Cope v Carter - Appeal

Submitted by Charolette “Chocy” Brown
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“Frederick County, Virginia Superior Court Order Book 1804-1812”

Page 148

COPE

V

CARTER

Appeal

In the record of proceedings in the County Court of Frederick among
others is the following:
The Commonwealth of Virginia to the Sheriff of Frederick County
Greetings you are hereby commanded to take Samuel COPE and William
BARKET/BARKEL (?) if they be found either you bailiwick and them
safely keep so that you have their bodies before the Justices of our
said County Court at the Court house on the Monday before the first
Tuesday in June next to answer Arthur W. CARTER of the plea of trespass
on the case Damage four hundred dollars and have them there this writ
Witness James Keith

clerk of our said Court at the Court house aforesaid the 21st day of
May 1801 and in the 25th year of the Commonwealth.

Ja KEITH
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Mem’ for breach of contract no bail required.

DANGEAFIELD pg
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Sheriffs return Executed on COPE and BARKEL no inhibitorst of my bailwick
Charles McCORMICK for E WILLIAMS Shrff.
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1801 June rules Appearances

July rules rule to declare
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August rules Continued for Declaration
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September rules the Same
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October rules The Plaintiff by his attorney filed his
declaration in the words and figures following Frederick County to wit
Arthur W. CARTER complains of Samuel COPE and William BARTEL for this
to wit that whereas on the ____day of ____in the year of our Lord one
thousand eight hundred _______at the Parish of Frederick in the county
of Frederick the said Defendants were commissioners as each were
Copartners in the business of Waggoners and carriers and whereas on the
same day and year aforesaid and the Defendants being Copartners as
aforesaid to wit at the Parish and County aforesaid in consideration
that the Plaintiffs at the special instance and request of the
Defendants had then and there delivered to said William BARKEL one of
the Defendants and partner of the other Defendant drove goods and
chattels to wit four barrels of whiskey contain thirty three gallons
each one double barrel of whiskey containing sixty eight gallons and
five barrels of flour being in the whole two hundred gallons of whiskey
of the value of one hundred and twenty dollars and five barrels of the
value of seven dollars and four (?) barrels of flour of the value of
forty two dollars to the safely carried by ___(?) and Defendants from
the house of the plaintiff in the parish and County ___(?)

_____ (?)

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___ (?) Alexandria and there to be delivered by the Defendants to the
Plaintiff on his order or otherwise safely and securely to be deported
in some store by warehouse there for the use of the Plaintiff for a
reasonable award or hire to be therefore paid by the said Plaintiff to
the Defendant they the said Defendants understood and then and there
faithfully promised the said Plaintiff safely to carry the said goods
and chattels from the house of the plaintiff aforesaid to Alexandria
aforesaid and there faithfully to deliver the same to the Plaintiff on
his Order or otherwise safely and securely deport them in some store
house or warehouse there for the use of the Plaintiff yet the said
Defendants not regarding their same promise and undertaking or their
duty as common carriers but contriving and fraudulently intending and
nihility (?) to devise (?) and defraud the plaintiff in this particular
(?) did not deliver the said goods and chattels or any part thereof to
the plaintiff or any person by his Order or deposit them as aforesaid for
his use at Alexandria aforesaid or elsewhere wish’s requested by the
Plaintiff so to do but the Defendants have hitherto altogether neglected
and refused to deliver the said goods to the plaintiff or his order at
Alexander aforesaid or deposit them in any store or warehouse there for
the use of the plaintiff And whereas also afterwards to wit on the same
day and year last mentioned at the Parish and County aforesaid the said
Defendants were common carriers in copartnershiped followed the business
of carrying goods and chattels and country produce of every description
from the parish and county aforesaid to Alexandria and the other trading
towns and places for a reasonable hire or wages therefore to be paid by
the persons employing them according to the custom for the County for
time immemorial used and approved and as such common carriers the
defendants were under a legal obligation to do and perform their said
business with fidelity and circumspection and whereas as on the same day
and year aforesaid at the Parish and County aforesaid the plaintiff at
the usual instance and request of the Defendants delivered to the said
William BARKETT one of the Defendants in copartnership with the other
Defendant and in the wagon used by them as partners other two hundred
gallons of Whiskey of the Value of one hundred and twenty dollars in five
vessels of the value of other seven dollars & other four barrels of flour
of the value of other forty two dollars to be by them the said defendants
safely carried to the Port of Alexandria (for a reasonable price therefore
to be paid by the plaintiff to the Defendants) and there to be by them
sold and disposed of for the best price that could be had for the same
and the money produced by such sale to be brought & delivered by the
Defendants to the Plaintiffs Yet the said Defendants not regarding their
duty as carriers and the obligation aforesaid but contriving & fraudulently
intending craftily and oublietty (?) to deceive and defraud the plaintiff
in this particular did not safely carry the said goods and chattels to the
Port of Alexandria there sell an dispose of the ____ (?) for the best price
that could be had and bring & deliver the money procured by such sale to
the plaintiff but conver__ (?) __ (?)and to his own us__ (?) __(?)
plaintiff says he is injured and hath sustained same _____ ________
dollars.

H. DANGERFIELD PA

Page 150

J. DOE

R. ROE

Pledges fee
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and writ to plead
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1801 November rules continued on rule to plead
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December rules writ on Ongoing
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At a Court continued and held for Frederick County the 4th day of March
1802. This day came the parties by their Attorneys and on the Defendants
by their Attorney. It is ordered that the Judgment obtained by the
plaintiff against them at rules held in the Clerks Office be sat aside
and therefore the said Defendants by these Attorney plead not guilty
which plea the Plaintiff by the Attorney Join.
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June Court. Continued.
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And at a Court continued & held for the County aforesaid the 5th day of
August in the year aforesaid Came the parties by their Attorneys and
thereupon same Jury to wit

Adam KURTZ, Adam YOUNG, John BRADY, John HODGE, Nathaniel LEAN, Thomas
WILLIAMSON, James NEWHAM, James SMITH, Jonathan LUPTON, Jacob POE,
Michael RILEY and Thomas JACKSON who being elected tried and sweared the
truth to speak upon the fore joined and not agreeing upon their verdict
by consent of parties by their Attorneys Adam KURLY one of the Jurors
aforesaid was withdrawn and the rest of the Jurors of the Jury aforesaid
from rendering their verdict of and upon the premises are to allege the
discharged and the cause continued until the next Court.
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November Continued for the Defendant

And at a Court continued and held for Frederick County the 4th day of
March 1803 Came the Parties aforesaid by their Attorneys and thereupon
came a Jury to wit Barney FAGAN, William ESKRIDGE, Daniel CLARK, Nahum
CHUNN, Philip RILEY, Conrad CREEMER, Michael COYLE, James WALL, Jacob
GRAPES, James SENVALL (?), Thomas WINE, and John CROCKWELL who being
elected tried and charged the truth to speak upon the Issue Joined the
plaintiff showed in evidence to maintain the Issue on his Part 1st a
Witness Henry FRIDLEY who exposed that the Defendant COPE told him in
the lane near Winchester he COPE and the Defendant BARKEL were in
partnership in waggoning that FRIDLEY mentioned to said Defendant COPE
the claim of the Ptt and told him he had better settle it and the
Plaintiff would probably indulge him, the said Defendant observed that
he did not think he would indulge him the said FRIDLEY observed that if
he COPE was willing he FRIDLEY would mention the business to the
Plaintiff CARTER the said COPE did not request him to do so.

2nd William TAYLOR another witness who disposed that COPE the Defendant
told him that the Defendant BARKEL was to draw one fourth of the Profits
arriving from waggoning and that said BURKEL had one horse in the team
and that BARKEL was to drive the team. 3rd Another witness Benjamin
FULKINSON who deposed that on Monday (the month and year not recollected)
he met COPE the Defendant who told him he had been after a load and had
got one from CARTER the Ptt at Le____ (?) mill that he seen BARKEL on
the same day who was looking for horses that he had not seen BARKEL since
and believes that BURKEL runaway shortly afterward then another witness
Henry TAYLOR who deposed that BURKEL applied to CARTER the Pltt for a load
than and CARTER did not promise him the load saying he would get some
person who was in his Lift (?) to carry for him that COPE the Defendant
had come there in the morning and the witness seen him & CARTER the
plaintiff talking together and he

Page 151

___ (?) COPE say he would and the team for the load that evening.
5th Another witness James (?) FULKINSON who deposed that he was at
Thomas LEIRS Mill when BURKEL came up to load flour that said BURKEL then
in his wagon four single barrels and one double barrel of whiskey which he
said that he got from the Plaintiff CARTER that BARTAL when took in five
barrels of flour belonging to CARTER the witness went with said BARTEL to
Alexandria where BARKEL told him he had sold the whiskey (except one barrel
which he sold upon the road) some at 2/3 some at 2/9 d some at 2p and further
that BARKEL returned part of the way home with the team and then runawayd
left the team on the road except one horse which he road away. 6th Another
witness FRAZIER he deposed that it was customary some times & often times
for wag goners to take flour to Alexandria & make sale thereof and bring
back the money and that COPE had done so for the witness. The Defendant COPE
on his part proved by the oath of John COPE that Henry FRIDLEY the
plaintiffs witness came to the house of the Defendants COPE with a pistol
in his hand & said he was in search of the Defendant BURKEL that the witness
asked the Defendant COPE whether he and BURKEL were in partnership to which
the Defendant COPE answered they were not this was in the presents of
FRIDLEY who suddenly turned his horse round and swore by GOD he COPE had
just told him he was in partnership and he FRIDLEY would go and swear to
it the witness also deposed that he was present the whole time of the
conversation between the Defendant COPE and the witness FRIDLEY and did not
hear but if it had passed he would have heard the fact that FRIDLEY and he
would swear to and proved by another witness William LEAN who deposed that
he was working for the Plaintiff CARTER WHEN Defendant BARKEL brought the
team to said CARTERS Witness asked M’as CARTER whose team that was M’as
CARTER mad answer it was COPES team the witness further proved that the
plaintiff CARTER directed the Defendant BURKET to sell the whiskey and flour
he was to take down and to bring back twenty bushels of salt and the balance
in money that CARTER observed after BURKEL went away I suppose this man
(meaning BARKEL) is a truly man the witness answered that he had heard BARKEL
was a drunken and quarrelsome man, the conversation took place before the
load was taken __ (?), the witness further said that CARTER mentioned COPES
name but does not remember what he said of him but did not hear him say that
COPE was to be answerable and by Captain Thomas MILL prayed (?) that CARTER
the Ptt went to the house of COPE the Defendant and asked COPE if there was
not some salt there for him the said Defendant COPE answered there was salt
there but whose property he would not tell if he CARTER chose to take it
he might at his own origin CARTER then did take the salt COPE then asked
said Ptt CARTER if he had otherwised said BARKEL to sell the whiskey and
flour and bring up salt and other articles among the rest held to which
CARTER replied he had so authorized said BARKEL the witness further
proved that the Defendant COPE and BARKEL purchased of the witness a wagon
and two horses that they entered into a joint bond because the Defendant
BURKEL

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could not get security in a separate bond that sometime afterwards ____(?)
witness that the property was to be divided and asked him if one horse
was not __ (?)
more than the other he answered he was The witness further proved that it
is the __ (?)
custom of the country to employ ------of teams sometimes to sell their
flour at market & bring back money or other articles directed but it was
not customary to employ the driver of such owner to sell such flour without
the amount of such owner And proved by ___ (?)
Hannah COLE that she heard CARTER the plaintiff say that he had entrusted
BURKEL to sell his flour and whiskey and bring back for him salt and rice
and thereupon the Jurors

Aforesaid in solemn form do say 7th The Jury find for the Plaintiff one
hundred and nine dollars damages object to the opinion of the Court upon
the demur to evidence filed in the cause. Nahum CHUNN.
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June Court in the year aforesaid Continued
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And at a Court continued and held for the said County the 5th day of
August in the year aforesaid to the evidence being agreed and overruled
It is considered by the council of the court that the plaintiff recover
against the Defendants one hundred an d nine dollars the damage
assigned by the Jury sworn in this cause at a former term and his Costs
by him in this behalf expended & the Defendants in mercy

From which Judgment and proceedings the Defendant prayed
____(?) to the next District Court to be holden at Winchester

Appeal Bond as follows

Know all Men by those Presents that was Samuel COPE, Charles MAGILL and
Hugh HOLMES are held and firmly bound unto Arthur W. CARTER in the just
and full sum of four hundred dollars to which payment well and truly to
be made to the said Arthur W. CARTER his heirs executors administrators
and assigns we bind __ (?) two our heirs executors and administrators
jointly and acurally (?) ___ (?) by them presents sealed with our seal
and dated this 5th day of August 1803. The Condition of the above
obligation is such that whereas an action was brought in the County Court
of Frederic by the said Arthur W. CARTER plaintiff against the said
Samuel COPE defendant & said plaintiff hath recovered against the said
Defendant Judgment for one hundred and nine dollar damages besides his
costs and the said Defendant on his prayer hath obtained an appeal to the
next District Court to be holden at Winchester it therefore the said
Samuel COPE shall prosecute the said appeal with effect or pay and
satisfy the amount of the recovery aforesaid and all such damages and
Costs as shall be awarded by the said Court in case the Judgment of the
said County Court be affirmed then the above obligation to __ (?)
otherwise to remain in full fare and Virtue in Law.

Signed sealed and delivered

In the presence of

The Court H HOLMES

And at a Court continued and held for the County aforesaid
the 7th day of June 1805.

And order of the District Court was produced in the words
and figure following
Winchester District Court April Term 1805

Samuel COPE

Against

Arthur W. CARTER

Appellant}Upon an Appeal from a Judgment of the County Court of recorded the 5th
day of August 1802 by the Appellee against the Appellant for the sum of one hundred
& nine dollars & the Costs

This day came the parties by these Attorneys and therefore the two accept
of the _____ (?)

Page 153

of the judgment aforesaid being summoned unexpected it seems to the Court
that the same is erroneous Therefore it is considered by the court the same
be reversed “and annulled and that the appellants cover against the appealer
his Costs by him expensed in the persecution of the appeal aforesaid here
and it is ordered that the proceedings heard in the said causes in the County
Court emboequent (?) to the issue be set aside and the cause is remanded to
the county court for further proceedings therein to be had.
A Copy Teste D LEE cu of

Therefore It is considered by the court the cause be redocketed agreeable
to the said order.
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And at a Court continued and held for the County aforesaid the 6th day
of March 1806 Came the parties aforesaid by their Attorneys and
thereupon came a Jury to wit John MORGAN, Zachariah N. SANDS (?),
William HOOKER, James LITTLE, William STUBLEFIELD, Thomas KEENAN, Joseph
HURFORD, Daniel OVERACRE, John RILY, Jacob FULMER, John BROWN & Joshua
NEWBERRY, who being elected tried and charged the truth to speak upon
the issue joined in solemn form do say We the Jury find for the Plaintiff
one hundred and twenty five dollars & seventy seven cents damages upon
the first court came Little foreman And the said Defendants comes here
unto Court and prays that Judgment may not be rendered against him upon
the verdict aforesaid alleging that the same ought to be stayed for the
following reasons and others hereafter to be adjoined.

1st That the declaration contain two uninterested counts which
cannot be joined in the same action That the first is a count on a special
agreement and made in contract, and the record is on the custom and alleges
a breach of Defendants duty as carrier which sounds in toil and that
there cannot be joined in the same action.

2nd That in the said first count of the declaration on which the
verdict of the Jury is founded it is no where awarded that the Plaintiff
had paid the Defendants the hire or reward which is stated as the
consideration of the contract and until the payment of which the carrier
has a right to retain the goods committed to his charge nor is it averred
that the plaintiff was ready to pay it, so that this was of the
declaration be to him as true the plaintiff shows no title to recover—

3rd That in the said declaration it ought to be averred whether that
the plaintiff was at Alexandria read to receive the goods in the declaration
mentioned or that some other person was there ready to whom he had issue his
order of which the Defendant had notice on that the said Plaintiff had
afterwards specified some store or warehouse were the same were to be
deposited for his use of which the Defendants had notice.

4th Because it is not covered in the said first count of the declaration
that the plaintiff demanded the goods of either of the Carriers to which is
essential to entitle him to recover for these and other errors apparent in
the record and to be assigned at bar the Defendant prays that the Judgment
of the Court many be arrested upon the verdict aforesaid.
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And at a Court continued and held for Frederick County the 7th day of March
in the year aforesaid came the parties aforesaid by their Attorneys and the
errors in order of Judgment pled in the cause being adjoined both sides it
appears to the Court have that there is not sufficient matter contained
therein to bar the

Page 154

Plaintiff from his action aforesaid therefore it is rendered by Court that
the Plaintiff recover against the Defendant the sum of one hundred and
twenty five dollars and seventy seven cents the damages aforesaid by the
Jury in the verdict found in this cause yesterday and his costs by him about
his out in behalf expended and the Defendant in Mercy.
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From which Judgment and proceedings the Defendant by his attorney prays
and Appeals to the next District Court to be holden at Winchester and
having given bond and security to prosecute the same with effect appeal
is allowed him

Appeal Bond as follows.

Know all Men by these Presents that we Samuel COPE,
Joshua COPE and Joseph STEER are held and firmly bound unto Arthur W.
CARTER in the just and full sum of five hundred dollars to which payment
will and truly to be made to the said Arthur W. CARTER his heirs executors
administrators or assigns we bind ourselves our heirs executors &
administrators jointly and severally firmly by these presents sealed with
our seal and dated this 7th day of March 1806. The Condition of the above
obligation is such that whereas an action be brought in the County Court
of Frederick by the said Arthur W. CARTER Plaintiff against the said
Samuel COPE and William BARKEL Defendants & the said Plaintiff hath
recovered the Judgment against the said Samuel COPE for one hundred and
twenty five dollars and seventy seven Cents damages besides his Cost
and the said Samuel COPE on his prayer hath obtained an appeal to the
next District Court to be holden at Winchester if therefore the said
Samuel COPE shall prosecute the said appeal with effect a pay and
satisfy the amount of the recovery aforesaid and all such costs and
Damages as shall be awarded by the said Court in case the Judgment of
the County court be affirmed then the above obligation to be void
otherwise to remain in full force and virtue in law.

Signed sealed and delivered Samuel COPE seal

in the Presence of Joshua COPE seal

The Court Joseph STEER seal

Appellants cost $86.88 Cents

Appellees Costs $79.09

Upon the treat of this cause the following exceptions were filed.

The defendant moved the Court to direct the Court to disregard the
second court in the declaration as being faulty to which the Pff
objected but they did so instruct the Jury to which opinion of the
Court the Plaintiff excepts and prays that these his explanations
ought to signed sealed and d’v which is done accordingly JB TILDEN
(seal) Thomas STRIBLING (seal) Ja’s MARSHALL (seal) Jo TIDBALL.
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One the first of this cause the plaintiff offered evidence to prove that
it was a general custom among the waggoners in this part of the County
to take goods to Alexandria to sell them there & ___ (?) bring back
money and goods in return to which evidences being given to the Jury
the Defendants objected which objection was sustained by the Court and
the said evidence not suffered to go the Jury to which opinion of the
Court the Ptt except and prays that his exceptions may be signed
sealed & d’v which is done according by Tho’s BUCK (SS) J A TILDEN
(SS) Ja’s MARSHALL (SS) Js TIDBALL.

On the trial of this cause the plaintiff counsel moved the Court to
direct the Jury that if they are of opinion that COPE was purvey to
and knew of the agreement with CARTER to sell the produce conveyed
to Alexandria and bring back the money and proved they ought to find
for the Plaintiff on the second count which Defendant

End of page 154

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