Andrew Scott vs. Cornelius Powell

Andrew Scott brought suit stating that he had sold whiskey to Cornelius Powell in 1806 and had not been paid for it. In 1807 Cornelius Powell delivered two obligations on Thomas Woodroof and Wilson Davenport in lieu of payment. Andrew Scott was unable to collect on either of these obligations, and thus sued Cornelius Powell for payment. The case was settled in 1813, and Cornelius Powell was ordered to pay for the whiskey, with interest, and all the court costs.

Chauncery Court, Augusta County, Virginia, 1813 (Case ID# 1813-53)

Case Files

To the honorable John Brown Judge of the Superior Chancery Court held at Staunton your orator Andrew Scott of Rockbridge respectfully states that in April 1806 he sold & delivered to a certain Cornelius Powell of Amherst a quantity of whiskey to wit, 135 gallons at 3/7? Per gallon, payable on the 3d Monday in October following, as will more fully appear reference being had to sd Powels written acknowledgement here to annexed as part of this Bill marked A. That said Powel failing to pay him according to contract in the month of April 1807 delivered to your orator two obligations one on Thomas Woodroof hereto annexed marked B & one on Wilson Davenport hereto also annexed, Mark C. And took from your orator a receipt therefore, a copy of which is also hereto annexed mark D. These papers were represented to your orator by said Powel as good & that they could readily be collected and he instructed your orator to leave them with Mr Claybourne an atto of New Glasgow for collection with direction not to bring suit thereon. Your orator apprehensive that sd Powel was in declining circumstances took the papers & left them with Mr Claybourne according to directions. Your orator early in October went to Amherst and finding and being well ? that Davenport had been dead at the time of the transfer aforesaid, that his estate was altogether insolvent, & that in fact suit had been brought thereon before

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sd transfer & that nothing could be got, took the papers from sd attorney, & tho Woodroof was good, yet the debt on him not being due, & thinking it his duty to return both papers, he went to sd Powel & offered him sd papers, but said Powel refused to take them alledging that the time for their return had expired. On examining the receipt your orator finds that the time had then expired a few days although your orator thought he had until the 3d week to return them. And although Woodroofs debt was not yet due so that no delay had been occasioned as to that debt and although in addition to the sd Powels instructions not to sue, the fact was that nothing could have been got from the estate of Davenport had suit been brought; yet the said Powel utterly refused to take back sd papers although then offered to him. Sometime after this & a few days before Woodroofs bond became due he applied to him for payment offering to make a discount & notified him that he held his bond. He then replied that he was unable to discharge it but made no allegation that he had paid it to Powel & your orator charges & believes that it was not then paid. After it became due your orator again applied for payment when Woodroof produced a receipt from Powel for the money but without date & refused payment. This payment to Powel (if any has really been made) your orator believes & charges was a collusion between the sd Woodroof & Powel to defeat your orator of his just rights, P. Woodruff knowing that said Powel was in desperate circumstances, and the receipt has either been procured, as he suspects without a payment, or for some trifling consideration which would justify the party in ? the consequences of such a transaction. The fact is that you orator has received nothing for his whiskey. The sd Powel has given a receipt against the only paper of value or that was worth a cent, & still further to injure your orator has instituted a suit in the County Court of Rockbridge on the receipt aforesaid to recover the balance between the nominal amount of those papers & the price of the whiskey, and in which suit your orator is fearful he will be cast, as the fact is, that he did not return or offer to return those papers until a few days after the time stipulated (he having forgotten the time) & he has not any testimony except sd Powel himself to prove the directions of sd Powel to have them ? with the attorney, not for suit, but merely for collection as aforesaid. Your orator prays that said Powel & Woodroof may be made defendants to this bill & compelled on oath full & perfect answer to make to all & singular the allegations above set forth, particularly let sd Powel declare & ay whether he did not direct sd papers to be left with the attorney aforesaid for the purposes aforesaid & request that suit might

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Not be brought? Did he not represent those papers as good, & was not Davenport then dead & his estate insolvent & had not a suit before been brought on? Note without ? . Did not your orator tender him sd papers during the first week in October 1807 & did he not refuse to take them & was were his reasons? Has he not since, & let him state when, given Woodroof a receipt against his paper & for what consideration? Let said Woodroof also say if you orator did not apply to him for payment of sd note & if he did not alledge, as the only ground for not then taking it in, that he had not the money? Let him say when & for what consideration he procured the receipt aforesaid? That you honor may decree that sd Woodroof shall pay to your orator the amt of his bond & let Powels circumstances being doubtful if he is not insolvent that Powel may be compelled to pay the balance due for the whiskey & restrained from all further proceedings in his action at law, at least until your orator can obtain these discoveries from the parties to be used as evidence on the trial at law, and that in case from the ? rules of the common law, your orator should finally be cast, that the judgment may be perpetually rejoined or that such other or further relief may be granted as may appear just. Rockbridge County, to wit, This day Andrew Scott made oath in our ? of law to the foregoing bill before me a justice of peace for said county – Charles Campbell

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The separate answer of Thomas Woodroof to a bill exhibited against him & Cornelius Powell in the Superior Court of Chancery for the Staunton District by Andrew Scott Jr This respondent saving to himself all benefit of exception to the many errors and untruths in the complainant’s bill mentioned for answer thereto or to so much thereof as he is advised it is material for him to answer unto saith that as to the purchase of whiskey by the said Powell of the complainant or any contract between them he is ? ignorant. That true it is the said Powell had his respondent’s bond or obligation for about the sum of fifty five dollars, that shortly after the execution of said bond he was informed by the said Powell in the presence of a certain William Coleman that the bond was for his the said Coleman’s benefits from which the said Coleman directed your respondent to pay to a certain Joseph Burrus thirteen pounds 15/? He having at that time an execution against the said Coleman, which payment of 13.5.2 was accordingly made by this respondent to the said Joseph Burrus. At this time it was understood by your respondent the said Powell & Coleman that that bond should be delivered to the said Coleman who was to have the entire control & benefit thereof and your respondent had notice accordingly. Some time after this the complainant informed this respondent that he held said bond to secure a debt due him from the respondent Powell, upon which this respondent gave the complainant a true statement of the case as detailed in this answer, telling him that there was a very small balance due and that he supposed William Coleman entitled to that, but that it was immaterial to whom he paid & provided he could be exonerated. The complainant then declared that he would have nothing to do with this respondent’s bond unless he could get the whole amount, this respondent having offered to pay the said complainant the balance due on said bond if he the complainant would give up his bond. After this your respondent understanding that the bond was to be returned to the said Powell paid up the full balance to the

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said Coleman as he had been formerly directed by the said Powell and had agreed with the said Coleman to do. Your respondent further states that the aforementioned bond was given for the hire of a negroe belonging to the said William Coleman; that at the hiring in the absence of your respondent the negroe was knocked out to the said Powell who sent the negroe to this respondent’s house on the same day, that afterwards when you respondent gave his bond although it was given in the name of the said Powell he always understood that the said William Coleman was to have the benefit & control of the same. That almost the whole of the bond was paid off before the same became due as above stated & before he ever heard a syllable from the complainant on the subject. That the whole transaction as relates to himself was fair & without any manner of fraud or collusion. That the bond has been fairly discharged by the payment of full amount without any deduction whatever. This respondent denies that he ever told the complainant the he was unable to discharge the bond when he applied to him, the same having been nearly discharged at that time and saith that the receipt was taken in the name of Powell although the payment was made to Coleman merely because the bond had been taken to Powell and prays to be hence dismissed with his costs – Thos Woodroof

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The separate answer for Cornelius Powell, to a bill of complaint exhibited against himself and “Thomas Woodroof” in the Superior Court of Chancery for the Staunton District, by Andrew Scott – This respondent saving to himself the benefit to exception to the many untruths, inaccuracies, and imperfections, in the complainants bill set forth for answer thereto (or so much thereof as ? to himself) saith, the complainant hath stated correctly the terms of the original contract for 135 gallons whiskey. This respondent also admits that he delivered, or transferred to the complainant the two obligations mentioned in said bill, and that at the time of the transfer he stated them to be good which they were. This respondent also admits that it was agreed on between the complainant and himself to deposit said obligations with a Mr Claiborne, an attorney at law, residing at New Glasgow, for collection, but this respondent positively denies that he gave any kind of direction not to bring suit thereon as the complainant hath erroneously set forth. The fact is Woodroof’s bond was not due, and a suit had been instituted upon Davenport’s bond before the transfer, and in a short time after the bond was put into Claiborne’s hands a judgment could have been obtained, and the money made, but Claiborne being applied to, to file said bond in the ? office for Scott’s benefit, refused to do so alledging that complainants instruction to him was, not to interfere with the bonds at all, or deliver them out of his (Claiborne’s) hands without his (Scott’s) order, whereupon the respondent was eventually compelled to dismiss said suit at his own costs. The respondent further saith that the complainant had six months allowed him by contract to make his election whether he would take Davenport’s bond in payment, or not, and the said complainant, after suffering the bond to lie in the hands of an other using no exertion, to collect, or secure payment of the same, and having by his negligence and delay, put it completely out of the power of this respondent, in any way to safe save the debt, and after the six months had elapsed and expire, did refuse to take back said bond, considering the contract as to that bond, which until the ? of six months, was only conditional, was by the complainant’s own act made final, to all intents and purposes whatsoever. This respondent further answering saith, that as to Woodroof’s bond (which was still not due when the complainant wished to return Davenport’s) this respondent proposed to take in Woodroof’s bond, and pay in cash the balance, which would be due after discounting Davenport’s debt, but this proposition the complainant positively refused. This respondent then rode with the complainant to see Woodroof, and then repeated the same offer, the complainant still continuing to refuse, notice was then given Woodroof by this respondent not to pay the full amount of his bond to Scott, but as to the charge of collusion stated in the complainant’s bill, between this respondent and Woodroof, it is totally false, and unfounded. The truth of the case is, this respondent hired a negro man from a certain William Coleman, for Woodroof, and the said Coleman being indebted to this respondent, Woodroof’s bond for the hire (the same refused to in said bill) was made payable to this respondent, but upon a settlement it was found that Coleman was not as much in arrear as the amount of Woodroof’s bond, and this respondent, having repeatedly tendered in money every cent due for the complainant deducting Davenport’s debt, ? Coleman to collect the money from Woodroof, and passed a receipt in his own name for the amount as stated in said bill, intending to make himself responsible to the complainant for whatever was due him, and prevent if possible the complainant from receiving money he was not entitled to, and which from information recd by the respondent could not be easily regained; the said complainant having become an habitual drunkard, had been imprisoned by his own wife for mal conduct, and in estate doubtful. This respondent also saith that his estate now, and at all times, since the date of the contract aforesaid has been amply sufficient to pay all his debts, and that the complainant’s insinuations upon that score are erroneous, and without foundation. This respondent therefore as he conceives having fully answered the complainants bill and substantially the different interrogations therein set forth, denying the ? alledged, prays to be hence dismissed with his reasonable costs ? – may it please the Court. Amherst County to wit

This day Cornelius Powell came before me a Justice of the Peace for said County, and made oath that the facts stated in the foregoing answer are true. Given under my hand this 22nd day of March 1807.

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So far as this suit relates to Woodroof the bill must be dismissed it appearing that ? to the time of notice of the transfer of his bond to the plaintiff he had discharged the principal part thereof and ? the payment of the balance to a certain Coleman and that he informed the plaintiff of these facts at the time of receiving the notice. This statement is sufficiently responsive to the bill. The question as it ? the defendant Powell depends much on the fairness of that defendant’s conduct in making the transfer of the bonds. If that was fair, this court cannot change the ? conduct of the parties. It appears that in Apr 1806 the plaintiff had sold a quantity of whiskey to this defendant which was to be paid for on the third Monday in October following, in money. Instead of the money, the bonds or bills in the bill aforementioned were tendered & received on condition that the plaintiff might return them within a limited time, provided he chose to do so; And if not returned within that time, the plaintiff was to take them in discharge of his debt, pay the balance to the defendant. And here there is ? reason to dispute some mistake at in the plaintiff’s receipt. That receipt is dated the 29th of April 1807. It mentions Woodroof’s bond as payable the 1st of May following, whereas it was not due till the 1st of January 1808. It also limits the time of return till the 1st of the next October (5 months & one day) whereas the defendant in his answer admits that plaintiff had 6 months given him to return them; & the plaintiff in his bill says that he thought he had till the 3d week, instead of the first day of October to make return. These circumstances induce a belief that Amherst Court in October 1807 (the court week being the time when all previous transactions between the parties had taken place) was also contemplated by them as the time to be limited for the return of the notes & that the first Monday might have been inserted by mistake in the receipt, as well as the 1st of May 1807 instead of the 1st of January 1808 for the time when Woodroof’s bond became due. If the plaintiff, as the defendant alledges, is an intemperate man, the mistakes, on his part, may be easily accounted for.

But were the bonds good according to some understanding when transferred? Woodroof’s bond clearly was good for nothing to the plaintiff. It was previously

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disposed of by the defendant Powell’s consent & for his benefit. Was Davenport’s such ? as any one would have received in payment, knowing the circumstances of the case? It is evident that the debt from Davenport was doubtful, this his personal estate was insufficient to discharge it at the time of the transfer, & who knowing this would have passed or received it as a good bond, & have taken the risque of a recovery out the real estate after a tedious & expensive suit in law & equity? But it appears that a suit was brought on this obligation before transfer; & there is every reason to believe this fact was concealed from the plaintiff. Why appear to deposit the bond of a different attorney from the one who had brought the suit, & who for want of it was obliged to discontinue this suit? & why was not this note procured by the defendant (or a copy of it) to enable ? to draw the deck. He says this Claiborne was applied to file the bond in the Clerk’s office for Scott’s benefit & refuse. It is strange that he has not interrogated Claiborne as to this fact, when his deposition was taken. The truth of it would then have appeared. On the whole, I am of opinion that a fraud has been practiced on the plaintiff by the defendant Powell in this transaction, of which he ought not to avail himself. That the plaintiff’s injunction be perpetuated. That defendant pay the amount of the whiskey sold viz. 24.9.4 with int. from 1st of November 1807, & cost of the suit at law in Rockbridge County, & also the costs of this court & that he moreover pay to the plaintiff the costs of the defendant Woodroof, which the plaintiff is hereby decreed to pay.

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This cause having been ? by consent against the representative Woodruff and coming ? to be heard upon the bill ? answers the deposition ? on the x day of x and the same having been approved by counsel and ? considered by the court. It is their opinion for reasons stated ? at large and filed with the papers in this cause that a fraud has been practiced on the plaintiff by the defendant Powell in this transaction of which he ought not to avail himself. The court is further of opinion that the bill so far as it relates to the representatives of the defendant Woodruff ought to be dismissed with costs it appearing that previous to the time of the notice of the transfer of his bond to the plaintiff he had discharged the principal part thereof and had assumed the payment of the balance to one Coleman & that he informed the plaintiff of those facts at the time of receiving the notice.

It is therefore adjudged ordered and decreed that the defendant Powell to pay to the plaintiff 24.9.4 ½ the amount of whiskey sold him with interest theron from the 1st Nov 1807 till paid. It is further adjudged & decreed that the plaintiffs injunction be perpetuated & that the defendant do forthwith pay to him his costs expended in the suit ? ? in the county court of Rockbridge. Also the cost of this suit together with the costs of the defendant Woodruff.

(14) Deposition of Samuel Wiatt
(16) Deposition of Sterling Claiborne
(19) Oath of Andrew Scott that he had brought suit
(23) Receipt for Powell’s bonds
(24) Exhibit D
(33) Exhibit C - Wilson Davenport bond
(35) Exhibit B
(36) Thos Woodroof bond
(37) Exhibit A - Receipt for whiskey sold by Andrew Scott & James Paxton to Cornelius Powell