in writing was not among the papers in this suit, Jackson�s Executors against Comstock, the one in which it was said to have been used, nor was it ever seen by him as he recollected in his office, or filed among the papers of this suit. And the papers in said suit being produced in Court by the said Clerk, the envelope which had enclosed said instrument of writing was amongst them, and recognized by said French.
The plaintiff upon said evidence then offered verbal testimony to the jury of the contents of said instrument of writing evidencing said division to the administrator of which testimony the defendant by his counsel objected, but the court by its opinion overruled the objection to said evidence by the defendant, and decided that the plaintiff might introduce it to which opinion of the Court the Deft excepted.
The plaintiff then introduced Jeremiah Bush as a witness and proved by him that he was one of the children and distributees of said Ambrose Bush decd that he was present at said division of the slaves belonging to said estate that John Holliday acted as the agent of his sister Julia Comstock on that occasion, and as her agent signed said instrument of writing evidencing the division, that in the division, the slave Daniel was allotted to Julia Comstock, being the same boy shortly afterwards sold by Holliday to Congreve Jackson and that said Daniel belonged to Ambrose Bush in his lifetime and was part of his estate, and being cross examined by defendant he stated that Lynden [sic] Comstock who had intermarried with his said sister Julia Comstock, had been before said division took place reputed dead, having been absent some considerable time without having been heard from, and his death believed by the family, they having received a letter from his wife Julia containing the information of his having been lost at sea, that Holliday at that division acted as the agent of Julia Comstock, by virtue of a letter written by said Julia to him, that he did not act or pretend to act as the agent of Lynden Comstock, and further that on the day said division took place he did not hear Lynden Comstock named. He further stated that John Holliday before said division, had required all the distributees, who were there, to execute to him a refunding [?] bond, but that said bond was not executed by Julia Comstock, who at that time not being in this [County, Country?] and having been out of it for some years, nor was said refunding bond executed by Lynden Comstock, that after said division took place Holliday told the witness to take said slave Daniel home with him, and keep him until he called for him, that before said division said boy Daniel had been living at his house and after it he remained there until Holliday took him away to sell him. That Holliday signed said instrument of writing as agent for Julia Comstock and not as administrator.
That plaintiff having offered as evidence to the jury an answer for the defendant Hampton [illegible word] by him in a suit in Chancery pending [?] in this Court in which Jeremiah Bush is Complainant and said Hampton as Hollidays Adm and others are defendants, to the admission of which as evidence the defendant objected, but the court overruled his objections and allowed it to be read by plaintiff as evidence to the jury, to which opinion of the court the defendant also excepted, the plaintiff then read said answer together with the decree referred to in it to the jury as part of it, which answer and decree read in the words and figures following (here insert them).
Jeremiah Bush was then called back and proved further that said Holliday had paid him under that decree he being the Complainant, a part of the amount he sued for, how much exactly he could not tell, but he supposed one hundred and fifty dollars, that said payment was after the sale of said boy made by Holliday, that he supposed it might be considered as paid him out of the purchase money, although he never received any money but settled it with Holliday in the [at this point an out of order page is included�since it isn�t obvious where to place this extra page, I�ve instead added it to the end of this brief and continued on to the next following page] way of a discount he being indebted to Holliday.
The plaintiff then introduced a witness Preston Gaines, the son of the Plaintiff, who proved that sometime in the year 1821 or 1822 said boy Daniel was taken out of the possession of Plff J. Gaines and carried away and that he had not been seen since in the neighborhood - that he did not know who took him away and that said negro came to possession of his father as Executor of Congreve Jackson.
The Plff then called George B. Didlake who proved the sale of said negro to said Congreve Jackson by said Holliday at the time and place in said advertisement mentioned that said boy was a likely valuable boy of his age and that at said sale witness had offer him $445 � which he did not accept.
The defendant then read in evidence to the jury the following order appointing John Holliday adm of the estate of Ambrose Bush decd (here insert it) he then read the deposition of Oliver Hart, which reads as follows (here insert it) and introduced witnesses to prove the value of said slave Daniel at the time of the sale, and in the year 1822.
The foregoing being the whole of the evidence introduced before the jury, the defendant moved the Court to instruct the jury as follows, to wit:
1st That if they believed from the evidence that John Holliday decd sold the negro boy Daniel as administrator of Ambrose Bush decd, that said slave Daniel belonged to the estate of Ambrose Bush deceased and at the time of the sale Holliday was adm of said Bush, and held said boy Daniel in that capacity, that the sale was valid, and that they must find for the defendant.
2nd that if they believed from the evidence said Holliday, at the time of the said sale of Daniel sold him as the agent of Julia Comstock, believing he had authority so to sell him, that the plaintiff cannot recover in their form of action, and that they must find for the defendant.
3rd that a mere division of the slaves of Ambrose Bush decd by and with the consent of the administrator, did not take out of the possession of Holliday as administrator, only so far as he consented, that the distributees after the division, should have the possession of the slaves so allotted to them.
4th that if they believed from the evidence that at the time of said division of the slaves of Ambrose Bush decd, the administrator of said Bush, and the distributees present believed that Lyndon Comstock the husband of Julia Comstock was dead, when in fact he was not, and that Holliday acted under that belief, as agent on that occasion for Julia Comstock by a letter from her, and not from Lynden Comstock her husband, that then so far as it regarded the interest of said Lynden and Julia Comstock, said division of said slaves was not binding on them, and Holliday as the admr had a right to hold the slave Daniel in his possession as his property as administrator
5th that if the jury believed from the evidence that said sale of the negro boy Daniel was made by defendant intestate, to said Jackson, in good faith, and without fraud concealment or misrepresentation, then the plaintiff cannot recover in this form of Action and the jury must find for the defendant.
And the Court upon defendants application gave the first and fourth of said instructions as asked for but refused to give the others to wit, the second, third and fifth, they being objected to by the Counsel for the plaintiff. to which opinion of the court refusing said instructions they defendant also excepted.
The plaintiff then moved the Court for the following instructions to the jury to wit.
1st that if they believed from the evidence that the intestate Holliday sold the slave in plffs declaration mentioned as administrator of Ambrose Bush decd having said negro boy in possession or that he sold him as his own property (having him in possession at time of sale) they must find for the plaintiff, if they believe from the evidence, that said slave, was not then the property of said Holliday as admr, or in his individual right, or was then the property of Lynden Comstock or Julia Comstock, unless they believe that said Holliday had authority or license from said Lynden Comstock to sell said slave.
2nd that if said Holliday agreed to an allotment and division of Ambrose Bush deceaseds slaves amongst his heirs at law and distributees, and that the negro slave Daniel with his assent was allotted to Julia Comstock on account of her share of said Ambrose Bush�s negroes, and retained by said Holliday for her under said allotment, that he had no right to sell said negro slave to plaintiffs testator [?], as the administrator of said Ambrose Bush decd.
Which instructions was objected to by defendants counsel, but the Court gave said instructions to the jury as asked for by plaintiffs counsel, to which opinion of the Court giving said instruction to the jury the defendant also excepted, and now prays his Bill of exceptions to be signed and sealed and made a part of the record which is done accordingly.
[signed by the judge per the preceding paragraph] George Shannon
[the out of order page reads as follows:]
The said Berry further stated that other persons bid for said negro at the sale which was at public auction and offered within two or three dollars of the price for said negro which said Jackson gave � that he afterwards saw said slave in the possession of said Jackson and that he was as smart active and valuable boy of his age.
The said French further stated that at said division of said slaves all the distributees were present either in person or by agent the said Holliday acting as the agent of said Julia Comstock - that he had searched for said writing among the original papers in the suit tried in this Court of Jackson�s Executors vs said Julia Comstock before the former trials of this cause and had not been able to find it among said papers...[this section continues in a similar vein to other commentary on this point except that reference is made in this section that an Earl Cog (sp?) was the attorney for Julia Comstock in the earlier suit]
Bill of Exceptions (appeal) by plaintiff filed October 6, 1827 Despite having won the 1827 jury trial, the plaintiff also appealed.
Be it remembered that on the trial of this cause the Plff objected to the Court�s granting the fourth instruction as moved for by the defendant and set forth in this Bill of exceptions pled herein but notwithstanding Plff�s objection the Court granted said instruction : to which opinion of the Court the Plff by his counsel excepts and prays the Court to sign seal &c this his Bill of exception which is accordingly done. [signed by the judge] George Shannon
Motion for a new trial and additional Bill of Exceptions by defendant filed October 11, 1827
[Motion for a new trial:] The defendant moves for a new trial on the following grounds to wit
1st The finding of the jury is contrary to law and evidence 2nd The instructions given to the jury by the Court on plaintiffs application were erroneous 3rd The Court erred in refusing to instruct the jury as moved for by Defendant.
Allan & Simpson for deft
[additional Bill of Exceptions:]
In this case, the defendant moved for a new trial on the grounds filed, which read in the words and figures following (here insert them) but the Court overruled said motion and refused to grant a new trial to which opinion of the Court the defendant by his counsel excepts and now prays that this bill of exceptions to be signed and sealed and made a part of the record, which is accordingly done. [signed by the judge] George Shannon
The �second suit� Jackson�s executor vs Holliday�s administrator Clark County Circuit Court filed February 22, 1826
Cover page Gains Executor of Jackson vs Hampton Administrator of Holladay Dec 332 Filed 22nd Feby 1826/ 1826 March Contd/ 1826 June Contd/ 1826 Sept Contd/ 1827 Mar contd/ 1827 June non suit
[There are also the following notes about Defendants� costs:]
Defts Costs of Suit To wit Att fee $2:50 Judt VB 54 ord levy of ofsets 25 79 $3:29 [illegible word] 70 � $3:99 �
[It appears the Defendant may have been awarded costs of $3.99 � when this second suit was dismissed. This suit was presumably dismissed because it was superseded by the 1827 appellate decision which overturned the 1825 damages award to the plaintiff.]
Complaint of second suit. John Gains, Executor for Congreve Jackson, against John Holliday for $670.02 Complaint states that plaintiff received a judgment from the court against Holliday on October 13, 1825 for $629.85 plus $40.17 plaintiff�s costs and that it has not been paid.
[So far as I can tell, there is nothing further about this second suit within the records except for a subpoena issued on February 22, 1826 for David Hampton.]
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