- Early in the eighteenth century - possibly in 1732 - five Trimble brothers names James, Moses, John, David and Alexander emigrated from County Armaghm Ireland to America. They came over in their own boat and landed in Baltimore, Maryland. Established families appeared with some of these five immigrants, who may have settled in Pennsylvania, Virginia, Kentucky and Ohio. The ancestors of these Trimbles had been Scotch Presbyterians.
The Wolfe County, Kentucky branch of the Trimble family is said to have been descended from David, one of the five immigrant brothers. David Trimble (1760 - 1827) was the son of a James Trimble. It is unknown what relationship existed between the said James Trimble (1735 - 1815) and David, the immigrant.
David Trimble married Lucy Lacy, of Greenbriar County, Virginia (now West Virginia) on August 28, 1781. The county records of that period show the following marriages of four other Lacys -
William Lacy to Martha Blankenship, July 3, 1786
John Lacy to Sarah Porter, June 26, 1788.
Mark Lacy to Agnes McDonald, November 21, 1785.
Pheby (Phoebe) Lacy to James Kash, December 17, 1791.
Some of these Lacys, if not all, played a part in history of Wolfe County. (The given name "Lucy" and other Lacy data - Ruth Frey.)
In the fall of 1797, David and Lucy Lacy Trimble left Greenbrier County, Virginia (now West Virginia) to settle in the newly created county of Montgomery in Kentucky. Among the people in their traveling party were Lucy's sister, Phoebe, and her husband, James Kash, and James' brother Caleb.
The Trimbles located in the vicinity of Mt. Sterling, possibly near Jeffersonville (Ticktown). There they reared eleven children named Mark, William, Polly, Nancy, John, Isaac, Lucinda, Louise, Jane Clark and Elizabeth. Three of these children who settled in the present county of Wolfe were Louisa, Elizabeth and William.
Louisa (1804 - 1890) married Solomon Cox. In 1837, according to J.G. Trimble, Solomon Cox brought five wagon loads of merchandise through Hazel Green on his way to Quicksand. His caravan created much excitement; some people viewed in amazement their first wagons!
Solomon and Louisa Trimble Cox are buried in the Hazel Green cemetery.
Elizabeth, another daughter of David Trimble was, according to family tradition, the first wife of "the first" Caleb Kash. Elizabeth and her husband lived at Daysboro, where she passed away at an early age. It is not known whether she left any heirs.
William, son of David and Lucy Lacy Trimble, was born in Greenbrier County, Virginia (now West Virginia) on January 12, 1787. At the age of ten, he came to Montgomery County, Kentucky, with his parents.
When the War of 1812 came up, he enlisted and served as the Bugler for his regiment. In later years, he told his son, J. Green Trimble, that at the most crucial moment in the Battle of the Thames the silver tones of his bugle-horn gave his fellow soldiers encouragement and cheered them on to glorious victory.
On November 15, 1814, William Trimble married Eleanor O'Hair, who was called Nellie. She was born on October 14, 1797, and was the daughter of Michael and Elizabeth Tribbett O'Hair.
In 1815, William and Eleanor Trimble went to houstkeeping in a log cabin on a tract of land which he had previously bought for five cents an acre. This area embrace the lower part and about one third of the large bottom on Red River along with several thousand acres of hillside land. Between 1821 and 1823, he bought another tract of two hundred acres, which became the heart of the present town of Hazel Green, Kentucky. Here William Trimble built a large log house in a pine grove across the street from the second site of the Hazel Green Christian Church on State Street. At a later date his house was weatherboarded. Today a lone pine marks the site.
William Trimble laid out the village streets in his domain in 1825. Gradually lots were sold and a town was built. In the interim, the place was called Trimble's Store after its first business house. This log structure that was erected by William Trimble was on the Main and State Street corner, which is now the site of the May Restaurant. William Trimble finally named his town after Hazel Green, Alabama, and the luxuriant hazelnut bushes that covered a large part of the area.
He built up, according to J.T. Day, a lively trade in furs, peltries, and farm products. In addition he was a farmer, a cattle grower, a hog raiser, and a dealer in land and slaves. William Trimble, the founder of Hazel Green, was its first postmaster. In this capacity, he served for twenty-four years. By the time his village of twenty-seven lots had become an established town in 1849, he had amassed a fortune. William Trimble was not a churchman, but he donated land for the first churches in Hazel Green. The First Christian Church was located on a part of the Main and State St. lot which was used later for the J.T. Store.
Thirteen children were born to William and Eleanor O'Hair Trimble. As they grew up, married each was the recipient of a handwoven coverlid. Some of these were made by slaves in the William Trimble spinning and weaving house. They carded the wool for the one that is called the Lizzie Trimble Turner coverlid. Later, they tinted part of the wool with a blue dye, that had been made by "boiling down" certain berries. The center of this lovely old blue and white spread is a beautifully executed design of flowers, graceful leaves, and ferns. In between the year date of 1844 which is woven into each corner of the surrounding border is the repetitive pattern of a little church and a little school house with intervening trees. At least one of the coverlids displays the artistic handwork of Eleanor O'Hair Trimble, who passed away on May 24, 1855. Others were woven by an old man who went through the country hauling a loom with seventeen treadles. Each of the existing coverlids is a prized heirloom of the descendant who owns it today.
The ravages of the Civil War, which is spread over his little town, saddened William Trimble. He stooped with the years and walked more slowly.
On October 3, 1870, James Greenville Trimble wrote the following letter to his youngest brother, Frank, in Summerville, Tennessee -
"It is my painful duty to announce to you the death of our father which occurred last night (Sunday) at a quarter before ten o'clock.
He suffered the most excruciating pain during the last three or four weeks; was conscious of his approaching dissolution, and was entirely resigned to his fate. He informed me nearly two weeks since that he would die on the day that he did. He will be buried tomorrow morning and his funeral preached at ten o'clock." (Letter - Ester Wilson)
Thus passed away in his eighty-fourth year William Trimble, the founder of Hazel Green, Kentucky.
The thirteenth children of William and Eleanor O'Hair Trimble were Evaline, Caroline, William Preston, David Shelton, James Greenville, Stephen Asbury, Emily Jane, Rose Ann, Louisa Jane, Mary Elizabeth (Lizzie), Nelson Harvey, Melissa, and Jay Franklin.
- 1810 Elk River Intruders Petition
Posted 5 Sep 1810 by Nancy Hickman
PETITION TO THE PRESIDENT AND CONGRESS BY
BY INTRUDERS ON CHICKASAW LANDS
[WD:AGO, Old Recs., Div.:DS]
Mississippi Territory, Elk River, Sims'es Settlement
September 5th 1810--
To his Excellency James Maddison President of the United States of
america and the honourable Congress assembled:
We your petitioners humbly sheweth that a great many of your fellow citizens have unfortunately settled on what is now called chickasaw land- which has led us into difficultys that tongue cannot express if the orders from the ware department are executed in removeing us off of said land. However in a government like ours founded on the will of the people we have reason to hope and expect that we shall be treated with as much lennity as the duty you owe to Justice will permit. We therefore wish, Without the shade or colour of falshood, to leve to your consideration the main object of our setling of this country In the first Place, we understood that all the land on the north side of tennessee river was purchased of the Indians which was certainly the Case, and further we understood that this was congress land as we call it and by paying of two Dollars per acre we should obtain An undoubted title to our lands and avoide the endless law suits that  arise in our neighboring states in the landed property under these and many other impressions of minde that appeared inviteing to us to setle here a great many of us solde our possessions and Came and settled here in the winter and spring of 1807 without any knoledg or intention of violating the laws of government or Infringing on the right of another nation and we remained in this peacefull situation untill the fall of 1807 when General Robertson Came on runing the chickasaw boundary line and he informed us that, though the cherokees had sold this land, yet the chickasaws held a clame to it as their right. And now as booth nations |had| set up a clame to this land and Government haveing extingushed the cherokee clame; and we who are well acquainted with the boundarys of this country do think in Justice that the cherokees had undoubtedly the best right to this land we could state our reasons for thinking so, in many cases, but we shall only refurr you to one particular, that is when Zacheriah Cocks (1) made a purchase of parte of this country and came in order to settle it he landed on an island in the Mussell Shoals, and was making preparations to ingarrison himself but when the cherokees Understood his intentions they got themselves together and sent in messingers to him telling him if he did not desist and remove his men out of their country they would certainly imbody themselves and cut him off. And Cocks took the alarme And left the Island in the night. And if the cherokees had not defended this country at that time it may be persumed that it would have been taken from the chickasaws without asking of them anything about their right to it. For the cherokees do say that they have held an antiant clame to it which they never lost by sword or treaty untill extinguished by government. And should this be the camse and appeare to your satisfaction that the cherokees had at least as good a right as the chickasaw and you haveing that right invested in you-and you are allso willing to pay the chickasaw for their clame and they refuse to sell it where then can there remain a single doubt In the publick Minde of doing the chickasaws any kind of unjuistice in makeing use of the cherokee clame and saying: if they will not take a reasonable price for their clame we will not remove our fellow citizens off which will bring many women and children to a state of starvation mearly to gratify a heathan nation Who have no better right to this land than we have ourselves And they have by estemation nearly 100000 acres of land to each man Of their nation and of no more use to government or society than to saunter about upon like so many wolves or bares whilst they who would be a supporte to government and Improve the country must be forsed even to rent poore stony ridges to make a support to rase their famelies on whist there is fine fertile countrys lying uncultivated and we must be debared even from inJoying a small Corner of this land but we look to you the  boddy of government as a friendly father to us and believe it Compleatley within your power Whilst you are administering Justice between us and the chickasaws to say with the greatest propriety that we have once purchased this land and we will not remove our fellow citizens off but let them remain as tennants at will untill the chickasaws may feell a disposition to sell us their clame therefore we your humble petitioners wish you to take our standing duely into consideration and not say they are a set of dishoneste people who have fled from the lawes of their country and it is no matter what is done With them.for we can support our carractors to be other ways and it is our wish and desire to protect and supporte our own native Government we must informe you that in the settling of this country men was obliged to expose themselves very much and the Climate not helthy a number of respectable men have deceased and left their widows with families Of alphan [orphan] children to rase in the best way they can And you might allmost as well send the sword amongst us as the fammin the time being short that our orders permits us to stay on we wish you to send us an answer to our petition as soon as posable and, for heavens Sake Pause to think what is to become of these poore alphan families who have more need of the help of some friendly parish than to have the strictest orders executed on them who has not a friend in this unfeeling world that is able to asist them Either in geting off of said land or supporting when they are off we are certain in our own minds that if you could have A true representation of our carractor the industry we have made. and the purity of our intentions in settling here together with the justice of our cause you would say in the name of God let them stay on and eat their well earned bread. Perhaps our number may be fare more than you are apprised of from the best calculation that we can make there is Exclusive of Doubleheads reserv (2) 2250 souls on what is called chickasaw land and all of us could live tollerabie comfortable if we Could remain on our improvements but the distance is so great if we are removed off that we cannot take our produce with Us and a great many not in a circumstance to purchase more will in consequence of this be brought to a deplorable situation We shall therefore conclude in hopes that on a due consideration we shall find favour in the sight of your most honourable Body which will in duty binde your petitioners to ever Pray &c.
Wm. Sims? (3)
Robert Cravens ?
Isaac Gibson ?
Mississippi Territory 109
Charles Skaggs Sen ?
Charles Skaggs Jur
William Adams ?
Wm Bowling Sen
Wm Bowling Jr
Wm Cooper ?
John Scaggs ?
John Eppler ?
Jonathan Eppler ?
James Brown ?
Edward Davis ?
Sammell Preed Jun
William Hood Jr
John Allon ?
John Rosson ?
Wm. Nelson ?
John Nelson ?
Samuel Bradley ?
Roland McKenny ?
James McKenny ?
William Ellis ?
Lovill Coffman ?
Philmer Green Senr
Robert Tayler ?
110 Mississippi Territory
John Paine ?
Shaderick Cross ?
Henry Cross ?
John Mitchell Snr
John Mitchell Jnr
Robt. Hodges Jnr.
Mississippi Territory 111
James Kellett ?
James Humphrs [Humphreys?]
George S. Wilson
Alexr Masky (or Marky)
Jame McConel (or McCarrel)
Jams M. McConell
Moses Crosen ? [Crowson?]
William Cochran ?
William Welch Senr
John Umphres [Humphreys?]
William W. Capshaw
112 Mississippi Territory
John Taylour Junr.
John Taylour Sen. ?
Nathanniel Hannet [Hamet?]
Names of the Widows
Abner Camnon (or Camron)
James Boren ?
Andrew Pickins ?
Joseph L. Jones
Adam Burney ?
James Steward ?
John Black Junr
Isac Lann (or Lanse)
Eli Tidwell ?
Owin Shannon Se.
H. T. Hendry
Jos L. Hendry
Mississippi Territory 113
John Black Senr
Gabriel Tayour [Taylour?]
Millenton Tidwell ?
Vantenten [Valentin?] Shoat
John Taylour ?
James Pickins ?
[Endorsed] Petition (addressed to James Madison, Pres: U.S. by 450 of the Intruders upon the chickasaw Territory: -- &c. &c. --
Reced Octo. 1st 1810.
?? Simon Foy and Thomas Dodd are not on the 1812 Giles tax list, but are mentioned by McCallum as early Elk River settlers. Both are also on the 1809 Intruders List
(1) According to McCallum's History of Giles..., "The treaties of 1805 and 1806 extinguished the Indian title to a considerable portion of what is now Madison County, in Alabama, a scope of country in the shape of a "V," some thirty miles wide on the South boundary of the Tennessee with a point on the Tennessee River at Ditto's landing, with about eight miles front on the river. Soon after the treaty, Zacharia COX and his associates, the "Tennessee Zazoo Company", claimed this scope of country as against the US Government. Under their purchase from the State of Georgia in 1795, they commenced settling it and having it settled up. They were resisted by the Government and those claiming under said purchase were driven off."
(2) Fort Hampton at the Doublehead Reserve became home to the soldiers' whose duty it was to rid the reservation lands of "intruders." A list dated
(3) The original transcription included numbers which were commonly referred to as "Sims Numbers." Those were not included in this edition.
Many of these names and those on the 1809 Elk River Intruder List are also on the 1812 Giles county tax list
Copyright 2001 TNGenNet Inc., a nonprofit public benefit corporation (transcription gifted to TNGenNet, Inc. Feb 2001 by Mrs. Sarah Smith; edited and formatted by C. Hammmett, who likewise gifted same)
The Mississippi Territory was a vast area of land. The petition shown here only deals with individuals that were on the Elk River that was to become Giles County, TN. The U.S. Government survey that was initially done resulted in the petition and it took several more surveys and years to legitimize those individuals property claims in Giles County. This petition is the only known document relating to the individuals who settled the area. The vast majority who signed the petition stayed in Giles County and show up in other contributions to the Giles County web page.
A few of the signers show up later in Limestone County, AL, bordering Giles County, TN, on the south; but their land, when the final survey was done, crossed over both counties and both states. So, some that had been taxed by Giles County were now being taxed by Limestone County. All but one of the McKenny's (McKinney's) who signed the petition, stayed in Giles County. James McKenny (McKinney) who signed the petition was on the Giles County 1812 taxes, but after more surveys were done, the surveys put his land in Elk County, AL, that was formed May 24, 1817. Elk County was later renamed Limestone County, February 6, 1818. James McKinney didn't move, the survey line moved, and after paying taxes in Giles County he started paying taxes in Limestone County.
The other McKenny's and Caldwell's that signed the petition are known to be related to James McKinney and his wife Delila Caldwell McKinney of Limestone County, AL.
in the Tennessee, Early Tax List Records, 1783-1895
Henry Stearr Piney 100
Richard Trimble Piney 150
Bio and Will of David Trimble
Posted by SOU66
David TRIMBLE was born about 1720 in Scotland. He died in 1799 in Bourbon County, Kentucky. David was one of five brothers coming to America from Scotland by way of Armagh County, Ireland in the early 1730's. Settled first in Pennsylvania. Court records of his marriage have not been located pertaining to his marriage, but there was an old letter, written by his eldest daughter, Elizabeth, in which she said her Mother was a Houston. Also General Sam Houston studied Law under James Trimble, a great-nephew of David., from Nashville, TN. Gen. Houston described James as a "Kinsman". The Houstons and Trimble's lived on neighboring plantations in VA, the birthplace of General Sam Houston.
AUGUSTA COUNTY, VIRGINIA - CHALKLEY'S CHRONICLES; Page 364.--20th November, 1764. James and Mary Trimble's bond (with James Gilmore, Ben. Estill, Geo. Moffett, David Trimble), as administrators of John Trimble.AUGUSTA COUNTY, VIRGINIA - CHALKLEY'S CHRONICLES; Vol 3,PP 270 - 279: Page 167.--17th February, 1748-9. Walter Trimble and Rosa, his wife, to David Trimble. Plumb Tree Bottom Branch. Parents: Robert TRIMBLE
He made a will in Bourbon County, Kentucky, 06 SEP 1798. His will is recorded at he Bourbon Co, KY Courthouse. It is typed exactly as it appeared, misspelled words and all. Some words were not decipherable and are listed with a blank.
Copy of the Will of David Trimble: In the Name of God Amen I David Trimble of Bourbon County and state of Kentucky, being in perfect health & Sound of Judgement and mind and Memory and taking into Consideration the mortality of man that it is ordained for all men Once to Die, I do make appoint and ratify this to be my last will and Testament and Do hereby Disannul and make void all other Wills and testaments or testomoneys and Legaseas made by me heretofore that is to say I first Commit my soul to God who gave it my body to be Entered in a Decent manner at the Discretion of my Executors hearafter mentioned nothing doubting but I shall Receive the same at the last day on the day of Judgement when Christ shall call the Slumbering to life, and as touching___________ . I Design and in the following manner First I Desire my Just Debts to be paid out of my Estate, first I Give and bequeath to my son George Trimble the plantion or tract of land whereon I now live containing one hundred and two acres to him his hairs Executors Administrators or assigns for ever, only George Trimble shall pay unto my Daughter Nancy King her Just sum of thirty five pounds good and lawful money of the afforsaid sate as her shear out of said tract of one hundred and two acres, to be for her use and at her Disposal for Ever and I give and bequeath to my son Isaac Trimble Son David my sorrel mare to them thair hairs forever. Also I give and bequeath to Each of my Children, to wit James, John, and Nancy King to the hairs of James Elliott Deceased Thomas, David, William George, John McKinney Isaac and Forgus Grayham the Just and full sum of six shillings good and lawful money of Kentucky to them thairs hairs forever, Also Concerning all the money that may be left of mine at my Death if any thair be, all to be Equally Devided between my Daughter Nancy King and my son William and George Trimble, John McKinney, Isaac Trimble and Also to Fargus Graham to be thairs and at thair Disposal forever. Furthermore I give and bequeath to my three Daughters to wit, Nancy King, Polly McKinney and Betsy Graham, my bed and bedcloathing to be divided as follows to wit, Nancy to have all the Furniture, that is to say, apair of Double blankets a single blanket two sheats abolster and pillow, to my Daughter Polly McKinney my big rug, to my Daughter Betsy Graham my bed and pewter tankered and to be thairs and thairs assigns forever. After the will Management of all my affairs and due performance this my last will and testament, I do hereby ordain consitute and appoint James Denneson and James Fraysor to be my whole and sole Executors in law to have this my last will and testament well and truly Executed. In Witness of this my last will and testamony I hereunto see my seal this sixth day of September one thousand seven hundred and ninty eight.Aknowledged by the said David Trimble as his last will and Testament who at he time of signing here of appeared to us to be of sound mind and perfect memory. Done in our presence and in the presence of each other. David Trimble Witnesses: John Boyd John Chambers William Walsh John McKinney
Tax List 1830
AR 1830-1839 Tax Lists Index
Tax List 1833
AR 1830-1839 Tax Lists Index
Where a party stipulates to build a mill, which shall cut or grind a certain quantity. for an agreed compensation, and fails in the performance of the contract, he cannot afterwards recover on a quantum meruit count for the value of the work and labor done, and materials furnished.
But if after failure, he is permitted by the other party to go on and rebuild the mill, which work is afterwards accepted, without any objection to its sufliciency, arecovery by suit may be had of the value of such work on the implied contract
To allow one to perform a piece of work, without a special agreement, and afterwards to accept it, raises in law an implied contract by the party for whom the work is done to pay what st"-ch work is worth.
ERROR to Pike Circuit Court.
This was an action of assumpsit, and the declaration contained three counts: two of them charging the defendant in indebitatus assumpsit in difierent ways, and the other count seeking to render him liable on a quantum meruit. The case was tried upon the general issue, and there was a verdict and judgment for the defendant. After judgment, the plaintiff filed his motion for a new trial, also his motion in arrest of judgment. Both motions were overruled; and he thereupon excepted to the opinion of the court, and spread the evidence adduced on the trial upon the record.
The bill of exceptions discloses substantially the following facts: The plaintiff agreed to build for the defendant a saw mill that would cut fourteen hundred feet of plank per day, and also a grist mill that would grind from seventy-five to eighty bushels of corn meal per day; and if the mills failed to perform the above stipulated quahtity of work, he was, in that event, to receive no compensation whatever for building them. No time was fixed on when the mills were to be completed, nor was any price agreed on between the parties for their construction. Under this agreement the plaintifi proceeded to execute the work himself, as a millwright, and to superintend and direct the hands of the defendant,
who seem to have been employed in helping him to build the mills. When the works were finished, the proof clearly shows that the mills were wholly valueless for *the [*37 1 purpose for which they were built, and soseveral of the witnesses testify; and so the plaintiff expressly admitted himself.
This being the case the plaintiff employed? other millwrights to re-build the mills, at his own expense, and upon their completion they were delivered to and accepted by the defendant, and answered the purposes for which. they were built,
Trimble, for plaintiff in error. Trzzpnall & Cacke. contra.
*LAcY, J. Upon the first contract [*373 which was partly expressed and partly im-plied, it is perfectly evident that the defendant was not bound, because the law raised no assumption on his part, by reason of the plaintiff ?s entire failure to perform his part of the agreement. Had the proof ended here,. it is manifest that the defendant would have been exonerated from all liability whatever. But the testimony further shows, that the first contract being cancelled, the parties subsequently entered into a second implied agreement, by which each became liable according to its terms or legal effect. The plaintiff again undertook to rebuild the saw and grist mills, and upon their completion and delivery? the defendant, by an implied promise, assumed to pay a fair valuation for the work and labor done. The acts done and performed by both parties unquestionably demonstrate this to be the case.
It appears from the record that the plaintiff, at his own individual cost and expense, employed other millwrights to re-build the saw? and grist mills, and upon their completion. they were delivered to and accepted" by the defendant. By permitting their re-building, the defendant agreed that the work might be-, done for him, and by receiving them after they were finished, he tacitly waived whatever objection he might have made to the sufficiency of the work. He thus ratified and confirmed the second implied contract, by allow
ing the defendant to do the work for him (for it is a maitim well settled, that he who does a thing by another does it by himself,) and by -receiving the mills after their completion, the law raises an implied promise on his part to 374*] *pay a fair and reasonable compensation for the labor and services performed.
The saw mill as re-built, is proved to be able to cut one thousand to twelve hundred feet of plank per day, and the grist mill is capable of grinding seventy-five to eighty bushels of com meal during the same period of time. The mills that are built are shown to be very nearly equal in value to those the plaintiff undertook to erect in the first in:stance. But, be that as it may, still they are proved to do good work, and the defendant -by accepting them, admitted they were rebuilt in a workmanlike manner, or ih such manner as was entirely satisfactory'to himself. This being the case, he thereby waived his right to object to the sufficiency of the work;' and having" accepted them, and being now in the enjoyment of their profits, it is surely but just and reasonable that he -should be compelled to pay for their re-building. The defendant?s liability does not, as it is supposed, grow out of his first agreement, which was cancelled and annulled; but it ac-crues on his second implied contract, which he wholly failed to perform. If he is bound by this contract, and that he is, seems to us to be almost self-evident, then it must necessarily follow that both the verdict and judgment of the court below were manifestly erroneous, being expressly and violently contrary to the justice and right of the case. If this position be true, the court also erred in not granting the plaintiff a new trial on his motion. The judgment must therefore_be reversed, and a new trial awarded.
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*BANK OF THE STATE OF [*375
JAMES CLARK AND OTHERS.
In debt upon a bond it is suflicient and proper to aver that by his writing obligatory, etc., the defendant ? promised to pay.?
In a suit by the State Bank on a note or bond executed to that institution, it is unnecessary to aver that by the non-payment of the note or bond the defendants became liable to pay interest at the rate of ten per centum per annum; or to negative in the breach the payment of such interest
The court is bound judicially to know what the legal interest is, and to give judgment accordingly.
APPEAL from Arkansas Circuit Court.
The plaintifl? instituted an action of debt against the defendants in the Circuit Court of Arkansas County, and declared, in the usua form, in action of debt. ? For that, whereas, the said defendants heretofore, to-wit: on the third day of June, A. D. 1839, at the County of Arkansas, by their writing obligatory, signed by their respective styles, of James Clark, John Thompson, ]r., Robert S. Connell and Benjamin Thompson, sealed with their seals, now to the court here shewn, bearing date the da?y and year aforesaid, promised that they, the said James Clark, as principal, and the said John Thompson, ]r., Robert S. Connell and Benjamin Thompson, as securities, jointly and severally would pay, four months after the date thereof, to the said plaintiff, or to her order, the sum of thirteen hundred dollars, above demanded, negotiable and payable at the branch of the bank of the State of Arkansas, at Arkansas, without defalcation, for value received, whereby, and by force of the statute in such cases made and provided, an action hath accrued to the said plaintiff to demand and have,of and from the said defendants the said sum above demanded, with interest thereon from the time the same became due and payable, according to the tenor and effect of said writing obligatory, until paid, at the rate of ten per cent. per annum.? The queritur and breach were technically formal; and the payment of debt demanded, or any part thereof, or of the interest thereon, accruing as aforesaid, or any part thereof, was expressly and appropriately negatived in the 376*] *latter. To this declaration the defendants demurred, without expressing in their demurrer, specially, any defect or imperfection whatever; and the plaintiff joined in the demurrer which, upon argument and considera~ tion, was sustained, the declaration adjudged insufiicient, and a final judgment given against the plaintiff, from which she appealed.
Pike, for plaintiff in error.
380*] *RtNGO, C. ]., The only question presented by the record is whether the declaration is sufiicient in law, or was the demurrer thereto rightly sustained? The declaration is in point of form strictly and technically right, and we are at a loss to conceive the ground upon which it was adjudged insufficient. The pleader, it is true, in describing the obligation of the defendants, employed language somewhat different from that usually found in the ancient forms and precedents, but the language used is literally the language of the contract, and imports an obligation as effective in law as that usually adopted in the piecedents, and if it could ever have been objectionable, as matter of form, it must be conceded that our statute has effectually cured the objection by declaring that ? no person shall be prejudiced by neglect of the ancient forms and terms in pleading, so that the matter fully appear in the process, declaration, petition, statement, or other pleading ;? and requiring the parties to express in every demurrer the defect or imperfection of the pleading demurred to, while they are prohibited, by the same statute, from setting out therein any defect or imperfection ?that would be cause of special demurrer at common law ; ? and the court is expressly required to amend every such defect or other imperfection in the pleading ?other than those which the party demurring shall express in his demurrer.? Rev. SI. Ar/En, C/z. 116, S. 59, 60, 61, p. 627-8. The contract, as set forth in the declaration, contains no stipulation for the payment of interest, and, therefore, as the interest thereon is prescribed and given by a general law, and can be re
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Upon administrator's bonds, made payable to ?the Governor and his successors in ofiice," the right of action is not restricted to the innnediate successors of the Governor in whose name such a bond may have been taken.
Any remote successor of such Governor may sue on such bond, and state himself to be the successor of such Governor to whom the bond was executed, without noticing the intermediate Governors.
And in such case the declaration may state the bond to have been made ?to the plaintifl'.?
Under 8th and 9th William Ill, substantially reenacted in the Territory of Arkansas in 1834, the plaintifT, in action on penal bonds, was compelled to assign or suggest breaches; and unless the condition and breach both appeared upon the record, the proceedings were erroneous.
In a bond executed to the Governor. and his successors, by an administrator, etc., the Governor holds the legal interest as a naked trust, and no injury appears to have been sustained by the cestui, for whose use the suit is brought, until a speciai breach or breaches are assigned.
In such suit, therefore, each breach must specially state the facts on which the right of action of thosefor whose use the suit is brought depends; with as much certainty and precision as is required in the counts of a declaration.
If the plaintiff fails to suggest or assign the proper breaches, no cause of action is shown to have accrued. _
A breach is well assigned, if in the words of the contract, either negatively or affirmatively, or in words co-extensive with its legal import or effect.
And where, on such bond, the breach amounts merely to_a generalstatement thatnheadmiristmtor has done nothing which he was bound to do. it is fatally defective.
If a suit on such bond is brought for the use of heirs, they must show by positive and specific averments their interest in the estate; and how, and in what manner they have been deprived of their interest in the estate by the devastavit of the administraror.
Under the revised statutes, in suits on penal bonds, the jury must be swom to inquire into the truth of the breaches, as well as to assess the damages: and the judgment must be entered for the penalty of the bond, with costs; and the plaintiff have execution for damages.
ERROR to Crawford Circuit Court.
This was an action of debt, on an administrator?s bond, commenced by _?]nmes S. Conway,Govemor of the State of Arkansas, and successor of John Pope, Governor of the late Territory of Arkansas, for the use and benefit of Samuel Dennis? and others, as heirs of David Trimble, deceased, against the plaintiffs in error, together with Greenup D. Womsley, on the bond of Womsley, as administrator of the estate of David Trimble, deceased, in which bond the plaintiffs in error were securities. The declaration demands $8000, the penalty of the bond, and states that the defendants on the 22d day of August, in the 383*] year I834, at Crawford county, *made their writing obligatory, by which they, together with one Thomas Phillips, since then deceased, acknowledged themselves held and bound unto the said plainllf in the sum of $8000; the condition of the bond is then recited, in the common form of such bonds; it is then alleged that the persons for whoes use the suit was brought, are the sole heirs at law and legal representatives of said David Trimble, deceased, and as such are entitled to have and receive the whole amount of said estate, after a fair administration thereof, the amount of $ro,ooo. Then follows the breach in these words:
?And the said plaintiff avers that at the time of the death of the said David Trimble, deceased, he died possessed of a large estate of goods, chattels, slaves, notes, accounts, dues and effects, to-wit: The ?amount of $20,000, which then and there came to the
hands, possession and knowledge of the said Greenup D. Womsley, administiator as aforesaid, to be administered upon by him according to law. Yet the said Greenup D. Womsley, administrator as aforesaid, hath wholly failed and refused to make. or cause to be made, a true and perfect inventory of said estate, according to law, which did come to his hand, possession or knowledge, and to the hands and possession of any person for him, nor did he make due return and exhibit in the office of the Clerk of the county of Crawford, according to law, of all and singular the goods and chattels, rights and
credits, of the deceased, which did come to the hands, possession and knowledge of him, said administrator, nor did he well and truly administer the same according to law, and pay the debts of said deceased, as far as the assets did extend, nor did he make such distribution and disposition of said estate as the law directs, in this, that there were debts to the amount of $looo, and distributive shares due said Samuel, etc., who have sued to the amount of $t0,000, which were then and there due, which he failed to pay and satisfy according to law and his duty as administrator, to-wit: At the the tine when,etc., aforesaid, in the county aforesaid. And further, that the said administrator did not make, or cause to be made, a true and just account of his said administrrtion, nor did he make due and proper settlement thereof from time to time, according to law, nor the sentence or decree of any *court whatever; nor [*384= hath he well and truly kept and performed his said condition in any thing whatever. but has wholly failed in every respect to keep the same. By reason of which said several breaches the said action hath accrued to the said plaintiff to demand and have of and from the said defendants the sum of $8000, the penalty above demanded, yet" the said defendants although often requested so to do, have not yet paid the said sum of $8000 above demanded, or any part thereof to the said plaintiff, or to any other person or persons whatsoever. "Nor have they, or either of them, paid the distributive shares aforesaid,
due and payable to the said Samuel, Christina, Elvira, Marina, Romulus and Alfred, or either of them, or to any person for them. But hath hitherto wholly neglected and refused, and still ?doth neglect and refuse so? to do. To the damage of the said plaintiff $20,000, and therefore he sues,? etc.
To this declaration, on the 30th day of March, A. D. 1839, the plaintiffs filed their general demurrer, which was overruled, and they made no further answer; whereupon it was ? considered by the court that the plaintiffs ought to have and recover of and from the defendants all of their damages by them sustained by reason of t/1: brearlr of covenant aforesaid, but the court is not sufficiently advised what damages the said plaintiffs have sustained, it is ordered that a writ of inquiry issue,? etc.?? to inquire into and assess the damages sustained by said plaintiffs by reason of the breach of covenant as aforesaid.?
At September term, 1839, a jury was returned who were sworn to ?well and truly try, and damages assess, and true verdict render according to the cvidence;? and returned their verdict that they assessed the plaintiff ?s damages by reason of the breaches of the covenant in the plaintiff ?s declaration set forth, to the sum of $3217.15; for which sum and costs the court rendered judgment in favor of the plaintiff.
Pike, for plaintiff in error.
387*] *LAcY, J. It is contended on behalf of the plaintiffs in error that the court below erred in overruling the demurrer to the declaration, and that all the subsequent proceedings are consequently irregular and illegal.
Before we proceed to determine this point, it may be well to notice and dispose of another objection urged by the plaintiff in error. It is said the action cannot be maintained, because the suit is brought in the name of James S. Conway, governor of the State of Arkansas, as the successor_to john Pope, late governor of 388*] the Territory, as afore- *said, when in truth and fact the plaintiff was the successor of William S. Fulton, governor of the Terri
tory, as aforesaid; that the, etc., the bond, upon which the suit is instituted, was executed in 1834, and the allegation in the declaration is, that it was made to the plaintiff in the action, and, therefore, this court is bound, judicially, to take notice when the State govemment was formed, and when the present acting governor entered upon his official duties; and that this being the case, it follows that the present plaintifi was the successor of Govemor Fulton, and not of Governor Pope. We are unable to perceive the force or reasons of this objection. The statute authorizing the execution of administrator?s bonds makes them payable ? to the governor and his successors in office." This is the express language of the act. The object and design of the statute was to vest in the governor and his successors the right of action whenever a breach occurred on the condition of the bond. It does not confine or restrict this right to the governor and his immediate successor in office, but it gives it to him and his successors, thereby clearly authorizing the suit to be brought in the name of any person-who may be legally chosen to fill the office. ?The office itself, in legal contemplation, is always in esse, and it matters not to whom the bond was executed. If there is a breach upon it, the right of action accrues to him who is the acting executive at the time of the institution of the suit, and, of course, such person is the legal successor of him to whom the bond was executed. This being the case, the suit is properly brought in the name t f the present plaintiff as the successor of John Pope, late govemor of the Territory of Arkansas.
This suit is prosecuted in the name of the governor for the use and benefit of the heirs and legal representatives of David T rimble, deceased, against the administrator of said estate, and the securities upon their official bond, under the provisions of an act of the general assembly of the Territory of Arkansas, passed in 1831, which declares that ?in all actions upon any bond or penal sum for nonperformance of covenants or agreements in any indenture, deed, or writing contained, the plaintiff or plaintiffs may assign as many
From research of Bill Lindsay http://genealogytrails.com/scar/abbeville/john_green_notes.htm
On 29 Sept. 1785, in Abbev. Co., John Green authorized Archibald Hamilton to receive his indent for services under Col. Robert Anderson, with John Harris wit.
On 1 Oct. 1767, SC Memorials recorded a memorial for John Green for 300 acres in Granville on nw fork of Long Cane bordered on e by John and Walter Trimble, on ne by Saml. Kerr and Hugh Herron and ne by John Boles. Survey 7 July 1767, granted 28 Aug. Signed by John and Andrew Pickens (SC Memorials 9, 333). Note that this is where one of Ezekiel Calhoun's two tracts in Long Cane was located. Note that this places John Green beside the same Saml. Kerr whose daughter Jane married John Green, b. 1768. Note, too, that Moses Trimble received Benj. Green's pay indent.
According to Eugene Earl Trimble, Trimble Families: A Partial Listing of Some Descendants of Colonial Families (Kensington, MD, 1958), Walter Trimble had wife Rosannah, and moved in 1765 from Augusta Co., VA, to Granville Co., SC, to Long Cane (pp. 52-3). They sold their land in Augusta on 20 May 1765, and on 1 Dec. 1769, WT had a grant on nw fork of Long Cane bounded on nw by Saml. Kerr. This source says that Walter Trimble appears with Robert, John, and James in Orange Co., VA, records by 1733, and later in Augusta records (p. 45). They appear to descend from a Co. Armagh, Ireland, family (p. 1). Walter Trimble had dau. Margaret (b. 1740) who m. Michael Woods in 1767 in Abbev. Co., SC, and a son John who m. Michael's sister Susanna. This couple named a son Green (b. 13 Aug. 1783). Note that John and Jane Kerr Green's daughter Mary Calhoun Green m. Robert Woods. See also David B. Trimble, American Beginnings (San Antonio, 1974), pp. 151-2.]