Resurrecting the First American West

2 further shows that afterwards towit, some time in the year 1798, the said Defendant and your Orator came to a subsequent agreement respecting the premises by which said last agreement said defendant agreed to give, and your Orator agreed to take two hundred acres part of the Lands so located by your Orator or the value of the same whatever the said land should be worth, provi -ded he the said Defendant should choose to keep the said land or sell it to any other person or persons, which said two hundred of Land or the value as aforesaid was to be to your Orator in consideration of his said services and expences in said Location and in discharge of said first mentioned contract. Your Orator further shews that afterwards towit, in the year last above mentioned he the said Defendant sold disposed of and conveyed away the said two hundred Acres land in conjuntion with the ballance of said locations or otherwise to others as yours is well informed and actually believes. Your Orator likewise states the value of said two hundred Acres of land, for which said Defendant, sold it was as your Orator believes about four hundred pounds lawful currency. And your Ora-tor in fact says that the said Defendant has not either convey -ed the said two hundred Acres of land to your Orator nor has he or any one for him paid to your the said value of said land as aforesaid or any part thereof your Orator also states the said Defendant is not an Inhabitant of this State, and that your as he believes is in danger of loosing the benefit of his said last mentioned contract, towit, the said two hundred Acres of Land and the value thereof as aforesaid. Your Orator further shows to this Honorable Court that there are certain persons resident in this State: viz. John Tittle, Hugh Miller senior Benjamin Harrison whom

3. whom your Orator prays may be also made Defendants to this his Bill who your Orator is informed and has good reason to believe have in their Hands and possessions many goods or effects belonging to him the said Defendant first named, or are in somewise indebted to him. And your Orator has well hoped that as they the said last mention -ed defendants knew of the said contract between your Or -ator, and the said Callahan the other defendant for the said two hundred Acres of Land or the value thereof as aforesaid and as they knew also that your Orator was actu -ally entitled to the said value of said land the said other Defendant having sold and disposed of the same that they would have satisfyed and paid to your Orator the said value of four hundred pounds as aforesaid out of the property, money or effects belonging to the said Callahan the said other Defendant or out of the [Debts?] [?] to him. Nevertheless they the said John Tittle, Hugh Miller senior Benjamin Harrison, little regarding the prem -ises but combining and confederating with one another and to and with the said Callahan the said other Defen -dants how to injure and oppress your Orator, have hitherto failed to pay to your Orator this said sum of four hundred pounds or the value of the said two hundred Acres of Land or any part thereof. In [Tender?] considera -tion whereof and for [as much?] as your Orator is without remedy at Common Law and can only find relief in equity, to the end therefore that the said Defendants on their Corporal Oaths may be compelled true, perfect and direct answers to make to all and singular the premises herein contained as fully as if the same were herein again repeated and interrogated. But more especially

4. especially the said Defendants John Tittle Hugh Miller senior Benjamin Harrison may be compelled to set forth and on Oath discover whether they or either of them are indebted to the said other Defendant Callahan and in how much respectively, and whether they or either of them have not in their hands and possessions money, goods, property or effects of his the said Cal -lahan the said other Defendant; and what and how much. May it please this Honorable Court that the said John Tittle, Hugh Miller Senior, Benjamin Harrison and each of them may be enjoined from paying, transferring, secreting or conveying away the said Debts property or effects due or belonging to the said Callahan the said other Defendant if any they owe or have, until the further order of your Honors touch -ing the same, and that by a decree of this Honorable Court your Orator may have the said four hundred pounds or the value of the two hundred acres of Land what -ever it may be inconscience worth. To be made to your Orator out of the money Debts or effects due, and belong -ing to the said Callahan and in the hands of said other Defendants or otherwise. And to grant to your Orator such other and further relief in the premises as to your Honors may seem right and Equitable. May it please your Honors to grant the writ of subpeona &tc signed J. Bledsoe Atty [?] upon which which process of subpona being issued and served by the Sheriff upon the defendants John Tittle, Hugh Miller sen. and Benjamin Harrison, the said Miller and Harrison appeared and answered the said bill

bill as follows to with, "The joint answer of Hugh Miller Sen. and Benjamin Harrison to the bill of complaint exhibitted against them and others in the Paris District Court. These defendants saving and reserving to themselves all and all manner of benefit of exception to the many errors and manifest insufficiencies in the said complainants bill of complaint contained for them to answer, they answer and say: That these two defendants did on the sixth day of January 1798 for a valuable consideration give thin bond to the said Daniel Callaghan in the penal sum of Two thousand pounds conditioned for the payment of one thousand pounds to be paid in one year after the date of the said bond. These defendants do further answer that they at different times paid to the said Daniel Callaghan Three hundred and fifty two pounds eight shillings and three pence half penny. These defendants further answer and say that on the 24th day of April 1798 some considerable time before the said Daniel Callaghan left the state of Kentucky he assigned over to a certain George Hamilton on Cynthiana the ballance or remainder of said bond which these defendants had given to said Callaghan, and received a full and [compleat?] consideration for the same as these defendants believe. These defendants deny that they are in any manner indebted to the said Callaghan either in money, goods or effects, whatsoever accepting the bond above referred to and assigned to the said Hamilton on the day aforesaid as above stated towit, on the 24th day of April 1798. These defendants deny that they understood or knew that a

6. contracts had been entered into between the said complainant and said Callaghan in the year 1798. These defendants further state that the said Callaghan had openly declared for several months before the time that he left the State that he would move down the river to Louisiana, and that these defendants believe that some time in the month of June in the year 1798 he left Harrison County. And these defendants deny all and all manner of unlawful combination and confederacy where with they stand charged, without that, that there is any other matter, cause as thing in the complainants said bill of complaint contained material or effectual in the law for these defendants to make answer unto and not herein and hereby well and sufficiently answered, avoided, traversed or denied is true to the knowledge & belief of these defendants all which matters and things these defendants are ready and willing to aver, maintain and prove as this Honorable Court shall direct, and humbly prays to be hence dismissed with their reasonable costs and charges in the law in this behalf most wrongfully sustained.

Hugh Miller Sen. and Benjamin Harrison personally came before me and made oath that the facts contained in the above answer are true as far as relates to their own knowledge, and what facts they have obtained from the information of others they believe to be true. Given under my hand this 2d. day of April 1799. Signed William E. Boswell and

7. And afterwards towit, at a court held for the District aforesaid in October in the year aforesaid, came the complainant by his counsel, and the said defendant Callaghan not having entered his appearance herein agreeably to the act of assembly and the rules of this Court and it is appearing to the satisfaction of the court that he is not an inhabitant of this Commonwealth; on the motion of the complainant by his counsel It is ordered that the said defendant do appear here on the third day of the next term and answer the complainants bill, that a copy of this order be inserted in the Kentucky Gazette for two months successively, another posted at the Courthouse door of Bourbon County, and published at the front door of the Presbyterian meetinghouse in Paris some Sunday immediately after divine service.

And afterwards towit, at a court held for the District aforesaid in March in the year of our Lord one thousand seven hundred and ninety nine, on the motion of the Complainant by his counsel It is ordered that he have leave to take depositions agreeably to [law?].

And afterwards towit, at a Court held for the District aforesaid in July in the year last above mentioned came the complainant by his counsel, and Satisfactory proof being made to the court that the order of publication herein had been duly executed, and the said defendant Daniel still failing to answer the complainants bill. On the motion of the complainant by his counsel, his bill against him is taken for confessed, and commissions

8 are awarded the complainant to examine and take the deposition of his witnesses in this cause.

And the said cause stand upon the rule dockett from the filing of the said bill, the several rules Days therein, until the March rules in the year one thousand eight hundred and one, continued.

At which day towit, at the rules held in this clerks office in March in the year last above mentioned, the complainant replied generally to the answer of the defendants Miller and Harrison, and commissions are awarded the parties to examine and take the deposition of their witnesses in this cause, giving each other legal notice of the time and place of executing the same.

And none at this day towit, at a Court held for the District aforesaid on the day and year first above mentioned, This cause came on to be heard on the Bill and depositions, as to the said defendant Callaghan, the said bill having been taken as confessed as to him, and leave given to take depositions, and the Court now here being fully informed concerning the premises, do order and Decree, that the said Complainant do recover of the said defendant Callaghan the value of the two hundred acres of land in the bill mentioned, it appearing to the court that the said defendant hath put it out of his power to convey the same to the said complainant, but inasmuch as the Court here chooses to be informed in their consciences more compleatly as to the value of the said land.

It

9 It is therefore ordered that a jury of twelve lawful men [?] be forthwith impannelled to enquire of the damages the said complainant hath sustained by occasion of the nonconveyance of the said two hundred acres of land by the said defendant to the Complainant and thereupon a jury of the bye-standers being called came towit, Tompkin Barlow, John Curry, [?] S. Timberlake, William Laughlin, John McLaughlin, Joseph [Hildrith?], John Boyd, Jamer [Pullin], Alexander Mitchell, William Markham, Hezekiah [Couns?], and Samuel Harris who being elected tried and sworn to enquire of Damages herein as aforesaid, on their oath do say, that the Complainant hath sustained damages on account of the defendants not having conveyed the said two hundred acres of land to the said complainant to the value of four hundred pounds. Whereupon it is Decreed and ordered that the Complainant do recover of the said defendant the said sum of four hundred pounds together with his costs by him about his suit in this behalf expended.

The following depositions were taken and [returned?] herein and admitted as evidence on the hearing of this cause towit,

John Martin of full age and being first duly sworn deposeth and saith, that some time in the fall on September 1779 he was in company with Edward Worthington and Daniel Callaghan at the lower end of the falls of

10. Ohio when said Callaghan was on his way to the Louisiana county and as he could not conveniently stay to settle his and his Brother Patrick Callaghan claims of land before the Honorable the Court of Commissioners who was to sit shortly [afterwhen?] authorised and agree with the aforesaid Edward Worthington to lay in his and his Brothers claims before the Commissioners, and at the same time requested of this deponent to furnish said Worthington with the location of their claims, knowing him to be well acquainted with each of their improvements, which he promised he would and gave Edward Worthington the power to act for him and his Brother Patrick, and that he would pay him for the said Worthington a part of the land for his services. This deponent further saith, that he saw said Worthington and Callaghan attempt to enter into writings but was disappointed by some disturbance that happened on board the boat they were to sail in, and still requesting said Worthington to be attentive in this business until the boat was under way. That some time in the summer of the year 1797 in the Town of Cynthiana he this deponent was called on by Daniel Callaghan and Edward Worthington to settle a dispute between them wherein said Worthington claimed four hundred acres of land on the South fork of Licking, which four hundred acres was Daniel Callaghan settlement right on the so. fork of Licking in the county of Harrison, and that this deponent and a certain George Johnston were called upon to settle the

11. the dispute between said Worthington and Daniel Callaghan, said Callaghan alleged he thought it was rather more than said Edward Worthington ought to have for his services as agent for said Daniel Callaghan and Brother Patrick Callaghan in obtaining two settlements and preemptions. It was the opinion of this deponent and George Johnston that he was entitled to receive two hundred acres of said Settlement or the value of the same, and at the same time said Daniel Callaghan made mention that he had partly sold the ballance of his land and that he could not finish his bargain without selling that two hundred acres also, he agreed to pay the said Edward Worthington the full value of the two hundred acres in money, and this deponent further conceived the said two hundred acres of land to be worth three pounds per acre, and this deponent further saith not. signed John Martin Sworn to before, as at James Logan in Lincoln county the 20th day of June 1729. James Logan [?] Joel Atkinson [Esq.?] George Johnston of full age and first duly sworn deponent and saith, that some time in the summer of the year 1797 in the Town of Cynthiana he the deponent was called on by Daniel Callaghan and Edward Worthington to settle a dispute between them wherein said Worthington claimed of said Callaghan four hundred acres of land on the South fork of Licking in the county of Harrison, being the said Callaghans settlement right, alleging that