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Afr k a xt >. ; e K ty '*g wo , ", R :# 4 {- i s >- y L s r r 4'4 - 5 f r 1 3 =k w !.f tr r Fda J., tia' k a5 r411s6 q piq 5 4 -,- r .i z+nt E . r 5 L S siy-u 15 t + ;t s .* F N ! I fi{ -JI" 11 , ? r c yt 3r # 1 Y + a F d 1* >,:1 to e 00-WI- - 'x" 1 , 'h " YRjW tl > 7 x f 3 }7 , 7 nt-. f iEX 1r 1 5 f, n c a ti fi >< - W s s r7 ( - S r £, MI'i, cs 1 a n r A ra4 t dt ^ w #V xk° { } rya; k7t A ,, , v y a ' Y s 3 i + >. + W OW' t >ix .4yyq §{ r N ( c = ( tr '., rr ,t S x kv St r£ 5 cy «'''!i .f xYY1 {:. W y a 4 a t F $- I 'z,.i r . I r,, "3 a , r r x >x 35J5 Jk .y tvtp r A T- -v JF tca # " i {{ w ... '+ ) p-k t f i x ' y Jt , a t 't. ;nay% "     UNIVERSITY OF MICHIGAN PUBLICATIONS LAW VOLUME III TRANSACTIONS OF THE SUPREME COURT OF THE TERRITORY OF MICHIGAN 1814-1824 VOLUME I PUBLISHED WITH FUNDS DERIVED FROM GIFTS MADE TO THE UNIVERSITY OF MICHIGAN BY WILLIAM W. COOK  I I TRANSACTIONS OF THE SUPREME COURT OF THE TERRITORY OF MICHIGAN 1814-1824 Edited by WILLIAM WIRT BLUME Professor of Law and of Legal Research University of Michigan VOLUME I THE UNIVERSITY OF MICHIGAN PRESS Ann Arbor, Michigan 1938 . - A Y M M 1 COPYRIGHT 1938, BY UNIVERSITY OF MICHIGAN FOREWORD HE two volumes now published cover the Transactions of the Su- preme Court of Michigan from I814 to 1824, and are numbered and 2. They are, however, Volumes 3 and 4 of the University of Michigan publications in law, and are a continuation of the legal history of the territorial and early statehood periods of Michigan. The first two vol- umes of this series, published in 1935, cover the years I805 to 1814. All four volumes have been compiled, edited and published upon the William W. Cook Endowment Fund. The four volumes of this series now published are of great importance to students of the history not only of Michigan, but of Wisconsin, Minnesota, Iowa, and North and South Dakota, all of which states were included in the Territory of Michigan (Wisconsin from I818 to I836; the other states from 1834 to I836). This history has more than antiquarian or historical impor- tance, for it contributes directly to an understanding of the courts and court procedure, in the states affected. Thus as lately as 1931, the Supreme Court of Wisconsin, in a scholarly opinion as to the constitutionality of a Wisconsin statute giving to the Supreme Court of that State power to regulate Plead- ing, Practice, and Procedure, in all the courts of Wisconsin, based its deci- sion in large part upon a study of the history of the courts in Michigan Ter- ritory. The volumes now published have made use of much material long lost sight of, and put in convenient form all of the material available to the Wisconsin court in the decision above mentioned, and much else besides. The period covered by this series has never been thoroughly studied be- fore. It has been impossible for anyone, without years of time available for the task, to thread his way through this period. At the beginning, the whole region was still governed by laws passed by the Continental Congress. These were succeeded by statutes of the Congress of the United States, setting up new territorial limits, new forms of government, and of particular interest, various plans for the organization and procedure of the courts. Among the items now published for the first time are many opinions of the Territorial and Michigan Supreme Courts, and a vast amount of material found in the Court Journals and other contemporary records and literature. Solomon Sibley, the first attorney to be admitted to practice before the Supreme Court of Michigan Territory (July 30, 18o5), became judge of the Court in 1824 and served throughout the remaining period of the Court's existence, which ended in 1836. His papers have been preserved in the Bur- ton Historical Collection in 59 large MS. stub books. Many opinions delivered by him were not filled with the Clerk of the Supreme Court, but vi FOREWORD were kept with his personal opinions. Professor Blume has identified and obtained photostats of twenty-nine full opinions, six memoranda of opinion, and notes relating to twenty-eight other cases. Some of the material just mentioned is published in the present volumes, and the remaining new items will be found in subsequent volumes. Several of Judge Woodward's opinions (Judge Sibley's distinguished contemporary), were printed in current news- papers and thus have been available. Judge Sibley's opinions have remained unidentified and unpublished before the present day. Professor Blume has rightly devoted much space in these volumes to a narrative of the long-continued struggle between the Territorial legislative bodies and the courts, as to the power to prescribe rules of practice, pleading and procedure. This story has been set forth in a vivid and interesting way, and had it been made available earlier would have thrown needed light on some of the doubts as to the power of the courts to prescribe their own rules, in this State. It was legislative enactments concerning this matter which the Supreme Court of Wisconsin referred to in the case above mentioned, and it was such of this material as was then available to which Professor Edmund M. Morgan was obliged to go for his article on "The Judicial Regulation of Court Procedure," 2 Minn. Law Review, pp. 80-93. Thus it will be seen that Professor Blume's labors and the cooperation given by the Supreme Court of Michigan, the Burton Historical Collection, and other institutions and persons referred to in the introduction to Volumes I and 2 of this series, have made available for the first time all known extant materials bearing upon the early history of courts, procedure, and much legislation, in Michigan and in the other states forming the Michigan Territory. HENRY M. BATES Dean, University of Michigan Law School CONTENTS VOLUME I PAGE INTRODUCTION .. . . . .. . iX Rule-making Power and its Exercise . . .. xi The "Three Sides" of the Supreme Court . . ... xxxiii An Inventory of the Records . . .. . . xxxix MAP OF MICHIGAN TERRITORY . ... facing page xlv CENSUS OF MICHIGAN TERRITORY-1820 . . . . . . Xlv OUTLINES OF JUDICIAL SYSTEM .I... .. ROLL OF ATTORNEYS .... . . 15 CALENDAR OF CASES (including lists of journal entries, lists of papers in files, comments and references) . .. . .. 25 SUPPLEMENTARY CALENDAR A . ... . 333 SUPPLEMENTARY CALENDAR B . . . .. . 359 DOTY'S REPORTS . . . . . . . . . . 365 OPINIONS IN UNREPORTED CASES ... .. 429 NOTES OF TRIALS, ARGUMENTS, DECISIONS AND PROCEEDINGS-S EPTEMBER TERM, 182I . . . . . . . . . . . 477 SELECTED PAPERS . .... . 497 INDEX TO CALENDAR OF CASES . . .. .. 741 VOLUME II JOURNAL 2 1814-1819) . . . JOURNAL 3 (I819-1824) CHANCERY JOURNAL (1819-1825) DIGEST OF COURT RULES . . . TABLE OF COURT RULES . . . TABLE OF GRAND-JURY ENTRIES . . TABLE OF PETIT-JURY ENTRIES . . TABLE OF MISCELLANEOUS ENTRIES . TABLES OF CROSS-REFERENCES . . CALENDAR OF MISCELLANEOUS PAPERS . INDEX TO NATURALIZATION PROCEEDINGS INDEX DIGEST OF DECISIONS AND OPINIONS INDEXES TO PLEADING AND PRACTICE FORMS INDEX TO NAMES OF PERSONS . . . . . I S . . . 201I . . . 459 .* . . . 513 . . . . 535 ." . . . 553 . . . . 557 . . . . 562 . . . . 565 . . . . 573 . . . . 585 . . .* . 587 . . .*. 592 . . . * 596 vii  INTRODUCTION DETROIT was occupied by the military forces of Great Britain on August 16, 1812 and was under the control of such forces until September 29, 1813.1 The judges of the Supreme Court of the territory of Michigan refused to exercise their offices under the foreign power2 and, as a consequence, the terms of court which were to commence on the third Monday in September I812 and on the third Monday in September 1813 were not held. At the beginning of the term which was commenced on the third Monday in September 1814, a question was raised as to the pendency of cases which had been started before the War. This question was raised by a plea in abatement in the case of Thomas v. McPherson and the plea was sustained. As a result of this decision all actions which had been started before the War were deemed abated. The first journal of the Supreme Court contains the "diurnal transac- tions" of the court from the date of its first session-July 29, 18o5-to the outbreak of the War of I812. It contains, also, the proceedings of the court for the first eighteen days of the term which was commenced in September I814. This journal has been printed in the first volume of this series.4 The second journal starts with the transactions of October 7, 1814 and carries the record to November 19, 1819. Commencing on the latter date, the third journal carries the record through the year 1824. The Chancery journal, which was commenced on November 5, I819, was kept as a journal through the year 1822 and thereafter through the year 1825 as a record of decrees. These journals are printed in volume two of the present study. The proceedings recorded in the first journal of the Supreme Court (I 8o5- 1814) belong to a definite period in the court's history. The dissensions which marred the administration of the territorial government under Gov- ernor Hull came to an end with the surrender of Detroit. Hull ceased to be governor, and a more able administrator-Lewis Cass-took his place. The critics of Judge Woodward were silenced by his fearless opposition to the British officers who controlled Detroit.5 After the withdrawal of the British ' See note Transactions 1805-1814, I, 220. * Ibid. * Ibid. ' Transactions 18o5-18t1, I, 345-60o5. * "The British occupied Detroit from August i16, I812, to September 28, I813, and for a large part of that time Judge Woodward was the only representative of the former government of the Territory of Michigan, and in his intercourse with the enemy he displayed an ability, boldness, and care for the American residents that won for him their deserved admiration and respect." (W. L. Jenks, "Augustus Elias Brevoort Woodward," Michigan History Magazine, IX, 515, 533) ix x INTRODUCTION soldiers, the territorial government had to make a new start amid the ruin and desolation of war. Deeming all of the cases pending at the time of the War to have been abated, the Supreme Court started anew with an empty docket. The proceedings recorded in the second and third journals (1814-1824) also belong to a definite period in the history of the Supreme Court. Under the Ordinance of 1787,8 which was made applicable to the territory of Michigan by the act which created the territory,' the commissions of the judges were to "continue in force during good behaviour." In 1823 Congress provided that on February I, 1824, and every four years thereafter, the offices of the judges should become vacant.8 Judge Griffin resigned9 and Judge Woodward was not reappointed.'0 Judges Sibley and Hunt were appointed to the vacancies thus created." This change in personnel definitely affected the character of the court. The leadership of the court passed from Woodward, an erudite but erratic scholar, to Sibley, an industrious, prac- ticing lawyer of long experience. Furthermore, with the establishment of the circuit courts in I82512 the Supreme Court was relieved of much of its original jurisdiction and became, primarily, a court of appeal and a court of chancery. These changes mark the end of the second period of the court's history. Two features of the records of the second period (i814-I1824) seem to call for especial consideration. First, a person examining 7ournals 2 and 3 is certain to be impressed by the extraordinary number of court rules recorded therein. Although the court's rule-making power has been dis- cussed," it seems desirable to expand that discussion and to consider at some length the limits of the power. Second, a development of more than common interest was the court's attempt to divide itself into three courts, or at least, to establish itself as a court having three separate sides. This development will be traced and explained as far as possible. The discus- sions of these features will be followed by an inventory of the records of the court. 6 Territorial Papers of the United States, Carter, ed., II (1934), 39; U. S. Statutes at Large, I, 51, note. 7 U. S. Statutes at Large, II, 309. 8 Ibid., III, 769. Y Doty's Reports, infra, p. 367. Judge Griffin acted in his legislative capacity on January 28, I823 (Laws ofthe Territory of Michigan, I, 279), but did not sit as a judge of the Supreme Court after October 13, 1822 (Journals, infra, Vol.II, passim). "Some months" before his office became vacant he left the territory and did not return. (Jenks, "Judge John Griffin," Michigan History Magazine, XIV, 221, 224) While it is known that he quit his office and did not seek reappointment, it is not certain that he tendered a formal resignation. 10 Judge Woodward sought reappointment and it appears that the President fully intended to re- appoint him, "but on the day before the names of the judges were sent to the Senate.... Woodward's name was withdrawn and that of John Hunt .... substituted." (Jenks, op. cit., note 5 supra, p. 54) U See commission set forth in Journal3, infra, Vol. II, *p. 469. n Laws of the Territory of Michigan, II, 264. n Transactions 18o5-1811, I, xl-xlii. INTRODUCTION xi I RULE-MAKING POWER AND ITS EXERCISE (I) Northwest Territory (1788-1802) By the Ordinance of 1787 the Continental Congress established a supreme or superior court for the Northwest Territory and vested it with "a com- mon law jurisdiction." The Congress did not, however, prescribe when, where or how this court should exercise the judicial powers which were conferred upon it except in the following negative provisions of the second article of the Ordinance: "The inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus, and trial by jury;. . .. and of judicial proceedings according to the course of the common law. All persons shall be bailable, unless for capital offenses, where the proof shall be evident, or the presumption great. All fines shall be moderate; and no cruel or unusual punishments shall be inflicted.- No man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land .... " The articles of the Ordinance were in the nature of a bill of rights and the Ordinance declared that they should be considered "articles of compact between the original states, and the people and states in said territory, and forever remain unalterable, unless by common consent." They were looked upon as containing limitations on the powers of the Continental Congress. These limitations while not binding on the Congress of the United States,4 did bind the territorial government established by the Ordinance. The Ordinance provided for the appointment of a governor, a secretary and three judges as the officers of the territorial government. At first these officers were appointed by the Continental Congress. Later, the Congress of the United States provided for their appointment by the President of the United States.5 Other local officers were contemplated by the Ordinance. These were to be appointed by the governor of the territory. "The governor, and judges or a majority of them" were authorized to adopt and publish "such laws of the original states" as might be "necessary and best suited to the circumstances of the district." These laws, unless disapproved by Congress, were to be in force until the organization of a general assembly which was to have power to make laws "for the good government of the 14 See note 36, Territorial Papers of the United States, Carter, ed., II, so50. 15 Territorial Papers of the United States, Carter, ed., II, 203. X11 INTRODUCTION district, not repugnant to the principles and articles" of the Ordinance. The Ordinance further provided: "Previous to the organization of the general assembly, the governor shall appoint such magistrates and other civil officers, in each county or township, as he shall find'necessary for the preservation of the peace and good order in the same. After the general assembly shall be organized, the powers and duties of the magistrates and other civil officers shall be regulated and defined by the said assembly." By an act approved May 8, 1792, the Congress of the United States pro- vided that the official duties of the secretary of the territory should be "under the control" of such laws as were or might be in force within the territory,6 but no similar provision was ever enacted with respect to the official duties of the governor. The powers and duties of local magistrates appointed by the governor were to be regulated and defined by the terri- torial assembly when organized. But at no time did Congress provide that the powers and duties of the three judges of the Northwest Territory should be regulated or defined by any branch of the territorial government. The three judges in and over the territory were "appointed a court" and were clothed with "a common law jurisdiction." Congress having established the court and having defined its jurisdiction, it is clear that the territorial government had no authority to add to or subtract from that jurisdiction. But jurisdiction or judicial power must be distinguished from the time, place and manner of its exercise. The territorial government was without power to define the jurisdiction of the court established by Congress. Was it without power to regulate the exercise of such jurisdiction? Of course, if Congress should prescribe when, where and how the supreme or superior judges should exercise their judicial power, there would be no place for local regulation. In the absence of regulation by Congress, action by some territorial authority would be necessary. Should such action be taken by the governor, or by the territorial legislature, or by the court itself? With- out undertaking a discussion of the theories of government involved, the following questions will be considered: (1) To what extent, if any, did Congress regulate the powers and duties of the judges of the General Court? (2) To what extent, if any, were such powers and duties regulated by the legislature of the territory? (3) To what extent, if any, were such powers and duties regulated by the judges of the court? Similar questions with respect to the lower territorial courts will also be considered. In July 1788, at the very beginning of their activities as a legislature, the governor and judges of the Northwest Territory disagreed in their inter- pretation of the Ordinance of 1787 which had conferred upon them their legislative powers. Arguing in favor of a broad construction of the section which had provided that the governor and judges should adopt and publish 16 U. S. Statutes at Large, I, 285, 286. IN TROD UCTION xiii such laws of the original states as might be necessary or best suited to the circumstances of the district, Judges Parsons and Varnum expressed them- selves as fearful of "very precarious consequences" should their "legal operations" be confined for any length of time "to the principles of the common law.""' In a reply dated August 2, 1788, General St. Clair, the governor, said: "If then amongst all the Laws of all the States, & we have them all to choose from, which methinks is no 'narrow Bounds' we can find none to suit us, the Consequence seems certain that the 'legal Operations' must be guided by the Common Law. Now what I understand by legal Operations are the Decisions your Honours will make in your judicial Capacity upon Matters of Property, & the Sentences that may be pronounced upon Crimes commited,-together with the Mode of Trial in both-"'"8 The Governor, it thus appears, was of the opinion that the Continental Congress, by means of the Ordinance, had not only established a court for the new territory, but had provided a body of law to govern the court in its "legal operations," both procedural and substantive. It was apparent, however, that the court created by the Ordinance could not commence the transaction of judicial business until the court itself, or some other territorial authority, had fixed the times and places at which its sessions should be held. The Ordinance had failed to specify when and where the court should sit, and had failed to provide how such regu- lations should be supplied. The "powers and duties" of local magistrates were to be "regulated and defined" by the legislative assembly when organized, but no similar provision was made with reference to the powers and duties of the judges appointed by Congress. No discussion of this matter has been found, but we do find a territorial legislative act published August 30, 1788 which fixed the times for holding the sessions of the "General Court" and which provided that sessions should be held in such counties as the judges should "from time to time deem most conducive to the general good, they giving timely notice of the place of their sitting."'9 Only one term, however, might "be holden in any one county in a year." Process, civil and criminal, was to be made returnable to the court wherever it might be within the territory. Provision was made for adjournments of the court and for the continuance of process. Finally, the law provided, "All issues in fact shall be tried in the county where the cause of action shall have arisen." The only other legislative act published in 1788 which was in any way regulatory of the powers and duties of the judges appointed by Congress 1' St. Clair Papers, Smith, ed., II, 69, 71. 18 Territorial Papers of the United States, Carter, ed., III, 273, 276-7; St. Clair Papers, Smith, ed., II,75. 1 Laws of the Northwest Territory x788-i8oo, Pease, ed., Illinois State Bar Association Reprint, p. I I. xiv INTRODUCTION provided for appeals to the General Court from the definitive sentences and final decrees of the courts of probate.20 No laws were adopted in 1789, and of those published in 1790 only one affected the powers and duties of the judges. This act altered the terms of the General Court and provided that specified terms should be held in specified counties.2' The places of sitting within the counties were not pre- scribed but were left to the discretion of the court.22 A single act of the kind in question was published in I791, viz., "An ACT for rendering authentic as evidence in the Courts of this Territory, the public acts, records and judicial proceedings of Courts in the United States."23 Passing on to 1792, we find three acts which should be noted in this connection. One of them fixed the fees of the judges and clerk of the Gen- eral Court.24 Another act provided that no person should be admitted to practice as an attorney in any of the courts of the territory unless he should pass an examination before one or more of the "territorial judges" and take the oath prescribed by the act.25 This act further provided that a party to a suit might "plead and manage" his own case in person, and limited the number of attorneys who might appear in his behalf. A third act provided that executors, administrators, and guardians should not be compelled to plead specially in any action brought against them, but might "under the general issue give any special matter in evidencee."26 No legislation of any description was undertaken in 1793 or in 1794, and none in 1795 prior to the revision of the statutes which was begun at the end of May in that year. The period 1788-1795 was the formative period of the territorial govern- ment, and the seven acts listed above are significant in at least two respects. They show that the governor and judges assumed that they, as a legisla- ture, had authority to regulate the powers and duties of the territorial judges and could regulate the jurisdiction and practice of the court in which they sat. They show, also, that this assumed power was so little used that the General Court was left almost entirely free to regulate its own affairs, sub- ject, of course, to any acts of the Congress of the United States. Within the period 1788-1795, Congress passed but one statute which referred expressly to the judges of the General Court. This act, approved so Laws of the Northwest Territory 1788-18oo00, Pease, ed., Illinois State Bar Association Reprint, p. 9. t Ibid., p. 34. ' In a letter dated April 28, 1795, addressed to Judge Turner, Governor St. Clair said: "The General Court, Sir, may sit wherever the Judges think proper in any County, and it is to be presumed they will always use that discretion so as to render the Session most convenient to the Inhabitants in the County Town or otherwise as that may be .. " (Territorial Papers of the United States, Carter, ed., II, 509) SLaws of the Northwest Territory z788-i8oo, Pease, ed., Illinois Bar Ass'n Reprint, p. 44. * Ibid., pp. I02, Io08-9. 25 Ibid., p. 88. ' Ibid., p. 93. INTRODUCTION xV May 8, 1792, authorized any one of the "supreme" or "superior" judges of the territory "to hold a court" in the absence of the others."2 The Ordinance had provided that any two of the judges might "form a court." The General Court, although created by Congress, was not a court of the United States and, therefore, was not governed in its organization and practice by the acts of Congress which regulated the proceedings of the courts of the United States.28 That this was recognized by the governor and judges in the formative period of the territorial government is indi- cated by the adoption of section two of the act "to regulate the admission of Attornies" published in 1792.29 Section two provided: "That parties may plead and manage their own causes personally or by the assistance of such counsel as they shall see fit to engage but the plaintiff or plaintiffs in any suit shall not be allowed to manage their cause by more than two attornies nor shall any defendant employ a greater number." This provision was made despite the fact that the Federal Judiciary Act of 1789 had provided: "That in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of such counsel or attorneys at law as by the rules of the said courts respectively shall be permitted to manage and conduct causes therein."30s According to a letter written by Governor St. Clair to the Attorney General of the United States in 1790, the judges of the territory had "doubts" whether laws of the United States could have "course in the Territory unless it be especially named in them."31s It was their opinion, it seems, that the Northwest Territory was not a part of the United States.32 The act of Congress of 1792 which authorized any one of the "supreme" or "superior" judges of the territory to hold a court in the absence of the others33 provided also that "the official duties" of the secretary of the territory should be under "the control" of such laws as were or might be in force therein. The secretary was one of the five officers appointed by the Continental Congress and, later, by the President of the United States, and it seems significant that his duties alone were mentioned in the act. If merely declaratory of the previous law, the act probably was intended to 27 U. S. Statutes at Large, I, 285, 286. 28 See notes 130 and 132, infra. 9 Laws of the Northwest Territory 1788-z8oo, Pease, ed., Illinois Bar Ass'n Reprint, p. 88. 0so U. S. Statutes at Large, I, 92. 1st Territorial Papers of the United States, Carter, ed., II, 319. n Ibid., pp. 519-24. See also the act of June 22, 1791 "for rendering authentic as evidence" certain records and public acts. (Laws of the Northwest Territory 1788-1800oo, Pease, ed., Illinois Bar Ass'n Reprint, p. 44) This act was published about one year after a similar act had been passed by the Congress of the United States. (U. S. Statutes at Large, I, 122) The congressional act had provided that full faith and credit be given to such records and public acts "in every court within the United States." a' U. S. Statutes at Large, I, 285, 286. xvi IN TROD UCTION settle some controversy which had arisen on the point. If, on the other hand, it operated to bring the official duties of the secretary under the control of the territorial laws, a question arises as to whether a similar provision was not necessary to subject the powers and duties of the "supreme" or "superior" judges to local legislation. General courts of quarter sessions of the peace, county courts of common pleas, and probate courts were established by the governor and judges in 1788.34 The acts which created these courts defined their jurisdiction, fixed their terms, and provided in some detail how they should exercise the powers which were conferred upon them. Criminal cases were to be heard and determined "according to the course of the common law."35 An act "prescribing forms of writs in civil causes and directing the mode of proceeding therein" was published in 1792.36 In 1795 Governor St. Clair recommended that this act be repealed, pointing out that under the Ordinance the people of the territory were entitled to judicial proceedings according to the course of the common law. It seemed to him that the act had "greatly narrowed the right resulting from that article" and, in some cases, contrary to "the spirit of the common law," compelled a creditor to "imprison his debtor, or forever forego his remedy against him.""37 From a letter written by Acting Governor Sargent to Judges Symmes and Turner in 1790, it appears that the lower territorial courts were guided in their adoption of rules of practice, at least to some extent, by the judges of the territory. The Acting Governor wrote: "I perfectly agree with you Gentlemen in the Opinion that the inferior Courts might have derived a better Tone to their proceedings from the Example of a supreme Judicatory in the Territory-& that they have been so long deprived of it, is very much to be lamented; but I can not admit 'that They are very deficient & desultory in Practice-or that Want of 'Uniformity with Respect to Rules Process' &ca which you are inclined to believe; for the following Reasons- "The first Courts which were established (in the County of Washington) were under the immediate Auspices of two of the Judges of the Territory; . . . . "The practice at Hamilton must I should suppose have been founded upon the Information & Knowledge of one of the Territorial Judges "At the County of St Clair the Governour's Counsel & Guidance were not wanting u Laws of the Northwest Territory 1788-18oo, Pease, ed., Illinois Bar Ass'n Reprint, pp. 4-10. i Ibid., p. 6. SIbid., p. 93. 87 St. Clair Papers, Smith, ed., II, 361. In 1809 a grand jury in Michigan "presented" a statute as "unconstitutional" because it allowed only six peremptory challenges in criminal cases instead of the "thirty-five" allowed by the common law. (Michigan Pioneer Collections, VIII, 587-9) In 1821 the County Court of Wayne County, Michigan, quashed a number of indictments because they had been found by a grand jury composed of eighteen members instead of by a grand jury of twenty-four. (Detroit Gazette, January 19, 1821) The act which provided for a grand jury of eighteen was declared "unconstitu- tional" as being in conflict with the provision of the Ordinance which guaranteed the benefits of judicial proceedings according to the course of the common law. See, however, the Detroit Gazette of January 3, 3823, infra, p. 495. INTRODUCTION xvii "And in this County I have recommended to the Courts to receive their Rule of Practice from your Honours-."38 The governor and judges of the Northwest Territory published thirty- eight laws in 1795, none in 1796 or 1797, and eleven in 1798. Approxi- mately one half of these laws contained provisions which, to some extent, either defined the jurisdiction of the General Court or regulated the manner in which it should exercise its judicial power. Certain matters, viz., the organization of the court, its jurisdiction, the times and places of its sessions, the fees allowed to the judges and the clerk, and the admission of attorneys, were fully regulated by statute. Process was regulated to some extent. The rules of pleading, practice, and evidence were regulated so little that it seems safe to say that they continued as at common law except as modified by the General Court. Subpoenas might be issued by the lower courts "under such pains and penalties as, by the rules of the common law, and course of the practice of the General court," were "usually appointed."39 By an act published in 1795, the governor and judges declared that the "common law of England" and all English statutes of a general nature "made in aid of the common law" prior to I6o7 should be considered "as of full force" within the territory.40 This act did not introduce the common law but did determine what acts of the English Parliament should be deemed a part of the common law. The task of adapting the rules of common-law pleading, practice, and evidence to the conditions of the territory was not undertaken by the governor and judges as a legislature but was left to the judges as a court. This was entirely proper. The rules had been developed by the courts of England with the occasional aid of the English Parliament, and it was appropriate that the courts of the territory should mould them to fit the needs of a "new world."4' In I8oo, "for the purpose of establishing and maintaining an uniformity in the practice of the several courts throughout the territory," the General Assembly enacted: "That it is hereby made the duty of the judges of the general court, to compile a system of rules for the government of the general and circuit courts; and they are hereby required, on or before the first Monday of August next, to cause a copy of such rules to be delivered to the clerk of each of the said courts. Provided always, 88 Territorial Papers of the United States, Carter, ed., III, 317-18. 31 Laws of the Northwest Territory 1788-1800oo, Pease, ed., Illinois Bar Ass'n Reprint, p. 159. '0 Ibid., p. 253. 41 "In moulding the jurisprudence of the maternal Kingdom to this adolescent republic, it ought to be the primary object to secern the use of every part, avoiding its abuse; and pretermitting all that is obsolete, inapplicable, or excrescent. While the Solid and Valuable trunk of english jurisprudence is Sustained; its Superfluous and incongruous appendages, ought to be Subjected to a bold, but happy excision." (From an opinion delivered by Judge Woodward of Michigan Territory in 1809, Transactions z8os-s84, I, oo-5o) xviii INTRODUCTION That the said rules shall be consistent with the constitution, laws and ordinances of the United States and the acts of this territory; which rules may be revised and amended by the said judges, when and as often as occasion may require, and such amendments shall be forthwith transmitted to the clerks aforesaid."42 This act suggests that the members of the General Assembly were of the opinion that they alone of the local government had power to regulate the practice of the General Court, and that they could delegate this power, or a part of it, to the court itself. It suggests also that the rules of the Gerieral Court, if any, had not been published or otherwise made available throughout the territory. According to Carrington T. Marshall, formerly Chief Justice of the Supreme Court of Ohio, "Not a single line of the reasons for the decisions or even the original records of the decisions themselves can be found of the judges of the General Court of the Northwest Territory and apparently not a single docket of the General Court is in existence."43 In the absence of these records, we do not know that the General Court ever made rules of practice and of course do not know the nature or number of any rules which may have been made. So long as the lawyers of the territory were few in number and attended all of the sessions of the General Court wherever held, reports of decisions and compilations of court rules were not necessities. With the growth of the terri- tory, announcements from the bench ceased to give adequate notice to those who needed to be informed. And, as indicated by the act of 1800oo, "uniformity in the practice of the several courts throughout the territory" was something greatly to be desired. (2) Indiana Territory (i8oo-i8o5) The General Court of Indiana Territory was created by Congress and was invested with the same jurisdiction as had been conferred upon the General Court of the Northwest Territory.44 As in the case of the earlier a Statutes of Ohio and of the Northwestern Territory, Chase, ed., I, 307. The circuit courts were held by single judges of the General Court to try issues of fact raised in cases pending in the General Court. ~A History of the Courts and Lawyers of Ohio (1934), I, 287. Mr. K. W. McKinley, assistant secretary- librarian of The Ohio State Archaeological and Historical Society, Columbus, Ohio, in a letter dated June 24, 1937, states: "We have examined all of the manuscript collections available to us and all of the secondary sources we can find, but still we do not have a copy of the rules for the General and Circuit courts of the Northwest Territory. ... There is nothing in the St. Clair collection and there is nothing in the Putnam correspondence or any of the other manuscript collections in Marietta." Copies of rules adopted by the Court of Common Pleas, Jefferson County, November Term, 1797, have been preserved with the papers of Solomon Sibley. (Sibley Papers, Vol. 8, p. 2, Burton Historical Collection, Public Library, Detroit) " U. S. Statutes at Large, II, 58-9. INTRODUCTION xix court, Congress did not undertake to regulate the new court's practice, but left such regulation to the territorial government. The governor and judges assumed that they, as a legislature, should exercise this power and proceeded to do so. One of the earliest laws adopted by the governor and judges of Indiana Territory (January 18oi) "established" the General Court, defined its jurisdiction, fixed its sessions, and regulated its practice in certain respects.45 At the same time a law "respecting amendment and jeofail"46 and one "to regulate the practice of the General Court upon Appeals and Writs of Error, and for other purposes"47 were adopted along with a resolution48 repealing in part "an act regulating the admission and practice of attornies and counsellors at law" passed at the first session of the General Assembly of the Northwest Territory. A law "in addition" to the act "to regulate the practice of the General Court" was published in I8o3.49 This act con- tained thirty sections and regulated, at least in some respects, appearance bail, special bail, rules to plead, sworn pleas, double pleas, limitation of actions, amount of recovery on bonds, use of interpreters, voluntary non- suits, number of new trials, verdicts on several counts when one is bad, qualification of Negroes and Indians as witnesses, security for costs, jeofails, jury's use of papers read in evidence, exceptions to declarations in eject- ment, defects in verdicts in detinue, recovery of costs, and other similar matters. The practice act of 18oi provided that the General Court should have power "to direct the writs, summonses, process, forms and modes of pro- ceedings to be issued, observed, and pursued by the said general court."50 By this provision, according to Professor Philbrick, "rather broad power was given to the General Court to adopt its own rules of procedure, though it did not go far in exercising this.""' The fact that the General Court did not "go far" in the exercise of its rule-making power seems to be explained, at least in part, by the adoption of the comparatively long practice act of 1803.52 Most of the matters regulated by this act could have been regulated with equal propriety by the court itself, but for some reason the judges of the territory preferred to act as legislators instead of as a court. The act of 1803 governed the " Laws of Indiana Territory 18or-1Sog9, Philbrick, ed., p. 8. * Ibid., p. 7. 47 Ibid., p. 3. 48 Ibid., p. 2. " Ibid., p. 33. SIbid., p. 3. "i Ibid., p. clxix. In a footnote Professor Philbrick says: "Rules of Court appear in its Order Book, I: I, 19--these deal only with return days and delivery of the record, on appeal to the presiding judge; 26--motions in arrest to be argued the same term unless put over at the request of the plaintiff." " Laws of Indiana Territory 18o-18o, Philbrick, ed., p. 33. XX INTRODUCTION procedure of the courts of common pleas as well as that of the General Court, and it may be that a statute was preferred to court rules in order that the procedure of the courts might be uniform throughout the territory. (3) Michigan Territory (1 805-I 824) On July 24, 18o05, some three weeks after the organization of the govern- ment of Michigan Territory, the governor and judges as a legislature "established" a supreme court for the territory and provided that it should "consist of the three judges appointed and commissioned by the President of the United States."53 This act, which was entitled "AN ACT concerning the supreme court of the territory of Michigan," determined the precedence of the judges, defined their jurisdiction, and provided when and where they should hold their sessions. The act further provided for the custody of the court's seal, a public docket, special sessions, adjournments, the style and teste of process, the clerk's oath and bond, the allowance of writs, the taking of affidavits, the admission of oral testimony in equity cases, the employ- ment of commissioners, the use of paper instead of parchment, the appoint- ment of prosecutors, security for costs, and the taking of bail. In addition to these provisions the act contained the following important sections: "Section 8. And be it enacted, That the judges shall direct the forms of writs from time to time, in such manner as shall seem advisable . . ." "Section 9. And be it enacted, That the supreme court shall and may, from time to time, make, record, and establish all such rules and regulations, with respect to the admission of counsel and attornies, and all other rules respecting modes of trial and the conduct of business, as the discretion of the court shall dictate . .. ." "Section is. And be it enacted, That the appearance-day to all writs and process, awarded by the said court, shall be according to the direction thereof . ..." The governor and judges of Michigan were on fairly solid ground in acting upon the assumption that they as a legislature had authority to regulate the powers and duties of the judges appointed by the President of the United States. The legislatures of the older territories had acted upon similar assumptions, and the practice was well established. Their other assumption, viz., that they as a legislature alone had been vested with this power, was not well-founded. If the governor and judges as a legisla- ture had not attempted to confer upon the court a rule-making power, but had merely refrained from adopting necessary procedural regulations, the court would have been compelled to make them or else stand idle. 5* Woodward Code, 17; Laws of the Territory of Michigan, I, 9. INTRODUCTION xxi That it would have had power to make such regulations in the exercise of the common-law jurisdiction conferred upon it by Congress is not open to serious doubt. Furthermore, it should be noted that the governor and judges as a legislature did not have power to make laws, but could only adopt laws from the original states. Having power to "adopt and publish" they could not delegate power to "make, record, and establish." The implied rule-making power of the court was not limited by the principle of adoption. If the view be taken that the grant of common-law jurisdiction to the judges as a court included an implied grant of rule-making power, and that the grant of legislative power to the governor and judges as a legis- lature included power to regulate the practice of the court, a question arises as to what rule should govern possible conflicts in the exercise of the common power, and specifically whether Congress had provided any rule to govern such conflicts. Sessions of the Supreme Court were held by the three judges of the territory when all were present in the territory, but might be held by two judges, or by one, in the absence of the others. Two judges could at all times control the court's rule-making power. Laws, however, could be adopted only by a majority of the "governor, and judges." At sessions of the legislature held by the governor and all of the judges, the votes of three of the four members were necessary for legislative action. It thus appears that two of the judges, as a majority of the court, might, in the exercise of the court's rule-making power, make a rule dealing with a matter of practice, and then as legislators successfully resist any attempt to change it by statute. Likewise, two of the judges as legislators might join with the governor in the adoption of a procedural law, and then as judges successfully resist any attempt to change it by rule of court. As a practical matter, therefore, conflicts in the exercise of the common power could not arise when all of the judges were present. The power to regulate the practice of the Supreme Court at any point could be exercised effectively only by the agency which acted first. But it should be noted that conflicts were possible when one of the judges failed to attend the sessions of the Legislative Board. In this situation, due to a peculiar work- ing rule agreed upon by the governor and judges among themselves, laws could be adopted by the votes of two of a quorum of three.54 A statutory regulation in conflict with one made by two judges of the court might be adopted by the governor and the third judge, in spite of the opposition of the other two judges, if one of the latter happened to be absent. Under the working agreement referred to, the judge present, but dissenting, was bound to sign the law to which he had been opposed. Having signed the "See Transactions 18o5-1814, I, xxiv, xxvii, note 73. xxii INTRODUCTION conflicting law, outward consistency would require that he join in a repeal of the rule in question. In short, when a judge was absent the legislature was practically supreme. In October, November, and December 1819, the Supreme Court made and recorded one hundred and sixty-eight (168) rules." The number is startling when compared with the totals of previous years:56 1805...... O 1810 ........ 5 1815....... 8 1806...... 3 1811........ 3 1816....... o 1807...... 18 1812 ........ I 1817....... I 18o8...... 8 1813........0 o 1818......._ 1809....... 6 1814........2 Total...... 56 At the same time steps were taken to have the new rules printed in digest form.57 For some reason, however, the proposed digest was not printed until 1821, and in the meantime, many of the matters covered by the court rules of 1819 were dealt with by statute. Of the one hundred and sixty-eight (168) rules recorded by the Supreme Court in the fall of 1819, thirty-three (33) were passed at sessions of the court held by all of the judges; forty-nine (49) at sessions held by Wood- ward and Griffin; one (i) at a session held by Woodward and Witherell; and eighty-five (85) at sessions held by Woodward alone. The making of a digest was a "favourite plan" of Judge Woodward.58 The fact that more than one-half of the rules were passed at sessions held by him alone indi- cates rather clearly that all of the extraordinary rule-making activity of 1819 was a part of this "favourite plan." In October, November, and December 1820, the governor and judges as a legislature undertook to regulate by statute many of the same matters as had been regulated by the Supreme Court in 1819. This legislative activity was part of a plan fostered by Governor Cass to print a revised code of the territorial laws. On November 24, 1820, Andrew G. Whitney wrote his law partner, Solomon Sibley, then Delegate to Congress, as follows:" "See Table of Court Rules, infra, Vol. II. SSee tables of court rules, Transactions z8o5-I814, I, 609, and infra, Vol. II. 57 November 5, 1819 the Supreme Court ordered that some proper person should, from time to time, be appointed to "digest the Rules of the Court in such manner as to bring those relating to particular subjects close together; and that the same, thus digested, be, from time to time, printed." (Journal 2, infra, Vol. II, *p. 734) December 2, 1819 the court ordered that when a digest of the rules should be printed "by authority" a suitable number of blank leaves should be bound in each copy to receive further rules. (Journal3, infra, Vol. II,*p. 19) December 9, 1819 the court ordered that certain statutes "affect- ing the jurisdiction or practice of the Court" be inserted "in the printed Digest" preceding "the Rules regulating the practice of the Court." (fournal3, *P. 35) On the same day the court ordered "That a supplement to the Digest of the Rules be from time to time printed by order of the Court, exhibiting, in chronological succession, the rules which may have been passed after the publication of one Digest of the Rules, and before that of another." (Journal3, *P. 29) *s See note 62, infra. " Sibley Papers, Vol. 43, p. 2, Burton Historical Collection, Public Library, Detroit. INTRODUCTION xxiii "Legislation goes on swimingly, the printed Statute book is encreasing in bulk daily.-Most of the important statutes are passed-The Judiciary Law-Chancery Law-Bail Law-Deposition Law-Replevin Law-Sheriffs-Coronors-Consta- ble laws-Entry & Detainer & attachment Law &c-An Ejectment & Mortgage law are under way- & a fee bill-It is expected the whole Code will be revised & printed in a few weeks-Griffin has not been at the board this month, but Wood- ward has taken his place for the purpose electioneering for himself against next year.-Every movement he makes has a bearing & Refference to the next Election, and many undertake to prophesy that he must succeed. * * * "Judge Witherell Opened the Supreme Court on the first Monday in Decr in spite of the adjourning Order of Woodward & Griffin to the 2d Thursday in Augt and as neither of the others would attend, he considered himself obliged to adjourn the Court sine die, which he did accordingly. "You have probably seen by the D. Gazette that on the day woodward & Grif- fin adiourned the special session the[y] made a Rule of Court0 establishing an annual session of the Supreme Court on the 2d Thursday in August, & then ad- journed the court to that day.-Woodward laboured hard to get that annual session on that day, recognized in a Section of the Judiciary Law.-But the Govr & Witherell would not consent & Griffin would not attend during the discussion of all the important laws I have mentioned. "The Judiciary Law limits the session of the Supreme Court to 4 weeks-What will become of Woodward's annual session in August I know not.- "I presume however from the obstinacy of Woodward and the constant quarrels and abuse of each other by Woodward & Witherell at the Legislative Board, that Woodward & Griffin will open the Court in August.-" Whitney's prediction that Woodward and Griffin would open court in August, pursuant to the court rule mentioned, was not correct. On March 31, 1821, the Supreme Court, at a session held by Judges Woodward and Griffin, ordered "that the rule of this Court, made on the twenty first day of October last, relative to the holding a regular Special Session, on the Second Thursday in August, annually, be rescinded."6' In April 1821, Governor Cass informed Sibley that the work of revising the laws was nearing completion. He wrote: "We have nearly closed our Legislative labours, and shall present quite a formi- dable book to the Territory. I hope it will last as long, at least, as we have been preparing it. The Supreme Court is yet in session, and digesting a body of rules. The perseverance of the Chief Judge is equal to every obstacle, which opposes this favourite plan, and I believe he will ultimately push them through. Judge Witherell has seceded from the Court, and takes no part in their deliberations."62 The "formidable book" referred to by the Governor was published in 1821, but was dated "182o"63 and was known as the "Code of 1820.6"" 60o ournal3, infra, Vol. II, *p. 93. 61 Ibid., *p. 97. e Letter dated April 14, I821. (Sibley Papers, Vol. 44, p. 38, Burton Historical Collection, Public Library, Detroit) ' As shown by its title page, the code was printed at Detroit by "Sheldon & Reed, 1820." See Laws of the Territory of Michigan, I, xiii. xxiv INTRODUCTION The Digest of Court Rules mentioned by the Governor was approved by the Supreme Court April 24, 1821 and was published in 1821.65 In its order approving the Digest, the court referred to the fact that some of the previous rules had been "enacted into Statute," and in twenty-eight (28) rescinding orders, stated that the rule rescinded had been "superceded by Statute." Of two hundred and eighteen (218) rules passed in 182167 prior to the printing of the Digest, one hundred and forty-nine (149) were orders rescinding previous rules. The remaining sixty-nine (69) and certain earlier rules, reduced by consolidation to sixty-six (66), were printed in the Digest.65 Although Judge Woodward finally succeeded in having the rules of the Supreme Court digested and published, the slender Digest of 1821 fell far short of being the ambitious digest planned in 1819. Whether he surrendered his original plan voluntarily or was forced to do so is not entirely clear. On the surface it appears that he acted voluntarily, but a bitter struggle may have been going on underneath. Judge Witherell definitely opposed the whole rule-making program. Judge Griffin deserted the Supreme Court in the midst of its rule-making in 1819 and "fled from the Legislative Board" in I820.89 Governor Cass was pushing the revision of the statutes and apparently thought they should deal with many of the matters which had been dealt with by the rules. The fact that Judge Woodward signed most, if not all, of the statutes which superseded his court rules does not mean, necessarily, that he was in favor of those statutes. Long before, he had pledged himself to sign any statute that might be passed by two of a quorum of three whether it received his vote or not.70 He signed the act which limited the annual sessions of the Supreme Court to four weeks although, according to Whitney's letter, he was opposed to the provision mentioned. On the other hand, it should be noted that Woodward failed or refused to attend many of the sessions of the Legislative Board held in 1820. He signed a law published January 3, but did not sign another until May 26. He was absent from most of the sessions held in November. Griffin attended the sessions which Woodward did not attend, and is said to have "publickly avowed that his only and sole object in attending the sessions, was, to form SA printed copy of the Digest is in the library of the Law School of the University of Michigan. It was printed by "Sheldon & Reed, I821." "AN ACT to provide for the printing the Rules of the Supreme Court" was adopted April 12, I821. (Laws of the Territory of Michigan, I, 874) 6 ournal3, infra, Vol. II, *p. 141. 67 See Table of Court Rules, infra, Vol. II. 68 The Digest is reprinted infra, Vol. II. 69 In a letter to Solomon Sibley dated December 16, I820, John P. Sheldon, one of the editors of the Detroit Gazette, said: "Judge Griffin has fled from the Legislative Board" and "old Sulphur legislates in his stead." (Sibley Papers, Vol. 43, P. 57, Burton Historical Collection, Public Library, Detroit) 70 See note 54, supra. INTRODUCTION XXV a quorum, that the other two members might transact the business!"71 Woodward and Griffin could have defeated any attempt on the part of Cass and Witherell to regulate by statute the matters which had been regulated by court rule, but they did not see fit to do so. Griffin, apparently, had no interest in the whole matter, and Woodward did not dare, for political reasons, to oppose openly the Governor's program. It should be noted, also, that at the time of the above transactions the officers of the government, especially Woodward and Griffin, were being bitterly attacked in the public press. Woodward's rules recorded in 1819 did not escape. A capable writer, "Xenos," in the course of a long communica- tion printed in the Detroit Gazette, August II, 1820, listed, among others, these complaints: "That the supreme court, during a great part of a four months' session, held its sittings during the night, instead of the day time; and then without the knowl- edge of the people, at private offices, where not only the suitors, but even the officers of the court had no right to intrude, and could not possibly be accommodated with seats, when they did. "That at these night sessions, a multitude of rules of court were entered of record, vitally affecting the rights of suitors-some of which annul rights at common law; others are palpably legislative acts, and one, at least, going to alter an act of Congress." If every move Woodward made when he returned to the Legislative Board in November 1820 had "a bearing & Refference to the next Election,"72 it may be that he welcomed the opportunity offered to jettison the rules in question. The judiciary act published December 21, 1820 contained the following provision: "That the judges of the supreme court .... may make and record all such rules respecting the trial and conduct of business both in term and in vacation, as the discretion of the said court shall dictate, not contravening the laws of the United States, nor of this territory . . .."73 n An anonymous writer, "Tickler," in a letter printed in the Detroit Gazette, December 8, I820, com- plained: "When Congress, last winter, made an appropriation for printing the laws of this territory, it was hoped that all the members of the Legislative Board would show industry, and carefully revise the laws already passed, and as soon as possible adopt such others as should be found necessary. -- - Judge Woodward absented himself entirely from the Board during almost the whole of last winter, and all the past autumn until Monday, the 27th ult. Judge Griffin, during the recent revision, has, apparently, taken no interest in it, and has publickly avowed that his only and sole object in attending the sessions, was, to form a quorum, that the other two members might transact the business!-Even this duty was too laborious, and a few days ago he withdrew from the Board, declaring 'they had made a mere drudge of him, and had nearly worn his soul out'-that 'it was Judge Woodward's turn now'-[I won't go, Father, it's john's turn]-and he had 'no idea of one member doing everything,' &c." n Whitney to Sibley, quoted supra. n Laws of the Territory of Michigan, I, 718. "AN ACT directing the mode of proceeding in Chancery" published November 28, 1820 had provided: "That it shall be lawful for either of the said courts of chancery, from time to time, to make, alter, amend or revoke any rule of practice, so as to obviate doubts, advance justice, and expedite suits in the said courts, so that the same be not contrary to the provisions of any law of the United States or of this territory." (Ibid., p. 708) xxvi INTRODUCTION It should be noted that the earlier provisions which had purported to confer upon the Supreme Court power to direct the forms of writs and to make rules with respect to the admission of attorneys were now omitted. It should be noted, also, that rules adopted by the court were not to contravene the territorial laws. What has been said thus far has been in reference to the Supreme Court sitting as the Supreme Court of the territory and as a court of chancery and not to the Supreme Court "sitting as a Circuit and District Court of the United States." There is nothing in the acts of the governor and judges to indicate that they believed they had power to prescribe the procedure to be followed in cases which concerned the United States. It was assumed, appar- ently, that these cases were governed by acts of Congress74 supplemented by rules of court. In 1819 the Supreme Court ordered that the clerk "of the Admiralty side of the court, make, and keep, a copy of the rules applicable to the Admiralty side of the court in a separate book."75 The Digest of Court Rules printed in 1821 contained a division headed "Article XI Admiralty."76 When the district courts of Michigan Territory were established in I805, the governor and judges provided that the proceedings of those courts should "as nearly as may be, conform to the law and practice of the supreme court."77 In 1807 the Supreme Court ordered that copies of its rules be furnished to the clerks of the district courts.78 In 1809 by an act signed by the governor alone, and therefore of doubtful validity, the district courts were empowered to make their own rules.7" The district courts were abol- ished in I810,80 and a portion of their jurisdiction was conferred upon the justices of the peace. By an act adopted September I6, 18io, the governor and judges provided that the proceedings, duties, and powers of justices of the peace should, as nearly as might be, conform to the law, duties and powers, proceedings and practices of the Supreme Court, and that the Supreme Court should direct the forms of process from time to time, in such manner as should seem advisable.8' The county courts, established in 1815, were given power to direct the forms of writs, but were not given a general rule-making power.82 In 1818 the governor and judges provided that the proceedings of the county courts should, as nearly as might be, conform to the law, duties, powers, proceed- ings, and practice of the Supreme Court.83 In 1820 the justices of the county 74 See discussion of the "Three Sides" of the Supreme Court, infra, p. xxxiv. 1 Journal 2, *p. 733. 76 The Digest will be found infra, Vol. II. 7 Woodward Code, 29; Laws of the Territory of Michigan, I, 17, 19. 78 Transactions 18o5-1814, I, 377. 7 Laws of the Territory of Michigan, II, 73. so80 Ibid., I, 186, 192. 81 Ibid., IV, 99. * Ibid., I, i8 5. 8 Ibid., II, 737. INTRODUCTION xxvii courts were given power to make and record all such rules respecting the trial and conduct of business, both in term and in vacation, as their discre- tion should dictate, "not contravening the laws of the United States, nor of this territory" :84 "And in order that the rules of practice and proceedings of the county courts may be uniform, and as near as may be, conformable to the rules of the supreme court, the clerk of said court shall, from time to time, transmit copies of the rules to the clerks of the county courts, and the judges of the said courts, shall from time to time, make rules agreeably thereto, as near as may be, for the practice of their courts respectively." In 1823 Congress provided for the appointment of an additional judge for Michigan Territory who should exercise within the counties of Michilimacki- nac, Brown, and Crawford the jurisdiction and power theretofore exercised by the Supreme Court and by the county courts in said counties.86 "Is the Court to be governed by the practice of the Supreme Court of the Territory?" This question was answered by Solomon Sibley, United States attorney, in a letter to James Duane Doty, judge of the new court, as follows: "As one of the Judges of the Territorial Court I think you are bound to respect the practise of the Supreme Court, so far as the same is prescribed by Law. In other cases you can establish Rules in your own court, for the disposal of Business, keeping within the Constitution and Laws of the U. S. and of the Territory."87 Sibley was Delegate to Congress at the time the act providing for the addi- tional judge was passed. It seems important to note that he was of the opinion that a territorial court created by Congress had rule-making power but was required to exercise that power "within" the territorial laws. By an act approved March 3, 1823, Congress divested the judges of Michigan of their legislative power and provided for the appointment of a Legislative Council.88 The council was given power "to make laws, in all cases, for the good government of the district."89 Congress further enacted: "That the powers and duties of the judges of the said territory shall be regulated by such laws as are, or may be, in force therein; and the said judges shall possess a chancery, as well as common law, jurisdiction. .. . Provided, That nothing in this act contained shall be so construed as to deprive the judges of the territory of the jurisdiction conferred upon them by the laws of the United States."90 4 Laws of the Territory of Michigan, I, 718. * Ibid. An act passed in 1824 established a "Mayor's court for the city of Detroit" and provided: "That the practice of the said mayor's court shall be regulated agreeably to the rules and practice of the Supreme Court of this Territory, where the same are applicable, until the said mayor's court shall have made rules for its practice, which the said mayor's court is hereby authorized and empowered from time to time to do." (Laws of the Territory of Michigan, II, 227) * U. S. Statutes at Large, III, 722. 87 Copy of letter dated June I8,i823. (Sibley Papers, Vol. 49, p. 90, Burton Historical Collection, Public Library, Detroit) Ten rulesladopted by Judge Doty were published in the Detroit Gazette, Septem- ber 24, 1824. 88 U. S. Statutes at Large, III, 769. 89 Ordinance of 7787. " U. S. Statutes at Large, III, 769. xxviii IN TROD UCTION The grant of chancery power was made because grave doubts existed as to whether a territorial legislature had power to confer upon a common-law court created by Congress a different kind of jurisdiction.9' This problem has been considered elsewhere, and a conclusion reached that such power did not exist.92 Perhaps the existence of other doubts led Congress to provide that the "powers and duties" of the judges should be "regulated" by the terri- torial laws. This possibility will be explored. By a letter dated January 26, 1822, John Hunt, a member of the Detroit bar and later judge of the Supreme Court, gave Solomon Sibley, Delegate to Congress, the following information: "I wrote you some weeks since, in relation to the proposed change in our Judicial System, which has been matured by the bar, & that petitions would be forwarded without delay on the subject to Congress. We had hoped the Petitions would have been ready to forward by this evenings mail, but they have not yet come in, but will be forwarded by our next. The the plan meets the unanimous wish of all the Counties, except this & here as usual faction is ever ready to thwart any plan however beneficial to community.-McClosky is the moving cause of the opposi- tion, but I think he will have but few followers. The prayer of the Petition is, that a nisi prius term be held in each of the Counties of the Territory once a year for the trial of all issues, & one term here of the full court to decide all questions of law & chancery, and for the appointment of a fourth Judge. Woodward & Griffin it is understood are violently opposed to the change, the latter I know is from a conversation I had with him a few days, since, in which he did not manifest much of the coolness of a reverend Judge. He trembles at the responsibility of one Judge holding a Court, & accuses the New England population, of faction & a disposition for revolution."93 The petitions mentioned, which were addressed to Congress, recited the following facts: "That in and by the Ordinance for establishing and regulating the government of the said territory, the whole of the judicial and the major part of the legislative powers within and over the same, are vested in three Judges; whose judicial powers & duties being by the said Ordinance wholly undefined, are left to be regulated by themselves, in their legislative capacity. "That in thus regulating the powers and duties of the said Judges, the Legisla- ture, composed of the Governor and Judges of said Territory have thought proper to establish in and over the said territory a Supreme Court, with but one annual and stationary term of four weeks, and invested it with both a common law and chancery, original, appellate and paramount jurisdiction, of the most extensive and comprehensive nature."94 As pointed out in Hunt's letter, the prayer of the petitions was that a "nisi prius or circuit court" be held at least once each year in each county by one of the judges of the Supreme Court, and that a fourth judge be appointed in 91 See discussion of the "Three Sides" of the Supreme Court, infra, p. xxxvii. 9 Transactions 1805-18114, I, xliii-li. 98 Sibley Papers, Vol. 45, p. 205, Burton Historical Collection, Public Library, Detroit. "Ibid., Vol. 45, p. so;; Vol. 48, p. x77. IN TROD UCTION xxix order that the judges might more conveniently and certainly discharge the duties which the petitioners prayed might be "imposed upon them." It appears that Woodward did not openly oppose a nisi prius system, but argued that it should not be introduced at that time and" 'that the petition should be directed to the Local Legislature instead of Congress.' " Griffin, however, was "violently" opposed to the whole plan.96 It was said that he was "thrown into a fit of the fidgets" and "lost his appetite" at the bare idea of holding a court alone.97 His friends, it was said, were fearful that he would be "taken off with . . . . an ague fit" should a circuit system be established.98 The plan of asking Congress to impose upon the judges of the territory the duty of holding circuit courts was soon abandoned for another. On March 21, 1822, Whitney wrote Sibley as follows: "Since the publication of the Plan of Government for Florida-placing the Legislative authority in different hands from that of the Judicial-There has been a good deal of stir, here, on the same subject-Several meetings have been held- Resolutions passed and a memorial drawn & presented-which, after sundry amendments and modifications was adopted and will be published in the Gazette tomorrow .... "The material points of the memorial are that Congress may so far modify the Ordinance as to . . . . vest the Legislative power in 9 Representatives, to be elected by the people, (Each County at least one). And 5-to be also elected by the peop[l]e, for a council.-these 14 to have power of original Legislation . . .."99 At a meeting held in Detroit November I, 1822, another memorial asking for the establishment of a separate legislature was adopted.00 This memorial contained a further prayer as follows: "That all laws and parts of laws relating to the appointment and duties of the Judges of this territory be repealed; and that a law providing for the appointment of judges may be passed; whose powers and duties may be defined and regulated by the legislature hereby contemplated; and that the term of service of the judges to be appointed, may be limited to four years." By the act approved March 3, 1823, this prayer was granted by Congress. But why did the memorialists ask Congress to provide expressly that the "powers and duties" of the judges might be "defined and regulated" by the proposed local legislature? Why did not they assume that such powers and duties would be regulated by the territorial laws in the future as they had "Letter from Whitney to Sibley dated January 31, 1822, Sibley Papers, Vol. 46, p. 12. Hunt to Sibley, note 93, supra. ' Letter from Whitney to Sibley dated January 26, 1822, Sibley Papers, Vol. 45, p. 218. 8 Ibid. In the letter cited in note 99, infra, Whitney reported to Sibley that "it was said that his [Griffin's] appetite and digestion totally failed him immediately after the memorial to Congress on the subject of Nisi prius & his Old Dread & horror of the possibility of being obliged to sit alone on the bench-Without Woodward at his Elbow to think for him." 99 Sibley Papers, Vol. 46, p. 187, Burton Historical Collection, Public Library, Detroit. See Detroit Gazette, March T5 and 22, 1822. 1o Detroit Gazette, November 8, I822. 3= INTRODUCTION been in the past? In the past the "powers & duties" of the judges had been "regulated by themselves, in their legislative capacity," and their power to do so had never been seriously questioned. In the future the situation would be entirely different. The judges would no longer have control of the powers of legislation and might refuse to be regulated by the territorial laws. Par- ticularly, the people were still interested in the establishment of a circuit or nisi prius system. Two of the judges were reputed to be "violently opposed" to this plan, and it is reasonable to suppose that the persons who prepared the memorial were anxious to have Congress expressly provide that the powers and duties of the judges might be defined and regulated by the pro- posed legislature so that that body, when organized, might establish the court system so long desired. By an act approved August 5, 1824, the new Legislative Council provided that the judges of the Supreme Court should hold a court annually in each of certain counties named in the act.x10x In an opinion read in open court September 20, 1824, Solomon Sibley, now a judge of the Supreme Court, interpreted the act as attempting to deprive the court "of an undivided general jurisdiction in and over the whole Territory .... by confining it to business, local to the County where the Court sits."102 This part of the act and another part, which provided that the clerks of the county courts should ex-ofcio be clerks of the Supreme Court, he pronounced null and void. In the course of his opinion, he said: "It is fair to presume, that the act in question, the provisions of which, embarrass the Court, was made under the authority, supposed to be conferred upon the Council, by the 3d Section of the act of Congress of the 3d of March 1823- "That section provides that the powers and duties of the Judges of the Territory shall be regulated by such laws as are or may be in force therein-I do not under- stand the enactment embraced in the 3d Section, to confer any new or additional authority, over the Judges, that the Council did not possess and might not fairly exercise, under the powers conferred by the first section1-'0 I ever have and still consider the enactment chiefly declaratory of the powers that always appertained, by necessary implication to the Legislative authority-The powers had been exer- cised and submitted to, by the Court-All the jurisdiction, and all the powers, that the Court can correctly exercise, are conferred on it by the laws of the United States-The times when and the places where, and the manner in which these, powers, for local purposes, should be exercised, are left to be provided for by the Local Government-The details are proper and suitable matter to be embodied in a law, defining and regulating the practice of the Court-Whatever might have been the motives of Congress for inserting that enactment, if they are not apparent on the face of the law, the Court cannot avail itself of them, in putting a construc- tion upon the Law." 1o1 Laws of the Territory of Michigan, II, 217. 102 Opinions in Unreported Cases, infra. z0 This reference should have been to Sec. 2 which conferred upon the Legislative Council "the same powers" as had been granted to the General Assembly of the Northwest Territory by the Ordinance of I787. INTRODUCTION xxxi In April 1825 the Legislative Council established a circuit court system and provided that each circuit court should be held by one of the judges of the Supreme Court.104 The validity of this act was doubted'05 because Con- gress had provided in February 1825 that "not less than two judges of the supreme or superior court of said territory" should thereafter "hold a court to transact the business of said court."'106 In response to a resolution adopted by the Legislative Council in December I826,107 Congress, in January 1827, enacted: "That the said governor and legislative council be, and they are hereby, author- ized to provide by law for holding, annually, one or more courts, by one or more of the judges of the supreme court of said territory, in each of the counties in that part of the territory eastward of the Lake Michigan; and also for the appointment of a clerk in each county, to act as clerk to the said court therein; and further to prescribe the jurisdiction of said courts, and the powers and duties of the judge or judges holding the same."'8 With this enactment the struggle for authority to establish a circuit court system came finally to a close. The legislature now had express authority to establish circuit courts and "to prescribe the jurisdiction of said courts, and the powers and duties of the judge or judges holding the same." This author- ity was given, it seems, only in reference to the jurisdiction, powers, and duties of the judges sitting as circuit courts. The act approved March 3, 1823 was not so limited, although it seems reasonably clear that the purpose back of the act of 1823 was the same as that expressed in the act of 1827. According to Judge Sibley's opinion delivered in 1824, the act of 1823 did not confer upon the territorial legislature "any new or additional authority, over the Judges" but was "chiefly declaratory of the powers that always appertained." If we accept this view, we are still faced with the task of determining what powers "always appertained." It was Sibley's opinion that "all the jurisdiction" and "all the powers" that the Supreme Court could correctly exercise had been conferred upon it by acts of Congress. The act of 1823 conferred a chancery jurisdiction and provided that nothing in the act should be so construed as to deprive the judges of the jurisdiction conferred upon them by the laws of the United States. The governor and judges had assumed power to confer upon the common-law court created by Congress probate, divorce, and chancery jurisdiction. This power, although assumed, was not one that "always" or 104 Laws of the Territory of Michigan, II, 265. lb Ibid., p. 294. 10 U. S. Statutes at Large, IV, 8o-81. 107 Laws of the Territory of Michigan, II, 295. By this resolution Michigan's Delegate to Congress was requested to use his exertions to procure the passage of a law by Congress authorizing the Legislative Council to pass laws requiring the judges of the territory to hold circuit courts, and authorizing the council "to prescribe and regulate their powers and duties in said courts." I8 U. S. Statutes at Large, IV, 200-201. xxxii INTROIT UCTION ever "appertained." It is likewise clear that the territorial legislature never had power to deprive the Supreme Court of any "jurisdiction" or "powers" which had been conferred upon it by the laws of the United States. Jurisdiction or judicial power must be distinguished from the time, place, and manner of its exercise. According to Judge Sibley's opinion, the former was conferred by Congress alone, while the latter were "left to be provided for by the Local Government." As Congress did not undertake to regulate by direct legislation the time, place, and manner in which the Supreme Court should exercise its judicial power, it was correct to assume that Con- gress intended that these matters should be regulated by the "Local Govern- ment." It was correct, also, to hold that "the details" were "proper and suitable matter to be embodied in a law." Territorial legislatures had dealt with such matters by statute since 1788, and Congress had never dis- approved. Did the Supreme Court have power conferred by Congress to regulate the same matters by rules of court? On this point Judge Sibley's opinion is not entirely clear. He stated that the time, place, and manner of exercising judicial power had been left to the "Local Government," and that it was proper to deal with such matters by statute. He did not say that they had been left to the legislature alone, or that Congress had not conferred upon the court power to regulate its own practice. There is nothing in the act of 1823 to negative the view that the court then had, and had had from the beginning, power to regulate the time, place, and manner of exercising its Congress-given judicial power. Although the Supreme Court from time to time throughout the period of its existence exercised a rule-making power, its rules were deemed subordi- nate to the acts of the legislature of the territory. In 18o6 a rule objected to on the ground that it was in conflict with an act of the legislature was promptly rescinded.09 Many rules were rescinded in 1821 because they had been "superceded by statute." In 1828 the court again recognized the supremacy of the legislature in these matters. In a commission issued by President Adams to the judges of the territory in January 1828, William Woodbridge, a new appointee, was named first; Solomon Sibley, second; Henry Chipman, third. The judges, or a majority of them, agreed that Sibley, who had been a member of the court since 1824, should be the presiding judge, and that Chipman should rank second."n° The Legislative Council then proceeded to enact a law which provided that the judge first named in the commission should be the presiding judge, and that the precedence of the other two judges should be according to the precedence 109 Transactions 1805-z1811, I, xli-xlii. 110 The commission (Journal t, MS p. 170) was read at a session of the Supreme Court held by "Solo- mon Sibley-Presiding Judge-Henry Chipman & William Woodbridge--Judges" (Ibid., MS p. 172). According to the 7ournal, Sibley was presiding judge from May 5, 9828 to June 14, 1828. xxxiii INTRODUCTION of their names in the commission, "and not otherwise."' Judge Chipman made a "decided protest" against the act,"2 but the other judges acqui- esced.11 Although the matters dealt with by the statute had been regulated by court rule since 1814,114 the regulation of the legislature was accepted as controlling. II THE "THREE SIDES" OF THE SUPREME COURT (I) "Admiralty Side" By an act approved February 27, 1813, Congress provided for the ap- pointment of an attorney and a marshal for the United States in each of the territories of the United States.5 The first appointees to these offices in Michigan exhibited their commissions and took their oaths of office Septem- ber 18, 1815.116 On October 5, i815 the Supreme Court appointed Austin E. Wing "clerk of this court Sitting as a circuit & district court for the United States.""'7 His bond recited that he had been appointed clerk of "the United States District Court, in and for the United States Territory of Michigan.""8 The next day the court ordered that five certain United States cases be transferred "to the record of the clerk of the Supreme Court of the territory of Michigan Sitting as a circuit and district court for the United States.""9 October 14, 1815 the following rules were made: "ORDERED that it be a rule of this Court that henceforward Separate records and minutes be Kept of the transactions of this Court Sitting as a circuit and dis- trict Court, of the United States. "ORDERED that this Court attended by the Marshall, and attorney for the United States, and the Clerk of that Side of the Court, will Sit on mondays and Saturdays exclusively for the transaction of business as a circuit and district Court 11 Laws of the Territory of Michigan, II, 685. 12 Journal4, MS p. 211. 113 Judge Chipman recited in his protest that a majority of the judges had acquiesced "in the right assumed by the said Council." When the court was next held (July 7, 1828) William Woodbridge was presiding judge. (Journal 4, MS p. 206) 114 In 1814 the court ordered that the judge present holding the commission of earliest date should preside. (Transactions z805-1814, I, 602) This rule (No. 3 in the printed Digest of I821) was supplanted in 1824 by a rule which provided that the judges of the court "do preside therein, in the order named in the joint commission of the President." (7ournal3, *P. 470) 11m U. S. Statutes at Large, II, 806. 1 Journal 2, infra, Vol. II, *p. 439" 1n Ibid., *p. 475. us Miscl.file 195. The bond of John J. Deming, which was dated September 19, I819, recited that he had been appointed "Clerk of the Circuit and District Court of the United States in and for the District of the Territory of Michigan." (Miscl. file i68) nS 7ournal 2, infra, Vol. II, *p. 476. XXXIV INTRODUCTION of the United States, unless for particular reasons the Court should order otherwise; and that the certificate of the per diem Services of those officers be regulated accordingly."'120 Commencing October 5, I1815, the papers and records of United States cases were kept separate from those of territorial cases. A separate journal entitled Records of the Supreme Court of the Territory of Michigan sitting as a Circuit and District Court of the United States of America was kept throughout the remainder of the territorial period. The congressional act of March 3, 1805, which conferred upon the superior courts of the several territories the same jurisdiction in cases concerning the United States as had been conferred upon the federal court of Kentucky District,2' in no way indicated that the territorial courts should, for any purpose, be considered courts of the United States. The same was true of the act of 1813. The act of 1805 provided that writs of error and appeals should lie from decisions in United States cases to the Supreme Court of the United States "for the same causes, and under the same regulations," as from the District Court of Kentucky District, but did not provide that such cases should be tried under the same regulations as cases were tried in the federal courts. It appears, however, that Woodward, Chief Judge of the Michigan Supreme Court, assumed from the beginning of the court's history that trials of United States cases were to be regulated by the procedural laws of the United States applicable to the courts of the United States. A deposition taken before him on August 3, 1805 recited that it was taken "pursuant to an act of the Congress of the United States entitled an act to establish the judicial courts of the United States, and of another act entitled an act to extend jurisdiction in certain cases to the Territorial courts."'22 A deposition taken before him on August 7, I805 recited that it was taken "pursuant to the acts of the Congress of the United States of America."123 In an Opinion delivered in I809, he stated that a return to a writ of mandamus was con- clusive, "the Statutes of the United States not having allowed a traverse to the return on a Writ of Mandamus, and none existing at the Common law."124 From 1805 to 1815 United States cases and territorial cases were not separated on the dockets of the Supreme Court or in its journals and were not tried at separate sittings of the court. Writs in both classes of cases were in form the same. Subsequent to the separation of the records in 1815, writs 18o Journal 2, infra, Vol. II, *p. 491. m U. S. Statutes at Large, II, 338. '1 Transactions I8os-i8q¢, II, o. 128 Ibid., II, 40. A Ibid., I, 505. This case and the cases cited in notes 122 and 123 were United States cases, i.e. cases which concerned the United States. INTRODUCTION XXXV in United States cases were tested in the name of the presiding judge of "the Supreme Court sitting as a Circuit and District Court of the United States of America,""' and pleadings in such cases were entitled in a court similarly designated. In the practice of impaneling grand jurors we find another indication that the judges of Michigan may have supposed that they were holding separate courts. Two Indians, Ke-wa-bish-kim and Ke-tau-kah, were tried for murder at the September Term, 1821. The one was indicted by a grand jury impan- eled by the Supreme Court of the territory, the other by a grand jury im- paneled by the Supreme Court sitting as a Circuit and District Court of the United States. Although the two grand juries were made up of the same persons, care was taken to have them sworn on the two sides of the Supreme Court.26 While it is clear that the judges of the Supreme Court of Michigan assumed that they sat as a court of the United States in United States cases, it is not clear that they were of the opinion that they were holding separate courts. References were made to the "Admiralty Side" of the Supreme Court.127 The words "Separation of the admiralty side of the Court" appear opposite the admiralty rules in the Digest of 1821.128 In 1823 Congress enacted: "That from and after the first day of June next, there shall be but one clerk of the supreme court of the territory of Michigan, who shall perform all the duties of clerk of said court, whether sitting as a circuit and district court, or as judges of the territorial court."'29 The act provided further that the officers of the treasury should make a reasonable allowance for the services of the clerk of "said district and circuit court." The effect of this act was to vacate the office of the clerk on the "admiralty side." Although Congress disapproved the plan of having a separate clerk for the Supreme Court when sitting as a circuit and district court, it did not disapprove the whole scheme of separate sittings. It should be noted, also, that Congress did not refer to the Supreme Court as a court of the United States. That part of the court's self-given name which designated it a court "of the United States" was omitted from the name used in the act. In 1828 the Supreme Court of the United States held that territorial courts were "legislative courts" and were incapable of receiving "the m Case A-49, Calendar of Cases, infra. m See Notes of Trials, etc., infra, pp. 483-4. m See Journal3, infra, Vol. II, *p. 211. m See Digest of Court Rules, infra, Vol. II. "' U. S. Statutes at Large, III, 770. xxxvi -INTRODUCTION judicial power conferred by the Constitution on the general government.",30 In I85o the same Court held that, upon the admission of Florida as a state, the courts of the territory ceased to exist and did not continue with limited jurisdiction as courts of the United States.31 In this case, Benner et al. v. Porter, Mr. Justice Nelson said: "The only pretext for a different conclusion is, that matters of exclusive Federal jurisdiction within the Territory, which, under our system, did not and could not pass under the State authority, still remained; and that with it, to that extent, and for the purposes of Federal jurisdiction, the Territorial organization continued. But, in the view we have already presented, and which need not be repeated, no such distinction existed in the Territorial government. Matters of this description had been blended together with those belonging to State jurisdiction, and were incorporated into, and became part and parcel of, the same system. The Federal causes of action were subject to the same tribunals as others, and to the same remedies . . " What was true of the territory of Florida was also true of Michigan. The Supreme Court had the same jurisdiction and powers in cases which con- cerned the United States as had been conferred upon the federal court of Kentucky District, but it had no power to sit as a court of the United States. This being true, it seems to follow that the court also erred in applying in United States cases acts of Congress which had been passed to regulate the practice of the courts of the United States.32 Whether they had the power to do so or not, the "supreme" judges of Michigan professed to act as a court of the United States. A study of their separate records in United States cases belongs, therefore, to a study of the records of the federal courts. (2) "Equity Side" On October I16, 1819 the Supreme Court of Michigan Territory ordered that all cases "depending on the Equity side of the court" should be placed 1no0 American Insurance Co. v. Canter (Jan. Term, 1828) I Pet. 511, 546. In Clinton v. Englebrecht (Dec. Term, I871) 13 Wall. 434, 447, Chief Justice Chase said: "The judges of the Supreme Court of the Terri- tory are appointed by the President under the act of Congress, but this does not make the courts they are authorized to hold, courts of the United States. This was decided long since in The American Insurance Company v. Canter, ... and in the later case of Benner v. Porter .. " 181 Benner et al. v. Porter (Jan. Term, I85o) 9 How. 235, 243. 132 Compare the opinion of Mr. Justice Bradley in Hornbuckle v. Toombs (Oct. Term, 1873) I8 Wall. 648, 654, 656: "Laws regulating the proceedings of the United States courts are of specific application, and are, in truth and in fact, locally inapplicable to the courts of a Territory. * ** It is true that the district courts of the Territory are, by the organic act, invested with the same jurisdiction, in all cases arising under the Constitution and laws of the United States, as is vested in the Circuit and District Courts of the United States; and a portion of each term is directed to be appropriated to the trial of causes arising under the said Constitution and laws. Whether, when acting in this capacity, the said courts are to be governed by any of the regulations affecting the Circuit and District Courts of the United States, is not now the ques- tion ..... To avoid question and controversy as to the modes of proceeding in such cases, where not already settled by law, perhaps additional legislation would be desirable." INTRODUCTION xxxvii upon a separate docket,133 and that causes of divorce and alimony should be placed on the same docket.34 On November 5, 1819 the court made and recorded the following rules: "85 ORDERED, That it be a rule of the Court; That the Clerk of the Supreme Court of the Territory of Michigan, on the Common law side, be Register of the said Supreme Court, sitting in Chancery." "86 ORDERED, That it be a rule of the Court; That the Register make and keep the transactions and proceedings of the Supreme Court of the Territory of Michigan, sitting in Chancery, in a Separate record and book.""'5 In various other rules adopted in 1819, references were made to the "Equity side" of the Supreme Court and to the "Supreme Court, sitting in Chan- cery." 36 And the "subject matter" of rules 85 and 86, as set forth in the margin of the Digest of Court Rules published in 1821, was "Separation of the chancery side of the Court." 37 In 1823 Congress provided that the judges of the territory should possess "a chancery, as well as common law, jurisdiction."'38 This provision was made, it seems safe to assume, because doubts had been raised as to the existence of power to hear chancery cases. An anonymous writer, "Rous- seau," in the course of a communication printed in the Detroit Gazette December 5, 1817, had said: "The ordinance.... declares 'There shall be appointed a Corrt, to consist of three Judges, who shall have a common law jurisdiction.' Is it not plain that no other but a common law jurisdiction is granted? and that this jurisdiction can only be enlarged by the same authority which granted it? * * * I therefore protest against the right of the legislative board .... to vest this court with any power at all. * * * But our Judges, forsooth, not content with legitimate powers-powers ade- quate to every useful purpose, usurp such as are not granted, erect themselves by a law of their own passing, into a Supreme Court,-by another, giving themselves 'jurisdiction in all cases of divorce and alimony,' and by another, 'of all matters of equity.' "139 And William Woodbridge, secretary of the territory, by a letter dated November II, I820, had advised Solomon Sibley, Delegate to Congress, that "Judge Griffin now expresses doubts whether, without an act of Congress, the Supreme Court can entertain jurisdiction of Chancery Cases."'4° Probably the "Separation of the chancery side of the court" was merely a recognition of conventional lines of division, but it is also possible that it 133 7ournal 2, infra, Vol. II, *p. 673. 13 Ibid. 13 Ibid., *pp. 733-4. Io Ibid., *pp. 702, 704-5, 707-8, 732-3. 137 See Rule 55, Digest of Court Rules, infra, Vol. II. 18 U. S. Statutes at Large, III, 769. no Similar statements were made by the same writer in an article printed in the Gazette on December 26, I8'7. 14o Sibley Papers, Vol. 42, p. 212, Burton Historical Collection, Public Library, Detroit. xxxviii INTRODUCTION was influenced by the fact that doubts had been raised as to the existence of a chancery jurisdiction. The court had made decrees affecting the titles to valuable tracts of land in the exercise of chancery powers supposed to have been conferred by the territorial legislature, and to have those powers challenged was a very serious matter. A separate chancery court had been established in the Indiana Territory by the local legislature,14 and it is not unreasonable to suggest that the judges of Michigan separated their chancery and divorce business from their other business in an attempt to meet the objection that the local legislature had not had power to confer upon the common-law court created by Congress a divorce and chancery jurisdiction. The TRANSACTIONS of the Supreme Court of the Territory of Michigan in CHANCERY were recorded in a separate journal from November 5, 1819 through 1822.142 This practice was not continued after Judges Woodward and Griffin were supplanted by Judges Sibley and Hunt in 1824. We find, however, that some of the decrees of the new judges were recorded in the book which contains the Chancery journal, and that, in the record of these decrees, the Supreme Court was referred to as sitting "in Chancery" and as "a Court of Chancery."'143 (3) "Common Law Side" "Rousseau," in his letter printed in the Gazette in 1817, complained that the judges of Michigan had, "by a law of their own passing," erected them- selves "into a supreme court." His statement was correct but his objection, it seems, was not well-founded. From the Ordinance and later acts of Con- gress, it appears that Congress intended that the court created by it should be the "superior" or "supreme" court of the territory. By the act of January 30, 1823 which established an additional court for Michigan, Congress pro- vided that the "supreme court" should have power to issue writs of error to the new court and to hear and determine the same "when sitting as a supreme court of the territory."'44 After the separation of the "admiralty side" of the court in 1815 and of the "chancery side" in 1819, the remaining business of the court, both trial and appellate, was transacted by the court on its "common law side,"4 that is, by the Supreme Court sitting as the Supreme Court of Michigan Ter- ritory. 1 Laws of Indiana Territory, Philbrick, ed., pp. xo8-9. 14 See Chancery journal, infra, Vol. II. " Ibid., *pp. 65, 85. 1" U. S. Statutes at Large, III, 722. s' See Rule 85, note 335, supra. INTRODUCTION xxxix III AN INVENTORY OF THE RECORDS In the course of its rule-making program of I819-1821 the Supreme Court of Michigan Territory specified in some detail what records should be kept by the clerks and register of the court. T. Journals "ORDERED, That it be a rule of the Court; That the Clerk make and keep a Rec- ord of the diurnal transactions of the Court, which shall be read, examined, correct- ed if necessary, and signed, where practicable, in the morning of every successive day excepting on the last day of the Term, and then on that day; and that, for the more exact and careful recollection and comparison of the entries relative to the diurnal transactions of the court, the Clerk shall also make and keep a Record, into which shall be entered in a short manner the substantial part of the transac- tions, and which shall be read, examined, corrected if necessary, and signed, when practicable, every day previously to the adjournment of the Court."'4 The requirement that a record be made of the "diurnal transactions" of the court was not new. Such a record had been kept from the beginning of the court's existence. The "diurnal transactions" of the Supreme Court on its "common law side," that is, the transactions of the Supreme Court sitting as the Supreme Court of Michigan Territory, were recorded in five books labeled "Jour- nal." These volumes are numbered one to five and contain all of the trans- actions of the court on its "common law side" (1805-1836). Journal I has been printed."47 7ournals 2 and 3 are printed in the second volume of the present publication. Prior to the separation of the "admiralty side" of the court in I815, the transactions of the Supreme Court in cases which concerned the United States were recorded in 7ournals r and 2. From I815 to the end of the territorial period (1836), the transactions of the court in cases which con- cerned the United States were recorded in a separate journal entitled Records of the Supreme Court of the Territory of Michigan sitting as a Circuit 1, Journal2, infra, Vol. II, *pp. 734-5. This rule, which was adopted November 5, I819, was rescinded April 4, 1821, "the same having been Superceded by Statute." (Journal3, infra, Vol. II, *p. 117) "AN ACT concerning the Supreme and County Courts" adopted December 21, I820 provided: "That for preventing errors in entering the judgments, orders and decrees of the supreme and county courts, the judges and justices of the said courts respectively, before every adjournment, shall cause the minutes of their proceedings during the preceding day, to be publicly read by the clerk, and corrected when necessary, and then the same shall be signed by the clerk, by order of the said court; which minutes, so signed, shall be taken in a book, and carefully preserved among the records." (Code of 1820o, p. 316; Laws of the Territory of Michigan, I, 718) Rules on this subject adopted in 1807 were not rescinded but were included in the Digest of 1821. (Digest of Court Rules, infra, Vol. II, Rules 4 and 5) 14 Transactions I8o5-I814, I, 345-605. xl INTRODUCTION and District Court of the United States of America. This journal is in existence but is not included in the present study. Prior to the separation of the "equity side" of the court in 1819, the transactions of the Supreme Court "sitting as a court of chancery" were recorded in 7ournals z and 2. After such separation a journal entitled 7OUR- NAL of the Supreme Court of the Territory of Michigan CHANCERY was kept for about three years (1819-1822). For another three years (1823-1825) the same book was used as a place for recording chancery decrees. The volume contains the full record of one case which was not completed until I828. Subsequent to I822 the transactions of the Supreme Court "sitting as a court of chancery" were recorded in the principal journals of the court. All of the records contained in the so-called Chancery journal are printed in volume two of the present study. One of the "short" journals (1821-1825) has been preserved. Two other "short" journals were in existence in 1826.148 2. Calendars "ORDERED, That it be a rule of the Court; That there shall be, in addition to the special dockets, a convenient book provided for a General Docket, in which the Clerk shall enter all actions originally commenced, according to the dates of their institution, respectively, stating first the names of the parties, with their additions, and the capacities in which they sue or are sued; secondly, the cause of action and the sum certain, or amount of damages demanded; thirdly, the counsel and attornies for the parties; and fourthly, the dates at which 'process of any kind was issued. The Term to which the action is returnable, shall be exhibited at the top of the page. Appeals, cases removed by Habeas Corpus cum causa, by Certiorari, or other- wise brought into this Court, shall likewise be entered in such Docket in like manner. The Clerk shall in each case make short and accurate entries of all pro- ceedings as they occur, exhibiting their dates, with a reference to the page of the Journal where the entry is contained. In the same Docket, the Costs shall be entered at length, on the same page with the suit, exhibiting also the dates."'49 Prior to the adoption of the above rule a calendar or docket was kept which was labeled "Office Dockett." With the exception of cases omitted through carelessness, this docket contains a brief record of all cases com- menced on the "common law" and "equity" sides of the Supreme Court from 1814 to 1820. It contains, also, a record of United States cases com- menced in 1814 and in 1815 prior to October 6. 18 See list recorded in journal 4, MS p. 89. 19 journal 2, infra, Vol. II, *p. 711. This rule, which was adopted October 28, 1819, was rescinded April 4, 1821, and a similar rule adopted in its place. (7ournal3, infra, Vol. II,*p. 115) The rule adopted in xi821 was carried into the Digest of 1821. (Digest of Court Rules, infra, Vol. II, Rule 14) Various term dockets were made which contained cases at issue, etc., at the several terms of court. One of these dockets (18o09) has been printed. (Transactions 805-1814, II, 467-9) Two other similar dockets (1816 and I817) have been preserved. (Miscl.iles 245 and 246) These dockets did not contain permanent records and are not, therefore, listed with the records of the court. See Digest of Court Rules, infra, Vol. II, Rules 15-17. INTRODUCTION xi A Calendar of United States Cases was in existence in 1826150 but is now missing. It is reasonable to assume that this calendar was commenced in 18xi at the time of the separation of the "admiralty side" of the court. A Chancery Docket which covered the years 1820-1825 was in existence in 1826.151 It, too, is missing. The general dockets, known as Calendars I, 2, 3 and 4, contain brief records of cases filed on the "common law side" of the Supreme Court from 182o to the end of the court's existence (1836). Calendar I (18O20) is missing; the other three calendars (1821, 1822-23, 1824-36) are, fortunately, extant. 3. 7udgment Records "ORDERED, That it be a rule of the Court; That the Clerk make and keep a Judg- ment Record, by entering into a large and well bound book, in a strong, fair, round, and legible manuscript, the whole of the proceedings in every particular suit, contin- uously; and immediately after the close of every term, the clerk shall make up the record of every case disposed of, and shall present the same to the judges on the first day of the next succeeding term for inspection, correction, and signature."'52 Three "large and well bound" books containing judgment records in actions at law have been preserved. A book referred to as Criminal Records A has not been found. 4. Files of Papers "ORDERED that it be a Rule of the Court, That all the papers, belonging to the same suit, be kept under one Cover, bearing the number, and title of the Suit, and that every paper be separate, and that they be numbered, in succession, according to the date and order of their being filed; .... " Commencing in 1821-probably in 1820-it was the practice of the clerk on the "common law side" of the court to assign a page of the calendar to each new case as filed. The pages of the calendar were numbered and the number of the page on which a case was entered was considered the number of the case and placed upon the file. It is probable that this practice was followed by the register on the "equity side" because we find that the files 10 See list recorded in journal 4, MS p. 89. 11 Ibid. 1 Journal 2, infra, Vol. II, *p. 734. This rule, which was adopted November 5, 1819, was rescinded April 4, 1821, "the same having been superceded by Statute." (Journal3, infra, Vol. II, *p. 117) "AN ACT concerning the Supreme and County courts" adopted December 21, 1820 provided: "That when- ever any civil cause, of whatever nature it be, shall be finally determined, the clerk of the court, shall, during the next vacation, enter the warrants of attorney, original writ or writs, declaration, pleadings, proceedings and judgment in such cause, so as to make a complete record thereof, in a separate book, to be kept for that purpose, with a complete alphabetical index to the same; which record, after being examined and compared with the warrants of attorney, writ or writs, declaration, pleadings, proceedings and judgment, and being found correct, shall, at the next term, be signed by the clerk, by order of the court." (Code of 1820, p. 316; Laws of the Territory of Michigan, I, 718) 1 7ournal3, infra, Vol. II,*p. 107. This rule, which was adopted April 3, I821, was amended April 24, 182! and, as amended, was included in the Digest of 1821. (Digest of Court Rules, infra, Vol.II, Rule 13) xlii INTRODUCTION of chancery cases were numbered year after year in a continuing series. By I836 the numbers of the chancery series had reached two hundred and thirty-three (233). The journal of the Supreme Court sitting as a Circuit and District Court of the United States and most of the files of cases which concerned the United States have been separated from the other records of the Supreme Court and have been placed in the record room of the federal courts in Detroit.54 5. Digest of Court Rules "ORDERED, That it be a rule of the Court; That some proper person, or persons, shall, from time to time, be appointed to digest the Rules of the Court, in such a manner as to bring those relating to particular subjects close together; and that the same, thus digested, be, from time to time, printed."'6 The rules of the Supreme Court were digested and published in 1821. The original manuscript digest, certified by the presiding judge, has been preserved and is reprinted herein. 6. Rolls of Attorneys "ORDERED, That it be a rule of the Court; That the Clerk procure a Sheet of parchment, to be used as a Roll for inscribing the names of the counsellors and attornies of this court. On this Roll the Clerk shall inscribe the name of every Counsellor and attorney of this Court, and the Roll shall be deposited and kept in the office of the Clerk of the Court.as6 "ORDERED, That it be a Rule of the Court; That the Register of the Supreme Court of the Territory of Michigan, sitting in Chancery, make and keep a Roll, on parchment, of the Counsellors and Solicitors on the Equity side of the Court, specify- ing the dates, respectively, of their admission and qualification, and at what places they resided recently before their admission; and when, if ever and for what cause, their names may have been, by order of the Court, stricken from the Roll, on account of any misconduct as a counsellor and solicitor, as a citizen, or as a gentleman.""'7 Until a short time prior to the adoption of these rules, the practice had been to enter the admission of attorneys in the journal of the court. This '" Papers in 136 United States cases (1815-1832) have been listed by the National Archives. A copy of the list made has been placed with the records of the Supreme Court in the Legal Research Building of the University of Michigan. Some or all of the papers in 26 United States cases (1815-1 823) have been found with the other files of the Supreme Court and are listed in Supplemental Calendar A, infra. During the years 1936-7 the National Archives conducted a nation-wide survey of federal archives. The survey in Michigan was conducted under the supervision of Arthur R. Kooker, regional director. The work of listing the records of the federal courts in Detroit was carried on by Mr. Edgar H. Eckert. In furnishing the list mentioned and in other ways Messrs. Kooker and Eckert have rendered courteous and valuable assistance. 15 See note 57, supra. 186 Journal 2, infra, Vol. II,*p. 745. This rule, which was adopted November I1, 1819, was included in the Digest of 1821. (Digest of Court Rules, infra, Vol. II, Rule 7) t57 Journal3, infra, Vol. II, *p. 22. This rule, which was adopted December 9, 1819, was rescinded April 6, 1821. (Ibid., *p. 135) At the same time the court ordered "that it be a Rule of the Court That every Counsellor and Attorney on the Common Law side, shall be, of course, a Solicitor on the Chancery side of this Court." (Ibid.) INTRODUCTION xliii practice was resumed in 1824. After the adoption of the above rules and prior to I824, the only admission to the bar found in the journals seems to have been irregularly entered.58 The parchment rolls have not been pre- served with the other records of the court. 7. Records Extant An examination of the following lists will show that all of the more important records of the Supreme Court, aside from files of certain cases, have been preserved. The extant records are: Journal I (1805-1814) Calendar 2 (1821) Journal 2 (1814-1819) Calendar 3 (1822-1823) Journal 3 (1819-1824) Calendar 4 (1824-1836) Journal 4 (1825-1832) Judgment Records A (1821-1822) Journal 5 (1833-1836) Judgment Records B (1822-1824) Journal - U. S. Cases (1815-1837) Judgment Records C (1824-1831) Chancery Journal (1819-1825) Digest of Court Rules (1821) Short Journal (1821-1825) Files of papers Office Docket (1814-1820) 8. Records Missing Short Journal (....) Chancery Docket (1820-1825) Short Journal - U. S. Cases (....) Criminal Records A (....) Calendar I (1820) Rolls of Attorneys (....) Calendar - U. S. Cases (....) Files of certain cases References to the records listed as missing have been found in the records which are extant. It is probable that at least one other record now missing was kept, viz. a docket or calendar for the period I8o5-1814.159 Considering the appalling loss and destruction of public records through- out the United States, the records of the Supreme Court of Michigan Territory are remarkably complete. Professors Edgar N. Durfee and Burke Shartel read parts of this intro- duction while it was being prepared. Valuable suggestions received from them are gratefully acknowledged. W. W. B. November I, 1937. m See journal 2, infra, Vol. II, *p. 526. U9 A court rule made in 1807 provided: ".... The Clerk Shall also keep a record dockett in which the number of the Cases with the names of parties and minutes of the Counsel who appear, of bail & witnesses, and of all orders, judgments, or other transactions relative to any Case, Shall be Stated in a Short mode .. ." (Transactions I8o5-18t4, I, 375)   Map of Michigan .erritory dated "1828." (Burton Historical .. Collection, Public Lilbrary, IDetroit) The area labeled "Nordwest Gebiet" was added lby an act of Congress approved April i8, i8i8. (U. S. Statutes at Large, III, 431) On October 26, I8i8, the new area was divided into three counties, Michilimackinac (north), Brown (southeast), and Crawford (southwest). (L IlK of t r oa3 o/AX* th l Jeri, ( as to...f.MiciganI.32-38 Map o f Michigan Territory dated "1828." (Burton Historical Collection, P~ublic 1,ibrary, lDetroit) The area labeled "Nordwest Gebiet" was added by an act of Congress approved April 1 8, ] 18.(U. S. Statutes at Large, III, 431) On October 2.6, 1818, the new area was divided into three counties, Michilimackinac (north), Brown (southeast), and Crawford (southwest). (L~aws of'the Territory, of Michigan, I, 325-328) AGGREGATE amount of each description of persons within the TERRITORY OF MICHIGAN, in the year one thousand eight hundred and twenty. 44a NAMES OF THE COUNTY, 0 " 4- PARISH, TOWNSHIP, 0 o TOWN OR CITY - , 4)y n o. County of Wayne, exclusive of Detroit ..... 1,151 935 ........ ...66 ........ 2,152 City of Detroit.......................... 867 488 6....... 67 ........ 1,422 County of Macomb.................... 465 431 ........ 2 ........ 898 County of Oakland........... .......... 199 122 . . . 9 ....... 330 County of Michilimackinac............... 66o 154 ...... 5 ........ 819 County of Brown..................... .. 785 166 ........ ........ 952 County of Crawford.................... 243 102 ........ 16 131 492 County of Monroe....................... 1,013 810o ........ 8 ........ 1,831 5,383 3,208 ........ 174 131 8,896 MARSHAL'S OFFICE, DETROIT, TERRITORY OF MICHIGAN Stated by THOMAS ROWLAND, Marshal of the Territory of Michigan (Condensed from Census for 182o, published by authority of an act of Congress, 1821.]  OUTLINES OF JUDICIAL SYSTEM J Outlines ofJudicial System 1815 7udges in and over the Territory1 United States Marshal' Sheriffs1 Coronersu1 Constables'2 K CouNTY CouRTS13 Wayne County SUPREME COURT2 Sitting Sitting asa as the Circuit Supreme and Dis- Court trict of the Court Terri- of the tory' United States3 United States Attorney6 Attorney General7 Commissioneris REGISTERS OF PROBATE15 Districts of Erie, Huron and Detroit District of Michilimackinac[?] fustices of the Peace"4 District of Detroit District of Erie District of Huron District of Michilimackinac Note: The references are to notes following the last chart of this series. United States Marshal' SheriffsW Coronersn1 Constables1 Outlines of Judicial System 1817 7Judges in and over the Territory' SUPREME COURT2 Sitting Sitting as a as the Circuit Supreme and Dis- Court trict of the Court Terri- of the tory4 United States$ United States Attorney' Attorney GeneraF [CouRTS OF GENERAL QUARTER SESSIONS OF THE PEACE'"] REGISTERS OF PROBATE1 Districts of Erie, Huron and Detroit District of Michilimackinac[?] District of Monroe _ _ _ r COUNTY COURTS13 Wayne County Monroe County justices of the Peace14 District of Detroit District of Erie District of Huron District ofMichilimackinac Monroe County Note: The references are to notes following the last chart of this series. 4 Outlines of Judicial System 1819 7udges in and over the Territory' United States Marshal' Sheriffs" Coroners" Constables" COUNTY Cou'rs" Wayne County Monroe County Macomb County Michilimackinac County Brown County Crawford County Oakland County SUPREME COURT2 Sitting Sitting Sitting as a as the j as a Circuit Supreme Court and Dis- Court of trict of the 'Chancery' Court Terri- of the tory' United States3 United States Attorneys Attorney General7 Prosecuting Attorneys8 Commissioners and Masters in Chancery17 a justices of the Peace1'4 District of Detroit Monroe County Wayne County Macomb County Michilimackinac County Brown County Crawford County Oakland County PROBATE COURTS15 Wayne County Monroe County Macomb County Michilimackinac County Brown County Crawford County Oakland County Note: The references are to notes following the last chart of this series. 5 Outlines of Judicial System 1821 Judges in and over the Territory) United States Marshal' Sheriffs and Under- sheriffs'0 Coronersn Constabless2 COUNTY COURTS13 Wayne County Monroe County Macomb County Michilimackinac County Brown County Crawford County Oakland County St. Clair County SUPREME COURT2 Sitting as a Circuit and Dis- trict Court of the United States$ Sitting as the Supreme Court of the Terri- tory4 Sitting as a Court of Chancery5 United States Attorneys Attorney General7 Prosecuting Attorneys8 Commissioners and Masters in Chancery17 Commissioners of Bail"8 _...,.. Justices of the Peaces Monroe County Wayne County Macomb County Michilimackinac County Brown County Crawford County Oakland County St. Clair County PROBATE COURTS15 Wayne County Monroe County Macomb County Michilimackinac County Brown County Crawford County Oakland County St. Clair County Note: The references are to notes following the last chart of this series. 6 Outlines of Judicial System 1823 7udges in and over the Territory) Additional Judge9 United States Marshal' Sheriffs and Under- sheriffs10 Coronersu Constables"1 SUPREME COURT' Sitting as a Circuit and Dis- trict Court of the United Statesa Sitting Sitting as the as a Supreme Court of Court Chancery5 of the Terri- tory4 United States Attorney6 Attorney General7 Prosecuting Attorneys8 Commissioners and Masters in Chancery7 Commissioners of Bail18 -- CIRCUIT COURT OF THE UNITED STATES19 Michilimackinac County Brown County Crawford County COUNTY CouRTS13 Justices of Michili- the Peace14 mackinac Brown Michili- Crawford mackinac Brown Crawford COUNTY COURTS13 Wayne Monroe Macomb Oakland St. Clair justices of the Peace'4 Monroe Wayne Macomb Oakland St. Clair PROBATE COURTS15 Wayne Monroe Macomb Michili- mackinac Brown Crawford Oakland St. Clair Note: The references are to notes following the last chart of this series. 7 Outlines of Judicial System NOTES The numbers of the notes correspond to the reference numbers on the preceding charts. On May 7, 1832, Stevens T. Mason, Secretary of the territory, trans- mitted to the Legislative Council "A List of all the officers, Civil and Mili- tary, commissioned by the Executive of the Territory since the organization of the Territorial Government." (7ournal of the Legislative Council of Michigan, First Session of Fifth Council, printed by Whitney in I1832, p. 1i5) The executive records then on file in the secretary's office did not extend back of 1814. (Ibid.) Earlier records had been destroyed by "the enemy in the late war." (Ibid.) This list, which was entered on the Journal of the Council (ibid.), covers the period 1814-1832. Another list of officers will be found among the Woodbridge Papers, Burton Historical Collection, Public Library, Detroit. This list covers the period 1814-1826, and was prepared as an index to the Executive 7ournal. A third list or index cov- ering the period 18o5-i818 has been printed in Michigan Pioneer Collec- tions, VIII, 659. [i] See Transactions, 1805-I814, I, 14. Augustus B. Woodward, John Griffin and James Witherell were judges in and over the territory of Mich- igan from 1814 to 1824. (Ibid., pp. 14, 25, 30) By an act approved on March 3, I823, Congress enacted that on February I, 1824, and every four years thereafter, the offices of the judges should become vacant. (U. S. Statutes at Large, III, 769) On January 21, 1824, James Witherell, Solomon Sibley and John Hunt were appointed to fill the vacancies. (Michigan Pioneer Collections, III, 122) [2] By an act adopted on July 24, 18o5, the governor and judges provided that the Supreme Court should consist of the three judges appointed and commissioned by the president of the United States. (Laws of the Territory of Michigan, I, 9) [3] On October 5, 1815, Austin E. Wing was appointed clerk of the Supreme Court "Sitting as a circuit and district court, for the United States." (Journal 2, printed in Vol. II of this study, *p. 475; also see 7our- nal of Supreme Court sitting as a Circuit and District Court, Federal Build- ing, Detroit, MS p. i) His bond recited that he had been appointed clerk of "the United States District Court, in and for the United States Territory of Michigan." (Miscl. file i95) On November 9, 1816, John L. Leib was 8 OUTLINES OF JUDICIAL SYSTEM 9 appointed clerk. (7ournal of Supreme Court sitting as a Circuit and District Court) On September 29, x819, John J. Deming executed a bond which recited that he had been appointed clerk of "the Circuit and District Court of the United States in and for the District of the Territory of Michigan." (Miscl. file 168) He was sworn as clerk on October 5, I819. ( ournal 2, printed in Vol. II of this study, *p. 656; miscl, file 168) The Detroit Gazette of October I, 1819, carried this item: "John J. Deming has been appointed clerk of the Supreme Court sitting as a District and Circuit Court of the United States, vice, John L. Leib, removed." Starting with September 15, 1823, the journal of the Supreme Court sitting as a Circuit and District Court was signed by Jonathan Kearsley. Kearsley was also clerk of the Supreme Court sitting as the Supreme Court of the territory, having been appointed to that office on October 8, 1822. (Note 4, infra) Kearsley served through 1825. (Ibid.) By an act approved on March 3, 1823, Congress enacted that from and after June I, 1823, there should be but one clerk of the Supreme Court of the territory of Michigan who should perform all the duties of clerk of said court, "whether sitting as a circuit and district court, or as judges of the territorial court." (U. S. Statutes at Large, III, 770) It was further provided that John J. Deming should have a reason- able allowance for his services as clerk of said "district and circuit court" up to June I, 1823. (Ibid.) [4] Peter Audrain was clerk of the Supreme Court from 1805 to 1819. (Transactions, 1805-i8114, I, 15, note 8) In 1815 he ceased to be clerk of the court sitting as a Circuit and District Court of the United States. (Note 3, supra) In 1819 the clerk of the Supreme Court "on the Common law side" was made register of the Supreme Court "sitting in chancery." (Note 5, infra) On September 20, 1819, George McDougall was appointed clerk pro tempore "owing to the absence and indisposition of Peter Audrain." (journal 2, printed in Vol. II of this study, *p. 640) On September 29, 1819, James Duane Doty was appointed clerk, and Peter Audrain, "late clerk," was authorized and directed to deliver the files and records to him. (Ibid., *p. 655-56) The Detroit Gazette of October I, 1819, carried this item: "James Duane Doty has been appointed clerk of the Supreme Court of the Territory of Michigan, vice, Peter Audrain, removed." Nine members of the bar had petitioned for Audrain's removal. (See petition dated Sept. 25, 1819g, Michigan Pioneer Collections, XII, 637.) Doty served as clerk until Melvin Dorr was appointed on June 22, 1820. (journal3, printed in Vol. II, *p. 46) Dorr resigned on October 7, I822. (Ibid., *p. 362) Jonathan Kearsley was appointed on October 8, 1822, (ibid.), and served through 1825. (See journal 4, MS pp. 77 and 84.) According to "Z. Z.," Judge Woodward attempted to give Kearsley a temporary appointment pending the arrival of Woodward's father. (Detroit Gazette, October 25, 1822) The Io SUPREME COURT OF MICHIGAN following entry made in the Short 7ournal, October 7, 1822, was obliterated: "John Woodward, late of the state of Pennsylvania was appointed by the Court, Clerk of this Court, and Jonathan Kearsley was appointed Clerk of this Court until the arrival & qualification of the said John Woodward." [5] On November 5, 1819, the judges of the Supreme Court adopted a rule which provided that the clerk of the Supreme Court on the "Common law side" should be "Register of the said Supreme Court, sitting in Chan- cery." (Journal 2, printed in Vol. II of this study, *p. 733) The names of the clerks "on the Common law side" are given in note 4, supra. A discus- sion of the "Three Sides" of the Supreme Court will be found in the Intro- duction to this volume. [6] An act of Congress approved February 27, 1813, provided for the appointment of a person "learned in the law," to act as attorney of the United States in the respective territories of the United States. (U. S. Statutes at Large, II, 806) [7] See Transactions, 1805-1814, I, 26, note 55. The office of attorney general was abolished on August 5, 1824. (Laws of the Territory of Michigan, II, 221), but was revived on April 21, 1825. (Ibid., p. 291) [8] By an act adopted on December 31, 1818, provision was made for the appointment of a prosecuting attorney in each county of the territory. (Laws of the Territory of Michigan, I, 503) [9] An act of Congress approved February 27, 1813, provided for the appointment of a marshal in each of the territories of the United States. (U. S. Statutes at Large, II, 806) [10o-12] An act adopted by the governor and judges on November 3, x181I5, abolished the various territorial offices of marshal and provided for the appointment of a sheriff and a coroner in each county. (Laws of the Territory of Michigan, I, 220) The act further provided for the appoint- ment of constables. By an act adopted on March 27, 1820, it was provided that the sheriff of each county should make some proper person under- sheriff of the county. (Ibid., p. 505) On May 8, 1820, provision was made for the appointment of constables in the various townships. (Ibid., p. 669) By an act adopted on November 28, 1820, it was provided that the governor should appoint a "competent number of constables" in the several counties. (Ibid., p. 683) It should be noted that constables were appointed for the counties before the adoption of the last-mentioned act. By an act of the Legislative Council approved April 21, 1825, the office of constable was made elective. (Ibid., II, 279) The commissions of constables then in ef- fect were terminated October 2, I825. (Ibid.) [13] An act adopted by the governor and judges on October 24, 18i5 provided for the establishment of "A County Court. . . to be held by one Chief and two Associate Justices." (Laws of the Territory of Michigan, I, OUTLINES OF JUDICIAL SYSTEM II 184) As each county was created an act was adopted fixing the times for holding a county court for the new county. During the period 1814-1824 the following counties were laid out and established: Wayne, Nov. I, 1815; Monroe, July 14, 1817; Macomb, Jan. 15, 1818; Michilimackinac, Brown and Crawford, Oct. 26, 1818; Oakland, Jan. 12, 1819; St. Clair, March 28, 1820; Lapeer, Sanilac, Saginaw, Shiawassee, Washtenaw and Lenawee, Sept. Io, 1822. (Ibid., pp. 325-36) The counties laid out in 1822 were not organized until after 1824. [14] The Ordinance of 1787 provided that the governor of the North- west Territory should appoint such magistrates and other civil officers in each county or township as he should find necessary for the preservation of peace and good order. (U. S. Statutes at Large, I, 5i1) By the act which created the territory of Michigan the governor of the new territory was given a similar power. (Ibid., II, 309; also see Transactions, 1805-18114, I, 18, note 20) The districts of Detroit, Erie, Huron and Michilimackinac were laid out and established by Governor Hull in 18o5. (See Transactions, 18o5-z8z4, I, 3.) The establishment of Wayne County in 1815 did not have the effect of immediately abolishing the District of Detroit. Justices of the district acted under their commissions as late as 1820 and new justices in and for the district were appointed as late as 1818. [15i] An act adopted by the governor and judges on January 19, 181I, provided for the appointment of a register in each of the districts of the territory, as they were or might be established by the governor, who should receive proof of, and record all wills, etc. (Laws of the Territory of Michigan, I, 162) On August 12, 18II, the registers districts of Detroit, Huron and Michilimackinac were consolidated into one district called the Northern District. (Michigan Pioneer and Historical Collections, XXXVI, 240) At that time there was another registers district-the District of Erie. (Trans- actions, 1805-1814, I, 35, note 105) By a proclamation dated October 5, 1814, Governor Cass constituted the territory, except the District of Michilimackinac, into one general district "for the execution of the act en- titled 'An act to adjust the estates and affairs of deceased persons, testate and intestate, and for other purposes.' " (Laws of the Territory of Michigan, II, 791) An act adopted on July 27, 1818, provided that a court of probate should be held in each county and that some "able and learned person in each county" should be appointed probate judge. (Ibid., I, 341) The latter act further provided for the appointment in each county of a register of wills, etc., who should have custody of all files, papers and books belonging to the probate office. On October 2, I818, William Woodbridge, acting governor, issued the following proclamation: "WHEREAS by the recent repeal of the law entitled 'an act to adjust the estates and affairs of de- ceased persons testate and intestate, and for other purposes,' it is no longer 12 SUPREME COURT OF MICHIGAN expedient to continue the present subdivisions of this territory into dis- tricts, for the purposes expressed in said act.-And whereas for the more convenient execution of the law entitled 'an act establishing courts of probate,' other subdivisions become proper. Now, therefore, I the said William Woodbridge, in virtue of the power in me vested, do by these presents, revoke and annul, all and singular, such act or acts of the executive authority of this territory, as, for the purposes of said law, herein first above mentioned, may have created or erected any such district or districts. Pro- vided, always, that nothing herein mentioned, shall be construed as in any wise, to avoid, annul, or injuriously to affect any right accrued or to accrue in virtue of such act or acts. And I do hereby constitute such [each?] county of this territory, a supreme district and county, for the purposes of the execution of said law, entitled 'an act establishing courts of probate.' " (Detroit Gazette, Oct. 16, 1818) [I6] By an act adopted on November 25, 1817, the governor and judges provided that the justices of the county courts and the justices of the peace in each county should hold "a court of General Quarter Sessions of the peace" on certain days in each year. (Laws of the Territory of Michigan, II, 109) On May 30, 1818, the powers and duties of these courts were vested in boards of commissioners, and the courts were abolished. (Ibid., p. 130) As the powers of these courts were administrative and not judicial, the courts should not be considered as belonging to the judicial system of the territory. [17] The act of July 24, I8o5, which established the Supreme Court pro- vided that it should be lawful for the court, in such cases as might require a report, to employ one or more commissioners. (Laws of the Territory of Michigan, I, 13) This provision was in force when the Cass Code was pub- lished on June 20, I816 (ibid., p. I82), and was re-enacted in 1827. (Code of 1827, p. 131) On June 13, 1818, the governor and judges provided that it should be competent for the governor to appoint a "Master Commis- sioner in chancery" for each of the courts having chancery jurisdiction. (Laws of the Territory of Michigan, II, 133) By an act adopted on Novem- ber 28, 1820, provision was made for the appointment by the governor of a "master in chancery" for each court having chancery jurisdiction. (Ibid., I, 71I3) [18] By an act adopted on February 9, 1815, the governor and judges provided that the "register of the city, town, and district of Detroit" should be, ex officio, "a commissioner equally authorized and required, with a judge of the Supreme Court, to do and execute every act, power, and trust, which, according to the practice of the said court, a judge may do and execute out of court, and also to allow writs of habeas corpus, and hold and admit to bail in all cases." (Laws of the Territory of Michigan, II, 86) It was provided OUTLINES OF 7UDICIAL SYSTEM 13 that this act should be in force for one year, only. (Ibid.) By an act adopted by the governor and judges on November 13, 1820, provision was made for the appointment from time to time of one or more commissioners of bail in each county. (Ibid., I, 650o) [I9] By an act approved on January 30, 18 23, Congress provided for the appointment of "an additional judge for the Michigan territory" who should possess and exercise within the counties of Michilimackinac, Brown and Crawford the jurisdiction and power theretofore possessed and exer- cised by the Supreme Court of the territory, and by the county courts of said counties respectively. (U. S. Statutes at Large, III, 722) Provision was made for appeals to the new court from the county courts of said counties, and that the Supreme Court might issue writs of error to the new court in civil cases. The act further provided that the court thereby established should hold one term annually in each of said counties. (Ibid.) The clerks of the county courts were made clerks of the new court in their respective counties. (Ibid.) A writ of error issued by the clerk of the Supreme Court on August 26, 1824 was directed "To the Honorable the additional Judge for the Michigan Territory, and Judge of our Court, commonly called the 'Circuit Court of the United States, for the County of Crawford, in said Territory of Michigan.' " (Case 1103, Calendar of Cases, infra) The re- turn, dated May 12, 1825, was signed by "James Duane Doty, one of the Judges of the U. S. for the Tery. of Michigan and Judge of the said Circuit Court." (Ibid.) "On February 1st, 1823, James Duane Doty was appointed additional Judge for the Territory of Michigan, with a yearly salary of twelve hundred dollars; his jurisdiction to extend over the counties of Mackinac, Brown and Crawford. This included all of Michigan not em- braced in the lower peninsula; the entire tract afterward comprised in the State of Wisconsin; and the country north of the St. Croix River, and east of the Mississippi to latitude 49°, now under the government of Minnesota. The first term of the newly-organized court was held at Mackinac in July, 1823, Judge Doty being at that time just twenty-three years of age. ** * Until superseded by David Irvin, in I832, Doty continued to discharge his onerous duties." (Historic Green Bay, pp. I83-85) According to a list pre- pared by Secretary Evarts in 1879, Doty was appointed on February 17, 1823. (Michigan Pioneer Collections, III, 122) He was reappointed on January 9, 1828. (Ibid.) In 1824 Charles Giasson was "Clerk pro. tem." of the "Circuit Court of the United States for the County of Crawford." (Detroit Gazette, July 2, 1824)  ROLL OF ATTORNEYS There were twelve attorneys in Detroit in Janu- ary, 1819. (Detroit Gazette, Jan. 19, 1819) In January, 1824, the number was fourteen. (Ibid., Jan. 2, 1824)  Roll of Attorneys SOLOMON SIBLEY was admitted to practice before the Supreme Court on July 20, 18o5, and was active in practice until the outbreak of the War of I812. (Transactions, 18o0-18114, I, 41) Commencing again in 1814 he was active in practice until appointed judge in I824. He was United States attorney from 1815 to I824. (Michigan Biographies) A partnership with Whitney formed in 1818 (Detroit Gazette, Sept. I8, 1818) was dissolved in 1823 (ibid., Nov. 21, 1823). Within the period of this study, 1814-1824, Sibley appeared as attorney in at least 272 cases in the Supreme Court and in as many as 147 cases in the County Court of Wayne County. (See records printed herein and original files.) A native of Massachusetts, he was "regularly educated in Rhode Island College & admitted to the Degree of Bachelor of Arts." (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 4, p. 45) Having read law the term required, he was admitted to the bar in Rhode Island in 1797. (Ibid.) His certificate of admission was dated April I I, 1797. (Ibid., p. 38) Later in the same year he was admitted to practice in the Northwest Territory. (See certificates dated July 25, 1797 and September 9, 1797, ibid., Vol. 7, pp. 120 and 237; also see certificate dated March 4, 18oo, ibid., Vol. 13, p. io.) "Solomon Sibley-The Public Servant-1766-i846" by Louise Rau (MS Burton His- torical Collection, Public Library, Detroit) contains a full account of Sibley's life and activities. GEORGE McDOUGALL was admitted to practice before the Supreme Court on October i I, 181 I. (Transactions, z8o05-18114, I, 43) He was present when the Supreme Court resumed its sessions in 1814 following the War of 1812 (ibid., p. 6oo), and was active in practice throughout the period of the present study, 1814-1824. During this period he appeared in not less than 114 cases in the Supreme Court and in as many as 32 cases in the County Court of Wayne County. (See records printed herein and original files.) On December II, 1818, he announced his partnership with James Duane Doty. (Detroit Gazette, Dec. II, 1818) On February 3, 1823, he was ad- mitted to practice before the County Court of Macomb County. (Michigan Pioneer and Historical Collections, XXXV, 439) In I825 he advertised him- self as "President of the Bar of Michigan." (Detroit Gazette, Feb. 18, I825) CHARLES LARNED was admitted to practice before the Supreme Court on September 19, 1814. (Transactions, 18o5-1814, I, 43) At about the same time he was appointed attorney general (ibid.) which office he held until 1825. (1814-26 Index)* He was prosecuting attorney for Wayne County * See explanation preceding note i, Outlines of Judicial System, supra. 17 8 SUPREME COURT OF MICHIGAN from January 4, 1819 to April 24, 1825. (1814-32 List; 1814-26 Index)* A partnership with John Hunt was dissolved on January 20, 1824. (Detroit Gazette, May 7, I824) During the period of the present study, 1814-1824, he appeared as attorney in as many as 369 cases in the Supreme Court and in at least 270 cases in the County Court of Wayne County. The incom- plete records of the County Court of Monroe County show that he appeared at least twice in that court. These figures include his appearance as prose- cuting attorney and as attorney general. DAVID B. MACOMB was admitted to practice before the Supreme Court on May 9, i815. (Journal 2, printed in Vol. II of this study, *p. 438) A capias issued on July 28, 1815, was indorsed "David B. Macomb atty for plff." (Case 481, Calendar of Cases, infra) No other case has been found within the period of this study in which he acted as attorney. WILLIAM WOODBRIDGE was admitted to practice before the Supreme Court on September 17, 1816. (Journal 2, printed in Vol. II of this study, *p. 499) He had been admitted to the bar in Ohio in i8o6 (Michigan Pioneer and Historical Collections, XXII, 288) after graduation from "the famous law school at Litchfield." (Michigan History Magazine, V, 132) Within the period of this study, 1814-1824, he appeared as attorney in at least I25 cases in the Supreme Court and in as many as 33 cases in the County Court of Wayne County. He appeared at least once in the County Court of Monroe County. Jon LEWIs LEIB was admitted to practice before the Supreme Court on October 28, I816. (Journal 2, printed in Vol. II of this study, *p. 506) He was chief justice of the County Court of Wayne County from May 31, 1817 to March 17, 1823. (1814-32 List; I814-26 Index)* On October 30, 1818, he announced the opening of an office in Detroit. (Detroit Gazette, Oct. 30, 1818) Prior to I825 he appeared as attorney in as many as 70 cases in the Supreme Court and in at least 7 cases in the County Court of Wayne County. HENRY WHITING, a captain in the United States Army, was admitted to practice before the Supreme Court on March o10, I817. (Journal 2, printed in Vol. II, *p. 525) From a draft of a letter written by William Woodbridge (Woodbridge Papers, Burton Historical Collection, Public Library, Detroit, Vol. i io), it appears that Whiting was one of the attorneys for the defendant in the well-known case of Grant v. Thomas, Earl of Selkirk. (Case 581, Calendar of Cases, infra) No other case has been found in which he ap- peared as an attorney. WoLcoTT LAWRENCE was admitted to practice before the Supreme Court on June 20, 1817. (Journal2, printed in Vol. II, *p. 525) On December 12, 1817, the following notice appeared in the Detroit Gazette: "Wolcott Lawrence, Counsellor and Attorney at Law, Has opened an office at his * See explanation preceding note i, Outlines of Judicial System, supra. ROLL OF ATTORNEYS I9 residence upon the River Raisin, in the Territory of Michigan, where he will constantly attend to the business of his profession." Prior to 1825 he appeared as attorney in at least 34 cases in the Supreme Court and in at least 8 cases in the County Court of Monroe County. WILLIAM G. TAYLOR was admitted to practice before the Supreme Court on June 20, 1817. (Journal 2, printed in Vol. II, *p. 525) Prior to 1825 he appeared as attorney in as many as 43 cases in the Supreme Court and in at least 19 cases in the County Court of Monroe County. SAMUEL T. DAVINPORT, JR., was admitted to practice before the Supreme Court on June 23, 1817. (Journal 2, printed in Vol. II, *p. 525) He was active in practice until his death in 1821. He appeared as attorney in at least 31 cases in the Supreme Court and in at least 47 cases in the County Court of Wayne County. He announced his intention to practice in Detroit in 1817 (Detroit Gazette, Aug. 16, 1817), and formed a partnership with O'Keeffe in 1820. (Ibid., Oct. 27, 1820) He died April 25, 1821, age 31. (Ibid., April 27, 1 8 21) WILLIAM W. PETIT was admitted to practice before the Supreme Court on July i, 1817. (Journal 2, printed in Vol. II, *p. 525) Prior to 1825 he appeared as attorney in 24 or more cases in the Supreme Court and in at least 3 cases in the County Court of Wayne County. His office was in .)etroit. (Detroit Gazette, Feb. 7, 1823) EZRA B. PRESCOTT was admitted to practice before the Supreme Court September 15, 1817. (Journal2, printed in Vol. II, *p. 528) He was admit- ted in Macomb County July 13, 1818 (Michigan Pioneer and Historical Collections, XXXV, 439), and was prosecuting attorney of that county from December 12, I818 to February 3, 1820. (1814-32 List; 1814-26 Index)* No case has been found within the period of this study in which he appeared as an attorney in the Supreme Court. ANDREW G. WHITNEY announced on November 28, 1817 that he had opened an office in Detroit. (Detroit Gazette, Nov. 28, 1817) He appeared as an attorney in the County Court of Wayne County as early as January, 1818 (case 144), and in the Supreme Court as early as September, 1818. (Case 581, Calendar of Cases, infra; Journal 2, printed in Vol. II, *p. 594) On September 18, 1818, a notice appeared giving the location of the office of "Sibley & Whitney." Notice of dissolution of the "connexion" between Sibley and Whitney was published on November 21, 18 23. Prior to 1825 he was attorney in not less than 18o cases in the Supreme Court and in 65 or more cases in the County Court of Wayne County. He died October 5, 1826, age 39. (Proceedings of the Land Board of Detroit, p. 226) JoHN HUNT appeared as an attorney in the Supreme Court as early as September 25, 1818. (Case 435, Calendar of Cases, infra) On January 21, * See explanation preceding note I, Outlines of Judicial System, supra. 20 SUPREME COURT OF MICHIGAN I824, he was appointed one of the judges of the territory. (Outlines of Judicial System, supra, note i) He came to Detroit "in 1818 or 1819, a full fledged lawyer, and entered into partnership with Gen. Charles Lamrned." (Landmarks of Detroit, p. 363) Prior to his appointment as judge he appeared with Larned in at least 247 cases in the Supreme Court, 53 cases in the County Court of Wayne County, and 2 cases in the County Court of Monroe County. His partnership with Lamrned was dissolved January 20, 1824. (Detroit Gazette, May 7, 1824) He died in June, 1827. (Landmarks of Detroit, p. 364) HENRY LEAVENWORTH, a colonel in the United States Army, was ad- mitted to practice before the Supreme Court September 26, 1818. (Journal 2, printed in Vol. II of this study, *p. 593) No case has been found in which he appeared as attorney. CHARLES JAMES LANMAN announced on June 7, 1818 that he had "com- menced the practice of Law at the River Raisin." (Detroit Gazette, June 12, 1818) He appeared as an attorney in the County Court of Monroe County on November 16, 1818. (Files of Monroe County Court, University of Michigan, case 3) He was appointed prosecuting attorney for Monroe County on January 4, 1819. (1814-32 List; 1814-26 Index)* He appeared as an attorney in the Supreme Court in October, 1819. (Journal 2, printed in Vol. II of this study, *p. 668) Prior to I825 he was attorney in at least 72 cases in the Supreme Court, 8 cases in the County Court of Monroe County, and 12 cases in the County Court of Wayne County. JAMES DUANE DOTY was admitted to practice before the Supreme Court on November 20, 1818. (Journal 2, printed in Vol. II of this study, *p. 526) On December I I, 1818, the following notice appeared in the Detroit Gazette: "GEORGE M'DOUGALL and JAMES DUANE DOTY, Attornies and Counsellors at Law, Have entered into copartnership, and legal business of every description, will be at all times promptly attended to and executed by them, at their office in Jefferson Avenue, next door to the Council House, and directly opposite the Bank. City of Detroit, Dec. 9, 1818." This notice did not appear after Doty was appointed clerk of the Supreme Court on September 29, 1819. He served as clerk until June 22, 1820. (Outlines of Judicial System, supra, note 4) He was appointed "additional judge" for the territory on February I, 1823. (Ibid., note 19) He appeared as attorney in as many as 41 cases in the Supreme Court and in 10 or more cases in the County Court of Wayne County. BENJAMIN F. H. WITHERELL was "admitted to the bar of the territorial court in 1819 before Judge Woodward." (Michigan Pioneer Collections, IV, io8) He appeared as an attorney in the County Court of Wayne County in December, I819 (Files of Wayne County Court, University of * See explanation preceding note i, Outlines of Judicial System, supra. ROLL OF ATTORNEYS 21 Michigan, case 479), and in the Supreme Court on June 29, 1820. (Journal 3, printed in Vol. II of this study, *p. 47) The court was held in his office on that date. (Ibid.) According to Michigan Biographies he was admitted to the bar in 1819. A notice of a change in the location of his office appeared in the Detroit Gazette on December 24, 1819. He was ap- pointed judge of the Wayne County Court on June 17, 1824, and prosecut- ing attorney for St. Clair County on January 13, 1824. (1814-26 Index)* Prior to 1825 he appeared as attorney in 26 or more cases in the Supreme Court and in at least 9 cases in the County Court of Wayne County. "His admission to the bar of the supreme court of the United States was on motion of Daniel Webster." (Michigan Pioneer Collections, IV, io8) JoHN ANDERSON, "esquire," was admitted to practice before the Supreme Court January 4, 1820. (Journal2, printed in Vol. II of this study, *p. 526) According to Quaife, "At least two (possibly three) John Andersons figure in the history of Detroit and vicinity in the opening years of the century." (john Askin Papers, II, 723, note) John Anderson of Monroe was, at various times prior to 1820, a colonel of the Second Regiment of Michigan Militia (ibid.), a justice of the peace for the District of Erie (Transactions, 1805-1814, I, 19), chief justice of the Erie District Court (ibid., p. 27), marshal of the territory (ibid., p. 34), and chief justice of the County Court of Monroe County. (1814-32 List; 1814-26 Index)* January I, 1820, a writ was served in an action brought in the County Court of Wayne County by "John Anderson, Major U. S. Army." (Case 862, Calendar of Cases, infra) The title of this John Anderson was set forth in the declaration pre- sumably to distinguish him from the well-known resident of Monroe. Which John Anderson was admitted to the bar cannot be determined from the materials at hand. The term "esquire" may have been used to dis- tinguish the civil magistrate from the officer of the army. DANIEL LEROY was appointed prosecuting attorney for Oakland County on March 28, 1820. (1814-32 List)* He held the office until November 24, 1825. (1814-26 Index)* He was admitted to practice before the County Court of Oakland County on July 17, 1820. (Michigan Pioneer Collections, III, 561) He had been admitted to the bar in New York in 18oo. (Ibid., XXXI, 154) He was appointed a bar examiner by the Supreme Court in 1826 (Journal 4, MS p. 87), and on December 22, 1826, was appointed attorney for the United States. (Michigan Pioneer Collections, III, 122) No case has been found within the period of this study in which he appeared as an attorney in the Supreme Court. THOMAs ASHLEY was admitted to the bar in Macomb County on July II, 1820. (Michigan Pioneer Collections, V, 459) Before coming to Michigan he had practiced law in New York. (Ibid.) He died October 8, I827. * See explanation preceding note I, Outlines of Judicial System, supra. 22 SUPREME COURT OF MICHIGAN (Ibid.) Nothing has been found within the period of this study to indicate that he was admitted to practice before the Supreme Court. CHARLES NOBLE appeared as an attorney in the Supreme Court as early as September 26, 1820. (Journal3, printed in Vol. II of this study, *p. 62) According to Michigan Biographies, he was admitted to the bar (in Mass.?) in 1818. On June I I, 1819, the following notice appeared in the Detroit Gazette: "CHARLES NOBLE, Attorney & Counsellor at Law. Having opened an Office at the County seat for Monroe County, on the River Raisin, will at all times be ready promptly and faithfully to attend to such Professional business as may be committed to his care." He was admitted to practice before the County Court of Macomb County on February 5, 1822. (Michigan Pioneer and Historical Collections, XXXV, 439) He was appointed prosecuting attorney for Monroe County on January 16, I823. (1814-32 List)* Prior to 1825 he appeared as attorney in 16 or more cases in the Supreme Court and in at least i i cases in the County Court of Monroe County. GEORGE ALEXANDER O'KEEFFE was appointed prosecuting attorney for Macomb County on February 3, 1821 (1814-32 List; 1814-26 Index)* and was admitted to practice before the county court of that county on Feb- ruary 5, 1821. (Michigan Pioneer and Historical Collections, XXXV, 439) On September 19, 1821, he was assigned by the Supreme Court to act as one of the attorneys in the celebrated case of U. S. v. Ke-wa-bish-kim. (7ournal 3, printed in Vol. II of this study, *p. 159) According to the "Recollections of Aura P. Stewart," O'Keeffe came to Detroit about the year 1820. (Michigan Pioneer Collections, IV, 353) He was quoted as hav- ing said: "I was educated at two of the best seminaries in England, and I was bred at the Irish bar." (Ibid.) On October 27, I820, the formation of a partnership by Davinport and O'Keeffe was announced in the Detroit Gazette. Prior to 1825 he was attorney in at least 43 cases in the Supreme Court, 5 cases in the County Court of Wayne County, and i case in the County Court of Monroe County. SAMUEL B. BEACH was admitted "to plead and practice in the several courts of law and equity in this territory" on August 31, 1821. (Laws of the Territory of Michigan, I, 246) This is the only instance found of an admis- sion by act of the governor and judges. On February 5, 1822, he was admitted to practice before the County Court of Macomb County. (Mich- igan Pioneer and Historical Collections, XXXV, 439) On December 7, 1821, he announced that he had opened an office at Mount Clemens and that he would "regularly attend the several terms of the courts in the respective counties of Wayne, Oakland, Macomb and St. Clair." (Detroit Gazette, Dec. 7, I821) In January, 1822, he appeared as an attorney in the Supreme * See explanation preceding note I, Outlines of Judicial System, supra. ROLL OF ATTORNEYS 23 Court. (Case 934, Calendar of Cases, infra) No other case has been found within the period of this study in which he so appeared. SPENCER COLEMAN was admitted to practice before the County Court of Macomb County July Io0, 1820 (Michigan Pioneer and Historical Collec- tions, XXXV, 439), and before the County Court of Oakland County July 17, 1820. (Ibid., III, 561) On September 19, 1821, he was assigned by the Supreme Court to act as attorney in the celebrated case of U. S. v. Ke-wa- bish-kim. (Journal3, printed in Vol. II of this study, *p. 159) Prior to his death in 1823 he was attorney in at least 14 cases in the Supreme Court. He died April 12, 1823. (Detroit Gazette, Apr. 18, I823) JAMES L. COLE appeared as an attorney in the Supreme Court as early as January 7, 1822. (Case A-1o2, Calendar of Cases, infra) The Detroit Gazette of January 4, 1822 carried this item: "Mr Samuel B. Beach and Messrs. J. L. & H. S. Cole have been recently admitted to practice as Attornies & Counsellors, in the Courts of this Territory." Prior to his death he appeared in the Supreme Court in at least four cases. (A-1o2; A-io4; A-Io5; 947) He died February 3, 1823, age 24. (Detroit Gazette, Feb. 28, 1823) HENRY S. COLE was admitted to the bar a short time prior to January 4, 1822. (See James L. Cole, supra.) He appeared as an attorney in the Supreme Court as early as September 20, 1I822. (7ournal3, printed in Vol. II of this study, *p. 297) He was appointed prosecuting attorney for St. Clair County on May 23, 1823. (1814-32 List; 1814-26 Index)* Prior to I825 he appeared in at least 27 cases in the Supreme Court and in at least 6 cases in the County Court of Wayne County. WILLIAM ASA FLETCHER announced on May 24, 1822 that he had opened an office in Detroit. (Detroit Gazette, May 24, 1822) He was admitted to the bar in Macomb County on July 8, 1822. (Michigan Pioneer and His- torical Collections, XXXV, 439) He appeared as an attorney in the Supreme Court in September 1822. (Case 920, Calendar of Cases, infra; 7ournal3, printed in Vol. II of this study, *p. 281) On April 25, 1823, he was appointed chief justice of the County Court of Wayne County. (1814-32 List)* He resumed practice in February 1824. (Detroit Gazette, Feb. 20, I824) Prior to 1825 he was attorney in as many as 43 cases in the Supreme Court and in at least 2 cases in the County Court of Wayne County. E. REED announced on November I5, 1822 that he would give due at- tention to any business with which he might be favored, as an attorney, in the Supreme Court, and that he would attend the county courts of Wayne, Monroe, Oakland, Macomb and St. Clair. (Detroit Gazette, Nov. 15, I822) His office was in Detroit. (Ibid.) No case has been found within the period of this study in which he appeared as an attorney in the Supreme Court. * See explanation preceding note I, Outlines of Judicial System, supra. 24 SUPREME COURT OF MICHIGAN PHILu E. JUDD was appointed prosecuting attorney for Crawford County on July 22, 1823. (1814-32 List; 1814-26 Index)* On July 28, 1823, he appeared as attorney in the Supreme Court. (Case 974, Calendar of Cases, infra) No other case has been found in which he so appeared. Proposals for publishing a "Map and Gazetteer" by "PHILU E. JUDD, Counsellor at Law" appeared in the Detroit Gazette on October 31, 1823. It was said that previous to his arrival in the territory he had been admitted to the bar "in three of the most respectable states in the union." (Detroit Gazette, Mar. 5, 1824) He died September 19, I824. (Ibid., Sept. 24, 1824) HENRY CHIPMAN was admitted to practice before the Supreme Court on September 27, 1824. (7ournal3, printed in Vol. II of this study, *p. 488) He appeared as an attorney in the County Court of Wayne County as early as January 8, 1824. (Files of Wayne County Court, case 532) On Novem. ber 5, 1824, he announced that he had opened an office in Detroit. (Detroit Gazette, Nov. 5, 1824) Before coming to Detroit, Chipman "had practised several years in South Carolina." (Campbell, Outlines of the Political His- tory of Michigan, p. 411; also see Landmarks of Detroit, p. 369.) WILLIAM F. MOSELEY was admitted to practice before the Supreme Court on September 28, 1824. (7ournal3, printed in Vol. II of this study, *p. 490) No case has been found within the period of this study in which he appeared as an attorney. ALEXANDER D. FRASER announced on October 31, 1823 that he had resumed the practice of law in Detroit and would attend the Supreme Court and certain county courts. (Detroit Gazette, Oct. 31, 1823) He came to Detroit in August 18 23. (Laws of the Territory of Michigan, I, xiv) He appeared as an attorney in the County Court of Wayne County on Novem- ber 8, 1824. (Files of Wayne County Court, University of Michigan, case 532) On June 16, 1824, a member of the Judiciary Committee of the Legis- lative Council reported "on the petition of Alex. D. Fraser, that inasmuch as the petitioner would in a short time become an American citizen, and consequently be entitled to admission to the bar of the territory as an Attorney, the committee deemed it unnecessary to pass any law on the sub- ject." (Detroit Gazette, June 18, 1824) He was admitted to practice before the Supreme Court September 26, 1825. (7ournal i, MS p. 12) It has been said that he was "a very able Scotch lawyer and 'Father of the Detroit Bar' for many years." (Michigan Pioneer and Historical Collections, XXXI, 319) * See explanation preceding note i, Outlines of Judicial System, supra. CALENDAR OF CASES (Prepared by Editor) The cases are numbered in the order in which they appear in the journals. Papers pertaining to cases not found in the journals are listed in sup- plementary calendars following this calendar. A part of the Calendar (1805-1814) has been printed; a part (1814-1824) is printed herein; the remainder (1825-1836) will appear in a later publication. Cross-references from old file numbers to case numbers will be found in a Table of Cross-refer- ences printed in Volume II.  CASES I-406 Cases 1-406 appear in the portion of the Calendar previously printed. (Transactions, z8o5-I81, I, 47-285) In the following cases journal entries not previously printed are printed herein: Case 404. Day v. McCloskey, Journal 2, *pp. 425, 426, 427. Case 405. Loveland v. Rogers, " 423, 440. Case 406. Macomb v. May, " 426, 671, 737. CASES 407-1110 This portion of the Calendar contains all cases which appear for the first time in the journals now printed. Case 407 UNITED STATES versus ANDREW WESTBROOK Indictment for assault and battery JOURNAL ENTRIES (1814): Journal 2: (1) Plea, issue *p. 423; (2) jury trial, verdict, judgment *p. 423; (3) recognizance discharged *p. 424. PAPERS IN FILE: (I) Indictment; (2) capias sur indictment and return. Case 408 UNITED STATES versus ROBERT SMART Indictment for assault JOURNAL ENTRIES (I8 14-19): Journal2: (I) Rule to take depositions *p. 424; (2) continued *p. 440; (3) continued *p. 472; (4) discontinued *p. 66o. PAPERS IN FILE: (I) Indictment; (2) capias sur indictment and return. Office Docket, MS p. 4, c. I i; MS p. 41, c. 55. Note: The indictment is printed herein. (Selected Papers, infra, case 408) 27 28 SUPREME COURT OF MICHIGAN Case 409 IN THE MATTER OF ALEXIS RItAUME Commitment for refusing to testify before grand jury JOURNAL ENTRIES (1814): Journal 2: (I) Respondent instructed, committed to custody *p. 424; (2) respondent sworn to give evidence *p. 432; (3) re- spondent interrogated, discharged *p. 434. PAPERS IN FILE: [None] Note: The grand jury was investigating the loyalty of Samuel Abbott. Case 410 o RICHARD SMYTH, COLLECTOR, versus HENRY HUDSON Action of debt for tax and penalty JOU.NAL ENTRIES (1814-15): Journal 2: (i) Continued *p. 425; (2) con- tinued *p. 440; (3) declaration filed, rule to plead *p. 458. PAPERS IN FILE: (I) Capias and return; (2) declaration. Office Docket, MS p. I, c. I. Note: This action and a number of others were brought to collect duties and penalties under an act of Congress approved August 2, 1813, "laying duties on licenses to retailers of wines, spirituous liquors, and foreign merchandise." (U. S. Statutes at Large, III, 72) A similar action (case 465), brought in the name of the United States, was transferred to the records of the Supreme Court sitting as a Circuit and District Court of the United States. Case 411 RICHARD SMYTH, COLLECTOR, versus DANIEL TAYLOR Action of debt for tax and penalty JOURNAL ENTRIES (1814-19): Journal 2: (I) Continued *p. 425; (2) con- tinued *p. 440; (3) discontinued *p. 669. PAPERS IN FILE: [None] Office Docket, MS p. 3, c. 9. Note: See note, case 4o10, supra. CALENDAR OF CASES 29 Case 41 2 RICHARD SMYTH, COLLECTOR, versus CHRISTIAN CLEMENS Action of debt for tax and penalty JOURNAL ENTRIES (1814-15): 7ournal 2: (I) Continued *p. 425; (2) con- tinued *p. 440; (3) continuance rescinded, appearance, declaration filed, rule to plead *p. 444; (4) plea filed, issue *p. 458. PAPERS IN FILE: (I) Capias and return; (2) declaration, plea of nil debet. Office Docket, MS p. I, c. 2. Note: Entry 3 states that plaintiff "sues for the United States, as well as for himself." A similar action (case 517), brought in the name of the United States, was transferred to the Supreme Court sitting as a Circuit and District Court of the United States. See note, case 410, supra. Case 41 3 RICHARD SMYTH, COLLECTOR, versus LOUIS CHAPOTON Action of debt for tax and penalty JOURNAL ENTRIES (1814-15): journal 2: (I) Continued *p. 425; (2) con- tinued *p. 440. PAPERS IN FILE: (I) Capias and return. Offce Docket, MS p. I, c. 3. Note: See note, case 4o10, supra. Case 414 RICHARD SMYTH, COLLECTOR, versus FRANCOIS RIVARD Action of debt for tax and penalty JOURNAL ENTRIES (1814-19): 7ournal 2: (I) Continued *p. 425; (2) con- tinued *p. 440; (3) discontinued *p. 670. PAPERS IN FILE: (I) Capias and return. Offce Docket, MS p. 2, c. 4. Note: See note, case 410, supra. 3o SUPREME COURT OF MICHIGAN Case 415 RICHARD SMYTH, COLLECTOR, versus JEANBATISTE LADEROUTE Action of debt for tax and penalty JOURNAL ENTRIES (1814-19): Journal 2: (I) Continued *p. 425; (2) con- tinued *p. 440; (3) discontinued *p. 670. PAPERS IN FILE: (I) Capias and return. Offce Docket, MS p. 2, c. 5. Note: See note, case 4o10, supra. Case 416 RICHARD SMYTH, COLLECTOR, versus ANTOINE CECIL Action of debt for tax and penalty JOURNAL ENTRIES (1814-19): Journal 2: (I) Continued *p. 425; (2) con- tinued *p. 440; (3) discontinued *p. 671. PAPERS IN FILE: [None] Offce Docket, MS p. 2, c. 6. Note: See note, case 410, supra. Case 417 RICHARD SMYTH, COLLECTOR, versus FELIX PELTIER Action of debt for tax and penalty JOURNAL ENTRIES (1814-19): Journal 2: (I) Continued *p. 425; (2) con- tinued *p. 440; (3) discontinued *p. 671. PAPERS IN FILE: (I) Capias; (2) license to retail domestic spirits. Office Docket, MS p. 3, c. 7. Note: See note, case 4o10, supra. Case 418 RICHARD SMYTH, COLLECTOR, versus JOHN BENTLEY Action of debt for tax and penalty JOURNAL ENTRIES (1814-19): Journal '2: (I) Continued *p. 425; (2) con- tinued *p. 440; (3) death suggested, proceedings stayed *p. 66o. CALENDAR OF CASES 31 PAPERS IN FILE: (I) Capias. Office Docket, MS p. 3, c. 8. Note: See note, case 410o, supra. Case 419 GEORGE W. SELBY versus AUGUSTIN ROI Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1814): Journal 2: (I) Rule to bring body *p. 425; (2) recognizance *p. 427; (3) discontinued *p. 435. PAPERS IN FILE: (i) Declaration. Case 420 ROBERT SMART versus WILLIAM ALLEN JOURNAL ENTRIES (1814-15): journal 2: (I) Rule to bring body *p. 425; (2) discontinued *p. 440; (3) discontinued *p. 442. PAPERS IN FILE: [None] Office Docket, MS p. 4, c. 12. Case 421 JOSEPH THIBAULT versus JAMES MAY Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1814-17): journal 2: (I) Continued *p. 425; (2) con- tinued *p. 440; (3) continued *p. 472; (4) declaration filed, rule to plead *p. 483; (5) discontinued *p. 528. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) declara- tion; (4) precipe for execution. Office Docket, MS p. 4, c. 13; p. 35, c. I; p. 67, c. I. Case 422 JOSEPH CECIRE versus AUGUSTIN LAGRAVE Action of covenant JOURNAL ENTRIES (1814-19): Journal 2: (I) Continued *p. 425; (2) con- tinued *p. 44o; (3) discontinued *p. 66o. 32 SUPREME COURT OF MICHIGAN PAPERS IN FILE: (I) Capias and return; (2) bond for appearance; (3) articles of agreement. Office Docket, MS p. 5, c. I4; p. 35, c. 2. Case 423 SARAH MACOMB, ALEXANDER MACOMB, AND ANGUS MACK- INTOSH, EXECUTORS OF THE WILL OF WILLIAM MACOMB, DECEASED, versus JAMES MAY Action of covenant JOURNAL ENTRIES (1814-19): journal 2: (I) Continued *p. 426; (2) con- tinued *p. 440; (3) continuance rescinded, plea filed, referred *p. 457; (4) settled out of court *p. 671. PAPERS IN FILE: [None] Office Docket, MS p. 5, c. 15; p. 35, c. 3. Note: The following papers are with the papers of Solomon Sibley (Burton Historical Collection, Public Library, Detroit, Vol. 14, pp. 39, 41, 42 and 44): (1) capias; (2) declaration; 13) plea of performance; (4) stipulation for reference; (5) transcript from minutes. Photo- stats of papers I, 2, 3 and 4 have been placed in the file. Case 424 UNITED STATES versus RICHARD SMYTH Indictment for selling and for conveying liquors to Indians JOURNAL ENTRIES (1814): journal 2: (I) Plea, issue, jury trial, verdict, judgment *p. 428. PAPERS IN FILE: (I) Indictment. Note: The indictment is printed herein. (Selected Papers, infra, case 424) Case 425 UNITED STATES versus JOHN PALMER Indictment for selling and for conveying liquors to Indians JOURNAL ENTRIES (1814): 7ournal 2: (I) Plea, issue, jury trial, verdict, judgment *p. 428. PAPERS IN FILE: (I) Indictment; (2) capias and return. CALENDAR OF CASES 33 Case 426 UNITED STATES versus THOMAS SARGENT Indictment for assault and battery on a deputy marshal while in the execution of his office and for assault and battery JOURNAL ENTRIES (1814): journal 2: (I) Jury summoned by special appointee *p. 429; (2) plea, issue, jury trial, verdict, discharge *p. 429. PAPERS IN FILE: (I) Recognizance to appear; (2) indictment; (3) capias and return. Note: The indictment is printed herein. (Selected Papers, infra, case 426) Case 427 UNITED STATES versus JEAN BAPTISTE BEAUGRAND Indictment for murder JOURNAL ENTRIES (1814): Journal 2: (I) Indictment presented, rule to bring defendant into court *p. 431; (2) copy of indictment ordered fur- nished *p. 431; (3) jurors ordered summoned, copy of panel ordered furnished *p. 431; (4) plea, jury trial, verdict, discharge *p. 433* PAPERS IN FILE: (I) Subpoena; (2) indictment. Note: The defendant was charged with having murdered a prisoner of the Indians. Case 428 IN THE MATTER OF MARY PELTIER JOURNAL ENTRIES (1814): Journal 2: (I) Recognizance discharged *p. 431. PAPERS IN FILE: [None] Case 429 JAMES MAY versus DANIEL STEVENS Bill in equity to foreclose a mortgage JOURNAL ENTRIES (1814-19): Journal 2: (I) Bill filed *p. 431-a; (2) rule to appear *p. 440; (3) rule to answer *p. 464; (4) appearance *p. 491; (5) discontinued *p. 661. 34 SUPREME COURT OF MICHIGAN PAPERS IN FILE: (i) Bill of complaint; (2) summons and return; (3) incom- plete draft of decree. Office Docket, MS p. 5, c. I6; p. 35, c. 4. Note: An earlier suit to foreclose the same mortgage was abated. (Transactions, I8o5- z84t, I, 279) Case 430 UNITED STATES versus JAMES MAY Presentment for oppressing a citizen of the territory JOURNAL ENTRIES (1814): journal 2: (I) Appearance *p. 432; (2) nolle prosequi *p. 437. PAPERS IN FILE: (I) Presentment; (2) venire facias and return. Note: The presentment is printed herein. (Selected Papers, infra, case 430) Case 431 UNITED STATES versus TIMOTHY HOLTON Indictment for burglary and for larceny JOURNAL ENTRIES (1814): Journal 2: (I) Arraignment, plea, issue, jury trial, verdict, discharge *p. 435. PAPERS IN FILE: (I) Affidavit of David Spencer; (2) indictment; (3) memo. of stolen goods. Note: The indictment is printed herein. (Selected Papers, infra, case 43x) Another paper, indorsed "U. S. vs Timothy Holton Jury Room Sept. 26th 1815," contains these words: "The Jury find no Bill [signed] Stephen Mack, Foreman." A statement by Holton will be found with the papers of the County Court of Wayne County. (Miscl. file 51) Case 432 UNITED STATES versus MONIQUE, ALIAS MONIQUE ROBINSON, A PANI (OR BLACK) WOMAN Indictment for larceny JOURNAL ENTRIES (1814): Journal 2: (I) Counsel assigned, plea, sentence, fine paid, discharge *p. 436. PAPERS IN FILE: (1) Complaint; (2) indictment. CALENDAR OF CASES 35 Case 433 GEORGE W. SELBY versus MICHAEL HAHN Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1815): 7ournal 2: (I) Discontinued *p. 440. PAPERS IN FILE: (I) Capias and return; (2) due bill. Office Docket, MS p. 10, c. 10. Case 434 WARREN FENTON versus ANDREW WESTBROOK Action of trespass on the case (trover) JOURNAL ENTRIES (1815-19): 7ournal 2: (1) Rule to bring body *p. 440; (2) special bail, declaration filed, rule to plead, continued *p. 453; (3) sur- render in discharge of bail, defendant discharged *p. 504; (4) discon- tinued *p. 661. PAPERS IN FILE: (i) Precipe for writ; (2) capias and return; (3) declara- tion; (4) commission to take depositions; (5) letter to court from Daniel Springer, J. P.; (6) Affidavit for continuance. Offce Docket, MS p. 7, c. I; p. 35, c. 5. Case 435 DANIEL AMES versus WILLIAM HENRY PUTHUFF Action of trespass on the case (trover) JOURNAL ENTRIES (1815-21): 7ournal 2: (i) Rule to bring body *p. 441; (2) special bail *p. 450; (3) declaration filed, rule to plead, continued *p. 467; (4) continued *p. 5o6; (5) rule to plead, continued *p. 531; (6) rule to plead *p. 586; (7) plea filed, issue *p. 590; (8) affidavit filed, continuance granted *p. 596; (9) jury trial, verdict, judgment *p. 678; (xo) Bail discharged, new bail furnished *p. 679; (II) motion for new trial *p. 692; (12) motion for new trial argued *p. 722; (13) new trial granted *p. 726; (14) motion for leave to amend declaration *p. 727. journal 3: (iS) Jury trial *p. 66; (16) verdict *p. 68; (17) witness fees ordered paid *p. 82; (18) judgment *p. 154. PAPERS IN FILE: (I) Affidavit of Dan Ames; (2) precipe for writ; (3) capias and return; (4) declaration; (5) precipe for subpoena; (6) subpoena; (7) precipe for subpoena; (8) subpoena; (9) rule for taking depositions; 36 SUPREME COURT OF MICHIGAN (io) commission to take depositions, depositions of Thomas Elliott, John McDonald and Daniel Botsford; (II) precipe for subpoena; (12) sub- poena; (13) affidavit for continuance; (14) precipe for subpoena; (x15) sub- poena; (16) plea of not guilty; (17) affidavit for continuance; (18) letter from War Office to William Woodbridge; (I9) letter from Puthuff to Hunt and Larned; (20-21) precipes for subpoenas; (22) subpoena; (23) precipe for subpoena; (24) subpoena; (25) panel of jurors; (26) verdict; (27) affi- davit for new trial; (28) precipe for subpoena; (29-30) subpoenas; (31) precipe for subpoena; (32) subpoena; (33) precipe for subpoena; (34) sub- poena; (35) verdict; (36) order to pay witness fees; (37) precipe for execu- tion fi. fa.; (38) writ of fi. fa.; (39) taxed bill of costs. Office Docket, MS p.7, c. 2; p. 35, c. 6. Recorded in Book A, MS pp. 15-21. Note: Papers io, 17 and 27 are printed herein. (Selected Papers, infra, case 435) The following papers are with the papers of Solomon Sibley (Burton Historical Collection, Public Library, Detroit, Vol. 34, p. 187; Vol. 37, pp. 8, II, 12, 13; Vol. 41, p. 2; Vol. 58, p. 62): (i) brief; (2) incomplete affidavit of Thomas Elliott; (3) memo. of liquor destroyed; (4) letter from Ames giving names of witnesses; (5) notice of taking depositions; (6-7) briefs. Photo- stats of x, 6 and 7 have been placed in the file. Papers i and 7 read as follows: "Puthoof adsm Ames Trover transitory action Espe 588 Conversion the gist of the action Esp 587. Taking Tortious-Esp* 589 Ames not subject to a Court marshal-i of Cowper 175[-]6 Fictions are used for the furtherance of Justice. They cannot be contradicted when so used. Cowper I 177." "Ames vs Puthoff-Trover Action transitory-Espe 2 588. I Salkd 290 4 Term reports 503. Dolson vs Matthews Proof of Tortious taking is a conversion-Espe 2. 589 Bul. n. p. 44 Conversion the gist of action 587 The manner of goods coming to hands of deft only inducement-need not be proved Esp* 2d 587 Treaty of peace made Dec' 1814. War ceased & any act after could not be justified on grounds of necessity Majr Puthoff can no more protect himself in the act he did than Col Smith could now under pretence of an order" Case 436 JOHN BOOTON versus EDWARD W. MILLER Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1815-17): journal 2: (1) Rule to bring body *p. 441; (2) declaration filed, rule to plead, continued *p. 472; (3) special bail *p. 482; (4) depositions filed *p. 499; (5) cognovit, judgment, execution stayed *p. 508; (6) entry re special bail ordered amended *p. 512; (7) death suggested, administrators admitted as plaintiffs *p. 536. PAPERS IN FILE: (I) Precipe for writ; (2) capias and return; (3) declara- tion; (4) commission to take deposition, deposition of George Williamson; (5) draft of journal entry; (6) precipe for ca. sa.; (7) writ of ca. sa. and return. Office Docket, MS p. 7, c. 3; p. 35, c. 7; p. 59, c. I. Note: In I820 an action was brought against defendant's special bail. (Case 842, infra) CALENDAR OF CASES 37 Case 437 JOHN ANDERSON versus HARRIS H. HICKMAN Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1815-16): journal 2: (I) Rule to bring body *p. 441; (2) recognizance, declaration filed, rule to plead *p. 464; (3) cognovit, judgment *p. 496. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) declara- tion; (4) subpoena; (5) precipe for execution ca. sa.; (6) ca. sa. and return; (7) promissory note. Office Docket, MS p. 8, c. 4; p. 36, c. 8; p. 51, c. 4. Note: A precipe for subpoena is with the papers in case 435, supra. Case 438 UNITED STATES versus ANTOINE MORAS JOURNAL ENTRIES (1815): Journal 2: (1) Continued *p. 441. PAPERS IN FILE: [None] Case 439 UNITED STATES versus ANTOINE DEQUINDRE Indictment for assault and battery JOURNAL ENTRIES (1815): journal2: (i) Continued *p. 441; (2) plea, jury trial, verdict *p. 471; (3) sentence *p. 478. PAPERS IN FILE: (I) Recognizance to appear; (2) indictment; (3) capias sur indictment; (4) capias and return. Ofice Docket, MS p. 9, c. 9. Note: The indictment was for an assault on Joseph Campau. Case 440 JACOB VISGER versus ALEXIS DELISLE Action of trespass on the case ( .. . . ) JOURNAL ENTRIES (1815-19): Journal 2: (I) Return non est, alias ordered, continued *p. 441; (2) appearance *p. 661. PAPERS IN FILE: [None] Office Docket, MS p. 10, c. I I. 38 SUPREME COURT OF MICHIGAN Case 44 i JOSEPH LOVELAND versus DANIEL TAYLOR Action of trespass on the case (assumpsit) (attachment) JOURNAL ENTRIES (1815-19): Journal 2: (I) Rule to bring body *p. 441; (2) rule to bring body *p. 443; (3) declaration filed, continued *p. 472; (4) discontinued *p. 672. PAPERS IN FILE: (I) Precipe for capias and attachment; (2) capias and return; (3) attachment bond; (4) writ of attachment and return; (5) affi- davit for attachment; (6) declaration; (7) memo. of fees and court costs. Office Docket, MS p. I I, c. 15; p. 36, c. 12. Note: Paper 3 is printed herein. (Selected Papers, infra, case 441) Case 442 EPHRAIM PENTLAND, CHARLES HIGGINS AND WILLIAM STEELE versus THOMAS McDONALD Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1815-17): journal 2: (i) .... *p. 441; (2) rule to file declaration, continued *p. 473; (3) judgment *p. 528. PAPERS IN FILE: (I) Precipe for writ; (2) capias and return. Office Docket, MS p. 12, c. 18; p. 37, c. 15. Case 443 DANIEL SUTHERLAND, CURATOR TO THE VACANT SUCCES- SION OF PATRICK ROBERTSON, DECEASED, versus JAMES LASSELLE, FRANCIS LASSELLE AND GEORGE MELDRUM Action of debt on a money bond JOURNAL ENTRIES (1815-16): journal 2: (I) Rule to bring body *p. 441; (2) special bail *p. 448; (3) continued *p. 473; (4) declaration filed, rule to plead *p. 483; (5) debt remitted, judgment *p. 517. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) declara- tion; (4) plea in abatement. Office Docket, MS p. 14, c. 24; p. 39-b, c. 38. Note: Paper 4 is printed herein. (Selected Papers, infra, case 443) CALENDAR OF CASES 39 Case 444 FRANCIS LASSELLE versus ROBERT, ALIAS TONTON, NAVARRE Action of trespass vi et armis (assault and battery) JOURNAL ENTRIES (1815-20): 7ournal2: (I) Continued *p. 441; (2) decla- ration filed, rule to plead *p. 491; (3) referred *p. 532; (4) award filed *p. 586; (5) report of referees, judgment *p. 6oo. Journal3: (6) Bill of costs reduced, witness fees ordered paid *p. 70. PAPERS IN FILE: (i) Precipe for process; (2) declaration; (3) subpoena; (4) proof of attendance of witness; (5) statement of witness fees; (6) writ of fi. fa. Ofice Docket, MS p. 20, c. 40; p. 38, c. 21. Note: Entry 6 and papers 4 and 5 may pertain to case 445. Case 445 FRANCIS LASSELLE versus ROBERT, ALIAS TONTON, NAVARRE Action of trespass vi et armis (assault and battery) JOURNAL ENTRIES (I815-18): Journal 2: (I) Continued *p. 441; (2) re- ferred *p. 532; (3) award filed *p. 586; (4) report of referees, judgment *p. 60oo. PAPERS IN FILE: (I) Precipe; (2) capias and return; (3-4) subpoenas. Office Docket, MS p. 20, c. 41; p. 38, c. 22. Note: Entry 6 and papers 4 and 5 of case 444 may belong to this case. Case 446 FRANCIS LASSELLE versus ROBERT, ALIAS TONTON, NAVARRE Action of trespass (quare clausum fregit) JOURNAL ENTRIES (I815-18): 7ournal 2: (i) Continued *p. 441; (2) re- ferred *p. 532; (3) award filed *p. 586; (4) report of referees, judgment *p. 6oo. PAPERS IN FILE: (I) Capias and return; (2) subpoena. Office Docket, MS p. 20, c. 42; p. 38, c. 23. 40 SUPREME COURT OF MICHIGdN Case 447 JOHN McGREGOR versus RICHARD SMYTH Action of trespass (assault and battery) JOURNAL ENTRIES (1815-16): 7ournal2: (I) Continued *p. 441; (2) decla. ration filed, rule to plead *p. 491; (3) plea, jury trial *p. 503; (4) verdict, judgment *p. 504. PAPERS IN FILE: (I) Capias and return; (2) precipe for subpoena; (3-6) subpoenas. Offce Docket, MS p. 21, c. 43; p. 38, c. 24. Case 448 BENJAMIN WOODWORTH versus JESSE HAWKINS Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1815-16): 7ournal 2: (I) Rule to bring body *p. 441; (2) special bail, declaration filed, rule to plead, continued *p. 448; (3) con- tinued *p. 474; (4) cognovit, judgment *p. 498. PAPERS IN FILE: (I) Precipe for writ; (2) capias and return; (3) declaration; (4) subpoena; (5) writ of ca. sa.; (6) note or due bill. Office Docket, MS p. 21, c. 45; p. 39, c. 26; p. 60, c. 2. Note: A precipe for subpoena is with papers in case 435 (paper 5). Case 449 CONRAD TEN EYCK versus SIMON RIVARD Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1815-16): 7ournal 2: (I) Rule to bring body *p. 441; (2) recognizance *p. 454; (3) declaration filed, rule to plead, continued *p. 468; (4) continued *p. 474; (5) discontinued *p. 598. PAPERS IN FILE: (I) Precipe for writ; (2) capias and return; (3) declara- tion; (4) memo. of account. Offce Docket, MS p. 22, c. 47; P. 39, c. 28. CALENDAR OF CASES 4' Case 450 JAMES AND FRANCIS LASSELLE versus HENRY BERTHELET Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1815-19): Journal 2: (I) Rule to bring body *p. 442; (2) continued *p. 474; (3) death suggested, discontinued *p. 662. PAPERS IN FILE: (I) Precipe for writ; (2) capias and return; (3) subpoena; (4) plea in abatement. Offce Docket, MS p. 22, c. 48; p. 39, c. 29. Note: A precipe for subpoena is with the papers in case 435 (paper 5). Case 45 i JOHN S. LANGHAM, ADMINISTRATOR, ETC., OF THOMAS STORROW, DECEASED, versus JOHN FINCH Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1815-16): fournal 2: (I) Rule to bring body *p. 442; (2) special bail *p. 446; (3) continued *p. 474; (4) declaration filed, rule to plead, continued *p. 479; (5) judgment confessed *p. 496. PAPERS IN FILE: (I) Precipe for writ; (2) capias and return; (3) declara- tion; (4) promissory note; (5) ca. sa. Office Docket, MS p. 23, c. 49; p. 39, c. 30; p. 6o, c. I. Case 452 JAMES FRASER versus LOUIS LOGNON Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1815-19): 7ournal 2: (i) Rule to bring body *p. 442; (2) rule to plead, continued *p. 499; (3) death suggested, proceedings stayed *p. 661. PAPERS IN FILE: (I) Precipe for process; (2) capias and return; (3) decla- ration; (4) precipe for subpoenas; (5-6) subpoenas; (7) subpoena duces tecum; (8-io) statements of accounts; (ii) receipt for flour; (12) receipt. Office Docket, MS p. 23, c. 5o; p. 39, c. 31. 42 SUPREME COURT OF MICHIGAN Case 453 JAMES MAY versus JAMES McCLOSKEY Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1815-19): 7ournal 2: (I) Rule to bring body *p. 442; (2) appearance, leave given to amend writ *p. 448; (3) appearance, leave given to amend writ *p. 448; (4) leave to sign writ denied *p. 451; (5) settled out of court *p. 672. PAPERS IN FILE: (I) Precipe for writ; (2) capias and return. Offce Docket, MS p. 23, c. 51. Case 454 HUGH PATTINSON AND RICHARD PATTINSON, LATE COPART- NERS IN TRADE UNDER THE FIRM OF HUGH PATTINSON & CO., versus JOHN KINZIE AND THOMAS FORSYTH, COPARTNERS IN TRADE UNDER THE FIRM OF KINZIE & FORSYTH Action of trespass on the case (assumpsit) JOURNAL ENTRIES (i815): 7ournal 2: (i) Rule to bring body *p. 442; (2) continued *p. 474; (3) declaration filed, rule to plead *p. 483; (4) special bail *p. 483; (5) consolidated, referred *p. 488. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) declara- tion; (4) agreement to refer; (5) copy of rule of reference. Office Docket, MS p. 24, c. 54; p. 39-a, c. 33. Note: This case was consolidated with case 528. Case 455 RICHARD PATTINSON versus LOUIS BEUFAIT AND JOSEPH LORANGER Action of debt on a money bond JOURNAL ENTRIES (1815): Journal 2: (I) Appearance *p. 442; (2) con- tinued *p. 474; (3) referred *p. 488. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) agree- ment to refer; (4) copy of rule of reference. Office Docket, MS p. 25, c. 55; p. 39-a, c. 34. CALENDAR OF CASES 43 Case 456 HENRY B. BREVOORT versus WILLIAM HULL Action of trespass on the case ( .. .. ) (attachment) JOURNAL ENTRIES (1815): 7ournal 2: (i) Return non est, continued *p. 442; (2) attachment proceedings quashed *p. 485. PAPERS IN FILE: [None] Office Docket, MS p. 25, c. 56; p. 25, c. 57. Case 457 OLIVER WILLIAMS versus WILLIAM HULL Action of trespass on the case ( . . . . ) (attachment) JOURNAL ENTRIES (i8i): 7ournal 2: (I) Return non est, continued *p. 442; (2) attachment proceedings quashed *p. 486. PAPERS IN FILE: [None] Office Docket, MS p. 26, c. 59; p. 26, c. 60. Case 458 BENJAMIN WOODWORTH versus ALBION T. CROW Action of trespass on the case (assumpsit) JOURNAL ENTRIES (IbI85-16): 7ournal 2: (i) Rule to bring body *p. 442; (2) declaration filed *p. 448; (3) recognizance *p. 476; (4.) cognovit, judgment *p. 497; (5) surrender in discharge of bail *p. 503. PAPERS IN FILE: (I) Precipe for process; (2) capias and return; (3) decla- ration; (4) promissory note. Ofice Docket, MS p. 27, c. 62; p. 39-a, c. 36. Case 459 GABRIEL GODFROY, SR., versus FRANGOIS DESNOYER, DIT FIFI Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1815-17): 7Ournal2: (I) Return non est, alias ordered, continued *p. 442; (2) consolidated, referred *p. 502; (3) report of ref- erees, judgment *p. 534- 44 SUPREME COURT OF MICHIGAN PAPERS IN FILE: (I) Precipe for process; (2) capias and return; (3) capias and return. Office Docket, MS p. 26, c. 58; p. 55, c. 2. Note: A copy of the rule of reference and of the award of the referees are with the papers in case 5o6. Case 460 JAMES FRASER versus ALEXIS CERAIT, DIT COQUILLARD Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1815-19): 7ournal 2: (I) Rule to bring body *p. 442; (2) appearance *p. 448; (3) declaration filed, rule to plead *p. 492; (4) death suggested, proceedings stayed *p. 661. PAPERS IN FILE: (1) Capias and return; (2) declaration. Offce Docket, MS p. 27, c. 63; p. 39-a, c. 37. Case 461 HUMPHREY FULLERTON AND JOHN SANDERS LANGHAM, SURVIVING PARTNERS OF THOMAS STORROW & CO., versus JESSE HAWKINS AND JOEL DUNKS Action of debt on a bond JOURNAL ENTRIES (I815): 7ournal 2: (1) Return non est, alias ordered, continued *p. 442. PAPERS IN FILE: (I) Precipe for writ. Office Docket, MS p. 28, c. 66. Case 462 SEBASTIAN ADAMS versus TRUMAN KILLOGG Action of trespass on the case (assumpsit) JOURNAL ENTRIES (18I5): 7ournal 2: (I) Settled, discontinued *p. 442. PAPERS IN FILE: (I) Precipe for writ; (2) capias and return. Offce Docket, MS p. I0, c. 13. CALENDAIR OF CASES 45 Case 463 RUFUS SETH REED AND DEGARMO JONES versus WILLIAM L. COX Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1815): journal2: (i) Discontinued *p. 443. PAPERS IN FILE: (I) Precipe for process; (2) capias and return. Offce Docket, MS p. II, c. 12; p. 36, c. o10. Case 464 UNITED STATES versus JAMES MAY Action of debt for tax and penalty JOURNAL ENTRIES (18I5): 7ournal 2: (I) Declaration filed, rule to plead *p. 443; (2) plea of nil debet *p. 457; (3) transferred to court sitting as Circuit and District Court of U. S. *p. 476. PAPERS IN FILE: (i) Precipe; (2) capias and returrn; (3) declaration, plea of nil debet; (4) memo. of statements of witnesses; (5-6) subpoenas; (7) verdict; (8) subpoena; (9) letter from John L. Leib to Richard Smyth; (io) precipe for execution fi. fa.; (II) memo. of payment on judgment; (12) letter from James May to Solomon Sibley; (13) receipt. Office Docket, MS p. 28, c. 64. Note: See note, case 410, supra. On October 14, 1815, it was ordered that "hence- forward" separate records and minutes be kept of the transactions of the court sitting as a Circuit and District Court of the United States. (7ournal 2, *p. 490) Such transactions after said date are not included in the present study. (See Introduction, supra.) Case 465 UNITED STATES versus HENRY HUDSON Action of debt for tax and penalty JOURNAL ENTRIES (1815): 7ournal 2: (I) Declaration filed, rule to plead *p. 443; (2) plea of nil debet *p. 457; (3) transferred to court sitting as Circuit and District Court of U. S. *p. 476. 46 SUPREME COURT OF MICHIGAN PAPERS IN FILE: (I) Precipe for process; (2) declaration, plea of nil debet; (3) venire facias, list of jurors; (4-5) subpoenas; (6) testimony of Benja- min Chittenden and Richard Smyth; (7) verdict; (8) precipe for fi. fa. Ofice Docket, MS p. 28, c. 65; p. 41, c. 54. Note: See note, case 410, supra. Also see note, case 464, supra. The verdict was: "We of the Jurors find that Henry Hudson did sell the spirituous Liquors in the Declaration mentioned, without License from Richard Smyth Collector for that purpose-But whether the Laws be for the United States or for the Defendant we refer to the Court. [signed] J. M. Doark Foreman" Case 466 HENRY JACKSON HUNT versus WILLIAM MACOMB Action of debt on a bond Scirefacias to revive judgment JOURNAL ENTRIES (i815-18): 7ournal 2: (I) Declaration filed, nil dicit, judgment *p. 445; (2) declaration on scire facias filed *p. 598; (3) judg- ment *p. 6i5. PAPERS IN FILE: (i) Warrant of attorney to confess judgment; (2) declara- tion; (3) writ of scire facias and return; (4) narr. on scire facias; (5-6) drafts of judgment on scire facias. Office Docket, MS p. 30, c. 70o. Note: Papers 3 and 4 are printed herein. (Selected Papers, infra, case 466) Case 467 DANIEL SUTHERLAND, CURATOR TO THE VACANT SUCCES- SION OF PATRICK ROBERTSON, DECEASED, versus JAMES LASSELLE, FRANCIS LASSELLE AND BARNABE CAMPAU Action of debt on a money bond JOURNAL ENTRIES (1815-16): 7ournal2: (I) Rule to bring bodies *p. 445; (2) special bail *p. 448; (3) continued *p. 473; (4) declaration filed, rule to plead *p. 483; (5) debt remitted, judgment for costs *p. 518. PAPERS IN FILE: (I) Capias and return; (2) declaration. Office Docket, MS p. 15, c. 25; p. 39-b, c. 39. Note: A precipe for capias is with the papers in case 443. CAILENDAR OF CASES 47 Case 468 DANIEL SUTHERLAND, CURATOR TO THE VACANT SUCCES- SION OF PATRICK ROBERTSON, DECEASED, versus JAMES LASSELLE, FRANCIS LASSELLE AND JAMES MAY Action of debt on a money bond JOURNAL ENTRIES (1815-16): Journal 2: (I) Rule to bring bodies *p. 445; (2) special bail *p. 449; (3) continued *p. 473; (4) declaration filed, rule to plead *p. 483; (5) debt remitted, judgment *p. 518. PAPERS IN FILE: (I) Capias and return; (2) declaration. Offce Docket, MS p. 15, c. 27; p. 39-b, c. 41. NVote: A precipe for capias is with the papers in case 443. Case 469 DANIEL SUTHERLAND, CURATOR TO THE VACANT SUCCESSION OF PATRICK ROBERTSON, DECEASED, versus ANTOINE LASSELLE, JR. Action of debt on a writing obligatory JOURNAL ENTRIES (1815-16): Journal 2: (I) Rule to bring body *p. 445; (2) special bail *p. 451; (3) continued *p. 473; (4) declaration filed, rule to plead *p. 483; (5) motion to consolidate continued *p. 492; (6) debt re- mitted, judgment for costs *p. 519. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) decla- ration. Office Docket, MS p. 16, c. 28; p. 39-b, c. 42. Case 470 DANIEL SUTHERLAND, CURATOR TO THE VACANT SUCCESSION OF PATRICK ROBERTSON, DECEASED, versus ANTOINE LASSELLE, JR. Action of debt on a writing obligatory JOURNAL ENTRIES (1815-16): Journal 2: (I) Rule to bring body *p. 445; (2) special bail *p. 451; (3) continued *p. 473; (4) declaration filed, rule to plead *p. 483; (5) motion to consolidate continued *p. 492; (6) debt remitted, judgment for costs *p. 519. 48 SUPREME COURT OF MICHIGAN PAPERS IN FILE: (I) Capias and return; (2) declaration. Office Docket, MS p. I6, c. 29; p. 39-b, c. 43. Note: A precipe for capias is with the papers in case 469. Case 471 DANIEL SUTHERLAND, CURATOR TO THE VACANT SUCCESSION OF PATRICK ROBERTSON, DECEASED, versus ANTOINE LASSELLE, JR. Action of debt on a writing obligatory JOURNAL ENTRIES (1815-16): journal 2: (I) Rule to bring body *p. 445; (2) special bail *p. 451; (3) continued *p. 473; (4) declaration filed, rule to plead *p. 483; (5) motion to consolidate continued *p. 492; (6) debt remitted, judgment for costs *p. 520. PAPERS IN FILE: (I) Capias and return; (2) declaration. Office Docket, MS p. 16, c. 30; p. 40, c. 44. Note: A precipe for capias is with the papers in case 469. Case 472 DANIEL SUTHERLAND, CURATOR TO THE VACANT SUCCESSION OF PATRICK ROBERTSON, DECEASED, versus ANTOINE LASSELLE, JR. Action of debt on a writing obligatory JOURNAL ENTRIES (1815-16): journal 2: (I) Rule to bring body *p. 445; (2) special bail *p. 452; (3) continued *p. 473; (4) declaration filed, rule to plead *p. 483; (5) motion to consolidate continued *p. 492; (6) debt remitted, judgment for costs *p. 520. PAPERS IN FILE: (I) Capias and return; (2) declaration. Office Docket, MS p. 17, c. 31. Note: A precipe for capias is with the papers in case 469. CALENDAR OF CASES 49 Case 473 DANIEL SUTHERLAND, CURATOR TO THE VACANT SUCCESSION OF PATRICK ROBERTSON, DECEASED, versus JAMES LASSELLE AND FRANCIS LASSELLE Action of debt on a writing obligatory JOURNAL ENTRIES (I815-i6): journal 2: (I) Rule to bring bodies *p. 446; (2) special bail *p. 452; (3) continued *p. 473; (4) declaration filed, rule to plead *p. 483; (5) motion to consolidate continued *p. 492; (6) debt remitted, judgment for costs *p. 520. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) declaration. Office Docket, MS p. 17, c. 32; p. 40, c. 46. Case 474 DANIEL SUTHERLAND, CURATOR TO THE VACANT SUCCESSION OF PATRICK ROBERTSON, DECEASED, versus JAMES LASSELLE AND FRANCIS LASSELLE Action of debt on a writing obligatory JOURNAL ENTRIES (1815-16): journal 2: (I) Rule to bring bodies *p. 446; (2) special bail *p. 452; (3) continued *p. 473; (4) declaration filed, rule to plead *p. 483; (5) motion to consolidate continued *p. 492; (6) debt remitted, judgment for costs *p. 521. PAPERS IN FILE: (I) Precipeforcapias; (2) capias and return; (3) declaration. Office Docket, MS p. 17, c. 33; p. 40, c. 47. Case 475 DANIEL SUTHERLAND, CURATOR TO THE VACANT SUCCESSION OF PATRICK ROBERTSON, DECEASED, versus JAMES LASSELLE AND FRANCIS LASSELLE Action of debt on a writing obligatory JOURNAL ENTRIES (1815-16): journal 2: (I) Rule to bring bodies *p. 446; (2) special bail *p. 452; (3) continued *p. 474; (4) declaration filed, rule to plead *p. 483; (5) motion to consolidate continued *p. 492; (6) debt remitted, judgment for costs *p. 521. PAPERS IN FILE: (i) Capias and return; (2) declaration. Office Docket, MS p. 18, c. 34; p. 40, c. 48. Note: A precipe for capias is with the papers in case 474. 5o SUPREME COURT OF MICHIGAN Case 476 DANIEL SUTHERLAND, CURATOR TO THE VACANT SUCCESSION OF PATRICK ROBERTSON, DECEASED, versus JAMES LASSELLE AND FRANCIS LASSELLE Action of debt on a writing obligatory JOURNAL ENTRIES (I 15-I6): fournal 2: (1) Rule to bring bodies *p. 446; (2) special bail *p. 453; (3) continued *p. 474; (4) declaration filed, rule to plead *p. 483; (5) motion to consolidate continued *p. 492; (6) debt remitted, judgment for costs *p. 521. PAPERS IN FILE: (I) Capias and return; (2) declaration. Office Docket, MS p. 18, c. 35; p. 40, c. 49- Note: A precipe for capias is with the papers in case 474. Case 477 DANIEL SUTHERLAND, CURATOR TO THE VACANT SUCCESSION OF PATRICK ROBERTSON, DECEASED, versus JAMES LASSELLE AND FRANCIS LASSELLE Action of debt on a writing obligatory JOURNAL ENTRIES (1815-16): 7ournal 2: (I) Rule to bring body *p. 446; (2) special bail *p. 453; (3) continued *p. 474; (4) declaration filed, rule to plead *p. 483; (5) motion to consolidate continued *p. 492; (6) debt remitted, judgment for costs *p. 522. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) declaration. Office Docket, MS p. 18, c. 36; p. 41, c. 50. Case 478 DANIEL SUTHERLAND, CURATOR TO THE VACANT SUCCESSION OF PATRICK ROBERTSON, DECEASED, versus JAMES LASSELLE AND FRANCIS LASSELLE Action of debt on a writing obligatory JOURNAL ENTRIES (1815-16): Journal 2: (I) Rule to bring bodies *p. 446; (2) special bail *p. 453; (3) special bail *p. 455; (4) continued *p. 474; (5) declaration filed, rule to plead *p. 483; (6) motion to consolidate con- tinued *p. 492; (7) debt remitted, judgment for costs *p. 523. A7 A-j 7* ENDdR OF C44SES 51 PAPERS IN FILE: (I) Capias and return; (2) declaration. Office Docket, MS p. 19, c. 38; p. 41, c. 52. Note: A precipe for capias is with the papers in case 474. It is assumed that entry 6 was intended to include this case. The motion was to consolidate the "five" cases of Sutherland, etc., v. James and Francis Lasselle. There were six such cases. Case 479 DANIEL SUTHERLAND, CURATOR TO THE VACANT SUCCES- SION OF PATRICK ROBERTSON, DECEASED, versus JAMES LASSELLE, FRANCIS LASSELLE AND GEORGE McDOUGALL Action of debt on a money bond JOURNAL ENTRIES (1815-16): Journal 2: (I) Appearance, motion for dis- charge from bail, rule to bring bodies *p. 446; (2) motion withdrawn, special bail *p. 453; (3) continued *p. 474; (4) declaration filed, rule to plead *p. 483; (5) debt remitted, judgment *p. 522. PAPERS IN FILE: (I) Capias and return; (2) declaration. Office Docket, MS p. 19, c. 37; P. 41, c. 51. Note: A precipe for capias is with the papers in case 473. Case 480 UNITED STATES versus GEORGE WELCH Indictment for assault and battery JOURNAL ENTRIES (1815): fournal 2: (I) Plea, jury trial, verdict, dis- charge *p. 446. PAPERS IN FILE: (I) Indictment; (2) capias and return; (3) memo. of costs and fees. Offce Docket, MS p. 29, c. 68. Note: A recognizance is in the file conditioned that Welch appear before the Supreme Court and in the meantime keep the peace, especially toward Joshua Barnard. The indict- ment was for an assault on Jane Welch, the defendant's wife. Case 481 ROBERT SMART versus ANTHONY BUTLER Action of trespass vi et armis (assault and battery) JOURNAL ENTRIES (18IS): Journal 2: (I) Discontinued *p. 447. PAPERS IN FILE: (I) Capias and return. Ofce Docket, MS p. 9, c. 7. 52 SUPREME COURT OF MICHIGAN Case 482 DANIEL SUTHERLAND, CURATOR TO THE VACANT SUCCES- SION OF PATRICK ROBERTSON, DECEASED, versus JAMES LASSELLE AND FRANCIS LASSELLE, AND JAMES MAY AND PETER AUDRAIN AS ADMINISTRATORS OF THE ESTATE OF FRANGOIS PAUL MALCHER, DECEASED Action of debt on a money bond JOURNAL ENTRIES (i815-16): 7ournal2: (i) Special bail *p. 449; (2) leave given to amend "proceedings" *p. 463; (3) continued *p. 473; (4) declara- tion filed, rule to plead *p. 483; (5) debt remitted, judgment *p. S18. PAPERS IN FILE: (i) Capias and return; (2) declaration; (3) demurrer to declaration; (4) rough draft of order giving leave to amend declaration. Office Docket, MS p. 15, c. 26; p. 39-b, c. 40. Note: A precipe for capias is with the papers in case 443. The grounds of demurrer were: "Because the said Daniel Sutherland has joined in the same action the said James May and Peter Audrain, Admru &c with the said James and Francis Lasselle & whom the said Daniel in his said action hath sued & declared against in their own individual right-Because in the writ and declaration of the said Daniel there is manifest Error in law." Case 483 IN THE MATTER OF CLAIRETTE ALLEN Habeas corpus ad subjiciendum JOURNAL ENTRIES (1815): Journal 2: (I) Petition presented, motion for writ *p. 450; (2) leave given to withdraw petition *p. 451. PAPERS IN FILE: [None] Note: The petition for writ of error in case 492, infra, as originally drawn was for writ of habeas corpus. One ground of the petition was that petitioner could not be imprisoned for debt. In 1820 an act was adopted which provided "That no female person shall be im- prisoned on any execution, mesne or other process, in any civil action... ." (Laws of the Territory of Michigan, I, 490) Case 484 ANDREW WESTBROOK versus JOHN McGREGOR Action of trespass on the case (trover) (attachment) JOURNAL ENTRIES (i8i): fournal 2: (i) Discontinued *p. 450. PAPERS IN FILE: (1) Affidavit for attachment; (2) precipe for writ; (3) writ of attachment; (4) capias and return. Office Docket, MS p. 8, c. 6. CALENDAR OF CASES 53 Case 485 JOHN HOFFMAN versus WHITMORE KNAGGS Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1815-19): 7ournal2: (I) Special bail, declaration filed, rule to plead, continued *p. 450; (2) cognovit, judgment *p. 498; (3) settled out of court *p. 662. PAPERS IN FILE: (i) Precipe for capias; (2) capias and return; (3) declaration. Ofice Docket, MS p. 12, c. 16; p. 36, c. 13. Case 486 PAUL DUFOUR, ALIAS DEUFFO, versus WILLIAM THORN Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1815-19): Journal2: (I) Special bail *p. 451; (2) decla- ration filed, rule to plead, continued *p. 456; (3) settled out of court *p. 662. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) decla- ration. Office Docket, MS p. II, c. 14; p. 36, c. Ii. Note: An earlier action for the same claim was abated. (See case 326, Transactions, :Soc-z'S1, I, 244.) Case 487 JOSEPH LOVELAND AND GEORGE W. SELBY, MERCHANTS IN COMPANY UNDER THE FIRM OF JOSEPH LOVE- LAND & CO., versus JEAN BAPTISTE COUTURE Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1815-17): 7ournal 2: (I) Appearance, appearance bail discharged, motion to quash writ *p. 454; (2) motion to quash withdrawn *p. 463; (3) continued *p. 474; (4) writ quashed *p. 528. PAPERS IN FILE: (I) Capias and return; (2) declaration; (3) promissory note. Office Docket, MS p. 22, c. 46; p. 39, c. 27- Note: With the papers is an unserved capias in an action by Joseph Loveland against Jeanbatiste Couture on a promissory note. The note sued on was for the same amount as the note sued on by Joseph Loveland & Co. In journal entry No. I and in Office Docket, P. 39, c. '27, the plaintiff is Joseph Loveland. It seems probable that these entries were intended to be made in the case of Joseph Loveland & Co. 54 SUPREME COURT OF MICHIGAN Case 488 UNITED STATES versus ONE BARREL OF COFFEE, ONE BOX OF TEA AND TWENTY MUSKRAT SKINS CLAIMED BY AUGUSTIN LAGRAVE Libel to condemn property seized by collector of customs JOURNAL ENTRIES (1815): Journal 2: (1) Libel filed *p. 454; (2) trans- ferred to court sitting as a Circuit and District Court of U. S. *p. 476. PAPERS IN FILE: (i) Libel; (2) replication; (3-4) subpoenas; (5) affidavit of Barbary Desmond; (6) testimony of James May, John B. Thibodeau, Francis Savignac and Patrick Fitzpatrick; (7) testimony of Henry Berthelet; (8) copy of note and of receipt; (9) abstract of compensation to clerk of court sitting as a Circuit and District Court of U. S. Note: See note, case 464, supra. Case 489 UNITED STATES versus ONE BARREL OF SPIRITUOUS LIQUOR CALLED "SHRUB" AND ONE SHIP'S BOAT OR LIGHTER Libel to condemn property seized by collector of customs JOURNAL ENTRIES (I815): Journal 2: (1) Libel filed *p. 454; (2) trans- ferred to court sitting as a Circuit and District Court of U. S. *p. 476. PAPERS IN FILE: (I) Libel. Note: The libel is endorsed: "Condemnd Sale 3d Monday July" See note, case 464, supra. Case 490 UNITED STATES versus WHITMORE KNAGGS Indictment for assault and battery JOURNAL ENTRIES (1815): Journal 2: (1) Plea, jury trial, verdict, dis- charge *p. 455- PAPERS IN FILE: (I) Recognizance to keep the peace; (2) indictment. Offce Docket, MS p. 30, c. 72. Note: The indictment was for an alleged assault on Gabriel Godfroy, Sr. See case 493. CALENDAR OF CASES 55 Case 491 HENRY MURNEY versus JAMES LASSELLE AND FRANCIS LASSELLE, LATE TRADERS IN COMPANY UNDER THE FIRM OF JAMES & FRANCIS LASSELLE Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1815-17): Journal 2: (1) Motion for discharge from bail denied, special bail *p. 455; (2) continued *p. 474; (3) declaration filed, rule to plead *p. 483; (4) plea filed, continued *p. 507; (5) cognovit, judgment *p. 535- I'APERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) declara- tion; (4) precipe for subpoena; (5) subpoena; (6) plea in abatement; (7) demurrer to plea; (8) warrant of attorney; (9) draft of judgment; (to) alias fi. fa. and return; (ii) precipe for venditioni exponas. Office Docket, MS p. 19, c. 39; p. 41, c. 53; p. 68, c. I. Note: A precipe for capias dated Sept. 8, 1815 is with the papers in case 473. In journal entry No. 5 the title of the case is "Henry Murney against Francois Lasselle, Surviving partner of Jacques & Francois Lasselle." Precipes for writs of execution fi. fa. are with the papers in cases 565 and 569, infra. In the plea in abatement Francis Lasselle alleged the death of James Lasselle and prayed "Judgment if this Honorable Court will further proceed in said action." In the demurrer the plaintiff contended that the cause of action survived against Francis Lasselle, as surviving defendant, and did not abate. Case 492 OLIVER WILLIAMS & CO. versus MRS. (CLAIRETTE) ALLEN Action of trespass on the case (assumpsit) before James May, 7. P. Error to James May JOURNAL ENTRIES (1815): Journal 2: (I) Petition for writ of error granted *p. 456; (2) diminution suggested, certiorari awarded *p. 463; (3) .... *p. 464; (4) judgment reversed, reasons *p. 465. PAPERS IN FILE: (I) Petition for writ of error; (2) writ of error and return; (3) assignments of error; (4) writ of certiorari; (5) statement of account. Office Docket, MS p. 32, c. 76. Note: The return to the writ of error and papers 1, 3 and 5 are printed herein. (Selected Papers, infra, case 492) See case 483, supra. SUPREME COURT OF MICHIGAN Case 493 UNITED STATES versus GABRIEL GODFROY, SR. Indictment for assault and battery JOURNAL ENTRIES (I815): journal 2: (I) Plea, jury trial, verdict *p. 459; (2) sentence *p. 478. PAPERS IN FILE: (I) Indictment; (2) venire facias and return; (3) report to treasurer of fines imposed. Office Docket, MS p. 31, c. 73. Note: The person assaulted was Whitmore Knaggs. See case 490. Case 494 UNITED STATES versus RICHARD SMYTH Indictment for assault and battery JOURNAL ENTRIES (1815): 7ournal 2: (i) Plea, jury trial, verdict *p. 459; (2) sentence *p. 478. PAPERS IN FILE: (I) Warrant for arrest; (2) recognizance to appear; (3) in- dictment; (4) capias and return; (5) subpoena. Note: The fine imposed was reported to the Treasurer of the Territory (case 493, paper 3). The person assaulted was John McGregor of Sandwich. Case 495 UNITED STATES versus ALEXANDER T. E. VIDAL Indictment for assault, battery and false imprisonment JOURNAL ENTRIES (i815): 7ournal 2: (I) Appearance *p. 460; (2) nolle prosequi, judgment *p. 487. PAPERS IN FILE: (I) Indictment; (2) capias sur indictment. Note: The indictment is printed herein. (Selected Papers, infra, case 495) See case 496. CALENDAR OF CASES 57 Case 496 UNITED STATES versus ALEXANDER T. E. VIDAL Indictment for unlawful assembly with intent to seize and carry away one Thomas Ramer and (Count 2)for seizing and carrying away said Ramer JOURNAL ENTRIES (1815): 7ournal2: (I) Appearance *p. 460; (2) jury de medietate linguae ordered *p. 463; (3) jury trial, verdict *p. 481; (4) attendance of witnesses proved *p. 482; (5) sentence on first count *p. 487; (6) transcript of proceedings ordered transmitted *p. 488; (7) discharge on second count *p. 490. PAPERS IN FILE: (I) Affidavits of Charles Rivard and Charles Nicolet Gotuin; (2) affidavit of John Meldrum; (3) affidavit of Louis Bourr6; (4) affidavit of Brig. Gen. James Miller; (5) indictment; (6) capias sur indictment; (7) subpoena. Note: Papers 3, 4 and 5 are printed herein. (Selected Papers, infra, case 496) The affidavits of Charles Rivard, Charles Nicolet Gotiin and John Meldrum have been printed in Michigan Pioneer and Historical Collections, XXXVI, 328-31. (The name "Green" appearing in the Collections on pp. 328 and 329 should have been "Gotuin.") A report of the events leading up to this case was made by Commodore Owen as follows: "On the night of the 3d Inst. [September 3, 1815] the Confiance being at Anchor near the Rapids at the head of the River St Clair some seamen who previously broke open and plundered her store and stole clothes from some of their Officers and Comrades ran away with two of the Boats attached to her-On the following morning one of the Boats being found abandoned Lieut Alexr Vidal was dispatched by Captn Owen, (under whom he served) with an armed Canoe to search for and overtake if possible the other Boats with the thieves-About noon the 5th Lieut Vidal having landed on the American Side of Lake St Clair was informed the Boat he sought was near that place and that several of the Stolen things were at a Public House some distance off-The Lieutenant with a Midshipman and an Interpreter (a Boy) walked towards this House the Boat following them along the Shore on their way they overtook a man who proved to be one of those missing from the Confiance, he neither quickened his pace nor avoided his officers, but being desired by them to go into the Boat he readily obeyed and sat down on the Beach until she came-The Lieut walked on to the Public House where he found some articles of the stolen property; whilst engaged in looking at these things a crowd collected accusing him of having violated the Law, they were about to seize him when the Lieutenant conscious of not intending wrong offered to attend them to the Governor wishing at the same time to make application for the recovery of the Stolen Goods. A Mr. Meldrum an officer (as he said) of the Militia appears to have been the leader of this transaction, and it may be worthy of remark that the improper conduct of that person within the British Territory had some short time back obliged the Commg Officer at this place to make a complaint of him to Col. Butler the then Commanding Officer at Detroit. -It was about the period the Confiance having joined me in the mean time, that I received an imperfect account of the affair (Captn Owen being very ill) and sent the Letter No i, to the Commanding Officer at Detroit, on receiving the next day the answer No 2.-I lost no time in examining the man alluded to as to the circumstances under which he had been sent on board, he stated (and his former Character makes his story probable) that being in- toxicated he had gone to sleep in the Boat alongside and knew nothing of her being taken away until the next morning that he was Landed by the Deserters and when overtaken by 58 SUPREME COURT OF MICHIGAN his Officers was going along the Beach towards the Confiance, he further positively assured me that he had neither sought or claimed protection from any individual of the United States Officer or other, and that no force had been used to make him embark in doing which he readily obeyed the order of his officers.-As the claim of the Governor to the restitution of this man and his refusal to liberate Lieutenant Vidal rested upon the impression that the former was forcibly seized and (according to the expression of his Letter) transported, I lost no time in explaining to him by my Letter No 3, the particulars of the statement which the man had made, this together with a declaration on my part, that there was no wish to infringe the Territorial Rights of the United States and my readiness to notice an act of indiscretion in others I had no doubt would satisfy the Governor and at once end an affair which if pursued would not fail to renew those irritable feelings which it is desirable we should forget I am sorry that the answer of the Governor No 4 (notwithstanding his own personal feelings which led him to tell the officer who bore the Letter that he would release Lieut. Vidal) did not meet the conciliatory disposition I held out to him, but made a proposi- tion which it was impossible to give attention to an instant-It would be extraordinary in- deed were I to expose the Loyalty of any subject of His Majesty to be assailed by all the Arts which Interest or prejudice can possibly invent, and which (however ignorant the Governor may be respecting them) are in hourly practice, even the Boats crew landing the Officer with these very Letters to the Governor was thus assailed and urged to follow those who had already been enveigled; to this proposition I therefore sent the answer No 5 closing my communication with the Governor and as I am about to return to Kingston I desired Lieutenant Vidal to apply to Lieut. Col. James comd. officer at this place for any immediate assistance that he may require in the proceedings which shall follow-This evening brought a Letter from him saying that a Bill was filed 'for forcibly seizing and transporting a person name unknown' and he was called upon for Bail, measures were taken to obtain this for him and give him the advice of Counsel.-" (Ibid., XVI, 258-59) It will be noted that according to the British account the deserter was not forcibly seized, but readily surrendered. The Americans contended that the deserter had been seized by force. A report of the outcome of the case was made by Lieut. Vidal as follows: "I have the honor to inform you the un- pleasant business which detained me here is at length closed; The Supreme Court proceeded to try me on Monday last the 9th and after half an hours deliberation the jury found me Guilty of having riotously and wantonously assembled an armed party to seek deserters, with having searched the house of one of the Citizens, and with having disturbed the peace of the Inhabitants, but acquitted me of taking the man forcibly from the Land. On the Friday following Judgment was given on the case, and I was sentenced to pay the enormous sum of Six hundred, Thirty one Dollars and Forty-eight Cents besides Costs amounting to Forty seven Dollars and Thirty cents, which together with the Attorneys retaining Fee, Amounts to seven hundred and seventy eight Dollars and Eighty five cents total expense. I begged of Colonel James to favor me with his opinion whether it ought or ought not to be paid previous to communicating with you on the subject, he was of the former opinion, and yesterday afternoon the sum was paid into the hands of the Marshall of the Territory by Mr. Pattison to whom I have (as directed by the Colonel) given a Bill upon the Naval storekeeper at Kingston. The American Court has ordered a copy of the whole proceedings to be immediately taken, to be laid before the Secretary of State, and I shall procure a copy also to bring or forward to you as circumstances may require. I entered my protest against the legality of the Courts proceedings, but no other attention was paid, than the Judge ordering it to be filed." (Ibid., XVI, 350-51) An explanation of the jury's failure to convict on the second count of the indictment was made by Gov. Cass in a letter to James Monroe, Secretary of State: "I have the honor to transmit you the record of the conviction of Lieuten* Vidal, the British officer, who was arrested for sending out of this Territory a British deserter. I also forward another deposition, which, when taken in connection with those before sent, establish the principal fact beyond a doubt. It should be observed, that the reason, the defendant was acquitted upon one count in the Indictment, is to be found in the absence of the woman whose deposition was before transmitted, and of the present CALENDAR OF CASES 59 deponent, neither of whom, could be procured at the trial. It was not thought proper to sommon any of the deserters as witnesses." (Ibid., XXXVI, 338) On December 22, 1815, the Secretary of State sent to Gov. Cass a presidential pardon for Lieut. Vidal, which was returned by Gov. Cass as the fine had been paid. (Ibid., XXXVI, 338) The application for the pardon had been made through the British ambassador. (Ibid., XXV, 675) Corre- spondence and other papers concerning the case will be found in Michigan Pioneer and Historical Collections, XVI, 235, 238, 239, 241, 242, 243, 247, 249, 251, 267, 36I, 387; notes 238 and 350; XXXVI, 320--39. A photostat of "Vidals Remarks" (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 57, p. 167) has been placed in the file. See case 495, supra, and case 526, infra. Case 497 OLIVER WILLIAMS & CO. versus GEORGE McDOUGALL JOURNAL ENTRIES (1815-17): journal 2: (1) Referred *p. 460; (2) settled *p. 529. PAPERS IN FILE: (I) Agreement to refer; (2) copy of rule of reference. Offce Docket, MS p. 31, c. 75; p. 42, c. 55. Case 498 UNITED STATES versus RICHARD SMYTH Indictment for assault and battery JOURNAL ENTRIES (I815): journal 2: (I) Plea, 14 jurors sworn, panel set aside, another jury sworn, verdict, judgment *p. 461. PAPERS IN FILE: (I) Indictment. Note: The indictment was for an alleged assault on Henry Hudson, as was the indict- ment in case oo500. Case 499 UNITED STATES versus GEORGE McDOUGALL Indictment for assault and battery JOURNAL ENTRIES (1815): Journal 2: (I) Plea, jury trial, verdict *p. 462; (2) sentence *p. 487. PAPERS IN FILE: (i) Indictment; (2) capias and return; (3) subpoena. Note: The person assaulted was Joseph Campau. 6o SUPREME COURT OF MICHIGAN Case 500 UNITED STATES versus RICHARD SMYTH Indictment for assault and battery JOURNAL ENTRIES (1815): journal2: (I) Motion for continuance granted *p 463. PAPERS IN FILE: (i) Indictment; (2) capias and return; (3) affidavit for continuance. Note: The indictment was for an alleged assault on Henry Hudson, as was the indictment in case 498. Case 501oi UNITED STATES versus ROBERT, DIT TONTON, NAVARRE Indictment for assault and battery JOURNAL ENTRIES (I815-18): journal 2: (I) Continued *p. 463; (2) wit- nesses discharged, continued *p. 502; (3) continued *p. 595. PAPERS IN FILE: [None] Office Docket, MS p. 30, c. 71I; p. 38, c. 20. Note: The indictment was for an alleged assault on Francois Lasselle. Case 502 UNITED STATES versus BURGISS SQUIRE Commitment for passing counterfeit bills and for escape from jail at Urbana JOURNAL ENTRIES (1815): Journal 2: (1) No bill found, prisoner dis- charged *p. 464. PAPERS IN FILE: (I) Affidavit of Benjamin Woodworth; (2) affidavit of Joseph Vance. Case 503 UNITED STATES versus SAMUEL LASHLEY Arrest for selling whiskey to an Indian [?] JOURNAL ENTRIES (1 815): Journal 2: (I) No bill found, prisoner dis- charged *p. 464. PAPERS IN FILE: (I) Affidavit of Richard Prickett; (2) bail bond. CALENDAR OF CASES Case 5o4. ALEXIS CAMPAU versus JEAN BAPTISTE CAMPAU Action of trespass on the case (assumpsit) JOURNAL ENTRIES (i815): Journal 2: (I) Declaration filed, cognovit, judgment *p. 466. PAPERS IN FILE: [None] Office Docket, MS p. 31, c. 74. Case 505 UNITED STATES versus HENRY HUDSON Indictment for receiving stolen goods JOURNAL ENTRIES (1815-16): Journal 2: (I) Motion for continuance granted *p. 467; (2) plea, jury trial, verdict, judgment *p. 500. PAPERS IN FILE: (I) Warrant for arrest and to search house; (2) commit- ment; (3) affidavit of James Seeds; (4) recognizance to appear; (5) affi- davit of John Murphy; (6) indictment; (7) capias and return; (8) affidavit for continuance (9-II) subpoenas. Note: Papers I and 6 are printed herein. (Selected Papers, infra, case 505) Case 506 FRANCOIS DESNOYER, DIT FIFI, versus GABRIEL GODFROY, SR. Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1815-17): Journal 2: (I) Declaration filed, rule to plead, continued *p. 467; (2) consolidated, referred *p. 5o2; (3) report of referees, judgment *p. 534. PAPERS IN FILE: (I) Precipe for writ; (2) capias and return; (3) declara- tion; (4) copy of rule of reference; (5) award of referees. Office Docket, MS p. 12, c. I7; p. 37, c. 14; p. 55, c. 2. Note: This case was consolidated with case 459. 62 SUPREME COURT OF MICHIGAN Case 507 JACOB SMITH versus JAMES ABBOTT Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1815-19): journal 2: (1) Declaration filed, rule to plead, continued *p. 467; (2) depositions filed, agreed to be read in evi- dence *p. 477; (3) settled out of court *p. 672. PAPERS IN FILE: (I) Precipe for process; (2) capias and return; (3) decla- ration; (4) deposition of Charles Girard. Office Docket, MS p. 8, c. 5; P- 36, c. 9. Case 508 SOLOMON SIBLEY, ADMINISTRATOR OF THE ESTATE OF WILLIAM FLANAGAN, DECEASED, versus JAMES MAY Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1815-19): 7ournal 2: (I) Declaration filed, rule to plead, continued *p. 468; (2) cognovit, judgment *p. 495; (3) settled out of court *p. 662. PAPERS IN FILE: (I) Capias and return; (2) declaration. Office Docket, MS p. 13, c. 21; p. 37, c. 17. Case 509 JACOB FOWLER, ROBERT PIATT AND HUGH GLENN versus WILLIAM MACOMB Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1815-16): journal 2: (I) Declaration filed, rule to plead, continued *p. 468; (2) cognovit, judgment *p. 497. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) declara- tion; (4.) subpoena; (5) precipe for fi. fa.; (6) fi. fa.; (7-8) promissory notes. Office Docket, MS p. 13, c. 20; p. 37, c. 16; p. 49, c. 2. Note: A precipe for subpoena is with the papers in case 435. CALENDAR OF CASES 63 Case 510 JAMES MAY versus AUGUSTUS B. WOODWARD Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1815-17): Journal 2: (I) Declaration filed *p. 468; (2) rule to plead, continued *p. 479; (3) deposition ordered taken de bene esse *p* 487; (4.) rule to plead *p. 500; (5) referred *p. 510I; (6) report of referees, judgment *p. 533- PAPERS IN FILE: (i) Precipe for writ; (2) capias and return; (3) declara- tion; (4) draft of rule of reference; (5) notice to defendant of time and place of hearing; (6) notice to plaintiff of time and place of hearing; (7-8) subpoenas; (9) award of referees; (Io) precipe for ca. sa.; (ii) ca. sa. and return; (12) memo. of costs and fees; (13-14) statements of accounts; (ii) award of arbitrators; (16) supplemental award. Office Docket, MS p. 24, c. 52; p. 39-a, c. 32; p. 53, c. I. Note: Case 514 was consolidated with this case for hearing before the referees. Case 5 11 UNITED STATES versus IGNACE MORAS Indictment for treason JOURNAL ENTRIES (1815): Journal 2: (I) Plea, jury trial, verdict, dis- charge *p. 469. PAPERS IN FILE: (I) Indictment; (2) capias and return; (3) subpoena for John McGregor, John Connelly and Geo. McDougall; (4.) alias capias and return; (5) precipe for subpoena; (6-7) subpoenas. Offce Docket, MS p. 9, c. 8. Note: The indictment is printed herein. (Selected Papers, infra, case 511) Case 512 JAMES MAY versus JOHN W. BURNETT, EXECUTOR, ETC., OF WILLIAM BURNETT, DECEASED Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1815-23): Journal 2: (I) Continued *p. 473; (2) dis- charge from bail *p. 485; (3) appearance, leave to amend writ *p. 504; (4) continued *p. 5o10; (5) rule to plead *p. 531; (6) rule to plead *p. 586 64 SUPREME COURT OF MICHIGAN (7) rule enlarged *p. 590; (8) oyer of writ and declaration granted *p. 594; (9) replication filed, issue, postponement *p. 597; (io) continued *p. 602; (ii) appearance *p. 662; (12) continued *p 672. 7ournal 3: (13) Jury trial, verdict *p. 59; (i4) new trial ordered *p. 6o; (15) motion for judg- ment overruled *p. 163; (16) motion for writ of error coram nobis *p. 163; (17) attendance of witness proved *p. 231; (18) death of defendant sug- gested *p. 274; (i9) continued *p. 338; (20) abated *p. 390. PAPERS IN FILE: (i) Precipe for process; (2) capias and return; (3) declara. tion; (4) affidavit for continuance; (5) commission to take depositions; (6) deposition of J. Bt. Chandonnai; (7) notice of taking deposition; (8) deposition of Jeanbatiste Bourassa; (9-13) subpoenas; (14) warrant of attorney to J. L. Leib; (i5) plea; (16) replication; (17) deposition of Thomas S. Jones; (18) deposition of John Batiste Barrieux; (i9) deposi- tion of Joseph Bailly; (20) verdict; (21) precipe for subpoena; (22) sub- poena; (23) affidavit of J. L. Leib; (24) statement of sheriff's fees. Office Docket, MS p. 14, c. 23; p. 37, c. 19. Note: Papers I5, i16 and 23 are printed herein. (Selected Papers, infra, case 512) In journal entries 13, 15 and 16 the defendant was described as "Executor of his own wrong of William Burnett Deceased." In his plea defendant alleged that he "never was Executor of the last will and testament of the said William Burnet deceased, nor ever administered any of the goods and chattels which were of the said William Burnet deceased, at the time of his death." The verdict reads: "The Jury are of opinion that the Defendant is not Execu- tor in his own wrong." On September 20, 1821, "The attornies for the defendant moved, that the entry of the granting a new trial at the last term, in this case, be stricken off-it having been entered by mistake. Witherell, ).--I can give no opinion, because I was not present when the record was made. Griffin, 7.--I am of opinion that the record is good and ought not to be altered. Woodward, 7.-I think the record is correct. At all events, it cannot be altered in this man[ner] but must be by writ. de cor. nov. Leib-moved for a writ de cor. nov., returnable forthwith. In support of his motion he cited Fits. Her. Nat. Br. 2 and Bac. Ab. Lanman-Great injustice was done to the plaintiff by the verdict, and he is entitled to a new trial. The court may grant anew trial, instanter, without argument. The authorities produced in favor of granting the writ are all of them black letter. The practice has never prevailed in this court, and I hope it will not be introduced. Leib-I never heard before that mine were black letter authorities-but I may be wrong, as the gentleman is very learned. The verdict was just; and I am prepared to show that no new trial could be granted in this court-that altho the verdict was contrary to the direction of the court there was no good cause. [No decision]" ("Notes of Trials, Arguments, Decisions and Proceedings," infra) The reasons assigned for a new trial were: "i. Because the verdict is against Law and evidence-2d Because the verdict is given agt the charge of the Court--3d Because the verdict is for the Deft instead of the Pltif, as by law it ought to have been given for the Pltff." (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 56, p. 115) CALENDAR OF CASES 65 Case 513 BASILE LOSON, CHARLES LAFOREST, JEAN BAPTISTE LOSON AND REN, THEODORE, ALIAS ROSCEAU, versus JAMES MAY Action of trespass on the case (trover) JOURNAL ENTRIES (1815-19): 7ournal 2: (i) Continued *p. 474; (2) con- tinued *p. 510o; (3) non pros., judgment *p. 672. PAPERS IN FILE: (I) Precipe for process; (2) capias and acknowledgment of service. Office Docket, MS p. 21, c. 44; p. 38, c. 25. Case 514 AUGUSTUS B. WOODWARD versus JAMES MAY Action of trespass on the case (trover) JOURNAL ENTRIES (1815-17): 7ournal2: (I) Continued *p. 475; (2) depo- sition ordered taken de bene esse *p. 486; (3) referred *p. 511; (4) report of referees, judgment *p. 533. PAPERS IN FILE: (I) Capias and return. Office Docket, MS p. 27, c. 6I; p. 39-a, c. 35; P. 53, c. 2. Note: This case was consolidated with case 5Io for hearing before the referees. Papers 4, 5, 6, 7, 8, 9, 12, 15 and 16 of case 510 relate also to this case. Case 515 GABRIEL GODFROY, SR., versus JEAN BAPTISTE BRANDEMORE, DIT ST. AMOUR Action of trespass on the case ( . . . . ) JOURNAL ENTRIES (1815-19): 7ournal 2: (i) Continued *p. 475; (2) non pros., judgment *p. 672. PAPERS IN FILE: [None] Office Docket, MS p. 29, c. 67. 66 SUPREME COURT OF MICHIGAN Case 516 ROBERT INNIS AND ROBERT GRANT versus JACOB VISGER Scire facias to revive judgment JOURNAL ENTRIES (I8 15): 7ournal2: (i) Plea in abatement filed, demurrer sustained, judgment *p. 475; (2) motion to set aside judgment denied *p. 485. PAPERS IN FILE: [None] Ofice Docket, MS p. 13, c. 19; p. 4332, c. I; p. 49, c. 3; p. 58, c. 3. Note: The judgment revived had been rendered in case 265. (Transactions, i8o5-i8q, I, 208) A writ of venditioni exponas is with the papers of Solomon Sibley. (Burton Historical Collection, Public Library, Detroit, Vol. 40, p. 223) The following brief also has been preserved (ibid., Vol. 28, p. 144): "Innis & Grant vs Visger Sci. facias-i:. It is a common Law writ-Judicial 4. Bac. 409-and Judicial-Salk. 2. 600oo 4 Bac. 41 i-Per Holt-The authority of Coke does not warrant the doctrine of Black' What Coke says is but inference & the reason assd is insufficient-Coke 290-it otherwise- 2. The Court have power under the Law of the Territory to grant the writ-Law of Terrr p" 19. & 20. This Law adopd from Mass' where this practice under that power has been used Laws Mass' 126 In case of Bail this writ granted & why L. Mass 170 and on deceased Justices record Idem 1o8.--3d This Court have the power to issue s. fa. under the ordinance of 1787. Court has a Common Law Jurisd° U. S. L. 2 vol. 56o-Judicial proceedings accd to the Course of the Comn Law 565-If the Court should be of a different opinion The Authy is expressly given by the Law of the U. S. extending jurisdiction to this Court &° x Vol. L. U. 58. & 59. The U. States Court being a statute Court of limited Jurisdiction it was necessary to be explicit in the grant of powers-Those are not Common Law Courts- Scirefacias- Mr Larned-I point-is it a writ at Com. Law-Jacobs EXE-Statute repealing Territory Laws 214-16 Sep' x8xo Writs & process abated Jugt not included How far the statute of :8o5 is repealed by statute 18io repealing &°--" Case 517 UNITED STATES versus CHRISTIAN CLEMENS Action of debt for tax and penalty JOURNAL ENTRIES (1815): fournal 2: (i) Transferred to court sitting as a Circuit and District Court of U. S. *p. 476. PAPERS IN FILE: (I) Declaration; (2) venire facias, list of jurors; (3) subpoena. Note: See notes to cases 4o10, 412 and 464, supra. CALENDAR OF CASES 67 Case 518 IN THE MATTER OF WABOUSE, A CHIPPEWA INDIAN Commitment for murder JOURNAL ENTRIES (I815): 7ournal2: (I) Prisoner discharged *p. 477" PAPERS IN FILE: (I) Commitment. Note: Complaint was made that Wabouse and another Chippewa Indian had murdered Louis Roi. See case 32, Transactions, 1805-18114, I, 67. Case 519 IN THE MATTER OF ISAAC, A NEGRO JOURNAL ENTRIES (1815): 7ournal2: (I) Recognizance discharged *p. 477. PAPERS IN FILE: [None] Case 5o20 IN THE MATTER OF EZRA YOUNGLOVE JOURNAL ENTRIES (I8I5): ournal2: (I) Recognizance discharged *p. 477" PAPERS IN FILE: (i) Recognizance to appear. Case 52 I IN THE MATTER OF TIMOTHY HOLTON JOURNAL ENTRIES (1815): 7ournal2: (I) Recognizance discharged *P. 4776 PAPERS IN FILE: [None] Note: See case 431, supra. Case 522 IN THE MATTER OF ANNANIAS OGDEN JOURNAL ENTRIES (18 i): Journal 2: (I) Recognizance discharged *p" 477" PAPERS IN FILE: (i) Recognizance to appear. 68 SUPREME COURT OF MICHIGAN Case 523 IN THE MATTER OF MINANCHI, AN OTTAWA INDIAN JOURNAL ENTRIES (i815): 7ournal2: (i) Recognizance discharged *p. 477. PAPERS IN FILE: (I) Recognizance to appear. Note: The recognizance was signed by the Indian's mark-the picture of some animal. Case 524 IN THE MATTER OF JEAN BAPTISTE VERNIER, DIT LADOUCEUR Recognizance to keep the peace JOURNAL ENTRIES (1815): 7ournal 2: (I) Recognizance *p. 477. PAPERS IN FILE: [None] Case 525 SOLOMON SIBLEY, ADMINISTRATOR, ETC., OF WILLIAM FLANAGAN, DECEASED, versus JOHN MELDRUM, ADMIN- ISTRATOR, ETC., OF GEORGE MELDRUM, DECEASED Summons to show cause against entry of District Court judgment in Supreme Court (scirefacias) JOURNAL ENTRIES (I815-18): 7ournal2: (I) Judgment *p. 479; (2) decla- ration on scire facias filed *p. 598; (3) rule to plead *p. 599; (4) judg- ment *p. 614. PAPERS IN FILE: (I) Summons; (2) draft of judgment; (3) precipe for exe- cution fi. fa.; (4) precipe for scire facias; (5) writ of scire facias and return; (6) narr. on scire facias; (7) writ of fi. fa. and return. Office Docket, MS p. 14, c. 22; p. 37, c. 18; p. 4312, c. 2. Note: See case 307, Transactions, Izo5-I8i4, I, 234. CALENDAR OF CASES 69 Case 526 IN THE MATTER OF LIEUT. LOCKMORE, A BRITISH OFFICER, ET AL. Attachment for contempt for attempting to seize and carry away one James Barry within the "verge" of the court while the same was in session JOURNAL ENTRIES (1815): Journal 2: (1) Witness ordered subpoenaed *p. 484; (2) rule for attachment *p. 485; (3) transcript of proceedings ordered transmitted *p. 488. PAPERS IN FILE: [None] Note: Transcripts of the proceedings in this case and of the proceedings in case 496, supra, were at the same time ordered transmitted to the Secretary of State. Case 527 IN THE MATTER OF JOSEPH LARIVIERE Habeas corpus ad subjiciendum JOURNAL ENTRIES (1815): journal 2: (I) Petitioner discharged, John David ruled to pay costs *p. 485. PAPERS IN FILE: (I) Petition, copy of execution; (2) writ of ca. sa. for costs. Note: The petition and copy of execution are printed herein. (Selected Papers, infra, case 5c27) The act referred to in the petition (adopted Jan. io, 1812) provided: "No person shall be imprisoned, upon any execution, issued on any judgment founded on contract, made after the passage of this Act, unless the debt or damage in such execution shall exceed the sum of five dollars." (Laws of the Territory of Michigan, I, 144) An act adopted April 16, 1807 had provided: "That so much of the act concerning the recovery of debts to the value of twenty dollars, as would operate to require a warrant in cases where the defendant is proprietor or proprietrix of a house in the territory of Michigan, or tenant of a house in the same, of the yearly value of five dollars, be repealed; and in such cases the process shall be by summons." (Ibid., II, 9) Case 528 RICHARD PATTINSON versus JOHN KINZIE AND THOMAS FORSYTH, COPARTNERS IN TRADE UNDER THE FIRM OF KINZIE & FORSYTH Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1815): Journal 2: (I) Consolidated, referred *p. 488. 70 SUPREME COURT OF MICHIGAN PAPERS IN FILE: (None] Offce Docket, MS p. 32, c. 77. Note: An agreement to refer this case and case 454, and a copy of the rule of reference are with the papers in case 454, supra. Case 529 MARY JOSEPH YAX versus PETER YAX Petition for divorce JOURNAL ENTRIES (1815-19): journal 2: (1) Complaint filed, defendant ordered cited to appear *p. 490; (2) rule to plead *p. 500; (3) rule to plead enlarged *p. 503; (4) continued *p. 507; (5) settled out of court *p. 663, PAPERS IN FILE: (I) Bill of complaint. Office Docket, MS p. 42, c. [56]. Case 530 JOSEPH CAMPAU versus JOSEPH DESNOYER . . . . before James May, 7. P. Certiorari and error to Fames May JOURNAL ENTRIES (1815): Journal 2: (I) Motion for certiorari *p. 492; (2) record brought into court, certiorari dismissed, writ of error granted *p. 493" PAPERS IN FILE: (i) Petition for certiorari; (2) writ of certiorari. Case 53 I RICHARD PATTINSON versus HENRY CONNOR AND JAMES CONNER Action of debt on a money bond JOURNAL ENTRIES (1816-19): Journal2: (I) Special bail *p. 5o; (2) death suggested, proceedings stayed *p. 673. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) money bond. Office Docket, MS p. 32, c. [78]. CALENDAR OF CASES 7' Case 532 JOHN McDONELL versus REGINALD JAMES Action of trespass on the case (libel) JOURNAL ENTRIES (1816-17): 7ournal2: (I) Recognizance *p. 50o; (2) con- tinued *p. 510; (3) plea of not guilty *p. 531; (4) jury impaneled, nonsuit, judgment *p. 532. PAPERS IN FILE: (I) Precipe for capias; (2) affidavit for special bail; (3) capias and return; (4) declaration, plea of not guilty; (5) precipe for sub- poena duces tecum; (6) subpoena duces tecum; (7) precipe for subpoena; (8-10) subpoenas. Note: Papers 4 and 6 are printed herein. (Selected Papers, infra, case 532) The follow- ing communication appeared in the Detroit Gazette on September 19, 1817: "This was an action instituted by the plaintiff against the defendant for writing and publishing a libellous letter, maliciously slandering the character of the plaintiff; but by the glorious uncertainty of the law, and the vigilance of the defendant's agents, the letter on which the action was grounded could not, unfortunately, be produced in court, consequently, the plaintiff suffered himself to be non-suited. The plaintiff in this case was Judge M'Donell, formerly capt. M\l'Donell, (in the last war.) The defendant was Col. James, of his Britannic Majesty's 37th regt. whose deeds will be as much commemorated in this part of the world, as those of Colonel, afterwards General Kirke, in Great Britain, who accompanied the celebrated and powerful chief justice Jeffreys, when holding the circuits in the western parts of England in the reign of King James II." Case 533 JOHN S. ROBY versus ALEXIS LUC REAUME Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1816-19): 7ournal 2: (i) Special bail *p. 501; (2) rule to declare *p. 510; (3) continued *p. 537; (4) rule to plead *p. 586; (5) plea filed *p. 596; (6) continued *p. 605; (7) continuance denied *p. 688; (8) jury de medietate linguae ordered summoned *p. 689; (9) jury trial, verdict *p. 689; (io) clerk ordered to take possession of papers, etc. *p. 690; (II) motion for new trial made *p. 692; (12) motion for new trial argued *p. 723; (13) affidavit filed, further argument had *p. 725; (14) motion in arrest made, reasons filed *p. 745. Journal3: (IS5) Argument heard *p. I0; (16) papers possessed by clerk redelivered *p. 37; (17) motion in arrest overruled, judgment *p. 41. PAPERS IN FILE: (i) Affidavit of John S. Roby; (2) capias and return; (3) deposition of Samuel Abbott; (4) precipe for subpoena; (5) subpoena; (6) precipe for subpoena; (7) subpoena; (8) declaration; (9) bill of partic- 72 SUPREME COURT OF MICHIGAN ulars under special count; (io-i i) affidavits for continuance; (12) sub- poena; (13) motion to quash writ; (14) bail piece; (IS5) bill of particulars under common counts; (16) precipe for subpoena; (17) subpoena; (18) precipe for subpoena; (19) subpoena; (20) subpoena duces tecum; (21) subpoena; (22-23) panels of jurors; (24) verdict; (25) affidavit in support of motion for new trial; (26) motion in arrest of judgment; (27) ca. sa. and return. Note: Papers 9, 1o, II, 15, 25 and 26 are printed herein. (Selected Papers, infra, case 533) An extensive report of this case, including arguments of counsel and an opinion by Judge Woodward, will be found in Doty's Reports, infra, *p. 21. One question argued at length was the propriety of ordering the summoning of jurors without issuing a venire. The various orders for jurors made during the September Term, 1819, are listed in Table of Petit Jury Entries, infra. On February 7, I820, an act was adopted requiring the issuance of venires. (Laws of the Territory of Michigan, I, 491) The following papers have been preserved with the papers of Solomon Sibley (Burton Historical Collection, Public Library, Detroit, Vol. 40, pp. 245, 246, 247, 248 and 250; Vol. 41, p. 5): (1) brief; (2) deposition of James Conner; (3) copy of affidavit of indebtedness; (4) notice of taking deposition; (5) deposition of James McCloskey; and (6) deposition of Thomas Jones. A photostat of paper I has been placed in the file. Photostats of another brief and three letters from Doty to Woodbridge (Woodbridge Papers, Burton Historical Collection, Vols. Io, 114 and i6) also have been placed in the file. In one of his letters Doty stated that Woodward decided the case hastily and then looked up the law. In the other, he referred to the case as the " most unfortunate of cases." Case 534 DEGARMO JONES versus JACOB SMITH JOURNAL ENTRIES (1816-19): journal 2: (I) Special bail *p. 503; (2) con- tinued *p. 51o; (3) settled out of court *p. 673. PAPERS IN FILE: [None] Case 535 JOHN A. RUCKER versus ISABELLA MACOMB, WIDOW OF JOHN W. MACOMB, DECEASED, ISABELLA MACOMB, MARIA DE LA MERCEDE MACOMB, MARIA THERESA ELVIRA MACOMB, AND FRANCES SARAH DRING MACOMB, HEIRS AT LAW OF JOHN W. MACOMB, DECEASED, AND ALEXANDER MACOMB Bill in equity to foreclose a mortgage JOURNAL ENTRIES (1816-19): journal 2: (I) Bill filed, subpoenas ordered issued, notice ordered published *p. 505; (2) appearance *p. 507; (3) guardian ad litem appointed *p. 513; (.) cause heard, bill of complaint CALENDAR OF CASES 73 *p. 550; (5) leave to amend bill of complaint, amendment *p. 567; (6) appearance, answer filed *p. 581; (7) continued *p. 582; (8) answer of Alexander Macomb *p. 617; (9) answer of infant defendants *p. 622; (io) answer of Isabella Macomb *p. 624; (ii) decree *p. 628; (12) report of sale and account filed *p. 710; (13) account allowed *p. 724. Chancery Journal: (14) Decree *p. 2. PAPERS IN FILE: [None] Note: A copy of a subpoena to answer has been preserved with the papers of Solomon Sibley (Burton Historical Collection, Public Library, Detroit, Vol. 37, p. 107). Case 536 IN THE MATTER OF OTIS RUSSELL, GUY CARLETON, ELIAS (ELIJAH) C. RUSSELL AND WILLIAM THOMPSON Habeas corpus ad subjiciendum JOURNAL ENTRIES (1816): 7ournal 2: (I) Return filed, held sufficient, appearance *p. 507. PAPERS IN FILE: (I) Copy of affidavit for bail filed in county court; (2) peti- tion for habeas corpus, allowance of writ; (3) writ of habeas corpus and return. Note: The petition for habeas corpus and the return to the writ are printed herein. (Selected Papers, infra, case 536) A large part of the petition is obliterated and it is probable that this was ordered expunged from the record as being scandalous and irrelevant. See case 547, infra. Case 537 FRANCOIS LABADY versus APPOLLINE LABADY Petition for divorce JOURNAL ENTRIES (1816): 7ournal 2: (1) Complaint filed, petition filed, rule to answer *p. 507; (2) decree *p. 512. PAPERS IN FILE: (I) Bill of complaint; (2) request for copy of decision. Note: The bill of complaint is printed herein. (Selected Papers, infra, case 537) Peti- tioner's divorce and remarriage gave rise to the alleged slander involved in case 643. 74 SUPREME COURT OF MICHIGAN Case 538 RICHARD PATTINSON versus GEORGE McDOUGALL Motion to require defendant to surrender papers relating to claims put in his hands for collection and to account for money received; and that his name be no longer continued on the record as attorney for plaintiff JOURNAL ENTRIES (1816): 7ournal2: (I) Motion, rule to show cause, copy of motion and rule ordered served *p. 5o8. PAPERS IN FILE: (1) Revocation of McDougall's authority; (2) letter of attorney to William Woodbridge; (3) demand for accounting and return of papers, proof of service; (4) notice of motion; (5) affidavit of George Jacob; (6) copy of rule to show cause, proof of service. Note: Papers 4 and 5 are printed herein. (Selected Papers, infra, case 538) Also see case 547, infra. Case 539 UNITED STATES versus . . . . BOOKE Action of debt on .... JOURNAL ENTRIES (i816): fournal 2: (I) Discontinued *p. 5o10. PAPERS IN FILE: [None] Case 540 JOSEPH KING AND BETSY (ELIZABETH) KING versus FREDERICK JOHNSON Action of trespass on the case (slander) JOURNAL ENTRIES (1816-21): journal 2: (I) Continued *p. 510o; (2) con- tinued *p. 673. Journal3: (3) Rule for nonsuit *p. 157. PAPERS IN FILE: (I) Precipe for writ. Case 541 JOHN McDONELL versus RICHARD PATTINSON Action of trespass on the case (libel) JOURNAL ENTRIES (1816): 7ournal2: (I) Alias ordered *p. 510. PAPERS IN FILE: (I) Precipe for writ; (2) capias and return. Note: "N. E discontinued" was noted on a docket of cases, September Term i816. (Miscl. file 245) CALENDAR OF CASES 75 Case 542 THOMAS FOSTER versus LEONARD GORDON Action of trespass on the case (slander) JoURNAL ENTRIES (1816-19): journal 2: (I) Rule to declare *p. 510; (2) affidavit filed *p. 529; (3) appearances, non pros., judgment *p. 662. PAPERS IN FILE: (I) Precipe for process; (2) capias and return, order for bail; (3) subpoena. Note: An affidavit for bail is among the papers of Solomon Sibley. (Burton Historica Collection, Public Library, Detroit, Vol. 39, p. 177) Case 543 JOEL THOMAS, JR. versus JOSEPH WEAVER Action of trespass on the case (malicious prosecution and slander) JOURNAL ENTRIES (1816-19): 7ournal 2: (i) Rule to declare *p. 510; (2) continued *p. 529; (3) death suggested, proceedings stayed *p. 663. PAPERS IN FILE: (I) Precipe for process; (2) capias and return. Case 544 FREDERICK FALLEY versus GABRIEL GODFROY, SR. Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1816-21): journal 2: (1) Rule to declare *p. 510; (2) appearance *p. 530; (3) motion to quash writ overruled, rule to plead *p. 531; (4) rule to file amended declaration *p. 548; (5) oyer of writ and declaration granted *p. 594; (6) rule to plead *p. 596; (7) motion for bill of particulars granted *p. 598; (8) plea filed *p. 598; (9) continued *p. 605; (io) order for bill of particulars rescinded, appearance *p. 681I; ( 11) con- tinued *p. 684. journal 3: (12) Motion for bill of particulars *p. 61; (13) continuance denied, jurors *p. 217-a; (14) attendance of witness claimed *p. 217-b; (15) jury discharged until next day *p. 217-b; (16) jury trial, verdict *p. 217-d; (17) judgment *p. 242. PAPERS IN FILE: (I) Precipe for summons; (2) summons and return; (3) deposition of Asher F. Cook; (4-5) subpoenas; (6) declaration; (7-8) sub- poenas; (9) plea of non assumpsit; (io) subpoena; (11-12) precipes for subpoenas; (13) subpoena; (14-15) precipes for subpoenas; (16) subpoena; 76 SUPREME COURT OF MICHIGAN (17) precipe for subpoena; (18) subpoena; (19) affidavit for continuance; (20) precipe for subpoena; (21-22) subpoenas; (23) affidavit for contin- uance; (24-25) precipes for subpoenas; (26) subpoena; (27) precipe for subpoena duces tecum; (28) subpoena duces tecum; (29) panel of jurors; (30) verdict; (31) precipe for ca. sa.; (32) bill of costs; (33) clerk's bill of fees; (34) statement of accounts "A"; (35) statement of accounts "B"; (36) statement of accounts "C"; (37) statement of accounts "D"; (38) statement of accounts "E"; (39) order "F-2"; (40) order "F-3"; (41) re- ceipt for notes, etc., "G"; (42) statement of accounts "H"; (43) promis- sory note "I"; (44) statement of accounts. Recorded in Book .A, MS pp. 266-73. Case 545 RICHARD PATTINSON versus FRAN§OIS DUCHARME Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1816-19): 7ournal 2: (I) Rule to declare *p. 5o10; (2) death suggested, proceedings stayed *p. 663. PAPERS IN FILE: (i) Precipe for capias; (2) capias and return. Case 546 ROBERT ABBOTT versus JOHN HOFFMAN AND SOLOMON SIBLEY, EXECUTOR, ETC., OF GEORGE HOFFMAN, DECEASED Bill in equity to establish a trust, etc. JOURNAL ENTRIES (1816-30): fournal2: (I) Bill of complaint filed *p. 514; (2) notice of suit ordered published *p. 523; (3) answer filed *p. 591; (4.) Sibley ruled to answer on oath *p. 696. Journal3: (5) Leave to with- draw answer, rule to answer, continued *p. 266. Chancery journal: (6) Continued *p. 53. Journal i: (7) Name of attorney stricken from docket MS p. 58; (8) replication refiled, reference to register, continued MS p. 71; (9) continued MS p. 114; (10) stipulation to take depositions filed, continued MS p. 116; (11) motion for reference to take depositions MS p. 181; (12) motion for reference granted, continued MS p. 213; (13) rule of reference extended MS p. 256; (14) reference for taking testimony MS p. 275; (15) rule for taking testimony extended [labeled "error"] MS p. 278; (16) motion that complainant answer interrogatories MS p. CALENDAR OF CASES 77 363; (17) conveyance considered as in trust, case referred to master, com- plainant ruled to answer interrogatories MS p. 364; (i8) motion to con- firm master's report MS p. 367; (19) exceptions to master's report argued, submitted MS p. 375; (20) exceptions overruled, report ordered corrected MS p. 378; (21) motion to confirm master's second report MS p. 384; (22) decree MS p. 400; (23) decree signed MS p. 403. PAPERS IN FILE: [None] Chancery Case 3 of 1820. Note: A copy of the answer and disclaimer of Solomon Sibley, executor, has been pre- served with his papers. (Burton Historical Collection, Public Library, Detroit, Vol. 27, p. 90) A photostat of this paper has been placed in the file. Case 547 IN THE MATTER OF GEORGE McDOUGALL Motion to strike from roll of attorneys JOURNAL ENTRIES (1816-17): 7ournal 2: (I) Scandalous matters ordered expunged, respondent suspended *p. 514; (2) suspension shortened *p. 514; (3) suspension rescinded, *p. 524. PAPERS IN FILE: (I) Letter from McDougall to Judge Griffin. Note: The above letter is printed herein. (Selected Papers, infra, case 547) Also see cases 536 and 538, supra. Case 548 DANIEL SUTHERLAND, CURATOR TO THE VACANT SUCCESSION OF PATRICK ROBERTSON, DECEASED, versus GABRIEL GODFROY Scire facias to revive judgment JOURNAL ENTRIES (1816): Journal2: (I) Judgment *p. 516. PAPERS IN FILE: (I) Writ of scire facias and return; (2) motion for rule to plead or show cause; (3) writ of fi. fa.; (4) alias fi. fa.; (5) memo. of delivery of fi. fa.; (6) precipe for pluries fi. fa.; (7) pluries fi. fa. and re- turn; (8) precipe for second pluries fi. fa. and venditioni exponas; (9) precipe for venditioni exponas and alias fi. fa.; (o0) precipe for third pluries fi. fa.; (II) venditioni exponas and fi. fa.; (12) draft of venditioni exponas and fi. fa.; (13) copy of original judgment entry. Office Docket, MS p. 61, c. I. Note: The judgment revived had been rendered in case 251. (Transactions, 1805-181¢, 1,200) 78 SUPREME COURT OF MICHIGAN Case 549 RICHARD PATTINSON versus ANTOINE LASSELLE Action of debt for money had and received JOURNAL ENTRIES (1816): journal 2: (I) Cognovit, warrant of attorney proved, judgment *p. 516. PAPERS IN FILE: (I) Declaration. Note: The declaration is printed herein. (Selected Papers, infra, case 549) The judg- ment was revived by scire facias in 1822 (case 873, infra). Case 550 JAMES BOYD AND FERDINAND SUYDAM, MERCHANTS TRADING UNDER THE FIRM OF BOYD & SUYDAM, versus JAMES MAHER AND JOHN MAHER Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1817-19): journal 2: (I) Rule to bring body *p. 529; (2) recognizance *p. 530; (3) declaration filed, rule to plead *p. 550; (4.) declaration filed, rule to plead *p. 58 I; (5) rule to plead *p. 586; (6) plea filed, issue *p. 590; (7) jury ordered summoned *p. 596; (8) plea withdrawn, cognovit, judgment *p. 6oo00; (9) plea withdrawn, cognovit, judgment *p. 613; (Io) surrender, motion for discharge *p. 657; (II) dis- charge *p. 659. PAPERS IN FILE: (I) Precipe for process; (2) capias and return; (3) bond for appearance of John Maher; (4) declaration; (5) plea of non assumpsit; (6) ca. sa. and return; (7) draft of proposed journal entry; (8) draft of proposed journal entry similar to entry Io, supra; (9) printed pamphlet of act of New York abolishing imprisonment for debt in certain cases; (io) bill of costs. Office Docket, MS p. 44, c. I. Note: There is an empty wrapper in the file indorsed "Discharge under the Insolvent Laws of New York, filed in open court October I i h 1819." This case is cited in Doty's Reports, infra, *pp. 7, 9 and i6. CALENDAR OF CASES 79 Case 551I MICHAEL DOUSMAN versus BENJAMIN CHITTENDEN Action of trespass on the case ( . ... ) JOURNAL ENTRIES (1817-2I): Journal 2: (I) Rule to return writ, appear- ance *p. 529; (2) continued *p. 674. Journal3: (3) Rule for nonsuit *p. 157. PAPERS IN FILE: [None] Office Docket, MS p. 46, c. 1. Case 552 I)AVID WILSON versus JOHN W. VANCE AND SAMUEL VANCE Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1817-19): Journal 2: (I) Rule to return writ *p. 529; (2) continued *p. 674; (3) discontinued, judgment *p. 723. PAPERS IN FILE: (I) Precipe for process. Office Docket, MS p. 431x, c. 5. Case 553 MICHAEL DOUSMAN versus JAMES W. BIDDLE Action of trespass on the case (slander) JOURNAL ENTRIES (1817-19): Journal 2: (I) Rule to return writ *p. 529; (2) bond cancelled *p. 531; (3) rule to declare *p. 595; (4) appearance *p. 663; (5) non pros., judgment *p. 674. PAPERS IN FILE: (z) Precipe for process; (2) capias and return; (3) bail bond. Ofice Docket, MS p. 46, c. 2. Case 554 PIERRE EDAM versus BATISTE PROUX Action of trespass (criminal conversation) JOURNAL ENTRIES (1817): Journal 2: (I) Settled *p. 529. PAPERS IN FILE: (t) Affidavit of Pierre Edam; (2) capias and return. Office Docket, MS p. 46, c. 3. 8o SUPREME COURT OF MICHIGAN Case 555 JOHN BATISTE BERTHELOT, SURVIVING PARTNER OF THE LATE COMPANY OF JACQUES GIASSON AND JOHN BATISTE BERTHELOT TRADING AT MICHILIMACKINAC UNDER THE FIRM OF GIASSON & BERTHELOT, versus PATRICK McGULPIN Action of trespass on the case (assumpsit) JOURNAL ENTRIES (18 17): 7ournal 2: (i) Rule to bring body *p. 529; (2) cognovit, judgment *p. 544* PAPERS IN FILE: (i) Precipe for capias; (2) capias and return; (3) bail bond; (4) declaration; (5) promissory note. Offce Docket, MS p. 431I2, c. 3. Case 556 RUFUS SETH REED AND DeGARMO JONES versus GEORGE W. SELBY Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1817): J ournal 2: (I) Discontinued *p. 530. PAPERS IN FILE: (I) Precipe for capias. Office Docket, MS p. 48, c. 2. Note: The capias is among the papers of Solomon Sibley. (Burton Historical Collection, Public Library, Detroit, Vol. 39, p. 176) Case 557 THOMAS BOSTON, SURVIVING PARTNER OF GILBERT LILLY AND THOMAS BOSTON, versus HUBERT LACROIX Action of debt on a writing obligatory JOURNAL ENTRIES (1817-19): 7ournal 2: (I) Recognizance *p. 530; (2) declaration filed, rule to plead *p. 550; (3) declaration filed, rule to plead *p. 581; (4) rule to plead *p. 590; (5) rule enlarged *P. 590; (6) rule to reply *p. 595; (7) continued *p. 605; (8) appearance *p. 663; (9) cognovit, judgment *p. 684. CALENDAR OF CASES 81 PAPERS IN FILE: (I) Precipe for process; (2) capias and return; (3) dec- laration; (4) plea of non est factum and of payment, oyer; (5) replica- tion; (6) subpoena; (7) precipe for subpoena; (8) subpoena; (9) precipe for subpoena; (io) precipe for execution ca. sa.; (iI) writ of ca. sa. and return; (12) writing obligatory. Office Docket, MS p. 49, c. I. Note: Paper 4 is printed herein. (Selected Papers, infra, case 557) Case 558 DAVID C. BRONSON versus JAMES W. BIDDLE Action of trespass (assault and battery) JOURNAL ENTRIES (1817-21): journal 2: (I) Bond cancelled *p. 531; (2) appearance, declaration filed *p. 663; (3) rule to plead, continued *p. 674. Journal3j: (4) Jury trial, verdict *p. 69; (5) motion for new trial *p. 7i; (6) motion for new trial overruled *p. 83; (7) judgment *p. 163. PAPERS IN FILE: (i) Precipe for process; (2) capias and return; (3) bail bond; (4) declaration; (5) plea of not guilty; (6) precipe for subpoena; (7) subpoena; (8) panel of jurors; (9) verdict; (io) bill of costs; (II) recognizance to keep the peace, etc. Office Docket, MS p. 48, c. 3. Recorded in Book A, MS pp. 38-42. Note: Printed forms were used for papers 4 and 7. Printed forms of writs and declara- tions were frequently used during the latter part of the period covered by this study. An incomplete draft of the declaration in this case was used as a wrapper for the papers in case 7 5, infra. Case 559 FREDERICK FALLEY versus GABRIEL GODFROY, SR., AND GABRIEL GODFROY, JR. Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1817): Journal 2: (I) Writ quashed *p. 531. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) de- position of Asher F. Cook. 82 SUPREME COURT OF MICHIGAN Case 560 THOMAS P. JAMES versus JAMES W. BIDDLE Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1817-18): Journal 2: (1) Recognizance *p. 532; (a) declaration filed *p. 588; (3) rule to plead *p. 598; (4) judgment *p. 604 PAPERS IN FILE: (1) Precipe for capias; (2) capias and return; (3) appear- ance bond; (4) declaration; (5) bill of exchange. Office Docket, MS p. 47, c. I; p. 71, c. I. Case 56i THOMAS BOSTON, SURVIVING PARTNER OF GILBERT LILLY AND THOMAS BOSTON, versus FRANCIS LASSELLE, SURVIVING PARTNER OF JAMES & FRANCIS LASSELLE Action of debt on three bonds JOURNAL ENTRIES (1817): Journal 2: (I) Cognovit, judgment *p. 536. PAPERS IN FILE: (I) Warrant of attorney to confess judgment; (2) draft of journal entry; (3) precipe for execution fi. fa.; (4) writ of fi. fa. and return. Office Docket, MS p. 68, c. 2. Case 562 JOHN McDONELL versus HENRY HUDSON Action of trespass on the case (trover) (attachment) JOURNAL ENTRIES (1817-18): Journal 2: (I) Appearance *p. 536; (2) dec- laration filed *p. 586; (3) plea filed, issue *p. 594; (4) leave to withdraw plea, oyer of writ and declaration granted *p. 594; (5) plea filed *p. 596; (6) rule to reply or demur *p. 596; (7) plea withdrawn, motion to quash proceedings denied *p. 597; (8) second plea filed, motion to amend dec- laration granted, plea withdrawn, continued *p. 598; (9) discontinued *p. 603. PAPERS IN FILE: (I) Affidavit and precipe for attachment; (2) writ of at- tachment; (3) capias and return; (4) bail bond; (5) motion to quash writ; (6) declaration; (7) plea in abatement; (8-9) subpoenas. Office Docket, MS p. 45, c. 3. Note: The capias was indorsed: "In case . . . . This action is brought to recover one thousand and Seventy dollars for goods, wares & merchandize stolen sold and delivered, CALENDAR OF CASES 83 monies laid out and expended, money advanced, money had and received." The word "stolen" is above the line and was written in darker ink. The date of the capias as first written was January 18. This was changed to January 22. The declaration is in the usual form of a declaration for trover. Papers 5 and 7 are printed herein. (Selected Papers, infra, cace {62) Case 563 WILLIAM WILKINS versus ROBERT ABBOTT Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1817-18): 7ournal2: (I) Recognizance *p. 537; (2) rule to plead *p. 586; (3) rule to plead *p. 595; (4) jury trial, verdict, judg- ment *p. 604. PAPERS IN FILE: (1) Precipe for process; (2) capias and return; (3) decla- ration; (4) plea of non assumpsit; (5) plea of non assumpsit; (6-7) sub- poenas; (8) verdict; (9) writ of execution and return; (io) precipe for execution fi. fa.; (II) promissory note. Office Docket, MS p. 51, c. I. Note: A precipe for subpoena is with the papers in case 544. According to the indorse- ment on the capias, this action was brought on a promissory note "made by Alexis Luc Reaume and payable to Robert Abbott, or order, assigned by indorsement by said Abbott to Mess" Pentland, Higgins & Steel, and by them assigned by indorsement to the plaintiff." The following memo. of authorities has been preserved with the papers of Solomon Sibley (Burton Historical Collection, Public Library, Detroit, Vol. 56, p. 174): "Wilkins vs Abbott Indorsee vs indorser, not bound to prove signature of maker Espe i vol. pa 36. Demand and due diligence Synomous in Law-2 Bur. 676. Mansfield Maker & indorser may be sued at once Espy 34-Consideration of Note cannot be enquired into, on action Indorsee vs Indorser-" Case 564 UNITED STATES versus HENRY HUDSON Indictment for receiving stolen goods Error to Wayne County Court JOURNAL ENTRIES (1817): :Journal 2: (1) Motion to quash writ of error overruled *p. 538; (2) assignment of errors *p. 539; (3) joinder in error, postponed *p. 541; (4) judgment reversed *p. 547. PAPERS IN FILE: (I) Precipe for writ of error; (2) writ of error and return; (3) bill of exceptions; (4) assignment of errors, joinder; (5) draft of journal entries. Note: Papers 2 and 3 are printed herein. (Selected Papers, infra, case 564) The errors assigned appear in the Journal. Many of the questions raised in this case were raised in case 565, infra. The return in case 566 refers to this case among others. After conviction in the county court the defendant made a motion in arrest of judgment, which was over- ruled. In connection with the overruling of this motion John McDonell, one of the justices of the county court, wrote an opinion which was printed in the Detroit Gazette, August 29, 84 SUPREME COURT OF MICHIGAN 1817. This opinion is reprinted herein. (Selected Papers, infra, case 564) After the re- versal of the lower court's sentence, the following comment appeared in the Detroit Gazette (October xo, 1817): "In our paper a few weeks since, we published a list of the decisions of the County Court of Wayne on several criminal cases, in which was mentioned the case of one Henry Hudson, who was found guilty (on an indictment for receiving stolen goods) by one of the most enlighted juries that ever sat in this territory, and sentenced by the Court to three years imprisonment, a fine, and costs. If we do not mistake, the trial before the county court lasted more than a week. Hudson's counsel brought his case before the Supreme Court of the territory at the (last) September session-they moved that the decision of the county Court be reversed, and, after the most persevering exertions for eight or ten days, succeeded in their motion, and Hudson is now at liberty. It is said that con- siderable law knowledge was displayed by the counsel for Hudson: indeed, we should imagine from his history, as told by almost every man in community, that it would require more than ordinary talents to screen such a man as Hudson from the punishment due his notorious crimes. We learn that at every Court held in this territory since the year 1803, this scoundrel has been arraigned for some midemeanor, but that he has always had the good fortune, some way or other, to escape punishment. At the time he was tried, found guilty, and sentenced, as above stated, there were ONLY TEN indictments against him for receiving stolen goods-he was tried on only ONE-the first on the list. Now, we do not pretend to LAW KNOWLEDGE, nor did we witness the trial, therefore, we are wholly unable to tell the people by what law quibble this man is again turned loose among them. There is no doubt but the quibbles were good-and our Supreme Court Judges are certainly judges, and 'all honorable men.' The exertions of C. Lamrned, Esq. on behalf of the people were, as we learn, great, and his talents conspicuous. Will Hudson be taken and tried on the indictments still pending against him? and, if he is, will the same quibbles that have wrested him from Justice in the instance above stated, produce the same result in future trials?" Photostats of six summaries of evidence (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 56, pp. 155-63) have been placed in the file; also photostat of suggestion of diminution. (Woodbridge Papers, Burton Historical Collection, Vol. Iio) The county court file (case 123) contains: (z) transcript; (2) J. P. subpoena; (3) recognizance; (4) indictment; (5) subpoena; (6) capias and return; (7) plea; (8-1o) subpoenas. See case 569, infra. Case 565 UNITED STATES versus JULIEN BEAULIEU Indictment for receiving stolen goods Error to Wayne County Court JOURNAL ENTRIES (1817): journal/ 2: (I) Motion to quash writ of error overruled *p. 538; (2) assignment of errors *p. 541; (3) joinder in error, postponed *p. 544; (4) judgment reversed *p. 547- PAPERS IN FILE: (I) Writ of error and return; (2) bill of exceptions; (3) assignment of errors. Note: A precipe for writ of error is with the papers in case 564. Many of the questions raised in this case were raised in case 564. With the papers is a writ of habeas corpus dated October 8, 1817. In the return it is stated that defendant was being "further" detained in "another" case for receiving stolen goods. The county court file (case II19) contains: (1) indictment; (2) capias and return; (3) precipe for subpoenas; (4-9) subpoenas; (io) plea; (11ii) copies of plea; (12) reasons in arrest; (13) reasons for new trial; (14) copy of reasons for new trial. CALENDAR OF CASES 85 Case 566 IN THE MATTER OF HENRY HUDSON Habeas corpus ad subjiciendum JoURNAL ENTRIES (1817): journal 2: (I) Petitioner discharged, recog- nizance *p. 548. PAPERS IN FILE: (I) Writ of habeas corpus and return; (2) draft of recog- nizance. Note: From the return to the writ of habeas corpus it appears that Hudson was being imprisoned by the sheriff of Wayne County "by the sentence of the County Court of Wayne" in case 564, supra, and also by order of said court on surrender by his bail in seven other cases for larceny and receiving stolen goods. Case 567 WILLIAM RUSSELL versus SOLOMON SIBLEY, ADMINISTRATOR, ETC., OF JAMES HENRY, DECEASED, WILLIAM HENRY, STEPHEN C. HENRY, CAROLINE HENRY, ELIZA HENRY, HARIOT HENRY, AMELIA HENRY, LYDIA HENRY, JULIAN HENRY, KITTY HENRY, MARIA HENRY, GEORGE HENRY, JAMES HENRY, ANN HENRY, WILLIAM MOLTHER, AND JOHN JOSEPH MOLTHER, HEIRS AT LAW OF JAMES HENRY, DECEASED Bill in equity for specific performance JOURNAL ENTRIES (1817-26): journal 2: (I) Motion for advertisement *p. 549; (2) pendency of bill ordered published, rule to answer *p. 603; (3) rule to appear, publication ordered *p. 665. Journal3: (4) Leave to withdraw answer, rule to answer continued *p. 265. Chancery Journal: (5) Continued *p. 52. Journal3: (6) Objection to deposition, motion to amend direction overruled, witnesses sworn *p. 510o; (7) witness sworn *p. 511. Journal 4: (8) Witnesses sworn, referred to master MS p. 61; (9) continued under advisement MS p. 70; (io) decree pronounced and filed MS p. 112; (II) notice of appeal to U. S. Supreme Court MS p. 114; (12) rule for recognizance on appeal MS p. 124. PAPERS IN FILE: (I) Bill of complaint; (2) writ of subpoena and return; (3) draft of order for publication; (4.) subpoena duces tecum; (5) answer of Solomon Sibley; (6) replication; (7) sheriff's bill of fees; (8) precipe for subpoena; (9-10) subpoenas; (ii) notice of taking deposition; (12) precipe for subpoena; (13-14) subpoenas; (15) precipe for subpoena; (16) 86 SUPREME COURT OF MICHIGAN subpoena duces tecum; (17) evidence given in open court by George McDougall, James Chittenden, Joseph Spencer, Elizabeth Chittenden and John P. Sheldon; (18) affidavit of publication; (19-20) subpoenas; (21) rule of reference to master; (22) evidence given by James McCloskey, Robert Smart, David Cooper, Samuel Sherwood and Jerry Dean; (23) master's report; (24) schedule A referred to in master's report; (25) ex- ceptions to master's report; (26) affidavit of value of land in controversy; (27) notice of intention to appeal to U. S. Supreme Court; (28) master's bill of fees; (29-30) copies of ledger entries; (3i) order for harness; (32) receipt for moccasins; (33) promissory note; (34) receipt for £376.3.8; (35-53) statements of accounts; (54) memo. of dates of deeds from governor and judges to James Henry. Office Docket, MS p. 51, c. 2. (Case i of 1820) Note: Papers I and 16 are printed herein. (Selected Papers, infra, case 567) Two notices to produce books, etc., and four papers containing comments and a memo. of author- ities are among the papers of Solomon Sibley. (Burton Historical Collection, Public Library, Detroit, Vol. 26-A, p. 242; Vol. 27, p. 91; Vol. 49, pp. 130 and o209; Vol. 51, pp. 28 and 250o) Photostats of these papers have been placed in the file. Notices of the pendency of the suit were published in the Detroit Gazette. (See issues of July 31, I8I8 and Jan. 14, 1820.) Case 568 JOHN McCOY AND SAMUEL McCRACKEN versus JOSEPH LOVELAND Action of debt on .... JOURNAL ENTRIES (1817-19): Journal 2: (I) Writ quashed *p. 582; (2) recognizance *p. 599; (3) bail discharged, defendant ruled into custody *p. 637; (4) default judgment *p. 674. PAPERS IN FILE: [None] Ofice Docket, MS p. 54, c. 3; MS p. 55, c. I. Note: The first writ was quashed and the action recommenced. "This writ was quashed for being made returnable on an improper day." (Office Docket, MS p. 54) Case 569 UNITED STATES versus HENRY HUDSON Indictments for larceny and for receiving stolen goods Removed from Wayne County Court by habeas corpus and certiorari JOURNAL ENTRIES (1818-22): journal 2: (1) Continued *p. 586; (2) con- tinued *p. 675; (3) motion made to set aside continuances *p. 719; (4) reasons for motion, motion overruled *p. 719. Journal 3: (5) Case as- CALENDAR OF CASES 87 signed *p. 82; (6) motion to quash certiorari *p. 233; (7) motion to quash certiorari overruled *p. 236; (8) motion to quash indictment "A" *p. 236; 9) argument postponed, continued *p. 250; (io) indictments quashed *p. 375. PAPERS IN FILE: (i) Precipe for habeas corpus and certiorari; (2) writ of certiorari; (3) writ of habeas corpus; (4) precipe for subpoena; (5) sub- poena; (6) rule on attorney general; (7-8) subpoenas; (9) letter from John Hunt to Charles Lamrned; (io) precipe for subpoena; (II) subpoena; (12) notice of motion to quash indictments; (13) transcript of recognizance; (14) indictment "A"-C. C. file 78; (IS) indictment-C. C. file 78; (16) indictment-C. C. file 81I; (17) indictment C. C. file 81I; (18) indictment -C. C. file 82; (i9) indictment-C. C. file 82; (20) indictment-C. C. file 83; (21) indictment-C. C. file 83. Ofce Docket, MS p. 62, cases i and 2; p. 66, c. 3- .Vote: Paper 12 is printed herein. (Selected Papers, infra, case 569) See cases 564 and ;66, supra. County court files originally numbered 63, 74 and 75 contain: [case 291] (I) ndictment; (2) copy of indictment; (3) capias and return; [case 2921] (i) indictment; (2) copy of indictment; (3) capias and return; [case 294] (i) copy of indictment; (2) copy of indict- ment; (3) precipe for subpoena. Case 570 WILLIAM KEPNER versus SAMUEL PARSHALL Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1818-20): journal 2: (I) Rule to bring body, declara- tion filed de bene esse *p. 586; (2) special bail *p. 587; (3) cognovit, judg- ment *p. 664. Journal 3: (4) Motion for attachment for costs *p. 94; (5) sheriff's fees allowed, etc. *p. 94. PAPERS IN FILE: (i) Precipe for process, account; (2) capias and return; (3) declaration; (4) precipe for execution ca. sa.; (5) writ of ca. sa. Office Docket, MS p. 58, c. 2. Note: See case 844, infra. Case 57I UNITED STATES versus GEORGE FRIEND Complaint of murder JOURNAL ENTRIES (I818): fournal 2: (1) Appearance *p. 586; (2) tran- script filed, recognizors discharged *p. 586. PaPERS IN FILE: (I) Transcript of proceedings before Thomas Rowland, J. P. N~ote: William M. Wiles complained that defendant had murdered Leonard Scratch. 88 SUPREME COURT OF MICHIGAN Case 572 GEORGE B. LARNED versus HENRY O. BRONSON Action of trespass on the case (assumpsit) (attachment) JOURNAL ENTRIES (18 I): Journal 2: (I) Attendance and mileage ordered paid *p. 587; (2) judgment *p. 616. PAPERS IN FILE: (I) Capias and return; (2) affidavit for attachment, precipe; (3) attachment bond; (4) writ of attachment and return; (5) declaration; (6) promissory note; (7) statement of accounts. Office Docket, MS p. 66, cases I and 2. Case 573 SAMUEL PARSHALL versus EDWARD BIDDLE Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1818-19): Journal 2: (I) Recognizance *p. 587; (2) rule to declare, continued *p. 599; (3) declaration filed *p. 656; (4) cog- novit, judgment *p. 664. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) declara- tion; (4) promissory note. Office Docket, MS p. 63, c. I. Case 574 EZRA YOUNGLOVE versus CHARLES REAUME Action of trespass (assault, battery and false imprisonment) JOURNAL ENTRIES (1818-23): Journal 2: (I) Recognizance *p. 588; (2) rule to declare *p. 588; (3) rule to declare, continued *p. 675. Journal : (4) Continued *p. 71; (5) continued *p. 157; (6) death of defendant sug- gested *p. 286; (7) abated *p. 390. PAPERS IN FILE: (I) Affidavit for bail, allowance, precipe for capias; (2) capias and return; (3) deposition of Robert Dickson; (4) declaration; (5) plea of not guilty. Office Docket, MS p. 54, c. I. Note: Paper 3 is printed herein. (Selected Papers, infra, case 574) In his affidavit for bail plaintiff stated that defendant "is not an inhabitant of this Territory nor a freeholder therein." From Dickson's deposition it seems that the case involved some question as to Reaume's authority to act as a justice of the peace at Green Bay in December 1816. CALENDAR OF CASES 89 Case 575 CHARLES POUPARD AND GEORGE McDOUGALL versus HYACINTHE DESJARDINS, ADMINISTRATOR OF THE ESTATE OF JEAN BAPTISTE ALOIRE, DIT LAPIERRE, DECEASED Proceedings before Charles Lamrned, Register, to compel conveyance of land Appeal from register's decree JOURNAL ENTRIES (1818): journal 2: (I) Papers filed and considered part of records *p. 588; (2) motion for leave to file reasons *p. 594; (3) facts found, decree *p. 605. PAPERS IN FILE: (I) Reasons to reverse decree, joinder in errors. Yote: The above paper is printed herein. (Selected Papers, infra, case 575) Case 576 FRANCIS LASSELLE, ADMINISTRATOR, ETC., OF JAMES LASSELLE, DECEASED, versus HENRY BERTHELET Action of debt on five money bonds JOURNAL ENTRIES (1818-19): journal 2: (I) Recognizance, declaration filed, rule to plead *p. 588; (2) discontinued *p. 666. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) dec- laration, oyer. Office Docket, MS p. 67, c. 2. Case 577 GABRIEL GODFROY versus FRANgOIS DUCHARME Action of trespass on the case (trover?) JOURNAL ENTRIES (1818-19): journal 2: (I) Continued *p. 590; (2) death suggested, proceedings stayed *p. 666. PAPERS IN FILE: (I) Precipe and affidavit; (2) capias and return. Office Docket, MS p. 54, c. 2. Note: The writ is indorsed: "This action is brought to recover damages for a case of seal and other Marine Skin containing in gold, silver and bank bills $500oo and also deeds, notes, vouchers & other papers of great value, to wit $4500." 90 SUPREME COURT OF MICHIGAN Case 578 JACQUES CAMPAU versus VICTOR MORAS Action of trespass on the case before George McDougall, 7. P. Appeal to Wayne County Court Habeas corpus and certiorari to county court JOURNAL ENTRIES (i8i8): 7ournal 2: (I) Argument postponed *p. 590; (2) judgment *p. 613. PAPERS IN FILE: (i) Writ of habeas corpus; (2) writ of certiorari; (3) tran- script of proceedings in county court; (4) transcript of proceedings before McDougall, J. P.; (5) transcript of proceedings in county court; (6) writ of fi. fa. and return; (7) receipts of fees to arbitrators. Office Docket, MS p. 70, c. [3]. Case 579 MICHAEL DOUSMAN versus WILLIAM H. PUTHUFF JOURNAL ENTRIES (1818-19): Journal 2: (I) Recognizance *p. 593; (2) appearance *p. 666; (3) continued *p. 675. PAPERS IN FILE: [None] Case 580 EPHRAIM PENTLAND, CHARLES HIGGINS AND WILLIAM STEELE, LATE ARMY CONTRACTORS, ETC., versus JOHN CONNELLY Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1818-19): 7ournal 2: (I) Plea filed *p. 593; (2) con- tinued *p. 595; (3) jury trial, verdict, judgment *p. 681; (4) motion for new trial *p. 68I; (5) reasons for new trial filed *p. 694; (6) motion for new trial argued *p. 723; (7) new trial denied, judgment *p. 726. PAPERS IN FILE: (I) Precipe for process; (2) capias and return; (3) declara- tion; (4) precipe for rule to take depositions; (5) notice of taking depo- sition; (6) commission to take deposition and deposition of Thomas Wilson; (7) precipe for subpoena; (8) subpoena; (9) affidavit for con- tinuance; (io) "examination" of Seth Barney and Charles Sweeny; (II) precipe for subpoena; (12) subpoena; (13) affidavit for continuance; (14) CALENDAR OF CASES 91 plea of non assumpsit; (i5) precipe for subpoena; (16) subpoena; (17) panel of jurors; (i8) verdict; (19) reasons "in arrest of verdict" and for new trial. Note: The verdict reads: "We the Jurors find for the plaintiff damages five Dollars." The reasons assigned for a new trial and the opinion of the court on overruling the motion for new trial will be found in Doty's Reports, infra, *pp. 76-77. A notice of taking depositions, two drafts of reasons in arrest and a memo. brief are with the papers of Solomon Sibley. (Burton Historical Collection, Public Library, Detroit, Vol. 37, p. 214; Vol. 41, pp. 2 and 235) A photostat of the brief has been placed in the file. Case 581 JAMES GRANT versus THOMAS, EARL OF SELKIRK Action of trespass (false imprisonment, etc.) JOURNAL ENTRIES (I18I): 7ournala2: (I) Motion to quash writ, argument postponed *p. 593; (2) time for new argument assigned *p. 596; (3) argument heard *p. 603; (4) motion for discharge granted *p. 616. PAPERS IN FILE: [None] Note: The following papers have been printed in the Michigan Pioneer and Historical Collections, XII, 483; XXXVI, 348: (I) precipe for capias; (2) affidavit for bail; (3) capias; 4) bond for appearance; (5) motion to quash; (6) opinion by Judge Woodward. Woodward's opinion is reprinted herein (Opinions in Unreported Cases, infra) from a photostat of a copy made by Judge Woodward (Burton Historical Collection, Public Library, Detroit) for the Detroit Gazette. The opinion was printed piecemeal in the Gazette on the following dates: June 15, 1821; June 22, 1821; July 20, 1821; Aug. 24, 1821; July II, 1823; July 18, 1823. Another copy was prepared for publication in Boston as shown by excerpts from the following letter (Woodward to Secretary of State, Dec. 5, 1818, Michigan Pioneer and Historical Collections, XXXVI, 346): "At the late term of the Supreme Court of the Terri- tory of Michigan a suit was pending against Lord Selkirk, brought by a North West trader; and which went off in his lordship's favor, on the ground of the arrest having taken place on Sunday. It would have involved the question of jurisdiction. The location of the alleged trespass may, without essential error, be conceived to be a little north of the spot described, in the pamphlet which I have the honor to enclose, at page twenty-six. A copy of the decision rendered, and of all the documents connected with it, in extenso, has been trans- mnitted to Boston, for publication. The date of the transaction is September the 14 th 1816. M'. Grant, the plaintiff, was seized by armed men, under the direction of Lord Selkirk, and carried within the British limits. The whole of his outfit was taken from him. When brought before Lord Selkirk the latter observed that the commissioners, who, on the part of the king, negociated the treaty by which the boundary was established, were fools. Mr. Grant was, by his order, taken a prisoner to Montreal. I have thought it proper to communicate a brief notice of the facts to the department of State." A brief account of the case appeared in the Detroit Gazette on June 8, 182a. On July 27, 1821, the Gazette quoted from the Boston Palladium as follows: "In the case of Grant vs. the Earl of Selkirk .... Judge WOODWARD pronounced an opinion, in which he displayed the most extensive erudition and diligent research ... ." An account of the case will be found in "The Earl of Selkirk in Michigan Courts." (W. L. Jenks, Michigan History Magazine, XII, 662) As appears from Woodward's opinion, defendant's attorney (Solomon Sibley) relied "on the continuance in operation of the Statute of the North Western Territory." Woodward found it unnecessary "to ap- proach any of the ingenious questions" raised concerning that statute, saying: "It may be 92 SUPREME COURT OF MICHIGAN conceded that the English statute, and that the statute of the North Western Territory, are repealed by the law of the sixteenth of September i81io. . . .; and, yet, the arrest of the Earl of Selkirk, on Sunday, will not remain legitimate at Common Law." The "in- genious questions" were briefed by Sibley as follows: "Grant vs Selkirk Action Trespass Mo to discharge deft Because the arrest was made on Sunday contrary to Statute Law of N. W. T. of 6 Decr 1799 pa. 154. Ordinance of 1787 gave no power to repeal. But nega- tives such a power-(found inconvenient) U. S. L. i. pa. 475. Law of U S. Vol 2. pa. 311; gives a special power of repealing Laws to govr and Judges.-On 7 May 18oo Congress erected the Indiana Govt and applied the ordinance-L U S. Vol 3d 267. the Law of 6 Dec' 1799 went into force in said Terry On 30 of Apl 1802, the State of Ohio was organized L. U. S. 3d Vol page 496. by that Law the district, now Michigan Terry was attachd to the Indiana and on the II of Jany i8o5 (L. U S 3d page 632) the Territory of Michigan was erected--Observations-Upon Genl principles as laid down by writers on the Laws of nations & Civitius-The Laws of a general nature in force in the N. W. T. passed over and were in force in the Indiana subject to be altered or repealed-I Blac. Com. xo8. The Act attaching us to the Indiana did not abrogate the laws in force at the time in this County as part of the N. W. T.-This point has been judicially decided by this Court in the prosecu- tion against Lundi and Muir at the Term of the Court in 1i8o6. The statute contended for was in force and became a law of Indiana on the organization of that Territory-and the people of this Territory, as a part of Indiana were entitled to the privileges guaranteed by it-As having been a part of the N. W. T. and attached to Indiana when the state of Ohio was erected, we were entitled to the privileges of sd statute, and on being erected into a separate Terry we retained it-And being a law in force in the Terry of Michigan, & not passed by the Govr & Judges, no authority exists to repeal it in the present Govt." (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 34, P- 187) A similar argument had been made in a memorial submitted to the governor and judges in 1811. (Transactions, I8o05-814, I, xviii, note 42) Also see U. S. v. Muir, Lundie and Brevoort, cited supra. (Ibid., p. 58) Three other briefs and a copy of the motion to quash are also with the Sibley papers. (Vol. 34, p. 188; Vol. 38, p. 249) Photostats of these papers have been placed in the file. The following papers are among the papers of William Woodbridge (Burton Historical Collection, Vol. iIo): (I) affidavit of James Grant; (2) copy of motion to quash; (3) brief; (4) comment on various Canadian statutes; (5) bill for professional services; (6) letter from McGillivray to Woodbridge; (7) draft of letter commenting on Woodward's opinion. Photostats of these papers have been placed in the file. In September 1818, writs of capias were prepared in two actions of trespass vi et armis: (i) Thomas Douglass, Earl of Selkirk, v. Duncan Cameron and George Campbell; (2) Thomas Douglass, Earl of Selkirk, v. John Haldane and Robert Henry. The writs were signed by Peter Audrain, clerk of the Supreme Court. These cases were never actually commenced. The writs and six other papers relating to the cases are with the Sibley Papers. (Burton Historical Collec- tion, Vol. 36, pp. i--6, 14, 16) Case 582 JOSIAH BELLOWS AND DAVID STONE, SURVIVING PARTNERS OF THE FIRM OF RICHARD H. JONES & CO., versus JOHN W. BURNETT Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1818-21): Journal 2: (I) Leave to file warrant of at- torney *p. 594; (2) recognizance *p. 596; (3) continued *p. 675. Journal 3: (4) Cognovit, judgment *p. 206. CALENDAR OF CASES 93 PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) bail bond; (4) warrant of attorney; (5) declaration; (6) warrant to confess judgment. Office Docket, MS p. 69, c. I. Recorded in Book A, MS pp. 151-55. Case 583 PETER FELIX versus GABRIEL GODFROY Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1818): 7ournal/ 2: (I) Discontinued *p. 595; (2) dis- continued *p. 599" PAPERS IN FILE: (I) Precipe for capias; (2) capias and return. Ofice Docket, MS p. 50, c. 2. Case 584 BENJAMIN WOODWORTH versus JOHN C. POTTER AND BENJAMIN CHITTENDEN, MERCHANTS IN COMPANY TRADING UNDER THE FIRM OF JOHN C. POTTER AND COMPANY Action of trespass on the case (assumpsit) (attachment) JOURNAL ENTRIES (1818-22): fournal 2: (I) Special bail *p. 595; (2) bail discharged, cognovit, judgment *p. 645. 7ournal 3: (3) Rule to show cause against sale of notes *p. 380. PAPERS IN FILE: (I) Capias and return; (2) affidavit for attachment; (3) writ of attachment and return; (4) transcript of recognizance and dis- charge of bail; (5) declaration; (6) bill of costs; (7) writ of fi. fa. and re- turn; (8) precipe for fi. fa.; (9) alias fi. fa. and return. Office Docket, MS p. 56, cases I and 2. Case 585 ROBERT ABBOTT versus BENJAMIN FRANCIS STICKNEY Action of trespass on the case (trover) JOURNAL ENTRIES (1818-22): Journal2: (I) Special bail *p. 596; (2) con- tinued *p. 599; (3) continued *p. 650. Journal 3: (4) Rule to declare *p. 67; (5) continued *p. 157; (6) discontinued *p. 271. 94 SUPREME COURT OF MICHIGAN PAPERS IN FILE: (I) Capias and return, allowance of bail; (2-3) precipes for subpoenas; (4) notice to clerk to enter nonsuit; (5) precipe for fi. fa. Office Docket, MS p. 61, c. 2. Recorded in Book A, MS pp. 331-'34. Note: A precipe for capias is among the papers of Solomon Sibley. (Burton Historical Collection, Public Library, Detroit, Vol. 40, p. 134) Case 586 EZRA YOUNGLOVE versus CHARLES ROULEAU JOURNAL ENTRIES (I18 I): journal 2: (I) Objection to decree of register filed *p. 597" PAPERS IN FILE: [None] Case 587 JOSIAH BELLOWS AND DAVID STONE, SURVIVING PARTNERS OF RICHARD H. JONES, DECEASED, versus JACOB SMITH Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1818-19): 7ournal 2: (i) Continued *p. 599; (2) plea of non assumpsit *p. 693; (3) special plea, demurrer *p. 718; (4) referred *p. 720. fournal3: (5) Award opened and filed *p. 36; (6) judgment *p. 38; (7) payment to referees ordered *p. 38. PAPERS IN FILE: (i) Deposition of Pierre Matura DeParrinto; (2-3) sub- poenas; (4) precipe for subpoena; (5) subpoena; (6) precipe for subpoena; (7) subpoena; (8) affidavit of Shubael Conant; (9) precipe for subpoena; (io) subpoena; (I I) precipe for subpoena; (12-13) subpoenas; (14) draft of agreement to refer; (15) rule of reference; (16) envelope of award; (17) precipe for fi. fa.; (18) precipe for alias fi. fa.; (iv) alias fi. fa. and return; (20) precipe for fi. fa.; (21) bill of costs; (22) statement of account. Office Docket, MS p. 5o, c. 3. Case 588 JAMES McMANUS versus SAMUEL CHOATE JOURNAL ENTRIES (1818): journal 2: (I) Continued *p. 599- PAPERS IN FILE: [Nonel CALENDAR OF CASES 95 Case 589 JOSEPH CICOT, ET AL., versus GABRIEL GODFROY, ADMINISTRATOR OF THE ESTATE OF AGATHA CICOT, DECEASED, ET AL. Bill in equity for .... JOURNAL ENTRIES (1818-24): Journal 2: (1) Continued *p. 599; (2) pend- ency of bill ordered published, rule to answer *p. 633; (3) rule to answer on oath *p. 698. Journal3: (4) Continued *p. 266. Chancery Journal: (5) Continued *p. 53. Journal3: (6) Settled, bill dismissed *p. 496. PAPERS IN FILE: (I) Precipe for subpoena; (2) subpoena and return. Chancery Case 6 of I1820. Case 590 CHARLES VERMET, MARIE VERMET, CHARLES BARON, MAR- GARET VERMET, JEAN BAPTISTE LA JEUNESSE, JOSEPH VERMET, JEAN BAPTISTE VERMET, THERESE VERMET, JOS- EPH ALBERT, DIT PERROTT, JOSETTE VERMET, JEAN BAP- TISTE ROBIDOUX, VITAL VERMET, ALEXIS VERMET, MARIE LOUISE VERMET AND MARIE JEAN VERMET, INFANTS REP- RESENTED BY JOSETTE VERMET, WIDOW AND RELICT OF JOSEPH VERMET, DECEASED, AS THEIR GUARDIAN, AND HEIRS AT LAW OF JOSEPH VERMET, DECEASED, AND JOSETTE VERMET, WIDOW, versus JOHN McDONELL AND ANN McDONELL Bill in equity to enjoin proceedings upon process of forcible detainer JOURNAL ENTRIES (1818-22): Journal 2: (I) Continued *p. 599; (2) rule to answer *p. 616; (3) pendency of bill ordered published, rule to answer *p. 631; (4) rule to answer on oath *p. 696. Journal3: (5) Continued *p. 266; (6) dismissed *p. 293. Chancery journal: (7) Discontinued *p. 53. PAPERS IN FILE: (i) Subpoena for plaintiffs and return; (2) subpoena for defendants and return; (3) writ of injunction. Office Docket, MS p. 57, c. I. (Case 4 of 1820) NVote: Paper 3 is printed herein. (Selected Papers, infra, case 590) 96 SUPREME COURT OF MICHIGAN Case 591 JAMES FULTON versus SAMUEL C. LASHLEY Action of trespass on the case (assumpsit) (attachment) JOURNAL ENTRIES (1818): Journal 2: (I) Discontinued *p. 599" PAPERS IN FILE: (i) Declaration. Office Docket, MS p. 65, cases 2 and 3. Note: The declaration claims an amount different from that shown in the Docket and may not pertain to this case. Case 592 JEAN BAPTISTE CAMPAU versus GABRIEL CHENE Bill in equity for reconveyance of land, etc. JOURNAL ENTRIES (1818-32): Journal 2: (I) Continued *p. 599; (2) rule to answer *p. 616; (3) rule to take testimony *p. 632; (4) case to be en- tered same as case 567 *p. 634; (5) publication ordered, rule to answer *p. 634; (6) bill of revivor and supplement filed *p. 651; (7) appearance *p. 697; (8) rule to show cause against revivor *p. 702; (9) bill revived, rule to answer *p. 710. Chancery Journal: (io) Continued *p. 54. Jour- nalt: (II) Continued MS p.71; (12) continued MS p. 104; (13) continued MS p. 213; (14) continued MS p. 278; (15) motion for revivor MS p. 359; (16) motion for dismissal MS p. 439; (17) dismissed nisi MS p. 497; (18) motion to make dismissal absolute, argued MS p. 498; (19) leave given to file bills of revivor and supplement MS p. 500; (20) death sug- gested MS p. 517. PAPERS IN FILE: (I) Bill of complaint; (2) subpoena and return; (3) sub- poena and return; (4) draft of leave to file bill of revivor; (5) bill of re- vivor and supplement; (6) subpoena; (7) motion for rule to answer, etc.; (8) answer to bill of revivor. Office Docket, MS p. 96, c. 45. (Case 13 of 1820) Note: A precipe for subpoena is with the papers in case 589. Two drafts or copies of an answer are among the Woodbridge Papers. (Burton Historical Collection, Public Library, Detroit, Vol. 114) A photostat of one of them has been placed in the file. CALENDAR OF CASES 97 Case 593 THOMAS CALDWELL versus FRANCIS LASSELLE, ADMINISTRATOR OF THE ESTATE OF JAMES LASSELLE, DECEASED Petition to Isaac Lee, Register, for revocation of letters of administration Appeal from register's decree JOURNAL ENTRIES (1818): Journal 2: (I) Decree *p. 6oi. PAPERS IN FILE: (i) Incomplete transcript of proceedings before register; (2) extract from agreement of parties. Vote: Paper I is printed herein. (Selected Papers, infra, case 593) Case 594 JULIE LASSELLE AND JACQUES LASSELLE, MINORS, BY THOMAS CALDWELL, NEXT FRIEND, versus FRANCIS LASSELLE, GUARDIAN Petition to Isaac Lee, Register, for revocation of letters of guardianship [?] Appeal from register's decree JOURNAL ENTRIES (1818): journal 2: (I) Decree *p. 6oi. PAPERS IN FILE: [None] Vote: See transcript in case 593, supra. Paper 2 of case 593 relates also to this case. Case 595 SAMUEL PARSHALL versus DAVID CAREY AND WILLIAM MORRIS Action of trespass on the case (trover) JOURNAL ENTRIES (1818-19): Journal 2: (I) Rule to declare *p. 602; (2) non pros., judgment *p. 675. PAPERS IN FILE: (I) Precipe for capias; (2) affidavit for bail; (3) precipe for alias capias. Offce Docket, MS p. 63, c. 2. 98 SUPREME COURT OF MICHIGAN Case 596 .... MERIT, ET AL., versus JAMES McCLOSKEY JOURNAL ENTRIES (1818): Journal 2: (I) Continued *p. 602. PAPERS IN FILE: [None] Case 597 ALEXIS LUC RtAUME versus JOSEPH ROLETTE Action of trespass (assault and battery) JOURNAL ENTRIES (1818): Journal 2: (i) Alias ordered *p. 603. PAPERS IN FILE: (1) Precipe for capias. Office Docket, MS p. 48, c. 4. Case 598 STEPHEN MACK AND SHUBAEL CONANT, TRADING UNDER THE FIRM OF MACK & CONANT, versus AUSTIN E. WING Action of replevin Removed from Wayne County Court by habeas corpus and certiorari JOURNAL ENTRIES (1818-22): Journal 2: (I) Motion to quash replevin overruled *p. 603; (2) rule to plead, continued *p. 676. Journal3: (3) Diminution suggested, certiorari ordered *p. 12; (4.) documents ordered delivered *p. 12; (5) settled out of court *p. 209; (6) entry 5 stricken, continued *p. 249; (7) discontinued *p. 328. PAPERS IN FILE: (I) Writ of habeas corpus; (2) draft of writ of certiorari; (3) writ of certiorari; (4) transcript of county court record; (5) precipe for subpoena; (6) stipulation that entry re settlement be stricken. Office Docket, MS p. 121, c. 25. Recorded in Book A, MS pp. 342-52. Note: The county court file (case 255) contains: (i) precipe; (2) replevin bond; (3) writ of replevin; (4) declaration; (5) motion to quash writ. Photostats of three briefs (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 38, pp. 245, 246 and 248) relating to this case or to case 847, infra, have been placed in the file. In the county court defendant moved to quash the writ of replevin and also the return of the coroner thereon "Because the said writ was executed and served, on property at the time in the legal pos- session of the said Austin, Sheriff as aforesaid, and held by him by virtue of a levy thereon, CALENDAR OF CASES 99 under an execution of fieri facias before that time issued by this Court," etc. One of the briefs reads as follows: "Replevin-Goods taken under Exo. not to be replevied Esp' V0l I. pa. 372 Comyns-2x8 Bac. 4- 375 Bul. N. P. 53 Nature of Action-Bac. 4. vol. Letter B. 373 Does not lie for props taken under Exo. 4 Bac. 375 Shff liable to an action d Trespass Brent vs Chapman if he seizes propY of third person 5 Cranch 358." Case 599 JAMES ABBOTT versus ADELAIDE BRUSH, EXECUTRIX OF THE WILL OF ELIJAH BRUSH, DECEASED, AND EDMUND ASKIN BRUSH, CHARLES REUBEN BRUSH, ALFRED BRUSH AND CEMANTHE BRUSH, HEIRS OF ELIJAH BRUSH, DECEASED Bill in equity for specific performance JOURNAL ENTRIES (1818-26): Journal 2: (I) Rule to take testimony *p. 632; (2) case to be entered same as case 567 *p. 634; (3) publication or- dered, rule to answer *p. 634; (4) guardian ad litem appointed, appear- ance *p. 697. Chancery Journal: (5) Rule to answer on oath *p. 8. 7ournal3: (6) Decree *p. 251-a. Chancery Journal: (7) Bill of complaint *p. 20; (8) answer of Adelaide Brush *p. 27; (9) answer of infant heirs *p. 30; (io) replications *p. 33; (ii) bond for conveyance *p. 34; (12) decree *p. 35; (i3) continued *p. 37; (i4.) continued *p. 53. Journal 4: (I5) Continued MS p. 71; (i6) continued MS p. 114. PAPERS IN FILE: (I) Subpoena and return; (2) bill of complaint; (3) answer of Adelaide Brush; (4) answer of minor heirs; (5) replication; (6) repli- cation; (7) precipe for judgment pro confesso; (8) draft of decree; (9) sheriff's bill of fees; (IO) bond for conveyance. Chancery Case 5 of 1820. Case 6oo STEPHEN MACK versus ADELAIDE BRUSH, EXECUTRIX, ETC., OF ELIJAH BRUSH, DECEASED, EDMUND BRUSH, CHARLES BRUSH, ALFRED BRUSH AND CEMANTHE BRUSH, HEIRS OF ELIJAH BRUSH, DECEASED (BANK OF MICHIGAN versus ADELAIDE BRUSH ET AL.) Bill in equity for specific performance JOURNAL ENTRIES (1 818-33): Journal 2: (1) Publication ordered, rule to answer *p. 633; (2) continued *p. 701. Journal3: (3) Continued *p. 293. Chancery Journal: (4) Continued *p. 53. Journal 3: (5) Motion for decree pro confesso *p. 509; (6) publication ordered *p. 512. Journal 4: I00 SUPREME COURT OF MICHIGAN (7) Bill to be taken as confessed nisi MS p. 71; (8) continued MS p. 14; (9) guardian ad litem appointed, publication ordered MS p. I i9; (i0o death suggested, motion for leave to file amended or supplemental bill MS p. 161; (I I) decree that former decree operate as conveyance MS p. 541. PAPERS IN FILE: (I) Answer and disclaimer of Thomas Emerson; (2) de- position of Thomas Emerson; (3) supplemental bill of complaint; (4) affidavit of residence, precipe for subpoena; (5-6) drafts of order for pub- lication and appointing guardian ad litem; (7) certificate of clerk relative to publication of notice; (8) answer and disclaimer of heirs of Stephen Mack; (9) draft and outlines of decree; (io) decree; (iI) transcript of calendar entries; (12) affidavit of non-compliance with decree; (13) draft of decree; (14) copy of deed-governor and judges to Bank of Michigan; (I5) copy of deed-governor and judges to Bank of Michigan; (16) copy of deed-governor and judges to Andrew Dexter, Jr.; (17) copy of deed -Mack and Conant to Phineas Fisk; (18) copy of deed-John Anderson, Marshal, to Elijah Brush; (i9) power of attorney-Phineas Fisk to Thomas Emerson; (20) agreement between Elijah Brush and Joseph Emerson and Thomas Emerson and assignment thereof to Bank of Michigan; (21) copy of opinion of Elijah Brush as attorney general. Chancery Case 8 of 182o0. Note: A precipe for subpoena is with the papers in case 589. Paper 21 is printed herein. (Selected Papers, infra, case 6oo0) Case 6oi STEPHEN MACK AND SHUBAEL CONANT versus JOHN RIDDALL, ALIAS JOHN RIDDALL, JR., JAMES McMANUS, LUCINDA GLASS, JANE GLASS, SAMUEL CHOATE, ADMINISTRATOR OF THE ESTATE OF ROBERT GLASS, DECEASED, AND THOMAS EMERSON Bill in equity for specific performance and to enjoin ejectment proceedings at law JOURNAL ENTRIES (1818-35): journal 2: (I) Case to be entered same as case 567 *p. 634; (2) publication ordered, rule to answer *p. 635; (3) writ of injunction ordered issued, etc. *p. 699. journal 3: (4) Motion for commission to take depositions *p. 177. Chancery Journal: (5) Mo- tion for commission to take deposition *p. 17; (6) commission ordered issued *p. I8; (7) motion to strike judgment pro confesso *p. 19. Journal3: (8) Office judgment stricken, rule to plea, continued *p. 266; (9) rule for CALENDAR OF CASES 101 joinder in plea *p. 293; (io) motion for judgment and to set aside rule to reply *p. 308; (ii) motion to withdraw appearance granted *p. 308. Chancery journa/: (12) Rules to demur or reply, guardian ad litem ap- pointed *p. 41. 7ournal3: (13) Motion to dismiss bill *p. 437. Journal 4: (14) Motion to dismiss bill MS p. 21; (I5) motion for argument, con- tinued MS p. 71; (i6) continued MS p. I 14; (17) death suggested, motion for leave to file amended or supplemental bill MS p. 16o; (i8) continued MS p. 213; (19) motion for substitution as solicitor granted MS p. 275; 20) leave given to file revivor, continued MS p. 278; (21) death suggested, motion for leave to file revivor MS p. 320; (22) leave given to file revivor MS p. 345; (23) guardian ad litem appointed MS p. 379; (24) guardian ad litem appointed MS p. 390; (25) motion to take bill of revivor and sup- plement as confessed MS p. 413; (26) bill taken as confessed, reference to take testimony MS p. 437; (27) rule taking bill as confessed made abso- lute MS p. 439; (28) decree rescinded, leave given to file answer, rule for taking testimony enlarged MS p. 456; (29) rule for taking testimony en- larged MS p.480; (30) rule for taking testimony enlarged MS p. 517; (31) motion for leave to take depositions of defendants MS p. 536. Journals5: (32) Rule for taking testimony enlarged MS p. i i; (33) continued under rule to take testimony MS p. 23; (34) rule for final decree MS p. 67. PAPERS IN FILE: (i) Precipe for subpoena; (2) writ of subpoena; (3) sub- stituted bill of complaint; (4) answer of John Riddall; (5) appearance; 6) answer of John Riddall; (7) precipe for subpoena; (8) deposition of Thomas Emerson; (9) precipe for subpoena; (io) deposition of Oliver Coit; (Ii) precipe for judgment pro confesso; (12) answer of Samuel Choate; (13) answer of Thomas Emerson; (14) replication to answer of Thomas Emerson; (Is) plea of James McManus; (16) replication to answer of Samuel Choate; (17) affidavit of James McManus; (18) com- mission to take deposition and interrogatories to Mrs. Goodman; (19) interrogatories to Mrs. Goodman; (20) deposition of Mrs. Goodman; (21) motion to strike attorney's name from case; (22) motion to take bill as confessed; (23) precipe for subpoena; (24) subpoena; (25) deposition of I. B. Lee and envelope; (26) motion to appoint guardian ad litem; (27) answer of Lucinda Glass; (28) precipe for judgment; (29) motion to dis- miss bill; (30) death suggested, motion for leave to file bill of revivor; (31) draft of order for bill of revivor; (32) writ of subpoena and return; (33) bill of revivor and supplement; (34) precipe for writs of subpoena; (35-36) writs of subpoenas and return; (37) appearance; (38) answer of Mary Ann McManus et al.; (39) answer and disclaimer of Phineas Fisk; (40) answer of Dennis Dort et al.; (41) answer of Honora McManus; (42) stipulation for taking testimony, etc.; (43) replication to answers of John Riddall et al.; (44) answer of Thomas McManus; (45) replication to 102 SUPREME COURT OF MICHIGAN answer of Mary Ann McManus et al.; (46) replication to answer and dis- claimer of Phineas Fisk; (47) replication to answer of Dennis Dort et al.; (48) replication to answer of Honora McManus; (49) replication to answer of Thomas McManus; (so) motion that rule taking bill as confessed be made absolute; (5i) stipulation for final decree; (52) draft of order for decree in accordance with stipulation; (53-54) transcripts of proceedings before register; (55) deed from John Riddall to James McManus; (56) deed from Lucinda Glass to John Riddall; (57) certificate of clerk in reg. ister's office. Office Docket, MS p. io, c. i. (Case 7 of 1820) Note: Paper 53 is indorsed "Appeal" and may not belong with the papers in this case. There is a reference to this appeal in paper 3. A notice of the suit was published in the Detroit Gazette, January 14, 182o. Case 602 STEPHEN MACK versus JOHN RULAND, JOSEPH RULAND, SARAH PARKER, ISAAC RULAND, SUSAN RULAND, ISRAEL RULAND, ELIZA JANE HILL AND LEWIS BOND, ADMINISTRATOR OF THE ESTATE OF ISRAEL RULAND, DECEASED Bill in equity for .... JOURNAL ENTRIES (1818-25): Journal 2: (i) Case to be entered same as case 567 *p. 634; (2) publication ordered, rule to answer *p. 635; (3) rule to appear, publication ordered, rule for subpoena, continued *p. 708. Journal3: (4) Continued *p. 292; (5) dismissed nisi *p. 496. Journal 4: (6) Dismissed MS p. 59. PAPERS IN FILE: [None] Office Docket, MS p. xox, c. 2. (Case 12 of 1820) Case 603 JONATHAN EASTMAN versus HENRY B. BREVOORT Action of trespass on the case (assumpsit) Appeal from Wayne County Court JOURNAL ENTRIES (1819-21): Journal 2: (I) Transcript filed *p. 641; (2) appearance, motion to summon jury granted *p. 668; (3) affidavit filed, continued *p. 689. Journal3: (4) Jury trial, verdict *p. 61; (5) judgment *p. 154. CALENDAR OF CASES x03 P'APERS IN FILE: (i) Transcript of county court record; (2) precipe for subpoena; (3) subpoena; (4) affidavit for continuance; (5) precipe for subpoena; (6) subpoena; (7) affidavit for continuance; (8) verdict; (9) bill of costs; (Io) precipe for execution fi. fa.; (ii) writ of fi. fa. and return; 12) precipe for ca. sa.; (13) promissory note. Ofjice Docket, MS p. 82, c. 20. Recorded in Book A., MS pp. 6-14. Note: The return to the writ of fi. fa. includes a copy of a writ of injunction forbidding its execution. The copy of the writ of injunction is printed herein. (Selected Papers, infra, case 603) The county court file (case 365) contains: (1) precipe; (2) capias and return; J declaration and plea; (4) verdict; (5) appeal bond. Case 604 GEORGE B. LARNED versus WOLCOTT LAWRENCE Action of trespass on the case (assumpsit) Appeal from Monroe County Court JOURNAL ENTRIES (1819): 7ournal 2: (1) Transcript filed *p. 641; (2) appearances *p. 666; (3) continued *p. 685; (4) motion to set aside con- tinuance granted *p. 693; (5) jury trial, verdict, judgment *p. 716. PAPERs IN FILE: (I) Appeal bond; (2) transcript of county court record; 3) declaration in county court; (4) plea of non assumpsit in county court; (5) panel of jurors; (6) verdict; (7) promissory note; (8) copy of promissory note; (9) memo. of agreement. Office Docket, MS p. 83, c. 21. Case 605 JOHN ANDERSON versus JOSEPH LORANGER Action of trespass on the case (assumpsit) Appeal from Monroe County Court JOURNAL ENTRIES (1819): 7ournal 2: (I) Transcript filed *p. 641; (2) appearances, continued *p. 685; (3) motion to set aside continuance granted *p. 692; (4) cognovit, judgment, execution stayed *p. 702. PAPERS IN FILE: [None] Office Docket, MS p. 83, c. 22. 1o4 SUPREME COURT OF MICHIGAN Case 606 JOHN McDONELL versus JOSEPH JOBIN Action of debt on a writing obligatory Appeal from Monroe County Court JOURNAL ENTRIES (1819): Journal 2: (1) Transcript filed *p. 642; (2) appearances, rule to plead *p. 685; (3) cognovit, judgment, execution stayed *p. 694. PAPERS IN FILE: (I) Appeal bond; (2) transcript of county court record; (3) declaration in county court; (4) plea of nil debet; (5) bill of costs; (6) precipe for execution fi. fa.; (7) writ of fi. fa.; (8) precipe for pluries fi. fa.; (9) pluries fi. fa. and return; (io) precipe for second pluries fi. fa.; (ii) memo. of costs; (12) money bond signed by Joseph Jobin; (13) receipt signed by J. McDonell; (14) letter from McDonell to William Woodbridge. Office Docket, MS p. 84, c. 23. Note: The judgment in this case was revived in I828. (Journal 4, MS p. 254) Case 607 SILAS WILLIAMS versus HIRAM PEIRCE AND WOLCOTT LAWRENCE Action of trespass on the case (assumpsit) Appeal from Monroe County Court JOURNAL ENTRIES (1819): Journal 2: (I) Transcript filed *p. 642; (2) appearances *p. 686; (3) default judgment *p. 717. PAPERS IN FILE: (I) Appeal bond; (2) transcript of county court record; (3) declaration in county court; (4) plea of non assumpsit in county court; (5) bill of costs; (6) precipe for execution; (7) promissory note. Offce Docket, MS p. 84, c. 24. Case 608 WILLIAM P. RATHBONE versus HIRAM PEIRCE AND WOLCOTT LAWRENCE Action of trespass on the case (assumpsit) Appeal from Monroe County Court JOURNAL ENTRIES (1819-20): Journal 2: (I) Transcript filed *p. 642; (2) appearances *p. 686; (3) declaration filed, rule to plead, plea, similiter *p. 692; (4) jury trial, verdict *p. 713; (5) motion made for new trial CALENDAR OF CASES I05 *p. 716; (6) new trial granted, leave given to amend *p. 727. Journal3: 7) Cognovit, judgment *p. 64. 1)APERS IN FILE: (1) Appeal bond; (2) transcript of county court record; 3) copy of declaration in county court; (4) copy of plea, demurrer and due bill in county court; (5) certificate of clerk of county court; (6) ver- dict; (7) agreement for entry of judgment; (8) sheriff's bill of fees; (9) due bill; (io) statement of accounts and receipt. office Docket, MS p. 85, c. 25. Vote: The reasons assigned for a new trial and the court's reasons for granting a new trial are set forth in Doty's Reports, infra, *pp. 78-79. Case 609 ABRAHAM WENDELL AND JOSIAH WENDELL versus HIRAM PEIRCE AND WOLCOTT LAWRENCE Action of trespass on the case (assumpsit) Appeal from Monroe County Court JOURNAL ENTRIES (1819): journal 2: (I) Transcript filed *p. 642; (2) mo- tion for judgment *p. 668; (3) appearances *p. 686; (4) default judgment p. 717. PAPERS IN FILE: (I) Appeal bond; (2) transcript of county court records; (3) declaration in county court; (4) plea of non assumpsit in county court; (5) verdict in county court; (6) precipe for subpoena; (7) bill of costs; (8) precipe for execution; (9) draft of certificate of judgment; (io) promis- sory note. Offce Docket, MS p. 85, c. 26. Case 61io STEPHEN DOWNING, SR., versus HIRAM PEIRCE AND RANDALL S. RICE Action of trespass on the case (assumpsit) before Samuel Choate, 7. P. Appeal to Monroe County Court Removed from county court by habeas corpus and certiorari JOURNAL ENTRIES (1819-21): Journal 2: (I) Writs and transcript filed *p. 642; (2) appearance *p. 718; (3) rule to declare, continued *p. 719. 7ournal3: (4) Continued *p. 87; (5) default judgment *p. 231. PAPERS IN FILE: (I) Bill of costs; (2) writ of fi. fa. and return; (3) writ of ca. sa. and receipts. Ofce Docket, MS p. 88, c. 27. Recorded in Book A, MS pp. 213-17. I06 SUPREME COURT OF MICHIGAN Case 6ii STEPHEN DOWNING, SR., versus HUBERT LACROIX Action of trespass on the case (assumpsit) before Samuel Choate, 7. P. Appeal to Monroe County Court Removed from county court by habeas corpus and certiorari JOURNAL ENTRIES (1819-24): Journalz2: (I) Writs and record filed *p. 642; (2) appearance, rule to declare, continued *p. 720. Journal3: (3) Con- tinued *p. 87; (4) default judgment *p. 232; (5) motion to set aside judg- ment *p. 399; (6) motion for rule to show cause against setting aside supersedeas *p. 487; (7) supersedeas set aside *p. 500; (8) motion to set aside judgment overruled *p. 502. PAPERS IN FILE: (I) Writ of habeas corpus; (2) writ of certiorari; (3) tran- script of J. P. record; (4) precipe for execution fi. fa.; (5) writ of fi. fa. and return; (6) bill of costs; (7) precipe for ca. sa.; (8) writ of ca. sa. and return; (9) affidavit for supersedeas, allowance; (o10) writ of supersedeas; (I I) motion for rule to show cause against setting aside supersedeas; (12) precipe for execution ca. sa. Offce Docket, MS p. 88, c. 28. (Case 31 of 1820) Recorded in Book iA, MS pp. 218-22. Note: Papers 9, 1o and 1 are printed herein. (Selected Papers, infra, case 611) Memo- randa of Judge Sibley's opinion on the motion to set aside the writ of supersedeas and on the motion to set aside the judgment have been found among his papers. (Burton Historical Collection, Public Library, Detroit, Vol. 49, p. 226) These memo. opinions read as follows: "Downing vs Lacroix On Supersedeas-Mo to set aside writ My opinion is that the writ ought to be set aside-The only province and Operation of the writ, giving it its utmost operation and latitude is to suspend the executive officer, in carrying the Jugt of this Court in to Legal effect This suspension, can have no further operation, and is exhausted as soon as the Court are in Term-and ought to be set aside as of Course-If any defect exists in the Judgment, the Court can sustain a Motion for opening the Judgt--or by writ of Error Coram nobis-" "Downing vs LaCroix Mo to Set aside the Jugt for irregularity- Judgment entd in I820-i Pltff did not declare as ruled-2. Deft not bound to appear until decl filed 3 No pleadings before the Court on which to enter Jugt 4 If Deft was in default the Court should have removed Case to Monroe County by procedendo-Motion overruled-Because the Court Cannot on motion enter into the merits of a Jugt regularly entered at a former Term of the Court, when the parties were present or had an opportunity to have been present, and neglected their rights-Where the defendant had no day in Court, in such a case the Court may make an exception and open the Judgt if irregularly entered-" CALENDAR OF CASES 107 Case 612 STEPHEN DOWNING, SR., versus JEAN BAPTISTE CICOTT Action of trespass on the case (assumpsit) before Samuel Choate, J. P. Appeal to Monroe County Court Removed from county court by habeas corpus and certiorari JOURNAL ENTRIES (1819-24): Journal 2: (i) Transcript of record filed *p. 643; (2) appearance, rule to declare, continued *p. 720. Journal 3: Continued *p. 87; (4) default judgment *p. 232; (5) motion to set aside judgment *p. 400; (6) motion to show cause against setting aside super- sedeas *p. 487; (7) supersedeas set aside *p. 500; (8) motion to set aside judgment overruled *p. 503. PAPERS IN FILE: (I) Precipe for execution fi. fa.; (2) bill of costs; (3) writ of fi. fa. and return; (4) writ of ca. sa.; (5) affidavit for supersedeas; (6) writ of supersedeas; (7) motion to show cause against setting aside super- sedeas; (8) precipe for execution ca. sa.; (9) writ of ca. sa. and return. Office Docket, MS p. 88, c. 29. (Case 32 of 1820) Recorded in Book A, MS pp. 223-27. NVote: See memo. opinions in case 6I1, supra. Case 613 HENRY B. BREVOORT versus JONATHAN EASTMAN Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus and certiorari JOURNAL ENTRIES (1819): Journal2: (I) Transcript of record filed *p. 643; (2) appearances *p. 667; (3) appearance, motion to quash writs of habeas corpus and certiorari granted, reasons, procedendo ordered *p. 686. PAPERS IN FILE: [None] OfDice Docket, MS p. 90, c. 34. Note: The county court file (case 364) contains: (i) precipe for process; (2) capias and return; (3) declaration and demand for bill of particulars; (4) recognizance; (5) writ of habeas corpus; (6) writ of certiorari; (7) transcript filed in Supreme Court; (8) writ of procedendo to county court; (9) writ of procedendo to sheriff. See case 756, infra. io8 SUPREME COURT OF MICHIGAN Case 614 JOHN G. WATSON, ADMINISTRATOR, WITH WILL ANNEXED, OF ROBERT GOUIE, DECEASED, versus BENJAMIN STEAD Bill in equity to foreclose a mortgage JOURNAL ENTRIES (1819-23): 7ournal2: (i) Bill of complaint filed *p. 643; (2) rule to answer on oath *p. 701. Chancery journal: (3) Default, re- ferred *p. I1; (4) report filed, exceptions, decree *p. 13; (5) proceedings confirmed, decree *p. 43. Journal 3: (6) Motion for rule on master to bring proceeds *p. 438. PAPERS IN FILE: (i) Precipe for subpoena; (2) subpoena and return; (3) bill of complaint; (4) affidavit of service of subpoena; (5-6) drafts of order that bill be taken as confessed; (7) draft of order of reference; (8) master's report on amount due; (9-IO) drafts of order confirming master's report; (11-13) drafts of decree; (14) sheriff's bill of fees; (15) receipt for costs; (16) receipt for fee; (17) master's report of amount due; (18) master's re- port of sale; (19) receipt from treasurer of Detroit fund; (20) receipt; (2i) deed of mortgage; (22) money bond; (23) copies of notes to treasurer of Detroit fund; (24) transfer and assignment of mortgaged premises, etc. Office Docket, MS p. 79, c. 14. (Case 9 of 1820) Note: A precipe for notice to defendant's administrator is with the papers in case 832, infra. A notice of sale was published in the Detroit Gazette on November 29, 1822. Case 615 UNITED STATES versus OLIVER W. MILLER Indictment for assault and battery JOURNAL ENTRIES (1819-20): journal2: (I) Indictment presented, process ordered *p. 644; (2) plea, issue *p. 644; (3) jury trial, verdict *p. 647; (4) judgment *p. 726. Journal3: (5) Jury fees ordered paid *p. 91. PAPERS IN FILE: (I) Indictment; (2) warrant of arrest; (3) precipe for sub- poena; (4) subpoena; (5) transcript of records of Thomas Rowland, J. P.; (6) precipe for subpoena; (7-8) subpoenas; (9) precipe for subpoena; (io-i i) subpoenas; (12) treasurer's receipt for fine. Office Docket, MS p. 93, c. 40. Note: The person assaulted was Torrence Smith. CALENDAR OF CASES lo9 Case 616 CONRAD TEN EYCK versus HENRY BERTHELET Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1819-23): Journal 2: (i) Special bail *p. 645. Jour- nal 3: (2) Continued *p. 67; (3) referred *p. 191; (4) rule of reference extended *p. 285; (5) continued *p. 333; (6) rule extending reference rescinded, referred *p. 380; (7) motion for rule to show cause against award *p. 444; (8) judgment *p. 454. PAPERS IN FILE: (I) Precipe for process; (2) capias and return; (3) declara- tion; (4) plea of non assumpsit; (5) rule of reference; (6) award of referees; (7) precipe for execution fi. fa.; (8) writ of fi. fa. and return; (9) draft of alias fi. fa.; (io) precipe for ca. sa.; (II) writ of ca. sa. and return; (12) precipe for levari facias; (13) writ of levari facias and return. Office Docket, MS p. 89, c. 32. Recorded in Book B, MS pp. 212-17. Note: The first writ of fi. fa. was issued August i0, 1824 to the sheriff of Wayne County. The sheriff levied on certain property which was taken from him on writs of replevin issued by the County Court of Wayne County. The draft of alias fi. fa. was dated Sept. 15, I825. It was neither signed nor sealed, and was not executed. The writ of ca. sa. was issued on April 4, 1826 and was directed to the sheriff of Monroe County. The defendant was arrested on this writ and committed to jail in Monroe County. He thereupon applied to one of the judges of the Supreme Court for a writ of supersedeas. Reasons assigned, briefs, and an opinion in the handwriting of Judge Sibley are among his papers. (Burton Historical Collection, Public Library, Detroit, Vol. 34, PP. 84, 85, 88 and 89) The opinion will be printed in a later publication. Case 617 UNITED STATES versus THOMAS WATERS Indictment for larceny JOURNAL ENTRIES (1819): Journal 2: (I) Indictment presented *p. 645; (2) indictment, plea, jury trial, disagreement, juror withdrawn *p. 648; (3) motion for remand to jail overruled *p. 650; (4) motion for security overruled, defendant discharged *p. 65o. PAPERS IN FILE: [None] Office Docket, MS p. 94, c. 41. 110 SUPREME COURT OF MICHIGIAN Case 6i8 UNITED STATES versus LOUIS DEVOTION Indictment for altering a written instrument JOURNAL ENTRIES (1819-22): Journal2: (I) Indictment presented *p. 648. Journal3: (2) Nolle prosequi *p. 324. PAPERS IN FILE: (None] Note: A photostat of a certified copy of an indictment filed in the Supreme Court Sept. 22, 1819 (Woodbridge Papers, Burton Historical Collection, Public Library, Detroit, Vol. 113) has been placed in the file. See cases 619 and 625, infra. Case 619 UNITED STATES versus LOUIS DEVOTION Indictment for altering a written instrument JOURNAL ENTRIES (1819-22): 7ournal2: (1) Indictment presented *p. 648. Journal3: (2) Nolle prosequi *p. 324. PAPERS IN FILE: [None] Note: A photostat of a certified copy of an indictment filed in the Supreme Court Sept. 22, 1819 (Woodbridge Papers, Burton Historical Collection, Public Library, Detroit, Vol. 113) has been placed in the file. See cases 618 and 625. Case 620 IN THE MATTER OF JAMES SHEPHERD, A BLACK MAN JOURNAL ENTRIES (1819): Journal 2: (i) Prisoner discharged *p. 65i. PAPERS IN FILE: [None] Case 62 1 IN THE MATTER OF ARNOLD PHILLIPS Habeas corpus ad subjiciendum JOURNAL ENTRIES (1819): 7ournal 2: (i) Rule for writ *p. 652; (2) peti- tioner discharged *p. 658. PAPERS IN FILE: [None] Ofice Docket, MS p. oo, c. 2. CALENDAR OF CASES III Case 622 IN THE MATTER OF JOHN CARPENTER, ALIAS JOHN TOLLY Commitment on suspicion of larceny JOURNAL ENTRIES (1819): Journal 2: (I) Prisoner discharged *p. 652. I'APERs IN FILE: [None] Case 623 IN THE MATTER OF SAMUEL TILCOT Commitment on charge of larceny JOURNAL ENTRIES (1819): Journal 2: (1) Prisoner remanded *p. 657. PAPERS IN FILE: [None] Note: A transcript from the docket of the committing magistrate is among the papers of the Wayne County Court. (Miscl. file 28) Case 624 IN THE MATTER OF CHARLES REID Habeas corpus ad subjiciendum JOURNAL ENTRIES (1819): Journal 2: (1) Rule for writ *p. 658; (2) peti- tioner discharged, reason *p. 659. PAPERS IN FILE: (i) Petition for habeas corpus; (2) petition and affidavits; (3) writ of habeas corpus and return; (4) extract from parish register. Office Docket, MS p. Ioo, c. i. Note: The petitioner alleged, and offered evidence to prove, that he was under the age of twenty-one and had enlisted in the U. S. Army "without the consent of his Parent or guardian." This absence of consent is not mentioned in the decision, but was, no doubt, a basis for the court's ruling. See decision by Judge Woodward in the matter of Andrew Robb, Transactions, i8os-r84, II, 425. Case 625 UNITED STATES versus LOUIS DEVOTION Indictment for altering written instruments Removed from Wayne County Court by habeas corpus and certiorari JOURNAL ENTRIES (1819-22): Journal 2: (I) Recognizance called, motion for continuance *p. 658; (2) affidavit filed, continued, witnesses discharged II2 SUPREME COURT OF MICHIGAN *p. 700oo; (3) recognizance of witness *p. 701; (4) mileage and attendance of witness proved *p. 701. Journal 3: (5) Motion to quash indictment *p. 6o; (6) case assigned *p. 82; (7) mileage and attendance of witness proved *p. 2x17-h; (8) nolle prosequi *p. 324. PAPERS IN FILE: (I) Precipe for habeas corpus and certiorari; (2) transcript of county court record annexed to writs of habeas corpus and certiorari; (3) recognizance to appear in Supreme Court; (4) affidavit for continu- ance; (5) motion to quash indictment; (6-8) fee bills. Office Docket, MS p. 94, c. 42. Note: Copies of the indictments and the motion to quash are printed herein. (Selected Papers, infra, case 625) By an act adopted on Nov. 8, 1821, provision was made for the payment of $i 12.25 to Samuel Hull "for travelling fees and attendance in the cases of the United States against Louis Devotion on two indictments . . . ." (Laws of the Territory of Michigan, I, 245) Files of the county court (cases 398 and 401) contain the two indictments and a capias. Case 626 JAMES FULTON versus SAMUEL C. LASHLEY Trespass on the case (assumpsit) (attachment) JOURNAL ENTRIES (1819-21): Journal 2: (I) Rule to bring body *p. 666. Journal 3: (2) Non pros., judgment *p. 160; (3) discontinued *p. 221. PAPERS IN FILE: (I) Precipe for process, affidavit for attachment; (2) capias and return; (3) writ of attachment and return; (4) declaration. Office Docket, MS p. 70, cases I and [2]. Recorded in Book A, MS pp. 172-76. Case 627 OLIVER W. MILLER versus ELIJAH WARNER Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1819-21): Journal a: (I) Alias ordered, continued *p. 666. Journal3: (2) Rule to bring body *p. 63; (3) rule to bring body *p. 87; (4) rule to enter special bail *p. 209; (5) rule for default judgment *p. 220; (6) rule on clerk to assess damages, judgment *p. 241. PAPERS IN FILE: (1-2) Precipes for capias; (3) capias and return; (4) bail bond; (5) declaration; (6) precipe to tax attorney's fees; (7) promissory note and agreement. Office Docket, MS p. 75, c. 8; p. 131, c. 45. Recorded in Book A.4, MS pp. 260-65. CALENDAR OF CASES I 13 Case 628 JOHN CONNELLY versus MICHAEL DOUSMAN Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1819-25): 7ournal 2: (I) Rule to bring body *p. 666; (2) special bail *p. 667. Journal3: (3) Rule to plead, appearance *p. i58; (4) referred, continued *p. i86; (5) continuance rescinded, continued *p. 221; (6) death of plaintiff suggested *p. 271; (7) continued *p. 328; (8) continued *p. 390. Journal 4: (9) Abated MS p. 6. PAPERS IN FILE: (r) Precipe for process; (2) capias and return; (3) decla- ration; (4) rule for bill of particulars; (5) bill of particulars; (6) plea of non assumpsit; (7) statement of account. Ofice Docket, MS p. 77, c. rII. (Case 23 of 1820) Case 629 CHARLES JAMES LANMAN versus MARY ANN LANMAN Petition for divorce JOURNAL ENTRIES (1819): 7ournal 2: (I) Discontinued, judgment *p. 667. PAPERS IN FILE: [None] Office Docket, MS p. 95, c. 43. Case 630o PHILO L. MILLS AND BENJAMIN DEFOREST versus ZEPHANIAH W. BUNCE Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1819-20): Journal 2: (I) Rule to bring body *p. 667; (2) exception to special bail, justification, recognizance *p. 746; (3) rule to plead, continued *p. 746. Journal3: (4) Cognovit, judgment *p. 8o. PAPERS IN FILE: [None] Office Docket, MS p. 72, c. 4. Case 63 1 GEORGE McDOUGALL versus FRANCIS LASSELLE Action of covenant JOURNAL ENTRIES (1819-21): Journal2: (I) Special bail *p. 669; (2) decla- ration filed, rule to plead *p. 747. Journal 3: (3) Referred *p. 75; (4) discontinued, judgment *p. 247. 114 SUPREME COURT OF MICHIGAN PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) declara- tion; (4) prayer for oyer; (5) oyer; (6-7) precipes for subpoenas; (8) sub. poena; (9) general demurrer; (io) agreement to refer; (iI) draft of rule of reference; (12) transcript of rule of reference, notice of meeting; (13) precipe for subpoena; (14) report of referees. Ofice Docket, MS p. 72, c. 3. Recorded in Book A, MS pp. 274-83. Note: It was agreed that the referees should make their report to the County Court of Wayne County. With the papers is a writ of fi. fa. issued by the county court in 1822. Paper 4 is printed herein. (Selected Papers, infra, case 63I) Case 632 JAMES JACKSON EX DEM. ROBERT ABBOTT AND JAMES ABBOTT versus JOHN STILES, JEAN BAPTISTE RIVARD AND JOSEPH CHOVIN Action of ejectment JOURNAL ENTRIES (1819): Journal 2: (I) Leave to amend notice denied, tenants in possession ruled to show cause, etc. *p. 67o; (2) motion that rule be made absolute overruled *p. 689; (3) motion that notice be deemed sufficient overruled *p. 725; (4.) declaration filed, motion for rule on ten- ants to appear and to enter into consent rule *p. 747. Journal 3: (5) Motion overruled *p. 42. PAPERS IN FILE: [None] Office Docket, MS p. 82, c. 19. Note: Two copies of the declaration and an affidavit of service of narr. and notice are with the papers of William Woodbridge. (Burton Historical Collection, Public Library, Detroit, Vol. 112) A photostat of the last named paper has been placed in the file. Case 633 STEPHEN MACK, MICHAEL DOUSMAN AND SHUBAEL CONANT versus SETH GROSVENOR, STEPHEN K. GROSVENOR AND REU- BEN B. HEACOCK, MERCHANTS IN COMPANY TRADING UNDER THE FIRM OF GROSVENOR & HEACOCK Action of trespass on the case (assumpsit) (attachment) JOURNAL ENTRIES (1819-21): Journal2: (I) Continued*p. 676. Journal3: (2) Settled *p. 161. PAPERS IN FILE: (I) Affidavit and precipe for attachment; (2) capias; (3) writ of attachment and return; (4) sheriff's fee bill. Office Docket, MS p. 47, c. 3; p. 48, c. I. CALENDAIIR OF CASES I 5 Case 634 JOSIAH BELLOWS AND DAVID STONE, SURVIVING PARTNERS OF RICHARD H. JONES & CO., versus HENRY BERTHELET Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1819-22): journal 2: (I) Continued *p. 676. Jour- nal 3: (2) Rule to file bill of particulars *p. 70; (3) plea filed *p. 85; (4) referred *p. 209; (5) reference set aside, transferred to issue docket *p. 300; (6) jury impaneled *p. 311; (7) witnesses sworn *p. 311; (8) con- stable sworn to attend jury, verdict *p. 311I; (9) rule for judgment *p. 328. PAPERS IN FILE: (I) Capias and return; (2) declaration; (3) plea of non assumpsit; (4) precipe for subpoena; (5-6) subpoenas; (7) bill of partic- ulars; (8) panel of jurors; (9) verdict; (io) precipe for execution fi. fa.; (II) writ of fi. fa. and return; (12) precipe for scire facias; (13) writ of scire facias; (14-16) statements of accounts; (17-18) receipts. Office Docket, MS p. 50, c. 4. Recorded in Book A, MS pp. 353-61. Case 635 GEORGE BROWN AND JOHN HAMILL versus BERIAH CLELAND Action of trespass on the case (assumpsit) (attachment) JOURNAL ENTRIES (1819): Journal 2: (I) Discontinued, judgment *p. 676. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) affidavit for attachment; (4) attachment bond; (5) writ of attachment and return. Office Docket, MS p. 44, cases 2 and 3. Case 636 JAMES FULTON versus HENRY HUDSON Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1819-22): journal 2: (I) Continued *p. 676. Jour- nal3: (2) Continued *p. 157; (3) discontinued *p. 274. PAPERS IN FILE: (i) Precipe for capias; (2) capias and return; (3) sworn account; (4) declaration; (5) plea in abatement; (6) precipe for execution fi. fa.; (7) writ of fi. fa. for costs. Ofice Docket, MS p. 53, c. 4. Recorded in Book A, MS pp. 335-441. Note: The plea in abatement set up a variance between the declaration and the writ, the amount of damages in the one being $3oo000 and in the other $2000. SUPREME COURT OF MICHIGAN Case 637 MICHAEL DOUSMAN versus BENJAMIN W. HOPKINS, WILLIAM H. PUTHUFF, JOHN HAMILL AND GEORGE BROWN Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1819-22): journal 2: (I) Continued *p. 676. 7our- nal3: (2) Continued *p. 157; (3) discontinued *p. 271. PAPERS IN FILE: (I) Precipe for process; (2) capias and return; (3) sheriff's fee bill. Office Docket, MS p. 44, c. 5; p. 58, c. I. Case 638 RUFUS SETH REED AND DEGARMO JONES versus JOHN C. POTTER AND BENJAMIN CHITTENDEN Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1819): Journal 2: (I) Discontinued, judgment *p. 677. PAPERS IN FILE: [None] Office Docket, MS p. 63, c. 3. Case 639 SAMUEL S. PHELPS versus LEWIS ROUSE Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1819-24): Journal 2: (I) Rule to declare, continued *p. 677. Journal3: (2) Leave to withdraw plea denied *p. 209; (3) mo- tion for continuance granted *p. 217-f; (4.) motion for leave to amend and for rule to plead *p. 217-h; (5) leave to take bill of particulars from files *p. 217-h; (6) mileage and attendance of witness proved *p. 217-i; (7) commissions to take depositions allowed, etc. *p. 242; (8) continued *P" 338; (9) jury impaneled *p. 393; (Io) witnesses sworn *p. 393; (Ii) juror sworn as a witness *p. 394; (12) deposition offered in evidence *p. 394; (13) deposition offered, objection sustained *p. 394; (14) evidence heard, verdict *p. 398; (15) motion for new trial *p. 398; (16) motion for judgment *p. 486; (17) rule for judgment *p. 507. PAPERS IN FILE: (I) Capias, deputation and return; (2) subpoena; (3-4) commissions to take depositions; (5) affidavit for continuance; (6) afl- CALENDAR OF CASES xx7 davit in opposition to continuance; (7) affidavit of J. W. Johnson; (8) affidavit of J. W. Ransom; (9-11) subpoenas; (12) draft of commission to take deposition; (i3) bill of particulars; (14) declaration; (15) plea of non assumpsit and notice of set off; (16) precipe for subpoena; (17) sub- poena; (18) deposition of Harry Finney; (i9) precipe for subpoena; (20) subpoena; (21) deposition of Rix Robinson; (22) precipe for subpoena; 23-24) subpoenas; (25) verdict; (26) precipe for execution fi. fa.; (27) writ of fi. fa.; (28) sheriff's fee bill; (29) writ of fi. fa. and return; (30) statement of accounts; (31) statement of accounts, interrogatories. Office Docket, MS p. 64, c. 2. (Case 24 of 1820) Recorded in Book B, MS pp. 308-13• Note: Paper x5 is printed herein. (Selected Papers, infra, case 639) The second writ of ti. fa. was issued on May x, 1826 and was directed to the sheriff of Brown County. The sheriff made the following return: "The undersigned Sheriff of the County of Brown to return this writ was this day delivered declines Serving the Same unless he is indenfied by the party and Sheweth to the Court for reason that after the act of Congriss to provide or the appointment of an addistional Juge for the Michigan Territory and for other pur- poses approved on the 30th day of Jany 1823 took effect the Supreme Court ceased to have original Jurisdiction in the said County and he prays the oppinion of the Court whether the said writ has not issued inadvizedly The undersignd also prays the opinion of the court whether the Said Execution Should not have been issued within one year after the day on which said Judgment was rendered or previous the term of the said court in the year I825 signed] Geo Johnston Sheriff of Brown County Green Bay Sept 5th I826." Case 640 HENRY B. BREVOORT versus LAURENT DUROCHER Action of trespass on the case (trover) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1819-26): ournal 2: (i) Continued *p. 677. Jour- nal3: (2) Continued *p. 73; (3) continued *p. 328; (4) settled *p. 386; (5) continued *p. 439; (6) continued *p. 487; (7) continued *p. 500. journal 4: (8) Continued MS p. 13; (9) stricken from docket MS p. 94. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus; (3) transcript of county court record; (4-5) precipes for subpoenas; (6) subpoena. Of ce Docket, MS. p. 76, c. 10. (Case 25 of 1820) Note: The county court file (case 142) contains: (1) affidavit; (2) capias and return; ) declaration and plea; (4) subpoena; (5) affidavit; (6) subpoena; (7) precipe for com- mission to take depositions; (8) commission to take depositions; (9) deposition; (Io) com- mission to take deposition; (II) deposition; (12) precipe for subpoena; (13) subpoena; (14) precipe for subpoena; (IS) receipt for deposition. I18 SUPREME COURT OF MICHIGAN Case 641 OLIVER W. MILLER, ROBERT SMART AND CONRAD TEN EYCK, ASSIGNEES OF HENRY HUDSON, versus AUSTIN E. WING Action of debt on a bond JOURNAL ENTRIES (1819-24): Journal 2: (I) Rule to declare, continued *p. 677; (2) special bail *p. 727. 7ournal3: (3) Motion for rule to plead overruled *p. 208; (4) leave to file plea *p. 230; (5) motion for leave to amend plea *p. 272; (6) motion for stay until equity suit heard overruled *p. 404; (7) jury impaneled *p. 411I; (8) witnesses sworn *p. 412; (9) mo- tion to produce deeds granted *p. 414; (Io) verdict *p. 415; (11) attend- ance of witness proved *p. 415; (12) leave granted to file motion for new trial, motion withdrawn, rule for judgment nisi *p. 487; (13) rule for judgment, motion to increase damages overruled *p. 511. PAPERS IN FILE: (I) Agreement to enter amicable suit; (2) declaration; (3) precipe for office judgment; (4) notice of demand for oyer, copy of bond; (5) plea of nil debet and notice of defenses; (6) copy of assignment of bond; (7-8) precipes for subpoenas; (9) subpoena; (10) verdict; (Ii reasons in arrest of judgment; (12) precipe for execution fi. fa.; (I3) writ of fi. fa. and return; (14) precipe for alias fi. fa.; (15) alias fi. fa.; (i6) precipe for alias fi. fa.; (17) alias fi. fa. and return; (18) receipt for alias fi. fa.; (19) precipe for execution; (20) motion to set aside execution; (21) transcript of judgment record. Office Docket, MS p. 98, c. 49. (Case 26 of 1820) Recorded in Book B, MS pp. 314-18. Note: Papers 1, 4, 5, 6 and ii are printed herein. (Selected Papers, infra, case 641) The defendant alleged that the plaintiffs were "proceeding against him both at Law and in Equity for the same matters." (Case 906, infra, entry 2) Also see case 1109. A pluries fi. fa. is with the papers in an equity case brought by Wing against Hudson in 1832. The verdict was delivered Sept. 25, 1823 and was for $500ooo to be discharged by the payment ot $2,527.92 with one cent damages. September 25, 1824 the court ordered that judgment be entered on the verdict, nisi. After overruling a motion to increase the damages, the court ordered that judgment be entered on the verdict. Judgment was entered for the amount of the verdict and $13.94Y4 costs. From memoranda found among the papers of Judge Sibley (Burton Historical Collection, Public Library, Detroit, Vol. 49, pp. 227 and 236), it appears that the plaintiffs contended that they were entitled to interest from the time the verdict was rendered until the judgment was entered. This, apparently, was the ground of the motion to increase the damages. Among Judge Sibley's notes on the case is a memo. opinion which reads as follows: "Opinion The Comn law gives no interest-No statute Law existed in the Teri at the time of contract made-The Contract makes no mention of interest-The case being on a Bond is not included within the Lex Mercatoria. CALENDAR OF CASES 11 9 Case 642 DAVID C. McKINSTRY versus WILLIAM H. GARDNER Action of trespass on the case (assumpsit) (attachment) Appeal from Wayne County Court JOURNAL ENTRIES (1819-21): 7ournal/ 2: (I) Transcript filed, motion for judgment *p. 679; (2) affidavit filed, motion for continuance granted *p. 693. Journal3: (3) Leave to amend plea, rule to plead *p. 61; (4) jurors called, eleven answered *p. 72; (5) jury trial, verdict *p. 73-a; 6) notice of motion in arrest given *p. 74; (7) witness fees ordered paid 'p. 74; (8) juror excused *p. 75; (9) witness fees ordered paid *p. 77; io) witness fees ordered paid *p. 78; (11) judgment *p. 164. PAPERS IN FILE: (I) Transcript of county court records; (2) affidavit for continuance; (3) precipe for subpoena; (4) subpoena; (5) precipe for sub- poena; (6) subpoena; (7) plea of non assumpsit and notice of set off; (8) venire facias directed to coroner; (9) return to venire; (io) verdict; (II) notice of motion for new trial; (12-13) promissory notes. ffice Docket, MS p. 98, c. 26. Recorded in Book A, MS pp. 43-54. .Vote: The reasons assigned for a new trial were: "1ist. That the Jury were summoned Iv the Coroner whereas they should have been summoned by one of the sheriffs of said Territory 2nd That incompetent testimony was admitted to go to the Jury 3d That the rmer clerk of the said plff was a material witness in said case & that his attendance could ot be procured at the trial by said deft. he (said witness having been sent off, as the Deft ieves out of the Territory so that he could not be subpoenaed." The county court file case 238) contains ten papers. Case 643 FRANgOIS LABADY versus GABRIEL RICHARD Action of trespass on the case (slander) JOURNAL ENTRIES (1819-24): 7ournal2: (i) Motion for jury de medietate linguae overruled *p. 682; (2) motion for special jury granted *p. 682; 3) time for striking jury extended *p. 685. Journal3: (4) Witness fees ordered paid *p. 73; (5) continued, costs ordered paid *p. 73; (6) witness sworn to prove his attendance *p. 74; (7) motion to strike office judgment and for leave to rejoin *p. 217-c; (8) motion to strike, etc., granted, con- tinued*p. 21I7-g; (9) motion to strike entry of continuance granted*p. 217-g; (io) motion for judgment *p. 217-h; (IX) day for trial assigned *p. 220 (12) letter ordered produced as evidence *p. 236; (13) jury impaneled, evidence heard *p. 239; (14) constable sworn to attend jury *p. 239; I 20 SUPREME COURT OF MICHIGAN (15) jury given permission to seal verdict *p. 239; (16) verdict *p. 240; (17) motion in arrest of judgment *p. 240; (18) argument had *p. 440; (19) motion in arrest overruled, motion made for new trial, rule to assign reasons *p. 448; (20) motion for new trial considered *p. 456; (21) motion for new trial overruled, motion for judgment overruled, continued *p. 460; (22) motion for judgment granted, judgment, motion to strike attorney's name *p. 476. PAPERS IN FILE: (I) Precipe for process; (2) capias and return; (3) declara. tion; (4) plea; (5) replication; (6-11) subpoenas; (12) precipe for sub- poena; (13) subpoena; (14) precipe to enter office judgment; (ii) rejoinder; (16) precipe for subpoena; (17) subpoena; (18) precipe for sub. poena; (19) subpoena; (20) precipe for subpoena duces tecum; (21) sub. poena duces tecum; (22) precipe for subpoena; (23) subpoena; (24) precipe for subpoena; (25) list of witnesses; (26) list of witnesses sworn; (27) transcript of order to produce letter; (28) order to summon four jurors; (29) panel of jurors; (30) verdict; (31) reasons for arrest of ver- dict and judgment; (32) reasons for setting aside verdict and for a new trial; (33) precipe for execution ca. sa.; (34) writ of ca. sa. and return; (35) cost bill; (36) letter from Labady and Richard to Bishop Flaget; (37) letter from Charles Lamrned to Melvin Dorr. Office Docket, MS p. 50, c. I. (Case 27 of 1820) Recorded in Book B, MS pp. 319-30. Note: Papers 14 and 21 are printed herein. (Selected Papers, infra, case 643) The com- plete record, as found in Book B, is printed also. (Selected Papers, infra) An opinion by Woodward in favor of granting the motion in arrest of judgment will be found with Opinions in Unreported Cases, infra. The action for divorce, which in part gave rise to the slander involved, was case 537, supra. In 1825 Labady brought an action against Richard and others for breach of a bond given by Richard in this case conditioned that he keep within the prison limits. (Book C, Judgment Records, MS pp. 300-13) Richard was elected Delegate to Congress in I823 and took his seat December 8. ("A Catholic Priest in Con- gress," Michigan Pioneer and Historical Collections, XXI, 432, 437) Congress adjourned May 27, 1824, and Richard returned to Detroit. (Ibid., p. 44o) Judgment was rendered against him September 21, 1824. (journal3, *P. 476) On the same day a writ of ca. sa. was issued and executed. (See writ of ca. sa.) The bond given for the prison limits was dated October 12, I824. (See papers in case of Labady v. Richard et al.) The second session of Congress opened December 6, 1824. Richard was in attendance December io. ("A Catholic Priest in Congress," cited supra) It thus appears that Richard was in debtors' prison for about three weeks while he was in Detroit between sessions of Congress. An undated paper indorsed "How far a member of Congress may claim Privilege from arrest' has been preserved with the papers of Judge Sibley. (Burton Historical Collection, Public Library, Detroit, Vol. 45, p. o103) This paper is in Sibley's handwriting and reads as follows: "How far a representative of Congress has privilege from arrest-In England, a Commoner, or member of Parliament, is privileged from arrest 40 days, before the meeting of Parliament and 4o days after the prorogation or adjournment-I Blac. 164-2d Lev. 72.-By the lol of Geo. 3d Chap'r 50o. it is provided that no member of the House of Commons shall be sub- jected to arrest or imprisonment--It Blac. 165.-The Court by the Course of proceedings in england, sustained an application under a writ of privilege, in its nature a supersedeas C4LEND1IR OF CASES 121 to deliver the party out of custody-The present mode is to discharge on motion on the ground that the process is void ab initio-I Blac. 166 Labadie vs Richard Exc° Casa. 21 p on same day jugt was entered-What length of time does the privilege extend to-It was determined in Col Pitts case 2d Strange 988, to be a convenient time-Prynne, considers it limited to the number of days the member recd wages after the dissolution or adjournment -That is in relation to a member of Congress, one day for every 20 miles travel, in going and returning to his home from Washington-Cites 4 Parl. writs 68. By the 6th Section of the Constitution, it is provided that the senators & representatives of Congress in all Cases, except, Treason felony and Breach of the Peace, 'shall be privileged from arrest during their attendance at the Session of their respective houses and in going to or returning from the ame'M--r Richard was arrested the same evening on which ex° issued- Arrest 21 Sepr 9 Oc' 31 Nor 30 70 1,000 50 in Det 20 days 5 25 Calculating the distance ,,ooo miles and allowing the privilege one day for 20 miles-would make 5o days. The arrest being made on the 21st of Sepr gives 25 days, before the Privilege attached-It appears from what is said in the 2d of Strange 988 & 989 that a writ of privilege issues from the Court of Chancery, and is founded on a Petition, supported by an affidavit- It is an unusual writ, in England, and not issued without strong reasons and then with great care & with much circumspection-2 Strange 989-It is intimated by the Court in the case of Col Pitt, 2d Strange 989, that the statute of 12 & 13 of William 3d abrogates the writ of Privilege-Col Pitt was discharged by the Kings Bench, on m° and by the whole Court. One Judge has no authority to discharge from arrest on motion-On a H C. one udge may discharge where the imprisonment is illegal-If the execution was regular and properly issued it would be conclusive on a return to a H. C. One Judge has the authority to issue a supersedeas, where the writ is appropriate and a proper case is made out-But in the present case the right of Labidi attached agt the Person of Mr Richard on the service of the Exc° at a time when Mr Richard could not claim privilege-It being legally attached can a judge divest or deprive him of such rights? This Case is not within the letter of the Constitution, under which the privilege is claimed if it exists at all-" Notes and comments by Sibley on other phases of the case also have been preserved. (Sibley Papers, cited supra, Vol. 28, p. 140) The two cases of Labady v. Richard have been discussed at length by Louise Rau in "Solomon Sibley-The Public Servant 1766-1846." (MS, Burton Historical Collec- tion, Public Library, Detroit, Ch. XXII) Case 644 JAMES GILMAN versus OTIS FISHER Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus and certiorari JOURNAL ENTRIES (I8I9-22): 7ournal 2: (I) Appearances *p. 687. four- nal 3: (2) Death suggested, proceedings stayed *p. 161; (3) discon- tinued *p. 271. 122 SUPREME COURT OF MICHIGAN PAPERS IN FILE: (1) Writ of certiorari; (2) writ of habeas corpus cum causa; (3) transcript of county court records; (4) notice of taking deposition; (5) subpoena. Office Docket, MS p. 90, c. 35. Recorded in Book A, MS pp. 394-400. Note: In entry 2 and in paper 5 the title of the case is James Gilman versus Stephen Mack and Otis Fisher. A bond to prosecute signed by Stephen Mack is with the papers in case 646. The county court file (case 288) contains: (I) precipe; (2) capias and return; (3) declaration and plea; (4) precipe for subpoena; (5) subpoena. Case 645 GEORGE WASHINGTON ROUSE AND SILAS SMITH versus STEPHEN MACK AND OTIS FISHER Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus and certiorari JOURNAL ENTRIES (1819-26): 'ournal2: (1) Appearances *p. 687; (2) dec- laration filed, rule to plead *p. 714. 7ournal3: (3) Rule to plead *p. 82; (4) affidavit for continuance filed *p. 83; (5) death suggested, motion for judgment overruled, notice to administrators ordered *p. 216; (6) motion for rule to plead *p. 314; (7) rule to plead, plea filed *p. 370; (8) continued *p. 442; (9) continued *p. 503. journal 4: (io) Discontinued MS p. 8; (II) judgment for costs MS p. 92. PAPERS IN FILE: (I) Precipe for habeas corpus and certiorari; (2) writ of habeas corpus cum causa; (3) transcript of county court records; (4) transcript of declaration; (5) notice of taking deposition; (6) precipe for subpoena; (7) subpoena; (8) deposition of James Allen; (9) precipe for subpoena; (io) subpoena; (I I) affidavit for continuance; (12) precipe for subpoena; (13) subpoena; (14) precipe for subpoena; (I5) subpoena; (i6) precipe for subpoena; (17) plea in abatement; (18) precipe for sub- poena; (19) subpoena; (20) notice to administrators; (21) bill of partic- ulars; (22) precipe for subpoena; (23-26) subpoenas; (27) affidavit for continuance; (28) draft of order for judgment for costs. Office Docket, MS p. 9I, c. 36. (Case 39 of I820) Note: Papers 17 and 20 are printed herein. (Selected Papers, infra, case 645) The county court file (case 273) contains: (I) precipe; (2) capias and return; (3) declaration; (4) subpoena; (5-6) precipes for subpoenas; (7) subpoena; (8) deposition. CALENDAR OF CASES I 23 Case 646 JAMES ALLEN versus OTIS FISHER Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus and certiorari JOURNAL ENTRIES (1819-22): 7ournal 2: (I) Appearances *p. 687. Jour- nal 3: (2) Death suggested, notice to administrators ordered *p. 220; (3) discontinued *p. 333- PAPERS IN FILE: (I) Writ of habeas corpus; (2) writ of certiorari; (3-4) bonds to appear and to prosecute certiorari; (5) transcript of county court records; (6) precipe for subpoena; (7) subpoena; (8) precipe for sub- poena; (9) notice to administrators. Office Docket, MS p. 91, c. 37. Recorded in Book A, MS pp. 401-408. Note: A notice of taking deposition is with the papers in case 644. The county court file (case 287) contains: (i) precipe; (2) capias and return; (3) declaration and plea; (4) atidavit; (5) subpoena. Case 647 STEPHEN MACK AND OTIS FISHER versus GEORGE WASHINGTON ROUSE AND SILAS SMITH Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus and certiorari JOURNAL ENTRIES (181I9-24): Journal 2: (I) Appearances *p. 687. Jour- nal3: (2) Death suggested, continued *p. 221; (3) continued *p. 503. PAPERS IN FILE: (I) Precipe for habeas corpus and certiorari; (2) writ of certiorari; (3) transcript of county court records; (4) subpoena; (5) precipe for subpoena; (6) subpoena. Office Docket, MS p. 91, c. 38. (Calendar I, MS p. 41) Note: The following papers are in the file of case 645: (I) precipe for habeas corpus and certiorari; (2) writ of habeas corpus; (3) precipe for subpoena. The county court file (case 328) contains: (x) precipe; (2) affidavit; (3) capias and return; (4) memo. of witnesses; (5-6) subpoenas; (7) declaration and plea. 1 24 SUPREME COURT OF MICHIGAN Case 648 DANIEL HUBBELL AND ELNATHAN CORY versus JOHN ANDERSON Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus and certiorari JOURNAL ENTRIES (1819-22): Journal 2: (1) Appearances *p. 687; (2) continued *p. 718. Journal 3: (3) Continued *p. 64; (4.) motion for commission to take depositions *p. I66; (5) motion for continuance granted *p. 171; (6) witness fees ordered paid *p. 174; (7) rule for judg- ment *p. 302. PAPERS IN FILE: (I) Writ of certiorari; (2) writ of habeas corpus cum causa; (3) bond to appear, etc.; (4) transcript of county court record; (5) county court deposition of Thomas Cory; (6) county court deposition of Thomas Miller; (7) precipe for commission to take depositions; (8) depositions of Henry Atkinson, James Fergus, William Tullis, Samuel Smith, John H. Crawford and Joseph H. Crane; (9) deposition of John Johnston; (ITo) precipe for subpoena; (II) subpoena; (12) certificate as to Mrs. Desire West's health; (13) precipe for subpoena; (14) subpoena; (I5) certificate as to Mrs. West's health; (16) affidavit for continuance; (17) deposition of Thomas Cory; (18) deposition of Thomas Miller; (19) deposition of Oliver Williams; (20) deposition envelope; (21) plea and notice; (22-23) precipes for subpoenas; (24) affidavit of Thomas Miller. Office Docket, MS p. 92, c. 39. Recorded in Book A, MS pp. 362-86. Note: Paper 21 is printed herein. (Selected Papers, infra, case 648) The county court file (case 165) contains: (I) precipe; (2) capias and return; (3) declaration and plea; (4) affidavit; (5-6) subpoenas; (7) deposition envelope. Case 649 JOHN RAMSAY versus ROBERT SMART Action of trespass on the case (assumpsit) before Thomas Rowland, 7. P. Appeal to Wayne County Court Certiorari to county court JOURNAL ENTRIES (1819): journal 2: (i) Appearances *p. 687; (2) rule to join in errors *p. 700; (3) judgment reversed, reasons *p. 728. PAPERS IN FILE: [None] Note: The errors assigned and a brief opinion by Judge Woodward appear in Doty's Reports, infra, *pp. 80o-84. The county court file (case 425) contains: (I) transcript of J. P. record; (2) declaration; (3) precipe; (4-5) subpoenas; (6) precipe for fi. fa.; (7) fi. fa.; (8) precipe for supersedeas. CALENDAR OF CASES 1 25 Case 650 JOHN ANDERSON versus HEMAN BROWN, JR., AND STEPHEN DOWNING Action of trespass on the case (assumpsit) Appeal from Monroe County Court JOURNAL ENTRIES (1819): Journal2: (i) Transcript filed, judgment *p. 691. PAPERS IN FILE: (z) Transcript of county court record; (2) precipe for execution; (3) writ of fi. fa. and return; (4) promissory note. Office Docket, MS p. 92, c. [39-a]. Case 651 JOHN G. WATSON, ADMINISTRATOR OF ROBERT GOUIE, DECEASED, versus GABRIEL GODFROY, JR., AND DAVID DAVID Bill in equity for .... JOURNAL ENTRIES (1819-25): journal 2: (I) Continued *p. 701. Chancery journal: (2) Continued *p. 53. Journal 4: (3) Dismissed MS p. o50; (4) dismissed MS p. 59. PAPERS IN FILE: [None] Office Docket, MS p. 79, c. 15. (Case io of 1820) Case 652 MICHAEL DOUSMAN versus WILLIAM H. PUTHUFF Bill in equity to foreclose a mortgage JOURNAL ENTRIES (1819-22): Journal 2: (I) Subpoena ordered issued *p. 702. Journal3: (2) Continued *p. 266; (3) dismissed *p. 292. Chancery Journal: (4) Discontinued *p. 52. PAPERS IN FILE: (I) Bill of complaint. Offce Docket, MS p. 95, c. 44. (Case 2 of I820) 126 SUPREME COURT OF MICHIGAN Case 653 ELIZABETH DEZING versus GEORGE S. DEZING Bill of complaint for .... JOURNAL ENTRIES (1819-22): Journal 2: (x) Alias subpoena ordered issued *p. 702; (2) rule to answer, publication ordered *p. 737. Journal3: (3) Dismissed *p. 294. Chancery Journal: (4) Ordered off docket *p. 54. PAPERS IN FILE: [None] Chancery Case 16 of 1820. Case 654 DANIEL SUTHERLAND versus GABRIEL GODFROY, JR., GABRIEL GODFROY, SR., AND GEORGE JACOB Bill in equity to foreclose a mortgage and for injunction JOURNAL ENTRIES (1819-26): Journal 2: (I) Injunction and subpoena or- dered issued *p. 704. Chancery Journal: (2) Decree *p. 49. Journal : (3) Motion to amend record *p. 437; (4) sale suspended, decree revived *p. 461. Journal 4: (5) Order of sale extended MS p. 7i; (6) motion to confirm register's report MS p. 104; (7) exceptions filed, motion to con- firm report overruled MS p. 107; (8) register's report accepted MS p. 123. PAPERS IN FILE: [None] Office Docket, MS p. 155, c. I. (Case II of 1820) Note: A notice of sale was published in the Detroit Gazette on Aug. 15, I823. A photostat of a copy of the bill of complaint (Woodbridge Papers, Burton Historical Collection, Public Library, Detroit, Vol. 117) has been placed in the file. Case 655 ANTOINE LASSELLE versus THOMAS CALDWELL, ADMINIS- TRATOR DE BONIS NON OF JAMES LASSELLE, DECEASED, MARIANNE, WIFE OF SAID THOMAS, JULIE LASSELLE AND JACQUES LASSELLE, CHILDREN AND HEIRS AT LAW OF SAID JAMES, DECEASED Bill in equity for .... JOURNAL ENTRIES (1819-22): Journal 2: (I) Continued *p. 724. Journal 3: (2) Dismissed *p. 294. PAPERS IN FILE: [None] Office Docket, MS p. 81, c. 17. (Case 14 of 1820) CALENDAR OF CASES I27 Case 656 MARIE B. LASSELLE versus THOMAS CALDWELL, ADMINIS- TRATOR DE BONIS NON OF JAMES LASSELLE, DECEASED, MARIANNE, WIFE OF SAID THOMAS, JULIE LASSELLE AND JACQUES LASSELLE, CHILDREN AND HEIRS AT LAW OF SAID JAMES, DECEASED Bill in equity for .... JOURNAL ENTRIES (1819-22): Journal2: (I) Continued *p. 725. Journal3: (2) Dismissed *p. 294. PAPERS IN FILE: [None] Office Docket, MS p. 81, c. 18. (Case 15 of 1820) Case 657 IN THE MATTER OF JOHN MORROSSE Habeas corpus ad subjiciendum JOURNAL ENTRIES (1819): journal 2: (I) Rule for writ and for recognizance *p. 729. PAPERS IN FILE: [None] Case 658 IN THE MATTER OF BENJAMIN CHITTENDEN Habeas corpus ad subjiciendum JOURNAL ENTRIES (1819): Journal 2: (I) Rule for writ *p. 736; (2) nolle prosequi, new writ awarded *p. 737; (3) motion to quash writ overruled *p. 744; (4) writ returned, body produced *p. 744; (5) motion for dis- charge overruled, prisoner remanded *p. 744. PAPERS IN FILE: [None] Note: This case is reported in full in Doty's Reports, infra, *pp. 1-20. The defendant was imprisoned on a capias issued in case 829, infra. "Mahar's Case," referred to in Doty's report, is case 55o, supra. 128 SUPREME COURT OF MICHIGAN Case 659 CONRAD TEN EYCK AND JEREMIAH V. R. TEN EYCK, TRADING UNDER THE FIRM OF CONRAD TEN EYCK & CO., versus GEORGE JOHNSTON Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1819): Journal 2: (I) Cognovit, judgment, execution stayed *p. 747. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) warrant to confess judgment; (4) declaration; (5) promissory note. Office Docket, MS p. 90, c. 33. Note: With the papers is an earlier capias for a slightly different amount. See Office Docket, MS p. 65, c. i. Case 66o OLIVER ROSE versus WILLIAM G. TAYLOR Action of debt on a judgment JOURNAL ENTRIES (1819-25): Journal 2: (I) Bill of privilege filed, motion for rule to plead *p. 748. Journal3: (2) Motion argued, overruled *p. Io; (3) leave to withdraw declaration denied *p. 12; (4) motion for rule to plead, on service, etc., granted *p. 41; (5) agreement to postpone filed *p. 76; (6) motion for judgment *p. 231; (7) continued *p. 254; (8).... *p. 271; (9) judgment *p. 365. Journal 4.: (io) Rule to return fi. fa. MS p. 16; (II) rule to return fi. fa. enlarged MS p. 33; (12) rule to return fi. fa. enlarged MS p. 38. PAPERS IN FILE: (1) Precipe for capias; (2) capias and return non est; (3) bill of privilege; (4) motion for rule to plead; (5) affidavit of service; (6) plea of nil debet; (7) agreement to postpone argument; (8) sheriff's fee bill; (9) precipe for execution fi. fa.; (Io) writ of fi. fa. and return; (I I) precipe for execution ca. sa.; (12) writ of ca. sa. and return; (13) alias ca. sa. and return; (14) exemplification of record of Court of Common Pleas, Ontario County, New York. Office Docket, MS p. 78, c. 13. (Case 37 of 1820) Recorded in Book A, MS pp. 387-93. Note: A return to writ of fi. fa. is with the papers in case 673. Papers 3 and 5 are printed herein. (Selected Papers, infra, case 660) CALENDAR OF CASES 129 Case 66I IN THE MATTER OF GEORGE McDOUGALL, REGISTER FOR THE COUNTY OF WAYNE Motion for mandamus JOURNAL ENTRIES (1819): Journal 2: (I) Motion for rule to show cause *p. 748. Journal3: (2) Motion argued *p. io. PAPERS IN FILE: [None] Note: The act mentioned in entry I authorized and required the register of wills, etc., of Wayne County to transmit to the respective registers of Monroe, Macomb and "Mackinaw" counties all papers relating to unclosed estates of persons who resided within the limits of said counties at the time of death. (Laws of the Territory of Michigan, II, 16o) Case 662 GEORGE B. LARNED AND GEORGE E. WATSON versus WILLIAM G. TAYLOR, LOWRIN MARSH AND HEMAN BROWN, JR. Action of trespass on the case (assumpsit) Appeal from Monroe County Court JOURNAL ENTRIES (1819): Journal3: (I) Judgment *p. 40. PAPERS IN FILE: (I) Transcript of county court record; (2) precipe for execution ca. sa.; (3) writ of ca. sa.; (4) precipe for alias ca. sa.; (5) alias ca. sa.; (6) precipe for pluries ca. sa.; (7) pluries ca. sa.; (8-9) promissory notes. Ofice Docket, MS p. 99, c. I. Case 663 IN THE MATTER OF DANIEL FERGUSON Habeas corpus ad subjiciendum JOURNAL ENTRIES (1820): Journal 3: (I) Writ returned, body produced, return held sufficient, prisoner remanded *p. 43. PAPERS IN FILE: [None] 130 SUPREME COURT OF MICHIGAN Case 664 AUGUSTUS PORTER, BENJAMIN BARTON, PETER B. PORTER, JAMES L. BARTON, SHELDON THOMPSON AND NATHANIEL SILL, MERCHANTS TRADING UNDER THE FIRM OF SILL, THOMPSON & CO., versus JOHN McDONELL Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus and certiorari JOURNAL ENTRIES (1820-30): 7ournal3 : (I) Special bail *p. 43; (2) motion for bill of particulars *p. 217-b; (3) rule for special bail or procedendo *p. 222; (4) appearance *p. 233. journal 4: (5) Motion for rule to show cause against set off of judgment MS p. 15; (6) continued MS p. 93; (7) jury trial, demurrer to evidence, verdict MS p. 139; (8) demurrer to evidence overruled, judgment MS p. 198; (9) motion to set off judgment MS p. 201; (io) motion for stay of execution MS p. 203; (ii) motion for set off argued, case submitted MS p. 327; (12) motion for set off overruled MS p. 351; (i3) motion for stay of execution MS p. 354. PAPERS IN FILE: (i) Precipe for habeas corpus and certiorari; (2) writ of habeas corpus cum causa; (3) transcript of county court record; (4.) pre- cipe for subpoena; (5) subpoena; (6) motion to show cause why judgment against Porter should not be set off against plaintiffs' claim; (7) affidavit for continuance; (8) declaration; (9) recognizance of special bail; (io) plea of non assumpsit; (ii) bill of particulars; (12) precipe for subpoena; (13-15) subpoenas; (16) verdict; (17) demurrer to evidence and joinder; (18) affidavit of John McDonell; (19) motion to set off judgment; (20) affidavit of John McDonell; (21) promissory note. Office Docket, MS p. 110, c. 9. (Case 61 of 1820) Recorded in Book C, MS pp. 175-82. Note: The demurrer to the evidence was filed in open court Dec. 13, 1827 and overruled May 26, 1828. A paper indorsed "on demurrer to evidence Opinion delivd" is with the papers of Judge Sibley. (Burton Historical Collection, Public Library, Detroit, Vol. 58, pp. 65 and 68) This opinion will be printed in a later publication. A photostat of a brief (Wood- bridge Papers, Burton Historical Collection, Vol. i14) has been placed in the file. CALENDAR OF CASES I3I Case 665 AUGUSTUS PORTER, BENJAMIN BARTON, PETER B. PORTER, JAMES L. BARTON, NATHANIEL SILL AND SHELDON THOMP- SON, MERCHANTS TRADING UNDER THE FIRM OF SILL, THOMPSON & CO., versus RICHARD SMYTH Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus and certiorari JoURNAL ENTRIES (1820-24): 7ournal3: (I) Special bail *p. 43; (2) motion for bill of particulars *p. 217-b; (3) appearance *p. 233; (4) leave to amend declaration, continued *p. 254; (5) jury impaneled *p. 275; 6) witnesses sworn, witness fees claimed *p. 275; (7) constable sworn to attend jury *p. 275; (8) verdict, jury polled *p. 275; (9) motion for judgment *p. 284; (io) motion for new trial argued *p. 503; (II) motion for new trial argued *p. 504; (12) motion for new trial overruled, motion for judgment nisi granted *p. 505; (i3) rule for judgment *p. 513. PAPERS IN FILE: (i) Precipe for habeas corpus and certiorari; (2) writ of habeas corpus cum causa; (3) transcript of county court record; (.4) declaration; (5) amended declaration; (6) plea of non assumpsit; (7-8) subpoenas; (9) subpoena duces tecum; (io) attachment for Thomas Anderson; (II) panel of jurors; (12) verdict; (13) motion and reasons for new trial; (i4) affidavit of James Beard; (I5) affidavit of Daniel Buxton; (i6) affidavit of Richard Smyth; (17) affidavit of Reynold Gillet; (i8) reasons in arrest of judgment; (i9) precipe for execution fi. fa.; (20) writ offi. fa. and return; (21) precipe for alias fi. fa.; (22) alias fi. fa.; (23) affi- davit of Daniel Buxton; (24) affidavit of John Brunson. Office Docket, MS p. 109, c. 8. Recorded in Book B, MS pp. 336-44. Note: An opinion on overruling the motion for new trial, a memo. opinion on motion in arrest of judgment and other memoranda in the handwriting of Judge Sibley have been found among his papers. (Burton Historical Collection, Public Library, Detroit, Vol. 49, pp. 211, 236 and 238; Vol. 56, pp. 31, 33 and 35) The opinion is printed, infra. (Opinions in Unreported Cases) John McDonell, in a letter to Judges Witherell and Sibley, dated Oct. 9, I824, stated that if the case were lost he would be ruined. (Woodbridge Papers, Burton Historical Collection, Vol. 113) Photostats of the above papers have been placed in the file. 13 2 SUPREME COURT OF MICHIGAN Case 666 BENJAMIN F. LARNED versus WILLIAM G. TAYLOR, WOLCOTT LAWRENCE AND BENJAMIN DAVIS Action of trespass on the case ( .. .) JOURNAL ENTRIES (1820): Journal3: (I) Nolle prosequi, judgment *p. 45. PAPERS IN FILE: [None] Office Docket, MS p. 89, c. 31. Case 667 WARREN HOWARD versus WILLIAM BROWN, ABRAHAM EDWARDS AND JAMES McCLOSKEY, COMMISSIONERS OF WAYNE COUNTY Motion for mandamus JOURNAL ENTRIES (1820-21): Journal 3: (I) Copy of motion for rule to show cause ordered served *p. 48; (2) return of service made *p. 49; (3) alternative mandamus ordered issued *p. 49; (4) motion to quash writ *p. 73; (5) discontinued *p. 151. PAPERS IN FILE: (I) Transcript of journal entry and proof of service; (2) draft of transcript of journal entry; (3) copy of writ of mandamus and proof of service. Offce Docket, MS p. 136, c. 5i. Recorded in Book A, MS pp. 1-3. Note: The act referred to in entry i authorized and directed the county commissioners of Wayne County to pay Warren Howard $275 for extra services as gaoler of said county. (Laws of the Territory of Michigan, II, 173) Also see case 716, infra. Case 668 LOUIS DEQUINDRE versus CHARLES POUPARD Action of trespass on the case (assumpsit) before Thomas Rowland, J. P. Appeal to Wayne County Court Removed from county court by habeas corpus cum causa JOURNAL ENTRIES (1820-22): Journal3: (I) Rule to join in errors *p. 62; (2) agreement for trial, errors waived *p. 78; (3) "Off" stricken from calendar, rule to plead *p. 334; (4) verbal plea, notice of set off *p. 334, (5) rule for judgment subject to set offs *p. 344. CA.LENDAR OF CASES 133 PAPERS IN FILE: [None] Offie Docket, MS p. 112, c. I1. Recorded in Book A, MS pp. 419-29. NVote: The county court file (case 389-b) contains a declaration in an action on the promissory note alone. Case 669 DAVID DODEMEAD versus CHARLES LEE CASS Action of trespass (assault and battery) JOURNAL ENTRIES (1820-22): journal 3: (I) Rule to bring body *p. 62; (2) witness fees ordered paid *p. 175; (3) office judgment taken off, rule to plead, continued *p. 187; (4) attendance of witness proved *p. 285; (5) discontinued *p. 326. PAPERS IN FILE: (I) Precipe for capias; (2) affidavit for special bail; (3) capias and return, allowance of bail; (4) declaration; (5) precipe for judgment for want of plea; (6-7) precipes for subpoenas; (8-9) subpoenas; (io) precipe for subpoena; (11) subpoena; (12) plea of not guilty; (13) precipe for subpoena; (14) subpoena; (s15) recognizance of special bail and bail piece; (16) plea of not guilty. Office Docket, MS p. I i8, c. 19. Recorded in Book A, MS pp. 454-58. Case 670 RICHARD DURYEE, JR., AND GEORGE T. ELLIOTT, MERCHANTS TRADING UNDER THE FIRM OF DURYEE & ELLIOTT, versus JOHN McDONELL Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1820-21): Journal 3: (I) Rule to bring body *p. 62; (2) special bail *p. 68; (3) cognovit, judgment *p. 228. PAPERS IN FILE: (i) Precipe for process; (2) capias and return; (3) declara- tion; (4) warrant to confess judgment; (5) precipe for execution fi. fa.; (6) writ of fi. fa. and return; (7) precipe for alias fi. fa.; (8) alias fi. fa. and return; (9) precipe for pluries fi. fa.; (io) pluries fi. fa. and return; (ii) precipe for second pluries fi. fa.; ( 12) pluries fi. fa. and return. Office Docket, MS p. 146, c. 63. Recorded in Book A, MS pp. 206-12. I34 SUPREME COURT OF MICHIGAN Case 67I ASA S. FOX versus LUC JOLETTE Action of trespass on the case (assumpsit) before Thomas Rowland, 7. p. Appeal to Wayne County Court Removed from county court by habeas corpus and certiorari JOURNAL ENTRIES (1820-22): Journal3: (I) Rule to join in errors *p. 62; (2) agreement for trial, errors waived *p. 78; (3) jury trial *p. 217-f; (4) attendance of witnesses proved *p. 217-f; (5) disagreement reported, testi- mony explained *p. 217-g; (6) jury called, eleven answered, discharged *p. 217-j; (7) continued *p. 254; (8) jury trial *p. 282; (9) verdict *p. 282; (io) attendance of witness proved *p. 282; (iI) rule for judgment *p. 282. PAPERS IN FILE: (I) Precipe for habeas corpus and certiorari; (2) recog- nizance of special bail; (3) writ of habeas corpus cum causa; (4) tran- script of county court record; (5) assignment of errors, joinder; (6) precipe for subpoena; (7) subpoena; (8) affidavit of Jean Dorval; (9) precipe for subpoena; (io) subpoena; (II) declaration; (12) plea of non assumpsit and tender; (13) panel of jurors; (14) precipe for subpoena; (15-16) sub- poenas; (17) precipe for subpoena; (18) subpoena; (19) panel of jurors; (20) verdict; (21) precipe for fi. fa.; (22) writ of fi. fa. and return; (23) memo. of costs; (24) statement of accounts. Office Docket, MS p. 117, c. 16. Recorded in Book A, MS pp. 430-42. Note: It was assigned as error that the justice of the peace rendered a judgment for $40 without the consent of the parties and without a jury and that such act violated the Seventh Amendment, the Ordinance of 1787, and the act of September i6, 181io, and was in "contra- vention to the Solemn decision of the Judges of the Supreme Court of the Territory, at the last Term, in the case of Ramsey vs. Smart [case 649, supra], when the foregoing principles were settled." Paper 12 is printed herein. (Selected Papers, infra, case 671) The county court file (case 467) contains: (i) transcript of the J. P. record; (2) declaration. Case 672 PETER FELIX, FOR THE USE OF FIELDING LOWRY, versus GABRIEL GODFROY, SR. Action of debt on a judgment JOURNAL ENTRIES (1820-22): Journal 3: (i) Appearance, right to special bail waived *p. 62; (2) motion for return of writ and rule to plead *p. 194; (3) stipulation for discharge on common bail *p. 217-d; (4) continued *p. 226; (5) leave to amend plea *p. 272; (6) verbal plea of nul tiel record *p. 335; (7) judgment *p. 370. CALENDAR OF CASES 135 PAPERS IN FILE: (I) Precipe for process; (2) capias and return; (3) decla- ration; (4) affidavit of Charles James Lanman respecting bail; (5) agree- ment for common bail; (6) plea of nil debet; (7) affidavit of John W. John- son; (8) precipe for fi. fa.; (9) writ of fi. fa. and return; (io) exemplification of record of Court of Common Pleas, Miami County, Ohio. )ffice Docket, MS p. 146, c. 62. Recorded in Book B, MS pp. 17-20. Case 673 DAVID FRARY AND ENOCH FIFIELD versus WILLIAM G. TAYLOR, WOLCOTT LAWRENCE, LOWRIN MARSH AND HEMAN BROWN Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1820-22): 7ournal3: (I) Rule to bring bodies *p. 62; (2) death suggested, motion for substitution *p. 195; (3) continued *p. 227; (4) continued *p. 335; (5) continuance taken off, rule for judgment *p. 347. PAPERS IN FILE: (I) Precipe for process; (2) capias and return; (3) draft of declaration; (4) declaration; (5) motion for judgment for want of plea; (6) precipe for ca. sa.; (7) petition for stay of proceedings; (8) affidavit of Augustus Thorp; (9) affidavit of Henry Disbrow; (o0) affidavit of William G. Taylor; (ii) precipe for writ of supersedeas, and allowance; 12) petition for writ of error coram nobis; (13) affidavit of William G. Taylor; (14) precipe for writ of error coram nobis; (15) allowance of writ of error coram nobis; (16) writ of fi. fa., return and receipt; (17) contract for delivery of logs; (18) award of arbitrators. Office Docket, MS p. 151, c. 76. Recorded in Book B, MS pp. 33-37. Note: A memo. re exemplification of bail piece is with the papers in case 705, infra. The return to the writ of fi. fa. states that certain goods were seized and sold and the proceeds distributed among four executions in equal proportions. The receipt attached to the return states that all of the executions were of the same date and were delivered into the sheriff's hands at the same time. Papers 12, 13, 14 and 15 are printed herein. (Selected Papers, mra, case 673) Case 674 EBENEZER FRANCIS versus JOHN S. ROBY Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1820-27): 7ournal3: (I) Rule to bring body *p. 63; (2) special bail *p. 68; (3) rule for bill of particulars, continued *p. 256; (4) commission to take deposition ordered issued, continued *p. 286; (5) continued *p. 475. journal 4: (6) Continued MS p. 4; (7) continued MS p. 93; (8) dismissed MS p. I26. 136 SUPREME COURT OF MICHIGAN PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) declara. tion; (4) precipe for default judgment for want of plea; (5) bill of par- ticulars; (6) plea of non assumpsit; (7) stipulation re proof of handwriting; (8) sheriff's fee bill. Office Docket, MS p. 151S, C. 77. (Case 127 of 182o) Case 675 DEGARMO JONES versus JOHN DOUSMAN Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1820-22): Journal : (I) Rule to bring body *p. 63; (2) motion to plead without bail overruled *p. 69; (3) special bail *p. 7; (4) motion for judgment *p. 194; (5) continued *p. 255; (6) nil dicit, rule for judgment *p. 327; (7) stipulation for indorsement of any set off *p. 327. PAPERS IN FILE: (I) Precipe for process; (2) capias and return; (3) dec- laration; (4) plea of non assumpsit; (5) promissory note; (6) receipt. Office Docket, MS p. 147, c. 66. Recorded in Book A, MS pp. 324-30. Case 676 BENJAMIN F. LARNED versus BENJAMIN DAVIS Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1820-21): Journal : (I) Rule to bring body *p. 63; (2) discontinued *p. 189. PAPERS IN FILE: (I) Precipe for process; (2) capias and return. Office Docket, MS p. 121, c. 24. Recorded in Book A, MS pp. 113-15- Case 677 BENJAMIN F. LARNED versus WILLIAM G. TAYLOR JOURNAL ENTRIES (1820): JOurnal3: (I) Rule to bring body *p. 63. PAPERS IN FILE: (None] CALENDAR OF CASES 137 Case 678 DEGARMO JONES AND RUFUS SETH REED, LATE PARTNERS IN COMPANY UNDER THE FIRM OF REED & JONES, versus JOHN DOUSMAN Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1820-22): 7ournal3: (I) Rule to bring body *p. 64; (2) special bail *p. 72; (3) continued *p. 255; (4) nil dicit, rule for judg- ment *p. 327; (5) stipulation for indorsement of any set off *p. 327. PAPERs IN FILE: (I) Precipe for process; (2) capias and return; (3) dec- laration; (4) plea of non assumpsit; (5) notice of demand for bill of par- ticulars; (6) assessment of damages; (7) satisfaction piece; (8-io) prom- issory notes. Offce Docket, MS p. 148, c. 67. Recorded in Book A, MS pp. 480-87. Case 679 ARCHIBALD WHITNEY AND GILES M. WHITNEY, MER- CHANTS TRADING UNDER THE FIRM NAME OF A. & G. WHITNEY, versus JOHN MeDONELL Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1820-21): fournal3: (I) Rule to bring body *p. 65; (2) special bail *p. 68; (3) cognovit, judgment, execution stayed *p. 226. PAPERs IN FILE: (I) Precipe for capias; (2) capias and return; (3) declara- tion; (4) precipe for judgment for want of plea; (5) warrant to confess judgment; (6) precipe for execution fi. fa.; (7) writ of fi. fa. and return; (8) precipe for alias fi. fa.; (9) alias fi. fa. and return; (io) precipe for fi. fa.; (Ii) pluries fi. fa. and return; (12) precipe for pluries fi. fa.; (13) pluries fi. fa. and return; (14) statement of accounts. Offce Docket, MS p. 150, c. 75. Recorded in Book A, MS pp. 191-97. Case 68o IN THE MATTER OF HENRY NELSON, A BLACK MAN • . . . . . . . . . . . . . . . . . . JOURNAL ENTRIES (1820): 7ournal3: (I) Prisoner discharged *p. 65. PAPERS IN FILE: [None] I38 SUPREME COURT OF MICHIGAN Case 68i IN THE MATTER OF JONATHAN PERRIN . . . . . . . . . . . . ,. . . . . . . . JOURNAL ENTRIES (1820): 7ournal3: (I) Recognizance *p. 69. PAPERS IN FILE: [None] Case 682 RALPH R. BELL versus JOHN G. CAMP Action of trespass on the case (assumpsit) Appeal from Wayne County Court JOURNAL ENTRIES (1820-21): 7ournal3: (I) Jury trial, verdict *p. 77; (2) witness fees ordered paid *p. 78; (3) judgment *p. 164. PAPERS IN FILE: (I) Transcript of county court record; (2) precipe for sub- poena; (3) subpoena; (4) stipulation for use of county court depositions; (5) verdict; (6) precipe for execution ca. sa.; (7) writof ca. sa. and return; (8) deposition of George Hutchinson; (9) commission to take depositions and depositions of Jonathan Baird, Francis W. G. Camp, and Richard Kennedy; (10o) statement of accounts; (II) memo. of dates of verdict and judgment. Office Docket, MS p. 154, c. 87. Recorded in Book A, MS pp. 55-63. Case 683 BENJAMIN KNOWER versus ZEPHANIAH W. BUNCE Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1820): journal 3: (I) Cognovit, judgment, execution stayed *p. 79. PAPERS IN FILE: (I) Precipe for habeas corpus cum causa; (2) writ of habeas corpus cum causa; (3) transcript of county court record; (4) recognizance; (5) precipe for execution ca. sa.; (6) writ of ca. sa. and re- turn; (7) precipe for alias ca. sa.; (8) alias ca. sa. and return; (9) precipe for pluries ca. sa.; (io) pluries ca. sa. and return; (II) precipe for pluries ca. sa.; (12) second pluries ca. sa. and return; (13) ca. sa. and return; (14) memo. of costs; (15) letter from Benjamin Knower to Solomon Sibley; (16-17) promissory notes. Office Docket, MS p. 116, c. 15. Note: The county court file (case 419) contains: (1) precipe for capias; (2) capias and return. CALENDAR OF CASES 139 Case 684 JOHN SARGENT AND GEORGE SARGENT versus ZEPHANIAH W. BUNCE Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus JOURNAL ENTRIES (1820): 7ournal 3: Cognovit, judgment, execution stayed *p. 80. PAPERS IN FILE: (i) Precipe for habeas corpus cum causa; (2) writ of habeas corpus; (3) transcript of county court record; (4) recognizance; (5) precipe for execution ca. sa.; (6) writ of ca. sa. and return; (7) precipe for alias ca. sa.; (8) alias ca. sa. and return; (9) precipe for pluries ca. sa.; (io) pluries ca. sa. and return; (I I) precipe for pluries ca. sa.; (1 2) second pluries ca. sa. and return; (13) bill of costs; (14) statement of accounts; (i5) memo. of agreement. Office Docket, MS p. 114, c. 13. NVote: The county court file (case 413) contains: (i) precipe; (2) capias and return; 3) declaration. Case 685 UNITED STATES versus BENJAMIN DELAVAN JOURNAL ENTRIES (1820): 7ournal3: (I) Jurors ordered summoned *p. 82; (2) postponed, jurors discharged *p. 84; (3) errors and advantages due to one judge's holding court waived, jury trial, verdict, judgment *p. 88; (4) names of witnesses sworn *p. 89. PAPERS IN FILE: [None] Note: Judge Witherell was of the opinion "that it was not competent for one judge to hold a Court" while the other judges were within the territory, unless they were necessarily absent. (Doty's Reports, infra, *p. 85) Case 686 IN THE MATTER OF THOMAS SURPLUS, A BLACK MAN 0 0 . . . * 0. 4 . . • . . . . . . . . . JOURNAL ENTRIES (1820): Journal3: (i) Siller, a black woman, sworn *p. 84. PAPERS IN FILE: [None] 140 SUPREME COURT OF MICHIGAN Case 687 JOSHUA BARNARD versus WILLIAM HENRY PUTHUFF Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1820-24): 7ournal 3: (I) Bail bond cancelled *p. 84; (2) appearance, motion for rule to declare *p. 191; (3) continued *p. 255; (4) continued *p. 300; (5) motion to set aside continuance *p. 3o6; (6) motion to set aside continuance overruled *p. 312; (7) case transferred to issue docket *p. 387; (8) dismissed *p. 391; (9) continued *p. 442; (io) discontinued *p. 475- PAPERS IN FILE: (I) Precipe for process; (2) capias and return; (3) appear- ance bond; (4) declaration; (5) plea of non assumpsit; (6) affidavit for continuance; (7) discontinuance. Office Docket, MS p. 132, c. 46. Recorded in Book B, MS pp. 349-52. Case 688 WILLIAM CLAYTON versus ROBERT SMART Action of trespass on the case (assumpsit) before 7ohn McDonell, 7. P. Appeal to Wayne County Court Removed from county court by habeas corpus and certiorari JOURNAL ENTRIES (1820-21): 7ourna/3: (i) Rule to join in error *p. 85; (2) judgment *p. 255- PAPERS IN FILE: (I) Precipe for habeas corpus cum causa; (2) precipe for certiorari; (3) writ of habeas corpus; (4) writ of certiorari; (5) transcript of county court record; (6) appearance bond. Office Docket, MS p. 148, c. 69. Recorded in Book A, MS pp. 290-95. Note: An agreement to arbitrate and the award of the arbitrators are with the papers in case 689. The county court file (case 492) contains: (1-2) transcripts; (3) declaration and plea; (4) subpoena; (5) precipe for execution; (6) fi. fa. Case 689 JOHN CLAYTON versus ROBERT SMART Action of trespass on the case (assumpsit) before John McDonell, J. P. Appeal to Wayne County Court Removed from county court by habeas corpus and certiorari JOURNAL ENTRIES (1820-21): Journal3: (I) Rule to join in error *p. 85; (2) judgment *p. 256. OIILENDIIR OF OIISES 141 PAPERS IN FILE: (I) Precipe for habeas corpus cum causa; (2) precipe for certiorari; (3) writ of habeas corpus; (4) writ of certiorari; (5) transcript of county court record; (6) appearance bond and approval of security; (7) agreement to arbitrate and award of arbitrators; (8) precipe for execution fi. fa.; (9) writ of fi. fa. and return; (Io) precipe for alias fi. fa. Office Docket, MS p. 149, c. 70. Recorded in Book A, MS pp. 296-301. Note: The county court file (case 491) contains: (i) declaration and plea; (2) notice of withdrawal of attorney; (3) subpoena; (4) precipe for execution; (5) fi. fa. Case 690 JOSEPH REMO versus ROBERT SMART JOURNAL ENTRIES (1820): Journal3: (I) Rule to join in error *p. 86. PAPERS IN FILE: [None] Case 691 GLADDEN BONNEY versus BENJAMIN DOW AND ZEPHANIAH W. BUNCE Aiction of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1820-21): Journal3: (I) Rule to plead *p. 86; (2) ap- pearance *p. 197; (3) remand by procedendo ordered *p. 223. PAPERS IN FILE: (1-2) Precipes for habeas corpus cum causa; (3) writ of habeas corpus; (4) transcript of county court record; (5) recognizance. Office Docket, MS p. 113, c. 12. (Case 12 of 1820) Note: According to the capias set forth in the transcript, the action was on a note for $100oo. According to the declaration, the note sued on was for $132.63. It seems that papers in two cases were mixed and that the capias pertains to case 819, infra. The county court file (case 417) contains: (1) precipe; (2) capias and return; (3) bond for costs; (4) alias capias and return; (5) declaration; (6) declaration and plea; (7) writ of procedendo; (8) precipe for fi. fa.; (9) fi. fa. and return; (o) letter of attorney; (X11) precipe for alias fi. fa.; (12) alias fi. fa. and return; (13) precipe for ca. sa. 142 SUPREME COURT OF MICHIGAN Case 692 THOMAS LAWRANCE, JONATHAN F. LAWRANCE AND THOMAS G. CASEY, TRADING UNDER THE FIRM OF T. & J. F. LAWRANCE & CO., versus DAVID C. McKINSTRY Action of debt on a writing obligatory JOURNAL ENTRIES (1820): Journal 3: (I) Declaration filed, cognovit, judgment *p. 86. PAPERS IN FILE: (I) Warrant of attorney to confess judgment; (2) dec- laration and cognovit; (3) precipe for execution fi. fa.; (4) writ of fi. fa. and return; (5) precipe for alias fi. fa.; (6) alias fi. fa. and return; (7) writing obligatory. Case 8 of 1820. Case 693 PHILIP LECUYER, SURVIVING PARTNER OF THE FIRM OF LECUYER & WATSON, versus JOSEPH ANDRE, DIT CLARK Action of trespass on the case (assumpsit) before John McDonell, J. P. Certiorari to John McDonell JOURNAL ENTRIES (1820-21): Journal 3: (I) Motion for rule to join in error *p. 87; (2) motion for judgment *p. 217-g; (3) rule on referees for misconduct denied, judgment *p. 235. PAPERS IN FILE: (I) Precipe for certiorari; (2) bond to prosecute certiorari; (3) writ of certiorari; (4) transcript of J. P. record; (5) affidavit of Joseph Andre, dit Clark; (6) taxed bill of costs; (7) precipe for execution fi. fa.; (8) writ of fi. fa. and return; (9) precipe for alias fi. fa. Office Docket, MS p. 120, c. 22. Recorded in Book A, MS pp. 228-43. Note: After two default judgments had been set aside by the justice of the peace, the parties agreed to submit the case to three arbitrators and that a judgment should be entered on their award. After the award was made, a notice was given to the parties to show cause why judgment should not be entered. No cause was shown and judgment was entered. The defendant then moved to set aside the judgment and expressed a willingness to pay the costs. The plaintiff was ruled to show cause why the judgment should not be opened. The plaintiff objected to this rule and the justice decided that it should be discharged. An opinion by the justice appears in the transcript of his record and reads as follows: "Opinion of the Court on the rule taken by deft on the 29 Febr The defendant by his Counsel Geo. M*Dougall Esqr in Court and argues the rule taken upon the pltf. Viz. to open the judgment upon the payment of Costs the first ground taken by the learned Counsel is that the statute of the Territory provides that where a judgment has been entered against the defendant in 'ul /7LEND11R OF CASES x43 his absence if he appears before execution is issued, and pays the Costs and request the judgment to be opened, the justice may grant a new trial and appoint a day, therefor, of which the defendant shall notify the Pltf. at least three days prior to the day appointed. Second that by the principles of the Common Law that awards can be set aside for corruption or other misbehavior, the learned Counsel does not charge the arbitrators in this case with Corruption, but with other misbehavior only; in having overruled certain exceptions taken by him pending the investigation as will appear by the bill signed by them on file. the Court will observe to the first ground taken by the learned Counsel on this motion, that judgments by default may be opened and anew trial granted at any time before execution issue, the principle no doubt is founded on justice and is a correct one but the Court is of opinion, that it only can apply to judgments rendered when the previous proceedings on the same were exparte and that from some mistake or other accident the opposite party was precluded the opportunity of enquiring into the merits of such judgment, which might appear to be very unjust when the merrits of the same were properly at issue & enquired into-The Court having carefully and clearly examined how far the principle can apply to the motion now under consideration, it is of opinion that it cannot in as much as the present Judgment previous to its affirmance in this Court has already been decided upon by judges of the parties own selection, and it is not contended that any exparte proceedings were had before the arbitrators pending the investigation the Court is of opinion that the counsels motion cannot be sustained on that ground 2d That awards may be set aside for corruption or other misbehavior this ground taken by the learned Counsel would come more proper before the Court previous to the affirmance of the judgment, or after the same had been ,ened, however the Court will give it that weight the same as if the judgment was open, the Counsel does not charge the Arbitrators with Corruption but with misbehavior in having overruled the exceptions taken by him as aforesaid pending the investigation. The Court will observe first that an award must correspond with the submission, second it must be final, third it must be certain, & fourth it must be mutual it has not been contended that ny of the above four named requisites were wanting in this Case the Court is of opinion that an award cannot be set aside unless for Corruption or gross partiality, Arbitrators have certain arbitrary powers for if they observe the submission and keep within due bounds their Sentance is definitive, they being chosen by the parties themselves they are not there- tore tied to such formalities in law as judges in other Cases are and yet they have as great rawer as other judges to determine the matter in variance but their determination must be certain and it is to be according to the express condition of the submission or rule of which the parties submit themselves to their judgment and even a Court of Chancery cannot give relief against the award of arbitrators unless it be for Corruption or gross partiality neither of which appears to be the case in the opinion of this Court in the present instance the Court is [of] opinion that the rule be discharged." Case 694 IN THE MATTER OF ABRAHAM NOYES Habeas corpus ad subjiciendum JOURNAL ENTRIES (1820): Journal 3: (I) Petitioner discharged, reasons *p. 90. PAPERS IN FILE: (I) Writ of habeas corpus and return; (2) petition to jus- tices of the peace for relief; (3) notice to plaintiff of time of hearing; (.4) affidavit of petitioner and certificate of justices. ote: Papers 2, 3 and 4 are printed herein. (Selected Papers, infra, case 694) 144 SUPREME COURT OF MICHIGAN Case 695 LOUIS GRIGNON versus GEORGE JOHNSTON Action of trespass (quare clausumfregit) Appeal from Michilimackinac County Court JOURNAL ENTRIES (1820-21): Journal3: (I) Motion for reversal of judg- ment *p. 92; (2) motion overruled, motion for reversal of proceedings overruled *p. 93; (3) appearance, leave given to file declaration de novo *p. 94; (4) motion for nonsuit, judgment *p. 227. PAPERS IN FILE: (I) Transcript of county court record; (2) brief on motion to reverse judgment; (3) precipe to tax attorney's fees. Ofice Docket, MS p. 154, c. 8g. Recorded in Book A, MS pp. 198-205. Note: Paper 2 is printed herein. (Selected Papers, infra, case 695) The action was com- menced in the county court on August 13, 1819. Judgment was rendered in 1820. In Doty's report of this case (Doty's Reports, infra, *p. 89) reference is made to an act passed June 13, 1818. This act provided that upon the perfection of an appeal from a county court to the Supreme Court the judgment of the county court should thereby be rendered void and that the appeal should be tried on the pleadings made up in the county court, unless for good cause shown amendment of the pleadings should be allowed. (Laws of the Territory of Michigan, II, 135) Case 696 IN THE MATTER OF ALPHEUS WILLIAMS JOURNAL ENTRIES (1820): 7ournal3: (I) Motion for attachment *p. 92. PAPERS IN FILE: [None] Case 697 IN THE MATTER OF JOHN CAMPBELL, A BLACK MAN Habeas corpus ad subjiciendum JOURNAL ENTRIES (1821): Journal 3: (I) Appearances, return held suf- ficient, prisoner remanded *p. 138. PAPERS IN FILE: (I) Petition for habeas corpus and allowance of writ; (2) writ of habeas corpus and return; (3) precipe for subpoena; (4) sub- poena; (5) sheriff's bill of fees; (6) crier's bill of fees; (7) taxed bill of costs. 182! Calendar, MS p. 55. Note: The petition for habeas corpus and the return are printed herein. (Selected Papers, infra, case 697) CALENDAR OF CASES I45 Case 698 IN THE MATTER OF EZRA YOUNGLOVE Habeas corpus ad subjiciendum JOURNAL ENTRIES (1821): Journal3: (1) Appearances *p. 139; (2) com- promised by parties *p. 140. PAPERS IN FILE: (i) Petition for habeas corpus and allowance of writ; (2) writ of habeas corpus and return; (3) transcript of proceedings in county court; (4) transcript of records of justice of the peace; (5) copy of petition to justices of the peace for support while in prison and certificate of jus- tices; (6) sheriff's bill of fees; (7) crier's bill of fees; (8) taxed bill of costs. 181 Calendar, MS p. 56. NVote: Paper 5 is printed herein. (Selected Papers, infra, case 698) Case 699 WILLIAM McGAW versus CONRAD TEN EYCK AND JEREMIAH V. R. TEN EYCK, LATE MERCHANTS TRADING UNDER THE FIRM OF CONRAD TEN EYCK & CO. Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): Journal : (1) Diminution suggested, cer- tiorari ordered *p. 151; (2) motion for procedendo *p. 197; (3) continued *p. 259; (4) judgment *p. 276. PAPERS IN FILE: (I) Precipe for habeas corpus cum causa; (2) writ of habeas corpus and return; (3) additional return to habeas corpus; (4) recognizance and bail piece; (5) declaration; (6) plea of non assumpsit and demand for bill of particulars; (7) bill of particulars; (8) precipe for execution fi. fa. 1821 Calendar, MS p. 13. Recorded in Book B, MS pp. 41-45. Case 700 SAMUEL EGNEW versus JOHN ANDERSON AND THOMPSON MAXWELL Action of debt on a writing obligatory Appeal from Monroe County Court JOURNAL ENTRIES (1821): Journal 3: (I) Transcript filed, judgment *p. 153. 146 SUPREME COURT OF MICHIGAN PAPERS IN FILE: (1) Transcript of county court record; (2) copy of precipe for capias in county court; (3) copy of capias in county court; (4) copy of note in county court; (5) copy of appeal bond; (6) copy of supersedeas in county court; (7) copy of precipe for fi. fa. in county court; (8) copy of writ of fi. fa. in county court; (9) attorney's bill of fees; (io) sheriffs bill of fees; (ii) precipe for execution ca. sa.; (12) writ of ca. sa. and receipts. 1821 Calendar, MS p. 109. Recorded in Book A, MS pp. 4-5. Note: The county court file (case 12) contains: (i) precipe for capias; (2) capias and return. Case 701 JACQUES LASSELLE ET AL. versus FRANCIS LASSELLE JOURNAL ENTRIES (1821): Journal3: (I) Appearances *p. 155. PAPERS IN FILE: [None] Case 702 JOSEPH CAMPAU, ADMINISTRATOR, ETC., OF DENIS CAMPAU, DECEASED, versus JACOB SMITH Action of trespass on the case (assumpsit) Habeas corpus cum causa to Wayne County Court JOURNAL ENTRIES (1821): Journal3: (I) Appearance *p. 155; (2) motion to quash habeas corpus granted *p. 201. PAPERS IN FILE: (I) Precipe for certiorari; (2) writ of habeas corpus and return. 1821 Calendar, MS p. 54. Recorded in Book A, MS pp. 148-50o. Note: The return to the writ of habeas corpus states: "The case of Campau vs Smith was taken from our court by appeal before the coming to us of this writ." See case 827, infra. Case 703 ASA MADISON versus JAMES FULTON Action of trespass on the case (assumpsit) Appeal from Wayne County Court JOURNAL ENTRIES (1821): 7ournal3: (I) Transcript filed, judgment *p. s155. PAPERS IN FILE: (I) Transcript of county court record; (2) attorney's bill of fees. i81 Calendar, MS p. T. Recorded in Book .4A, MS pp. 22-28. CALENDAR OF CASES 147 Case 704 ELISHA TAYLOR versus WILLIAM P. RATHBONE Action of trespass on the case (assumpsit) Appeal from Wayne County Court JOURNAL ENTRIES (1821): Journal3: (I) Transcript filed, judgment *p. j56. PAPERS IN FILE: (1) Transcript of county court record; (2) precipe for execution ca. sa.; (3) writ of ca. sa. and return. 1821 Calendar, MS p. 112. Recorded in Book A, MS pp. 29-37. Case 705 BENJAMIN F. LARNED versus WILLIAM G. TAYLOR, BENJAMIN DAVIS, WOLCOTT LAWRENCE, ANTOINE LASSELLE, AND JEAN BAPTISTE CICOTT, JR. Action of debt on a bond JOURNAL ENTRIES (1821): Journal 3: (I) Appearance, motion to dismiss *p. i56; (2) discontinued *p. 190. PAPERS IN FILE: (i) Precipe for capias; (2) capias and return; (3) taxed bill of costs; (4) memo. re exemplification of bail piece. 182! Calendar, MS p. 95. Recorded in Book A, MS pp. 116-19. Case 706 UNITED STATES versus KE-WA-BISH-KIM, AN INDIAN OF THE MENOMINI NATION Indictment for murder and for manslaughter JOURNAL ENTRIES (1821): Journal 3: (I) Indictment presented *p. 158; (2) interpreters sworn *p. 158; (3) attorneys assigned, copies of indict- ment, etc., ordered furnished *p. 159; (4) prisoner ordered brought to bar *p. 177; (5) interpreter sworn, appearance *p. 178; (6) motion to quash indictment overruled *p. 178; (7) arraignment, plea, jury im- paneled *p. 178; (8) interpreter sworn *p. 178; (9) verdict, jury polled *p. 179; (io) person to attend jury sworn *p. 179; (II) interpreter sworn 148 SUPREME COURT OF MICHIGAN *p. 179; (12) prisoner ordered remanded *p. 179; (13) notice of motion in arrest *p. 179; (14) attendance of witnesses proved *p. 182; (I5) attend- ance of witness proved *p. 186; (16) attendance of witnesses proved *p. 187; (17) commitment withdrawn *p. 217-e; (18) attendance of witness and interpreter proved *p. 231; (19) motion to show cause, if any, against sentence *p. 234; (20) death sentence *p. 244; (21) sheriff ordered to carry sentence into execution *p. 244; (22) attendance and mileage of witness proved *p. 251. PAPERS IN FILE: (I) Examination of Ke-wa-bish-kim; (2) testimony of Ebenezer Childs, Louis Ducharme and Luc LaBorde; (3) letter from Robert Irwin, Jr., J.P., to Clerk of Supreme Court; (4) recognizance to appear and testify; (5) indictment; (6) precipe for subpoena; (7) sub- poena; (8) panel of jurors; (9) subpoena; (io) reasons for arrest of judg- ment; (I1) letter from acting governor re transcript of proceedings; (12) form of oath to be administered to witnesses and of questions to jury on return of verdict. 1821 Calendar, MS p. I10. Recorded in Criminal Record A, MS pp. 1-6. Note: Papers I, 2, 3, 5, Io, ii and 12 are printed herein. (Selected Papers, infra, case 706) Two Indians, Ke-wa-bish-kim and Ke-taw-kah, were indicted, tried and executed for murder in 1821. Ke-wa-bish-kim was tried by the Supreme Court sitting as the Supreme Court of the Territory, while Ke-taw-kah was tried by the Supreme Court sitting as a Circuit and District Court of the United States. The grand jurors who indicted the Indians were sworn on both sides of the court. "On calling the Grand Jury, the question was raised- What is the form of the oath to be administered to them?" (" Notes of Trials, Arguments, Decisions and Proceedings," infra) This question was debated for some time before it was discovered that the act of Dec. 31, I817 (Laws, Terr. of Mich., II, I26), which had prescribed the form of oath to be administered to grand juries, had been repealed by an act adopted Feb. 7, 1820. (Ibid., I, 491) The second act did not prescribe the form of oath, but did provide that "after the grand jury are empannelled and sworn, they shall appoint a fore- man . . . ." The attorney general proposed that the grand jurors be sworn again, "after they have chosen a foreman, by the common law oath." ("Notes of Trials, etc.," infra) "Witherell-Proposed to adjourn till the next day, and, as a legislature, pass a law prescribing the form of the oath. . ... This proposal seemed to take with the court." (Ibid.) The court was adjourned until the next day. In the meantime two of the judges and the acting governor of the territory met as a "legislature" and adopted an act which prescribed the forms of oaths for grand and petit jurors. (Laws, Terr. of Mich., I, 234) At the session of the court held the next day (Sept. 18, 1821), the grand jurors were given the oath prescribed by the law "passed last night." ("Notes of Trials, etc.," infra) On the next day (Sept. 19, 1821) Ke-wa-bish-kim and Ke-taw-kah were indicted. According to Farmer, the "statute in question is thus shown to be a genuine and unmistakable ex post facto law, applied even in a trial where two human lives were involved." (Hist. of Det. and Mich., 2d ed., I889,I, 1i8o) Was this act objectionable as ex post facto? This depends on whether the change from the common-law oath to the statutory oath was in any way prejudicial to persons indicted for crimes previously committed. (See Cooley's Constitutional Limitations, 8th ed. by Carring- ton, I, 541-54.) When compared with the statutory oath, the common-law oath is found to differ in but one material respect, viz., the foreman was sworn first. In Michigan this feature had been changed by the act of Feb. 7, 1820 before the crimes of the Indians had been committed. On the trial of Ke-taw-kah his attorneys pleaded to the jurisdiction of the Court "alledging that the Courts of the U. States could not take cognizance of crimes CALENDAR OF CASES 149 committed in the Indian Country ... ." (Detroit Gazette, Oct. 19, 1821) The arguments of counsel on this point appear in the Gazette. (Ibid.) The plea was overruled. (Ibid.) A nimilar contention was made before the Circuit Court of the United States for the County Michilimackinac July I8, 1833. Waw-ben-e-mickee, alias White Thunder, had been ound guilty of murder and, "in his proper person," moved the court to arrest the judgment for the following reasons: "First. That the said prisoner is an Indian of the Chippeway tribe of Indians, residing in the Indian Country Secondly-That the said Jean Bt. Brunet the person alleged to have been killed by the prisoner was an Indian and the offence was committed upon land to which the Indian title had not been extinguished and in a Country xoccupied by the Chippewa nation of Indians." (MS Minutes of the Circuit Court of the L'ited States for the County of Michilimackinac, Burton Historical Collection, Public Library, Detroit) This motion did not prevail and the defendant was sentenced to death July 20, .33. (Ibid.) In the celebrated case of United States v. Oshkosh, tried before the Circuit Court of the United States for Brown County in I830, the defendant was acquitted, not because the court found that it had no jurisdiction of a crime committed by one Indian against another in the Indian country, but because the jury found that by the law and custom of his tribe the defendant had a right to kill the Indian alleged to have been murdered. See indictment, special verdict and judgment, printed in "A Case of Lex Talionis," American Bar Issociation journal, XIX, 145, Mar., 1933) The following papers pertaining to the case of United States v. Ke-taw-kah are with the papers of Solomon Sibley (Burton Historical Collection, Public Library, Detroit, Vol. 39, P. 8; Vol. 43, pp. o108-II; Vol. 44, pp. 82, 83 and 84; Vol. 57, p. 44): (1) examination of Ke-taw-kah; (2) copies of indictment; (3) tes- timony of Atkinson, Johnson and McCrary; (4) briefs on question of jurisdiction. Further information concerning this case and the case of United States v. Ke-wa-bish-kim will be found in the Detroit Gazette, June I, 1821, Oct. 19, 1821, Dec. 28, 1821, Jan. I I, 1822, Jan. 8, 1822; "Capital Punishment in Detroit" by M. M. Quaife, Burton Historical Collection lzaflet, Jan. 1926, IV, No. 3, p. 46; Smith's Life and Times of Lewis Cass, p. 146; Michigan Reports, IV, Io; Historic Green Bay, p. 170; "Recollections of Wisconsin since 1820," Wisconsin Historical Collections, IV, 153; Laws, Terr. of Mich., I, 244, 249; Michigan Pioneer Collections, I, 379. The transactions of the court in United States v. Ke-taw-kah will be found in the 7ournal of the Supreme Court sitting as a Circuit and District Court of the United States. A file in the record room of the federal courts in Detroit contains fifteen papers. Case 707 ABNER YOUNG, PHILLIPS WARREN AND MOSES F. J. GAGE versus GABRIEL RICHARD, PETER J. DESNOYERS, CHARLES RIVARD, LOUIS BEUFAIT AND ANTOINE DEQUINDRE, TRUS- TEES OF THE CORPORATION OF THE CATHOLIC, APOSTOLIC AND ROMAN CHURCH OF ST. ANNE Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821-22): 7ournal/3: (I) Death suggested, proceedings stayed *p. 161; (2) discontinued *p. 367. PAPERS IN FILE: (1) Precipe for process; (2) capias and return. Office Docket, MS p. 73, c. 6. (Case 43 of I820) Recorded in Book B, MS pp. 169-71. ISo SUPREME COURT OF MICHIGAN Case 708 CONRAD TEN EYCK AND JEREMIAH V. R. TEN EYCK, TRAD- ING UNDER THE FIRM OF CONRAD TEN EYCK & CO., versus HIRAM PEIRCE AND WOLCOTT LAWRENCE, TRADING UNDER THE FIRM OF HIRAM PEIRCE & CO. Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821): 7ournal3: (I) Settled by the parties *p. 161. PAPERS IN FILE: (z-2) Affidavits and precipes; (3) capias and return. Office Docket, MS p. 73, c. 5. Case 709 STEPHEN K. GROSVENOR AND REUBEN B. HEACOCK, TRAD- ING UNDER THE FIRM OF GROSVENOR & HEACOCK, versus MICHAEL DOUSMAN Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821-24): 7ournal3: (I) Continued *p. 162; (2) con- tinued *p. 344; (3) discontinued *p. 487. PAPERS IN FILE: [None] Office Docket, MS p. 78, c. 12. (Case 46 of 1820) Case 710 ELIPHALET AUSTIN versus AUSTIN E. WING, SHERIFF OF WAYNE COUNTY Action of replevin JOURNAL ENTRIES (1821): 7ournalg: (z) Discontinued *p. 162. PAPERS IN FILE: (z) Precipe for writ of replevin. Office Docket, MS p. 97, c. 48. Case 7 11 WILLIAM MACOMB versus GIDEON LEET Action of debt on .... JOURNAL ENTRIES (1821): 7ournal3: (I) Discontinued *p. 162. PAPERS IN FILE: [None] Office Docket, MS p. 71, c. 2. CALENDAR OF CASES '5' Case 712 JAMES W. LITTLE versus WILLIAM P. RATHBONE Action of trespass on the case (assumpsit) (attachment) JOURNAL ENTRIES (1821-24): Journal3: (i) Continued *p. 162; (2) con- tinued *p. 333; (3) continued *p. 386; (4) discontinued *p. 487. PAPERS IN FILE: (1) Precipe for capias; (2) precipe for attachment; (3) affidavit for attachment; (4) attachment bond; (5) capias and return; (6) writ of attachment and return. Ofice Docket, MS p. 8o, cases 16 and [I6-a]; p. 102, c. I. (Case 53 of I820) Case 713 LEVI GOSS versus JOSEPH L. SMITH Action of trespass (assault and battery) Removed from Wayne County Court by habeas corpus and certiorari JOURNAL ENTRIES (1821-24): Journal3: (i) Death suggested, proceedings stayed *p. 162; (2) entry re abatement rescinded, continued *p. 171; (3) death of plaintiff suggested *p. 271; (4) proceedings stayed *p. 334; (5) motion to set aside stay *p. 493; (6) stay set aside *p. 505; (7) motion for judgment *p. 508; (8) remand by procedendo *p. 5II. PAPERS IN FILE: (I) Precipe for certiorari; (2) precipe for habeas corpus cum causa; (3) bond for habeas corpus; (4) writ of habeas corpus; (5) writ of certiorari; (6) transcript of county court record; (7) precipe for subpoena; (8) subpoena; (9) commission to take depositions; (Io) letter from John Fowle to Melvin Dorr, clerk; (ii) draft of journal entry; (12) motion for judgment; (13) copy of taxed bill of costs. Office Docket, MS p. o105, case 4 and [4-a]. (Case 56 of 1820) Recorded in Book B, MS pp. 331-35. NVote: The county court file (case 251i) contains: (1) precipe; (2) capias and return; F) declaration and plea; (4) copy of declaration; (5) subpoena; (6) deposition; (7) writ of pt ocedendo. Case 714 SHUBAEL CONANT versus AUGUSTUS B. WOODWARD Action of trespass on the case ( . . . . ) Removed from Wayne County Court by habeas corpus and certiorari JOURNAL ENTRIES (1821): journal3: (i) Discontinued *p. 163. PAPERS IN FILE: (I) Precipe for habeas corpus and certiorari. Office Docket, MS p. 106, c. 5. x52 SUPREME COURT OF MICHIGAN Case 715 UNITED STATES TERRITORY OF MICHIGAN versus DAVID GWYNNE Indictment for encouraging the fighting of a duel Removed from Wayne County Court by habeas corpus and certiorari JOURNAL ENTRIES (1821-22): Journal 3: (I) Motion for nolle prosequi overruled *p. I65; (2) nolle prosequi *p. 299. PAPERS IN FILE: (I) Precipe for habeas corpus and certiorari; (2) bond for habeas corpus and certiorari; (3) writ of habeas corpus; (4) writ of certiorari; (5) transcript of county court record; (6) sheriff's bill of fees. z82z Calendar, MS p. 37. Note: The indictment is printed herein. (Selected Papers, infra, case 715) Case 716 WARREN HOWARD versus WILLIAM BROWN AND ABRAHAM EDWARDS, COMMISSIONERS OF WAYNE COUNTY Motion for mandamus JOURNAL ENTRIES (1821-23): Journal 3: (I) Motion for mandamus *p. i65; (2) motion for mandamus granted *p. 217-i; (3) rule to return man- damus *p. 388; (4) order for judgment for costs *p. 444. PAPERS IN FILE: (I) Affidavit of Warren Howard; (2) writ of mandamus and return; (3) copy of writ of mandamus and proof of service; (4) draft of writ of mandamus; (5) extract from records of county commissioners. 1822-23 Calendar, MS p. 3. Note: Paper 2 is printed herein. (Selected Papers, infra, case 716) See case 667, supra. Case 717 PETER WILLARD AND ADNA MERRITT versus WILLIAM BROWN Action of trespass on the case (assumpsit) Appealfrom Wayne County Court JOURNAL ENTRIES (1821-22): 7ournal3: (I) Jury impaneled *p. 165; (2) jurors discharged until next day *p. 166; (3) jurors called *p. 169; (4) evidence heard, jury charged *p. 170; (5) disagreement reported, jury CALENDAR OF CASES 153 sent back *p. 172; (6) disagreement reported, jury sent back *p. 174; (7) verdict, jury polled *p. 175; (8) motion for new trial *p. 175; (9) jury discharged until later date *p. 175; (io) motion for new trial overruled *p. 257; (11) motion for judgment *p. 258; (12) motion in arrest of judg- ment *p. 258; (13) reasons for judgment required, continued *p. 258; (14) judgment *p. 378. PAPERS IN FILE: (1) Agreement re use of deposition; (2) transcript of county court record; (3-4) precipes for subpoenas; (5) subpoena; (6) precipe for subpoena; (7) subpoena; (8) verdict; (9) reasons for new trial; (Io) rea- sons in arrest of judgment; (II) precipe for subpoena; (12) subpoena; (13) memo. re taxation of fees; (14) memo. of witnesses sworn and of costs; (I5) precipe for fi. fa.; (16) statement of accounts. S21 Calendar, MS p. io6. Recorded in Book B, MS pp. 197-202. Vote: The reasons assigned for a new trial were: "First, The verdict in this case is con- trary to law Second, The same is contrary to evidence Third The Jury in the said case ,cperated without the leave of the Court & otherwise misbehaved Fourth the defendant was taken by surprize insomuch as Harvey Williams a most material witness for the de- fendant was suddenly taken sick by reason of which said Witness could not attend at the trial Fifth that said defendant has since the trial & verdict in this case discovered new & material evidence in his behalf, which the said defendant could not by the use of any legal diligence have acquired a knowledge of before the trial of said case." The county court file case 415) contains: (a) precipe; (2) capias and return; (3) declaration; (4) plea; (5) sub- poena; (6) precipe for subpoena; (7-9) subpoenas; (io) precipe for subpoena; (i i) subpoena; 11) verdict; (13) recognizance on appeal. Case 718 UNITED STATES versus THOMAS COWLES, JOHN KNAPP, BEN- JAMIN DEWITT, SAMUEL AMIDON, ISAAC A. COMBS AND NATHANIEL CLARK Indictment for riot and assault and battery Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): ournal 3: (I) Recognizance, continued *p. 168; (2) continued *p. 349; (3) recognizance extended, continued *p. 377. PAPERS IN FILE: (I) Precipe for habeas corpus curm causa; (2) writ of habeas corpus; (3) transcript of county court record; (4) precipe for subpoena; (5) subpoena; (6) affidavit for continuance; (7) precipe for subpoena; (8) subpoena. 1 2! Calendar, MS p. 70. X54 SUPREME COURT OF MICHIGAN Case 719 IN THE MATTER OF THE ESTATE OF BAZIL PEPIN, DECEASED Petition to sell real estate JOURNAL ENTRIES (1821): 7ournal3: (i) Notice of petition ordered pub- lished *p. 169; (2) notice proved, sale ordered *p. 247. PAPERS IN FILE: [None] Note: A notice of the above petition was published in the Detroit Gazette on Sept. 21, 182:. Case 720 HUBERT LACROIX versus ISAAC P. SKINNER, ISAAC W. LEE AND SAMUEL EGNEW Action of debt on a bond JOURNAL ENTRIES (1821): journal3: (I) Motion to dismiss for want of legal service of writ, granted *p. 171. PAPERS IN FILE: (I) Precipe for capias; (2) affidavit of illegal service. r821 Calendar, MS p. 58. Recorded in Book A, MS pp. 64-66. Note: In the above affidavit Skinner states "that the original writ was served by Austin E. Wing Esq Sheriff of the County of Wayne upon this affiant, Isaac Lee and Samuel Egneau in the County of Monroe and that sd writ has not at any time been served, out of the juris- diction of said County of Monroe." See case 940, infra. Case 72 1 JAMES FULTON versus SAMUEL S. PHELPS AND JONAS W. COLBURN Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-26): 7ournal3 : (I) Appearance, motion for rule to plead *p. 173; (2) rule for special bail or procedendo *p. 222; (3) com- missions to take depositions allowed, etc. *p. 242; (4) continued *p. 254; (5) continued *p. 338; (6) attendance of witness roved *p. 339; (7) C.ILENDIIR OF C4SES 155 attendance of witness proved *p. 339; (8) waiver of bail as to Colburn *p. 415; (9) motion for procedendo overruled *p. 417; (io) jury impaneled *p. 417; (11) witnesses sworn *p. 418; (12) motion to read deposition overruled *p. 419; (13) motion to read deposition overruled *p. 419; (14) witness sworn *p. 420; (i5) juror failing to answer, jury discharged *p. 42; (i6-i8) attendance of witnesses proved *p. 421; (19) motion for rule on witnesses to show cause against attachment, motion for bail or procedendo *p. 489; (20) jury impaneled, witnesses sworn *p. 489; (21) motions to read depositions overruled, witnesses sworn *p. 490; (22) witness held competent, sworn *p. 491; (23) evidence and argument heard *p. 492; (24) verdict, motion for new trial *p. 494; (25) attendance of witnesses proved *p. 495. Journal : (26) Motion for new trial over- ruled MS p. 5; (27) motion in arrest of judgment MS p. S; (28) contin- ued MS p. 94; (29) motion in arrest of judgment overruled MS p. 117; (30) judgment for costs MS p. 121. PAPERS IN FILE: (T) Precipe for habeas corpus cum causa; (2) precipe for habeas corpus cum causa; (3) recognizance of bail; (4) writ of habeas corpus; (S) transcript of county court record; (6-8) notice of taking de- position; (9) deposition of Lorin Hodge; (io) precipe for subpoena; (iI) subpoena; (12) declaration and plea of non assumpsit; (13) precipe for subpoena; (14) recognizance of bail and bail piece; (is) precipe for com- mission to take deposition; (16) interrogatories for Roderick Keyes; (17) deposition of Roderick Keyes and commission to take deposition; (18) precipe for subpoena; (19-20) subpoenas; (21) bill of particulars; (22) precipe for subpoena; (23) subpoena; (24) precipe for subpoena; (25-26) subpoenas; (27) affidavit for a continuance; (28) deposition of Samuel Wilkeson; (29) deposition envelope; (30) precipe for subpoena; (31) sub- poena; (32) stipulation re taking depositions, etc.; (33) precipe for sub- poena; (34) subpoena; (35) deposition of Rix Robinson; (36-37) deposi- tion envelopes; (38) precipe for subpoena; (39) subpoena; (40-41) prec- ipes for subpoenas; (42-43) subpoenas; (44) precipe for subpoena; (45-48) subpoenas; (49) waiver of bail; (o50) subpoena; (51) precipe for subpoena; (52) subpoena; (53) deposition of Charles Lamrned; (54) inter- rogatories for Col. Lamrned; (55) deposition of Michael Dousman; (56) deposition of Joseph Gooley; (57) deposition of Adam D. Stewart; (58) deposition of Samuel Wilkeson; (59) deposition of Samuel A. Bigelow; (60) deposition envelope; (61) precipe for subpoena; (62) subpoena; (63) precipe for subpoena; (64) subpoena; (65) precipe for subpoena; (66) subpoena; (67) precipe for subpoena; (68-71) subpoenas; (72) precipe for subpoena; (73) copy of motion for rule on witnesses to show cause against attachment; (74) motion for bail or procedendo; (75) precipe for subpoena; (76) verdict; (77) reasons for new trial; (78) affidavit of David McKinstry; 56 SUPREME COURT OF MICHIGAN (79) affidavit of James Fulton; (80) affidavit of John M. Wilson; (Si motion in arrest of judgment; (82) reasons in arrest of judgment; (83) precipe for execution fi. fa.; (84) writ of fi. fa.; (85) precipe for execution ca. sa.; (86) writ of ca. sa.; (87) sheriffs receipt for ca. sa.; (88) memo. of amount due on note; (89) letter from Phelps to Colburn. Office Docket, MS p. III, c. IO. (Case 62 of 1820) Note: Paper 77 is printed herein. (Selected Papers, infra, case 721) The following notes in the handwriting of Judge Sibley have been found among his papers (Burton Historical Collection, Public Library, Detroit, Vol. 51, p. 91): "Fulton vs Phelps &c M° for N Trial- Mr Wr Auth'-American digest 254-1 Masse R. 530 referred to-misbehavior of Juror- cause for N. T.-Mr Larned contends, that to set aside a verdict for misbehaviour of a Juror it must be Gross and palpable, and such as evidently had an influence on the verdict, & that it must be fraudulent-and that these facts should be made out by the party moving for a new Trial-Contends that the amt in dispute is Triffling in the amount.-Mr Phelps principle witness for deft dead since last time, reason agt a N. Trial-That the rejection of the depositions for informality, was as much agt the Pltf as agt the deft therefore no cause for a N. Trial-Mr Woodbridge-That if the conduct of the juror is such as to render a suspicion of an influence upon the verdict-the Court should set aside the verdict-Bac. 7. 12." Reasons assigned for arresting judgment were: "I. Because in this case the writ of Habeas corpus was sued out by and in the name of Phelps, one of the Joint Defendants- only, and that a Rule was entered at the return term, that the Defendants file Bail in two days or that procedendo issue.-that one of the Defendants only, i.e Phelps entered special Bail and only for himself, and not for Colburn the other joint defendant 2d that previous to the swearing the jury in this case, at the last term a mo. was made by the Plff. that the Deft Colburn should file special Bail or that procedendo issue.-which was overruled-3d That the Jury sworn in the case were not ballotted or elected-but taken in successive order as their names followed each other on the panel, altho' the Plff. at the time objected to that mode of making a jury-and moved the Court that the jury might be ballotted and elected according to Law.--4. that the jury-sworn in this case, as appear of Record were 'Sworn to try the issue joined between the Plff. and the Defendants'-5. Because by the law, the Defendants have never effected a legal appearance in this Court-so that this Court have no legal power or authority to render judgment in case of either of the Defendants." The county court file (case 376) contains: (i) precipe; (2) capias and return; (3) directions re service of writ; (4) declaration; (5) plea; (6) affidavit. Case 722 DANIEL D. JOHNSON versus BENJAMIN STEAD Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): Journal 3: (i) Motion for rule to plead overruled *p. 173; (2) motion for writ of procedendo overruled *p. 173; (3) leave to withdraw declaration granted *p. 173; (4) motion for writ of procedendo overruled *p. 174; (5) defendant's administrator ruled to appear *p. 258; (6) discontinued *p. 334. CALENDAR OF CASES 157 P.PERS IN FILE: (i) Precipe for habeas corpus cum causa; (2) recognizance of special bail; (3) writ of habeas corpus; (4) transcript of county court record; (5) declaration; (6) precipe for subpoena; (7) subpoena. Office Docket, MS p. o108, c. 7. Recorded in Book A, MS pp. 409-18. Note: Reasons for the several rulings of the court on the above motions were published in the Detroit Gazette, Dec. 6, 1822. (See "Notes of Trials, etc.," infra.) A photostat of a "Mere° of points in argt" (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 57, p. 24) has been placed in the file. The county court file (case 420) contains: t) precipe; (2) capias and return; (3) declaration and plea. Case 723 SARAH PARKER, ADMINISTRATRIX OF THE ESTATE OF SAMUEL S. PARKER, DECEASED, versus LUTHER PARKER Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821): journal3: (I) Motion to quash writ granted *p. 174. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return. IS21 Calendar, MS p. 81. Recorded in Book A, MS pp. 67-69. Note: "Woodbridge & Lawrence moved that the writ be quashed. It is a capias, and there is no endorsement thereon that bail is required. The plaintiff does not show that he was entitled to bail-and in such cases the statute provides that a summons shall issue. There are not six judicial days between the day of service and that of the return. The service was on the ioth Sept. and the return-day was Monday the 17th; the sixth day was therefore Sunday. Larnedfor plaintiff.-If a capias issue, bail must be taken by the officer, for the writ itself is a demand of bail. It is not necessary therefore that there should be any endorsement on the capias that bail is required. Sunday must be counted, as it is an intervening day, and not the last of the return. Per curiam.-There must be an endorse- ment on the capias when it is issued, that bail is required. The capias itself does not require bail. (No decision on the other point.)" ("Notes of Trials, etc.," infra) Case 724 UNITED STATES versus GEORGE DOUGHTS Indictment for murder JOURNAL ENTRIES (1821-23): 7ourna/l3: (i) Prisoner ordered committed, counsel assigned *p. 176; (2) arraignment, plea, Leib prosecutor pro tern *p. 402; (3) jury trial, verdict, discharge *p. 402. PAPERS IN FILE: (I) Indictment; (2) copy of indictment. Note: See case B-3o, infra. I58 SUPREME COURT OF MICHIGAN Case 725 ANTOINE LASSELLE versus THOMAS CALDWELL, ADMIN- ISTRATOR, ETC., OF JAMES LASSELLE, DECEASED Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821): 7ournal3 : (I) Motion for discharge because of illegal service of writ, judgment *p. 180. PAPERS IN FILE: (I) Summons and return. 1821 Calendar, MS p. 99. Recorded in Book A, MS pp. 70-74. Case 726 LAURENT DUROCHER, EXECUTOR OF THE WILL OF MARIE B. LASSELLE, DECEASED, versus THOMAS CALDWELL, ADMIN. ISTRATOR OF THE ESTATE OF JAMES LASSELLE, DECEASED Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821): Journal3 : (I) Motion for discharge because of illegal service of writ, judgment *p. 181. PAPERS IN FILE: [None] r82z Calendar, MS p. o100. Recorded in Book A, MS pp. 75-79. Case 727 LAURENT DUROCHER, EXECUTOR OF THE WILL OF MARIE B. LASSELLE, DECEASED, versus THOMAS CALDWELL, ADMIN- ISTRATOR OF THE ESTATE OF JAMES LASSELLE, DECEASED Action of debt on a bond JOURNAL ENTRIES (1821): Journal3j: (I) Motion for discharge because of illegal service of writ, judgment *p. 181. PAPERS IN FILE: [None] 1821 Calendar, MS p. 101. Recorded in Book A, MS pp. 80-83. CALENDAR OF CASES 159 Case 728 JOHN MeDONELL versus HENRY HUDSON Action of trespass on the case (trover) Removed from Wayne County Court by habeas corpus cum causa JOU'RNAL ENTRIES (1821-22): 7ournal3: (I) Continued *p. 182; (2) jury impaneled, nonsuit *p. 288; (3) nonsuit taken off, jury impaneled *p. 289; (4) witnesses sworn, constable sworn *p. 289; (5) verdict *p. 289; (6) rule for judgment *p. 326; (7) judgment *p. 365. PAPERS IN FILE: (I) Recognizance and precipe for habeas corpus cum causa; (2) writ of habeas corpus; (3) transcript of county court record; (4) precipe for subpoena; (5) subpoena; (6-7) precipes for subpoenas; (8) declaration; (9) plea of not guilty; (io) precipe for subpoena; (1i1-13) subpoenas; (14-i5) panels of jurors; (16) verdict; (17) affidavit of Charles Larned; (18) precipe for fi. fa.; (I9) writ of fi. fa. and return. Office Docket, MS p. I 17, c. 17. Recorded in Book A, MS pp. 443-53. Vote: The county court file (case 392) contains: (i) precipe; (2) capias and return; (3) affidavit; (4) declaration; (5) plea; (6) precipe for subpoena; (7) subpoena; (8) affidavit for continuance; (9-o10) subpoenas. Case 729 IRA ENO versus ANAN HARMON Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): 7ournal 3: (I) Motion for judgment *p. 185; (2) motion overruled, rule to plead *p. 185; (3) leave to withdraw plea, rule for special bail or procedendo *p. 210; (4) continued *p. 254; (5) rule for judgment *p. 276. PAPERS IN FILE: (I) Precipe for habeas corpus cum causa; (2) writ of habeas corpus; (3) transcript of county court record; (4.) declaration; (5) plea of non assumpsit; (6) Recognizance; (7) plea of non assumpsit; (8) precipe for subpoena; (9) subpoena; (io) precipe for execution ca. sa.; (II) writ of ca. sa. and return; (I2-13) precipes to suspend service of ca. sa.; (14) request to file notice; (15) notice of set off of personal property and proof of service; (16) precipe for execution fi. fa.; (17) draft of certificate; (i8) bail piece; (19) memo. re case in county court; (20) promissory note; (21) copy of promissory note. 16o SUPREME COURT OF MICHIGAN Ofice Docket, MS p. 124, c. 31. (Case 84 of 1820) Recorded in Book A, MS pp. 497-506. Note: Paper I5 is printed herein. (Selected Papers, infra, case 729) It was accompanied by a request that it be filed in the clerk's office "pursuant to the 13th Section of the Law herewith sent for your inspection." Case 730 JEAN BAPTISTE LASSELLE, ADMINISTRATOR, ETC., OF JEAN BAPTISTE LASSELLE, DECEASED, versus ANTOINE LASSELLE Action of trespass on the case (injuries resulting from maintenance of dam) Appeal from Monroe County Court JOURNAL ENTRIES (1821): journal3: (i) Death suggested, substitution, transcript filed, judgment *p. 185. PAPERS IN FILE: (I) Transcript of county court record; (2) copy of precipe in county court; (3) copy of capias in county court; (4) copy of subpoena in county court; (5) copy of appeal bond; (6) attorney's bill of fees; (7) precipe for fi. fa.; (8) taxed bill of costs. 182r Calendar, MS p. 113. Recorded in Book A, MS pp. 84-9I. Note: The declaration is printed herein. (Selected Papers, infra, case 730) A photostat of a statement signed by W. G. Taylor (Woodbridge Papers, Burton Historical Collection, Public Library, Detroit, Vol. 115) has been placed in the file. This statement contains a summary of the evidence introduced in the county court. Case 73 1 GEORGE JACOB versus JAMES FULTON AND CONRAD TEN EYCK Action of trespass on the case (assumpsit) Appeal from Wayne County Court JOURNAL ENTRIES (1821): Journal 3: (I) Transcript filed, judgment *p. 187. PAPERS IN FILE: (i) Transcript of county court record; (2) precipe for execution ca. sa.; (3) writ of ca. sa. and receipts; (4) sheriff's bill of fees; (5) taxed bill of costs. 1821 Calendar, MS p. 114. Recorded in Book A, MS pp. 92-101. CALENDAR OF CASES 161 Case 732 JOHN McDONELL versus AUGUSTUS PORTER, BENJAMIN BAR- TON AND NATHANIEL SILL, MERCHANTS TRADING UNDER THE FIRM OF PORTER, BARTON & CO. Action of trespass on the case (trover) Certiorari to Wayne County Court JOURNAL ENTRIES (1821-22): Journal 3: (I) Motion to quash certiorari *p. 188; (2) continued *p. 254; (3) certiorari quashed *p. 370; (4) cer- tiorari quashed *p. 376. PAPERS IN FILE: (I) Recognizance; (2) writ of certiorari; (3) transcript of county court record; (4) sheriff's bill of fees. Office Docket, MS p. 119, c. 20. (Case 72 of 1820) .Vote: The county court file (case 423) contains: (i) precipe; (2) capias and return; 3) precipe; (4) capias and return; (5) declaration; (6) schedule of goods; (7) precipe for fi. fa. Case 733 JEDEDIAH MESSENGER versus JOHN B. COOK Action of trespass on the case (assumpsit) before Thomas Rowland, 7.P. Removed to Supreme Court by habeas corpus cum causa JOURNAL ENTRIES (1821): Journal3: (i) Discontinued *p. 188. PAPERS IN FILE: (I) Writ of habeas corpus and allowance; (2) transcript of J. P. record; (3) precipe for discontinuance. Ofice Docket, MS p. 120, c. 23. Recorded in Book A, MS pp. 102-106. Case 734 BENJAMIN F. LARNED versus WILLIAM G. TAYLOR, BEN- JAMIN DAVIS AND WOLCOTT LAWRENCE Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821): Journal3: (I) Cognovit, judgment *p. 188; (2) judgment stricken, rule to plead *p. 213; (3) jury trial, verdict, judgment *P. 214; (4) sheriff sworn to attend jury *p. 214. 162 SUPREME COURT OF MICHIGAN PAPERS IN FILE: (i) Precipe for process; (2) capias and return; (3) recog- nizance; (4) declaration and plea of non assumpsit; (5) panel of jurors; (6) verdict; (7) taxed bill of costs; (8) precipe for execution ca. sa.; (9) writ of ca. sa. and return; (io) notice of set off of real property; (I1) notice of refusal to accept property as set off; (12) writ of fi. fa. and re- turn; (13) promissory note. Office Docket, MS p. I1, c. 78. Recorded in Book A, MS pp. 107-12. Note: Papers io and Ix are printed herein. (Selected Papers, infra, case 734) Case 735 WOLCOTT LAWRENCE, LOWRIN MARSH, WILLIAM G. TAYLOR AND HEMAN BROWN, JR. versus BENJAMIN DAVIS Removed from Monroe County Court by habeas corpus cum causa JOURNAL ENTRIES (1821): 7ournal3: (I) Discontinued *p. 189. PAPERS IN FILE: (I) Precipe for habeas corpus cum causa. Office Docket, MS p. 122, c. 26. Case 736 WOLCOTT LAWRENCE, LOWRIN MARSH, WILLIAM G. TAYLOR AND HEMAN BROWN, JR. versus BENJAMIN DAVIS Removed from Monroe County Court by habeas corpus cum causa JOURNAL ENTRIES (1821): 7ournal3: (I) Discontinued *p. 189. PAPERS IN FILE: (I) Precipe for habeas corpus cum causa. Office Docket, MS p. I22, c. 27. Case 737 WOLCOTT LAWRENCE, LOWRIN MARSH, WILLIAM G. TAYLOR AND HEMAN BROWN, JR. versus BENJAMIN DAVIS Removed from Monroe County Court by habeas corpus cum causa JOURNAL ENTRIES (1821): Journal3: (I) Discontinued *p. 189. PAPERS IN FILE: (I) Precipe for habeas corpus cum causa. Office Docket, MS p. I23, c. 28. CALENDAR OF CASES 163 Case 738 BENJAMIN DAVIS versus WOLCOTT LAWRENCE, LOWRIN MARSH, WILLIAM G. TAYLOR AND HEMAN BROWN, JR. . . . • . . . . •. . . . . . . Removed from Monroe County Court by habeas corpus cum causa JOURNAL ENTRIES (1821): 7ournal3: (i) Discontinued *p. 189. PAPERS IN FILE: (I) Precipe for habeas corpus cum causa. Ofice Docket, MS p. I23, c. 29. Case 739 JOHN DEGRAFF, ABRAHAM VAN SANTVOORD, JONATHAN WALTON AND ERI LUSHER, MERCHANTS IN COMPANY TRADING UNDER THE FIRM OF DEGRAFF, SANTVOORD & CO., versus ANAN HARMON Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): Journal3: (I) Motion for procedendo *p. 189; (2) rule for judgment *p. 275. PAPERS IN FILE: (I) Precipe for habeas corpus cum causa; (2) writ of habeas corpus; (3) transcript of county court record; (4.) declaration; (5) recog- nizance and bail piece; (6) plea of non assumpsit; (7) precipe for sub- poena; (8) subpoena; (9) precipe for execution ca. sa.; (io) writ of ca. sa. and return; (II) precipe for execution fi. fa.; (12) writ of fi. fa. and return. Office Docket, MS p. 124, c. 30. Recorded in Book A, MS pp. 468-79. Note: A memo. re this case in the county court is with the papers in case 729. Case 740 FRANCIS CHARTIER versus MICHEL TREMBLE Action of trespass on the case (assumpsit) before John K. Smith, 7. P. Certiorari to John K. Smith JOURNAL ENTRIES (1821-24): Journal 3: (I) Continued *p. 191; (2) con- tinued *p. 334; (3) continued *p. 444; (4.) rule to join ir error *p. 503; (5) judgment affirmed *p. 514. 164 SUPREME COURT OF MICHIGAN PAPERS IN FILE: (I) Precipe for certiorari; (2) writ of certiorari and allow- ance; (3) transcript of J. P. record; (4) letter from Smith, J. P., to clerk of Supreme Court; (5) precipe for execution fi. fa. Office Docket, MS p. 125, c. 32. (Case 85 of 1820) Recorded in Book B, MS pp. 448-50. Case 74.1 ABRAHAM EDWARDS, ANTHONY BEELIN, HENRY C. BOSLER AND LOUIS BELMAN, LATE PARTNERS UNDER THE FIRM OF ABRAHAM EDWARDS & CO., versus HENRY HUDSON Action of trespass on the case (trover) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): Journal3: (I) Continued *p. 191; (2) jury impaneled *p. 288; (3) name of witness sworn *p. 289; (4) constable sworn to attend jury *p. 289; (5) verdict, motion in arrest of judgment *p. 289; (6) judgment *p. 365. PAPERS IN FILE: (I) Recognizance and precipe for habeas corpus; (2) writ of habeas corpus cum causa; (3) transcript of county court record; (4) declaration; (5) plea of not guilty; (6) panel of jurors; (7) verdict; (8) attachment for Louis Peltier; (9) precipe for execution fi. fa.; (io) writ of fi. fa. and return. Office Docket, MS p. I26, c. 34. Recorded in Book A, MS pp. 507-17. Case 742 MARY ANN SCOTT, ADMINISTRATRIX, ETC., OF WILLIAM McDOWELL SCOTT, DECEASED, versus JOHN ANDERSON Action of debt on a bond Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): journal 3: (I) Rule for special bail or pro- cedendo *p. 192; (2) stricken from 1820 Calendar *p. 224; (3) continued *p. 225; (4) continued *p. 254; (5) rule for judgment subject to set offs *P. 339; (6) rule for judgment rescinded *p. 342; (7) rule for judgment *p. 346; (8) reference of set offs *p. 346; (9) reference of set offs rescinded, reference *p. 369; (io) award filed and confirmed *p. 378; (II) name of administrator de bonis non entered *p. 428. CALENDAR OF CASES x65 PAPERS IN FILE: (I) Recognizance and precipe for habeas corpus; (2) habeas corpus cum causa; (3) transcript of county court record; (4) declaration; (5) recognizance and bail piece; (6) prayer for oyer; (7) plea of nil debet, notice of set off, notice of motion; (8) precipe for judgment; (9) award of arbitrators; (io) precipe to enter receipt of sheriff's fees; (x I) precipe to enter payment of counsel's fees; (12) receipt for costs; (13) satisfaction piece; (14) copy of bond. Ofce Docket, MS p. 132, c. 47. (Case 98 of I820) Recorded in Book B, MS pp. 21-26. Note: Paper 7 is printed herein. (Selected Papers, infra, case 742) The following papers are also in the file: (x) precipe for habeas corpus cum causa; (2) writ of habeas corpus; (3) transcript of county court record. These papers antedate similar papers listed above by a few days. See Office Docket, MS p. 128, c. 39. The county court file (case 495) contains: (i) precipe; (2) capias and return; (3) declaration and plea. Case 743 MARY ANN SCOTT, ADMINISTRATRIX, ETC., OF WILLIAM McDOWELL SCOTT, DECEASED, versus JOHN ANDERSON Action of debt on a bond Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-23): 7ournal 3: (i) Rule for special bail or pro- cedendo *p. 192; (2) stricken from 1820 Calendar *p. 224; (3) continued *p. 225; (4) rule for judgment subject to set offs *p. 339; (5) rule for judgment rescinded *p. 342; (6) rule for judgment *p. 346; (7) reference of set offs *p. 346; (8) reference of set offs rescinded, reference *p. 369; (9) award filed and confirmed *p. 378; (1o) name of administrator de bonis non entered *p. 428. PAPERS IN FILE: (I) Recognizance and precipe for habeas corpus; (2) writ of habeas corpus cum causa; (3) transcript of county court record; (4) declaration; (5) recognizance and bail piece; (6) prayer for oyer; (7) plea of nil debet, notice of set off and notice of motion; (8) precipe for judgment; (9) agreement for reference; (io) satisfaction piece; (xI) copy of bond. Ofce Docket, MS p. 133, c. 48. (Case 99 of 1820) Recorded in Book B, MS pp. 27-32. Note: The following papers are also in the file: (1) precipe for habeas corpus; (2) writ of habeas corpus cum causa; (3) transcript of county court record. These papers antedate similar papers listed above by a few days. See Office Docket, MS p. 128, c. 38. Papers 9, o, ii and 12 of case 742 pertain also to this case. The county court file (case 496) contains: (:) precipe; (2) capias and return; (3) declaration and plea. 166 SUPREME COURT OF MICHIGAN Case 744 JONATHAN EASTMAN versus JOHN ANDERSON Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (I821-22): journal 3: (I) Rule for special bail or pro- cedendo *p. 192; (2) stricken from I820 Calendar *p. 224; (3) continued *p. 225; (4) discontinued *p. 276. PAPERS IN FILE: (I) Recognizance and precipe for habeas corpus; (2) writ of habeas corpus cum causa; (3) transcript of county court record; (4) recognizance and bail piece; (5) declaration; (6) plea of non assumpsit. Office Docket, MS p. 138, c. 53. Recorded in Book B, MS pp. I1i-16. Note: The following papers are also in the file: (1) precipe for habeas corpus cum causa; (2) recognizance. These papers antedate similar papers listed above by a few days. See Ofice Docket, MS p. I29, case 40. The county court file (case 494) contains: (1) precipe; (2) capias and return; (3) declaration. Case 745 JOSEPH SPENCER versus JOHN ANDERSON Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): Journal 3: (1) Rule for special bail or pro- cedendo *p. 192; (2) stricken from Calendar *p. 225; (3) continued *p. 225; (4) rule for judgment *p. 276. PAPERS IN FILE: (i) Recognizance and precipe for habeas corpus; (2) writ of habeas corpus cum causa; (3) transcript of county court record; (4) declaration; (5) recognizance and bail piece; (6) plea of non assumpsit; (7) precipe for ca. sa. Office Docket, MS p. 139, c. 54. Recorded in Book A, MS pp. 488-96. Note: The following papers are also in the file: (1) precipe for habeas corpus cum causa; (2) recognizance. These papers antedate similar papers listed above by a few days. See Office Docket, MS p. 129, case 41. The county court file (case 487) contains: (1) precipe; (2) capias and return; (3) declaration. CALENDAR OF CASES 167 Case 746 SAMUEL S. PHELPS versus JOHN ANDERSON Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): 7ournal 3: (i) Rule for special bail or pro- cedendo *p. 192; (2) stricken from Calendar *p. 225; (3) continued *p. 225; (4) rule for judgment *p. 276. PAPERS IN FILE: (I) Recognizance and precipe for habeas corpus; (2) writ of habeas corpus cum causa; (3) transcript of county court record; (4) declaration; (5) recognizance and bail piece; (6) plea of non assumpsit; (7) precipe for execution fi. fa.; (8) writ of fi. fa. and return; (9) copy of promissory note. Office Docket, MS p. 137, c. 52. Recorded in Book B, MS pp. 6-10. Note: The following papers are also in the file: (1) precipe for habeas corpus cum causa; (2) recognizance. These papers antedate similar papers listed above by a few days. See Office Docket, MS p. 130, c. 42. The county court file (case 510o) contains: (a) precipe; (2) capias and return; (3) declaration. Case 747 ESTHER RICHARDSON versus CHARLES LARNED Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (182I): 7ournal3: (I) Cognovit, judgment *p. 193. PAPERS IN FILE: (I) Precipe for habeas corpus cum causa; (2) recognizance; (3) writ of habeas corpus; (4.) transcript of county court record; (5) declaration; (6) promissory note; (7) memo. of amount due on note. Office Docket, MS p. 140, c. 55. Recorded in Book A, MS pp. 120-28. Note: In the file there is a precipe for habeas corpus cum causa filed some six months earlier than the precipe listed above. See Office Docket, MS p. 107, c. 6. The county court file (case 471) contains: (1) precipe; (2) capias and return; (3) declaration and plea. Case 748 PETER J. DESNOYERS versus JOHN S. ROBY Action of trespass on the case (assumpsit) before Thomas Rowland, 7. P. Appeal to Wayne County Court Removed from county court by habeas corpus cum causa JOURNAL ENTRIES (182I): 7ournal3: (i) Settled by parties *p. 193. 168 SUPREME COURT OF MICHIGAN PAPERS IN FILE: (I) Precipe for habeas corpus cum causa; (2) recognizance; (3) writ of habeas corpus; (4) transcript of county court record. Office Docket, MS p. 141, c. 56. Case 749 PETER J. DESNOYERS versus JOHN S. ROBY Action of trespass on the case (assumpsit) before dames Abbott, 7. P. Appeal to Wayne County Court Removed from county court by habeas corpus cum causa JOURNAL ENTRIES (1821): .7ournal3: (I) Settled by parties *p. 193. PAPERS IN FILE: (I) Precipe for habeas corpus cum causa; (2) recognizance; (3) writ of habeas corpus; (4) transcript of county court record. Office Docket, MS p. 142, c. 57. Case 750 PETER J. DESNOYERS versus JOHN S. ROBY Action of trespass on the case (assumpsit) before James Abbott, 7J. P. Appeal to Wayne County Court Removed from county court by habeas corpus cum causa JOURNAL ENTRIES (1821): Journal3: (I) Settled by parties *p. 193. PAPERS IN FILE: (I) Precipe for habeas corpus cum causa; (2) recognizance; (3) writ of habeas corpus; (4) transcript of county court record. Office Docket, MS p. 143, c. 58. Case 751 PETER J. DESNOYERS versus HARVEY WILLIAMS AND ALPHEUS WILLIAMS Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821): Journal3: (I) Motion for remand by procedendo granted *p. 193. PAPERS IN FILE: (1-2) Precipes for habeas corpus; (3) recognizance; (4) writ of habeas corpus; (5) transcript of county court record. Office Docket, MS p. 131, c. 44; p. 144, c. 59. Note: The removal by habeas corpus was at the instance of Harvey Williams alone. CALENDAR OF CASES 169 Case 752 THOMAS S. JONES versus JOHN KINZIE Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821-22): Journal3: (I) Death suggested, proceedings stayed *p. 194; (2) death suggested *p. 272; (3) proceedings stayed *p. 335. PAPERS IN FILE: (I) Precipe for capias; (2) affidavit of indebtedness. Office Docket, MS p. 146, c. 61. Case 753 JAMES DAY versus RALPH LOCKWOOD & CO. . . .• e . . . . . •.. . . •. . . . . . . Habeas corpus cum causa to Michilimackinac County Court JOURNAL ENTRIES (1821): Journal 3: (I) Discontinued, judgment *p 194. PAPERS IN FILE: (i) Precipe for habeas corpus; (2) draft of recognizance; (3) writ of habeas corpus and return; (4) precipe for execution ca. sa. and to tax attorney's fee; (5) writ of ca. sa. and return. Office Docket, MS p. I25, c. 33. Recorded in Book A, MS pp. I29-35. Note: The writ of habeas corpus was not served, "Bail not being entered according to law." See case 834, infra. Case 754 PETER J. DESNOYERS versus THOMAS EMERSON, STEPHEN MACK AND SHUBAEL CONANT, MERCHANTS FORMERLY TRADING UNDER THE FIRM OF EMERSON & CO. Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821-34): ournal3: (I) Appearance, continued *p. 194; (2) verbal plea of non assumpsit *p. 335; (3) continued *p. 423. journal 4: (4) Referred MS p. 13; (5) issue ordered sent to circuit court for trial MS p. 32; (6) agreement to submit on case stated MS p. 139; (7) death sug- gested MS p. 225; (8) motion to strike from docket MS p. 229; (9) case argued and submitted MS p. 329; (o10) motion to strike from docket over- SUPREME COURT OF MICHIGAN 170 ruled MS p. 339; (11) rule for venire facias MS p. 420; (12) rule for venire facias rescinded, continued MS p. 421; (i3) continued MS p. 452; (14) rule for commission to take depositions MS p. 456; (I5) continued MS p. 5 io. 7ournal 5: (16) Rule for venire facias MS p. 4; (17) jury trial, verdict MS p. 7; (18) attendance of witness proved MS p. 7; (19) motion for new trial MS p. 14; (20) motion for new trial argued, submitted MS p. 33; (21) motion for new trial overruled, judgment MS p. 37. PAPERS IN FILE: (I) Precipe for process; (2) capias and return; (3) incom- plete declaration; (4.) declaration; (5) plea of non assumpsit and notices of defenses; (6) agreement to submit to court on case stated; (7-8) mo- tions to strike from docket; (9) subpoena; (io) motion for commission to take deposition; (i i) interrogatories for Isaac Leake; (12) deposition of Isaac Q. Leake; (13) deposition envelope; (14) subpoena; (IS) attach- ment for William Brewster; (16) subpoena; (17) writ of venire facias and return; (18) verdict; (19) sight draft and guaranty; (20) letter of guar- anty; (21) letter from Emerson to Desnoyers; (22-23) certificates of protest. Office Docket, MS p. 147, c. 65. (Case II6 of I820) Note: Paper 5 is printed herein. (Selected Papers, infra, case 754) Case 755 WILLIAM MORRIS versus WILLIAM G. TAYLOR AND REUBEN KELSEY Action of trespass on the case ( . ... ) Habeas corpus cum causa to Monroe County Court JOURNAL ENTRIES (1821): fournal3: (I) Settled by parties *p. 195. PAPERS IN FILE: (I) Precipe for writ of error; (2) certificate of clerk of county court; (3) precipe for habeas corpus; (4.) habeas corpus bond. Office Docket, MS p. 148, c. 68. Note: Taylor was imprisoned on a writ of execution issued in the above case and, in 1823, gave notice of his intention to set off to the plaintiff certain real estate. The following papers are in the file: (i) copy of notice of intention to set off land to plaintiff; (2) affidavit of Charles Noble, appraisal, reasons for not accepting deed; (3) copy of mortgage from Taylor to Loranger and copy of deed from Taylor to Parker and others; (4) copies of papers filed in Monroe County Court. The county court file (case 44) contains: (1-2) notices of intention to set off land; (3) notice of willingness to accept land; (4) notice of election of appraiser; (5) notice of intention to set off land; (6) notice of willingness to accept land; (7) notice of election of appraiser; (8) notice that property offered is not defendant's prop- erty; (9) notice of intention to set off land; (so) notice of willingness to accept land; (11-12) notices of election of appraiser; (13) third appraiser elected, appraisers sworn. CALENDAR OF CASES I7' Case 756 HENRY B. BREVOORT versus JONATHAN EASTMAN Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus and certiorari JOURNAL ENTRIES (1821): journal3: (I) Discontinued *p. 195. PAPERS IN FILE: (I) Precipe for habeas corpus and certiorari; (2) recog- nizance; (3) writ of habeas corpus cum causa; (4.) writ of certiorari; (5) transcript of county court record; (6) precipe to tax attorneys' fee. Ofice Docket, MS p. 153, c. 82. Recorded in Book A, MS pp. 136-43. Vote: See case 613, supra. Case 757 JEAN BAPTISTE CICOTT versus GABRIEL GODFROY, SR. Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821): 7ournal3: (I) Settled out of court *p. 195. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return. Office Docket, MS p. 153, c. 84. Case 758 JOHN McDONELL versus JOHN SCOTT Action of trespass on the case (assumpsit) before lames Abbott, 7. P. Certiorari to lames Abbott JOURNAL ENTRIES (1821-22): Journal3: (I) Motion to amend return to certiorari *p. 196; (2) rule to amend return to certiorari *p. 232; (3) con- tinued *p. 257; (4.) rule to join in error *p. 292; (5) judgment reversed *p. 368. PAPERS IN FILE: (I) Application for certiorari, allowance; (2) writ of cer- tiorari; (3) transcript of J. P. record; (4) motion for amended return; (5) additional return; (6) assignment of errors; (7) joinder in error; (8) precipe for execution fi. fa.; (9) writ of fi. fa. and return; (10) writ of supersedeas; (ii) alias fi. fa. and return. 1821 Calendar, MS p. 71. Recorded in Book B, MS pp. 125-31. Note: Papers 1-7 are printed herein. (Selected Papers, infra, case 758) See case 0o28, infra. 172 SUPREME COURT OF MICHIGAN Case 759 GILBERT KNAPP versus LAURENT ROLETTE Action of trespass (assault and battery) JOURNAL ENTRIES (1821): Journal3: (I) Discontinued *p. 196. PAPERS IN FILE: (i) Precipe for process; (2) capias, precept to take bail, deputation, return. 1821 Calendar, MS p. I. Recorded in Book A, MS pp. 144-47. Note: See case B-26, infra. Case 760 JOHN JACOB ASTOR, RAMSAY CROOKS AND ROBERT STUART, UNDER THE FIRM AND STYLE OF THE AMERICAN FUR COMPANY, versus JOHN W. JOHNSON Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821-23): ,ournal3: (I) Continued *p. 196; (2) rule to bring body *p. 301; (3) continued *p. 343; (4) attendance of witness proved *p. 343; (5) dismissed *p. 390. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) declara- tion; (4) plea of non assumpsit; (5) precipe for subpoena; (6) subpoena. 1821 Calendar, MS p. 2. Recorded in Book B, MS pp. 226-29. Case 761 BENJAMIN SMITH versus CHARLES LEE CASS, JOHN TIMBERLAKE AND JOHN ALLEN Action of trespass (quare clausum fregit, de bonis asportatis, assault and battery, false imprisonment) JOURNAL ENTRIES (1821-24): Journal3: (I) Continued *p. 196; (2) motion to withdraw papers from files granted *p. 436; (3) settled *p. 505. PAPERS IN FILE: (I) Precipe for process; (2) notice of taking depositions; (3) deposition of H. Brunot; (4) deposition of Britton Evans; (5) deposi- tion of John Timberlake; (6) deposition envelope; (7) affidavit of Richard Williams; (8) affidavit of James Crawford; (9) affidavit of David Hiner; (Io) affidavit of Thomas Plymoth; (II) affidavit of A. J. Joyce; (i2) letter from Smith to Whitney and Sibley. 1821 Calendar, MS p. 5. Note: See case 791, infra. CALENDAR OF CASES I73 Case 762 JOHN W. BURNETT versus CONRAD TEN EYCK AND JEREMIAH V. R. TEN EYCK, MERCHANTS TRADING UNDER THE FIRM OF CONRAD TEN EYCK & CO. Action of trespass on the case ... . JOURNAL ENTRIES (1821): : journal3: (I) Settled out of court *p. 196. PAPERS IN FILE: [None] 182! Calendar, MS p. 6. Case 763 DANIEL HASTINGS AND GEORGE HASTINGS versus JOHN S. ROBY Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821): journal3: (I) Settled out of court *p. 196. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus; (3) return to writ of habeas corpus; (4) copy of indorsement on county court capias. 182! Calendar, MS p. 9. Case 764 AUGUSTUS PORTER, PETER B. PORTER, BENJAMIN BARTON, SHELDON THOMPSON, JACOB TOWNSEND, ALEXANDER BRONSON AND NATHANIEL SILL, TRADING UNDER THE FIRM OF SILL, THOMPSON & CO., versus RALPH LOCKWOOD AND GEORGE LOCKWOOD, TRADING UNDER THE FIRM OF RALPH LOCKWOOD & CO. Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821): journal 3: (I) Motion to quash writ *p. 197; (2) writ quashed, reasons *p. 252. PAPERS IN FILE: (i) Precipe for process; (2) capias and return; (3) recog- nizance; (4) bail piece; (5) motion to dismiss motion to quash writ. 182; Calendar, MS p. 7. Recorded in Book A, MS pp. 287-89. Note: The capias was dated Dec. I5, 1820 and was returnable on the third Monday in September, 1821 (Sept. 17, 1821). It was returned and filed on Sept. 24, 1821, which was 174 SUPREME COURT OF MICHIGAN the seventh day of the term. Paper 5 reads as follows: "The Defendant Geo. Lockwood in this case upon whom the writ was served, by Woodbridge & Lanman his Attorneys, having moved the Court to quash the writ, on the ground, that the same, was not returned, on the first day of this present Term of the Court, but on the twenty fourth day of September -The Plaintiffs, by Hunt & Lamrned their attorneys, move the Court, dismiss said motion, inasmuch as the said writ was duly & properly returned, by said Sheriff, as by law he was required to do. And the said Plaintiffs, by their att", further state to the Court that said motion ought not to be granted, inasmuch as the said Defendants have acknowledged the service of said writ, & have entered their appearance by their council & attorneys, in this Court above named, and did also on the thirteenth day of Sept' now last past, file a recog. nizance of special bail to said action, entered into before the Commissioner of Special Bail for the County of Wayne, with the Clerk of this court. Whereby the return of the writ on the seventeenth of Sept' now last past being the first day of the term of said Court was wholly unnecessary." Case 765 WILLIAM TUCKERMAN AND GUSTAVUS TUCKERMAN versus JOHN S. ROBY Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821): 7ournal J: (I) Settled out of court *p. 197. PAPERS IN FILE: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) copy of indorsement on county court capias. 1821 Calendar, MS p. o10. Case 766 LEVI MERRIAM AND LEVI BRIGHAM versus JOHN S. ROBY Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821): Journal J: (I) Settled out of court *p. 197. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) copy of indorsement on county court capias. r8z2i Calendar, MS p. I I. CALENDAR OF CASES 175 Case 767 JOSEPH PRINCE, JEDUTHAN FULLER, MASON HUNTING, EDWARD RICHARDS, ENOCH WISWELL AND AMOS BOND, PARTNERS UNDER THE FIRM OF THE WATERTOWN COTTON FACTORY CO., versus JOHN S. ROBY Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821): 7ournal3: (I) Settled out of court *p. 197. PAPERs IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) copy of indorsement on county court capias. 1S2 Calendar, MS p. 12. Case 768 MICHAEL DOUSMAN versus CHRISTIAN CLEMENS Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): Journal3: (I) Motion for procedendo *p. 197; (2) continued *p. 259; (3) default judgment *p. 279. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) copy of indorsement on county court capias; (4) recog- nizance and bail piece; (5) declaration; (6) plea of non assumpsit; (7) pre- cipe for subpoena; (8) subpoena; (9) bill of particulars; (io) precipe for execution fi. fa.; (ii) writ of fi. fa. and return; (12) precipe for alias fi. fa.; (I3) alias fi. fa. and return; (i4) precipe for pluries fi. fa.; (15) pluries fi. fa. and return. 1821 Calendar, MS p. 14. Recorded in Book B, MS pp. 46-49. Case 769 AARON THOMAS, JR., versus ROBERT SMART Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-26): 7ournal3: (I) Appearance *p. 198; (2) motion to quash habeas corpus *p. 245; (3) continued *p. 259; (4) motion to quash habeas corpus withdrawn *p. 280; (5) referred *p. 328; (6) reference I76 SUPREME COURT OF MICHIGAN rescinded, referred *p. 353; (7) judgment on award *p. 366; (8) witness fees ordered paid *p. 367; (9) witness fees ordered paid *p. 367; (io) mo- tion to set aside judgment and award *p. 411; (I I) supersedeas set aside *p. 505. journal4: (12) Motion for rule on sheriff to return alias fi.fa.MS p. 45; (13) sheriff ruled to show cause MS p. 96. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4-5) pleas of non assumpsit; (6) demand for bill of particulars; (7) bill of particulars; (8) precipe for subpoena; (9) sub- poena; (io) award of referees; (i i) sheriff's bill of fees; (12) precipe for execution fi. fa.; (13) writ of supersedeas; (14) precipe for execution fi. fa.; (i5) motion for rule on sheriff to return execution. 182z Calendar, MS p. 17. Recorded in Book B, MS pp. 55-60. Note: The following papers have been found among the papers of William Woodbridge (Burton Historical Collection, Public Library, Detroit, Vol. 117): (1) application and affidavits for supersedeas; (2) affidavit and precipe for supersedeas, allowance; (3) opinion by Judge Witherell; (4) copy of Witherell's opinion; (5) draft of letter from Woodbridge to Witherell. Photostats of these papers have been placed in the file. The judgment was rendered October io, i822. The application for supersedeas was filed September 8, 1823 and was allowed by Judge Woodward on that day. September 24, 1823, the defendant moved to set aside the judgment, but this motion, it seems, was never decided. October II, 1824, the supersedeas was set aside. The defendant then applied to Judge Witherell for an injunction, praying that execution of the judgment be enjoined until the next term of the court. This application was denied by Judge Witherell for reasons set forth in an opinion dated April 4, 1825. This opinion was sent to petitioner's solicitor, William Wood. bridge, who drafted a reply. The opinion, which was supposed to have been returned with the reply, was not returned. It will be printed in a later publication. Case 770 PETER J. DESNOYERS versus JAMES FULTON Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): journal 3: (I) Rule for special bail or pro- cedendo *p. 198; (2) continued *p. 259; (3) default judgment *p. 279; (4) defendant surrendered by manucaptors, etc. *p. 286. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) copy of indorsement on county court capias; (4) recog- nizance and bail piece; (5) declaration; (6) plea of non assumpsit; (7) promissory note. 1821 Calendar, MS p. i8. Recorded in Book B, MS pp. 61-65. CALENDAR OF CASES 177 Case 771 ANDREW WESTBROOK versus RUFUS HATCH AND WILLIAM AUSTIN Action of debt on a recognizance Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-24): journal 3: (I) Rule for special bail or pro- cedendo *p. 198; (2) continued *p. 259; (3) discontinued, judgment for costs *p. 364; (4) judgment for costs rescinded, continued *p. 373; (5) judgment for costs rescinded, continued *p. 376; (6) continued *p. 442; (7) discontinued *p. 505- PAPERs IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) copy of indorsement on county court capias; (4) recog- nizance and bail piece; (5) declaration; (6) plea of nil debet and nul tiel record; (7) stipulation for filing replication; (8) replication; (9) transcript from record of Macomb County Court; (io) copy of recognizance entered into on appeal from John K. Smith, J. P., to Macomb County Court. /821 Calendar, MS p. 21. Recorded in Book B, MS pp. 353-57. Note: Papers 5, 6 and 8 are printed herein. (Selected Papers, infra, case 771) Case 772 RICHARD SMYTH versus AUGUSTUS B. WOODWARD Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821): journal 3: (I) Leave to withdraw declaration, continued *p. 198; (2) entry of continuance stricken off *p. 219; (3) rule for special bail or procedendo *p. 220; (4) remand by procedendo ordered *p. 240. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4) copy of promissory note. 1821 Calendar, MS p. 22. Case 773 MOSES JOHNSON versus RICHARD SMYTH Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821): 7ournal3: (i) rule for special bail or procedendo *p. 198; (2) remand by procedendo ordered *p. 219. 178 SUPREME COURT OF MICHIGAN PAPERS IN FILE: (z) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) copy of indorsement on county court capias. 1821 Calendar, MS p. 23. Case 774 THOMAS S. KNAPP versus RUFUS HATCH Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): 7ournal 3: (I) Rule for special bail or pro. cedendo *p. 198; (2) continued *p. 260; (3) dismissed *p. 276. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) copy of indorsement on county court capias; (4) recog. nizance and bail piece; (5) declaration; (6) plea of non assumpsit. i8zz Calendar, MS p. 24. Recorded in Book B, MS pp. 156-60. Case 775 THOMAS S. KNAPP versus RUFUS HATCH Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): 7ournal3: (I) Rule for special bail or pro- cedendo *p. 199; (2) continued *p. 260; (3) dismissed *p. 276. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4) plea of non assumpsit. r8az Calendar, MS p. 25. Recorded in Book B, MS pp. 161-64. Case 776 JOHN RAMSAY versus ROBERT SMART Action of trespass on the case before Thomas Rowland, 7. P. Appeal to Wayne County Court Removed from county court by habeas corpus cum causa JOURNAL ENTRIES (1821): Journal3: (I) Rule for special bail or procedendo *p. 199; (2) rule for remand by procedendo *p. 217-i. PAPERS IN FILE: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) precipe to tax attorneys' fee; (4) precipe to tax costs; (5) taxed bill of costs; (6) receipt. 182- Calendar, MS p. 27. CALENDAR OF CASES 179 Case 777 HENRY HUDSON versus ROBERT SMART Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): Journal 3: (z) Rule for special bail or pro- cedendo *p. 199; (2) continued *p. 260; (3) discontinued *p. 342. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) copy of indorsement on county court capias; (4) recognizance and bail piece; (5) declaration; (6) plea of non assumpsit; (7) precipe for subpoena; (8) subpoena; (9) precipe for subpoena; (xo) subpoena; (II) precipe for subpoena; (12) subpoena; (13) memo. of settlement. IS, Calendar, MS p. 26. Recorded in Book B, MS pp. 74-77. Case 778 JAMES BABY, SR., versus JAMES MAY Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-27): .ournal3: (i) Leave to withdraw declaration *p. 199; (2) continued *p. 260; (3) referred *p. 280; (4.) rule of reference extended *p. 343; (5) continued *p. 426; (6) referred *p. 492. 7ournal 4: (7) Rule of reference extended MS p. 93; (8) dismissed MS p. 140. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4) plea of non assumpsit, notice of set off, demand for bill of particulars; (5) precipe for subpoena; (6) subpoena; (7) agreement for reference; (8) memo. re settlement; (9) statement of accounts. 1821 Calendar, MS p. 29. Case 779 OLIVER W. MILLER versus THE CORPORATION OF THE CATHOLIC, APOSTOLIC AND ROMAN CHURCH OF ST. ANNE Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): 7ournal3: (i) Motion to quash habeas corpus *P. 199; (2) continued *p. 260; (3) judgment confessed, execution stayed *P. 279. 80 SUPREME COURT OF MICHIGAN PAPERS IN FILE: (I) Precipe for certiorari; (2) precipe for habeas corpus; (3) writ of habeas corpus and return; (4) declaration; (5) plea of non assumpsit; (6) bill of particulars; (7) stipulation for judgment. 1821 Calendar, MS p. 30. Recorded in Book B, MS pp. 78-82. Case 780 MELVIN DORR versus WILLIAM KEITH Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821): Journal3: (I) Office judgment stricken, leave to withdraw declaration *p. 199; (2) rule for special bail or procedendo *p. 212; (3) rule for remand by procedendo *p. 222. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus; (3) declaration; (4.) precipe for office judgment; (5) return to writ of habeas corpus; (6) copy of indorsement on county court capias; (7) copy of promissory note. 1821 Calendar, MS p. 31. Note: The county court file (case 498) contains: (i) precipe; (2) capias and return; (3) declaration; (4) plea; (5) precipe for subpoenas; (6-8) subpoenas; (9) replication; (io) writ of procedendo; (ii) demurrer; (12) joinder in demurrer; (13) stipulation. Some of these papers refer to another case between the same parties. (See case 781, infra.) Also see case 919. Case 78 1 MELVIN DORR versus WILLIAM KEITH Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821): 7ournal3: (I) Office judgment stricken, leave to withdraw declaration *p. 200; (2) rule for special bail or procedendo *p. 212; (3) rule for remand by procedendo *p. 222. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus; (3) declaration; (4) precipe for office judgment; (5) return to writ of habeas corpus; (6) copy of indorsement on county court capias; (7) copy of promissory note. 1821 Calendar, MS p. 32. Note: The county court file (case 499) contains: (1) precipe; (2) capias and return; (3) declaration; (4) plea; (5) precipe for subpoena; (6-7) subpoenas; (8) precipe for sub- poena; (9) subpoena; (io) rephlication; (Ii) writ of procedendo; (12) demurrer; (13) joinder in demurrer; (14) stipulation. Also see case 780, supra, and case 920, infra. CALENDAR OF CASES Case 782 MELVIN DORR versus WILLIAM C. JOHNSON Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821): 7ournal3: (I) Office judgment stricken, leave to withdraw declaration *p. 200oo; (2) rule for special bail or procedendo *p. 213; (3) rule for remand by procedendo *p. 223. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus; (3) declaration; (4) precipe for office judgment; (5) return to writ of habeas corpus; (6) copy of indorsement on county court capias; (7) copy of promissory note. 1821 Calendar, MS p. 42. Note: See case 886, infra. Case 783 JOSEPH CAMPAU versus EZRA BALDWIN Action of trespass on the case (assumpsit) Habeas corpus cum causa and certiorari to Wayne County Court JOURNAL ENTRIES (1821-25): ournal3: (I) Appearance *p. 200; (2) con- tinued *p. 260; (3) motion for rule to declare, or nonsuit *p. 509. 7ournal 4: (4) Motion for rule to show cause against judgment denied, motion to quash granted, cause remanded MS p. 27. PAPERS IN FILE: (I) Petition and affidavit for certiorari, allowance; (2) writ of certiorari; (3) transcript of county court record; (4) transcript from county court journal; (5) extracts from county court record; (6) motion to quash habeas corpus and certiorari. 182z1 Calendar, MS p. 47. Note: Attached to the writ of certiorari is the writ of habeas corpus in case 826, infra. The affidavit for certiorari states that judgment was rendered by the county court although the defendant had taken out a writ of habeas corpus cum causa to remove the case into the Supreme Court "before the Jury, that passed upon the Cause were Sworn." No reasons were assigned in the motion to quash. A statement in the handwriting of William Wood- bridge and memoranda in the handwriting of Judge Sibley (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 49, p. 204; Vol. 50, p. 2; Vol. 51, p. 84) have been placed in the file. One of the papers written by Judge Sibley reads as follows: "Baldwin vs Campau-in error-Demand for use and Occupation of a house & premises in Detroit verdict &c-for Deft in error-removed by a Certiorari-Mr Woodbridge, Certiorari, does not regularly lie to remove a Judgt rendered by a Court of record, proceeding according to the Course of the Common Law-Habeas Corpus issued with the Certiorari, allowance by Judge Woodward on affidavit-At Comn Law, a writ of habeas corpus is a supersedeas if delivd in before verdict rendered-Statute requires that the writ should be presented before the Jury sworn-Mo for Judgt overruled-And on Mo the writ quashed & the Cause remanded-to W. County Court." 182 SUPREME COURT OF MICHIGAN Case 784 JEAN BAPTISTE BRANDEMORE, DIT ST. AMOUR, versus JOSEPH ANDRE, DIT CLARK Action of trespass (assault and battery) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): 7ournal 3: (i) Appearance, rule for special bail or procedendo *p. 200oo; (2) rule for bail or procedendo rescinded *p. 217-g; (3) continued *p. 260; (4) rule for judgment for costs *p. 343. PAPERS IN FILE: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4) plea of not guilty; (5) precipe for execu- tion fi. fa. 1821 Calendar, MS p. 34. Recorded in Book B, MS pp. 83-85. Case 785 JOHN S. ROBY versus SAMUEL ABBOTT Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): Journal 3: (i) Rule for special bail or pro- cedendo *p. 200; (2) rule for remand by procedendo *p. 242; (3) remand rescinded *p. 250; (4.) continued *p. 260; (5) jury impaneled *p. 321; (6) witnesses sworn *p. 321; (7) witnesses attached, excused, sworn *p. 321; (8) motion for nonsuit overruled *p. 322; (9) witnesses sworn *p. 32.; (io) constable sworn to attend jury *p. 322; (1 I) verdict *p. 322; (12) at- tendance of witnesses proved *p. 322; (13) motion in arrest of judgment *p. 327; (14) judgment *p. 378. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) copy of indorsement on county court capias; (4) notice of taking depositions, depositions of Ambrose Davenport and John Dous- man; (5) recognizance and bail piece; (6) declaration; (7) plea of non assumpsit and demand for bill of particulars; (8) bill of particulars; (9) precipe for subpoena; (10-13) subpoenas; (14) attachment for Smith Knapp, David C. McKinstry and William Keith; (15) panel of jurors; (16) motion for nonsuit; (17) verdict; (18) precipe for ca. sa.; (19) writ of ca. sa. and return; (20-21) statements of accounts; (22) receipt for goods received; (23-24) accounts of sales; (25) copy of letter from Roby to Abbott; (26) letter from Roby to Abbott. 182% Calendar, MS p. 35. Recorded in Book B, MS pp. 86-91. CIIL.ENDIIR OF CII SES x83 Vote: This case is cited in Doty's Reports, infra, *p. 173. Paper I6 reads: "The Deft in : is Case now pending before the Court & Jury, now move the Court here that a non suit Sordered in this cause,-because the Evidence produced by the Plff: does not support ether of the counts in the Declaration." "Sidney," a bitter critic of the court, had this to iy: "In the case of Roby vs. Abbott, tried at the last term of this court, the declaration contained the common counts in assumpsit; and the evidence was that the plaintiff had sent certain goods, for sale on his account, to the defendant as commission merchant. No evidence W15 produced to show that any sales had been effected, but on the contrary it appeared :hat the plaintiff was apprised that the goods remained unsold, and had sent an order for :heir return. It appeared also that the goods had been damaged while in the defendant's ossession, and become of little or no value, and that the defendant, on this account, de- dined sending them according to the order, as the best course for the interest of his em- ployer, since the value of the goods would not defray the charges of transportation. After the evidence was closed, the defendant's counsel very properly moved for a non-suit, on the ground that the evidence did not support any one of the counts in the declaration; but the court, after hearing the arguments, decided that the evidence was of the proper kind to support the count for money had and received, laying down this broad principle, that evidence of the delivery of any thing of value, was sufficient in law to support that count." Detroit Gazette, Mar. 14, 1823) Rufus Hatch in a letter to Solomon Sibley stated: "Fletcher :s the author of Sidney." (Letter dated Jan. 20, 1823, Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 48, p. 224) Fletcher became the first chief justice Sthe state Supreme Court. Case 786 JOEL THOMAS versus OLIVER W. MILLER Action of trespass on the case before Thomas Rowland, 7. P. Appeal to Wayne County Court Removed from county court by habeas corpus cum causa JOURNAL ENTRIES (1821): Journal3: (I) Settled out of court *p. 2oo00. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return. ,2i Calendar, MS p. 36. Case 787 JOHN MELDRUM versus JAMES FULTON Action of debt on a bond JOURNAL ENTRIES (1821-22): Journal3: (I) Rule to bring body *p. 201; (2) continued *p. 261; (3) motion for judgment *p. 336; (4) rule for judg- ment, jury to assess damages *p. 366. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) recog- nizance; (4) bail piece and certificate of exoneration of manucaptors; (5) declaration; (6) copy of bail piece; (7) notice of oyer; (8) plea of nil debet and notice of motion to withdraw plea; (9) copy of bail piece: 184 SUPREME COURT OF MICHIGAN committitur, acknowledgment of receipt of person of defendant, and cer- tificate of commissioner of bail; (io) copy of bail piece, rule for notice to show cause against exoneretur, sheriff's return, rule for exoneretur; (i I) acknowledgment of receipt of attorney's fee; (12) precipe for dis- continuance; (13) precipe to enter receipt of clerk's fees; (14) acknowl- edgment of receipt of sheriff's fees. 1821 Calendar, MS p. 40. Recorded in Book B, MS pp. 230-32. Note: Papers 4, 9 and io are printed herein. (Selected Papers, infra, case 787) Case 788 ENOCH HUNTLY versus JOSEPH STEAD Habeas corpus cum causa to john Stockton, 7. P. JOURNAL ENTRIES (1821): 7ournal3: (I) Settled out of court *p. 2o01. PAPERS IN FILE: (I) Precipe for habeas corpus. z821 Calendar, MS p. 41. Case 789 HARVEY WILLIAMS versus THE CORPORATION OF THE CATHOLIC, APOSTOLIC AND ROMAN CHURCH OF ST. ANNE Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): journal3: (I) Appearance, motion to quash habeas corpus *p. 201; (2) motion to quash habeas corpus *p. 244; (3) continued *p. 261; (4) default judgment *p. 279. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4) plea of non assumpsit; (5) satisfaction piece; (6) note of amount due. 1821 Calendar, MS p. 50. Recorded in Book B, MS pp. 102-105. Note: Paper 5 reads as follows: "In the above case Harvey Williams by his attornies Hunt & Lamrned acknowledges Satisfaction of the judgment in the above case amounting to $246.66 the Same having been Settled with Peter J Desnoyers leaving the amt of costs still due." CALENDAR OF CASES X85 Case 790 RICHARD SMYTH versus JOHN KINZIE AND THOMAS FORSYTH Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-23): 7ournal3: (I) Rule for special bail or pro- cedendo *p. 201; (2) motion to quash writ, continued *p. 261; (3) plea of non assumpsit *p. 341; (4) continued *p. 345; (5) motion to accept award of referees *p. 388; (6) award accepted, rule for judgment *p. 444. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) copy of indorsement on county court capias; (4) recog- nizance; (5) bail piece; (6) declaration; (7) bill of particulars; (8) plea of non assumpsit; (9) subpoena; (io) bond and award of arbitrators; (ii) as- signment of award; (12) statement of accounts. 1821 Calendar, MS p. 53. Recorded in Book B, MS pp. 238-43. Note: The county court file (case 519) contains: (i) precipe; (2) affidavit; (3) capias and return; (4) recognizance and bail piece. Case 791 BENJAMIN SMITH versus CHARLES LEE CASS AND WILLIAM G. ISRAEL Action of trespass (quare clausum fregit, de bonis asportatis, assault and battery, false imprisonment) JOURNAL ENTRIES (1821-23): Journal3: (I) Continued *p. 202; (2) motion for continuance overruled *p. 282; (3) continued *p. 287; (4) continued *p. 336; (5) referred, certain depositions to be read in evidence *p. 426; (6) motion to withdraw papers from files granted *p. 436. PAPERS IN FILE: (i) Precipe for capias, order for bail; (2) affidavit of Augustin Thibault; (3) affidavit of Benjamin Smith; (4) affidavit of Gabriel Rabbis; (5) affidavit of Britton Evans; (6) affidavit of Samuel St. Germaine; (7) capias and return; (8) notice of taking depositions; (9) recognizance and bail piece; (o0) deposition of Ebenezer Childs; (II) declaration; (12) plea of defendant Israel; (13) plea of defendant Cass; (14) deposition of Captain William Whistler; (I5) deposition of William Robinson; (16) depositions of Joseph Glass and Robert Clark; (17) deposition of Captain Daniel Curtis; (18) deposition of Lieut. Wellington Hunt; (i9) deposition of Sergeant John Allen; (20) deposition 186 SUPREME COURT OF MICHIGAN envelope and letter of transmittal; (21) affidavit of defendant Cass for a continuance; (22) agreement for reference; (23) precipe for subpoena. 1821 Calendar, MS p. 59. Note: This case and case 761, supra, were for damages resulting from the destruction of a store at Green Bay in Brown County. It was the plaintiff's contention that the store was destroyed by soldiers under the command of Captain Cass. A photostat of the award (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 49, p. 134) has been placed in the file. Case 792 RUSSELL WILLIAMS, SILAS WILLIAMS AND ROBERT GARRATT, LATE MERCHANTS IN COMPANY UNDER THE FIRM OF WILLIAMS & GARRATT, versus JAMES FULTON Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): 7ournal 3: (I) Rule for special bail or pro- cedendo *p. 202; (2) continued *p. 262; (3) rule to bring body *p. 276; (4) judgment *p. 280; (5) defendant surrendered by manucaptors, etc. *p. 286. PAPERS IN FILE: (1) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) copy of indorsement on county court capias; (4) recog- nizance and bail piece; (5) declaration; (6) plea of non assumpsit; (7) transcript of rule to bring body; (8) promissory note. 1821 Calendar, MS p. 64. Recorded in Book B, MS pp. 110-13-. Note: The county court file (case 524) contains: (1) precipe; (2) capias and return; (3) declaration; (4) recognizance and bail piece. Case 793 AUSTIN E. WING versus HENRY HUDSON Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-29): Journal3: (I) Continued *p. 202; (2) motion for judgment *p. 341; (3) motion for continuance granted *p. 447; (4) continued *p. 493. Journal 4: (5) Continued MS p. 7; (6) continued MS p. 93; (7) continued MS p. 127; (8) motion for continuance overruled MS p. 225; (9) issue ordered sent to circuit court for trial MS p. 228; (1o) con- tinued MS p. 330. CALENDAR OF CASES 187 PAPERS IN FILE: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) stipulation for filing declaration and plea; (4) declaration; (5) plea of non assumpsit; (6) subpoena; (7) subpoena duces tecum; (8) precipe for subpoena; (9) subpoena; (io) precipe for subpoena duces tecum; (II) subpoena; (12) affidavit for continuance; (13) stipulation for notice of trial; (14) affidavit for continuance; (i5) affidavit of C. Stevens re arbitration. 1821 Calendar, MS p. 65. Note: The county court file (case 485) contains: (I) precipe; (2) capias and return. Case 794 LOUIS DEVOTION versus STEPHEN C. HENRY Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821): Journal3: (i) Rule for special bail or procedendo *p. 202; (2) motion for procedendo *p. 217-e; (3) rule for remand by procedendo *p. 217-i. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) copy of indorsement on county court capias; (4) precipe to tax attorney's fee. /821 Calendar, MS p. 67. Case 795 JAMES HALL versus DAVID C. McKINSTRY Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): 7ournal 3: (I) Rule for special bail or pro- cedendo *p. 202; (2) continued *p. 262; (3) judgment *p. 287. PAPERS IN FILE: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) copy of indorsement on county court capias; (4) recog- nizance and bail piece; (5) declaration; (6) plea of non assumpsit, demand for bill of particulars, notice of motion to withdraw plea; (7-8) bills of particulars; (9) precipe for execution fi. fa.; (io) writ of fi. fa. and re- turn; (II) precipe for fi. fa.; (12) alias fi. fa. and return; (13) precipe for pluries fi. fa.; (14) pluries fi. fa. and return; (IS) promissory note. 1821 Calendar, MS p. 69. Recorded in Book B, MS pp. 121-24. 188 SUPREME COURT OF MICHIGAN Case 796 SARAH MACOMB versus JAMES MAY Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): Journal3: (I) Continued *p. 202; (2) motion to quash habeas corpus *p. 236; (3) rule for judgment *p. 349. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4) copy of indorsement on county court capias; (5) precipe for fi. fa.; (6) writ of fi. fa. and return; (7) precipe for fi. fa.; (8) promissory note. 1821 Calendar, MS p. 73. Recorded in Book B, MS pp. 132-34. Note: See case 1o92, infra. Case 797 SILAS WILLIAMS versus ROBERT GARRATT Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821): Journal : (I) Settled out of court *p. 203; (2) settled out of court *p. 262. PAPERS IN FILE: (I) Precipe for capias and affidavit of indebtedness; (2) capias. 1821 Calendar, MS p. 74. Case 798 WILLIAM BRONSON versus IRA ROBERTS Action of trespass before Sidney Dole, 7. P. Appeal to Oakland County Court Removed from Oakland County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-30): Journal3: (I) Appearance, motion to quash habeas corpus *p. 203; (2) continued *p. 262; (3) discontinued *p. 272. Journal 4: (4) Motion for judgment for costs MS p. 368; (5) motion for judgment for costs overruled MS p. 372. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus; (3) transcript of county court record; (4) letter from clerk of Oakland County. t82z Calendar, MS p. 75. Recorded in Book B, MS pp. 135-37. CALENDAR OF CASES 189 Case 799 LOUIS DEVOTION versus JOHN ANDERSON . . ., . . . . . . . . . . . . . . . . . Habeas corpus cum causa to Wayne County Court JOURNAL ENTRIES (1821): 7ournal3: (i) Rule for special bail or procedendo *p. 203; (2) motion to strike from docket granted *p. 217. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) precipe to tax attorney's fee. 1821 Calendar, MS p. 76. Note: "Doty (att'y for plaintiff) moved for a rule on the sheriff, to bring in the body of the defendant. Woodward. The rule cannot be granted-The defendant is not in the custody of the sheriff. The county court is only commanded to send up the record; and the plaintiff has nothing to do with the defendant's body. Grifin-was of the same opinion. Doty-then moved that the defendant be ruled to enter special bail in four days. The court overruled the motion." ("Notes of Trials, etc.," infra) Case 8oo THOMAS EMERSON versus MICHEL TREMBLE Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821-24): 7ournal3: (I) Continued *p. 203; (2) motion for continuance overruled *p. 287; (3) motion for continuance *p. 328; (4) motion for continuance overruled *p. 343; (5) witness fees ordered paid *p. 381; (6) jury impaneled, evidence heard *p. 409; (7) witnesses sworn *p. 409; (8) verdict *p. 412; (9) motion for new trial *p. 412; (io) attend- ance of witness proved *p. 412; (I I) motion for new trial overruled, rule for judgment *p. 497; (12) attendance of witnesses proved *p. 498. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) recogni- zance; (4) bail piece; (5) declaration; (6) statement of accounts and notice of set off; (7) plea of non assumpsit; (8) precipe for subpoena; (9) subpoena; (io) precipe for subpoena; (II) subpoena; (12) affidavit for continuance; (r3) precipe for subpoena; (14) subpoena; (IS5) precipe for subpoena; (i6) precipe for subpoena duces tecum; (17) precipe for subpoena; (18) ver- dict; (19) reasons for new trial; (20) precipe for execution ca. sa.; (21) writ of ca. sa. and return; (22) taxed bill of costs; (23) memo. of payment of costs; (24) memo. of amount of verdict; (25) promissory note. 1821 Calendar, MS p. 78. Recorded in Book B, MS pp. 361-65. Note: The reasons assigned for a new trial were: "I. Because the defendant was per- nmitted, to give improper, illegal and irrevelent Testimony and evidence to the Jury, on I9o SUPREME COURT OF MICHIGAN the Trial-2d Because the Court permitted the Defendant to enter into proof of the sale of goods and Merchandize to Mack & Conant, who were the indorsers of the note on which the action was brought, the sd Mack & Conant not being parties to said action, and without proving that said goods &' were delivered in payment of said note-3d Because the de- fendant was permitted to give in evidence to the jury, a pretended claim & demand of Leander Trembly against Mack & Conant. 4. Because the defendant was permitted to give in evidence as payt collateral matters, without having pleaded payment. 5. Because the Jury have found a less sum of money for the Pltif, than he proved was due him from the defendant-6th Because the Court misdirected the Jury in matter of Law-7th Because the verdict is Contrary to Law and not Consistent with the Testimony-wherefore the Pltif prays that the verdict may be arrested and set aside and that a new Trial may be awarded in said action." The motion for new trial was overruled Oct. 4, 1824, by Judges Witherell and Hunt. Judge Sibley, having made the motion as attorney for plaintiff, was entered absent. The following notes have been found among Judge Sibley's papers (Burton His- torical Collection, Public Library, Detroit, Vol. 49, p. 229; Vol. 50, p. 2): "Emmerson vs Trombly-M° for N. T. i-Deft was admitted to give in evidence, sundry charges agt Mack & Conant, as payt." "Judges Witherell & Hunt.-Emmerson vs Trombly-Pltff. recovered by verdict of Jury less than a County Court Jurisdiction, Mo by Deft for leave to set off his Costs agt the Judgt and cited Colemans Cases 72. J Johnstons Cases i0o Michigan Laws 324. also page 355." Case 801 THOMAS EMERSON versus JEAN BAPTISTE BEAUBIEN Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821-22): Journal 3: (I) Continued *p. 203; (2) con- tinued *p. 343. PAPERS IN FILE: (i) Precipe for capias; (2) capias and return; (3) recogni- zance; (4.) bail piece; (5) declaration; (6) plea of non assumpsit; (7) statement of accounts and notice of set off; (8) precipe for subpoena; (9) subpoena; (Io) memo. of payment of clerk's fees. 182z Calendar, MS p. 79. Note: This case was discontinued in 1823 (1821 Calendar, MS p. 79). Case 802 DAVID C. McKINSTRY versus WILLIAM L. McLAUGHLIN Action of trespass on the case (slander) JOURNAL ENTRIES (1821-22): Journal3: (I) Continued *p. 203; (2) discon- tinued *p. 272. PAPERS IN FILE: (I) Precipe for capias and order for bail; (2) affidavit of John S. Roby; (3) affidavit of Smith Knapp; (4) capias and return; (5) bail bond. z821 Calendar, MS p. 8o. Recorded in Book B, MS pp. 142-43. CALENDAR OF CASES 19I Case 803 JOHN ANDERSON versus JOHN DIVER Action of trespass on the case (assumpsit) Removed from Monroe County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): journal 3: (I) Rule for special bail or pro- cedendo *p. 204; (2) continued *p. 263; (3) judgment *p. 291; (4) at- tendance of witness proved *p. 291. PAPERS IN FILE: (z) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) copy of precipe for capias filed in county court; (4) copy of county court capias; (5) declaration; (6) plea of non assumpsit; (7) precipe for subpoena; (8) subpoena; (9) deposition of Isaac P. Skinner; (to) precipe for execution fi. fa.; (II) writ of fi. fa. and return. i2 Calendar, MS p. 82. Recorded in Book B, MS pp. 144-49. Case 804 THOMAS EMERSON versus HUBERT LACROIX Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821): 7ournal3: (I) Continued *p. 204; (2) cause out of court *p. 217. PAPERS IN FILE: [None] i82i Calendar, MS p. 83. Recorded in Book B, MS pp. 193-96. Case 8o5 ROBERT GILLESPIE, GEORGE MOFFAT AND WILLIAM GILKINSON, EXECUTORS, ETC., OF RICHARD PATTINSON, DECEASED, versus ROBERT SMART Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821-22): ournal3: (I) Appearance *p. 204; (2) con- tinued *p. 263; (3) motion for production of books overruled *p. 302; (4) leave granted to amend notice of set off *p. 308; (5) jury impaneled *p. 309; (6) witnesses sworn *p. 309; (7) absent witness ordered attached *p. 309; (8) absent witness excused, sworn *p. 309; (9) witness sworn *p. 309; (io) constable sworn to attend jury *p. 309; (11) verdict *p. 309; (12) motion for judgment *p. 312; (13) motion in arrest overruled, rule for judgment *p. 326. I92 SUPREME COURT OF MICHIGAN PAPERS IN FILE: (i) Precipe for process; (2) summons and acknowledgment of service; (3) declaration; (4) plea of non assumpsit and notice of set off; (5) deposition of William B. Torrence; (6) notice to produce books of account; (7) precipe for subpoena; (8) subpoena; (9) motion for rule to produce books of account; (io) notice to produce books of account; (II) subpoena; (12) defendant's bill of particulars; (13) subpoena for George T. F. Ireland; (14) attachment for Lambert Lafoy; (I5) panel of jurors; (16) verdict; (17) motion for judgment; (18) precipe for execution fi. fa.; (19) writ of fi. fa. and return; (20) statement of accounts. 1821 Calendar, MS p. 87. Recorded in Book B, MS pp. 15o-55. Case 8o6 ALGERNON S. GILBERT versus FRANCIS LASSELLE Action of trespass on the case (assumpsit) Removed from Monroe County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): 7ournal 3: (I) Continued *p. 204; (2) rule for default judgment *p. 337; (3) attendance of witness proved *p. 340. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) copy of precipe for capias filed in county court; (4) copy of county court capias; (5) declaration; (6) precipe for office judgment; (7) precipe for subpoena; (8) subpoena; (9) precipe for execution ca. sa. and to tax attorney's fee; (to) writ of ca. sa. and precipe for alias; (ii) writ of ca. sa. and return; (12) alias ca. sa.; (13) pluries fi. fa.; (14) precipe for fi. fa.; (i5) precipe for alias ca. sa.; (16) promissory note. 1821 Calendar, MS p. 88. Recorded in Book B, MS pp. 184-89. Case 807 JOHN MELDRUM versus DAVID C. McKINSTRY Habeas corpus cum causa to Wayne County Court JOURNAL ENTRIES (1821): journal 3: (I) Rule to return habeas corpus *p. 204; (2) dismissed *p. 263. PAPERS IN FILE: [None] 1821 Calendar, MS p. 89. CALENDAR OF CASES 193 Case 808 JOHN MELDRUM, ADMINISTRATOR, ETC., OF GEORGE MELDRUM, DECEASED, versus DAVID C. McKINSTRY Habeas corpus cum causa to Wayne County Court JOURNAL ENTRIES (1821): Journal 3: (I) Rule to return habeas corpus *p. 204; (2) dismissed *p. 263. PAPERS IN FILE: [None] ,3S2 Calendar, MS p. 90. Case 809 JOHN MELDRUM versus DAVID C. MeKINSTRY Habeas corpus cum causa to Wayne County Court JOURNAL ENTRIES (1821): Journal : (I) Rule to return habeas corpus *p. 205; (2) dismissed *p. 264. PAPERS IN FILE: [None] 182! Calendar, MS p. 91. Case 8io WILLIAM MILLER versus JOHN PALMER Habeas corpus cum causa to Wayne County Court JOURNAL ENTRIES (1821): Journal3: (I) Rule to return habeas corpus *p. 205; (2) dismissed *p. 264. PAPERS IN FILE: [None] i821 Calendar, MS p. 92. 194 SUPREME COURT OF MICHIGAN Case 8xi JAMES MAY versus ANGUS MACKINTOSH, SARAH MACOMB AND ALEXANDER MACOMB, EXECUTORS, ETC., OF WILLIAM MACOMB, DECEASED Habeas corpus cum causa to Wayne County Court JOURNAL ENTRIES (1821-25): 7ournal3: (i) Rule to return habeas corpus *p. 205; (2) motion to quash habeas corpus *p. 243; (3) continued *p. 264; (4) continued *p. 349; (5) continued *p. 426; (6) continued *p. 443, 7ournal 4: (7) Rule to strike from docket MS p. 13. PAPERS IN FILE: [None] 1821 Calendar, MS p. 93. Case 812 JOHN ANDERSON versus MARY ANN SCOTT, ADMINISTRATRIX, ETC., OF WILLIAM McDOWELL SCOTT, DECEASED Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821): 7ournal 3: (I) Rule to return habeas corpus *p. 205; (2) dismissed *p. 264. PAPERS IN FILE: [None] 1821 Calendar, MS p. 94. Recorded in Book B, MS pp. 66-69. Case 813 HEMAN BROWN, JR. versus LOWRIN MARSH Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821-29): Journal 3: (I) Continued *p. 205; (2) affi- davit filed, continued *p. 278; (3) motion for commission to take deposi- tion granted *p. 371; (4) jury impaneled, verdict *p. 423; (5) witnesses sworn *p. 424; (6) witness sworn *p. 424; (7) motion for new trial *p. 431. Journal 4t: (8) New trial granted conditionally MS p. 23; (9) continued MS p. 140; (Io) motion for security for costs or nonsuit MS p. 32x; (I I) rule for nonsuit MS p. 340. CALENDAR OF CASES '95 PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) recogni- zance; (4) declaration; (5) plea of non assumpsit and notice of set off; (6) similiter; (7) affidavit for continuance; (8) recognizance; (9) plea puis darrein continuance of assignment for benefit of creditors; (io) demurrer to plea and joinder in demurrer; (11-12) verdicts; (13) reasons for new trial; (14-15) affidavits of Wolcott Lawrence; (16) receipt for sheriff's fees; (17) motion for security for costs or nonsuit; (18-19) promissory notes; (20) statement of accounts. 1821 Calendar, MS p. 97. Note: Papers 9, 13 and 14 are printed herein. (Selected Papers, infra, case 813) The motion for new trial was granted Oct. 4, 1825 by Judges Witherell and Sibley. A memo. opinion in Judge Sibley's handwriting (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 51, p. 84) reads as follows: "Brown vs Marsh-M° for N T.-Trial 18233 I Count for 200 B1 Salt, 2 " for Ioo B's Salt 3 " for 12o pa' in flour 4 " for i0oo good wares & 5 " for 50 for horse meat 6 " for ioo Money Lent and advanced 7 " for oo in paid laid out and expended verdict 823 43 cents-Plea Gen1 issue, and Notice of offset.-Brown became insolvent after Cont and made an assgnt of all his propr-a plea of puis darein Continuance, interposed- 7 Sepr 823-2d Tuesday of Nov 1822. before the County Court of Genessee County- Transferred to Ira Wait, all his right and claim to the Cause of action to wit the notes, acct &° in the decl mentioned-That the propY vested in the assignee as well as the Legal remedies-3d reason assd for N Trial-incompetent & irrevelent Testimony was permitted to go to the Jury-I Bur. 395 To Building on ground of J. B. Cicot, upon award to be made by Cicot [Cook] & Kelsey-under an agmt. $324.5 -That William G. Taylor, was introduced as a Witness to whom an objection was interposed on acct of Interest sd Taylor being put on his oath, denied that he had any interest in the event of the Suit-Objn over- ruled & Taylor was examined and Testified &° 4 Johnston 293. interest in any part of the demand excludes the witness, on the Score of incompetency-Lawrence files affidavit of Taylor's Interest in note for flour of 120 doll'-That the affidavit now made & filed by Mr Lawrence should have been made and insisted on upon a Motion for a Continuance prior to the Trial-I Mass. 237. Court will not grant a New trial 2 [Mass] 112 &° 2 Keny 129. 4 Johnston 425-Mr Woodbridge That if a special agreement exists the party is bound to set it forth-That in Case of an award the suit must lie on the award or the agree- ment of submission-The Court were of opinion from the facts as they appeared in argu- ment, that the deft was surprised into a Trial, and lost the Benefit of his testimony in his defense, By reason whereof the whole Case, was not tried by the jury, and it appears to the Court that the Pltff interest in the matters in dispute had been divested, by a Legal agreement, since the Commencement of the suit, and that he had become wholly insolvent, by which the defendants remedy, by a New action, would be ineffectual the Court therefore, grant a New Trial-But as the pltff has obtained a verdict, which the Court consider fair, from the evidence before the jury, they will not wholly deprive him of the benefit thereof- The new trial is granted on Terms, that the deft pay the whole Costs in the Case, up to the present time to be furnished by the Clk, and that the deft have o10 days in which to pay sd Costs-Decision rendered 4th of Oc*-Judges W. & S." 196 SUPREME COURT OF MICHIGAN Case 814 CHARLOTTE DAVID, ADMINISTRATRIX, ETC., OF MOSES DAVID, DECEASED, versus JOHN MELDRUM, ADMINISTRATOR, ETC., OF GEORGE MELDRUM, DECEASED Action of debt on a bond JOURNAL ENTRIES (1821-22): 7ournal3: (I) Appearance *p. 206; (2) con- tinued *p. 264; (3) rule for default judgment *p. 344; (4) rule for judg- ment rescinded *p. 347; (5) rule for judgment *p. 352. PAPERS IN FILE: (1) Precipe for process; (2) summons and return; (3) declaration; (4) plea of nil debet and notices; (5) precipe for subpoena; (6) subpoena; (7) copy of bond; (8) memo. of amount of judgment; (9) precipe for execution fi. fa.; (Io) writ of fi. fa. and return; (I I) money bond. 1821 Calendar, MS p. 98. Recorded in Book B, MS pp. 190-92. Case 815 JOHN W. HUNTER versus THE CORPORATION OF THE CATHOLIC, APOSTOLIC AND ROMAN CHURCH OF ST. ANNE Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): Journal3: (I) Motion to quash habeas cor- pus *p. 206; (2) motion to quash habeas corpus *p. 244; (3) continued *p. 255; (4.) judgment *p. 280. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4) plea of non assumpsit; (5) due bill; (6) memo. of indorsement; (7) memo. of members of corporation. 182% Calendar, MS p. 52. Recorded in Book B, MS pp. o106-109. Note: The county court file (case 488) contains: (i) precipe; (2) summons and return; (3) declaration. CALENDAR OF CASES 197 Case 816 GABRIEL GODFROY, SR. versus FRANCOIS NAVARRE Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821-27): 7ournal3: (1) Motion for particulars and to produce book of entries *p. 207; (2) continued *p. 227; (3) continued *p. 336; (4) transferred to issue docket *p. 387; (5) referred *p. 492. Journal 4: (6) Rule extending time for making award MS p. 22; (7) death suggested, continued MS p. 93; (8) discontinued MS p. I27. PAPERS IN FILE: (i) Precipe for process; (2) declaration; (3) notice of de- mand for bill of particulars and book entries; (4) precipe for default judgment; (5) plea of non assumpsit and notice of set off; (6) stipulation for reference; (7) agreed order enlarging time for making award. Ofice Docket, MS p. 153, c. 83. (Case 133 of 1820) Case 817 TIMOTHY HUNT versus HENRY HUDSON Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821-23): /ournal3: (I) Motion for rule to bring body *p. 207; (2) rule to attach rescuers *p. 220; (3) motion to quash attach- ment *p. 231; (4) special bail filed, time given to declare and reply, con- tinued *p. 376; (5) rule for nonsuit *p. 443. PAPERS IN FILE: (I) Precipe for capias; (2) affidavit for bail; (3) petition for bail and allowance; (4) capias and return; (5) precipe for subpoena; (6) subpoena; (7) recognizance. 182! Calendar, MS p. 43. Recorded in Book B, MS pp. 358-60. Note: See case 841, infra. The return to the writ of capias reads as follows: "By virtue of this writ directed to the Sheriff of the County of Wayne and in pursuance of his deputation endorsed upon the back of said writ under his hand and seal, I did afterwards and before the return of the said writ to wit on the thirteenth day of September inst at Gross Point in the County of Wayne and in the bailiwick of the Sheriff of the County of Wayne aforesaid, take, and arrest the within named Henry Hudson according to the exigency of the said writ and safely kept him in custody, until William Hudson and Mary Hudson of Gross Point aforesaid and divers other persons to me unknown on the thirteenth day of September aforesaid at Gross Point at the dwelling house of the said Henry Hudson aforesaid, with force and arms, assaulted and ill-treated me, and the said Henry Hudson out of my custody then and there rescued, and the said Henry Hudson then and there with force and arms res- cued himself and escaped out of my custody against the peace and dignity of the United States Territory of Michigan: And afterwards, the said Henry Hudson is not to be found in the County of Wayne aforesaid, Detroit Sep. 17th 1821. SIMON SHOVEN" 198 SUPREME COURT OF MICHIGAN Case 818 ENOCH FIFIELD, SURVIVOR OF DAVID FRARY AND ENOCH FIFIELD, versus LOWRIN MARSH, BENJAMIN DAVIS AND HEMAN BROWN, JR. Action of trespass on the case (assumpsit) Appeal from Monroe County Court JOURNAL ENTRIES (1821): Journal 3: (i) Transcript filed, motion for judgment *p. 208; (2) judgment *p. 210. PAPERS IN FILE: (i) Transcript of county court record; (2) copy of precipe for capias filed in county court; (3) copy of county court capias; (4) copy of county court subpoena; (5) copy of affidavit for continuance filed in county court; (6) copy of recognizance on appeal; (7) taxed bill of costs; (8) transcript of docket entries; (9) precipe for execution ca. sa. 1821 Calendar, MS p. 15. Recorded in Book A, MS pp. 156-63. Note: The county court file (case Ii) contains: (i) capias and return; (2) declaration; (3) plea. Case 819 GLADDEN BONNEY versus BENJAMIN DOW AND ZEPHANIAH W. BUNCE Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821): Journal3: (I) Rule for special bail or procedendo *p. 215; (2) rule for remand by procedendo *p. 223. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) copy of indorsement on county court capias. z8z2 Calendar, MS p. I 5. Note: The county court file (case 416) contains: (i) precipe; (2) capias and return; (3) bond for costs; (4) precipe for alias capias; (5) alias capias and return; (6) writ of pro- cedendo; (7) precipe for fi. fa. See case 691, supra. CALENDAR OF CASES I99 Case 820 HALL SMITH versus MANOAH HUBBARD Action of trespass on the case (assumpsit) Appeal from Wayne County Court JOURNAL ENTRIES (1821-24): Journal j: (I) Transcript filed, judgment *p. 215; (2) motion to re-tax costs *p. 479. PAPERS IN FILE: (1) Transcript of county court record; (2) precipe for execution fi. fa.; (3) writ of fi. fa. and return; (4) precipe for alias fi. fa.; (5) alias fi. fa. and indorsements. Office Docket, MS p. 154, c. 86. (Case 136 of I820) Recorded in Book A, MS pp. 164-71. Case 82 I UNITED STATES versus JAMES MAXWELL Indictment for larceny JOURNAL ENTRIES (1821): Journal : (I) Indictment presented *p. 216; (2) plea, jurors, verdict *p. 245; (3) constable sworn to attend jury *p. 246; (4) sentence *p. 251. PAPER IN FILE: (I) Indictment; (2) order to bring defendant; (3) sub- poena; (4) panel of jurors. 1821 Calendar, MS p. 117. Recorded in Criminal Records, Book A, MS pp. 7-10. NVote: On Dec. 18, 1821, an act was adopted authorizing and directing the sheriff to dis- charge Maxwell from imprisonment upon his giving a note for the fine and costs imposed in this case. (Laws of the Territory of Michigan, I, 248) Case 822 CONRAD TEN EYCK versus FRANCIS LASSELLE Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821): Journal3: (i) Rule for special bail or procedendo *p. 217; (2) discontinued *p. 240. PAPERS IN FILE: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) copy of indorsement on county court capias. z821 Calendar, MS p. 6o. Recorded in Book A, MS pp. 252-55. 200 SUPREME COURT OF MICHIGAN Case 823 JAMES JACKSON EX DEM. JACQUES NAVARRE versus JOHN STILES AND FRANCIS POULIN Action of ejectment JOURNAL ENTRIES (1821-28): Journal 3: (I) Rule to enter into consent rule *p. 217-a; (2) continued *p. 265; (3) default entered, judgment *p. 350; (4) judgment opened, consent rule entered into, etc. *p. 460; (5) con- tinued *p. 502; (6) continued *p. 507. Journal 4: (7) Continued MS p. 8; (8) motion for trial at Monroe MS p. 15; (9) issue ordered sent to circuit court for trial MS p. 32; (io) motion for default judgment MS p. 97; (I i) motion for default overruled, rule to plead MS p. 103; (12) motion for judgment on circuit court verdict MS p. 135; (13) motion for rule on clerk of circuit court to amend return MS p. 14o; (14) motion for new trial overruled, judgment MS p. 192. PAPERS IN FILE: (I) Copy of declaration, notice to tenant, proof of service; (2) motion for default judgment; (3) form of judgment; (4) consent rule; (5) precipe for subpoena; (6) precipe for writ of possession; (7-8) precipes for subpoenas; (9) affidavit for trial at Monroe; (io) affidavit of John L. Leib; (II) transcript of order of dismissal entered by circuit court; (12) declaration and plea of not guilty; (13) transcript of circuit court's record; (14) statement of circuit judge; (15) request for copy of deposition; (16) motion for new trial; (17) supplemental transcript of circuit court's record; (18) motion for judgment on circuit court verdict; (19) draft of judgment; (20) writ of habere facias possessionem with fi. fa. for costs and return. 182I Calendar, MS p. 107. Note: Papers I and 4 are printed herein. (Selected Papers, infra, case 823) Case 824 JOHN KELLY versus DAVID C. McKINSTRY Action of trespass on the case before John McDonell, J. P. Certiorari to John McDonell JOURNAL ENTRIES (1821-27): Journal 3: (i) Motion to quash certiorari overruled *p. 217-a; (2) diminution suggested *p. 217-c; (3) continued *P. 257; (4) continued *p. 338; (5) continued *p. 443. Journal 4: (6) Con- tinued MS p. 94; (7) abated MS p. 130. CALENDAR OF CAISES 201 PAPERS IN FILE: (I) Petition for certiorari, allowance, precipe; (2) affidavit of defendant's attorney; (3) writ of certiorari; (4) transcript of J. P. record. 1821 Calendar, MS p. 46. Case 825 EZRA BALDWIN versus ELIJAH ROOT Action of debt on a bond Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): Journal3: (i) Motion for bail or procedendo, attorneys objected to as bail *p. 217-i; (2) continued *p. 262; (3) discon- tinued *p. 278. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) copy of indorsement on county court capias; (4) declara- tion; (5) plea of nil debet and notices; (6) demand for oyer; (7) copy of bond; (8) precipe for subpoena; (9) subpoena; (io) precipe for execution ca. sa.; (II) writ of ca. sa. and return. 1821 Calendar, MS p. 68. Recorded in Book B, MS pp. 117-20. Case 826 JOSEPH CAMPAU versus EZRA BALDWIN Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-23): fournal3: (I) Rule to return habeas corpus *p. 218; (2) continued *p. 257; (3) time given to declare and plead *p. 376; (4) dismissed *p. 443. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) declaration; (3) precipe for subpoena; (4-5) subpoenas. 182! Calendar, MS p. 33. Note: The writ of habeas corpus is attached to the writ of certiorari in case 783, supra. 202 SUPREME COURT OF MICHIGAN Case 827 JOSEPH CAMPAU, ADMINISTRATOR OF DENIS CAMPAU, DECEASED, versus JACOB SMITH Action of trespass on the case (assumpsit) Appeal from Wayne County Court JOURNAL ENTRIES (1821): 7ournal3: (I) Jury trial, verdict *p. 218; (2) con- stable sworn to attend jury *p. 219. PAPERS IN FILE: (i) Precipe for subpoena. 1821 Calendar, MS p. io8. Recorded in Book A, MS pp. 309-17. Case 828 PHILIP LECUYER AND GEORGE E. WATSON versus BENJAMIN CHITTENDEN (HENRY J. HUNT, STEPHEN MACK AND DAVID COOPER, GARNISHEES OR TRUSTEES) Action of trespass on the case (assumpsit) (attachment) JOURNAL ENTRIES (1821-23): ournal3: (I) Continued *p. 221; (2) con- tinued *p. 333; (3) discontinued *p. 386. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) precipe for attachment; (4) attachment bond; (5) writ of attachment and return. Office Docket, MS p. 74, c. 7. (Case 45 of 1820) Note: The clerk was requested to issue a writ of attachment and to summon Hunt, Mack and Cooper "as garnishees or Trustees." The writ issued was in the same form as the writ printed in Transactions, z8o5-z84, II, 15o. The return reads: "I have maid due dilagence & atached three Notes of hand of one thousand dollars each in favor of the defendant in the hands of Henry J. Hunt Esqr . . . . I have also attached and taken 19 Banks of Indian Sugar & I I Buffalo Robes." Case 829 STEPHEN MACK versus BENJAMIN CHITTENDEN Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821-23): 7ournal3: (I) Continued *p. 221; (2) plea of non assumpsit, verbal notice of set off *p. 334; (3) discontinued *p. 386. PAPERS IN FILE: (I) Precipe for capias and affidavit for bail; (2) capias and return; (3) declaration. CALENDAR OF CASES 203 office Docket, MS p. o103, c. 2. (Case 54 of 1820) Recorded in Book B, MS pp. 218-20. Note: The defendant was arrested on the above capias and sought release on a writ of habeas corpus. (Case 658, supra; Doty's Reports, infra, *p. i) Case 830 JAMES BENTLEY versus LUTHER DORRIEL AND GIDEON BADGER Action of trespass on the case ... . Certiorari to Monroe County Court JOURNAL ENTRIES (1821): 7ournal3: (I) Discontinued *p. 222. PAPERS IN FILE: (I) Letter from attorney to clerk; (2) precipe for writ of certiorari; (3) letter from attorney to clerk. Office Docket, MS p. 10xo4, c. 3. (Case 55 of I820) Case 83x TOUSSAINT POTHIER versus JOHN W. BURNETT Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821): 7ournal3: (I) Discontinued, judgment *p. 223. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus; (3) transcript of county court record; (4) recognizance; (5) declaration; (6) copy of promissory note. Office Docket, MS p. 1I15, c. 14. Recorded in Book A, MS pp. 177-84. Note: The county court file (case 373) contains: (i) precipe; (2) capias and return; (3) subpoena. Case 832 JOHN G. WATSON, ADMINISTRATOR WITH WILL ANNEXED OF ROBERT GOUIE, DECEASED, versus BENJAMIN STEAD Action of debt on a writing obligatory Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821): journal3: (I) Death suggested *p. 224; (2) administrator ruled to appear *p. 258. 2o4 SUPREME COURT OF MICHIGAN PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus; (3) transcript of county court record; (4) recognizance; (5) declaration; (6) precipe for notice to defendant's administrator; (7) sheriff's bill of fees; (8) precipe for discontinuance. Office Docket, MS p. I18, c. 18. (Case 70 of 1820) Note: See case 614, supra. Case 833 PAUL D. BUTLER versus JOHN WHIPPLE Action of trespass on the case (assumpsit) Removed from Monroe County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-24): Journal3: (I) Continued *p. 224; (2) mo- tion for nonsuit *p. 334; (3) motion for leave to file declaration *p. 334; (4) continued *p. 442 (5) nonsuit *p. 503. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and allowance; (3) transcript of county court record; (4) recognizance; (5) precipe for judgment of nonsuit. Offce Docket, MS p. 1I19, c. 21. (Case 73 of 1820) Recorded in Book B, MS pp. 345-48. Case 834 JAMES DAY versus RALPH LOCKWOOD & CO. Action of trespass on the case (assumpsit) Removed from Michilimackinac County Court by habeas corpus and certiorari JOURNAL ENTRIES (1821): 7ournal3: (I) Discontinued *p. 224. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus; (3) precipe for certiorari; (4) writ of certiorari; (5) transcript of county court record; (6) recognizance; (7) discontinuance; (8) precipe for ex- ecution ca. sa.; (9) writ of ca. sa. and return. Office Docket, MS p. 147, c. 64. (Case 115 of 1820) Recorded in Book A, MS pp. 185-87. Case 835 JOHN S. ROBY versus PETER J. DESNOYERS Action of trespass on the case (slander) JOURNAL ENTRIES (1821): .ournal3: (I) Settled out of court *p. 224. PAPERS IN FILE: (I) Precipe for process; (2) capias and return. Ofce Docket, MS p. 127, c. 37. (Case 90 of 1820) CALENDAR OF CASES 205 Case 836 WILLIAM GILKINSON AND GEORGE MOFFAT, SURVIVING EXECUTORS, ETC., OF RICHARD PATTINSON, DECEASED, versus ROBERT SMART Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821): ournal3: (I) Discontinued, judgment *p. 226. PAPERS IN FILE: (I) Precipe for process; (2) capias and return. Ofice Docket, MS p. 150, c. 74. (Case 124 of 1820) Recorded in Book A, MS pp. 188-90. Case 837 UNITED STATES versus ADELAIDE BRUSH, EXECUTRIX, ETC., OF ELIJAH BRUSH, LATE TREASURER OF THE TERRI- TORY OF MICHIGAN, DECEASED Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821-25): 7ournal3: (I) Appearance, continued *p. 227; (2) jury impaneled *p. 340; (3) witness sworn *p. 340; (4) constable sworn to attend jury *p. 340; (5) verdict *p. 340; (6) motion for new trial *p. 340; (7) attendance of witness proved *p. 340. journal 4: (8) Judg- ment MS p. 63. PAPERS IN FILE: (I) Precipe for process; (2) summons and return; (3) declaration and plea of non assumpsit; (4) precipe for subpoena; (5) subpoena; (6) demand for bill of particulars; (7) subpoena; (8) subpoena duces tecum; (9) bill of particulars; (io) panel of jurors; (II) verdict; (12) reasons for new trial; (13) affidavit of William Brown; (14) certificate of amount due Detroit Fund; (15) memo. of amount of debt and interest; (16) order of governor and judges re taking judgment; (17) transcripts from records of governor and judges sitting as a land board; (18) precipe in action brought in court for District of Huron and Detroit by Elijah Brush, Treasurer, against Joseph Campau. Office Docket, MS p. 152, c. 8o. (Case 130 of 1820) Recorded in Book C, MS pp. 51-54. Note: The reasons assigned for a new trial were: "is Because the evidence introduced by the Pitff and permitted by the Court to be given the Jury, was irrelevant to the issue joined and ought to have been rejected-2 Because the Court misdirected the Jury on the evidence in their charge-The Pltff relying on the Book of Account kept by the Defendants Testator, was bound by the entering of both debit and credit and could not avail himself of the Debit side only, in exclusion of the credits, the same being in nature of a confession, 206 SUPREME COURT OF MICHIGAN which must be all taken together, and to that effect the Jury ought to have been instructed by the Court, and not that they should find, the debit side of the account, and exclude the defendant the benefit of the credits, as directed by the Court in their charge--3d Because the defendant, was surprised at the trial, by the introduction of evidence by the Pltif not anticipated, the same not being disclosed by the Bill of particulars furnished and therefore could not be prepared to rebut said evidence 4th Because the Defendant was ruled on to trial in the absence of Dot? W. Brown her material evidence, and by whom she expected to be able to prove, that the Credit entered in the Book introduced before the Jury, was Just and equitable and proper for the Jury to have considered in making up their verdict, and that she was not able to make out her defense for want of his evidence-5. Because the Judges of the Court before whom the trial was had were interested in the verdict that should be given, being by the Act of Congress of the 21I of Ap' 18o6, Trustees for the Citizens of the District of Detroit, and the suit being for monies claimed to be due from the deceased as Treasurer of the Governor and Judges under said Act, as shewn by the evidence introduced by the Plaintiff--6th Because the Jurors who tried the cause were citizens of the District of Detroit and directly interested in the verdict they should find, and therefore not qualified by Law to sit on said trial-7th And because the verdict is Con- trary to Law and evidence-" Case 838 TERRITORY OF MICHIGAN versus FRANCOIS BOUDOIN Certiorari to William H. Puthuf, 7. P. JOURNAL ENTRIES (1821-22): Journal3: (I) Rule for return to certiorari *p. 228; (2) rule for return extended *p. 336. PAPERS IN FILE: (I) Affidavit of Robert Stuart. 1821 Calendar, MS p. 8. Case 839 CONRAD TEN EYCK versus AUSTIN E. WING Action of replevin Removed from Wayne County Court by habeas corpus and certiorari JOURNAL ENTRIES (1821-22): Journal 3: (I) Motion to quash certiorari *p. 228; (2) continued *p. 257; (3) writ of certiorari and habeas corpus quashed *p. 337; (4) rule for nonsuit and for writ de retorno habendo *p. 337" PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus; (3) precipe for certiorari; (4) writ of certiorari; (5) transcript of county court record. 1821 Calendar, MS p. 39. Recorded in Book B, MS pp. 165-68. Note: Entry 3 has been crossed out by pencil marks. CALENDAR OF CASES 207 Case 840 ROBERT ABBOTT AND JAMES ABBOTT versus JEAN BAPTISTE RIVARD Action of right JOURNAL ENTRIES (1821-35): Journal3: (I) Motion for extension of time to declare *p. 230; (2) time given to declare, continued *p. 263; (3) con- tinued *p. 478. Journal 4t: (4) Motion to rescind continuance and for severance MS p. 22; (5) continued MS p. 93; (6) continued MS p. 140o; (7) continued MS p. 244; (8) continued MS p. 330; (9) continued MS p. 409; (io) motion for venire facias MS p. 479; (I1) motion for severance withdrawn MS p. 482; (12) rule for venire facias MS p. 486; (13) motion to renew rule for venire MS p. 5o7; (14) rule for venire MS p. 510. journalS: (15) Rule for venire MS p. I2; (16) rule for venire MS p. 48; (17) rule for venire MS p. 64; (18) consent verdict, judgment MS p. 98. PAPERS IN FILE: [None] /821 Calendar, MS p. 86. Note: The Calendar shows that a precipe for a "Writ of right" was filed and that the writ was issued and served. Case 841 UNITED STATES versus WILLIAM HUDSON, MARY HUDSON AND HENRY HUDSON Attachment for contempt of court JOURNAL ENTRIES (1821-22): Journal 3: (I) Attachment ordered *p. 220; (2) motion to quash attachment *p. 231; (3) recognizance *p. 233; (4) witnesses sworn, consideration postponed *p. 299; (5) sentence *p. 377- PAPERS IN FILE: (i) Writ of attachment; (2) writ of habeas corpus, return, and order for release on giving security; (3) recognizance; (4) precipe for subpoena; (5) subpoena. 1821 Calendar, MS p. I1I6. Aote: See case 817, supra. Paper I is printed herein. (Selected Papers, infra, case 841) o8 SUPREME COURT OF MICHIGAN Case 842 EDWARD W. TUPPER AND NANCY BOOTON, ADMINISTRATORS OF JOHN BOOTON, DECEASED, versus JOHN KINZIE, SPECIAL BAIL FOR EDWARD W. MILLER Action of debt on recognizance of bail (scirefacias) JOURNAL ENTRIES (1821): Journal 3: (I) Default judgment *p. 237. PAPERS IN FILE: [None] Office Docket, MS p. 152, c. 81. Recorded in Book A, MS pp. 244-51. Note: This case arose out of case 436, supra. Case 843 JOHN JACOB ASTOR, RAMSAY CROOKS AND ROBERT STUART versus JOHN W. BURNETT Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821): Journal3 : (I) Cognovit, judgment *p. 241. PAPERS IN FILE: (I) Declaration; (2) warrant to confess judgment. 1821 Calendar, MS p. 1I8. Recorded in Book A, MS pp. 256-59. Case 844 WILLIAM KEPNER versus RICHARD SMYTH, SPECIAL BAIL FOR SAMUEL PARSHALL Action of debt on a recognizance (scirefacias) JOURNAL ENTRIES (1821-25): Journal 3: (1) Commission to take depo- sition allowed, etc. *p. 243; (2) continued *p. 263; (3) motion for judg- ment for execution granted *p. 350; (4) motion to set aside supersedeas *p. 430; (5) supersedeas set aside, motion to set aside judgment *p. 505. Journal 4: (6) Motion to set aside judgment or for leave to defend MS P- 53; (7) motion to set aside judgment, etc., overruled MS p. 69. PAPERS IN FILE: (I) Precipe for scire facias; (2) writ of scire facias and acknowledgment of service; (3) interrogatories to John Barclay and com- mission to take his deposition; (4) declaration; (5) plea of payment; (6) CALENDAR OF CASES 209 copy of interrogatories to, and affidavit of John Barclay; (7) motion for judgment; (8) precipe for execution fi. fa.; (9) writ of fi. fa. and return; (io) affidavit for supersedeas, allowance; (II) affidavit of Richard Smyth; (12) affidavit of Samuel T. Sutliff; (i3) writ of supersedeas; (i4) depo- sition of John Barclay; (IS5) receipt for notes and due bills. 12! Calendar, MS p. 85. Recorded in Book B, MS pp. 175-79. Note: This case arose out of case 570, supra. The defendant's plea, filed Dec. 6, 1821, reads as follows: "And the said Richard in his proper person comes & says That the said William ought not to have his execution against him the said Richard for the damages aforesaid because he says That before the institution of the original action by the said William Kepner against the said Samuel Parshal and before issuing the writ therein to wit on the third day of June 1818 paid to the said William the said four hundred and thirty five dollars & fifty five and one half cents in satisfaction and discharge of all the demands which he the said William had or claimed against him the said Samuel and this the said Richard is ready to verify, wherefore he prays judgment if the said William ought to have his execution against him for the damages aforesaid &c." October 4, 1822, the plaintiff, by Sibley & Whitney, his attorneys, moved that judgment for execution be entered for want of a proper plea. The court granted the motion, "the defendant having failed to defend." A brief in Sibley's handwriting (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 47, p. I) reads as follows: "Kepner vs Smith-Scirefacias-Plea payt by deft to Pltfif before action Brought-M° for Judgt for want of plea &c i point-The deft or Bail, can plead nothing to a Scirefacias, that might have been pleaded to the original action- Authorities--Cro. Eliz. 283 & 588 Cowp. 727 & 728-I. Salk. pa 2. 2d Strange 732. Jac. Law Dict Vol. 6. pa 26. 1it part Sanders 72. note-2d Burr. Ioo9-Moses vs McFarlane SThe Judgment until reversed is an estopple & conclusive and cannot be impeached in an action growing out of it-2d Bur. Ioo9-Moses vs McFarlane 3d Point-of argument- If the deft is estopped to plead what might have availed him as defense to the original action, much more strongly does the objection apply to the Bail-Their liability, is founded on the Judgment rendered-They undertake that the defendant shall pay the Judgt or render himself on ex° and on non compliance they will pay the Judgt &c It is not competent for the Bail to impeach the Judgt they are precluded by express undertaking to pay such Judgt-" A photostat of a similar brief (ibid., Vol. 47, p. 13) has been placed in the file. Case 845 SAMUEL HANNA, ADMINISTRATOR, ETC., OF ISAAC BURNETT, DECEASED, versus JOHN P. HEDGES, JOSEPH BARROW AND WILLIAM SUTTENFIELD (HENRY J. HUNT, GARNISHEE OR TRUSTEE) Action of debt on a writing obligatory (attachment) JOURNAL ENTRIES (1821-25): Journal3: (1) Defendants called, auditors appointed *p. 243; (2) default, auditors appointed *p. 349; (3) continued *p. 443; (4) report of auditors filed, default *p. 458. Journal y: (5) Judg- ment MS p. 68. 210 SUPREME COURT OF MICHIGAN PAPERS IN FILE: (I) Precipe for attachment; (2) affidavit for attachment; (3) writ of attachment and return; (4) sheriff's return; (5) Hunt's state- ment of his account with defendant Hedges; (6) commission to auditors; (7) report of auditors; (8) affidavit of publication; (9) printer's bill; (ic; writing obligatory. 182% Calendar, MS p. 72. Recorded in Book C, MS pp. 55-58. Note: Papers 3, 6 and 7 are printed herein. (Selected Papers, infra, case 845) The clerk was requested to direct the sheriff particularly "to attach the rights & credits, moneys & effects goods & chattels, in the hands of Henry J. Hunt, belonging to said John P. Hedges one of the Deft' above named." Authority for the appointment of auditors is found in Laws of the Territory of Michigan (1820) p. 402. A notice of the attachment was published in the Detroit Gazette, May 3, 1822. Case 846 JAMES McMANUS versus LOWRIN MARSH Certiorari to . . . . Durocher, 7. P. JOURNAL ENTRIES (1821): journal3: (I) Motion to strike from docket *p. 245; (2) motion to strike granted *p. 247. PAPERS IN FILE: [None] 182z Calendar, MS p. I0o2. Case 847 STEPHEN MACK AND SHUBAEL CONANT, MERCHANTS TRADING UNDER THE FIRM OF MACK & CONANT, versus AUSTIN E. WING Action of replevin Certiorari to Wayne County Court JOURNAL ENTRIES (1821): journal 3: (I) Previous entry of settlement ordered stricken, continued *p. 249. PAPERS IN FILE: (I) Writ of certiorari; (2) transcript of county court rec- ord. Office Docket, MS p. 121, c. 25. Recorded in Book A, MS pp. 459-67. Note: Journal entries 5 and 7 of case 598, supra, were doubtless intended to include this case. Paper 6, case 598, refers to "the cases of Mack & vs Wing." The county court file (case 256) contains: (I) precipe; (2) writ of replevin; (3) replevin bond; (4) declaration; (5) copy of precipe; (6) copy of bond; (7) copy of writ; (8) copy of declaration and transcript of proceedings; (9) copy of motion to quash writ. CALENDAR OF CASES 211 Case 848 ROBERT ABBOTT versus JAMES MAY, WILLIAM WOOD- BRIDGE AND JOSEPH BEAUBIEN, SR. Bill in equity for specific performance JOURNAL ENTRIES (1821-22): Chancery 7ournal: (i) Motion for leave to amend bill, etc. *p. 20. Journal3: (2) Leave to amend bill, etc., granted *p. 25I; (3) dismissed *p. 295. Chancery 7ournal: Discontinued *p. 54. PAPERS IN FILE: (I) Bill of complaint; (2) precipe for copy of bill of com- plaint; (3) dismissal. Chancery Case 1 8 of 1821. Note: Paper 3 reads as follows: "On motion of Petit Solr for Pff. the Bill of Complt of R Abbott, agst Bobien et al, is dismissed, & a new bill filed suggesting the death of Bobien." See case 1o21, infra. The writ of subpoena is with the papers of the County Court of Wayne County. (Miscl. file 58) Case 849 THOMAS SMITH versus JOHN McDONELL Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821-22): journal 3: (I) Cognovit, judgment *p. 251-a; (2) motion for leave to file motion to quash execution *p. 306. PAPERS IN FILE: (I) Warrant to confess judgment; (2) "plea" of cognovit; (3) precipe for execution fi. fa.; (4) writ of fi. fa. and return; (5) precipe for alias "execution" to sell property; (6) memo. of papers wanted in court; (7) precipe for venditioni exponas; (8) writ of "execution." 1825 Calendar, MS p. 119. Recorded in Book A, MS pp. 284-86. Case 850 DEGARMO JONES versus HENRY HUDSON Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): 7ournal3: (I) Continued *p. 255; (2) judg- ment *p. 285. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) recognizance; (3) writ of habeas corpus; (4.) precipe for habeas corpus; (5) writ of habeas corpus; (6) transcript of county court record; (7) declaration; (8) plea of non assumpsit; (9) precipe to tax costs and for fi. fa.; (io) writ of fi. fa. and return; (ii) precipe for ca. sa; (12) precipe for alias fi. fa.; (13) 2 2 SUPREME COURT OF MICHIGAN alias fi. fa. and return; (I.4-I 5) precipes for pluries fi. fa.; (1 6) pluries fi. fa.; (I7) receipt of clerk's fees; (i8) precipe for pluries fi. fa.; ('9) pluries fi. fa. and return; (20) promissory note. Office Docket, MS p. 130, c. 43. (Case 95 of 1820) Recorded in Book A, MS pp. 318-23. Case 85I JOHN W. HUNTER versus THE CORPORATION OF THE CATH- OLIC, APOSTOLIC AND ROMAN CHURCH OF ST. ANNE Action of trespass on the case (assumpsit) Certiorari to Wayne County Court JOURNAL ENTRIES (1821-22): 7ournal3: (I) Continued *p. 255; (2) dis- continued *p. 271. PAPERS IN FILE: (i) Precipe for certiorari; (2) writ of certiorari; (3) sheriff's bill of fees. Office Docket, MS p. 134, c. 49. (Case Io of I820) Case 852 JAMES ABBOTT versus GABRIEL RICHARD Action of trespass on the case before Thomas Rowland, 7. P. Certiorari to Thomas Rowland JOURNAL ENTRIES (1821): 7ournal3: (I) Continued *p. 255. PAPERS IN FILE: (I) Recognizance and precipe for certiorari; (2) sheriff's bill of fees. Office Docket, MS p. 145, c. 60. (Case Ix1 of I820) Case 853 ARTHUR KENNEDY versus ROBERT SMART Action of trespass on the case (trover) before 7ohn McDonell, 7. P. Appeal to Wayne County Court Removed from Wayne County Court by habeas corpus and certiorari JOURNAL ENTRIES (1821): Journal3: (I) Judgment *p. 256. PAPERS IN FILE: (i) Precipe for habeas corpus; (2) writ of habeas corpus; (3) precipe for certiorari; (4) writ of certiorari; (5) certiorari bond, ap- proval; (6) transcript of county court record; (7) precipe for fi. fa. and to tax attorneys' fees; (8) writ of fi. fa. and return. Office Docket, MS p. 149, c. 71. (Case 122 of i82o) Recorded in Book A, MS pp. 302-308. CALENDAR OF CASES 213 Case 854 JOSEPH REMO versus ROBERT SMART Action of trespass on the case (trover) before John McDonell, J. P. Appeal to Wayne County Court Removed from Wayne County Court by habeas corpus and certiorari JOURNAL ENTRIES (1821): ournal3: (I) Settled out of court *p. 256. PAPERS IN FILE: (i) Precipe for habeas corpus; (2) writ of habeas corpus; (3) precipe for certiorari; (4) bond for certiorari, approval; (5) writ of certiorari; (6) transcript of county court record. Office Docket, MS p. 149, c. 72. (Case 123 of I820) Note: The county court file (case 461) contains: (I) transcript of J. P. record; (2) declara- tion and plea; (3) precipe for subpoena; (4) subpoena; (5) precipe for subpoena; (6) sub- poena; (7) precipe for fi. fa.; (8) fi. fa. and return; (9) assignment of witness fees. Case 8 5 5 HENRY ST. JOHN DEZING versus JOHN WHIPPLE, ABRAHAM EDWARDS, BENJAMIN STEAD AND HENRY J. HUNT flction of trespass on the case (assumpsit) before Thomas Rowland, 7. P. Certiorari to Thomas Rowland JOURNAL ENTRIES (1821-22): Journal3: (I) Continued *p. 257; (2) rule to assign errors *p. 305; (3) rule to assign errors extended *p. 305; (4) motion for rule to amend return *p. 305; (5) motion for affirmance *p. 337; (6) death suggested *p. 337; (7) judgment of reversal *p. 367. PAPERS IN FILE: (i) Petition for certiorari and allowance; (2) affidavit for certiorari; (3) writ of certiorari; (4.) transcript of J. P. record; (5) copies of advertisements concerning a lottery; (6) precipe for ca. sa. for costs; (7) writ of ca. sa. and return. 1821 Calendar, MS p. 44. Recorded in Book B, MS pp. 92-96. Note: The plaintiff alleged that he was the possessor of a lottery ticket signed by the defendants, "the defendants having guaranteed to the possessor of said ticket by public advertisement, the drawing of the said lottery, in which they have wholly failed-by which faliour the said defendants become indebted to the said plaintiff in the said sum of five dollars." 214 SUPREME COURT OF MICHIGAN Case 856 ANDREW WESTBROOK, SUPERVISOR OF HIGHWAYS OF THE TOWNSHIP OF ST. CLAIR, versus JOHN THORN Action of trespass on the case (for neglecting to work on highways) before John K. Smith, 7. P. Certiorari to john K. Smith JOURNAL ENTRIES (1821-22): Journal3: (i) Continued *p. 257; (2) mo- tion to dismiss overruled, rule to assign errors *p. 287; (3) rule to assign errors extended *p. 305; (4) leave to amend return *p. 307; (5) rule to join in error *p. 337; (6) verbal joinder in error *p. 337; (7) judgment affirmed *p. 369. PAPERS IN FILE: (I) Petition for certiorari and allowance; (2) affidavit for certiorari; (3) copy of affidavit for certiorari; (4.) writ of certiorari; (S) return to writ of certiorari; (6) motion that justice be permitted to amend his return; (7) amended return and copy of journal entry; (8) assignment of errors; (9) extract from executive record showing appointment of Jos- eph Men6 vice Andrew Westbrook; (io) precipe for fi. fa.; (II) receipt for counsel fees; (12) receipt for J. P. costs; (13) receipt for money paid on judgment; (14) letter to clerk. 1821I Calendar, MS p. 45. Recorded in Book B, MS pp. 97-101. Note: The defendant assigned as errors that the declaration was insufficient and that judgment was given for plaintiff when it ought to have been given for defendant. Case 857 ELEANOR REID, EXECUTRIX, ETC., OF DUNCAN REID, DECEASED, versus WHITMORE KNAGGS Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821-22): Journal3: (I) Referred, continued *p. 257; (2) motion to set aside award *p. 335; (3) award set aside, discontinued *p. 366. PAPERS IN FILE: (i) Precipe for process; (2) capias and return; (3) agree- ment for reference; (4) transcript of rule of reference and stipulation of time for hearing; (5-6) subpoenas; (7) award of referees; (8) award en- velope; (9) motion to set aside award; (io) affidavit of James McCloskey; (II) sheriff's bill of fees; (12) receipt for costs; (13-26) statements of accounts. CALENDAR OF CASES 215 Office Docket, MS p. 152, c. 79. (Case 129 of i820) Recorded in Book B, MS pp. 38-40. .ote: Only two of the statements of accounts were filed in the Supreme Court. It is not certain that the others pertain to this case. In case 972, infra, Whitmore Knaggs was sued as the surviving partner of Duncan Reid & Co. Case 858 JOHN W. BURNETT versus JOHN JACOB ASTOR, RAMSAY CROOKS AND ROBERT STUART, TRADING UNDER THE FIRM OF THE AMERICAN FUR COMPANY Action of trespass on the case (. .. ) JOURNAL ENTRIES (1821-22): Journal3: (I) Continued *p. 258; (2) death of plaintiff suggested *p. 272; (3) motion for continuance overruled, pro- ceedings stayed *p. 336. IPAPERS IN FILE: [None] 121 Calendar, MS p. 3. Case 859 SAMUEL S. PHELPS AND RIX ROBINSON versus JONAS W. COLBURN Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821-29): Journal3: (I) Continued *p. 258; (2) rule to produce book of original entries *p. 328; (3) continued *p. 493; (4) attendance of witness proved *p. 495. Journal 4: (5) Continued MS p. 7; (6) attendance of witness proved MS p. 8; (7) attendance of witness proved MS p. 10; (8) issue sent to circuit court for trial MS p. 93; (9) attendance of witness proved MS p. 96; (io) rule for judgment on circuit court verdict MS p. 139; (1 I) motion to set aside order sending case to circuit court and subsequent proceedings MS p. 222; (12) execution or- dered stayed MS p. 223; (13) motion to set aside order, etc., submitted for decision MS p. 237; (14) motion to amend circuit court transcript MS p. 242; (15) motion for exoneration of bail MS p. 254; (16) rule to show cause against entry of exoneretur MS p. 256; (17) rule for judgment vacated, rule for judgment MS p. 260; (18) exoneretur entered MS p. 287. PAPERS IN FILE: (I) Precipe for process, affidavit and order for bail; (2) capias and return; (3) recognizance; (4) precipe to enter objection to bail; (5) declaration; (6) plea of non assumpsit and notice of demand for 216 SUPREME COURT OF MICHIGAN bill of particulars; (7) demand for bill of particulars; (8) precipe for sub- poena; (9) subpoena; (io) bill of particulars; (ii) subpoena; (I2) precipe for subpoena; (13) subpoena; (14) copy of notice to produce books of ac- count; (i5) precipe for subpoena; (16) subpoena; (17) affidavit for con. tinuance; (18) precipe for subpoena; (19-21) subpoenas; (22) precipe for subpoena; (23) subpoena; (24) deposition of Charles Larned; (25) depo- sition of Oliver Williams; (26) precipe for subpoena; (27) subpoena; (28-29) precipes for subpoenas; (30) subpoena; (31) precipe for subpoena; (32) deposition of David Gwynne; (33) precipe for subpoena; (34) de- position of William Keith; (35) affidavit of Samuel Phelps; (36-37) sub.- poenas; (38) deposition of John Deane; (39) deposition envelope; (40) deposition of Michael Dousman; (4i) deposition envelope; (42) precipe for subpoena; (43) subpoena; (44) transcript of pleadings and of order sending case to circuit court; (45) verdict in circuit court; (46) writ of ca. sa. and return; (47) precipe for alias ca. sa.; (48) alias ca. sa. and re- turn; (49) precipe for pluries ca. sa.; (so) motion to set aside order send- ing case to circuit court and subsequent proceedings; (51) affidavit of Jonas W. Colburn; (52) motion to amend transcript of circuit court record; (53) additional transcript of circuit court record; (54) motion for judgment; (55-56) motion for exoneration of bail; (57) letter from Col- burn to Robinson. 1821 Calendar, MS p. 4. Note: A stipulation relative to taking depositions is with the papers in case 721, supra. Case 86o JOHN DEGRAFF, JONATHAN WALTON, ABRAHAM VAN SANT- VOORD AND ERI LUSHER, MERCHANTS IN COMPANY UNDER THE FIRM OF DEGRAFF, SANTVOORD & CO., versus JOHN MeDONELL Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): 7ournal3: (i) Continued *p. 259; (2) mo- tion for bail or procedendo *p. 265; (3) jury impaneled *p. 278; (4) wit- nesses sworn *p. 278; (5) constable sworn to attend jury *p. 278; (6) verdict *p. 278; (7) notice of motion for new trial *p. 278; (8) motion for judgment *p. 312; (9) judgment *p. 378. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) copy of indorsement on county court capias; (4) declara- tion; (5) plea of non assumpsit and notice of demand for bill of particulars; CALENDAR OF CASES 217 (6) bill of particulars; (7) panel of jurors; (8) verdict; (9) reasons for new trial; (io) motion for judgment; (i i) affidavit in support of motion for new trial; (12) precipe for execution fi. fa.; (13) writ of fi. fa. and return; (14) precipe for pluries fi. fa.; (IS5) pluries fi. fa. and return; (16) statement of accounts. 182! Calendar, MS p. 16. Recorded in Book B, MS pp. 50-54. Note: The reasons assigned for a new trial were: ":° That said Verdict was against Law & Evidence 2d That since the trial of said case he has discovered that it will be in his power to prove by a witness not known at the time of the trial of said case that in the pffs account there is the sum of seventy dollars overcharged on the item of transportation which sum so overcharged was allowed by the Jury--3d That the Jury in said case allowed interest on an open and unacknowledged account from the date of the first item in said account when in Law and truth no interest should have been allowed but on the balance due on the day of the institution of said suit being from the 31t Der 1819." The county court file (case 472) contains: (1) precipe; (2) capias and return; (3) declaration and plea; (4) precipe for subpoena; (5) subpoena. Case 861 JOHN ANDERSON versus MARY ANN SCOTT, ADMINISTRATRIX OF THE ESTATE OF WILLIAM McDOWELL SCOTT, DECEASED Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): 7ournal3: (i) Continued *p. "259; (2) dis- continued *p. 336. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4) notice of discontinuance; (5) precipe for discontinuance. 182i Calendar, MS p. 19. Recorded in Book B, MS pp. 66-69. Case 862 JOHN ANDERSON versus MARY ANN SCOTT Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): 7ournal 3: (i) Continued *p. 259; (2) dis- continued *p. 302. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4.) plea of non assumpsit. 182i Calendar, MS p. 20. Recorded in Book B, MS pp. 70-73. Note: The county court file (case 497) contains: (i) precipe; (2) capias and return; (3) declaration; (4) plea; (5) precipe for subpoena; (6) subpoena; (7) precipe for subpoena. (8) subpoena. iI8 SUPREME COURT OF MICHIGAN Case 863 JOSIAH BELLOWS AND DAVID STONE versus OLIVER WILLIAMS Habeas corpus cum causa to . . . . JOURNAL ENTRIES (1821-22): 7ournal3: (I) Continued *p. 260; (2) strick- en from docket *p. 272. PAPERS IN FILE: [None] 1821 Calendar, MS p. 28. Note: In 1817 an action of trespass on the case (assumpsit) was commenced by Bellows and Stone, surviving partners of Richard H. Jones & Co., against Oliver Williams, surviving partner of Oliver Williams & Co., in the County Court of Wayne County (case 278). The county court file contains: (I) precipe; (2) capias and return; (3) declaration and plea; (4-5) subpoenas. Case 864 UNITED STATES versus WILLIAM LITTLE Indictment for assault with intent to kill and for assault and battery Removed from Macomb County Court by habeas corpus and certiorari JOURNAL ENTRIES (1821-22): journal3: (i) Continued *p. 261; (2) dis- missed *p. 324. PAPERS IN FILE: (I) Precipe for habeas corpus and certiorari; (2) writ of habeas corpus; (3) writ of certiorari; (4) transcript of county court rec- ord; (5) copy of indictment; (6) sheriff's bill of fees. z82. Calendar, MS p. 48. Note: See case 933, infra. Paper 5 is printed herein. (Selected Papers, infra, case 864) Case 865 PHILLIPS WARREN, MOSES T. GAGE AND ABNER YOUNG versus THE CORPORATION OF THE CATHOLIC, APOSTOLIC AND ROMAN CHURCH OF ST. ANNE Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-23): journal 3: (I) Continued *p. 261; (2) re- ferred *p. 340; (3) continued nisi *p. 344; (4) motion to accept award P-444; (5) judgment *p. 454. CALENDAR OF CASES 219 PAPERs IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4) plea; (5) agreement re filing replication; (6) demurrer to plea; (7) demurrer to "replication"; (8) plea of non assumpsit and notice of set off; (9) agreement for reference; (io) dec- laration; (I I) precipe for subpoena; ( 12) copy of agreement for reference and of rule of reference; (13) award of referees; (14) receipt for costs in county court; (i5) agreement re construction of the church of St. Anne. 1821 Calendar, MS p. 51. Recorded in Book B, MS pp. 233-37. Note: Paper 7, it seems, was an attempt to demur to a demurrer. Case 866 JOHN W. HUNTER versus THE CORPORATION OF THE CATHOLIC, APOSTOLIC AND ROMAN CHURCH OF ST. ANNE Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus and certiorari JOURNAL ENTRIES (1821-22): Journal3: (I) Continued *p. 261; (2) dis- continued *p. 271. PAPERS IN FILE: (i) Precipe for habeas corpus; (2) writ of habeas corpus; (3) precipe for certiorari; (4) writ of certiorari; (5) transcript of county court record; (6) declaration; (7) precipe for default judgment; (8) cer- tificate of payment of county court costs; (9) receipt for payment on judgment; (io) receipt for court costs. Office Docket, MS p. 127, c. 36. (Case 89 of 1820) Recorded in Book B, MS pp. 1-5. Case 867 WILLIAM C. JOHNSON AND HARPIN JOHNSON versus PHILO TAYLOR Action of debt on a bond JOURNAL ENTRIES (182I-28): journal.3: (I) Continued *p. 261; (2) con- tinued *p. 343; (3) continued *p. 391; (4) continued *p. 443; (5) continued *p. 493. journal 4: (6) Continued MS p. 4; (7) continued MS p. 93; (8) continued MS p. 14o; (9) rule for nonsuit MS p. 225. PAPERS IN FILE: (I) Precipe for process; (2) affidavit of indebtedness; (3) capias and return; (4) declaration; (5) copy of bond; (6) plea of nil debet; (7) affidavit for continuance; (8) stipulation re commission to take de- positions; (9) motion of Lamrned to strike his name as attorney. 1821 Calendar, MS p. 57. 220 SUPREME COURT OF MICHIGAN Case 868 UNITED STATES versus JOSIAH GODDARD Action of debt for a penalty before John McDonell, J. P. Appeal to Wayne County Court Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): fournal3: (I) Continued *p. 261; (2) dis-.. missed *p. 325. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) precipe for judgment of nonsuit; (4) sheriff's bill of fees, 1821 Calendar, MS p. 61. Note: The county court file (case 462) contains: (i) transcript ofJ. P. record; (2) declara- tion; (3) subpoena. According to the precipe for habeas corpus, this was an "Action of Trespass on the Case." The declaration in the county court shows that the action was for a penalty for selling liquor to a soldier. Case 869 UNITED STATES versus JOSIAH GODDARD Action of debt for a penalty before John McDonell, J. P. Appeal to Wayne County Court Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): Journal 3: (I) Continued *p. 261; (2) dis- missed *p. 325. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) precipe for judgment of nonsuit; (4) sheriff's bill of fees. 1821 Calendar, MS p. 62. Note: The county court file (case 463) contains: (i) transcript of J. P. record; (2) declara- tion. According to the precipe for habeas corpus this was an "Action on the Case." The declaration in the county court shows that the action was for a penalty for selling liquor to a soldier. Case 870 LEANDER TREMBLE versus PETER VAN EVERY Action of replevin Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-26): Journal3: (I) Continued *p. 262; (2) order for judgment *p. 341; (3) referred *p. 364; (4) continued *p. 443. Journal 4: (5) Remand, procedendo MS p. 27; (6) judgment for costs MS p. 94. CALENDAR OF CASES 221 PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4) precipe for default judgment; (5) sub- poena. IS'z Calendar, MS p. 63. Case 871 CONRAD TEN EYCK, ADMINISTRATOR, ETC., OF HENRY BROWN, DECEASED, versus BENJAMIN STEAD Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): ournal 3: (I) Death suggested, adminis- trator ruled to appear *p. 262; (2) discontinued *p. 342. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) copy of indorsement on county court capias. 182 Calendar, MS p. 66. Recorded in Book B, MS pp. 114-16. Case 872 HERCULES CARREL versus JAMES McMANUS Action of trespass on the case (assumpsit) Removed from Monroe County Court by habeas corpus cum causa JOURNAL ENTRIES (1821-22): 7ournal3: (I) Continued *p. 263; (2) ap- pearance, default judgment *p. 291; (3) attendance of witness proved *p. 291. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) copy of precipe for process filed in county court; (4) copy of county court capias; (5) declaration; (6) plea of non assumpsit and notice of set off; (7) precipe for subpoena; (8) subpoena; (9) report of referees and agreement as to amount due; (io) precipe for ca. sa.; (I I) writ of ca. sa. and indorsement of amounts to be deducted; (12) sheriff's bill of fees; (13) precipe for alias ca. sa.; (14) alias ca. sa. and return; (ii) acknowledgment of receipt of whiskey and agreement to sell, etc. I88z Calendar, MS p. 77. Recorded in Book B, MS pp. 138-41. 222 SUPREME COURT OF MICHIGAN Case 873 GEORGE MOFFAT, ROBERT GILLESPIE AND WILLIAM GIL KINSON, EXECUTORS, ETC., OF RICHARD PATTINSON, DECEASED, versus ANTOINE LASSELLE Scire facias to revive judgment JOURNAL ENTRIES (1821-22): Journal3: (i) Continued *p. 263; (2) rule for execution *p. 350. PAPERS IN FILE: (I) Precipe for scire facias; (2) writ of scire facias and return; (3) precipe for fi. fa.; (4) writ of fi. fa. and return. i8z2 Calendar, MS p. 84. Recorded in Book B, MS pp. 172-74. Note: The judgment revived was that entered in case 549, supra. Case 874 ZACHARIAH D. FLAGLER versus LUTHER PARKER Action of trespass on the case ( . ... ) JOURNAL ENTRIES (1821): 7ournal3: (I) Dismissed *p. 264. PAPERS IN FILE: [None] 1821 Calendar, MS p. 96. Case 875 THOMAS EMERSON versus BENJAMIN WOODWORTH Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821): 7ournal3: (i) Continued *p. 264. PAPERS IN FILE: (I) Agreement for entry of amicable suit; (2) recognizance and bail piece; (3) declaration; (4) precipe for default judgment; (5) precipe for discontinuance. 1821 Calendar, MS p. 10o3. Recorded in Book B, MS pp. 244-46. Case 876 THOMAS EMERSON versus HUBERT LACROIX Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821-22): Journal 3: (I) Continued *p. 264; (2) dis- continued *p. 350. CALENDAR OF CASES 223 PAPERS IN FILE: (i) Agreement to enter amicable suit; (2) recognizance; (3) declaration; (4) plea of non assumpsit and notice of set off; (5) discontinuance. S21 Calendar, MS p. Io5. Recorded in Book B, MS pp. 193-96. Case 877 ANTHONY BEELIN AND HENRY C. BOSLER versus ABRAHAM EDWARDS AND HENRY J. HUNT Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821-25): Journal3: (i) Continued *p. 265; (2) rule for judgment *p. 351; (3) motion to set aside supersedeas *p. 430. Journal 4: (4) Rule to strike from docket and to enter judgment nunc pro tunc MSp. I. PAPERS IN FILE: (i) Agreement to enter amicable suit; (2) declaration; (3) calculation of amount due; (4) sheriff's bill of fees; (5) petition and order for supersedeas; (6) supersedeas bond; (7) writ of supersedeas and al- lowance; (8) plea of non assumpsit; (9) precipe for execution fi. fa.; (io) writ of fi. fa. and return; (i 1-12) promissory notes. 321 Calendar, MS p. 120. Recorded in Book B, MS pp. 456-58. Case 878 ANTHONY BEELIN AND HENRY C. BOSLER versus ABRAHAM EDWARDS Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1821--25): Journal3: (i) Continued *p. 265; (2) rule for judgment *p. 351; (3) motion to set aside supersedeas *p. 430. Journal 4: (4) Rule to strike from docket and to enter judgment nunc pro tunc MS p. i. PAPERS IN FILE: (I) Agreement to enter amicable suit; (2) declaration; (3) recognizance; (4) bail piece; (5) assessment of damages; (6) supersedeas bond; (7) writ of supersedeas and allowance; (8) plea of non assumpsit; (9) precipe for fi. fa.; (iO) writ of fi. fa. and return; (II) promissory note. 182 Calendar, MS p. 121. Recorded in Book B, MS pp. 459-61. Note: A petition for supersedeas is with the papers in case 877. 224 SUPREME COURT OF MICHIGAN Case 879 HENRY B. BREVOORT versus JONATHAN EASTMAN Bill in equity to enjoin execution of judgment JOURNAL ENTRIES (1822): Journal 3: (I) Exceptions to answer filed *p. 269. Chancery 7ournal: (2) Injunction dissolved, bill dismissed *p. 42. PAPERS IN FILE: [None] Chancery Case 24 of 1821. Note: The return to a writ of fi. fa. issued in case 603, supra, includes a copy of a writ of injunction dated Oct. 25, 1821 forbidding the execution of the judgment in that case. The writ of injunction recited that Henry B. Brevoort had lately exhibited his bill of complaint against Jonathan Eastman. The copy of the writ of injunction is printed herein. (Selected Papers, infra, case 603) Case 880 IN THE MATTER OF HENRY F. HALL, AN ABSENT WITNESS, DETAINED AT GREEN BAY BY THE ORDERS OF COL. N. G. PINCKNEY Forfeiture of recognizance (contempt) JOURNAL ENTRIES (1822): Journal3: (I) Recognizance forfeited *p. 270; (2) witnesses sworn *p. 270. PAPERS IN FILE: (I) Subpoena. Note: The above subpoena commanded the persons named to appear before the judges of the Supreme Court "to give evidence in a case to be inquired into in relation to a certain Contempt of Col N. G. Pinckney." Case 8 8 I LOUIS LOGNON versus NATHAN WILLCOX Action of forcible detainer before 7ames D. Doty, J. P., and Thomas Rowland, J. P. Certiorari to Doty and Rowland JOURNAL ENTRIES (1822): Journal 3: (I) Dismissed *p. 273. PAPERS IN FILE: (I) Precipe for certiorari; (2) bond for certiorari. 1822-23 Calendar, MS p. 5. CALENDAR OF CASES 225 Case 882 DAVID STONE versus JOHN DOUSMAN AND THOMAS LYON Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1822): 7ournal3: (I) Discontinued *p. 273; (2) motion to take off certain fees *p. 320; (3) order re taking off fees *p. 320. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) precipe for discontinuance; (4) taxed bill of costs. I822-23 Calendar, MS p. 4. Case 883 LOUIS DEVOTION versus JOHN ANDERSON Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822): Journal 3: (I) Discontinued *p. "273. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) discontinuance. 1822-23 Calendar, MS p. I . Case 884 OLIVER W. MILLER versus EDWARD RYAN Action of trespass on the case ( .. .) Habeas corpus cum causa to Wayne County Court JOURNAL ENTRIES (1822-23): Journal 3: (I) Motion for rule on county court to return writ *p. 273; (2) motion for rule overruled *p. 286; (3) motion to dismiss granted *p. 433. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return. I822-23 Calendar, MS p. I3. Note: The return to the writ of habeas corpus reads as follows: "We the Chief Justice and Associate Justices of the County Court for the County of Wayne, aforesaid, for return to the writ hereto annexed, Do say; That in the fifteenth section of an act passed by the Governor and Judges of the Territory of Michigan, on the twenty first day of December in the year of our Lord one thousand eight hundred and Twenty, entitled, 'An act con- cerning appeals, writs of error, Certiorari and Habeas Corpus,' it is enacted 'That if any Habeas Corpus, Certiorari or other writ for the removal of a cause, shall be issued out of the Supreme Court contrary to the true intent and meaning of the said act, then the Court to which such writ may be directed or offered, shall proceed in the said case as though no such writ had been issued or offered.' And further, that upon the presentation to us of the 226 SUPREME COURT OF MICHIGAN said writ, it did manifestly appear to us, the said Justices, that the same had issued from your Honorable Court, contrary to the true intent and meaning of the act aforesaid; and we thereupon did proceed in the said case between the parties, in compliance with the Law aforesaid, as though no such writ had been issued or offered to us, the said Justices. Done at the City of Detroit, on the 7th May 1822." Case 885 OLIVER W. MILLER versus GIDEON LEET AND CHARLES LARNED . ,. . . . . ,. • •. •. . • • •. •. Habeas corpus cum causa to Wayne County Court JOURNAL ENTRIES (1822): Journal3: (I) Dismissed *p. 274. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return. 1822-23 Calendar, MS p. 14. Case 886 MELVIN DORR versus WILLIAM C. JOHNSON Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822): journal 3: (1) Rule for special bail or pro- cedendo *p. 277; (2) rule for remand by procedendo *p. 307. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return. .822-23 Calendar, MS p. 54- Note: See case 781, supra. Case 887 SAMUEL WILKESON versus JOHN S. REED Action of trespass on the case ( .. .) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822): Journal 3: (I) Rule for special bail or pro- cedendo *p. 277; (2) rule for remand by procedendo *p. 307. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return. 1822-23 Calendar, MS p. 40. CALENDAR OF CASES 227 Case 888 IN THE MATTER OF THE ESTATE OF DANIEL MACK, DECEASED (CHARLES JACKSON, ADMINISTRATOR) Petition for license to sell real estate JOURNAL ENTRIES (1822): Journal 3: (I) Petition presented, notice or- dered published *p. 281; (2) petition granted *p. 374. PAPERS IN FILE: (I) Petition of administrator and certificate of probate judge; (2) affidavit of publication of notice. 1822-23 Calendar, MS p. 92. Note: The petition and certificate are printed herein. (Selected Papers, infra, case 888) A notice of the petition was published in the Detroit Gazette on Sept. 20, 1822. Case 889 WILLIAM G. TAYLOR versus LUTHER SMITH Action of trespass on the case (damages for confinement in debtors' prison) Removed from Monroe County Court by habeas corpus cum causa JOURNAL ENTRIES (1822-25): Journal3: (i) Motion for remand by pro- cedendo *p. 282. Journal 4: (2) Procedendo MS p. 17. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return. 1822-23 Calendar, MS p. 71. Case 890 IN THE MATTER OF THE ESTATE OF WILLIAM J. McGEE, DECEASED (JAMES W. KING AND JANE KING, ADMINISTRATORS) Petition for license to sell real estate JOURNAL ENTRIES (1822): Journal3: (I) Petition presented, notice ordered published *p. 283; (2) petition granted *p. 374. PAPERS IN FILE: (i) Petition of administrators and certificate of probate judge; (2-3) notices of hearing; (4) affidavit of publication of notice. 1822-23 Calendar, MS p. 93. Note: A notice of the petition was published in the Detroit Gazette Sept. 20, 1822. A notice of sale appeared in the Gazette Nov. 29, 1822. 228 SUPREME COURT OF MICHIGAN Case 891 UNITED STATES versus JAMES BARNARD Indictment for murder and for manslaughter JOURNAL ENTRIES (1822): 7ournal3: (I) Indictment presented *p. 284; (2) copy of indictment ordered furnished *p. 305; (3) motion for discharge *p. 321; (4) arraignment, plea, jury impaneled *p. 331; (5) juror sum- moned *p. 332; (6) witnesses sworn *p. 332; (7) interpreter sworn *p. 332; (8) adjournment, jury admonished *p. 332; (9) absent witness ordered attached, excused *p. 332; (io) witnesses sworn *p. 332; ( 11) constable sworn to attend jury *p. 333; (12) verdict, jury polled, prisoner dis- charged *p. 333; (13-16) attendance of witnesses proved *p. 333; (17) attendance of witness proved *p. 338. PAPERS IN FILE: (I) Recognizance; (2) indictment; (3) capias sur indict- ment and return; (4) precipe for subpoena; (5) subpoena; (6) precipe for subpoena; (7-9) subpoenas; (i0) attachment for George Dunham; (ii) transcript of order for attachment; (13) panel of jurors. Case 892 UNITED STATES versus GEORGE DOUGHTS Indictment for.... JOURNAL ENTRIES (1822 -23): 7ournal 3: (I) Recognizance forfeited *p. 269; (2) recognitor called *p. 270; (3) indictment presented *p. 284; (4) scire facias against recognitor ordered issued *p. 325; (5) forfeiture of recognizance rescinded, continued *p. 377; (6) rule to bring body *p. 399; (7) recognitor exonerated *p. 401. PAPERS IN FILE: [None] Case 893 BENJAMIN DAVIS versus WILLIAM G. TAYLOR Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1822-24): 7ournal3: (I) Motion to quash writ *p. 284; (2) time for filing declaration extended *p. 360; (3) motion for commission to take depositions granted *p. 372; (4) motion to quash writ overruled *P. 379; (5) referred *p. 455; (6) motion for rule to show cause against entering judgment on award *p. 490; (7) motion to set aside award over- ruled, rule for judgment *p. 508. CALENDAR OF CASES 229 PAPERS IN FILE: (I) Warrant of attorney; (2-3) affidavits of indebtedness; (4) precipe for capias; (5) capias and return; (6) recognizance and justi- fication of bail; (7) motion to quash writ; (8) declaration; (9) plea of non assumpsit and notice of demand for bill of particulars; (io) bill of particulars; (ii) notice of taking deposition; (12) deposition of Gideon Badger; (13) deposition envelope; (I4) affidavit of William G. Taylor; (1i) precipe for subpoena; (x6) depositions of Glover Perin, Harvey Kim- ball, Nathan Walden, George Hosmer and John Mastick, interrogatories and commission; (17) notice of taking deposition; (18) deposition of Wy- man A. Town; (19) rule of reference, notice, oath of referees, award and account; (20) motion for rule to show cause against entering judgment on award; (21) motion to set aside award; (22) affidavit of W. A. Fletcher; (23) precipe for execution ca. sa.; (24) writ of ca. sa.; (25) precipe for fi. fa.; (26) writ of fi. fa. and return; (27) exemplification of record of Court of Common Pleas at Canandaigua, Ontario County, N. Y.; (28) exemplifi- cation of record of the Supreme Court of Judicature at Utica, N. Y.; (29) copies of papers in file of Court of Common Pleas, Ontario County, N. Y.; (30-31) exemplified copies of judgments of Court of Common Pleas, On- tario County, N. Y.; (32) exemplified copy of record of Court of Common Pleas, Ontario County, N. Y.; (33) exemplification of record of Court of Common Pleas, Ontario County, N. Y.; (34) exemplified copy of judgment of Court of Common Pleas, Ontario County, N. Y.; (35) copies of papers in file of Court of Common Pleas, Ontario County, N.Y.; (36) exemplifica- tion of record of Supreme Court of Michigan in case of Taylor v. Davis; (37-67) due bills, receipts, orders, promissory notes and an account. 1822-23 Calendar, MS p. 89. Recorded in Book B, MS pp. 299-303. Note: A memo. re exemplification of bail piece is with the papers in case 705, supra. See case 1033, infra. The motion to quash the writ of capias reads as follows: "William G. Taylor the defendant in this case by J. L. Leib his Attorney comes into Court and claims his privilege inasmuch as an Attorney of this Court he is not liable to be arrested, but is entitled to be sued by bill, and is exempted by the immemorial custom & privilege of courts from answering in any personal action, prosecuted by capias, against his will, and avers That he had been arrested by a capias ad respondendum against his will and against the custom and privileges aforesaid, Wherefore he prays That the said writ issued in this case may be quashed." This motion was overruled. Thereafter this case and case o1033, infra, were submitted to referees. The referees filed their award Sept. 27, I824. Davis moved for a rule to show cause against entering judgment on the award. October 2, I824, Taylor moved to set aside the award for the following reasons: "i. Because the said Award is against the evidence before the said arbitrators. 2. Because the said award and the proceedings of the said arbitrators are against and contrary to law. 3. Because the Deposi- tions purporting to have been taken under a commission from this court in the case of Davis vs Taylor have not been legally returned to this court or the clerk thereof, inasmuch as they were not directed or addressed to the said Clerk, and also because the invelope if any which contained the said depositions was not opened by the said Clerk, and by him certified according to the Statute. 4. Because the said Arbitrators allowed the sum of Seven hundred Dollars as Damages alledged to have been sustained by the said Davis on the sale 230 SUPREME COURT OF MICHIGAN of certain property mortgaged by the said Davis to secure the payment of a debt due from the said Taylor to one George Hosmer, against law and evidence. 5. Because the Davis has not paid, or otherwise settled the debts and demands mentioned in the said depositions, in such a manner as to entitle him to recover the amount allowed by the said arbitrators in favour of the said Davis, particularly the Judgments in the cases of Peter Briggs vs. Davis & Perrin; of Kirby vs. Davis & Perrin, of Cady vs. Davis & Perrin, of McNair vs. Davis & Perrin, of Kast vs. Davis and Perrin, the demand of George Hosmer and the notes due Nathan Walden, all on file in this case, and alluded to in the said depositions the same demands having been paid in part by the said Taylor, and in part also by the said Davis & Perrin Jointly, and in part unpaid-6. Because the commission to take the said deposi. tions was granted before issue was joined in the suit in which the said Commission granted. 7. Because legal and sufficient notice was not given by the said Davis or his atty to the said Taylor or his atty of the time and place of presenting the interrogatories to be annexed to said Commission to a Judge for approval-and no legal and sufficient notice given to the said Taylor or his attr of the time and place of taking said depositions, and the depositions of Wyman A. Town and Gideon Badger. 8. Because the said Referees improperly and without authority have directed in their award that these two suits should be consolidated, and that the said Taylor should pay all costs in the said suits, whereas the said Taylor is intitled to costs in his suit vs. Davis. 9. Because the said Referees did not in making their said award pursue the order of Reference in these cases, inasmuch as they confined their examination and award to the matters in controversy in these two suits only, whereas the order of reference obliges them to determine all demands existing between the parties." October 11, 1824, Taylor's attorney, William A. Fletcher, made the following affidavit: "William A. Fletcher being duly sworn deposeth and saith that he has been informed by Thomas Rowland Esqr one of the Referees in these two cases, that no witnesses whatever were sworn to testify before the said Arbitrators or referees in the determination of the above cases, which this deponent verily believes to be true, and that no evidence was produced before the said referees in these two cases except the depositions on file in this court." October 14, 1824, Judges Witherell and Sibley overruled the motion and ordered that judgment be entered on the award. A memo. opinion in Judge Sibley's handwriting (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 49, p. 214) reads as follows: "Submission of cross suits and all other matters between the parties-The referees met before the Term. Majr Edwards did not attend-The referees have sat and decided since the Term opened-That no person attended for deft Taylor at the time of the in- vestigation-That Fletcher notified the Referees or some of them that he should object to reading of the Depositions-2d Reason that the depositions were not returned, certified and opened, pursuant to Law-Statute 295. 4 Sec" P. S. Judge Hunt states that the Dep° were addressed under an envelope to the Court-That he brought the package into Court & that it was opened by the Clerk-4th Reason-A tract of Land mortgaged to Geo. Hosmer to secure the debt of Taylor-will not enter into the merits that were passed upon by the arbitrators if the evidence was competent-5. That Davis has not entitled himself to recover on several of the Items-as the same claims were set up by Davis on his Act when the money was paid by him and others-The arbitrators are Bound by the submission They are to award on matters between the parties-The arbitrators cannot take into consideration any claims between other persons or strangers-Davis and Perrin were Bail of Taylor-They paid the Debt each one half afterwards Perrin assigned to Davis his claim agt Taylor and Davis filed a claim agt Taylor for the whole sum pd by him and Perrin-quere was the claim assignable-The arbitrators allowed the whole demand in their award--6th exn that the Com- mission was issued before the issue Joined, therefore Error as averred-2d Kenn 259- 7. No notice of taking depo of Wyman & Badger-and no place pointed out-except to notice & return of Magistrate in the Case of Town-except to return before the magistrate Notice served by A E Wing and return not attached to deposition-Magistrate has not certified whether defendant attended-8 reason the Consolidation of the Two Suits and give costs agt Taylor-of no moment 9. Because the referees did not follow the reference, C ILEN.DAR OF CASES 23 1 which was general &° of all matters in controversy in Two Suits-NB Inspect the sub- mission and award---9th Reason-That the arbitrators did not follow the submission- The Court will support an award unless impeached by shewing corruption or misbehavior of the referees-under the last term the Court may give relief if injustice has been done, thro the misapprehension of the arbitrators in mistaking their power of the Law-The Court will not set it aside on technical exceptions-The objections to the depositions as to their regularity should be made to the Court before they are submitted to the referees where it is in the power of the parties to do it-That a Court of Law are bound by rules of Law, and as Towns evidence was not taken under the statute, in not being certified according to Law-Depositions of Green and Badger, no notice of their being taken under the statute-Taken at R. Raisin and returned to the Court in 1823. The reasons do not appear sufft as supported before the Court--Judge Witherell appears inclined to the opinion that actual misbehavior or fraud must be shewn in the arbitrators to enable the Court to open an award-My opinion that many facts may exist connected with an award may exist, on which it may be opened as exceeding their powers &° without attaching criminality to the Referees." Case 894 DAVID LONG versus RICHARD H. BLINN Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1822-25): 7ournal3: (i) Motion to quash writ over- ruled *p. 288; (2) time for filing declaration extended *p. 359; (3) rule to bring body *p. 370; (4) motion for commission to take deposition *p. 379. Journal 4: (5) Rule for judgment for costs MS p. 16. PAPERS IN FILE: (I) Affidavit of indebtedness; (2) precipe for writ; (3) capias and return; (4) draft of recognizance; (5) recognizance; (6) bail piece; (7) declaration; (8) motion for commission to take depositions. 1822-23 Calendar, MS p. 6o. Recorded in Book B, MS pp. 488-91. Case 895 JOHN S. ROBY versus JOHN L. LEIB Action of trespass on the case (assumpsit) before 7ames Abbott, J. P. Certiorari to 7ames Abbott JOURNAL ENTRIES (1822-25): 7ournal3: (I) Rule to join in error *p. 292; (2) rule to assign errors extended *p. 306; (3) motion to quash writ *p. 306; (4) death of plaintiff suggested *p. 433; (5) administratrix admitted to prosecute *p. 473; (6) motion to quash certiorari overruled *p. 497; (7) motion for joinder in error or judgment *p. 498. 7ournal 4t: (8) Judgment of reversal MS p. 41. PAPERS IN FILE: (I) Affidavit and supplemental affidavit for certiorari, allow- ance; (2) copy of petition, affidavits and allowance; (3) writ of certiorari; (4) transcript of J. P. record; (5) assignment of errors; (6) joinder in error. 1822-23 Calendar, MS p. 27. Recorded in Book B, MS pp. 521-24. 232 SUPREME COURT OF MICHIGAN Note: The errors assigned were general, viz., that the defendant's plea and notice there. under were insufficient in law and that judgment was rendered for defendant whereas it ought to have been rendered for plaintiff. Papers I and 4 are printed herein. (Selected Papers, infra, case 895) The petition for certiorari was allowed by Judge Woodward May 13, 1822. His allocatur reads as follows: "The supplemental affidavit, which I deem per- fectly admissible, having identified the day on which the appeal was claimed, granted and allowed, to have been the fourth day of April, one thousand Eight hundred and twenty two, and the Security having been taken, on the fifth day of the same month, the Judgment thereby became for the time being, vacated, and if reinstated on the sixth, as the original affidavit, perhaps, means to state, or whether on the fifth, or by relation back, on the fourth, still leaves the appellant, virtually and fairly within the twenty days allowed by the Law for making the affidavit; and being satisfied that there is reasonable Cause therefor, a certiorari is allowed as prayed for." September 21, I822, the defendant moved to quash the writ of certiorari. This motion, the grounds of which do not appear, was overruled by Judges Witherell, Sibley and Hunt October 4, I824. A memo. in the handwriting of Judge Sibley (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 49, p. 229) reads as follows: "Mo to quash the writ-16 Sect of Act T. L. Justices-page 234 -Affidavit not made within 20 days after Judgt by Magistrate-Complaint to Justice 28 Feby 1822. March 9. I822. Cond to 16 of March-Cond 23d of March by consent cond to 26-Cond by consent to 4th Ap' pleadings &a Judgment rendered by Jas. Abbott-4th Ap' I822. 25 day of Ap' I822 affidavit made-Claim for appeal 4 Ap' & security given 5 Apl That the apleal denied 6 AplI-N Y Justice-274. Supplemental affidavit explanatory of first affidavit may be made after the 20 days. The day on which the Judgt is rendered is exclusive of the 20 days allowed for making the affidavit. Mo overruled-4 Oc' 1824." Case 896 PETER J. DESNOYERS versus HARVEY WILLIAMS AND ALPHEUS WILLIAMS Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822): Journal3 : (I) Motion to quash habeas corpus *p. 292; (2) rule for procedendo *p. 380. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) precipe for discontinuance. 1822-23 Calendar, MS p. 7. Case 897 ROBERT INNIS AND ROBERT GRANT versus JACOB VISGER Bill in equity for .... JOURNAL ENTRIES (1822-25): Journal3: (I) Dismissed *p. 294. Journal 4: (2) Stricken from docket MS p. 59. PAPERS IN FILE: [None] Chancery Case 17 of 1820. CALENDAR OF CASES 233 Case 898 ROBERT INNIS AND ROBERT GRANT versus JACOB VISGER Bill in equity to foreclose a mortgage JOURNAL ENTRIES (1822-31): journal3: (I) Motion for leave to enter security for costs *p. 294; (2) motion to file bond for costs nunc pro tunc granted, time given to answer *p. 375; (3) death suggested *p. 437. Jour- nal 4: (4) Suit revived, rule to answer MS p. 54; (5) continued MS p. 72; (6) motion for hearing on bill and answer MS p. 98; (7) continued MS p. 113; (8) argument opened MS p. 283; (9) argument closed, case submitted MS p. 284; (io) argument heard, reference to master MS p. 373; (ii) motion to confirm master's report MS p. 376; (12) master's report confirmed nisi MS p. 378; (13) motion for leave to amend answer MS p. 393; (14) decree passed nisi MS p. 404; (15) decree made absolute, signed MS p. 430. PAPERS IN FILE: [None] Chancery Case 32 of 1822. Note: A photostat of a copy of the bill of revivor (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 47, pp. 30 and 32) has been placed in the file. Case 899 JOHN RICHARDSON, ATTORNEY OF ALEXANDER SHAND, JOHN SHAND AND JOHN SHARP, EXECUTORS, ETC., OF GEORGE SHARP, DECEASED, versus PIERRE GAGNIER, AD- MINISTRATOR, ETC., OF JACQUES GAGNIER, DECEASED, BARTHOLOMIE GAGNIER, AUGUSTIN GAGNIER, LOUIS MOM- INIE, JOSEPH MOMINIE, JOSEPH VALLIQUET AND JOSETTE GAGNIER Bill in equity for .... JOURNAL ENTRIES (1822): Journal 3: (1) Dismissed *p. 295. Chancery 7ournal: (2) Dismissed *p. 54. PAPERS IN FILE: [None] Chancery Case 21 of 182 1. Note: For a later case between many of the same parties, see case no99, infra. 234 SUPREME COURT OF MICHIGAN Case 900 JACQUES LAUZON, ESTHER LAUZON, JAMES ROBERTSON, AND JEAN BAPTISTE VERNIER, JR., DIT LADOUCEUR, versus JOHN R. WILLIAMS Bill in equity for .... JOURNAL ENTRIES (1822): Journal 3: (1) Dismissed *p. 295. Chancery Journal: (2) Dismissed *p. 55- PAPERS IN FILE: [None] Chancery Case 22 of 1821. Case 901 BENOIT TREMBLE, ADMINISTRATOR, ETC., OF FRANOIS TREMBLE, DECEASED, versus JOSEPH FRANgOIS MARSAC AND JACQUES MARSAC Bill in equity for .... JOURNAL ENTRIES (1822): Journal 3: (I) Dismissed *p. 296. Chancery Journal: (2) Dismissed *p. 55. PAPERS IN FILE: [None] Chancery Case 23 of 1821. Case 902 JACQUES LAUZON, JAMES ROBERTSON AND MARIANNE, HIS WIFE, JEAN BAPTISTE VERNIER, JR., DIT LADOUCEUR, AND MONIQUE, HIS WIFE, ESTHER LAUZON AND ANGELIQUE LAUZON versus JOHN R. WILLIAMS Bill in equity for .... JOURNAL ENTRIES (1822-26): Journal3: (I) Appearance, purported will ordered filed *p. 296. Chancery yournal: (2) Rule to answer, continued *p. 55. Journal 3: (3) Motion to refer exceptions *p. 437. Journal 4: (4) Exceptions to answer set for hearing MS p. 72; (5) motion for dis- missal MS p. 104; (6) dismissed MS p. 118. PAPERS IN FILE: [None] Chancery Case 25 of 1822. Note: A request for copy of exceptions to answer is with the papers in case 567. CALENDAR OF CASES 235 Case 903 FRAN(OIS TREMBLE, THERESE TREMBLE AND BENOIT TREMBLE, BY BENOIT TREMBLE, THEIR NEXT FRIEND, versus JOSEPH FRANgOIS MARSAC AND JACQUES MARSAC Bill in equity for specific performance, etc. JOURNAL ENTRIES (1822-33): ournal3: (i) Continued *p. 296. Chancery journal: (2) Continued *p. 55. Journal3: (3) Bill taken as confessed, referred to master *p. 510. Journal 4: (4) Leave given to amend bill MS p. 9; (5) motion to quash subpoena MS p. 14; (6) subpoena quashed MS p. 28; (7) master to take evidence and make report MS p. 59; (8) motion for leave to take deposition MS p. 86; (9) leave given to take de- position MS p. 86; (io) rule to answer or demur, continued MS p. 104; (Ii) motion to take bill pro confesso MS p. 126; (12) motion for leave to file answers MS p. 127; (13) leave given to file answers MS p. 131; (14) referred to master MS p. 144; (i5) motion for hearing MS p. 181; (16) motion for further time to take testimony overruled, case set for argu- ment, evidence heard MS p. 213; (17) exception to depositions overruled, argument heard, case submitted MS p. 214; (18) motion to open case for further testimony and argument MS p. 248; (19) motion to open case overruled MS p. 257; (20) opinion pronounced, decree ordered MS p. 305; (21) decree MS p. 308; (22) motion for leave to appeal to U. S. Supreme Court MS p. 313; (23) decree presented and signed MS p. 314; (24) ap- peal allowed on giving security MS p. 315; (25) transcript of order of U. S. Supreme Court MS p. 521; (26) decree for execution for costs MS p. 528. PAPERS IN FILE: (I) Motion for extension of time to plead, answer or demur; (2) transcript of order of U. S. Supreme Court dismissing appeal; (3) writ of fi. fa. for costs; (4) letter from clerk of U. S. Supreme Court re execution for costs; (5) receipt for attorney's fee; (6) receipt for costs; (7) receipt for witness fees. Chancery Case 26 of 1822. Note: A photostat of a memo. re motion for leave to amend bill and re motion to quash subpoena, and a photostat of the opinion mentioned in the journal (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 12, p. 121; Vol. 5o, p. x) have been placed in the file. The opinion will be printed in a later publication. 236- SUPREME COURT OF MICHIGAN Case 904 JAMES S. CRAFT AND DUNCAN S. WALKER versus JACOB SMITH, DEGARMO JONES, TOUSSAINT DUBOIS, WILLIAM HILL, JAMES HILL, JOHN HILL, JAMES BOYD, JR., CONRAD TEN EYCK AND JEREMIAH V. R. TEN EYCK Bill in equity to foreclose mortgages, etc. JOURNAL ENTRIES (1822-24): Journal3: (I) Time for answer extended *p. 297; (2) time for answer extended *p. 297; (3) motion to withdraw de- murrer, or for argument *p. 437; (4) demurrers withdrawn, answers filed *p. 461; (5) decree *p. 463. Chancery journal: (6) Decree *p. 61. Journal 3: (7) Register's report confirmed nisi *p. 497- PAPERS IN FILE: (I) Bill of complaint; (2) precipe for subpoena ad respond- endum; (3) security for costs; (4) writ of subpoena and return; (5) notice of appearance for Jacob Smith; (6) affidavit of nonresidence of certain defendants; (7) notice to absent defendants; (8) agreement for extension of rule to plead; (9) answer of Toussaint Dubois; (10) answer of DeGarmo Jones; (II) answer of Jacob Smith; (12) answer and petition of James Boyd, Jr.; (13) draft of decree approved by counsel; (14) letter from Jones to register re payment of bond and mortgage; (15) memo. of amounts due on bonds; (16) calculations of amounts due; (17) receipt for amount paid Craft and Walker; (18) receipt for solicitor's fee; (19) receipt for sheriff's fees; (20) memo. of costs; (21) register's report; (22-24) sched- ules A, B and C referred to in register's report; (25) motion for confirm- ance of all acts done pursuant to decree; (26) mortgage-Jacob Smith to DeGarmo Jones; (27) bond-Jacob Smith to DeGarmo Jones; (28) copy of mortgage-Jacob Smith to Toussaint Dubois; (29) assignment of mort- gage-Toussaint Dubois to William Hill, James Hill and John Hill; (30) assignment of bond-Toussaint Dubois to William Hill, James Hill and John Hill; (31) assignment of mortgage-William Hill, John Hill and James Hill to James S. Craft and Duncan S. Walker. Chancery Case 27 of 1822. Note: A notice to plead, answer or demur was published in the Detroit Gazette Jan. 31, 1823. A notice of sale was published May 14, I824. CALENDAR OF CASES 237 Case 905 ROBERT ABBOTT, SAMUEL ABBOTT, WILLIAM HANDS AND MARY, HIS WIFE, FRANCIS BABY AND FRANCES, HIS WIFE, JAMES BABY, JR., CHARLES BABY, RAIMOND BABY, WILLIAM BABY, ELIZA BABY AND EDWARD BABY, BY JAMES BABY THE ELDER, THEIR FATHER AND NEXT FRIEND, HEIRS OF JAMES ABBOTT, SR., DECEASED, versus JAMES ABBOTT, JR. Bill in equity for an accounting, etc. JOURNAL ENTRIES (1822-36): 7ournal 3: (I) Time for filing answer ex- tended, continued *p. 297. journal 4: (2) Motion for hearing MS p. 2o; (3) motion to dismiss bill MS p. 65; (4) demurrer and plea set for argu- ment MS p. 72; (5) solicitor's name stricken MS p. 104; (6) leave given to file cost bond and bill of revivor, etc. MS p. io6; (7) continued MS p. 12!; (8) motion for argument MS p. 181; (9) continued MS p. 215; (io) argument on plea and demurrer opened MS p. 280; (II) argument con- tinued MS p. 281; (12) argument closed, case submitted MS p. 282; (13) plea overruled, leave given to amend bill MS p. 315; (14) motion to ex- punge demurrer MS p. 330; (15) motion to expunge demurrer and plea MS p. 333; (16) motion to expunge argued and submitted MS p. 365; (17) motion to expunge overruled, leave given to plead further MS p. 380; (18) motion for reference to master MS p. 440; (19) referred MS p. 472; (20) referred MS p. 485; (21) rule of reference enlarged MS p. 517. Jour- nal5: (22) Motion for reference overruled, rule of reference enlarged, rule to produce books and papers, MS p. 9; (23) continued under rule of ref- erence MS p. 30; (24) continued under rule of reference MS p. 48; (25) motion for reference MS p. 72; (26) dismissed as to Robert Abbott MS p. III. PAPERS IN FILE: (I) Amended bill of complaint; (2) answer; (3) exhibits referred to in answer; (4) motion for reference; (5) discontinuance by Robert Abbott. Chancery Case 28 of 1822. Note: The following papers have been found in the Burton Collection, Public Library, Detroit: (i) draft or copy of plea and answer (Woodbridge Papers, Vol. I16); (2) memo. of authorities (ibid.); (3) complainant's brief (ibid.); (4) complainant's brief (Sibley Papers, Vol. 57, p. 206); (5) defendant's brief (ibid., Vol. 58, p. 121); (6) Judge Sibley's opinion (ibid., Vol. 57, pp. 217, 221, 223 and 225). Photostats of these papers have been placed in the file. Judge Sibley's opinion will be printed in a later publication. 238 SUPREME COURT OF MICHIGAN Case 906 OLIVER W. MILLER, ROBERT SMART AND CONRAD TEN EYCK versus AUSTIN E. WING Bill in equity to foreclose a mortgage JOURNAL ENTRIES (1822-31): 7ournal3: (I) Continued *p. 298; (2) mo- tion for election to proceed at law or in equity *p. 389. journal 4: (3) Demurrer set for argument MS p. 72; (4) motion to take bill as confessed and for reference MS p. 161; (5) continued MS p. 215; (6) bill taken as confessed, referred to master MS p. 283; (7) motion to confirm master's report and for final decree MS p. 293; (8) master's report confirmed, de- cree ordered MS p. 365; (9) decree MS p. 397; (io) decree signed MS p. 43o; (I I) motion for confirmance of report of sale MS p. 449; (12) report of sale confirmed, proceeds ordered paid MS p. 466. PAPERS IN FILE: (I) Bill of complaint; (2) writ of subpoena and return; (3) demurrer, plea and answer; (4) replication; (5) stipulation to with- draw demurrer and plea and for entry of decree; (6) motion for reference to master; (7) motion to confirm master's report; (8) motion for decree; (9) master's report of amount due; (Io) draft of decree; (II) signed de- cree; (12) report of sale; (13) deed of mortgage. Chancery Case 30 of 1822. Note: See case 641, supra. Case 907 PHINEAS FISK versus BENJAMIN WOODWORTH, RACHAEL WOODWORTH AND EDWARD BROOKS Bill in equity to foreclose a mortgage JOURNAL ENTRIES (1822-24): journal 3: (I) Motion to dismiss bill *p. 298; (2) motion to file bond for costs nunc pro tunc granted, time given to answer *p. 375; (3) bill taken as confessed, referred to register *p. 499; (4) sale ordered *p. 513. Chancery 7ournal: (5) decree *p. 72. PAPERS IN FILE: (I) Bill of complaint; (2) writ of subpoena and return; (3) bond for prosecution of suit; (4) order that bill be taken pro confesso and referred to register; (5) register's report; (6) draft of order confirming register's report; (7) draft of decree; (8) certificate of amounts due on judgments; (9) agreement to postpone sale, etc.; (Io) deed of mortgage. Chancery Case 31 of 1822. CALENDAR OF CASES 239 Case 908 DEGARMO JONES versus HENRY BERTHELET, JOSETTE BERTH- ELET, ALEXANDER McKEE AND ADELAIDE BRUSH, EXEC- UTRIX OF THE WILL OF ELIJAH BRUSH, DECEASED Bill in equity for .... JOURNAL ENTRIES (1822-26): 7ournal3: (I) Motion to quash subpoena *p. 298. Chancery journal: (2) Leave given to file amended bill *p. 55. Journal3: (3) Motion to quash subpoena *p. 438; (4) rule to file supple- mental bill and answers *p. 462; (5) leave to refile bill *p. 497; (6) motion for rule to answer *p. 509; (7) time given to answer or demur *p. 514. Journal 4: (8) Continued MS p. 72; (9) dismissed MS p. o105. PAPERS IN FILE: (i) Writ of subpoena; (2) motion to quash subpoena; (3) bill of costs. Chancery Case 33 of 1822. Case 909 SHUBAEL CONANT versus WILLIAM MELDRUM Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822-23): ournal3 : (I) Rule for special bail or pro- cedendo *p. 298; (2) time for filing declaration extended *p. 358; (3) rule for judgment *p. 434. PAPERs IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance and bail piece; (4) declaration and plea of non assumpsit; (5) precipe for subpoena; (6) subpoena; (7) precipe for execution fi. fa.; (8) writ of fi. fa. 1822-23 Calendar, MS p. 37. Recorded in Book B, MS pp. 271-74. Case 910 HORATIO G. PHILLIPS versus BENJAMIN WOODWORTH Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822): Journal3: (I) Rule for special bail or procedendo *p. 299; (2) time for filing declaration extended *p. 356. 240 SUPREME COURT OF MICHIGAN PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance and bail piece; (4) declaration; (5) precipe for discontinuance. 1822-23 Calendar, MS p. 17. Recorded in Book B, MS pp. 252-54. Case 911 JOSEPH ANDRE, DIT CLARK, versus CONRAD TEN EYCK AND JEREMIAH V. R. TEN EYCK Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822-24): journal3: (i) Rule for special bail or pro- cedendo *p. 299; (2) time for filing declaration extended *p. 357; (3) attendance of witness proved *p. 420; (4) jury impaneled *p. 427; (5) witnesses sworn *p. 427; (6) attendance of witnesses proved *p. 427; (7) verdict, jury polled *p. 430; (8) motion for new trial *p. 43I; (9) motion for new trial overruled *p. 505; (io) motion for judgment *p. 506; (ii) judgment *p. 511. PAPERS IN FILE: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance and bail piece; (4) declaration; (5) plea of non assumpsit, notice of demand for bill of particulars, notice of set off and statement of accounts; (6) notice of taking deposition; (7-8) precipes for subpoenas; (9) subpoena; (io) precipe for subpoena; (ii) subpoena; (12) precipe for subpoena duces tecum; (13) subpoena duces tecum; (14) deposition of Jacob Smith; (15) precipe for subpoena; (i6) subpoena; (17) subpoena; (18) verdict; (19) reasons for new trial; (2o) affidavit of Conrad Ten Eyck; (21) motion and reasons in arrest of judgment; (22) sheriff's bill of fees; (23) precipe for fi. fa.; (24) writ of fi. fa. and return; (25) precipe for fi. fa.; (26) writ of fi. fa.; (27) memo. of costs paid; (28) memo. of costs; (29) assignment of judgment; (30) receipt for fees; (3!) receipt for costs; (32-47) orders, vouchers, etc. 1822-23 Calendar, MS p. 24. Recorded in Book B, MS pp. 381-85- Note: The reasons assigned for a new trial were: "First That the verdict in said case is contrary to law. Second That the said verdict is contrary to evidence. Third That since the trial of said case, new & material testimony has been discovered, which if produced, on the trial of said case would have been a sufficient defence to said action." Paper 21 reads: "Motion & reasons in arrest ofjudgt zet The verdict in this case is against Law and Evidence 2d There is no count in the declaration specially setting forth a collateral undertaking as security and none on which a judgt can be entered-The record is in other respects defective erronious & uncertain." CALENDAR OF CASES 24x Case 912 UNITED STATES versus JOHN FARLEY Indictment for .... Removed from Wayne County Court by habeas corpus and certiorari JOURNAL ENTRIES (1822): Journal3: (I) Nolle prosequi *p. 299. PAPERS IN FILE: (i) Precipe for habeas corpus and certiorari; (2) recog- nizance for habeas corpus and certiorari; (3) sheriff's bill of fees. 1821 Calendar, MS p. 38. Note: Lieut. Otis Fisher was killed by Capt. John Farley in a duel at Sandwich in 1820. If ichigan Pioneer Collections, III, 222; IV, 473; VI, 499; M. Agnes Burton, Proceedings of land Board of Detroit, p. 221) Case 913 UNITED STATES versus FRANCOIS POULIN Indictment for perjury Removed from Monroe County Court by habeas corpus and certiorari JOURNAL ENTRIES (1822): 7ournal3: (I) Motion for rule to return habeas corpus *p. 300; (2) motion for rule to amend return *p. 315; (3) motion to amend return overruled, procedendo *p. 364. PAPERS IN FILE: (i) Precipe for habeas corpus and certiorari; (2) writ of habeas corpus and return; (3) writ of certiorari and return; (4) precipe for procedendo. 1822-23 Calendar, MS p. 70. Note: The following papers are also in the file: (i) petition for habeas corpus ad sub- jiciendum and allowance; (2) writ of habeas corpus ad subjiciendum, return, decision. A copy of the indictment is printed herein. (Selected Papers, infra, case 913) In his petition for a writ of habeas corpus ad subjiciendum, the defendant represented that he had been imprisoned without the issuance of a mittimus authorizing his commitment and without any order or determination of the amount of bail he should give for his appearance at the next county court. The return to the writ consisted of a warrant issued by the county court and a commitment issued by a justice of the peace reciting that defendant had been re- quired to give bail in the sum of five hundred dollars, but had failed to do so. The decision reads: "Michigan scilicet; The return to the within writ is considered sufficient, and the prisoner is remanded unless, and until, he give security for his appearance at the next term of Monroe, in the sum of two hundred dollars. The charges are allowed at four dollars eighty seven and one half cents for bringing the prisoner, and the same for returning him, if security be not given, twenty five cents for attending on the return, and for all services not specially provided twenty five cents. March 16. I822. WOODWARD, judge." 242 SUPREME COURT OF MICHIGAN Case 914 UNITED STATES versus WILLIAM C. KELLY Indictment for larceny and for receiving stolen goods JOURNAL ENTRIES (1822): 7ournal3: (I) Recognizance *p. 300; (2) nolle prosequi, prisoner discharged *p. 300. PAPERS IN FILE: (I) Indictment; (2) capias sur indictment and return. Note: See case 931, infra. Case 915 IN THE MATTER OF ANTOINE LASSELLE Motion for discharge from custody JOURNAL ENTRIES (1822): 7ournal3: (I) Motion for discharge overruled *p. 301. PAPERS IN FILE: [None] Note: The grounds of the motion appear in the journal. Case 916 FREDERICK BELLINGER AND FREDERICK HARTER, MER- CHANTS TRADING UNDER THE FIRM OF BELLINGER & HARTER, versus WINANS CLARK Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1822-24): Journal3: (I) Rule to bring body *p. 30!; (2) time for filing declaration extended *p. 357; (3) rule to bring body *P* 379; (4) referred *p. 490; (5) award filed, rule for judgment *p. 508; (6) rule for judgment *p. 511. PAPERS IN FILE: (I) Precipe for capias; (2) affidavit for bail; (3) capias and return; (4.) recognizance; (5) draft of bail piece; (6) bail piece; (7) excep- tion to bail; (8) justification of bail; (9) declaration; (io) agreement for withdrawal of exception to bail and for a continuance; (II) agreement for reference; (12) agreement that referees take files; (13) oyer of orders and receipts; (14) notice of taking depositions; (15) deposition of Elisha Taylor; (16) deposition of David Long; (17) deposition of Leonard Case; CALENDAR OF CASES 243 (18) deposition of William Ingersol; (iv) deposition envelope; (20) affi- davit of payment of expense of depositions; (21) depositon of John Burtis; (22) deposition of Leonard Case; (23) deposition of Reuben Wood; (24) deposition of Leonard Case; (25) award of referees; (26) affidavit of pay- ment of fees for copies of papers; (27) precipe for ca. sa.; (28) writ of ca. sa. and return; (29) copy of receipt for amount of judgment; (30) satis- faction piece; (31) memo. of evidence; (32) copy of deed-Winans Clark to Reuben Wood; (33) copies of pleadings on file in Court of Common Pleas, Cuyahoga County, Ohio; (34-35) receipts for salt. 1822-23 Calendar, MS p. 28. Recorded in Book B, MS pp. 291-95. Vote: See case 960, infra. Case 917 JOHN S. ROBY versus JOHN S. REED Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822-24): Journal 3: (I) Rule for bail or procedendo *p. 301; (2) time for filing declaration extended *p. 358; (3) death sug- gested *p. 434; (4) rule for judgment *p. 514. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance and bail piece; (4) declaration; (5) statement of accounts. 1822-23 Calendar, MS p. 39. Recorded in Book B, MS pp. 444-47. Case 918 JAMES ABBOTT, ADMINISTRATOR, ETC., OF ALEXANDER MORRISON, DECEASED, versus ROBERT GARRATT Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822): journal 3: (I) Rule for special bail or pro- cedendo *p. 302. PAPERS IN FILE: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return. 1822-23 Calendar, MS p. 25. 244 SUPREME COURT OF MICHIGAN Case 9 x 9 MELVIN DORR versus WILLIAM KEITH Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822): 7ournal3: (I) Default judgment *p. 302. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) acknowledgment of receipt of payment on judgment; (4) precipe for execution ca. sa.; (5) appearance and precipe for fi. fa.; (6) writ of fi. fa. and return; (7) promissory note. 1822-23 Calendar, MS p. 53. Recorded in Book B, MS pp. 182-83. Note: See case 780, supra. Case 920 MELVIN DORR versus WILLIAM KEITH Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822): 7ournal3: (I) Default judgment *p. 303. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3-4.) agreements of parties; (5) precipe for execution ca. sa.; (6) satisfaction piece; (7) promissory note. 1822-23 Calendar, MS p. 52. Recorded in Book B, MS pp. 180-81. Note: See case 781, supra. Case 921 UNITED STATES versus CAPTAIN JOHN MOUNTFORT, JOSHUA WOODS, JESSE COSMOR AND SINGLETON JAMES Indictment for riot, assault and battery, and false imprisonment JOURNAL ENTRIES (1822): journal 3: (I) Mountfort discharged from custody, appearance in proper person permitted *p. 304; (2) plea, jury impaneled *p. 315; (3) witnesses sworn *p. 315; (4) motion to arrest testi- mony from jury *p. 315; (5) witnesses sworn *p. 315; (6) constable sworn to attend jury *p. 315; (7) verdict *p. 3 15; (8) motion in arrest and to set aside verdict *p. 326; (9) sentence *p. 377. PAPERS IN FILE: (I) Indictment; (2) capias sur indictment; (3-6) sub- poenas; (7) panel of jurors; (8) motion to arrest testimony from jury; (9) motion in arrest of judgment. CALENDAR OF CASES 245 Note: The prosecuting witness was William C. Kelly. See case 931, infra. Paper 8 reads as follows: "The Deft moves the Court that the testimony be now arrested from the jury." After verdict, a motion was made to arrest judgment and to set aside the verdict---" the same having been rendered contrary to Law & Evidence." Case 922 JOHN McDONELL versus SMITH KNAPP Action of replevin before Fames May, 7. P. Certiorari to James May JOURNAL ENTRIES (1822-28): Journal3: (i) Rule to join in error *p. 305. Journalit: (2) Death suggested MS p. 94; (3) stricken from docket MS p. 185. PAPERS IN FILE: (I) Affidavit and petition for certiorari, allowance; (2) writ of certiorari and return; (3) J. P. papers (a) precipe for process; (b) writ of replevin; (c) bond; (d) agreement between parties; (3) letter from plaintiff to James May; (f) subpoena for Charles Poupard; (g) venire facias; (h) plea; (i) verdict; (j) notice of certiorari; (k) copy of petition and affidavit for certiorari; (1-m) subpoenas; (4) assignment of errors; (5) joinder in error. /322-23 Calendar, MS p. 78. Case 923 JOSEPH CAMPAU versus JAMES FULTON Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822): Journal3: (I) Motion for bail or procedendo *p. 312; (2) time for filing declaration extended *p. 355. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return. 1822-23 Calendar, MS p. I. Note: A writ of procedendo was issued in 1823. (1822-23 Calendar, MS p. i) Case 924 JAMES HAZLIP versus PHILO TAYLOR Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822-23): Journal3: (i) Motion for bail or procedendo *p. 312; (2) time for filing declaration extended *p. 357; (3) remanded by procedendo *p. 447. 246 SUPREME COURT OF MICHIGAN PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration and bill of particulars; (4) plea of non as- sumpsit and notice of set off. 1822-23 Calendar, MS p. 20. Case 925 JEREMIAH HOWELL versus ROBERT IRWIN Action of trespass on the case (.. .. Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822): Journal 3: (I) Motion for bail or procedendo *p. 312; (2) motion for extension of rule for bail *p. 317; (3) rule for procedendo *p. 381. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return. 1822-23 Calendar, MS p. 41. Case 926 EZRA YOUNGLOVE versus GILES SANFORD AND RUFUS SETH REED Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822-29): Journal3: (i) Motion for bail or procedendo *p. 313; (2) time for filing declaration extended *p. 359; (3) continued *p. 447; (4) continued *p. 498. Journal 4: (5) Referred MS p. 7; (6) reference extended, referees authorized to require production of books of account MS p. 93; (7) motion to confirm award, motion to set aside award MS p. 127; (8) leave to file reasons for setting aside award, motion to set aside order extending reference MS p. 145; (9) argued, submitted MS p. 158; (io) continued under advisement MS p. 164; (II) motion to set aside award overruled MS p. 169; (12) motion for rehearing MS p. 202; (13) motion for judgment on award argued, submitted MS p. 211; (14) arguments heard MS p. 249; (15) arguments heard MS p. 250; (16) award confirmed, rule for judgment MS p. 260. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4) plea of non assumpsit and notice of set off; (5) notice to produce books of account; (6) affidavit of Thomas Forster, CALENDAR OF CASES 247 Jr.; (7) agreement for submission for award; (8) subpoena for DeGarmo Jones; (9) notice of hearing and to produce books of account; (io) copy of rule of reference and oaths of referees; (i i) notice of inability to pro- duce books of account; (12) notice of hearing; (13) copies of documents from Navy Department; (14) letter from Navy Department to clerk; (ti) award of referees; (16) minutes of referees; (17) affidavit of Elon Farnsworth; (18) motion to set aside extension of rule of reference, rea- sons; (19) motion to set aside report of referees; (20) motion to set aside report of referees, reasons; (21) motion for rehearing; (22) opinion by Judge Woodbridge; (23) assignment of judgment; (24) precipe for execu- tion fi. fa.; (25) writ of fi. fa. and return; (26) memo. re proof; (27) state- ment of account. 21-23 Calendar, MS p. 55. Recorded in Book C, MS pp. 289-99. Vote: Photostats of three briefs (Woodbridge Papers, Burton Historical Collection, Public Library, Detroit, Vol. I18) have been placed in the file. Judge Woodbridge's opinion will be printed in a later publication. Case 927 JAMES SOLOMONS versus JOHN AGNEW Action of trespass (de bonis asportatis) before Jo/ohn Dousman, J. P. Certiorari to John Dousman JOURNAL ENTRIES (1822-25): Journal 3: (1) Motion for rule to return writ *p. 314; (2) rule to return certiorari *p. 352; (3) motion to join in error *p. 427; (4) continued *p. 457. Journal 4: (5) Continued MS p. 33; (6) continued MS p. 43; (7) continuance rescinded, judgment reversed MS p. 49. PAPERS IN FILE: (i) Affidavit and motion for certiorari, allowance; (2) writ of certiorari and return; (3) J. P. papers-(a) capias; (b) venire facias; (c-d) subpoenas; (e) venire facias; (f) subpoena; (g) venire facias; (h-i) subpoenas; (4) assignment of errors; (5) bill of costs; (6) writ of fi. fa. and return. 1822-23 Calendar, MS p. 29. Recorded in Book C, MS pp. 6-1io. Note: The judgment was reversed Nov. Io, 1825. A memo. in the handwriting of Judge Sibley (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 49, p. 229) reads as follows: "I That the magistrate had no Jurisdiction of the Case-It being proved that the Deft was a revenue officer and that he took possession of the propY as such officer- That the question of Trespass was within the Jurisdiction of the Court as a District Court, and would depend on the ...." 248 SUPREME COURT OF MICHIGAN Case 928 UNITED STATES versus CALL McALLISTER Indictment for assault and battery JOURNAL ENTRIES (1822): Journal3: (I) Plea of guilty, submitted *p. 31; (2) witness sworn *p. 326; (3) sentence *p. 377. PAPERS IN FILE: (i) Indictment; (2) capias sur indictment and return. Case 929 UNITED STATES versus JAMES HOMER Indictment for murder and for manslaughter JOURNAL ENTRIES (1822): Journal3 : (I) Plea, counsel assigned *p. 317; (2) jury impaneled *p. 319; (3) witnesses sworn *p. 319; (4) verdict, jury polled, defendant discharged *p. 319; (5) witness fees claimed *p. 322. PAPERS IN FILE: (I) Examination of James Dean; (2) examination of Anthony Beers and Elizabeth Beers; (3) recognizance of Anthony Beers and Elizabeth Beers as witnesses; (4) examination of Henry F. Hall; (5) recognizance of Henry F. Hall as a witness; (6) recognizance of James Dean as a witness; (7) indictment; (8) capias sur indictment; (9) recog- nizance of James Homer; (10) panel of jurors; (II) subpoena. Note: The person alleged to have been murdered was James Galloway, a soldier at Green Bay. By an act adopted on Sept. 30, 1822, provision was made for the payment of witness fees and other expenses in this case. (Laws of the Territory of Michigan, I, 271) Case 930 JAMES DEAN versus ASHER PHILLIPS AND DAVID GWYNNE Action of trespass on the case (assumpsit) before Thomas Rowland, J. P. Appeal to Wayne County Court Error to county court JOURNAL ENTRIES (1822-28): Journal : (1) Recognizance *p. 318; (2) rule to assign errors *p. 413; (3) diminution suggested, certiorari ordered *p. 424. Journal 4: (4) Continued MS p. 34; (5) continued MS p. II5; (6) arguments closed, submitted MS p. 151; (7) judgment reversed MS p. 164. CALENDAR OF CASES 249 PAPERS IN FILE: (I) Precipe for writs of error and supersedeas; (2) recog- nizance; (3) precipe for writs of error and supersedeas; (4) writ of error and return; (5) county court papers-(a) transcript of J. P. record; (b) deposition of Joseph L. Smith; (6) bill of exceptions; (7) joinder in error; (8) writ of fi. fa. for costs; (9) discharge from demands, etc. 1822-23 Calendar, MS p. 101ox. Note: The judgment was reversed Jan. 5, 1828. A photostat of a memo. in Judge Sibley's handwriting (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 48, p. 172) has been placed in the file. Case 93 1 UNITED STATES versus WILLIAM C. KELLY Indictment for larceny and for receiving stolen goods JOURNAL ENTRIES (1822-27): Journal 3: (I) Motion for discharge over- ruled, recognizance *p. 318; (2) motion for indorsement of name as prosecutor overruled *p. 318; (3) motion for subpoena granted *p. 326; (4) arraignment, plea, jury impaneled *p. 345; (5) witnesses sworn *p. 345; (6) jury called*p. 345; (7) witnesses sworn *p. 345; (8) constable sworn to attend jury *p. 345; (9) disagreement reported, jury ordered to seal verdict *p. 346; (1o) disagreement reported, testimony and law explained, verdict *p. 348; (I I) motion in arrest of judgment *p. 348; (12) recogni- zance extended, continued *p. 377; (13) prosecuting attorneys appointed *P. 439; (14) appointment as attorney declined *p. 455; (15) appointment as attorney declined *p. 457. journal 4: (16) Motion in arrest of judg- ment overruled, motion for new trial MS p. 53; (17) continued MS p. 117; (18) continued MS p. 156. PAPERS IN FILE: (I) Precipe for subpoena; (2) indictment; (3) capias sur indictment; (4-5) subpoenas; (6) panel of jurors; (7) report of disagree- ment of jury and wish for something to eat; (8) report of disagreement of jury; (9) verdict; (io) petition and affidavit for new trial; (II) motion and reasons for new trial. Note: See case 921, supra. The reasons assigned for a new trial were: "I That there was no evidence to shew that the property alledged to be received as stolen, was the property of the United States as charged in the Indictment in this case, but on the contrary the same was clearly proved to have been the property of Henry J Hunt & Abraham Edwards- : That there was not evidence to sustain the Indictment in this case-" 250 SUPREME COURT OF MICHIGAN Case 932 UNITED STATES versus MARTIN JOURDAN Indictment for murder JOURNAL ENTRIES (1822-23): 7ournal3: (i) Rule to bring body *p. 32; (2) plea, defendant remanded *p. 321; (3) motion to quash indictment *P. 386; (4) rule to bring body *p. 399; (5) jury trial, verdict, defendant discharged *p. 403. PAPERS IN FILE: (I) Indictment; (2) rule to bring body, proof of service; (3) subpoena. Note: The defendant was charged with the murder of Louis Joli6 at Prairie du Chien in Crawford County. Case 933 UNITED STATES versus ROBERT LITTLE Indictment for assault with intent to kill and for assault and battery Indictment for assault and battery and resisting an officer Removed from Macomb County Court by habeas corpus and certiorari JOURNAL ENTRIES (1822): 7ournal3: (I) Dismissed *p. 324. PAPERS IN FILE: (I) Precipe for habeas corpus and certiorari; (2) writ of habeas corpus; (3) writ of certiorari; (4) certified copy of indictment filed in county court; (5) certified copy of indictment and of proceedings in county court; (6) sheriff's bill of fees. 1821 Calendar, MS p. 49. Note: The indictment for "Assault and Battery and resisting the sheriff in the due execution of his office" is printed herein. (Selected Papers, infra, case 933) The other in- dictment, except for the name of the defendant, is a duplicate of the indictment in case 864, supra. Case 934 UNITED STATES versus SIMON SHOVEN Indictment for larceny Habeas corpus cum causa and certiorari to Wayne County Court JOURNAL ENTRIES (1822): journalj: (I) Dismissed *p. 325. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus; (3) precipe for certiorari; (4) writ of certiorari; (5) return to writs of habeas corpus and certiorari. 1822-23 Calendar, MS p. 21. CALENDAR OF CASES 25I Case 935 UNITED STATES versus HENRY HUDSON Indictment for larceny Habeas corpus cum causa and certiorari to Wayne County Court JOURNAL ENTRIES (1822): Journal3: (I) Dismissed *p. 325. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus; (3) precipe for certiorari; (4) writ of certiorari; (5) return to writs of habeas corpus and certiorari. 1822-23 Calendar, MS p. 22. Note: The judges of the county court in their return stated that as the writs had been issued contrary to statute, they had proceeded in the case as though the writs had not been issued. Case 936 UNITED STATES versus JOHN SARGENT Indictment for forgery Habeas corpus cum causa and certiorari to Wayne County Court JOURNAL ENTRIES (1822): Journal3: (I) Dismissed *p. 325. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) precipe for certiorari; (3) letter from attorney to clerk re costs. 1822-23 Calendar, MS p. 47. Note: See case Io031, infra. Case 937 UNITED STATES versus SIMON SHOVEN Indictment for larceny Error to Wayne County Court JOURNAL ENTRIES (1822): Journal3: (I) Motion to quash writ *p. 325; (2) judgment reversed *p. 370. PAPERS IN FILE: (I) Precipe for writ of error; (2) writ of error and allowance; (3) transcript of county court record; (4) copies of oaths administered to grand and petit jurors in county court; (5) copies of venires for grand and petit jurors issued by county court. 1822-23 Calendar, MS p. 48. 252 SUPREME COURT OF MICHIGAN Note: In the county court the defendant moved in arrest of judgment on the following grounds: "First: The Venire issued by the Clerk of said Court, directing the Sheriff of said County to Summon the persons to serve as Grand and Traverse Jurors, required by law, at the Term of the Court aforesaid, bears teste, with the name of Henry J. Hunt, as Senior Associate Justice of said Court, which is contrary to law, the Hon John L. Leib being at the time of issuing said venire, Chief Justice of said Court, and presiding Judge of the same; and the statute of the Territory made and adopted, requiring that all process issuing from said Court, should bear teste, in the name of the presiding Judge. Second: The persons who found the Indictment against the said Simon Shover, and on which he has been tried, were not a Grand Jury, the oath required by Law never having been ad. ministered to them as Grand Jurors. Third: The persons who were impannelled to try said Simon Shover, and who brought in a verdict against him were not a Traverse Jury, the oath required by Law never having been administered to them on the trial of said Shover. Fourth. One of the persons who was impannelled as a Traverse Juror, on the trial of the said Simon Shover, on the Indictment aforesaid, was not qualified to serve on said Jury; towit, Alexander Campbell, he being at the time a subject of the King of Great Britain, and not a citizen of the United States and resident within this Territory for the last year, and not having paid a County or Territorial tax, which were requisite qualifications to be eligible to serve on said Jury." This motion was overruled on June 27, 1822. Copies of the oaths administered are printed herein. (Selected Papers, infra, case 937) In September 182:, the Supreme Court had considered at some length a question raised as to the oath to be administered to a grand jury then being impaneled. (See note, case 706, supra.) Also see case 979, infra. Case 938 WILLIAM G. TAYLOR versus LUTHER PARKER Action of trespass on the case (assumpsit) Removed from Monroe County Court by habeas corpus cum causa JOURNAL ENTRIES (1822-23): Journal3 : (I) Motion for bail or procedendo *p. 330; (2) time for filing declaration extended *p. 360; (3) motion to dismiss granted *p. 433. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return. 1822-23 Calendar, MS p. 66. Case 939 JEAN BAPTISTE JEROME versus RANDALL S. RICE AND HIRAM PEIRCE Action of trespass on the case (assumpsit) Removed from Monroe County Court by habeas corpus cum causa JOURNAL ENTRIES (I822-25): Journal3: (I) Motion for bail or procedendo *p. 330; (2) motion for judgment *p. 435. Journal i: (3) Rule for judgment of nonsuit MS p. 13. CALENDAR OF CASES 253 PAPERS IN FILE: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance; (4) declaration. 1S22-23 Calendar, MS p. 62. Recorded in Book B, MS pp. 481-83. Case 94.0 HUBERT LACROIX versus ISAAC P. SKINNER, ISAAC LEE AND SAMUEL EGNEW Action of debt on a bond Removed from Monroe County Court by habeas corpus cum causa JOURNAL ENTRIES (1822-25): Journal3: (1) Motion for bail or procedendo *p. 330; (2) time for filing declaration extended *p. 360; (3) motion for judgment *p. 435. Journal 4: (4) Procedendo MS p. 16. PAPERS IN FILE: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration. 1722-23 Calendar, MS p. 68. Note: The action was on a bond given by Skinner as deputy sheriff. See case 720, supra. Case 94I HARVEY WILLIAMS versus GABRIEL RICHARD, RECTOR AND AGENT OF THE CORPORATION OF THE CATHOLIC, APOSTOLIC AND ROMAN CHURCH OF ST. ANNE, AND PETER J. DES- NOYERS, CHARLES RIVARD, LOUIS BEUFAIT AND ANTOINE DEQUINDRE, WARDENS AND TRUSTEES OF THE SAID COR- PORATION Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus and certiorari JOURNAL ENTRIES (1822-23): Journal3: (I) Motion for judgment for costs *p. 334; (2) discontinued *p. 387. PAPERS ItN FILE: (i) Precipe for habeas corpus; (2) writ of habeas corpus; (3) precipe for certiorari; (4) writ of certiorari; (5) transcript of county court record; (6) declaration; (7) notice to enter judgment by default. Office Docket, MS p. 126, c. 35. (Case 88 of 1820) Recorded in Book B, MS pp. 221-25. Note: The county court file (case 483) contains: (i) precipe; (2) summons and return; (3) declaration. 254 SUPREME COURT OF MICHIGAN Case 942 HARVEY WILLIAMS versus GABRIEL RICHARD, RECTOR AND AGENT OF THE CORPORATION OF THE CATHOLIC, APOSTOLIC AND ROMAN CHURCH OF ST. ANNE, AND PETER J. DES- NOYERS, CHARLES RIVARD, LOUIS BEUFAIT AND ANTOINE DEQUINDRE, WARDENS AND TRUSTEES OF SAID COR- PORATION Action of trespass on the case ( .. .) Certiorari to Wayne County Court JOURNAL ENTRIES (1822-23): Journal3: (I) Motion for judgment for costs *p. 335; (2) discontinued *p. 387. PAPERS IN FILE: (I) Precipe for certiorari; (2) writ of certiorari. Office Docket, MS p. 135, c. 50. (Case o101 of 1820) Case 943 IN THE MATTER OF FRANCIS LASSELLE, LATE ADMINISTRATOR OF THE ESTATE OF JAMES LASSELLE, DECEASED Examination of administrator's accounts before judge of probate, Monroe County Appeal from decision of judge of probate JOURNAL ENTRIES (1822): Journal3: (i) Continued *p. 336. PAPERS IN FILE: (I) Transcript of proceedings of probate court; (2) affidavit of Charles James Lanman; (3) motion for affirmance. Office Docket, MS p. 154, c. 88. (Case 139 of 1820) Note: The ground of the motion for affirmance was failure to prosecute the appeal. Case 944 GENEVIEVE BEAUBIEN versus SMITH KNAPP Action of replevin before John L. Leib, 7. P. Certiorari to John L. Leib JOURNAL ENTRIES (1822-25): Journal3: (1) Motion for affirmance *p. 352. Journal 4: (2) Rule to strike from docket MS p. 28. CALENDAR OF CASES 255 PAPERS IN FILE: (I) Petition and affidavit for certiorari, allowance. 1822-23 Calendar, MS p. 84. Note: According to the affidavit for certiorari, the justice of the peace who tried this case instructed the jury "that the Legislature of the Territory of Michigan could not dele- gate a power to the Trustees of the City of Detroit, to make original laws, inasmuch as the said Legislature itself could not exercise such a power." The affidavit is printed herein. Selected Papers, infra, case 944) Case 945 ROBERT ABBOTT, EXECUTOR, ETC., OF MARY ABBOTT, DECEASED, versus JAMES ABBOTT Examination before judge of probate, Wayne County A-ppeal from decision of judge of probate JOURNAL ENTRIES (1822): 7ournal3: (I) Motion to overrule decision *p. 352; (2) decision reversed *p. 368. PAPERS IN FILE: (I) Precipe to enter appeal; (2) transcript of probate records; (3) copies of citations issued by probate judge; (4.) reasons for appeal; (5) precipe for fi. fa. 1822-23 Calendar, MS p. 91. Recorded in Book B, MS pp. 203-206. Note: The complainant made the following application to the judge of probate: "To the Hlion: Charles Larned, Judge of Probate & Wills, within and for the County of Wayne & Territory of Michigan. Complains upon oath Robert Abbott, Executor of the last Will & Testament of Mary Abbott (deceased,) That he hath good cause to suspect & doth suspect that James Abbott of the City of Detroit, hath in hands and possession, goods, effects, and credits, belonging to the Estate of Mary Abbott, which the said Robert Abbott is unable to come at & ascertain. And the said Executor further states, that the said James Abbott is in possession as he verily believes, of certain Books of Accounts-Viz-the Books & Accounts of James Abbott & Son, & the Books & Accounts of James Abbott & Sons, and the Books & Accounts of Robert & James Abbott, which are indispensibly necessary for him to examine and inspect, before he can settle and close the Estate of said Mary Abbott. Wherefore he prays that the said James Abbott may be Cited to appear before your Honour- able Court touching the premises, & also to produce the Day Books & Accounts above alluded to; or otherwise dealt with as the Law in such cases directs." The respondent ap- peared and was sworn to answer the following interrogatories: "1st Interrogatory--Have you concealed, any of the goods, chattles or money, left by the late Mary Abbott, (decd Answer.-I have not. 2nd Interrogatory.-Have you embezzeled, any of the goods, chattles, or money, left by the late Mary Abbott (decd Answer.-I have not. 3rd Interrogatory- Have you conveyed away, any of the goods, chattles, or money, left by the late Mary Abbott (decd Answer.-I have not. 4th Interrogatory.-Have you in your hands or pos- session which you refused to deliver up, any goods, books of account, bonds, notes, or other property, belonging to the Estate of the late Mary Abbott (deceased.)" An objection was made to the fourth interrogatory. This objection was overruled and respondent appealed. The following reasons for appeal were served on the appellee: "1It Because, by the answers of the said James to the three preceding questions, the said James had fully disclosed by his said answers all that could be required of him by the Stat: in such case made and adopted. 2d Because, the said question is informal, & illegal being couched in terms too vague & 256 SUPREME COURT OF MICHIGAN indeffinite to admit of a definitive and Specific answer, and because it embraces subjects of enquiry not contemplated by the Statue, under which this proceedure was had. And because it also embraces subjects of enquiry which were not mentioned in the Citation which issued to call the Sd James before the Sd Court in this case & of which the Sd James had no Notice by said Citation. 3rd Because the sd Judge of Probate had no authority by the Laws of the land, to interrogate the said James on the subjects mentioned & Specified in the said question, in manner & form as above stated. 4th Because, the said James was not bound by the Laws of the Land to answer the interrogatories, contained in terms of the said question, manner and form as above stated." Case 946 FRANCIS LASSELLE versus THOMAS CALDWELL Action of debt on a bond JOURNAL ENTRIES (1822-24): Journal3: (i) Time for filing plea extended *p. 353; (2) time for filing declaration extended *p. 35; (3) motion for nonsuit overruled *p. 457; (4) motion to quash writ granted *p. 498. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) declara- tion; (4) precipe for subpoena; (5) subpoena; (6) defendant's affidavit; (7) motion to quash writ. 1822-23 Calendar, MS p. 42. Note: A memo. of court costs is with the papers in case 948. The grounds of the motion to quash appear in the 7ournal (*p. 498). The writ was indorsed as follows: "Action on a Bond in the penal sum of Twenty thousand Dollars, Conditioned for the payment of money and performance of covenants, dated 25th of Sept I818-The suit is brought to recover that amount for the non payment of the money, and nonperformance of the covenants contained in the condition. Bail required." Case 947 WILLIAM C. KELLY versus JOHN MOUNTFORT Action of trespass (assault, battery and false imprisonment) JOURNAL ENTRIES (1822): Journal 3: (I) Time for declaration and plea extended *p. 353- PAPERS IN FILE: (i) Precipe for capias; (2) affidavit for special bail; (3) capias, order for bail, return; (4) bail bond; (5) recognizance and bail piece; (6) declaration; (7) plea in abatement; (8) discontinuance. 1822-23 Calendar, MS p. 88. Note: Paper 7 is printed herein. (Selected Papers, infra, case 947) CALENDAR OF CASES 257 Case 948 lAURENT DUROCHER, EXECUTOR, ETC., OF DAME MARIE B. LASSELLE, versus THOMAS CALDWELL, ADMINISTRATOR DE BONIS NON OF JAMES LASSELLE, DECEASED Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1822-24): Journal3: (I) Time for declaration and plea extended *p. 354; (2) motion for judgment *p. 434; (3) motion for nonsuit *p. 498; (4) rule for nonsuit *p. 507. PAPERs IN FILE: (1) Precipe for summons, bill of particulars; (2) summons and return; (3) declaration; (4) precipe for subpoena; (5) motion for non- suit; (6) memo. of court costs. 1822-23 Calendar, MS p. 43. Recorded in Book B, MS pp. 389-94. Note: A memo. in the handwriting of Judge Sibley (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 49, p. 239) reads as follows: "M° for Nonsuit- Sibley Absent. Because the Declaration was not filed within the time limited by order of Court for filing the same-Facts-Summons returned to Sept x822.-By Consent of parties, time for filing decl. extended 3 Months beyond 20 days-also for plea 3 Mo after filing declaration--The Declaration filed on [i5th] day of Augt 1823 and after the time allowed, and no notice served on deft or atty of the filing-Mr Lamrned Contends that the Case was by Consent of parties taken out of the Statute, therefore must be Govd by Corn Law practice That deft should have made a Mo for nonsuit-not having done it he has waived his rights- : That it was the duty of deft at his peril to take notice of the filing of [dec'] I point. The Statute gives the Court authority to enlarge the time to file the declaration on Cause shewn- No other power is given-The Consent of the parties must be considered as a special Cause -under which the Court give time-2d That no party is bound to notice the filing of papers in the office unless such papers are filed within the time limited for filing the same-The Dec" not having been filed within the time allowed, notice of filing the Dec' should have been given If the Pltff intended to move the Court for further time so as to cover his [la]tches." Case 949 ANTOINE LASSELLE versus THOMAS CALDWELL, ADMINISTRATOR DE BONIS NON OF JAMES LASSELLE, DECEASED Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1822-24): Journal3: (I) Time for declaration and plea ex- tended *p. 354; (2) motion for judgment *p. 434; (3) discontinued *p. 507. PAPERS IN FILE: (I) Precipe for summons, bill of particulars; (2) summons and return; (3) declaration. 1822-23 Calendar, MS p. 44. Note: A memo. of court costs is with the papers in case 948. 258 SUPREME COURT OF MICHIGAN Case 950 LAURENT DUROCHER, EXECUTOR, ETC., OF DAME MARIE B. LASSELLE, versus THOMAS CALDWELL, ADMINISTRATOR DE BONIS NON OF JAMES LASSELLE, DECEASED Action of debt on a bond JOURNAL ENTRIES (1822-24): Journal3: (I) Time for declaration and plea extended *p. 354; (2) motion for judgment *p. 434; (3) discontinued *p. 480. PAPERS IN FILE: (I) Precipe for summons; (2) summons and return. 1822-23 Calendar, MS p. 45. Note: A memo. of costs is with the papers in case 948. Case 95 1 ROBERT ABBOTT, EXECUTOR, ETC., OF MARY ABBOTT, DECEASED, versus JAMES ABBOTT Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1822-26): 7ournal3: (I) Time for declaration and plea extended *p. 354. Journal 4: (2) Motion for nonsuit MS p. I; (3) rule to correct entry of name of counsel MS p. 17; (4) motion to withdraw joinder in demurrer and to amend declaration MS p. 18; (5) stipulation for pleading de novo filed, continued MS p. 2o; (6) motion for nonsuit MS p. 94; (7) judgment of nonsuit MS p. 96. PAPERS IN FILE: (I) Precipe for process; (2) summons and return; (3) dec- laration; (4) stipulation to amend declaration; (5) precipe for execution for costs; (6) writ of fi. fa. and return; (7) alias fi. fa. and return; (3) precipe for alias fi. fa. r822-23 Calendar, MS p. 75. Recorded in Book C, MS pp. 67-68. Case 952 JOHN MELDRUM, ADMINISTRATOR, ETC., OF GEORGE MEL- DRUM, DECEASED, versus JAMES ABBOTT, ADMINISTRATOR, ETC., OF WILLIAM PARK, DECEASED Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1822-27): journal3: (I) Time for declaration and plea extended *p. 355; (2) pleadings withdrawn, leave to file amended declara- CALENDAR OF CASES 259 tion and plea *p. 508. Journal 4: (3) motion for plea or judgment MS p. 18; (4) motion for delivery of bill of particulars MS p. I8; (5) motion for leave to file plea MS p. 18; (6) motion to withdraw motion for plea MS p. I8; (7) motion for judgment for want of plea MS p. 18; (8) rule for delivery of bill of particulars MS p. 18; (9) leave given to withdraw motions, motion to plead in 30 days overruled, motion to plead in 4 days MS p. 28; (io) referred MS p. 67; (ii) notice of hearing required MS p. 70; (12) motion for substitution as plaintiff MS p. 130; (13) motion for abatement MS p. 133; (14) motion for substitution denied, motion for abatement granted MS p. 155- PAPERS IN FILE: (i) Precipe for process; (2) summons and return; (3) mo- tion to withdraw motion for plea; (4.) demurrer; (5) joinder in demurrer; (6) stipulation for withdrawal of pleadings; (7) declaration; (8) notice of demand for oyer of letters of administration; (9) copy of letters of ad- ministration; (io) motion for delivery of bill of particulars; (ii) memo. of delivery of bill of particulars; (12) motion for judgment for want of plea; (13) motion for leave to file a plea; (14) motion for plea or judgment; (i5) motion for plea; (16) rule of reference; (17) stipulation for notice of hearing; (18) motion by administrator to be substituted as plaintiff; (19) transcript of journal entries. t1S22-23 Calendar, MS p. 76. Note: The defendant assigned as grounds for demurrer the plaintiff's failure to make profert of his letters of administration. September 29, 1825, the defendant moved that the bill of particulars filed in this case be delivered to the defendant's attorney. The court Judges Witherell, Sibley and Hunt) ordered "that the said bill of particulars be so de- !ivered, upon condition that the same be returned to the files of the court on or before the day of the trial of this suit." A memo. opinion in the handwriting of Judge Sibley (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 50, p. i) reads as follows: "Mo. for Bill of particulars by Deft on service of notice duly served-S L. T. 318.319 & 48.--My opinion is that the Deft is entitled under notice to a Bill of particulars, to be delivd to himself or his atty before he is under obligations to plead-M. S. Laws page 318 & 819-Also that the provision of the statute page 428, does not vary the def' rights-That it enables the Pltff if he thinks proper, thro the sheriff to serve the deft with the Decl & the Bill of Particulars at the same time-of the service of the writ and will bind the Deft to plead &c The latter provision of the Law is consistent with the former provisions-In either case under the act the Bill of particulars is to be left with the party and not in the Ctks office-in the Latter Case it is one of the papers understood as an accompanying docu- ment to the Copy of the Declaration--Judge Hunt says that the party if he files his Bill of particulars with the Clk at the time he files his declaration, and if he does so, it answers the Law and is a sufficient service of sd Bill on the deft." The memo. opinion was indorsed: "Meldrum & Abbott Question as to the Defts right to a Bill of particulars and the mode he is to be furnished-Question depending on the Construction of the Territorial Statute Hunt & Sibley disagreed as to the Construction." 260 SUPREME COURT OF MICHIGAN Case 953 WELLS MILLER, A MINOR, BY WILLIAM MILLER, NEXT FRIEND, versus JOHN KINZIE Action of trespass (assault and battery) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822-25): 7ournal 3: (1) Time for filing declaration extended *p. 355; (2) continued to next term *p. 446; (3) jury trial, verdict *p. 494; (4) motion for new trial, reasons filed *p. 496. 7ournal : (5) Motion for new trial overruled, motion for judgment on verdict MS p. 46; (6) time given for filing reasons in arrest of judgment MS p. 51; (7) judgment MS p. 52. PAPERS IN FILE: (x) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) affidavit for bail filed in county court; (4) deposition of Lewis Thompson filed in county court; (5) stipulation for use of deposi- tion in Supreme Court; (6) recognizance and bail piece; (7) deposition envelope; (8) declaration; (9) plea of not guilty; (Io) deposition envelope; (Ii) precipe for subpoena; (12) subpoena; (13) deposition of William Bridgeman; (14) precipe for subpoena; (I5) subpoena; (16) deposition of Holden Allen, Jr.; (17) deposition envelope; (18) precipe for subpoena; (19) subpoena; (20) precipe for subpoena; (21) subpoena; (22) precipe for subpoena; (23-24) subpoenas; (25) verdict; (26) reasons for new trial. 1822-23 Calendar, MS p. 2. Recorded in Book C, MS pp. 15-19. Note: A photostat of a paper indorsed, "Mo for New Trial Miller & Kenzie Judge Sibleys Opinion as delvd in the Case of Sept Term 1825" (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 51, pp. 233, 235 and 238) has been placed in the file. This opinion will be printed in a later publication. Case 954 JOHN HAGGERTY AND WILLIAM AUSTIN versus DEBORAH JOHNSON, EXECUTRIX, ETC., OF ROYAL JOHNSON, DECEASED Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822-2-5): Journal3: (1) Time for filing declaration ex- tended *p. 355; (2) continued *p. 446. Journal 4: (3) Referred to court MS p. 7; (4) judgment MS p. 17. CALENDAIR OF CASES ,261 PAPERS IN FILE: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration and plea of non assumpsit; (4.) precipe for subpoena; (5) subpoena; (6) stipulation re taking depositions; (7) precipe for subpoena; (8) subpoena; (9) affidavit of D. G. Jones; (io) clerk's report on amount due; (ii) writ of fi. fa. and return; (12) receipt for attorney's fee; (13) promissory note. 1822-23 Calendar, MS p. 6. Recorded in Book B, MS pp. 492-95- Case 955 ANTHONY BEELIN AND HENRY C. BOSLER, TRADING UNDER THE FIRM OF BEELIN & BOSLER, versus THOMAS ROWLAND Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus curm causa JOURNAL ENTRIES (1822-24): 7ournal3: (1) Time for filing declaration ex- tended *p. 356; (2) jury impaneled *p. 431; (3) witnesses sworn, evidence heard *p. 431; (4) disagreement reported, jury discharged *p. 434; (5) referred *p. 500; (6) motion to withdraw files granted *p. 505; (7) rule for judgment on award *p. 5I1. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance and bail piece; (4) declaration and plea of non assumpsit; (5) precipe for subpoena; (6) subpoena; (7) report of disagreement of jury; (8) sheriff's bill of fees; (9) precipe for subpoena; (io) subpoena; (II) stipulation for reference; (12) testimony of William Woodbridge and James Abbott, and memo. by John R. Williams of reasons for holding defendant not liable; (13) award of referees; (14) promissory note. 1822-23 Calendar, MS p. 9. Recorded in Book B, MS pp. 366-72- Note: John R. Williams, one of the referees, decided that the defendant was not liable for the following reasons: "ist because the pltffs did not shew due diligence either in notify- ing drawer or endeavoring to obtain from him payment. 2d That defendant was not notified within a reasonable time-3 That the words of the defendant did not amt to a promise to pay." Paper 4 is printed herein. (Selected Papers, infra, case 955) 262 SUPREME COURT OF MICHIGAN Case 956 WILLIAM McCOSKRY versus JOHN McDONELL, ADMINISTRATOR, ETC., OF EDWARD RICHARDSON, DECEASED Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822-23): 7ournal3: (i) Time for filing declaration ex- tended *p. 356; (2) jury trial, verdict, motion for new trial *p. 448; (3) rule to file reasons *p. 452; (4) judgment *p. 454. PAPERS IN FILE: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration, plea of non assumpsit, notice of demand for bill of particulars; (4) precipe for subpoena; (5) subpoena; (6) affidavit for continuance; (7) verdict; (8) precipe for execution fi. fa.; (9) writ of fi. fa. and return; (10) alias fi. fa. and return; (II) list of medicines ad- ministered to Edward Richardson; (12) statement of accounts. 1822-23 Calendar, MS p. 10. Recorded in Book B, MS pp. 247-51. Note: Paper 3 is printed herein. (Selected Papers, infra, case 956) Case 957 AUGUSTIN LAFOY versus ADELAIDE BRUSH, EXECUTRIX, ETC., OF ELIJAH BRUSH, DECEASED Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822-24): §fournal3: (I) Time for filing declaration ex- tended *p. 356; (2) continued *p. 450; (3) jury trial, verdict *p. 480; (4) rule for judgment *p. 513. PAPERS IN FILE: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration and plea of non assumpsit; (4) notice of demand for bill of particulars and stipulation for extension of time to plead; (5) precipe for subpoena; (6) subpoena; (7) precipe for subpoena; (8) sub- poena; (9) verdict; (Io) receipt for payment of costs; (II) receipt for payment on judgment; (12) receipt for balance of judgment. 1822-23 Calendar, MS p. 15. Recorded in Book B, MS pp. 373-76. CALENDAR OF CASES 263 Case 958 JOHN S. ROBY versus WILLIAM LITTLE Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822-24): Journal3: (I) Time for filing declaration ex- tended *p. 356; (2) administratrix admitted to prosecute, rule for judg- ment *p. 483. PAPERS IN FILE: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance and bail piece; (4) declaration; (5) plea of non assumpsit; (6) precipe for execution fi. fa.; (7) writ of fi. fa.; (8) pre- cipe for alias fi. fa.; (9) alias fi. fa.; (io) promissory note, statement of accounts, warrant to confess judgment. 1822-23 Calendar, MS p. 16. Recorded in Book B, MS pp. 377-80. Case 959 DAVID STONE versus BENJAMIN WOODWORTH Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822-24): J)ournal3 : (i) Time for filing declaration ex- tended *p. 356; (2) discontinued *p. 497- PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return. 1822-23 Calendar, MS p. I8. Note: This action was commenced in the county court by filing an agreement "to enter an amicable suit, according to the statute in such case provided, without process, on con- dition that the defendant enter special bail . .. " Case 960 WINANS CLARK versus FREDERICK BELLINGER Action of covenant JOURNAL ENTRIES (1822-24): journal3: (i) Time for filing declaration ex- tended *p. 357; (2) rule to bring body *p. 379; (3) referred *p. 490; (4) award filed, rule for judgment *p. 5o8; (5) rule for judgment *p. 511. 264 SUPREME COURT OF MICHIGAN PAPERS IN FILE: (I) Precipe for process, affidavit, order for bail; (2) security for costs; (3) capias and return; (4) recognizance and bail piece; (5) notice of exception to bail; (6) agreement for withdrawal of exception to bail and rule to bring body, and for continuance; (7) agreed order of reference; (8) agreement that referees take files. 1822-23 Calendar, MS p. 30. Recorded in Book B, MS pp. 296-98. Note: Papers 25, 26 and 29 of case 916 pertain also to this case. Case 961 CHRISTOPHER HARTSOUGH versus ADELAIDE BRUSH, EXECUTRIX, ETC., OF ELIJAH BRUSH, DECEASED Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822-23): 7ournal 3: (i) Time for filing declaration extended *p. 357; (2) jury trial, verdict, motion for new trial *p. 449; (3) judgment *p. 466. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) precipe for process in county court; (4) declaration, plea of non assumpsit, bill of particulars; (5) verdict; (6) satisfaction piece. 1822-23 Calendar, MS p. 31. Recorded in Book B, MS pp. 255-58. Case 962 AUSTIN E. WING versus EBENEZER HURD Action of covenant Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822-23): 7ournal3: (i) Time for filing declaration ex- tended *p. 358; (2) bill of particulars required *p. 371; (3) continued p. 446; (4) rule for judgment *p. 451; (5) judgment *p. 466. PAPERS IN FILE: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance; (4) bail piece; (5) declaration; (6) demur- rer; (7) joinder in demurrer; (8-9) agreements for entry of judgment; (io) precipe for execution fi. fa.; (Ii) writ of fi. fa. to coroner and return. 1822-23 Calendar, MS p. 32. Recorded in Book B, MS pp. 259-62. Note: The demurrer was general. CALENDAR OF CASES 265 Case 963 AUSTIN E. WING versus EBENEZER HURD Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822-23): 7ournal 3: (1) Time for filing declaration extended *p. 358; (2) bill of particulars required *p. 371; (3) referred *p. 451; (4) award filed *p. 458; (5) judgment *p. 466. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance; (4) bail piece; (5) declaration and bill of particulars; (6) plea of non assumpsit; (7) notice of set off; (8) agreement for reference; (9) deposition of Benjamin Delavan; (1o) precipe for sub- poena; (1i1-12) subpoenas; (13) precipe for subpoena; (14) subpoena; (i5) award of referees; (16) writ of fi. fa. and return; (17) statement of accounts-Wing to Hurd, Dr. 18,-23 Calendar, MS p. 33. Recorded in Book B, MS pp. 263-67. Note: Paper 17 contains many charges for doctor's visits and medicines. Case 964 DAVID BURBANK versus JOSEPH CAMPAU, EXECUTOR, ETC., OF JOSEPH WEAVER, DECEASED Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822-23): journal 3: (1) Time for filing declaration extended *p. 358; (2) dismissed *p. 447. PAPERS IN FILE: (1) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4) plea of non assumpsit. 1822-23 Calendar, MS p. 34. Recorded in Book B, MS pp. 268-70. Case 965 ROBERT LITTLE versus WILLIAM LITTLE Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822-24): journal 3: (1) Time for filing declaration extended *p. 358; (2) continued *p. 446; (3) discontinued *p. 478. 266 SUPREME COURT OF MICHIGAN PAPERS IN FILE: (1) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance; (4) bail piece; (5) declaration and bill of particulars; (6) plea of non assumpsit; (7) notice of special matter- failure of consideration-to be given in evidence under general issue; (8) discontinuance. 1822-23 Calendar, MS p. 35- Note: Paper 7 is printed herein. (Selected Papers, infra, case 965) Case 966 JAMES MAY versus ANGUS MACKINTOSH, SARAH MACOMB AND ALEXANDER MACOMB, EXECUTORS OF THE WILL OF WILLIAM MACOMB, DECEASED Action of covenant Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822-29): journal 3: (x) Time for filing declaration extended *p. 359. journal 4: (2) Continued MS p. 94; (3) continued MS p. 135; (4) referred MS p. 143; (5) continued MS p. I85; (6) rule of reference extended MS p. 215; (7) rule of reference extended MS p. 233; (8) abated MS p. 274. PAPERS IN FILE: [None] 1822-23 Calendar, MS p. 5o. Note: See case Io92, infra. Case 967 EDWARD BROOKS versus JAMES W. KING AND JANE KING, ADMINISTRATORS, ETC., OF WILLIAM J. McGEE, DECEASED Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1822-23): journal 3: (1) Time for filing declaration extended *p. 359; (2) discontinued *p. 434. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4) plea; (5) precipe for execution fi. fa. 1822-23 Calendar, MS p. 51. Recorded in Book B, MS pp. 275-78. Note: Paper 4 is printed herein. (Selected Papers, infra, case 967) CALENDAR OF CASES 267 Case 968 WILLIAM KEITH versus JAMES THOMAS Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1822-25): fournal 3: (i) Time for filing declaration extended *p. 359; (2) discontinued *p. 474. Journal 4: (3) Discontinued MS p. i. PAPERS IN FILE: (I) Precipe for capias; (2) verified account; (3) capias, notice to sheriff not to require bail, sheriff's return. 1822-23 Calendar, MS p. 58. Case 969 JOHN JACOB ASTOR, RAMSAY CROOKS AND ROBERT STUART, MERCHANTS TRADING UNDER THE FIRM OF THE AMERICAN FUR COMPANY, versus JOHN JOHNSTON Action of trespass on the case (assumpsit) JOURNAL ENTRIES (I1822-27): journal 3: (I) Time for filing declaration extended *p. 359; (2) motion for continuance *p. 435; (3) rule for com- mission to take depositions *p. 464; (4) continued *p. 475. Journal 4: (5) Referred MS p. 8; (6) referred MS p. I1; (7) continued MS p. 93; (8) discontinued MS p. 129. PAPERS IN FILE: (I) Letter from attorney to clerk re issuance of writ; (2) precipe for capias; (3) affidavit for bail; (4) capias and return; (5) recognizance and bail piece; (6) declaration; (7) plea of non assumpsit and notice of set off; (8) stipulation for continuance; (9) precipe for sub- poena; (Io) stipulation for reference. 1822-23 Calendar, MS p. 59" Case 970 CONRAD TEN EYCK versus JOHN WHELEN Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1822-23): 7ournal 3: (I) Time for filing declaration extended *p. 359; (2) motion for judgment *p. 435; (3) judgment *p. 466. PAPERS IN FILE: (I) Precipe for process; (2) capias and return; (3) recogni- zance; (4) notice of exception to bail; (5) declaration; (6) precipe for execution ca. sa.; (7) writ of ca. sa. and return. 1822-23 Calendar, MS p. 64. 268 SUPREME COURT OF MICHIGAN Case 971 EDWARD R. CAMPBELL versus STEPHEN MACK Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1822-24): journal 3: (I) Time for filing declaration extended *p. 360; (2) motion for judgment *p. 435; (3) rule for judgment *p. 480. PAPERS IN FILE: (I) Precipe for process; (2) capias and return; (3) bail bond; (4.) recognizance and bail piece; (5) declaration; (6) report of assess- ment of amount due; (7) precipe for execution fi. fa. 1822-23 Calendar, MS p. 69. Recorded in Book B, MS pp. 386-88. Note: Paper 6 is printed herein. (Selected Papers, infra, case 971) Case 972 PETER J. DESNOYERS versus WHITMORE KNAGGS, SURVIVING PARTNER OF DUNCAN REID & CO. Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1822-33): Journal 3: (I) Time for filing declaration extended *p. 360; (2) continued *p. 447; (3) attendance of witness proved *p. 460; (4) continued *p. 502; (5) continued, attendance of witnesses proved *p. 507. Journal 4: (6) Issue ordered sent to circuit court for trial MS p. 32; (7) attendance of witness proved MS p. 67; (8) issue ordered sent to circuit court MS p. o102; (9) motion for new trial argued, submitted MS p. 492; (io) motion for new trial overruled, motion in arrest of judg- ment MS p. 498; (II) motion in arrest argued, submitted MS p. 511; (12) motion in arrest overruled, remittitur filed, judgment MS p. 529. PAPERS IN FILE: (I) Precipe for summons; (2) summons and return; (3) declaration; (4) plea of non assumpsit; (5-7) precipes for subpoenas; (8) subpoena; (9) certificate of attendance of witness; (io) precipe for subpoena; (11-12) subpoenas; (13) precipe for subpoena; (14) subpoena; (i5) certificate of attendance of witness; (i6) bill of costs; (17) precipe for subpoena; (18) subpoena; (19) affidavit for continuance; (20) affidavit of Horatio Conant; (21) precipe for transcript for circuit court; (22) re- ceipt for cost of transcript; (23) certificate of attendance of witness; (24) form of verdict for plaintiff; (25) form of verdict for defendant; (26) receipt for witness fees; (27) receipt for sheriff's fees; (28-29) receipts CALENDAR OF CASES 269 for fees; (30) receipt for witness fees; (31-32) certificates of attendance of witnesses; (33) receipt for fees; (34) return of trial in circuit court; (35) motion in arrest of judgment; (36) reasons in arrest of judgment; (37) bill of costs. 1822-23 Calendar, MS p. 74. Note: Photostats of the following papers (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 53, pp. 163, 166, 192, 194 and 197) have been placed in the fie: (t) defendant's brief; (2) plaintiff's brief; (3) abstract to accompany plaintiff's brief; _4) opinion by Judge Sibley. The opinion will appear in a later publication. Case 973 OLIVER W. MILLER, ROBERT SMART AND CONRAD TEN EYCK versus AUSTIN E. WING Action of debt on a bond JOURNAL ENTRIES (1822-32): journal 3: (I) Time for filing declaration extended *p. 360; (2) motion for judgment *p. 435. Journal : (3) Judg- ment, execution stayed MS p. 44; (4) motion to quash execution MS p. 516. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) declara- tion and oyer; (4) recognizance and bail piece; (5) precipe for subpoena; (6) subpoena; (7) stipulation to stay execution; (8) sheriff's receipt for execution; (9) precipe for execution; (io) writ of execution and return. 1822-23 Calendar, MS p. 79. Recorded in Book B, MS pp. 541-43. Case 974 JOSIAH BECKLEY versus RICHARD SMYTH, STEPHEN MACK, JOHN S. ROBY AND DAVID C. MeKINSTRY Action of trespass (assault, battery and false imprisonment) JOURNAL ENTRIES (1822-23): Journal 3: (1) Time for filing declaration extended *p. 360; (2) motion for nonsuit *p. 436. PAPERS IN FILE: (i) Precipe for capias; (2) capias, order for bail, return; (3) recognizance and bail piece; (4) declaration; (5) discontinuance. 1822-23 Calendar, MS p. 8 1. 270 SUPREME COURT OF MICHIGAN Case 975 AUGUSTUS PORTER, PETER B. PORTER, BENJAMIN BARTON, SHELDON THOMPSON, JACOB TOWNSEND, ALEXANDER BRON- SON AND NATHANIEL SILL, LATE PARTNERS IN TRADE UNDER THE FIRM OF SILL, THOMPSON & CO., versus AUSTIN E. WING, SHERIFF OF WAYNE COUNTY Action of trespass on the case (damages for failure to make due return of a writ of capias) JOURNAL ENTRIES (I822-26): Journal 3: (I) Time for filing declaration extended *p. 361; (2) motion for judgment *p. 436. Journal 4: (3) Continued MS p. 33; (4) motion for default overruled, motion that declaration be considered duly filed MS p. 42; (5) discontinued MS p. 95. PAPERS IN FILE: (I) Precipe for process; (2) summons and return; (3) declaration. 1822-23 Calendar, MS p. 82. Note: Paper 3 is printed herein. (Selected Papers, infra, case 975) An opinion in Judge Sibley's handwriting has been found among his papers. (Burton Historical Collection, Public Library, Detroit, Vol. 45, p. Iii) This opinion will be printed in a later publication. Case 976 GABRIEL GODFROY, EXECUTOR, ETC., OF AGATHA POUPARD, versus JACOB VISGER Action of debt on a bond JOURNAL ENTRIES (1822-27): Journal 3: (I) Time for filing declaration extended *p. 361. journal 4: (2) Continued MS p. 95; (3) death sug- gested MS p. 130; (4) nonsuit MS p. 136. PAPERS IN FILE: (I) Precipe for process; (2) capias and return; (3) declara- tion; (4) copy of bond. 1822-23 Calendar, MS p. 83. Case 977 SETH GROSVENOR AND JOSEPH BRADLEY VARNUM versus ABRAHAM EDWARDS Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1822-23): Journal 3: (1) Time for filing declaration extended *p. 361; (2) judgment *p. 436. CALENDAR OF CASES 271 PAPERS IN FILE: (I) Precipe for process; (2) capias and acknowledgment of service; (3) recognizance; (4) bail piece; (5) declaration; (6) plea of non assumpsit. i,2-2 Calendar, MS p. 86. Recorded in Book B, MS pp. 208-II. Case 978 HENRY W. DELAVAN, EDWARD C. DELAVAN AND JOHN T. NORTON, MERCHANTS IN COMPANY TRADING UNDER THE FIRM OF HENRY W. DELAVAN & CO., versus ABRAHAM EDWARDS Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1822-23): journal 3: (I) Time for filing declaration extended *p. 361; (2) motion for judgment *p. 436; (3) judgment *p. 458. PAPERS IN FILE: (I) Precipe for process; (2) verified account; (3) capias and acknowledgment of service; (4) recognizance; (5) bail piece; (6) declara- tion; (7) plea of non assumpsit; (8) calculation of amount due and precipe to enter judgment; (9) sheriff's bill of fees; (io) precipe for execution fi. fa.; (ii) writ of fi. fa. and return; (12) precipe for fi. fa.; (i3) pluries fi. fa. and return. iS22-2 Calendar, MS p. 87. Recorded in Book B, MS pp. 279-82. Case 979 UNITED STATES versus HENRY HUDSON Indictment for larceny and for receiving stolen goods Error to Wayne County Court JOURNAL ENTRIES (1822): Journal3: (I) Rule to make return, return made *p. 367; (2) motion to amend return granted *p. 371; (3) judgment re- versed *p. 373- PAPERS IN FILE: (i) Precipe for writ of error; (2) writ of error, allowance, order that prisoner be enlarged; (3) transcript of county court record; (4) bail bond in error and approval; (5) precipe for supersedeas; (6) copies of oaths administered to grand and petit juries in Wayne County Court. 1822-23 Calendar, MS p. 49. Note: The oaths administered were the same as administered in case 937, supra. 272 SUPREME COURT OF MICHIGAN Case 980 UNITED STATES versus SPENCER MUNDAY Indictment for murder JOURNAL ENTRIES (1822-23): fournal3: (I) Arraignment, plea, indictment quashed, recognizance *p. 373; (2) recognizance forfeited *p. 439. PAPERS IN FILE: (I) Indictment. Note: The defendant was charged with the murder of Mary Munday at Green Bay in Brown County. Case 981 ADNA MERRITT versus BECKLEY ROWLEY Petition for mandamus JOURNAL ENTRIES (1822-25): fournal3: (I) Rule for peremptory mandamus *p. 274; (2) motion for supersedeas *p. 386. Journal 4: (3) Motion for supersedeas overruled, rule to strike case from docket MS p. 28. PAPERS IN FILE: (I) Precipe for peremptory mandamus. 1822-23 Calendar, MS p. 95. Note: See cases 1067 and lo68, infra. A photostat of a memo. in Judge Sibley's hand- writing (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 49, p. 21 i) has been placed in the file. Case 982 PHINEAS FISK versus HUBERT LACROIX Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1822-25): 7ournal3: (I) Exception to bail withdrawn *p. 379. Journal 4: (2) Rule for judgment of nonsuit MS p. 7. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) recogni- zance; (4) declaration and bill of particulars. 1822-23 Calendar, MS p. 72. Recorded in Book B, MS pp. 462-64. CALENDAR OF CASES 273 Case 983 THOMAS EMERSON versus STEPHEN MACK, SHUBAEL CONANT, FRANCIS LERIGE, DIT LAPLANTE, AND PIERRE GAGNIER Bill in equity to foreclose a mortgage JOURNAL ENTRIES (1822): Chancery Journal: (i) Decree *p. 46. PAPERS IN FILE: [None] Chancery Case 1 9 of 1 820. Note: A notice of sale was published in the Detroit Gazette August 22, I823. Case 984 DANIEL SUTHERLAND versus ANTOINE LASSELLE AND GEORGE MOFFAT, ROBERT GILLESPIE, AND WILLIAM GIL- KINSON, EXECUTORS, ETC., OF RICHARD PATTINSON, DECEASED Bill in equity to foreclose a mortgage JOURNAL ENTRIES (1822-24): Chancery Journal: (i) Rule to demur or plead, continued *p. 54. Journal3: (2) Motion for decree granted *p. 461. Chancery Journal: (3) Decree *p. 57. Journal 3: (4) Register's report confirmed nisi *p. 497. PAPERS IN FILE: (I) Bill of complaint; (2) security for costs and precipe for subpoena; (3) writ of subpoena and return; (4) answer and disclaimer of George Moffat, Robert Gillespie and William Gilkinson; (5) draft of decree; (6) copy of notice of sale posted on Council House; (7) copy of notice of sale and that agent of complainant will bid for property; (8) receipt for proceeds of sale; (9) register's report; (xo) precipe for writ of possession; (I ) receipt for printer's bill; (12) receipt for counsel fees; (13) writ of possession; (14) precipe for writ of possession; (i5) writ of possession and return; (16) calculation of amount due; (17) memo. re copy of agreement; (i8) copy of deed of mortgage-Antoine Lasselle to Richard Pattinson. Chancery Case 20 of 1821. 274 SUPREME COURT OF MICHIGAN Case 985 UNITED STATES versus BENJAMIN WOODWORTH JOURNAL ENTRIES (1823): Journal : (I) Appearance *p. 385. PAPERS IN FILE: [None] Case 986 EZRA BALDWIN versus AUSTIN E. WING, SHERIFF Action of trespass on the case (for the escape of an imprisoned debtor) before John McDonell, J. P. Appeal to Wayne County Court Error to county court JOURNAL ENTRIES (1823-24): Journal3: (i) Rule to join in error *p. 388; (2) judgment reversed *p. 506. PAPERSIN FILE: (I) Precipe for writ of error; (2) writ of error; (3) transcript of county court record; (4) bill of exceptions; (5) assignment of errors and joinder; (6) statement of attorney's fees. 7822-23 Calendar, MS p. 126. Recorded in Book B, MS pp. 436-40. Note: Paper 3, printed herein (Selected Papers, infra, case 986), contains a copy of the bill of exceptions. The errors assigned were general, viz., that the supposed defenses were insufficient in law and that judgment was rendered against the plaintiff when it ought to have been rendered for him. Case 987 RUFUS SETH REED versus PHILIP LCCUYER Action of trespass on the case (assumpsit) (attachment) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1823-24): Journal 3: (I) Rule for bail or procedendo *p. 391; (2) relicta cognovit, rule for judgment *p. 504. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance and bail piece; (4) declaration; (5) plea of non assumpsit, notice of demand for bill of particulars; (6) relicta cognovit. 7822-23 Calendar, MS p. 1I2. Recorded in Book B, MS pp. 407-10. Note: Paper 6 is printed herein. (Selected Papers, infra, case 987) CALENDAR OF CASES 275 Case 988 RUFUS SETH REED versus PHILIP L1CUYER AND GABRIEL GODFROY Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1823-24): Journal3: (I) Rule for bail or procedendo *p. 391; (2) relicta cognovit, rule for judgment *p. 504. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance and bail piece; (4) declaration; (5) plea of non assumpsit, notice of demand for bill of particulars; (6) relicta cognovit. 1822-23 Calendar, MS p. i io. Recorded in Book B, MS pp. 403-406. Case 989 EBENEZER HURD versus JOHN L. WHITING Action of trespass (assault and battery) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1823-27): Journal 3: (I) Rule for bail or procedendo *p. 392; (2) continued *p. 478. Journal 4: (3) Referred MS p. 7; (4) mo- tion to correct entry of reference and for entry of continuance MS p. 15; (5) motion to strike off entry of reference MS p. I6; (6) rule of reference stricken off MS p. 35; (7) issue ordered sent to circuit court for trial MS p. 47; (8) order sending issue to circuit court rescinded MS p. 11 9; (9) discontinued MS p. 139. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance; (4) bail piece; (5) declaration; (6) plea of not guilty; (7) precipe for subpoena; (8) subpoena; (9) precipe for sub- poena; (io) subpoena; (ii) precipe for subpoena; (12) subpoena; (13) mo- tion to strike entry of reference; (14) motion to correct entry of reference; (IS) precipe for subpoena; (i6) transcript of pleadings and of order send- ing case to circuit court; (x7) precipe for subpoena; (I8) subpoena; (19) discontinuance. 1822-23 Calendar, MS p. 129. 276 SUPREME COURT OF MICHIGAN Case 990 FRIEND PALMER, THOMAS PALMER AND JOHN PALMER versus ANTOINE LASSELLE Action of trespass on the case (. .. ) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1823): Journal 3: (I) Rule for bail or procedendo *p. 392; (2) motion for remand *p. 447; (3) remanded by procedendo *p. 458. PAPERS IN FILE: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance; (4) bail piece; (5) exception to bail. 1822-23 Calendar, MS p. 107. Case 991 JULIUS ELDRED versus MICHAEL DOUSMAN AND MOSES BIRDSALL Action of trespass on the case (assumpsit) before James Abbott, J. P. Certiorari to James Abbott JOURNAL ENTRIES (1823-25): Journal3: (I) Rule to assign errors *p. 392. Journal 4: (2) Judgment affirmed MS p. 56. PAPERS IN FILE: (I) Affidavit for certiorari, precipe and allowance; (2) writ of certiorari and return; (3) assignments of error; (4) joinder in error; (5) receipt for fee. .822-23 Calendar, MS p. o100. Recorded in Book C, MS pp. 24-28. Note: Paper 9 of case 1093, infra, relates also to this case. The errors assigned were general. A memo. in the handwriting of Judge Sibley (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 50, p. i) reads as follows: " 29. Sepr--Fletcher aty for Eld & Leib, for Dousman-Eldred vs Dousman-on Certiorari from Justice James Abbot-Summons vs Dousman & Birdsel served as to Dousman, non est as to Birdsel- That in Book all articles charged agt Birdsel except one article of four dollars which were charged agt the vessel-Dousman is a resident of Michilimackinac and was at the time of issuing the writ-he appeared and plead the gen' issue and went on to trial &c Summons in the County 227. Terry Laws-Capias agt a freeholder not to be served, unless on oath made of departure & a belief of loss of debt. Sect 4. 228.-Appearance of Deft cannot give Jurisdiction-Cowens pa 13.-want of Jurisdiction in justice, renders proceedings void- 17 Johnston 145 Justice had jurisdiction of the subject matter but not over the person- 3 Kains I29-consent takes away error, but will not give Jurisdiction-Merits--Cap' Birdsel was Capt of the schooner and part owner with Dousman-By the Book of entries in the hand writing of the Pltff all the items were charged to Birdsel except one Item of 4 doll' which was charged to the vessel-" CALENDAR OF CASES 277 Case 992 LOUIS CAMPAU versus WILLIAM KEITH Action of trespass (de bonis asportatis) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1823-27): Journal 3: (I) Rule for bail or procedendo *p. 395; (2) rule suspended two days *p. 406; (3) rule suspended two days further *p. 410; (4) rule suspended two days further *p. 419; (5) rule rescinded *p. 421; (6) bail waived, appearance, motion for continuance *p. 461; (7) attendance of witness proved *p. 512. Journal 4: (8) Demur- rer sustained MS p. 42; (9) issue ordered sent to circuit court for trial MS p. 5o; (io) rule sending case to circuit court enlarged MS p. 140. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4) plea and demurrer; (5) precipe for subpoena; (6) subpoena; (7) precipe for subpoena; (8) subpoena; (9) precipe for subpoena; (io) subpoena; (i I) copy of declaration; (12) copy of plea and demurrer. 1822-23 Calendar, MS p. 103. Note: Photostats of memoranda and of an opinion in the handwriting of Judge Sibley Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 41, p. 101; o01. 49, pp. 198 and 200oo) have been placed in the file. The opinion will appear in a later publication. Case 993 JOHN B. COOK AND SARAH COOK versus DAVID C. McKINSTRY Action of debt on a bond Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (18 23-25): Journal 3: (1) Rule for bail or procedendo *p. 395. Journal 4: (2) Motion for nonsuit MS p. 22; (3) discontinued MS p. 28. PAPERs IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance and bail piece; (4) declaration; (5) notice of demand for copy of bond; (6) demurrer. 1822-23 Calendar, MS p. io6. 278 SUPREME COURT OF MICHIGAN Case 994 GABRIEL GODFROY, JR., versus ANDREW CALHOON Certiorari to Jeremiah Lawrence, 7. P. JOURNAL ENTRIES (1823): 7ournal3: (I) Discontinued *p. 396. PAPERS IN FILE: (I) Precipe for certiorari; (2) affidavit for certiorari, al. lowance; (3) agreement and precipe for discontinuance. 1822-23 Calendar, MS p. 117. Case 995 HENRY SANDARS versus ANDREW WESTBROOK Action of trespass (de bonis) before John K. Smith, 7. P. Certiorari to John K. Smith JOURNAL ENTRIES (1823): Journal3: (I) Discontinued *p. 396. PAPERS IN FILE: (I) Petition for certiorari; (2) affidavit for certiorari, allowance; (3) precipe for certiorari. 1822-23 Calendar, MS p. I I8. Note: A memo. re payment of costs is with the papers in case 996. Case 996 HENRY SANDARS versus ANDREW WESTBROOK Action of trespass on the case before John K. Smith, 7. P. Certiorari to Jfohn K. Smith JOURNAL ENTRIES (1823-25): Journal3: (I) Rule to assign errors *p. 396. Journal 4: (2) Judgment reversed MS p. 41. PAPERS IN FILE: (I) Petition and affidavit for certiorari, allowance; (2) precipe for certiorari; (3) writ of certiorari and return; (4) J. P. papers- (a) copy of writ of execution; (b) copy of notice of intention to remove case by certiorari; (c) copy of writ of supersedeas; (d) copy of writ of supersedeas; (e) testimony of Henry Cottrell; (f) statement of accounts; (g) notice to constable; (5) assignment of errors; (6) joinder in error; (7) precipe for execution for costs; (8) memo. re payment of costs. 1822-23 Calendar, MS p. I19. Recorded in Book B, MS pp. 525-28. Note: Photostats of memoranda and of an opinion in the handwriting of Judge Sibley (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 45, .P. 112; Vol. 48, p. 159; Vol. 50, p. 2; Vol. 5r, p. 66) have been placed in the file. The opinion will appear in a later publication. See case io66, infra. CALENDAR OF CASES 279 Case 997 ANDREW CALHOON, JR., versus LUTHER DORRIEL Action of trespass on the case before feremiah Lawrence, J. P. Certiorari to 7eremiah Lawrence JOURNAL ENTRIES (1823-24): 7ournal3: (I) Rule to assign errors *p. 396; (2) rule to rejoin in error *p. 424; (3) rule for nonsuit *p. 500oo. PAPERS IN FILE: (I) Affidavit for certiorari, allowance; (2) writ of certiorari and return; (3) assignment of errors; (4) joinder in error. 1822-23 Calendar, MS p. 124. Note: The errors assigned were: "First It did not appear by the return of the Constable on the Summons in said Action when or how the said Summons was served. Second. There is manifest error in this. It doth appear that the said Justice did adjourn the said action at the request of the Defendant-contrary to the will of the plaintiff without the said defendant having first exhibited his account or Stated the nature thereof. Third There is manifest error in this: it doth not appear that any issue was joined, & if any, what issue. Fourth There is manifest error in this The veniry was issued only for Six Jurors without the consent of the plaintiff-when it ought to have been for twelve jurors-Fifth There is manifest error in this It doth not appear at what place in Rasinvill the said Jury was to appear before the said Justice-Sixth There is manifest error in this, The Constable only returned a pannel of six names for a Jury. Without its appearing it was left to discretion to Summons Six for that purpose. Seventh There is manifest error in this. It appears there had been a prior Judgement in an Action between the Same parties in favour of the plaintiff on the twenty first day of February and the said Defendant did not exhibit his account in the said first Suit and in the Second suit on the Tenth day of May last aforesaid. The Court allowed and gave Judgement for five Dollars damages and Thirteen Dollars one and a half cents costs in favour of the Defendant when in fact the Defendant was not entitled to cost having omited to set off his account in the first action between the said parties & which if any existed against the said Calhoun ought to have been set off in the first suit aforesaid-Eighth. There is manifest error in this. It doth not appear by the said return that the Jury were sworn-Ninth. There is manifest error in this. That the Judge- ment was given for the Defendant when in truth and fact it ought to have been given for the Plaintiff. Tenth It doth not appear by the said return that a proper Officer was sworn and took charge of said Jury when they retired from the Court to agree upon their Verdict, or that any person-by the order of the Court was with them-according to the Statute." Case 998 PETER GODFROY versus JOSEPH FARRINGTON Action of replevin JOURNAL ENTRIES (1823): Journal3: (I) Dismissed *p. 396. PAPERS IN FILE: (I) Precipe for writ of replevin. 1822-23 Calendar, MS p. 125. 280 SUPREME COURT OF MICHIGAN Case 999 BENJAMIN DELAVAN versus WILLIAM WOODBRIDGE Action of trespass on the case ( .. ) Habeas corpus cum causa to Wayne County Court JOURNAL ENTRIES (1823): ,7ournal3: (i) Dismissed *p. 397" PAPERS IN FILE: (I) Precipe for habeas corpus. 1822-23 Calendar, MS p. 127. Case Io00O JOSEPH W. MOULTON versus DAVID C. McKINSTRY Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1823-30): journal 3: (I) Bail waived, appearance *p. 397. 7ournal 4: (2) Motion for judgment MS p. 21; (3) continued MS P- 93; (4) continued MS p. 228; (5) continued MS p. 278; (6) continued MS p. 321; (7) discontinued MS p. 359; (8) motion for judgment for costs MS p. 362; (9) judgment for costs MS p. 364. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4.) plea of non assumpsit, notice of demand for bill of particulars; (5) motion for judgment for costs; (6) precipe for execution fi. fa.; (7) writ of fi. fa. and return. 1822-23 Calendar, MS p. 128. Case I00I PETER GODFROY versus DAVID C. McKINSTRY, WARREN HOWARD AND JACOB SMITH Action of debt on a bond Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1823-30): Journal 3: (i) Bail waived, appearance *p. 397. Journal 4: (2) Death suggested, continued MS p. 8; (3) continued MS p. 94; (4) continued MS p. 140o; (5) motion for leave to amend MS p. 223; (6) rule for judgment of nonsuit MS p. 230; (7) leave given to show cause against nonsuit MS p. 257; (8) motion to set aside nonsuit overruled, judgment for costs MS p. 413. CALENDAR OF CASES 281 PAPERS IN FILE: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4.) notice of demand for copy of bond; (5) plea; (6) precipe for subpoena duces tecum to bring up records of county court containing jail limits; (7) motion for leave to file amended pleas; (8) subpoena; (9) precipe for execution fi. fa. for costs; (io) writ of fi. fa. and return. 1822-23 Calendar, MS p. 132- Vote: The action was for the breach of a bond conditioned that Howard remain within the prison limits. Case 1002 KITTY, A BLACK GIRL, versus ANTOINE LASSELLE Habeas corpus . . . . JOURNAL ENTRIES (1823): Journal3: (i) Dismissed *p. 397" PAPERS IN FILE: (I) Precipe for writ of habeas corpus. 1822-23 Calendar, MS p. I133. Case 1003 JOSEPH CAMPAU versus MICHAEL DOUSMAN AND MOSES BIRDSALL Action of trespass on the case (assumpsit) before John McDonell, J. P. Certiorari to John McDonell JOURNAL ENTRIES (1823): Journal3: (I) Dismissed *p. 397" PAPERS IN FILE: (I) Affidavit for certiorari, allowance; (2) transcript from J. P. docket. 1822-2? Calendar, MS p. 136. Case ioo4 WILLIAM G. TAYLOR AND HENRY DISBROW versus STEPHEN MACK AND SHUBAEL CONANT Action on a bond before Laurent Durocher, J. P. Certiorari to Laurent Durocher JOURNAL ENTRIES (1823-25): Journal3: (1) Rule to return certiorari *p. 397; (2) motion to quash certiorari *p. 475. Journal 4: (3) Appearance, motion to dismiss MS p. 21; (4) dismissed MS p. 30. 282 SUPREME COURT OF MICHIGAN PAPERS IN FILE: (I) Affidavit for certiorari, allowance; (2) precipe for certiorari; (3) copy of rule to return certiorari and proof of service; (4) appearance, motion to dismiss. 1822-23 Calendar, MS p. I135. Case 1005 WILLIAM L. BELLINGER versus JAMES KNAPP Action of trespass on the case before Thomas Rowland, .. P. Certiorari to Thomas Rowland JOURNAL ENTRIES (1823-25): Journal3: (I) Rule to assign errors *p. 398. 7ournal 4: (2) Judgment affirmed MS p. 33. PAPERS IN FILE: (I) Affidavit for certiorari, allowance; (2) copy of affidavit for certiorari; (3) precipe for certiorari; (4) writ of certiorari and return; (5) assignment of errors and joinder; (6) precipe for execution. 1822-23 Calendar, MS p. 141. Recorded in Book B, MS pp. 511-13. Note: The errors assigned were: "There is manifest Error in this-that by the return on the Summons against the said Bellinger before the Justice aforesaid-it did not appear in what manner the said Summons was served-as by the statute it ought There is manifest error in this that there was not sufficient notice given to the said Bellinger before the return of the said Summons by the officer who served the same as appears by said Summons--There is manifest error in this that the said Justice decided and determined that the Manner of Service was necessary to be returned by the officer who Served the Summons There is manifest error in this, that the said Justice determined the service of the said Summons was legal-though in fact it appeared on the said Summons that the said Bellinger had not had legal and sufficient Notice-Neither did it appear whether the said Summons was served by Copy or reading or in what form the said Service was made There is manifest error in this it doth not appear by the said return that the said Knapp had any legal cause of action against the said Bellinger and that the said Justice did give Judgment against the said Bellinger when in fact it ought to have been in favour of the said Bellinger." Case 10oo6 WILLIAM G. TAYLOR versus WARREN BARTLET Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1823): Journal j3: (I) Motion to quash writ granted *p" 399. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return. 1822-23 Calendar, MS p. 148. CALENDAR OF CASES 283 Case 1007 UNITED STATES versus GEORGE DOUGHTS Motion for discharge from commitment JOURNAL ENTRIES (1823): Journal 3: (1) Motion for discharge *p. 401; (2) prisoner discharged *p. 403. PAPERS IN FILE: [None] Case ioo8 UNITED STATES versus ANDREW H. WESTBROOK Indictment for larceny Removed from St. Clair County Court by habeas corpus and certiorari JOURNAL ENTRIES (1823-25): Journal3: (I) Rule to join in error *p. 407; (2) scire facias ad audiendum errores awarded *p. 417. Journal 4: (3) Prosecuting attorney appointed MS p. 30; (4) dismissed MS p. 41. PAPERS IN FILE: (I) Precipe for habeas corpus and certiorari; (2) writ of habeas corpus and return; (3) writ of certiorari and return; (4) assign- ment of errors; (5) writ of scire facias ad audiendum errores; (6) joinder in errors; (7) reasons for declining to serve as prosecuting attorney. 1822-23 Calendar, MS p. 134. Note: Paper 5 is printed herein. (Selected Papers, infra, case ioo8) Case 1009 CALL McALISTER versus MICHAEL DOUSMAN Removed from Wayne County Court by habeas corpus cum causa JouRNAL ENTRIES (1823): Journal : (I) Remand by procedendo *p. 407. PAPERS IN FILE: (i) Precipe for habeas corpus. 1822-23 Calendar, MS p. 19. 284 SUPREME COURT OF MICHIGAN Case ioio WILLIAM MORRIS versus EZRA BALDWIN Action of replevin Removed from Macomb County Court by habeas corpus cum causa JOURNAL ENTRIES (1823-26): journal 3: (I) Original papers, unadvisedly sent, ordered returned *p. 412; (2) motion for judgment *p. 479; (3) jury impaneled, witnesses sworn *p. 494; (4) trial, verdict *p. 495; (5) at- tendance of witness proved *p. 496; (6) motion for new trial, reasons filed *p. 499. journal 4t: (7) Motion for new trial overruled, motion in arrest of judgment MS p. 49; (8) leave to file reasons in arrest of judgment denied, rule for judgment MS p. 97. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) transcript of county court record; (4) bill of costs in county court; (5) declaration; (6) agreement for extension of time to plead; (7) motion for judgment for want of plea; (8) stipulation for plea and trial; (9) plea; (Io) replication; (II) stipulation for trial; (12) sub- poena; (13) precipe for subpoena; (14) subpoena; (i5) precipe for sub- poena; (16) subpoena; (17) verdict; (18) motion for new trial; (19) affidavit of Ezra Baldwin; (20) affidavit of Jeremiah G. Brainard; (21) affidavit of Charles Fouch6; (22) motion in arrest of judgment; (23) sealed contract; (24) promissory note; (25) bill of sale; (26) bond. 1822-23 Calendar, MS p. 153. Recorded in Book C, MS pp. 63-66. Note: Papers 5, 9, 10, 17, 18, 20 and 21 are printed herein. (Selected Papers, infra, case Oo1010) Case IoI I WILLIAM G. TAYLOR versus WARREN BARTLET AND WILLIAM PAGE Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1823-24): J ournal 3: (i) Motion to quash summons overruled *p. 414; (2) motion for nonsuit granted *p. 502. PAPERS IN FILE: (I) Precipe for summons; (2) summons and return; (3) declaration; (4-5) notices of demand for bill of particulars; (6) plea of non assumpsit and notice of set off. 1822-23 Calendar, MS p. 147. Recorded in Book B, MS pp. 451'53. CALENDAR OF CASES 285 Case 1012 ETIENNE TUOTTE, DIT DUVAL, versus MEDARD DESCOMPTE, DIT LABADIE Action of trespass on the case (slander) JOURNAL ENTRIES (1823-27): 7ournal 3: (I) Motion to extend time for declaration *p. 419; (2) motion for trial at Monroe *p. 502; (3) motion for trial at Monroe overruled *p. 5o8. journal 4: (4) Motion for trial at Monroe MS p. 8; (5) issue ordered sent to circuit court for trial MS p. 33; (6) discontinued MS p. 133. PAPERS IN FILE: (I) Precipe for summons; (2) summons and return; (3) draft of declaration; (4) plea of not guilty and stipulation for giving in evidence any special matter of justification; (5) motion for trial at Monroe; (6) affidavit of Wolcott Lawrence. 1822-23 Calendar, MS p. 140. Note: Paper 5, which was filed Oct. 7, I824, reads as follows: "The Plff in this case by his council moves the Court to order and direct that the trial in said case may be had at the next& tp ie Circuit Court to be held in the County of Monroe for the following reasons- i't because the cause of action arose in said County 2d because the venue is laid in said County 3d because both parties live in said County 4th because all the witnesses live in said County-5th E t Pf Dft "-,i-- to have the issue tried in said County 6th because it will lessen the cost of trial." Case 1013 DAVID LONG versus SAMUEL WING . . . . . . . . . . . . . . . . . . . Habeas corpus cum causa to Wayne County Court JOURNAL ENTRIES (1823): 7ournalg: (I) Motion to dismiss granted *p. 433. I'APERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return. 1822-23 Calendar, MS p. 23. Case I o 014 HUBERT LACROIX versus JAMES KNAGGS Habeas corpus cum causa to Monroe County Court JOURNAL ENTRIES (1823): 7ournal3: (1) Motion to dismiss granted *p. 433. PAPERS IN FILE: (I) Precipe for habeas corpus, 1822-23 Calendar, MS p. 67. 286 SUPREME COURT OF MICHIGAN Case 1015 JOSEPH MARIN versus DAVID C. McKINSTRY Action of replevin JOURNAL ENTRIES (1823): Journal3: (I) Motion to dismiss granted *p. 433. PAPERS IN FILE: (i) Precipe for writ of replevin; (2) writ of replevin and return; (3) replevin bond. 1822-23 Calendar, MS p. 8o0. Note: The above papers are printed herein. (Selected Papers, infra, case xo1015) Case Ioi6 JAMES GALLAGHER versus ADNA MERRITT Action of trespass on the case (slander) JOURNAL ENTRIES (1823-27): Journal 3: (I) Motion for nonsuit *p. 433; (2) default judgment, jury to assess damages *p. 452; (3) continued *p. 457; (4) motion to strike off default overruled *p. 504. Journal 4: (5) Continued MS p. 93; (6) rule for nonsuit MS p. 127. PAPERS IN FILE: (I) Precipe for capias; (2) affidavit for bail; (3) capias, order for bail, return; (4) declaration; (5) affidavit to set aside default. 1822-23 Calendar, MS p. 26. Case 1017 JOHN S. ROBY versus GABRIEL GODFROY, SR., AND GABRIEL GODFROY, JR. Action of trespass on the case ( .. .) Habeas corpus cum causa to Wayne County Court JOURNAL ENTRIES (1823-25): Journal 3: (I) Death of plaintiff suggested *p 434. Journal 4: (2) Rule to strike from docket MS p. 16. PAPERS IN FILE: (i) Precipe for habeas corpus. 1822-23 Calendar, MS p. 38. CALENDAR OF CASES 287 Case Io i 8 THOMPSON MAXWELL versus JOHN ANDERSON, JOSEPH PLYMPTON AND EDMUND KIRBY Action of trespass on the case (. .. ) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1823-25): Journal3: (I) Motion for bail or procedendo *p. 436; (2) motion for consolidation *p. 436. Journal 4: (3) Discon- tinued nisi MS p. 30. PAPERS IN FILE: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance. 1822-23 Calendar, MS p. 12 1. Note: See case 1019, infra. Case 1019 THOMPSON MAXWELL versus JOHN ANDERSON, JOSEPH PLYMPTON AND EDMUND KIRBY Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1823-24): Journal3: (I) Motion for bail or procedendo *p. 437; (2) motion for consolidation *p. 437; (3) rule for judgment *p. 485. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance; (4) declaration; (5) receipt for court costs; (6) promissory note. 1822-23 Calendar, MS p. I22. Recorded in Book B, MS pp. 416-19. Note: See case ioi8. Case 1020 BANK OF MICHIGAN versus WHITMORE KNAGGS Action of trespass on the case (. .. ) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1823): Journal 3: (I) Motion for bail or procedendo *p. 437; (2) remanded by procedendo *p. 467. PAPERS IN FILE: (1) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) sheriff's bill of fees. 1822-23 Calendar, MS p. 108. 288 SUPREME COURT OF MICHIGAN Case 1021 ROBERT ABBOTT versus JAMES MAY, WILLIAM WOODBRIDGE, AND JOSEPH BEAUBIEN, JR., ALEXIS BEAUBIEN, ST. MARK BEAUBIEN, JEAN MARIE BOBIEN AND THERESE BEAUBIEN, HEIRS OF JOSEPH BEAUBIEN, DECEASED Bill in equity for specific performance and for cancellation of deeds JOURNAL ENTRIES (1823-28): Journal 3: (I) Leave to take deposition *p. 437; (2) bill dismissed *p. 496. Journal 4: (3) Special master ap- pointed, witness sworn MS p. 63; (4) witnesses sworn MS p. 64; (5) mo- tion to dismiss, witness sworn MS p. 65; (6) witnesses sworn MS p. 65; (7) attendance of witness proved MS p. 67; (8) continued under advise- ment MS p. 72; (9) bill dismissed MS p. 105; (io) motion for rehearing, petition filed MS p. I13; (II) rehearing granted MS p. 123; (12) motion to rescind order for rehearing and to make decree absolute MS p. 133: (13) motion for leave to amend bill denied, order of rehearing rescinded, decree made absolute MS p. 165. PAPERS IN FILE: (i) Bill of complaint; (2) precipe for writs of subpoena; (3-4) writs of subpoena; (5) precipe for writ of subpoena; (6) writ of subpoena; (7) sheriff's bill of fees; (8) petition to examine witness de bene esse; (9) affidavit to examine witness de bene esse; (io) copy of interroga- tories to Joseph Baron; (ii) answer of William Woodbridge; (12) motion that bill be taken as confessed, etc.; (13) answer of James May; (14 precipe for subpoena; (15) subpoena; (16) precipe for subpoena; (I7) sub- poena; (18) replication; (19) copy of interrogatories to Jacques Peltier; (20) deposition of Joseph Baron; (21) deposition envelope; (22) deposi- tion of Jacques Peltier; (23) deposition envelope; (24-25) subpoenas; (26) answer of Joseph Beaubien; (27) answer of St. Mark Beaubien; (28) motion to dismiss bill; (29-31) subpoenas; (32-41) depositions of James Abbott, Gabriel Richard, John Hunt, Abraham Edwards, James McCloskey, Peter Audrain, John J. Deming, Gabriel Godfroy, Jr., Antoine Baron and Robert Abbott, respectively; (42) master's fee bill; (43) deposition of John J. Deming; (44) claim for attendance as witness; (45) draft of decree; (46) petition for rehearing; (47) receipt for sheriff's fee; (48) receipt for witness fee; (49) motion to amend bill; (50) draft of order denying motion to amend; (51) affidavit of nonperformance of condition in decree; (52) motion that decree be made absolute; (53-54) drafts of decree; (55) fi. fa. for costs; (56) bill of costs; (57) bill of costs and receipts; (58) receipt for costs; (59) bill of costs; (6o) power of CALENDAR OF CASES 289 attorney-Joseph Beaubien to James May; (6i) lease-William Wood- bridge to James May; (62) letter from Joseph Beaubien to James May; 63) translation of letter from Joseph Beaubien to James May. Chancery Case 29 of 1822. Recorded in Chancery 7ournal (printed in Vol. II), *pp. 85-124. .Vote: See case 850, supra. Photostats of memoranda in the handwriting of Judge Sibley sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 5I, pp. 241, 244, =; and 250) have been placed in the file. One of these papers reads in part as follows: "Abbot & May-in equity-Mr Fraser-Urges that the laws of Quebek were in force in this Country and remained in force in this Terry as a Ceded Country until altered or repealed by the U. S. or the Local authy of the Territory-This principle is Contended for upon the laws of the Nations-The Kings Geo. proclamation 1763. Land Laws of U. S. 29. Laws of pertinent of G. B. Pamphlet. Laws operating on the Upper Province. Law read passd JanY 1774-page 4 of I° Vol.-Law of the province passed 1792 pa 4.-Ceded Countries laws remain until 123 & 124.-Jays treaty referred to by Mr Frasers. By an act passed by the Local Gova in 18io the Statutes of Great Britain &* Mr Fraser infers from the fact that the Statutes were previously in force here 2 Massta Reports 534 Parsons Opinion read the ordinance Woodward Code 83 how land may be conveyed That a Parol agree- ment in England will not be decreed, unless the Pltff would sustain damages by a denial- Courts of Equity are bound by the Laws of the Land-Bound by precedents &° Where the agrmt is not certain, specific and material the Court will not decree-The part per- formance as set forth and relied is the act of Bobien in putting Abbot into possession- Abbot claims the benefit of that act as entitling himself to call on Bobiens heirs for a Con- veyance- Mr A sets for[th] as the foundation of his equity, a debt due from Bobien at the time the Contract was made-He does not aver that he released Bobien or offered so to do from sd Debt-In support of the Bill he produces in evidence a debt due from Bobien to Rob' & James Abbot, by note varying in amt from the debt alledged to be due to himself he has not proved nor does he pretend that B. owed him any other debt at the time of the alledged Contract-Bobien is dead and his Heirs have made no answer to the Bill-That the increase in the value, is one reason why the Court will not decree, a specific contract- In cases where the party has laid still and slept for years over his rights-Mr Fraser con- tends that P. Audrains evidence is contrary & contradictory, and that it should be rejected towit in this that in answer to one interrogatory, he states that Bobien said he had put Mr A in possession, and 2dly denies that ever heard Mr B. mention the subject. That a Pltff does not diligently follow up his Contract, and shew himself eager Court will not decree-i Madox pa 17.-13 years & much less time has been Consd an abandonment. That possession must be proved to have been given under the Contract-If in possession before and at the time of the Contract, such possession is not under the Contract-Instance the case holding over upon a lease, after a Contract for a new one-Avers that a notice is never presumed, if denied by the answer, must be proved by Two witnesses-" 290 SUPREME COURT OF MICHIGAN Case 1022 JOHN ARMSTRONG, MARY ARMSTRONG, ELIZABETH MUR- PHY, MATTY McLEAN, AGNES McLEAN, JOHN McLEAN, PRU- DENCE McLEAN, SOLOMON McLEAN, RACHAEL McLEAN, HEIRS OF DAVID McLEAN, DECEASED, AND AGNES McLEAN, WIDOW, versus JOHN MURPHY, CATHERINE WILLETT AND ROBERT SMART Bill in equity to compel conveyance of land JOURNAL ENTRIES (1823-24): 7ournal 3: (z) Motion to quash subpoena *p 438; (2) dismissed *p. 497. PAPERS IN FILE: (I) Bill of complaint; (2) precipe for subpoena; (3) writ of subpoena and return. Chancery Case 38 of I823. Case 1023 JACQUES PROVENGAL, DIT PELTIER, AND JOSEPH CAMPAU versus DAVID C. MeKINSTRY Bill in equity to compel release of pretended interest in land JOURNAL ENTRIES (1823-25): 7ournal 3: (z) Motion to quash subpoena *p. 438. 7ournal 4: (2) Subpoena quashed MS p. 6I. PAPERS IN FILE: (I) Bill of complaint. Chancery Case 40 of 1823. Case 1024. WILLIAM BROOKS, FRIEND PALMER, THOMAS PALMER, JOHN PALMER AND CONRAD TEN EYCK versus JAMES FULTON, JOHN S. ROBY, DAVID C. MeKINSTRY, NANCY McKINSTRY AND JESSE SMITH Bill in equity to foreclose a mortgage JOURNAL ENTRIES (1823-25): fournal3: (I) Motion for notice by publica- tion *p. 438; (2) notice ordered published *p. 452; (3) motion for decree pro confesso *p. 496; (4) referred to master *p. 5o6; (5) sale ordered *p. 512. Chancery 7ournal: (6) Decree *p. 65. Journal 4: (7) Master's report confirmed MS p. 69. CA1LENDAR OF CASES 29I PAPERS IN FILE: (i) Bill of complaint; (2) precipe for subpoena; (3) writ of subpoena and return; (4) writ of subpoena and return; (5) affidavit of non residence; (6) order for publication of notice; (7) affidavit of publica- tion; (8) motion for decree pro confesso; (9) master's report; (io) mas- ter's report; (ii) motion for confirmance of master's report; (12) affidavit of publication and printed copy of notice of sale. Chancery Case 35 of 1823. Note: A notice of the filing of complainants' bill was published in the Detroit Gazette Oct. o10, 1823. A notice of sale was published Oct. 29, 1824. Case 1025 UNITED STATES versus STEPHEN MACK, RICHARD SMYTH, RUFUS HATCH, DAVID C. McKINSTRY AND JOHN S. ROBY Indictment for riot and assault and battery Error to Wayne County Court JOURNAL ENTRIES (1823-26): Journal 3: (i) Prosecuting attorneys ap- pointed *p. 439; (2) rule to assign errors *p. 451; (3) appointment as attorney declined *p. 455; (4) appointment as attorney declined *p. 458. Journal 4t: (5) Judgment reversed MS p. 2 o; (6) continued MS p. I17. PAPERS IN FILE: (I) Precipe for writ of error; (2) petition for writ of error; (3) bail bond in error; (4) writ of error, allowance, return; (5) copy of indictment; (6) assignment of errors; (7) list of 24 names; (8) list of 12 names. 1822-23 Calendar, MS p. I09. Note: The petition for writ of error contains the following reasons: "First-The Grand Jury who found & presented said Indictment, for the offence above mentioned, were not sworn according to Law, before making said presentment, & therefore had no authority to find said bill of Indictment-Second-The Venire issued by the Clerk of said County Court, at the June Term of said Court AD 1822. directing the Sheriff of said County to Summon the persons required by law to serve as Traverse Jurors, bears teste with the name of Henry J. Hunt, as senior associate Justice of said Court, which is contrary to Law, the Hon. John L. Leib, being at the time, of issuing said venire, Chief Justice, of said Court, & presiding Judge of the same, the Statute of the Territory made & adopted, requiring that all process issuing from said Court should bear teste in the name of the Presiding Judge- Third. The persons impanneled, to try, said, Mack, McKinstry, Roby, Hatch & Smyth, & who brought in a verdict against them, were not a Traverse Jury, the oath required by Law never having been administered to them on the trial of said Indictment-Fourth- One of the persons, who was impanneled as a traverse Juror, on the trial of said parties, on the Indictment aforesaid, was not qualified to serve on Said Jury, but was at the time a Subject of the King of Great Britain, & therefore disqualified from serving on said Jury, by the Statute made & adopted of said Territory declaring the qualifications of Grand & Traverse Jurors-" The same errors were assigned in the assignment of errors. 292 SUPREME COURT OF MICHIGAN Case 1026 EZRA YOUNGLOVE TO THE USE OF JOSEPH GOOLEY, ASSIGNEE, versus TIMOTHY YOUNG Action of debt before John McDonell, J. P. Certiorari to John McDonell JOURNAL ENTRIES (1823-28): Journal3: (I) Rule to join in error *p. 440; (2) rule to join in error *p. 479. Journal 4: (3) Death suggested, con- tinued MS p. 21; (4) stricken from docket MS p. 185. PAPERS IN FILE: (1) Affidavit for certiorari, allowance; (2) writ of certiorari and return; (3) assignment of errors; (4) joinder in error. 1822-23 Calendar, MS p. 138. Note: The errors assigned were general, viz., that the declaration was insufficient in law and that judgment was rendered for the plaintiff when it should have been rendered for the defendant. Case l027 EZRA BALDWIN versus JOSEPH CAMPAU AND ROBERT McNIFF Action of trespass on the case before John McDonell, J. P. Certiorari to John McDonell JOURNAL ENTRIES (1823-27): Journal3: (i) Rule to join in error *p. 440; (2) further time to file declarations granted *p. 440. Journal4: (3) Judg- ment reversed MS p. 42; (4) motion to set off judgment MS p. 142; (5) motion to set off judgment overruled MS p. 157. PAPERS IN FILE: (I) Affidavit for certiorari, allowance; (2) writ of certiorari and return; (3) assignment of errors; (4) joinder in error; (5) points in error; (6) affidavit for set off. 1822-23 Calendar, MS p. 139. Recorded in Book B, MS pp. 529-32. Note: Photostats of opinions in the handwriting of Judge Sibley (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 45, p. 112; Vol. 5o, p. 8) have been placed in the file. These opinions will appear in a later publication. CALENDAR OF CASES 293 Case 1028 JOHN McDONELL versus JOHN SCOTT Action of trespass on the case (assumpsit) before James Abbott, J. P. Certiorari to James Abbott Error coram nobis JOURNAL ENTRIES (1823-25): Journal3: (I) Motion to quash writ of error and to set aside supersedeas *p. 442. Journal 4: (2) Motion to quash writ of error and to set aside supersedeas granted MS p. 48. PAPERS IN FILE: (I) Affidavit and precipe for writ of error coram nobis and supersedeas, allowance; (2) writ of error coram nobis; (3) assignment of errors; (4) motion to quash writ of error and to set aside supersedeas; (5) precipe for alias execution for costs. 1822-23 Calendar, MS p. I145. Note: A writ of supersedeas is with the papers in case 758, supra. Papers I, 2 and 3 are printed herein. (Selected Papers, infra, case 1028) Case 1029 THOMAS CALDWELL, ADMINISTRATOR DE BONIS NON OF JAMES LASSELLE, DECEASED, versus FRANCIS LASSELLE JOURNAL ENTRIES (1823): Journal3: (I) Continued *p. 442. PAPERS IN FILE: [None] Note: It is probable that case l036 is this case with a different title. Case 1030 ROBERT SMART versus HENRY HANSON, RICHARD FREELAND, MOSES BIRDSALL AND THOMAS S. JOHNSON . . . . . . . . . . . . . . ,. . . . . Habeas corpus cum causa to Wayne County Court JOURNAL ENTRIES (1823): Journal3: (I) Writ quashed *p. 444. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return. 1822-23 Calendar, MS p. 8. 294 SUPREME COURT OF MICHIGAN Case io3 1 UNITED STATES versus JOHN SARGENT Indictment for forgery and for uttering a forged writing JOURNAL ENTRIES (1823-24): 7ournal/3: (I) Motion to quash indictment *p. 446; (2) nolle prosequi, leave given to withdraw documentary evi- dence *p. 493. PAPERS IN FILE: (I) Indictment. Note: See case 936, supra. The indictment is printed herein. (Selected Papers, infra, case 1031) Case 1032 CONRAD TEN EYCK AND JEREMIAH V. R. TEN EYCK versus JOHN ANDERSON Scire facias against special bail Error to Wayne County Court JOURNAL ENTRIES (1823): Journal3: (I) Discontinued by consent *p. 451. PAPERS IN FILE: (I) Precipe for writ of error and supersedeas; (2) writ of error; (3) transcript of county court record; (4) certificate of bail in error. 1822-23 Calendar, MS p. 1 55. Case 1033 WILLIAM G. TAYLOR versus BENJAMIN DAVIS Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1823-24): Journal3: (I) Referred *p. 455; (2) motion for rule to show cause against entering judgment on award *p. 490; (3) motion to set aside award overruled, rule for judgment *p. 508. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) recog- nizance; (4) bail piece; (5) exception to bail; (6) recognizance; (7) bail piece; (8) declaration; (9) plea of non assumpsit; (1o) memo. re return of notice. z822-23 Calendar, MS p. 142. Recorded in Book B, MS pp. 304-307. Note: Exemplification of record and award of referees are with papers in case 893. With the papers is a precipe filed in open court on October 4, 1823, as follows: "The Clk of the Supreme Court will issue a Summons in favour of the above Plaintiff against the above Defendant in a plea of Debt returnable the third Monday of inst September-the action is Brought on a Bond given to John Bt Cicott Sheriff of the County of Monroe in the sum of CALENDAR OF CASES 295 Three Thousand Dollars-and legally assigned to the Plff Conditioned for the appearing and putting in of good Special Bail by the said Davis in a action in favour of William G Taylor-against said Davis the writ in which action was returnable the third, Monday of inst September & Bail not legally entered." A memo. opinion on overruling motion to set aside award is set forth in note, case 893, supra. Case 1034 ROSWELL W. FITCH versus WILLIAM BIRD Certiorari to William W. Petit, 7. P. JOURNAL ENTRIES (1823-25): Journal 3: (1) Rule to show cause against attachment for failure to make return to certiorari *p. 457; (2) motion to withdraw attorney's name granted *p. 479. Journal 4: (3) Rule for judgment of nonsuit MS p. 21. PAPERS IN FILE: (I) Affidavit and petition for certiorari, allowance; (2) motion by attorney to erase name from docket. 1822-23 Calendar, MS p. 123. Case 1035 AUGUSTUS PORTER, PETER B. PORTER, BENJAMIN BARTON, SHELDON THOMPSON, JACOB TOWNSEND, ALEXANDER BRON- SON AND NATHANIEL SILL, LATE PARTNERS UNDER THE FIRM OF SILL, THOMPSON & CO., versus ATLAS E. LACOCK Action of trespass on the case (assumpsit) Habeas corpus cum causa to Wayne County Court JOURNAL ENTRIES (1823): Journal 3: (I) Dismissed *p. 457- PAPERS IN FILE: (I) Precipe for habeas corpus; (2) declaration. 1822-23 Calendar, MS p. 36. Case 1036 THOMAS CALDWELL, ADMINISTRATOR, versus FRANCIS LASSELLE, ADMINISTRATOR JOURNAL ENTRIES (1823): Journal3: (I) Appeal dismissed *p. 458. PAPERS IN FILE: [None] Note: See case 1o29, supra. 296 SUPREME COURT OF MICHIGAN Case 1037 THOMAS BLAIR versus WILLIAM G. TAYLOR Action of debt on a judgment Habeas corpus cum causa and error to Monroe County Court JOURNAL ENTRIES (1823-25): Journal 3: (1) Motion to quash habeas corpus *p. 462. Journal 4: (2) Remand, procedendo MS p. 29. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) precipe for writ of error. 1822-23 Calendar, MS p. 115. Note: The return to the writ of habeas corpus reads as follows: "The Chief Justice & Associate Justices of the County Court of Monroe County return that Bail was required on the Original writ of Thomas Blair against William G Taylor and no Special Bail has been put in in the County Court and the Said writ is not allowed by a Judge the Sheriff having returned on the original writ 'I have the body in Custody' the Court are therefore of opinion that the within writ of Habeas Corpus ought not to be obeyed it having issued Contrary to the true intent & meaning of the Act Concerning appeals & writs of Errors Certiorari & Habeas Corpus-" The county court file (case 49) contains: (i) precipe; (2) capias and return; (3) security for costs; (4) warrant of attorney; (5) declaration; (6) plea and notice; (7) bill of costs; (8) precipe for ca. sa.; (9) writ of ca. sa. and return. Case I038 LEVI BENTON versus WILLIAM G. TAYLOR AND JAMES GALLAGHER Action of trespass on the case (assumpsit) Habeas corpus cum causa and error to Monroe County Court JOURNAL ENTRIES (1823-25): Journal 3: (I) Motion to quash habeas corpus *p. 462. Journal 4: (2) Rule to strike from docket MS p. 34. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) writ of habeas corpus and return; (4) precipe for writ of error. 1822-23 Calendar, MS p. I49. Note: The return to the first writ of habeas corpus was the same as made in case 1037, supra. The county court file (case 48) contains: (i) precipe; (2) capias and return; (3) war- rant of attorney; (4) warrant of attorney; (5) declaration; (6) plea and notice; (7) verdict; (8) writ of ca. sa. and return; (9) promissory note. CALENDAR OF CASES 297 Case 1039 BENJAMIN DAVIS versus WILLIAM G. TAYLOR, WOLCOTT LAW- RENCE, LOWRIN MARSH AND HEMAN BROWN, JR. Action of trespass on the case (assumpsit) Habeas corpus cum causa and error to Monroe County Court JOURNAL ENTRIES (1823-26): journal 3: (I) Motion to quash habeas corpus *p. 462; (2) motion for commission to take depositions granted *p. 465. Journal 4: (3) Dismissed MS p. 95. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) precipe for writ of error. 122-23 Calendar, MS p. I 13. Note: The return to the writ of habeas corpus was the same as made in case 1037, supra. The county court file (case 47) contains: (I) precipe; (2) capias and return; (3) declaration; 4) plea and notice; (5) verdict; (6) bill of costs; (7) writ of ca. sa. and return; (8) promissory note. Case I04o WILLIAM G. TAYLOR versus BENJAMIN DAVIS Action of trespass on the case (assumpsit) Habeas corpus cum causa and error to Monroe County Court JOURNAL ENTRIES (1823-25): journal 3: (I) Motion to quash habeas corpus *p. 462; (2) motion for commission to take depositions granted *p. 464. Journal 4: (3) Rule to strike from docket MS p. 34. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) wirit of habeas corpus and return; (3) precipe for writ of error; (4) affidavit for commission to take depositions. 1822-z23 Calendar, MS p. 150. Note: The return to the writ of habeas corpus reads as follows: "In the case of William G. Taylor against Benjamin Davis the Chief Justice and Associate Justices of the County Court of Monroe County return that in their opinion the Said William G Taylor Plff issued the within writ of Habeas Corpus to remove his own Case Contrary to Law & the Said writ was issued the 6th day of September 1823 & returnable on the third monday of September next the Court are therefore of opinion that the Said writ of Habeas Corpus ought not to be obeyed." The county court file (case 50) contains: (a) precipe; (2) capias and return; (3) affidavit; (4) plea and notice. 298 SUPREME COURT OF MICHIGAN Case io041i LAURENT DUROCHER, EXECUTOR, ETC., OF MARIE B. LAS- SELLE, DECEASED, versus FRANCIS LASSELLE, SURVIVING PARTNER OF JAMES & FRANCIS LASSELLE Action of debt on a bond JOURNAL ENTRIES (1823): journal 3: (I) Warrant to confess judgment filed, judgment *p. 463. PAPERS IN FILE: (I) Precipe for capias; (2) capias and agreement to ap- pear; (3) notice to sheriff to allow defendant time to find bail; (4) notice to sheriff to liberate defendant; (5) warrant of attorney to confess judg- ment; (6) declaration, oyer, cognovit; (7) precipe for execution ca. sa.; (8) writ of ca. sa. and return; (9) letter from sheriff to clerk; (io) notice of set off of land against judgment, and acceptance of land specified. 1822-23 Calendar,! MS p. 158; I824-36 Calendar, MS p. i. Recorded in Book B, MS pp. 288-90. Note: The defendant, having been committed to prison on a writ of execution, gave notice of his intention to set off to the plaintiff certain lands pursuant to an act to abolish imprisonment for debt in certain cases adopted May 27, 1822. The plaintiff gave notice of his acceptance as follows: "The within notice having been this day Served upon me by John Bt Cicott Esqr Sheriff of the County of Monroe I do hereby declare & Signify my acceptance of the property, estates & Lands, as therein Specified in Conformity to the Statute therein mentioned." A "Form of Excn. to be laid before the Presiding Judge of the Supreme Court I Ith. May 1824" has been printed in Michigan Pioneer and Historical Collections, XXXVI, 479- Case 1042 HENRY HEPBURN AND CHARLES PRINCE versus JAMES BYRNE Action of debt on a bond JOURNAL ENTRIES (1823): 7ournal3: (I) Confession of judgment *p. 467. PAPERS IN FILE: (I) Bail bond; (2) warrant to confess judgment; (3) dec- laration; (4) confession of judgment; (5) precipe for execution fi. fa.; (6) writ of fi. fa. and return; (7) precipe for venditioni exponas; (8) writ of venditioni exponas and return. 1822-23 Calendar, MS p. I157; 1824-36 Calendar, MS p. 2. Recorded in Book B, MS pp. 286-87. CALENDAR OF CASES 299 Case 1043 HEMAN BROWN, JR., versus LOWRIN MARSH Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1824): :Journal 3: (I) Motion to quash writ filed *p. 473; (2) motion for nonsuit *p. 474; (3) writ quashed *p. 478. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) motion to quash writ. 1822-23 Calendar, MS p. 120. Note: The grounds of the motion to quash were: "1It because the Clerk by his indorse- ment on the back of the writ, has not shown any certain sum due or sworn to-2d because the Plff has not filed his declaration. 3d because there is no responsible person residing within the Territory surety for Costs. 4. because there is no attorney actually residing within this Territory entered of record for the Plif. 5. because it does not appear that the person who served the writ is a sheriff deputy, or coroner." Case 1I044 HEMAN BROWN, JR., ASSIGNEE, ETC., versus LOWRIN MARSH, THOMAS WILSON, HARRY CONANT, A. C. CHAPMAN AND SILAS LEWIS Action of debt on .... JOURNAL ENTRIES (1824): Journal3: (I) Writ quashed *p. 475. PAPERS IN FILE: (I) Summons and return; (2) affidavit of Wolcott Law- rence. 1822-23 Calendar, MS p. 159. Note: In the above affidavit affiant stated that the plaintiff was not a resident of the territory. Case 1045 UNITED STATES versus JOHN GARLAND Indictment for assault and battery Removed from Oakland County Court by habeas corpus and certiorari JOURNAL ENTRIES (1824-25): Journal3: (I) Appearance, writs of habeas corpus and certiorari with returns produced in open court *p. 475; (2) plea of not guilty *p. 485; (3) motion for discharge *p. 508; (4) recog- nizance discharged, recognizance taken *p. 514. Journal 4: (5) Com- plainant called MS p. 35; (6) nolle prosequi MS p. 46. 300 SUPREME COURT OF MICHIGAN PAPERS IN FILE: (x) Precipe for habeas corpus and certiorari; (2) writ of habeas corpus and return; (3) writ of certiorari and return; (4) recog- nizance; (5) subpoena. 1824-36 Calendar, MS p. 21. Case 10o46 JOHN McDONELL versus GEORGE SMART AND ROBERT SMART Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1824-25): Journal3: (I) Motion to quash capias over- ruled *p. 475; (2) rule to declare and to plead *p. 485. Journal 4: (3) Continued MS p. 43; (4) discontinued, judgment for costs MS p. 62. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) recog- nizance; (4) bail piece; (5) motion to quash capias; (6) declaration; (7) plea of non assumpsit; (8) discontinuance. 1824-36 Calendar, MS p. 54 Case 1047 JOSIAH BECKLEY versus STEPHEN MACK, RICHARD SMYTH AND DAVID C. McKINSTRY Action of trespass (assault, battery and false imprisonment) JOURNAL ENTRIES (1824-27): Journal3: (I) Motion to appear and go with- out bail overruled *p. 475; (2) recognizance taken *p. 476; (3) rule to declare and to plead *p. 485. Journal 4: (4) Continued MS p. 12; (5) issue ordered sent to circuit court for trial MS p. 44; (6) issue ordered sent to circuit court for trial MS p. I21; (7) stricken from docket MS p. I42. PAPERS IN FILE: (I) Precipe for capias and order for bail; (2) affidavit for bail; (3) capias and return; (4) recognizance; (5) bail piece; (6) declara- tion; (7) stipulation extending time to plead; (8) plea of not guilty; (9-10) precipes for subpoenas; (II) subpoena; (12) precipe for transcript; (13) precipe to clerk of circuit court for subpoena; (I4) circuit court sub- poena; (15) transcript of pleadings and of order sending issues to circuit court for trial; (I6) receipt for transcript; (17) grounds for continuance; (18) affidavit for continuance; (I9) transcript of pleadings and of order sending issues to circuit court for trial; (20) circuit court subpoena; (21) discontinuance. 1824-36 Calendar, MS p. 48. CALENDAR OF CASES 301 Case I048 THOMAS EMERSON versus GABRIEL GODFROY, SR. Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1824): Journal3: (1) Discontinued *p. 476. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return. iS,-36 Calendar, MS p. 45. Case 10o49 THOMAS EMERSON versus JEAN BAPTISTE GODFROY AND PETER GODFROY Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1824): Journal3: (I) Discontinued *p. 476. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return. 1821-36 Calendar, MS p. 46. Case 1050 UNITED STATES versus CONRAD TEN EYCK Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1824-25): 7ournal3: (I) Recognizance taken *p. 476; (2) rule to perfect bail, or procedendo *p. 484; (3) recognizance taken *p. 507. Journal 4: (4) Motion for judgment MS p. 2; (5) judgment MS p. 44. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance; (4) notice of exception to bail; (5) declara- tion; (6) taxed bill of costs; (7) precipe for execution fi. fa.; (8) writ of fi. fa. I824-36 Calendar, MS p. 36. Recorded in Book C, MS pp. 1-5. Note: The execution bears this notation: "This Execution is for Contract made before the first day of January 1828 (Statute p. 245)." 302 SUPREME COURT OF MICHIGAN Case 105 x UNITED STATES versus JAMES BYRNE Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1824-25): Journal 3: (I) Recognizance *p. 476; (2) rule to perfect bail, or procedendo *p. 484; (3) recognizance *p. 5o07. Journal 4: (4) Motion for judgment MS p. 2; (5) judgment MS p. 44. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance; (4) notice of exception to bail; (5) recog- nizance; (6) declaration; (7) taxed bill of costs. 1824-36 Calendar, MS p. 38. Recorded in Book B, MS pp. 544-46. Case 1052 JAMES BOYD, JR. versus GABRIEL GODFROY, JR. Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1824-25): Journal3: (I) Recognizance *p. 476. 7our- nal 4: (2) Motion for default judgment MS p. 2; (3) judgment MS p. 14. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance; (4.) declaration. 182¢-36 Calendar, MS p. 32. Recorded in Book B, MS pp. 484-87. Case 1053 HENRY C. BOSLER AND ANTHONY BEELIN, MERCHANTS TRADING UNDER THE FIRM OF BOSLER & CO., versus ABRAHAM EDWARDS Action of trespass on the case (assumpsit) JOURNAL ENTRIES (I824-25): Journal3: (I) Recognizance *p. 476. Jour- nal 4: (2) Motion for default judgment MS p. 2; (3) judgment MS p. 43. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) recog.- nizance; (4) declaration. r824-36 Calendar, MS p. 50. Recorded in Book B, MS pp. 537-40. CALENDAR OF CASES 303 Case 1o54 OLIVER W. MILLER versus CHARLES MONROE AND AARON CORBETT, LATE MERCHANTS IN TRADE UNDER THE FIRM OF MONROE & CORBETT Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1824-28): Journal3: (t) Recognizance taken *p. 476; (2) rule to declare and to plead *p. 485. Journal 4: (3) Continued MS p. 12; (4) continued MS p. 94; (5) submitted MS p. 186; (6) nonsuit MS p. 197. PAPERS IN FILE: (r) Precipe for capias; (2) affidavit of indebtedness; (3) capias and return; (4) recognizance; (5) justification of bail; (6) declara- tion; (7) plea of non assumpsit; (8) stipulation submitting to court ques- tion of judgment for costs. i824-36 Calendar, MS p. 49. Case 1055 UNITED STATES versus DEGARMO JONES AND CONRAD TEN EYCK Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1824-25): Journal3: (I) Recognizance taken *p. 476; (2) rule to perfect bail, or procedendo *p. 484. Journal 4: (3) Motion for judgment MS p. 2. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance; (4) notice of exception to bail; (5) waiver of justification of bail; (6) declaration; (7) taxed bill of costs; (8) sheriff's bill of fees; (9) memo. of approval of counsel fee. 1824-?6 Calendar, MS p. 35- Case 1056 JOHN JACOB ASTOR, RAMSAY CROOKS AND ROBERT STUART versus LOUIS CAMPAU, JR. Action of trespass on the case ( .. .) JOURNAL ENTRIES (1824-27): Journal3: (I) Motion to quash writ *p. 477; (2) motion to quash writ *p. 485; (3) motion argued *p. 491; (4) motion 304 SUPREME COURT OF MICHIGAN overruled, recognizance *p. 51o. Journal 4: (5) Issue ordered sent to cir. cuit court for trial MS p. 34; (6) issue ordered sent to circuit court for trial MS p. 140. PAPERS IN FILE: [None] .824-36 Calendar, MS p. i I. Note: Photostats of memoranda and of an opinion in the handwriting of Judge Sibley (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 49, pp. 202, 231 and 233) have been placed in the file. The opinion is printed, infra. (Opinions in Unreported Cases) Case 1057 ANTHONY BEELIN AND HENRY C. BOSLER, LATE PARTNERS TRADING UNDER THE FIRM OF BOSLER & CO., versus ABRAHAM EDWARDS Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1824): Journal 3: (I) Judgment, damages to be re- ported by clerk *p. 478; (2) report of damages affirmed, rule for judgment *p. 478. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) recog- nizance; (4) bail piece; (5) declaration; (6) plea of non assumpsit, notice of set off; (7) report of clerk of amount due; (8) calculations; (9) precipe for execution fi. fa.; (io) writ of fi. fa. and return. .822-23 Calendar, MS p. 152. Recorded in Book B, MS pp. 411-15. Case io58 JAMES BOYD, JR. versus JOHN McCOMBS Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1824): Journal3: (I) Relicta cognovit, rule for judg- ment *p. 478. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance and bail piece; (4) exception to bail; (5) waiver of exception to bail; (6) declaration and oyer; (7) plea of non assumpsit; (8) relicta cognovit; (9) precipe for execution fi. fa.; (io) writ of fi. fa. and return; (II) satisfaction piece. 1822-23 Calendar, MS p. I II. Recorded in Book B, MS pp. 425-28. CALENDAR OF CASES 305 Case 1059 UNITED STATES versus JESSE BEVERLY Indictment for assault and battery JOURNAL ENTRIES (1824): Journal3: (i) Indictment presented *p. 479. PAPERS IN FILE: (I) Indictment. Case Io6o UNITED STATES versus SAUNDERS BEVERLY Indictment for assault and battery JOURNAL ENTRIES (1824): Journal3: (i) Indictment presented *p. 479" PAPERS IN FILE: (I) Indictment. Case Io6I CONRAD TEN EYCK AND JEREMIAH V. R. TEN EYCK, TRAD- ING UNDER THE FIRM OF CONRAD TEN EYCK & CO., versus ELISHA HARRINGTON Action of trespass on the case (assumpsit) Removed from Macomb County Court by habeas corpus cum causa JOURNAL ENTRIES (1824-25): Journal3: (i) Recognizance taken *p. 479; (2) rule to declare and to plead *p. 481. Journal 4: (3) Plea withdrawn, nil dicit MS p. 12; (4) motion for execution MS p. 35; (5) motion granted, judgment MS p. 63. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance; (4) bail piece; (5) declaration; (6) plea of non assumpsit; (7) withdrawal of plea; (8) report of clerk of assessment of damages; (9) assignment of note and letter of attorney; (o0) motion for execution; (iI) promissory note; (12-14) receipts. 18214-36 Calendar, MS p. 20. Recorded in Book B, MS pp. 475-77. Note: A memo. in the handwriting of Judge Sibley (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 49, p. 198) reads as follows: "Suit on note of hand -Action Commenced and after commencement of the Action Teneycks assigd to Taylor, with power to use the name of Teneycks for the Collection, but to the use of Taylor- Judgt rendered, on M* of Leib atty for Teneycks after asst-Whitney files a Motion on behalf of Taylor praying an order of Court authorizing Taylor to Control judgt-M* opposed by Leib on authorities 4 T. R. 124-Douglass 104. 217. 238. Salkeld 720 2 Peere Williams 460 1 Tidd 287-Cowens 162." 3o6 SUPREME COURT OF MICHIGAN Case 1062 EDWARD RYAN versus JOSEPH CAMPAU, SURVIVOR OF ANTOINE DEQUINDRE AND FRANgOIS PAUL MALCHER Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1824-25): 7ournal3: (I) Motion for nonsuit *p. 479. Journal 4: (2) Motion for nonsuit MS p. 2; (3) rule for judgment of nonsuit MS p. 24. PAPERS IN FILE: (I) Precipe for summons; (2) summons and return; (3) motion for nonsuit; (4) memo. of motion for nonsuit. 1822-23 Calendar, MS p. 151. Case 1063 JOSEPH CAMPAU versus HENRY BERTHELET Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1824-28): Journal3: (I) Motion for judgment *p. 479. Journal 4: (2) Rule for judgment, jury to assess damages MS p. 95; (3) continued MS p. 140; (4.) continued MS p. 185; (5) judgment confessed, judgment MS p. 230. PAPERS IN FILE: (I) Precipe for capias; (2) capias and return; (3) recog- nizance; (4) bail piece; (5) declaration; (6) motion for default judgment; (7) stipulation for confession of judgment; (8) stipulation for entry of judgment; (9) warrant of attorney to enter satisfaction; (io) promissory note; (11-12) bills of exchange; (13-14) statements of accounts. r822-23 Calendar, MS p. 154. Recorded in Book C, MS pp. 183-86. Case 1064. AUGUSTUS PORTER, PETER B. PORTER, BENJAMIN BARTON, SHELDON THOMPSON, JACOB TOWNSEND, ALEXANDER BRON- SON AND NATHANIEL SILL, LATE PARTNERS TRADING UNDER THE FIRM AND STYLE OF SILL, THOMPSON & CO., versus RALPH LOCKWOOD AND GEORGE LOCKWOOD, NOW OR LATE PARTNERS TRADING UNDER THE FIRM AND STYLE OF RALPH LOCKWOOD & CO. Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1824): Journal : (I) Discontinued *p. 481. CALENDAR OF CASES 307 PAPERS IN FILE: (I) Precipe for process; (2) capias and return; (3) dis- continuance. 1824-36 Calendar, MS p. 3- Case io65 SAMUEL SHERWOOD versus GEORGE A. GAGE, DEGARMO JONES AND THOMAS PALMER Action of debt before Thomas Rowland, 7. P. Certiorari to Thomas Rowland JOURNAL ENTRIES (1824-25): 7ournal3: (I) Rule to assign errors, or judg- ment *p. 481. journal 4: (2) Motion to set aside proceedings MS p. 22; (3) certiorari set aside, judgment for costs MS p. 60. PAPERS IN FILE: (I) Affidavit for certiorari and allowance; (2) writ of cer- tiorari and return; (3) assignment of errors; (4) motion to set aside pro- ceedings; (5) precipe for execution for costs; (6) writ of fi. fa. for costs and return. 1824-36 Calendar, MS p. 4. Note: Paper 4 reads: "Motion by Lamrned that the allowance of the Certiorari and all subsequent proceedings in the case be set aside the allowance having been made on the affidavit by the atty when the parties defendant were not absent and such fact stated in said affidavit." The writ of fieri facias bears this indorsement: "Writ of injunction served upon me wherein I am commanded to return this Extn into the Supreme Court without further proceeding." Case io66 ANDREW WESTBROOK versus SETH TAFT, HENRY SANDARS AND WILLIAM BROWN Action of trespass (de bonis asportatis) Removed from St. Clair County Court by habeas corpus cum causa JOURNAL ENTRIES (1824-25): 7ournal3: (I) Rule to declare and to plead *p. 481. Journal 4: (2) Motion for separate juries overruled, jury im- paneled, witnesses sworn MS p. 9; (3) jury trial MS p. 10; (4.) verdict MS p. I I; (5) attendance of witnesses proved MS p. I I; (6) motion for new trial MS p. 13; (7) motion for new trial overruled MS p. 57; (8) judgment for costs MS p. 60. PAPERS IN FILE: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance and justification of bail; (4) stipulation for time to declare and plead; (5) declaration; (6) copy of execution issued by John K. Smith, J. P.; (7) plea of not guilty; (8-9) pleas of not guilty 308 SUPREME COURT OF MICHIGAN and notice of justification; (io) precipe for subpoena; (i1-12) subpoenas; (13-14) notices of taking depositions; (15-18) depositions of Seth Taft, David Cottrell, Amasa Hemenger and James B. Woolverton, respec- tively; (19) deposition envelope; (20) motion for separate juries; (21) precipe for subpoena; (22) subpoena; (23) precipe for subpoena; (24) ver- dict; (25) reasons for new trial; (26) motion and reasons for new trial. 1824-36 Calendar, MS p. 5. Recorded in Book B, MS pp. 469-74. Note: Photostats of memoranda of authorities and of an opinion in the handwriting of Judge Sibley (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 48, pp. 164, 168, 171; Vol. 49, pp. 243, 250; Vol. 56, p. 183) have been placed in the file. The opinion will be printed in a later publication. See case 996, supra. Case I067 ADNA MERRITT versus THOMAS PALMER AND BECKLEY ROWLEY Action of debt on a recognizance Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1824-29): Journal 3: (I) Appearance, bail waived, rule to declare and to plead *p. 481. Journal 4: (2) Continued MS p. 121; (3) continued MS p. I85; (4) case argued, submitted MS p. 233; (5) damages remitted, judgment for costs MS p. 259- PAPERS IN FILE: (1) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) waiver of bail; (4) declaration; (5) plea of nil debet; (6) transcript of calendar entries of county court; (7) case made for opinion of court; (8) draft of judgment on case made; (9) remittitur of damages and consent to judgment. .824-36 Calendar, MS p. 6. Note: The form of this action in the county court was "trespass on the case." Entry 4 may pertain to case ao68, infra. Also see case 981, supra. Paper 7 reads as follows: "Case made for the opinion of the Court. This action was brought on a Recognizance entered into by said Defendants, upon Condition to prosecute an appeal to Wayne County Court ac- cording to law from a Judgment rendered by James Abbott Esqr a Justice of the peace in and for said County, in favour of said Plff against the said Rowley. The said Judgment was rendered on the 29th day of December 1821, and within forty eight hours thereafter the attorney for the said Rowley offered sureties to the said Justice to prosecute an appeal to the County Court of said County, the said Rowley being absent, but the said Justice decided that the said Defendant Rowley must be present to enter into the recognizance required by law, and that he could not receive the sureties so offered for the purpose afore- said. The said Rowley afterwards, towit, at the September Term of this Court in 182: applied for and obtained a Writ of Mandamus from this Court directed to the said Justice commanding him forthwith to proceed and receive good and sufficient security for the prosecution of an appeal from his said Judgment to said County Court: Whereupon the said Justice did on the x6th day of October, 1822 did take the said recognizance of the said CALENDAR OF CASES 309 Defendant in this Suit for the prosecution of said appeal according to law. The said appeal was afterwards entered at the January term of said County Court in I823, and upon motion of said Plaintiff's Attorney the said appeal was dismissed by said County Court, on the ground that the said appeal was not taken in conformity to the Statute regulating appeals in such cases, inasmuch as two terms of the said County Court had intervened between the time of the rendition of said judgment and the time of entering said appeal. There is an- other suit depending in this Court between the said parties, which is to be determined by the opinion of the Court upon this case-No exception is to be taken by either party on the ground that the pleadings have not been regularly filed. Dated Ocr 25. 1825." Case io68 ADNA MERRITT versus THOMAS PALMER AND BECKLEY ROWLEY Action of debt on a recognizance Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1824-29): 7ournal3: (I) Appearance, bail waived, rule to declare and to plead *p. 481. 7ournal ¢: (2) Continued MS p. 121; (3) continued MS p. 185; (4) damages remitted, judgment for costs MS p. 259. PAPERS IN FILE: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4) plea of nil debet. 1824-36 Calendar, MS p. 7. Note: Papers 3, 7 and 9 of case O1067, supra, relate also to this case. Entry 4 of case 1067 may relate to this case. Case I069 JAMES ABBOTT versus WILLIAM HANDS Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1824-31): 7ournal3: (I) Rule to declare and to plead *p. 481. journal 4: (2) Continued MS p. 12; (3) continued MS p. 94; (4) continued under rule of reference MS p. 230; (5) rule of reference ex- tended MS p. 278; (6) reference MS p. 322; (7) continued MS p. 413; (8) continued MS p. 449. PAPERS IN FILE: (1) Precipe for summons; (2) summons and return; (3) appearance; (4) declaration; (5) plea of non assumpsit and notice of set off; (6) notice of taking deposition; (7) precipe for subpoena; (8) subpoena; (9) deposition of Samuel Abbott; (io) venire facias and return; (I I) stipu- lation for reference; (12) names of referees; (13) stipulation for extension of rule of reference; (14) statement of accounts. 1824-36 Calendar, MS p. 14. 310 SUPREME COURT OF MICHIGAN Case 1070 CONRAD TEN EYCK versus AUGUSTUS B. WOODWARD Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1824): 7ournal3: (i) Motion for bail, or procedendo, granted *p. 482; (2) motion for procedendo granted *p. 493. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return. 1824-36 Calendar, MS p. 8. Case 1071 HENRY DISBROW versus ROBERT GARRATT, LEVI COOK AND RICHARD SMYTH Action of debt before James Abbott, J. P. Certiorari to James Abbott JOURNAL ENTRIES (1824-25): Journal 3: (I) Motion to assign errors, or judgment, granted *p. 482. Journal 4: (2) Judgment reversed MS p. 23. PAPERS IN FILE: (I) Affidavit and petition for certiorari, allowance; (2) writ of certiorari and return; (3) copy of indorsements on J. P. summons; (4) notice to produce execution before J. P.; (5) copy of notice of intention to apply for certiorari; (6) assignment of errors; (7) joinder in error; (8) receipt for costs. 1824-36 Calendar, MS p. 12. Recorded in Book B, MS pp. 496-501. Note: Photostats of a memo. of authorities and of an opinion in the handwriting of Judge Sibley (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 45, p. 99; Vol. 5o, p. i) have been placed in the file. The opinion will appear in a later publica- tion. Case 1072 JAMES CARTRIGHT versus REUBEN HAMILTON Action for value of personal property before John K. Smith, 7. P. Certiorari to John K. Smith JOURNAL ENTRIES (1824-25): Journal 3: (I) Motion to assign errors, or judgment, granted *p. 482. Journal 4: (2) Dismissed MS p. 34. CALENDAR OF CASES 31I PAPERS IN FILE: (1) Affidavit and petition for certiorari, allowance; (2) writ of certiorari and return; (3) assignment of errors; (4.) joinder in error. 1824-36 Calendar, MS p. I6. Note: A photostat of a memo. in the handwriting of Judge Sibley (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 49, p. 198) has been placed in the file. Case 1073 JOSEPH ANDRE, DIT CLARK, versus DAVID C. McKINSTRY Dction of trespass on the case (assumpsit) before Robert Abbott, 7. P. Certiorari to Robert Abbott JOURNAL ENTRIES (i824-27): journal 3: (1) Motion to assign errors, or judgment, granted *p. 482. Journal 4: (2) Continued MS p. 34; (3) continued MS p. I 14; (4) discontinued MS p. 136. PAPERS IN FILE: (I) Affidavit and petition for certiorari, allowance; (2) writ of certiorari and return; (3) assignment of errors; (4) joinder in error; (5) agreement for discontinuance and for payment of costs. 1821-36 Calendar, MS p. 17. Case 1074 ROBERT ABBOTT versus JOSEPH CAMPAU Action (for neglecting to build partition fence) before Thomas Rowland, 7. P. Certiorari to Thomas Rowland JOURNAL ENTRIES (1824-25): journal3: (I) Motion to assign errors, or judgment, granted *p. 482. Journal 4: (2) Judgment affirmed MS p. 41; (3) motion to correct judgment record overruled MS p. 44. PAPERS IN FILE: (1) Affidavit for certiorari, allowance; (2) copy of affi- davit for certiorari; (3) petition for certiorari; (4) writ of certiorari and return; (5) assignment of errors; (6) joinder in error; (7) points of error assigned; (8) copy of points of error assigned; (9) motion to correct judg- ment record. 1824-36 Calendar, MS p. 23. Recorded in Book B, MS pp. 518-20. Note: Photostats of notes and of an opinion in the handwriting of Judge Sibley (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 45, p. 108; Vol. 50, p. 7) have been placed in the file. The opinion will appear in a later publication. 312 SUPREME COURT OF MICHIGIAN Case 1075 ROBERT SMART versus JEREMIAH MOORS Action of trespass on the case before Thomas Rowland, 7. P. Certiorari to Thomas Rowland JOURNAL ENTRIES (1824-25): Journal3: (I) Motion to assign errors, or judgment, granted *p. 482. journal 4: (2) Judgment reversed MS p. 56. PAPERS IN FILE: (i) Petition and affidavit for certiorari, allowance; (2) writ of certiorari and return; (3) assignment of errors; (4) joinder in error; (5) precipe for execution; (6) writ of execution for costs. 1824-36 Calendar, MS p. 22. Recorded in Book C, MS pp. 20-23. Note: Photostats of copies of "Points in Error" and of an opinion in the handwriting of Judge Sibley (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 49, p. 240; Vol. 51, pp. 71, 74) have been placed in the file. The opinion will appear in a later publication. Case i076 PRESIDENT, DIRECTORS AND COMPANY OF THE BANK OF MICHIGAN versus ALEXANDER MACOMB Action of trespass on the case (assumpsit) (attachment) JOURNAL ENTRIES (1824-28): journal 3: (1) Defendant called, default *p. 482; (2) auditors appointed *p. 483. journal 4: (3) Default ordered recorded MS p. 35; (4) powers of auditors extended MS p. 44; (5) de- fendant called, powers of auditors extended MS p. 95; (6) time for auditors' report extended, continued MS p. 136; (7) continued MS p. 185; (8) motion for judgment on auditors' report MS p. 202; (9) judgment MS p. 206. PAPERS IN FILE: (I) Precipe for attachment; (2) affidavit for attachment; (3) writ of attachment and return; (4) sheriff's bill of fees; (5) attachment bond; (6) stipulation; (7) words used in calling defendant to appear; (8) proof of publication of notice of attachment; (9) motion to extend time for auditors' report; (io) transcript of journal entries, oaths of auditors; (Ii) proof of publication of time of hearing; (12) report of auditors; (13) motion for order of sale. .824-36 Calendar, MS p. i8. CALENDAR OF CASES 313 Case 1077 JESSE HOLLY versus RUFUS SETH REED Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1824-35): Journal 3: (1) Rule to bring body of de- fendant *p. 482; (2) recognizance taken, rule to bring body withdrawn *p. 487; (3) rule to declare and to plead *p. 502. Journal 4: (4) Issue ordered sent to circuit court for trial MS p. 94; (5) motion for judgment on circuit court verdict MS p. 140; (6) motion in arrest overruled MS p. 197; (7) continued MS p. 233; (8) motion for new trial argued MS p. 331; (9) argued, submitted MS p. 332; (io) continued for further argu- ment MS p. 351; (II) argued MS p. 416; (12) argued, submitted MS p. 417; (I3) motion for new trial argued, submitted MS p. 5II1; (i4) rule for security for costs MS p. 515. Journal5: (15) Motion to rescind rule for security, for leave to file security, for venire MS p. 46; (i6) leave given to file security MS p. 67; (i7) venire facias ordered issued MS p. 95. PAPERS IN FILE: (i) Precipe for process; (2) capias and return; (3) affidavit of indebtedness; (4) recognizance; (5) declaration; (6) plea of non assump- sit; (7) transcript for circuit court and of circuit court verdict; (8) circuit court verdict; (9) motion in arrest of judgment; (io) reasons in arrest of judgment; (I I) motion and reasons for new trial; (12) subpoena issued by circuit court; (13) stipulation re taking depositions; (14-15) depositions of Giles Sanford and Jacob Houghton, respectively; (16) certificate of clerk of circuit court; (17) certificate of judge of circuit court; (18) affi- davit of H. S. Cole; (19) motion for security for costs; (20) affidavit for security for costs; (21) supplemental affidavit of Jacob Houghton; (22) writ of venire facias and return. /824-36 Calendar, MS p. 19. Note: Photostats of five briefs on motion for new trial and a memo. opinion in the hand- writing of Judge Sibley (Burton Historical Collection, Public Library, Detroit, Sibley Papers, Vol. 53, p. 179; Woodbridge Papers, Vol. i 19, folder "Courts") have been placed in the file. This action was commenced in the Supreme Court and was sent to the Wayne Circuit Court where it was tried before Judge Witherell at the December Term, 1826. The motion for new trial was made in the Supreme Court in 1826, and was argued and sub- mitted in 1829. It was argued and submitted in 1830, and again in 1832. A writ of venire facias was issued in I835. According to one of the briefs of the defendant, "The Case was this: On the 31ist Aug. 1815, Holly agreed to purchase of R. & R to sell to H. a farm-price 7.oo000. A written contract was made, whereby R was to convey on the pays of all the purchase money. H. paid down $101o8.57, which was endorsed on the written contract, & the agreement was then, by consent of both parties, left in the hands of a third person. On the 26th Sept. 1815, H. & R. agreed to cancel or rescind the contract, & both signed a paper to that effect, directed to the third person, directing him to destroy the agreement &c. This paper was delivered by R. to H & by H. delivered to the third person. This action 314 SUPREME COURT OF MICHIGAN was brought, to recover back the money thus paid by H. The only evidence in support of the action, was the pay* of the money, which was not controverted by the Deft. All the evidence submitted to the Jury, was contained in two depositions now on file; and the only question is, whether H. was entitled to a return of the sum paid, or whether R. had a right to retain it? On the part of R. many circumstances were proved, by which the Court will be enabled to determine, whether the verdict is supported by the evidence. The Judge who held the trial, has certified that he was dissatisfied with the verdict. Another ground why the verdict should be set aside, in this case, is, that this suit was commenced & issue made up in this Court, & sent to the Circuit, & tried there, before one Judge, in direct contra- vention of the Act of Congress of the 5. Febr 1825, whereby it is enacted, that not less than two of the Judges of the Supreme Court shall sit as a Court to transact the business of the said Court. This Ground was urged in arrest of judgt but the Court overruled the motion in arrest on the ground that the reason assigned was proper only for the setting aside the verdict. It is conceived therefore, that it may be a good reason for a new trial; or for award- ing a venire facias de novo." The memo. opinion reads as follows: "Cole-says that on the rescinding the contract, if the parties said nothing relating to the money advanced, the Law gives it back to the person who paid it---Quere-Houghtons Testimony was admitted to go to the jury and no evidence was introduced tending to impeach his evidence-The jury were therefore bound to consider the testimony to be true-It was not competent for the jury to find the fact submitted to them different from the fact as proved-If so the verdict was against evidence. The contract was rescinded by the parties, while a contract between them to effect that object, and whatever condition was attached to the act of rescinding is binding on the parties and settles the law of the Contract-The re [ .... ] are stated thru Houghton to Holy who it is contended from H testimony, admitted that it was agreed, that as a consideration of rescinding Reed should retain the money-The reply of Holly, that in equity he ought to have back the money advanced or a part thereof has a strong bearing on the case-The answer of Holly to my mind was a full and fair admission of the Contract as stated by Reed-The verdict therefore wrong and agt evidence, and the matter in dispute is of suft value to justify & require new trial." Case 1078 JOHN MELDRUM versus JACOB PEARKEY Action of trespass on the case ( .. .) Certiorari to Wayne County Court JOURNAL ENTRIES (1824): 7ournal3: (I) Dismissed *p. 482. PAPERS IN FILE: (I) Precipe for certiorari; (2) certiorari bond; (3) writ of certiorari and return. 1824-36 Calendar, MS p. 9. Note: The return to the writ of certiorari reads as follows: "We the Chief Justice and Associate Justices of Wayne County Court do Certify unto the Judges of the Supreme Court, that for reasons to us appearing the within writ was not allowed by us. Wherefore we have not the plaints & pleadings before them as within we are commanded." CALENDAR OF CASES 315 Case 1079 WILLIAM W. PETIT versus WILLIAM BREWSTER Action of trespass on the case before James D. Doty, J. P. Petition for writ of supersedeas JOURNAL ENTRIES (1824): Journal.: (I) Dismissed *p. 482. PAPERS IN FILE: (i) Affidavit and petition for supersedeas, allowance. 1824-36 Calendar, MS p. Io. Note: Petitioner stated in his affidavit that an execution had been issued below "altho more than one year & a day had elapsed, & altho no scire facias to revive said judgment was issued or served on the Defendant." The petition was allowed by Judge Witherell. What appears to have been an allowance by Judge Woodward was blotted out. Case o8o JAMES MAY versus SAMUEL STERNS Action of covenant before Thomas Rowland, 7. P. Certiorari to Thomas Rowland JOURNAL ENTRIES (1824-25): Journal 3: (I) Rule to join in error, or judg- ment *p. 483. Journal 4: (2) Judgment reversed MS p. 56. PAPERS IN FILE: (I) Affidavit, petition and precipe for certiorari, allowance; (2) writ of certiorari and return; (3) assignment of errors; (4) joinder in error; (5) points of error; (6) bill of costs; (7-1o) receipts for costs. 1824-36 Calendar, MS p. 24. Recorded in Book C, MS pp. 36-41. Note: The errors assigned were: "i. there is manifest error in this to wit; That the plea and notice thereto annexed, of this defendant, and the matters and things therein contained, are not sufficient in law for the said defendant to maintain his said plea and defence of the said Samuel against the said James-and therefore in that there is manifest error-2. There is also manifest error in this, to wit, That said Justice on the trial of said Cause held said notice to be equivalent to a special plea and permitted the said Samuel under the same to give evidence of an alleged Breach of another covenant in the deed declared on, on the part of the plaintiff, in bar of the said action, tho' the said Samuel had previously recovered damages against the said James for the same identical Breach, & the Judgment awarding said damages was before the Court, in that therefore there was manifest error. 3. There is likewise manifest error in this, towit, That said Justice decided that said Samuel might under said plea and notice of Breaches of Covt on the part of the said James, prove an ex- cuse for non performance of the Covenants declared on and allowed said Samuel to introduce such evidence, whereas the said plea and notice did not apprise the said James that such a defence would be insisted on, and such a defence was no answer to this action, in that therefore there is manifest error. 4. There is also error in this, towit, (further reasons as- signed in said Afidavit) That said Justice allowed the said Samuel under said plea of per- formance and notice to give in Evidence to the Jury that the plaintiff did not furnish the Defendant with a horse and harness to grind bark, and in deciding that it was a Condition 316 SUPREME COURT OF MICHIGAN precedent on the part of the said James to do so, and that his not having done so would be a good bar to this action, whereas the said James was not bound to furnish the said Samuel with a horse or harness, and the matter of said notice did not go to the whole of the con- sideration to the deed declared on in that therefore there was manifest error. 5. There is also error in this, to wit, That the Jury gave their Verdict against law and evidence, inas- much as the plaintiff proved that he had sustained great damage from the Breaches assigned, -that said Verdict was Contrary to the charge of the said Justice; and that the said Verdict should have been for the said James-in that therefore there is Manifest error. 6. There is also error in this, towit, That said Justice rendered Judgt for the said Sam' against the said James in form aforesaid whereas by the law of the land the Judgment ought to have been given for the said James against the said Samuel, in that therefore there is manifest error." A memo. in the handwriting of Judge Sibley (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. o50, p. 7) reads in part as follows: "Statute of Teri 321. under plea of Gent issue to give matters in evidence in Bar under notice-If May was bound to furnish a horse to grind Bark and did not Sterns should have hired and charged May-" See case io8I, infra. Case Io8 x SAMUEL STERNS versus JAMES MAY Action of covenant before Thomas Rowland, J. P. Certiorari to Thomas Rowland JOURNAL ENTRIES (1824-25): Journal3: (1) Rule to join in error, or judg- ment *p. 483. Journal 4: (2) Judgment reversed MS p. 57. PAPERS IN FILE: (I) Affidavit, petition and precipe for certiorari, allowance; (2) writ of certiorari and return; (3) assignment of errors; (4) joinder in error. 1824-36 Calendar, MS p. 25. Recorded in Book C, MS pp. 29-35. Note: Paper 6 of case o8o, supra, relates also to this case. One error assigned was: "There is also error in this, towit, That by the record & proceedings and return of said Justice it appears that the said Justice overruled said Demurer of said James to the Declara- tion and Cause of action of the said Samuel, on the ground that the cause of demurer was matter of fact for the determination of a Jury, and not of law, and that said James could not deprive the said Samuel of a Jury trial by a demurer, whereas the matter demured to was a question of law, arising on the sufficiency of the declaration or cause of action, under the deed declared on, and it was exclusively the duty of said Justice to decide on said de- murer whether said Samuel had assigned a sufficient Breach of any Covenant in said deed, so as to entitle him to recover-in that therefore there is manifest error-" Notes in the handwriting of Judge Sibley (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 5o, p. 7) read as follows: "Position-That the deft. may demur to the Pltffs dec' admitting the facts & putting the Law to the Court. Espe 279. What is husbandlike occupation, under a lease, is matter of Law-286-Breach of Covt demur-what is ass- Williams exd to explain was was meant by the word materials, stated in the ag*--Fletcher- That the jury are Judges of the Law and the facts Espe 2-139." CALENDAR OF CASES 317 Case IO082 WILLIAM BEATTIE versus GEORGE HANSCOM Action of .... before William W. Petit, J. P. Certiorari to William W. Petit JOURNAL ENTRIES (1824-25): Journal3: (I) Motion for rule to make return to certiorari or to show cause, granted *p. 483; (2) motion to quash certiorari *p. 505. Journal y: (3) Certiorari quashed, judgment for costs MS p. 59. PAPERS IN FILE: (I) Affidavit and petition for certiorari, allowance; (2) writ of certiorari; (3) motion for rule to make return to certiorari; (4.) notice of rule to make return; (5) affidavit of service of certiorari; (6) return to certiorari; (7) motion to quash certiorari; (8) assignment of errors, joinder in error. 1824-36 Calendar, MS p. 28. Note: Notes in the handwriting of Judge Sibley (Sibley Papers, Burton Historical Collec- tion, Public Library, Detroit, Vol. 50, p. 2; Vol. 51, p. 84) read as follows: "Mo to quash Certiorari, on the ground that the affidavit was made by Mr Cole the attr and not by the I)eft personally-Authy 6 Johnston 327. That the affidavit made by Mr Cole Atty might have been rendered effectual by a supplemental affidavit, shewing that the deft was absent, sick or disabled, so he could not make the affidavit-Quere if the deft is absent at the trial, how could he make affidavit of the facts that transpired at the trial---' qui facit per alium, tacit per se'-dictum-Writ quashed." "Mo that the judgt of the Magistrate below be affirmed-(OKeef) (A Motion was heretofore made in this case, that the writ of Certiorari be quashed, for that no affidavit was made by the party himself, nor did the att? who made the affidavit, shew any reasons in such affidavit, why the Party Deft did not himself make the affidavit-For such defect, the writ was quashed.)" After the writ of certiorari was quashed the defendant below applied to Judge Sibley for a writ of supersedeas. Judge Sibley's opinion (Sibley Papers, Vol. 58, pp. 174, 176) on denying this petition will appear in a later publication. Case 1083 CONRAD TEN EYCK versus FRANCIS AUDRAIN Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1824-25): 7ournal 3: (1) Rule for bail or procedendo *p. 484. Journal 4: (2) Plea withdrawn, nil dicit MS p. 13. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4) plea of non assumpsit; (5) withdrawal of plea; (6) stipulation for allowance of payments, etc., proved to the satisfaction of the clerk; (7) assessment of damages by the clerk; (8) promissory note; (9) writ of ca. sa. and return. 1824-36 Calendar, MS p. 30. Recorded in Book B, MS pp. 478-80. Note: The writ of ca. sa. is indorsed "This Execution issued on Contract made before the i1 day of January 1828." 318 SUPREME COURT OF MICHIGAN Case 1084 THOMAS EMERSON versus FRANGOIS MOUTON Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1824): 7ournal 3: (I) Rule for bail or procedendo *p. 484; (2) motion for procedendo granted *p. 493- PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) precipe for procedendo. 1824-36 Calendar, MS p. 31. Case Io85 JOHN L. LEIB versus MAURICE MORAN Action of trespass on the case (damages resulting from maintenance of dam) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1824-29): 7ournal 3: (I) Bail waived, rule to declare and plead *p. 484. 7ournal 4: (2) Motion for nonsuit MS p. 2; (3) con- tinued MS p. 136; (4.) submitted MS p. 186; (5) leave given to amend and to plead MS p. 199; (6) motion for remand by procedendo MS p. 207; (7) rule to plead MS p. 222; (8) issue ordered sent to circuit court for trial MS p. 233; (9) judgment for costs MS p. 278; (Io) judgment for costs MS p. 330. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4) demurrer; (5) motion for judgment for want of joinder in demurrer; (6) joinder in demurrer; (7) plea of not guilty and notice of defense; (8) stipulation to send case to circuit court. 1824-36 Calendar, MS p. 33. Case io86 CONRAD TEN EYCK AND JEREMIAH V. R. TEN EYCK versus PETER GODFROY AND GABRIEL GODFROY Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1824-26): 7ournal 3: (I) Rule to show cause against procedendo *p. 484. 7ournal 4: (2) Rule for judgment for costs MS p. 95. CALENDAR OF CASES 319 PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4) demurrer; (5) joinder in demurrer; (6) satisfaction piece; (7) memo. re payment of fees; (8) receipt for attorney's fee; (9) writ of ca. sa. for costs, receipt; (io) memo. re credit for payment of costs. /824-36 Calendar, MS p. 34. Case 1087 MOSES PRICHARD versus HENRY SANDERSON AND AMOS FARRAR Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1824-25): fournal3: (z) Rule for bail or procedendo *p. 484; (2) rule for bail extended, recognizance taken *p. 492. journal ¢: (3) Relicta cognovit, rule for judgment MS p. Io. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) request to alter precipe; (3) writ of habeas corpus and return; (4.) motion for rule to appear; (5) recognizance; (6) declaration; (7) plea of non assumpsit; (8) relicta cognovit; (9) precipe for execution fi. fa.; (io) writ of fi. fa.; (II) precipe for fi. fa.; (12) alias fi. fa. and return. 1824-36 Calendar, MS p. 39. Recorded in Book B, MS pp. 466-68. Case io88 JAMES ALLEN versus DEGARMO JONES Action of trespass (assault and battery) JOURNAL ENTRIES (1824-25): 7ournal3: (I) Rule to declare and to plead *p. 485. Journal 4: (2) Motion for default judgment MS p. 2; (3) issue ordered sent to circuit court for trial MS p. 32. PAPERS IN FILE: (I) Precipe for summons; (2) summons and return; (3) declaration; (4) plea in abatement; (5) precipe for subpoena; (6) sub- poena; (7) motion for judgment for want of plea; (8) plea of not guilty. 1824-36 Calendar, MS p. 42. 320 SUPREME COURT OF MICHIGAN Case 1089 NEHEMIAH H. DENTON AND BENJAMIN SMITH, MERCHANTS TRADING UNDER THE FIRM OF DENTON & SMITH, versus HENRY J. HUNT Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1824): 7ournal3: (I) Narr. and cognovit filed, motion for judgment *p. 485; (2) witness sworn, rule for judgment *p. 512. PAPERS IN FILE: (z) Precipe for entry of amicable suit; (2) declaration; (3) cognovit and promissory note; (4) motion for judgment; (5) precipe for execution fi. fa.; (6) form of execution partly filled in; (7) precipe for fi. fa.; (8) writ of fi. fa. and return; (9) receipt for counsel fee. 1824-36 Calendar, MS p. 56. Recorded in Book B, MS pp. 430-31. Case 1090 MATTHEW IRWIN versus PHILIP L1CUYER Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1824): journal 3: (I) Witness sworn, judgment for damages assessed by clerk ordered entered *p. 486. PAPERS IN FILE: (I) Precipe for capias; (2) capias and acknowledgment of service; (3) recognizance; (4) bail piece; (5) declaration; (6) plea of non assumpsit, notice of demand for bill of particulars; (7) clerk's assess- ment of damages; (8) precipe for execution fi. fa.; (9) writ of fi. fa. and return. 1822-23 Calendar, MS p. 98. Recorded in Book B, MS pp. 395-97. Case Io91 LEVI WASHBURN versus SILAS HALSEY Action of trespass on the case before Taber Willcox, 7. P. Certiorari to Taber Willcox JOURNAL ENTRIES (1824-25): Journal 3: (a) Rule for further return to certiorari *p. 486. Journal 4: (2) Judgment reversed MS p. 36. CALENDAR OF CASES 32 PAPERS IN FILE: (I) Affidavit for certiorari; (2) petition for certiorari, al- lowance; (3) writ of certiorari; (4) affidavit of notice of intention to apply for certiorari; (5) return to certiorari; (6) further return to certiorari; (7) assignment of errors, joinder in error. 1824-36 Calendar, MS p. 27. Recorded in Book B, MS pp. 514-17. Note: Photostats of notes and of an opinion in the handwriting of Judge Sibley (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 50, p. 7; Vol. 56, p. 142) have been placed in the file. The opinion is printed infra. (Opinions in Unreported Cases) Judge Sibley's notes read as follows: "Fletcher-Objected to Jn° Stockton appearing as atty on Two grounds-i t That he had no authority to represent Washburn-2d That he being Clerk of M County and could not act as atty-Jury trial-cause trover for Carpenter Tools-Bill of Sale by Stewart, purporting to be a sale-Bill of sale not proved before Jury- 12 Jurors sworn-defective return alledged-Whereupon the Court order the Justice to make further return to facts stated in the affidavit. Return states that the sd Stockton was objected to-that the Bill of sale was not proved Adjm* 7 days. 6 days allowed by Law- error--2d Clk appeared as atty contrary to Law-3 That no evidence was offered on trial to prove the signature--OKeef to first point-the appearance of the parties at the day of adj* is a waiver of exception-9 Johnston 352-354 7 Johnston 381 Adjournment more than 6 days, cured by the appearance of the deft and making defense." Case 1092 JAMES MAY versus SARAH MACOMB, EXECUTRIX, ET AL. Bill in equity to enjoin execution of judgment JOURNAL ENTRIES (1824-29): Journal3: (I) Motion for leave to amend bill *p. 497; (2) leave given to amend, time given to answer *p. 514. journal 4: (3) Motion to dissolve injunction and to dismiss bill MS p. 73; (4) mo- tion for rule to plead, answer or demur, continued MS p. 73; (5) motion to set exceptions for argument MS p. 9o; (6) continued MS p. 107; (7) motion to dissolve injunction MS p. I I8; (8) injunction dissolved conditionally MS p. 124; (9) referred MS p. 143; (io) rule of reference extended MS p. 215; (II) continued under rule of reference MS p. 233; (I2) abated MS p. 275. PAPERS IN FILE: [None] Chancery Case 41 of 1824. Note: The referees were to report on the "common law" side of the court. See case 966, supra. Photostats of certified copies of the bill of complaint and of the amended bill of complaint, and of a draft or copy of the answer of Sarah Macomb (Woodbridge Papers, Burton Historical Collection, Public Library, Detroit, Vols. 117 and Y 8) have been placed in the file. The judgment involved was rendered in case 796, supra. 322 SUPREME COURT OF MICHIGAN Case 1093 PHINEAS FISK versus JULIUS ELDRED Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1824): Journal3: (I) Judgment *p. 497- PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance; (4) bail piece; (5) declaration; (6) plea of non assumpsit; (7) clerk's assessment of damages; (8) calculations of amount due; (9) receipt for fees; (10) precipe for execution fi. fa.; (II) writ of fi. fa. and return; (12-13) promissory notes. J822-23 Calendar, MS p. 1o4. Recorded in Book B, MS pp. 398-402. Case 10 o94 RICHARD SMYTH versus CHARLOTTE DAVID, EXECUTRIX, ETC., OF MOSES DAVID, DECEASED Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1824): Journal3: (i) Jury trial, verdict *p. 498; (2) rule for judgment *p. 514. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4) plea of non assumpsit, notice of demand for bill of particulars; (5) verdict; (6-7) statements of accounts; (8) af- fidavit of John Smyth. I822-23 Calendar, MS p. 105. Recorded in Book B, MS pp. 420-24. Note: Notes in the handwriting of Judge Sibley (Sibley Papers, Burton Historical Collec. tion, Public Library, Detroit, Vol. 49, p. 239) read as follows: "Smyth vs David-Sibley absent Pltff offered himself to prove the Books to be his, and his original entries-That the entries in the Books are in his proper hand writing and that the entries were made at or about the time the entries were made or purport to be made-He was admitted to prove the above facts, the whole Court assenting to the general principle, as one warranted from the necessity of the Case-The principle has been adopted in Masst and Penns" where it is understood no statute exists-(PS. Sibley and Hunt took no part in this trial, having been of Counsel-) The above opinion does not embrace any other Book than the day Book-Journal and Ledger not embraced-Lamrned suggested that Smyth had Lost his original entries during the war & therefore offered a Book purporting to be a Ledger in the handwriting of James M'Donnell-and proposed to prove by Smyth that such Books were lost and that the sd M*Donnel is now absent from the Country & has been so absent for several years-M* overruled by Judge Witherell & I think Correctly-The fact of Loss, must have been with the knowledge of other persons, from whom the evidence should come CALENDAR OF CASES 323 -as well as the absence of M°Donnel from the Country-The proof of the posting of M*D. would not go to shew the correctness or fairness of the first entries on which the presumption of Delivery of the articles must rest-Phelps evidence referred to by Lamrned in a note 199." Case 1095 THOMAS EMERSON versus CALL McALISTER, CATHARINE McALISTER, STEPHEN MACK, CONRAD TEN EYCK AND CHARLES LARNED Bill in equity to foreclose a mortgage JOURNAL ENTRIES (1824): journal 3: (I) Bill taken as confessed, referred to register *p. 499; (2) sale ordered *p. 512. Chancery Journal: (3) Decree *p. 69. PAPERS IN FILE: (I) Bill of complaint; (2) precipe for subpoena; (3) bond for costs; (4) writ of subpoena and return; (5) motion to take bill as confessed and for reference to register; (6) register's report of amount due; (7) petition by John R. Williams to be made a party; (8) order con- firming register's report; (9) draft of decree; (10o- 2) register's certificates of offer for sale; (13) register's certificate of sale; (14) affidavit of pub- lication of notices of sale; (15) sheriff's bill of fees; (16) taxed bill of costs; (17) register's report; (18) deed of mortgage-John Connelly to Thomas Emerson; (19) deed of mortgage John Connelly to Charles Lamrned; (20) award of referees selected to settle matters in dispute between Mack & Conant and John Connelly; (21) wrapper for notes in matter of Thomas Emerson v. John Connelly. Chancery Case 37 of 18 23. Case 1096 DANIEL LEROY versus LOUIS LEDUC AND CHARLES ROULEAU Action of trespass on the case (assumpsit) before James Abbott, J. P. Appeal to Wayne County Court Error to county court JOURNAL ENTRIES (1824): Journal 3: (1) Rule to assign errors *p. 500oo; (2) judgment *p. 511. PAPERS IN FILE: (I) Writ of error and return; (2) precipe for execution fi. fa.; (3) writ of fi. fa. and return; (4.) precipe for alias fi. fa.; (5) alias fi. fa.; (6) precipe for pluries fi. fa.; (7) pluries fi. fa. and return; (8) second pluries fi. fa. 1824-36 Calendar, MS p. 57. Recorded in Book B, MS pp. 432-'35- 324 SUPREME COURT OF MICHIGAN Case 1097 AUGUSTUS PORTER, PETER B. PORTER, BENJAMIN BARTON, SHELDON THOMPSON, JACOB TOWNSEND, ALEXANDER BRON- SON AND NATHANIEL SILL, LATE PARTNERS UNDER THE FIRM OF SILL, THOMPSON & CO., versus ATLAS E. LACOCK Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1824): Journal : (I) Jury impaneled *p. 5o01; (2) secur- ity for costs given *p. 5oi01; (3) witnesses sworn *p. 501; (4) nonsuit ordered *p. 502. PAPERS IN FILE: (i) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration and plea; (4) precipe for subpoena; (5) sub- poena; (6) precipe for subpoena; (7) subpoena. 1822-23 Calendar, MS p. o102. Recorded in Book B, MS pp. 441-43. Note: Photostats of notes in the handwriting of Judge Sibley (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 49, pp. 219, 227) have been placed in the file. Case 098 ROBERT SMART versus GEORGE JACOB Action of trespass on the case (trover) Removed from Wayne County Court by habeas corpus cum causa JOURNAL ENTRIES (1824-28): Journal 3: (i) Rule to declare and to plead *p. 502. Journal 4: (2) Jury impaneled, witnesses sworn MS p. 52; (3) disagreement reported, jury discharged MS p. 53; (4) issue ordered sent to circuit court for trial MS p. 94; (5) order rescinded, continued MS p. o101; (6) jury trial MS p. 141; (7) verdict MS p. 142; (8) motion for substitution as attorney MS p. 177; (9) rule for judgment for costs MS p. I86. PAPERS IN FILE: (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) declaration; (4) plea of not guilty; (5) affidavit for con- tinuance; (6) panel of jurors; (7-8) subpoenas; (9) verdict; (io) motion for new trial; (ii) writ of fi. fa. and return; (12) statement of accounts. 1824-36 Calendar, MS p. 29. Recorded in Book C, MS pp. 137-41. Note: Photostats of notes in the handwriting of Judge Sibley (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol, 51, p. 81) have been placed in the file. CALENDAR OF CASES 325 Case I099 ALEXANDER SHAND AND JOHN SHARP, EXECUTORS, ETC., OF GEORGE SHARP, DECEASED, versus AUGUSTIN GAGNIER, PIERRE GAGNIER, BARTHOLOMIE GAGNIER, LOUIS GAGNIER, LOUIS MOMINIE, MARGARET MOMINIE, JOSETTE JACOB, JOSEPH MOMINIE, CATHARINE MOMINIE, JOSEPH VALLI- QUET, MONIQUE VALLIQUET, PIERRE JOURDAIN AND LAURENT DUROCHER Bill in equity to foreclose a mortgage JOURNAL ENTRIES (1824): Journal/ 3: (i) Subpoena quashed *p. 507. PAPERS IN FILE: (I) Bill of complaint; (2) bond for costs; (3) precipe for subpoena; (4) writ of subpoena and return; (5) motion to quash sub- poena. Chancery Case 44 of 1824. Note: Another suit was commenced in 1825. (See Journal 4, MS pp. 60, 74 and 11i.) The grounds of the motion to quash were: "1i't because, the said Subpoena, was not served on the persons therein named, so many days before the return day mentioned therein as would allow the said Defendants one day (exclusive of Sunday) for every twenty miles of the estimated distance they had to travel from their place of residence, to the Court at which they were commanded to appear-2d because the Sheriff who served said Subpoena did not serve the same as directed by the 6th Section of 'An Act directing the mode of pro- ceeding in Chancery'." Case Ioo ROBERT A. FORSYTH, ADMINISTRATOR, ETC., OF ROBERT A. FORSYTH, DECEASED, versus WILLIAM GILKINSON, ROBERT GILLESPIE AND GEORGE MOFFAT, EXECUTORS, ETC., OF RICHARD PATTINSON, DECEASED, GEORGE JACOB AND JAMES GORDON, AGENTS OF SAID EXECUTORS, STEPHEN MACK, CLAIMANT, AND JAMES WILLIAMS, ABRAHAM C. CANNIFF AND VOLTAIRE SPALDING, TENANTS Action of right JOURNAL ENTRIES (1824-27): Journal 3: (I) Motion for continuance *p. 509. Journal 4: (2) Motion for leave to enter nolle prosequi MS p. 69; (3) continued MS p. 99; (4) nonsuit MS p. 130. 326 SUPREME COURT OF MICHIGAN PAPERS IN FILE: (I) Precipe for writ of right; (2) summons and return; (3) declaration; (4) motion to quash writ; (5) stipulation re argument of motion to quash; (6) pleas; (7-8) motions for leave to enter nolle prosequi. 1824-36 Calendar, MS p. 43- Note: Papers i, 2, 3, 4 and 6 are printed herein. (Selected Papers, infra, case I ioo) Case iioi JOSEPH BARON ET UX versus ROBERT A. FORSYTH, JOHN PATTERSON, AND CHARLES LABADIE, ALEXIS LABADIE, FRANgOIS LABADY, ANTOINE LABADIE, ARCHANGE JONES, WILLIAM JONES, MONIQUE CADOTTE, FRANgOIS CADOTTE, CECILE LEDUC AND LOUIS LEDUC, HEIRS OF ALEXIS LABADIE, DECEASED Bill in equity to enjoin trespasses, waste, etc. JOURNAL ENTRIES (1824-26): 7ournal3: (I) Motion for decree pro confesso *p. 509. Journal 4.: (2) Motion to take bill as confessed, continued MS p. 72; (3) death suggested, bill dismissed MS p. 105. PAPERS IN FILE: (I) Bill of complaint and two affidavits, allowance of injunction; (2) recognizance; (3) precipe for writ of subpoena and for writ of injunction; (4) writ of injunction and return; (5) writ of subpoena and return. Chancery Case 34 of 1823. CaseI 1102 DAVID E. GREGORY AND PETER BAIN versus JAMES BYRNE Action of debt on a bond JOURNAL ENTRIES (1824): Journal3: (I) Rule for judgment *p. 510. PAPERS IN FILE: (I) Declaration; (2) warrant to confess judgment; (3) cog- novit; (4) precipe for execution fi. fa.; (5) writ of fi. fa. and return; (6) money bond. ,824-36 Calendar, MS p. 6o. Recorded in Book B, MS pp. 428-29. CALENDAR OF CASES 327 Case 1103 JAMES H. LOCKWOOD, JUDGE OF PROBATE OF CRAWFORD COUNTY, FOR THE USE OF ALEXANDER McNAIR, versus LEWIS MUSICK, ADMINISTRATOR, ETC., OF WILFRED OWENS, DE- CEASED, FRANCIS BOUTHILLIER AND MICHAEL BRISBOIS Action of debt on administrator's bond (scirefacias) Error to "the additional Judge for the Michigan Territory, and Judge of our Court, commonly called the 'Circuit Court of the United States, for the County of Crawford' " JOURNAL ENTRIES (1824-28): 7ournal3: (i) Time given to make return to writ of error *p. 511 . Journal 4: (2) Entry of filing of return to writ of error ordered made as of first day of term MS p. 8; (3) continued MS p. 38; (4) continued MS p. 95; (5) stricken from docket MS p. 189; (6) attorney substituted, restored to docket MS p. 190; (7) abated MS p. 234. PAPERS IN FILE: (I) Precipe for writ of error; (2) writ of error and return; (3) motion to restore case to docket. 1824-36 Calendar, MS p. 40. Case I io04 SAMUEL BROOKE versus DAVID C. McKINSTRY, JOHN B. COOK, SARAH COOK AND THOMAS C. WRIGHT Bill in equity to foreclose a mortgage, to enjoin payment of rents and for appointment of receiver JOURNAL ENTRIES (1824-29): Journal3: (I) Motion for receiver overruled *p. 511; (2) publication ordered *p. 513; (3) time given to plead or answer *p. 514. Journal 4: (4) Bill taken as confessed MS p. 59; (5) mo- tion to overrule demurrer, continued MS p. 73; (6) continued MS p. 107; (7) motion for substitution of solicitors MS p. 174; (8) death suggested, continued MS p. 284; (9) administrator substituted as complainant MS p. 303; (o0) settled, leave given to withdraw bill MS p. 318. PAPERS IN FILE: (I) Bill of complaint; (2) petition for injunction; (3) precipe for subpoena; (4.) summons and return; (5) draft of proposal for receiver; (6) notice of motion for appointment of receiver and for injunc- tion, proof of service; (7) affidavit in opposition to appointment of re- ceiver; (8) affidavit of nonresidence; (9) motion for publication of notice; (1o) stipulation for time to plead, answer or demur; ( i) proof of pub- lication of notice; (12) certificate of failure to plead, answer or demur; 328 SUPREME COURT OF MICHIGAN (13) demurrer; (14) motion to take bill as confessed; (is) transcript from "Journal of Governor and Judges sitting as a Land Board"; (i6) diagram of tract of land. Chancery Case 46 of 1824. Note: A notice to nonresident defendants was published in the Detroit Gazette Nov. 12 1824. Notes in the handwriting of Judge Sibley (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol, 49. p. 235) read as follows: "Brooks assignee of Cook & wife vs McKinstry. Bond of McKinstry to Cook & wife to secure an annuity of 2400 dou per annum-pay* half yearly To secure the annuity made a mortgage of real property The Bill charges-the nonpat of the annuity and prays &c. No suggestion that the Property is inadequate to secure the Debt-M° to appoint a receiver of the rents and Profits &c reasons Court has the power-Blac. Corn. i1. 6x.-9--Fonblanc .5-Fonbanc 9 io note-Powers of the Court to appt a receiver 2 Harrison 1o7.-Blake 451-2 Madox 232 is a discretionary power Authorities referred to by Mr Hammons digest-title receiver-at Mr Fletchers- Equity digest-6o4. 654 This is not the case of a common mortgage it is the case of an annuitant who depends on the .... annuity for his support-The Court will make such a decree as shall cover a regular payt in england the annuitant has a right to enter on the lands and distress for the annuity-At Common Law the Complainant has a right to enter and take possession by express agreement of the parties-respondent-Petit-i The notice does not extend to any specified estates or payta 2 No allegation of fraud or insufficiency of the proptY to pay the debt-no affidavit 3d That it is unusual to appt a receiver before an answer-2 Madox 187 There is several cases where the Court will appt a receiver on affidavit-Eden on injunctions 218. read McKinstry affidavit The power of the Court to appoint a receiver is discretionary, and may be granted where it is evident to the Court, that equity demands it to secure the rights of the party-In the case of Idiots and Lunatics, receivers are appointed before Bill filed-In other cases a Bill must be filed praying such apptmt which sometimes is granted before answer is made-It is to be made under notice and on affidavit-If before answer the affidavit must disclose fraud-Maddox 2 vol 232 & 233. In this Case a notice has been given, but no affidavit made-No fraud has been pre- tended or shewn-The motion is resisted by the respondent in the Bill-and insists on his rights-If the annuity annuity had been made dependent on the rents and profits of the mortgaged premises, then there would have been a forceable claim on the Court to protect the rights of the Pltff and would in such a Case, sustain such a motion and on affidavit, and appoint a receiver-But in the present Case, I can discover, no fraud charged by the Bill- nor any other cause sufficient to deviate from what appears settled Law-Eden on in- junctions 218. 2 Madox 232 & 233." Case 1105 JOSEPH BULL versus CHARLES WILLCOX AND EBEN BEACH, UNDER THE FIRM OF WILLCOX & BEACH, AND JOSEPH SPENCER Action of trespass on the case (assumpsit) JOURNAL ENTRIES (1824): 7ournal3: (I) Rule for judgment *p. 512. PAPERS IN FILE: (I) Declaration and plea; (2) relicta cognovit, promissory note; (3) writ of fi. fa. and return; (4) taxed bill of costs. 1824-36 Calendar, MS p. 6i. Recorded in Book B, MS pp. 454-55. CALENDAR OF CASES 329 Case 1o06 UNITED STATES versus JOHN JACKSON JOURNAL ENTRIES (1824): Journal : (I) Rule to bring body, prisoner dis- charged *p. 512. PAPERS IN FILE: [None] Case I1i07 UNITED STATES versus SCHOMAH, AN INDIAN Commitment on charge of murder JOURNAL ENTRIES (1824): Journal3: (I) Rule to bring body, prisoner dis- charged *p. 512. PAPERS IN FILE: (I) Indictment indorsed "This bill not found." Case iio8 THOMAS ROWLAND versus ISAAC VAN CLEEF AND ELIJAH DIMICK Bill in equity to foreclose a mortgage JOURNAL ENTRIES (I1824-26): journal 3: (I) Publication ordered *p. 513. 7ournal 4: (2) Bill taken as confessed, referred to master MS p. 13; (3) sale ordered MS p. 70. Chancery Journal: (4) Decree *p. 76. Journal 4: (5) Motion to revive and continue decree MS p. 9o; (6) decree revived, sale ordered MS p. o109. PAPERS IN FILE: (I) Bill of complaint; (2) precipe for subpoena; (3) writ of subpoena and return; (4) affidavit of nonresidence; (5) draft of order for publication; (6) proof of publication; (7) motion to take bill as confessed; (8) transcript of rule of reference; (9) report of master commissioner; (ro) proof of execution of mortgage; (I I) draft of order of sale; (12) draft of decree; (i3) draft of order of sale; (14) published notice of sale; (15) re- ceipt for proceeds of sale; (16) register's report of sale; (17-18) promissory notes; (19) deed of mortgage. Chancery Case 43 of 18 24. Note: A notice to nonresident defendants was published in the Detroit Gazette Nov. 1i2, 1814. 330 SUPREME COURT OF MICHIGAN Case I109 HENRY HUDSON versus OLIVER W. MILLER, ROBERT SMART, CONRAD TEN EYCK, AUSTIN E. WING AND JAMES FULTON Bill in equity to set aside a conveyance or to impose a trust; to enjoin sale of land; for return of bond and mortgage; for an accounting; to enjoin actions to collect securities, etc. JoURNAL ENTRIES (1824-31): journal 3: (i) Motion to quash writ over- ruled *p. 514; (2) time given to answer *p. 515. Journal4¢: (3) Motion for leave to copy papers granted MS p. I8; (4) motion to take bill as con- fessed MS p. 20; (5) leave given to plead, answer or demur, continued MS p. 73; (6) continued MS p. 107; (7) motion to dismiss MS p. 120; (8) motion for injunction MS p. 127; (9) motion for reference to master MS p. 166; (io) substitution of solicitors MS p. 174; (11) special com- missioner appointed to take testimony MS p. 202; (12) reference to take testimony MS p. 247; (13) motion for injunction argued MS p. 284; (i4) referred to master MS p. 293; (iS) death suggested MS p. 440; (16) bill dismissed MS p. 466. PAPERS IN FILE: (I) Bill of complaint; (2) precipe for subpoena; (3) sum- mons and return; (4) revocation of powers of attorney; (5) motion to quash subpoena; (6) stipulation for time to plead, answer or demur; (7) answer of Smart, Miller and Ten Eyck; (8) answer of James Fulton; (9) replica- tion to answer of Smart, Miller and Ten Eyck; (io) motion for leave to copy papers; (II) motion to take bill as confessed against Wing; (12) an- swer of Wing; (13) motion to dismiss; (I4) affidavit for injunction; (is) motion for injunction; (16) replication to answers of Wing and Fulton; (17) motion for reference to take testimony; (18) stipulation for reference to take testimony; (19) draft of rule of reference; (20) subpoena; (21) interrogatories to Elijah Warner; (22) deposition of Elijah Warner; (23) deposition envelope; (24-28) subpoenas for witnesses to testify be- fore master in chancery; (29) precipe to set case for hearing. Chancery Case 47 of 18 24. Note: The ground of the motion to quash the subpoena was that "the Bill filed in this Case, prays a Writ of injunction to issue to enjoin these defendants, without any affidavit being made of the truth of the allegations in the Sd Bill contained." See case 641, supra. CALENDAR OF CASES 331 Case Ix iIo MARY LOGNON, ADMINISTRATRIX, ETC., OF LOUIS LOGNON, DECEASED, ET AL. versus PETER J. DESNOYERS Bill in equity for specific performance JOURNAL ENTRIES (1824-25): journal 3: (I) Leave given to amend bill, time given to plead, answer or demur *p. 515. journal ¢: (2) Discon- tinued MS p. 73. PAPERS IN FILE: (I) Bill of complaint; (2) precipe for subpoena; (3) writ of subpoena; (4) stipulation for amendment of bill and for time to plead, answer or demur. Chancery Case 39 of 1823.  SUPPLEMENTARY CALENDAR A  CASES A-J--A-28 Cases A-I-A-28 appear in the portion of Supplementary Calendar A previously printed. (Transactions, z8o05-z84, I, 289-300) CASES A-29-A-119 This portion of Supplementary Calendar A contains lists of papers in cases filed within the period of this study (1814-1824), but to which no reference is made in the journals now printed. Case A-29 IN THE MATTER OF WILLIAM McDOWELL SCOTT Motion respecting rejected account PAPERS IN FILE (1814): (i) Statement of account; (2) vouchers. Note: The account was of services as marshal and was indorsed: "Rejected E. Brush Treasurer." The wrapper bears this indorsement: "Motion of Wm M°Scott respecting accts rejected &e filed in court io octb1r 814." Case A-3o UNITED STATES versus JAMES MeCLOSKEY Indictment for assault and battery PAPERS IN FILE (1814): (I) Indictment; (2) capias sur indictment. Case A-3 1 UNITED STATES versus LOUIS CAMPAU Indictment for treason PAPERS IN FILE (1814-15): (1) Indictment; (2) capias sur indictment and return; (3) alias capias and return. Note: Paper I is printed herein. (Selected Papers, infra, case A-31) 335 336 SUPREME COURT OF MICHIGAN Case A-32 UNITED STATES versus NIMROD H. MOORE Indictment for assault and battery PAPERS IN FILE (1814): (i) Indictment. Case A-33 ROBERT SMART AND JAMES ABBOTT versus JAMES W. BRYSON Action of trespass on the case (assumpsit) PAPERS IN FILE (1814): (I) Affidavit and precipe for process; (2) capias. Case A-34 UNITED STATES versus ROBERT H. McNIFF Indictment for assault and battery PAPERS IN FILE (1814-15): (i) Recognizance; (2) alias capias sur indictment and return. Office Docket, MS p. 29, c. 69. Case A-35 FREDERICK FALLEY versus GEORGE W. SELBY Action of trespass on the case (assumpsit) PAPERS IN FILE (1815): (I) Precipe for capias; (2) sworn account; (3) capias and return; (4) bill of costs. Case A-36 JOSEPH LOVELAND versus LOUIS BERNARD, DIT LAJOYE Action of trespass on the case (assumpsit) PAPERS IN FILE (I815): (I) Capias. SUPPLEMENTARY CALENDAR A 337 Case A-37 THOMAS SMITH versus THOMAS WILLETTS Action of covenant PAPERS IN FILE (1815): (i) Precipe for process; (2) capias and return. Office Docket, MS p. 24, c. 53. Case A-38 UNITED STATES versus JEAN BAPTISTE VERNIER, SR. Presentment for ill treating members of family PAPERS IN FILE (1815I): (I) Presentment. Case A-39 ASHER F. COOK versus JAMES WILDS Action of trespass on the case (assumpsit) PAPERS IN FILE (1815): (I) Precipe for capias; (2) capias and return. Case A-4o UNITED STATES versus JAMES MAY AND AUGUSTIN LAGRAVE PAPERS IN FILE (1 815): (1-2) Subpoenas. Note: On October 14, 1815, the Court ordered that "henceforward" separate records and minutes be kept of the transactions of the court sitting as a Circuit and District Court of the United States. (7ournal 2, *p. 490) These transactions are not included in the present study. However, such papers pertaining to cases on the United States side of the court as have been found with the other files of the court are listed in this calendar. 338 SUPREME COURT OF MICHIGAN Case A-4i EPHRAIM PENTLAND, CHARLES HIGGINS AND WILLIAM STEELE versus JOSEPH MASON Action of trespass on the case (trover) PAPERS IN FILE (i815): (1) Precipe for process; (2) affidavit for bail; (3) capias and return. Note: See case A-5o, infra. Case A-42 UNITED STATES versus THREE BARRELS OF JAMAICA SPIRITS Libel to condemn property seized by collector of customs PAPERS IN FILE (1815): (I) Libel. Note: See note, case A-4o, supra. Case A-43 UNITED STATES versus ONE BOX OF TEA AND TWO BARRELS OF JAMAICA SPIRITS, THE PROPERTY OF OLIVER JOHNSTON Libel to condemn property seized by collector of customs PAPERS IN FILE (1815): (I) Libel. Note: See note, case A-4o, supra. Case A-44 UNITED STATES versus ONE BARREL OF JAMAICA SPIRITS, THE PROPERTY OF JOHN WHIPPLE Libel to condemn property seized by collector of customs PAPERS IN FILE (i8i5): (I) Libel. Note: See note, case A-4o, supra. SUPPLEMENTARY CALENDAR A 339 Case A-45 JOHN ANDERSON versus REUBEN LEWIS Action of trespass on the case (assumpsit) PAPERS IN FILE (1815): (I) Precipe for process; (2) capias and return. Case A-46 THOMAS DOYLE versus ADAM BRADFORD Action of trespass on the case (assumpsit) PAPERS IN FILE (1815): (I) Capias and return; (2) affidavit of indebtedness. Case A-47 SAMUEL KING versus ADAM BRADFORD AND HARRISON G. ROGERS Action of trespass on the case (assumpsit) PAPERS IN FILE (1816): (I) Precipe for process; (2) capias and return. Case A-48 SOLOMON KINGSBURY versus TRUMAN KILLOGG AND JOEL DUNKS Action of trespass on the case (assumpsit) PAPERS IN FILE (1816): (I) Precipe for process; (2) capias and return. Case A-49 UNITED STATES versus JOSEPH ROBERTJEAN AND JEAN BAPTISTE COCHOIS Action of trespass on the case (trover) PAPERS IN FILE (1816-17): (I) Capias and return; (2) declaration and plea of not guilty; (3) precipe for subpoena; (4) subpoena; (5) precipe for subpoena; (6-7) subpoenas; (8) verdict. Note: See note, case A-4o, supra. 340 SUPREME COURT OF MICHIGAN Case A-5o EPHRAIM PENTLAND, CHARLES HIGGINS AND WILLIAM STEELE, LATE ARMY CONTRACTORS, versus JOSEPH MASON Action of trespass on the case (. . . ) (attachment) PAPERS IN FILE (1816): (I) Precipe for process; (2) affidavit for attach- ment; (3) attachment bond; (4) capias and return; (5) writ of attachment and return. Note: In the precipe the clerk was directed to address his writs "to the sheriff of the County of Wayne, not to the Marshal as heretofore." Case A-5 I REUBEN KELSEY versus JOHN C. SMITH AND STEPHEN SMITH, PARTNERS UNDER THE FIRM OF JOHN C. SMITH, STEPHEN SMITH & CO. Action of trespass on the case (assumpsit) (attachment) PAPERS IN FILE (i816): (1) Precipe for process; (2) precipe for capias; (3) capias and return; (4.) precipe for attachment; (5) affidavit for at- tachment; (6) writ of attachment and return. Case A-52 DAVID STONE AND JOSIAH BELLOWS, JR., SURVIVING PART- NERS OF THE LATE COMPANY OF RICHARD HALL JONES, DAVID STONE AND JOSIAH BELLOWS, JR., LATELY TRADING UNDER THE STYLE OF RICHARD H. JONES & CO., versus GABRIEL GODFROY, JR. Action of trespass on the case (assumpsit) PAPERS IN FILE (i8i6): (I) Capias and return. SUPPLEMENTARY CALENDAR A 1 341 Case A-53 THOMAS BOSTON, SURVIVING PARTNER OF THE LATE FIRM OF GILBERT LILLY AND THOMAS BOSTON TRADING UNDER THE FIRM OF LILLY & BOSTON, versus FRANCOIS LASSELLE, ALIAS FRANCIS LASSELLE, AND FRANCIS LASSELLE, AD- MINISTRATOR, ETC., OF JAMES LASSELLE, DECEASED, MARIE LASSELLE, ALIAS NANETTE LASSELLE, JULIE LASSELLE AND JACQUES LASSELLE, HEIRS OF JAMES LASSELLE, DECEASED Bill in equity for .... PAPERS IN FILE (1816): (1) Precipe for writ of subpoena; (2) writ of sub- poena and return. Case A-54 DANIEL SUTHERLAND, CURATOR TO THE VACANT SUCCES- SION OF PATRICK ROBERTSON, DECEASED, versus FRANCIS LASSELLE AND FRANCIS LASSELLE, ADMINISTRATOR, ETC., OF JAMES LASSELLE, DECEASED, MARIE B. LASSELLE, ALIAS MARIE LOUISE LASSELLE AND MARIE LASSELLE, ALIAS NANETTE LASSELLE, JULIE LASSELLE AND JACQUES LAS- SELLE, HEIRS OF JAMES LASSELLE, DECEASED Bill in equity for . . . . PAPERS IN FILE (1816): (i) Precipe for writ of subpoena; (2) writ of sub- poena and return. Case A-55 DANIEL SUTHERLAND, CURATOR TO THE VACANT SUC- CESSION OF PATRICK ROBERTSON, DECEASED, versus FRANCIS LASSELLE, SURVIVING DEFENDANT OF JAMES AND FRANCIS LASSELLE Scirefacias to revive judgment PAPERS IN FILE (1816): (i) Precipe for scire facias. Note: A writ of scire facias is in the file of case I83. (Transactions, z8os5-1814, I, 162) 342 SUPREME COURT OF MICHIGAN Case A-56 DANIEL SUTHERLAND, CURATOR TO THE VACANT SUCCES- SION OF PATRICK ROBERTSON, DECEASED, versus FRANCIS LASSELLE, SURVIVING DEFENDANT OF JAMES AND FRANCIS LASSELLE Scirefacias to revive judgment PAPERS IN FILE: [None] Note: A precipe for scire facias is with the papers in case A-55, supra. A writ of scire facias is in the file of case 253. (Transactions, 1805-1814, I, 201) Case A-57 DANIEL SUTHERLAND, CURATOR TO THE VACANT SUCCES- SION OF PATRICK ROBERTSON, DECEASED, versus ANTOINE LASSELLE, JR. Scirefacias to revive judgment PAPERS IN FILE (1816): (I) Writ of scire facias and return; (2) form of writ of execution. Note: Papers 6 and 9 of case 548, supra, pertain also to this case. See case 316, Trans- actions, 1805-1814, I, 239. Case A-58 UNITED STATES versus SAMUEL LEEBE Indictment for murder PAPERS IN FILE (1816): (I) Indictment; (2) capias sur indictment and return. Case A-59 UNITED STATES versus LOWIN PARKER Indictment for murder PAPERS IN FILE (i816): (I) Indictment; (2) capias sur indictment and return. SUPPLEMENTARY CALENDAR A 343 Case A-6o UNITED STATES versus THREE CASKS OF BRANDY CLAIMED BY LEMUEL FOBES Libel to condemn property seized by collector of customs PAPERS IN FILE (1816): (1-2) Libels; (3) transcript from journal; (4.) claim of Lemuel Fobes; (5) draft of claim of Lemuel Fobes. Note: See note, case A-4o, supra. Case A-6i FULLERTON AND LANGHAM, SURVIVING PARTNERS OF THOMAS STORROW & CO., versus JOHN FINCH PAPERS IN FILE (1816): (i) Security for costs. Case A-62 JEAN BATISTE BERTHELOT, SURVIVING PARTNER OF GIASSON & BERTHELOT, versus JEAN BAPTISTE MAHNOT (MALLIOT) Action of trespass on the case (assumpsit) PAPERS IN FILE (i816): (I) Precipe for process; (2) capias and return; (3) bail bond. Office Docket, MS p. 432, c. 4. Note: A copy of the declaration will be found among the papers of Solomon Sibley. (Burton Historical Collection, Public Library, Detroit, Vol. 39, p. 197) Case A-63 GEORGE JACOB versus GEORGE McDOUGALL AND LAURENT DUROCHER Bill in equity for injunction and receiver PAPERS IN FILE (i8i6): (I) Bill of complaint and order for injunction; (2) injunction bond; (3) precipe for subpoena and injunction. 344 SUPREME COURT OF MICHIGAN Case A-64 UNITED STATES versus TWENTY-SEVEN PAIRS OF BLANKETS AND FIVE PAIRS OF PANTALOONS Libel to condemn property seized by collector of customs PAPERS IN FILE (1816-17): (I) Libel and published notice of hearing; (2) commission to take depositions, deposition of Adam D. Stewart. Case A-65 UNITED STATES versus ONE BALE OF MERCHANDISE, TWO TRUNKS AND TWO BOXES CLAIMED BY DAVID C. McKINSTRY Libel to condemn property seized by collector of customs PAPERS IN FILE (1816): (I) Claim of David C. McKinstry, replication; (2) subpoena; (3-9) affidavits of Jesse Haskell, Smith Knapp, Abraham A. Skinner, David Grant, Hannah M. Moriarty, Cassander Frisbee and John F. Lawrance; (io) bond of David C. McKinstry and Oliver W. Miller; ( I) report and manifest of cargo, affidavits. Note: See note, case A-4o, supra. Case A-66 JOEL THURMAN versus JAMES W. BIDDLE Action of trespass (assault and battery) PAPERS IN FILE (1817): (I) Precipe for process; (2) capias and return; (3) satisfaction piece. Case A-67 UNITED STATES versus GEORGE WELCH AND ROBERT SMART Action of debt on a bond PAPERS IN FILE (1817): (I) Capias and return. SUPPLEMENTARY CALENDAR A 345 Case A-68 OLIVER WILLIAMS versus JOHN JOHNSON Action of trespass on the case (trover) (attachment) PAPERS IN FILE (1817): (I) Precipe for capias and attachment; (2) affidavit for attachment. Office Docket, MS p. 45, cases I and 2. Case A-69 FREDERICK LORING versus JOSHUA BARNARD Action of debt on a judgment PAPERS IN FILE (1817): (1) Capias and return. Office Docket, MS p. 47, c. 2. Case A-7o PETER WILLARD versus BENJAMIN STEAD Action of debt on a bond PAPERS IN FILE (1817): (I) Precipe for process; (2) capias and return. Office Docket, MS p. 51I, c. 3.- Case A-7 i UNITED STATES versus FOUR PIECES OF GREY CLOTH, TWO PIECES OF SCARLET CLOTH AND ONE PIECE OF GREEN FLANNEL Libel to condemn property seized by collector of customs PAPERS IN FILE (1817-I8): (1) Libel; (2) precipe for rule to take testimony; (3) commission to take depositions, depositions of Adam D. Stewart and Elisha Warner; (4) published notice of hearing; (5) clerk's memo. re order of court and sale of goods. Note: See note, case A-4o, supra. 346 SUPREME COURT OF MICHIGAN Case A-72 JULIEN BEAULIEU versus JOHN BURN Action of trespass (criminal conversation) PAPERS IN FILE (18 17): (I) Capias and return; (2) affidavit for bail, allowance. Office Docket, MS p. 53, c. 3. Case A-73 UNITED STATES versus A VESSEL CALLED THE "NIGHT HAWK" Libel to condemn property seized by collector of customs PAPERS IN FILE (1817-18): (i) Libel; (2) deposition of Gilbert Knapp; (3) deposition of Daniel Dobbins; (4) transcript of order of sale; (5) clerk's memoranda. Note: See note, case A-4o, supra. A notice of the time and place of trial was printed in the Detroit Gazette Sept. 4, 1818. A notice of sale appeared in the Gazette Oct. 23, 18x8. A photostat of a memo. brief in the handwriting of Solomon Sibley (Sibley Papers, Burton Historical Collection, Public Library, Detroit, Vol. 57, p. 197) has been placed in the file. Case A-74 UNITED STATES versus ONE BARREL OF JAMAICA SPIRITS AND THIRTY-NINE BARRELS OF APPLES Libel to condemn property seized by collector of customs PAPERS IN FILE (1817-18): (I) Libel; (2) commission to take depositions, deposition of Joshua Barnard. Note: See note, case A-4o, supra. A notice of the time and place of trial was printed in the Detroit Gazette Sept. II, 1818. A notice of sale appeared in the Gazette Oct. 23, 18 18. Case A-75 OLIVER W. MILLER, ROBERT SMART AND CONRAD TEN EYCK versus THOMAS GILBERT Action of trespass on the case (assumpsit) PAPERS IN FILE (1818): (I) Precipe for capias; (2) capias and return. Office Docket, MS p. 57, c. 2. SUPPLEMENTARY CALENDAR A d 347 Case A-76 CHARLES C. WILLIAMS AND JACOB MOTTE versus ALFRED CHURCHILL Action of trespass on the case ... .) PAPERS IN FILE: [None] Office Docket, MS p. 64, c. I. Case A-77 JAMES JACKSON EX DEM. JAMES MeMANUS versus JOHN STILES (LYMAN HARVEY, TENANT), STEPHEN MACK AND SHUBAEL CONANT Action of ejectment PAPERS IN FILE (18I8): (I) Affidavit of service of declaration and notice; (2) draft of consent rule. Note: A photostat of a copy of the declaration (Woodbridge Papers, Burton Historical Collection, Public Library, Detroit, Vol. Iio) has been placed in the file. Case A-78 JEAN BAPTISTE DESCHAMPS versus CAPT. GLEASON Habeas corpus .... PAPERS IN FILE: [None] Offce Docket, MS p. 69, c. 50. Case A-79 UNITED STATES versus EBENEZER CHURCH Action of debt for a penalty PAPERS IN FILE (1818): (I) Precipe for process; (2) capias and return. Note: See note, case A-4o, supra. 348 SUPREME COURT OF MICHIGAN Case A-8o UNITED STATES versus WILLIAM DURELL Action of debt for a penalty PAPERS IN FILE (1818): (1-2) Precipes for process. Note: See note, case A-4o, supra. There may have been two actions for similar penalties. Case A-8i RAMSAY CROOKS AND ROBERT STUART, JOINT TRADERS UNDER THE FIRM OF AMERICAN FUR COMPANY, versus ISAAC BURNETT Action of replevin PAPERS IN FILE: [None] Office Docket, MS p. 76, c. 9. Case A-82 ROBERT McQUEEN AND ALEXANDER McMUIR versus SIDNEY DOLE, MAHLON C. TAYLOR, JOSHUA FORMAN AND EBENEZER WILSON, JR. Action of debt on a judgment PAPERS IN FILE (1819): (I) Capias. Office Docket, MS p. 97, c. 47. Case A-83 UNITED STATES versus TWO BALES OF BLANKETS, SHAWLS, ETC., COMMONLY CALLED INDIAN GOODS Libel to condemn property seized by collector of customs PAPERS IN FILE (1819): (I) Certificate of posting notice of trial; (2) clerk's memo. of proceedings; (3) statement of sale at auction. Note: See note, case A-4o, supra. A notice of the time and place of hearing was published in the Detroit Gazette Aug. 27, 1819. A notice of sale appeared Oct. 29, 1819. A file in the record room of the federal courts in Detroit contains: (i) libel; (2) precipe; (3) commission to take evidence; (4) letter from collector at Michilimackinac to U. S. attorney. SUPPLEMENTARY CALENDAR A 349 Case A-84 UNITED STATES versus THE SCHOONER HORNET Libel to condemn property seized by collector of customs PAPERS IN FILE: [None] Note: See note, case A-4o, supra. A certificate of posting notice of trial is with the papers in case A-83, supra. A notice of the time and place of trial was published in the Detroit Gazette Aug. 27, 1819I. A file in the record room of the federal courts in Detroit contains: (I) libel; (2) letter from collector at Detroit to U. S. attorney; (3) evidence; (4) manifest. Case A-85 UNITED STATES versus ONE PIECE AND ONE AND THREE-FOURTHS YARDS OF STROUDS, TWO PAIRS OF BLANKETS, ETC. Libel to condemn property seized by collector of customs PAPERS IN FILE: [None] Note: See note, case A-4o, supra. The following papers concerning this case are with the papers in case A-83, supra: (1) certificate of posting notice of trial; (2) clerk's memo. re continuance; (3) statement of sale at auction. A notice of the time and place of trial was published in the Detroit Gazette Aug. 27, 1819. A notice of sale appeared Oct. 20, 1820. A file in the record room of the federal courts in Detroit contains: (i) libel; (2) commission to take interrogatories; (3) interrogatories. Case A-86 UNITED STATES versus ONE BATEAU, TWENTY BARRELS OF FLOUR AND TWO BARRELS OF WHISKEY Libel to condemn property seized by collector of customs PAPERS IN FILE: [None] Note: See note, case A-4o, supra. A certificate of posting notice of trial is with the papers in case A-83, supra. A notice of the time and place of trial was published in the Detroit Gazette Aug. 27, I819. A file in the record room of the federal courts in Detroit contains 31 papers including the libel. 350 SUPREME COURT OF MICHIGAN Case A-87 SETH BARNEY versus SCHOONER COMMODORE DECATUR Libel for nonpayment of wages PAPERS IN FILE (1819): (I) Libel; (2) summons for Abraham Edwards and Edward Brooks; (3) subpoena. Note: See note, case A-4o, supra. By each of the above writs Edwards and Brooks were required to show cause why the schooner should not be "libelled and sold" for the payment of wages due Seth Barney, late master of said schooner. For a brief discussion of the ad- miralty jurisdiction of the court see Transactions, 1805-1811, I, xlviii. Case A-88 ELIZABETH KING versus JOSEPH KING Petition for divorce PAPERS IN FILE (1819-20): (I) Libel; (2) confession of service and of petitioner's right to a decree; (3) motion to withdraw plea; (4) bill of costs; (5) copy of agreement to dissolve marriage. Case A-89 PIERRE CHENE versus JOHN MELDRUM, ADMINISTRATOR PAPERS IN FILE: [None] Office Docket, MS p. 89, c. 30. Case A-9o DEGARMO JONES FOR THE USE OF ASA SANFORD versus GABRIEL RICHARD Action of trespass on the case (assumpsit) before Thomas Rowland, J. P. Appeal to Wayne County Court Appeal from county court PAPERS IN FILE (1820): (I) Transcript of records of county court. Note: The county court file (case 513) contains a transcript of the J. P. record. SUPPLEMENTARY CALENDAR A 351 Case A-9i DEGARMO JONES FOR THE USE OF WILLIAM LATTIMORE versus GABRIEL RICHARD Action of trespass on the case (assumpsit) before Thomas Rowland, 7. P. Appeal to Wayne County Court Appeal from county court PAPERS IN FILE (1820): (I) Transcript of records of county court; (2) draft of certiorari. Note: The county court file (case 512) contains a transcript of the J. P. record. Case A-92 JOSIAH DOW versus JOHN S. ROBY Action of trespass on the case (assumpsit) PAPERS IN FILE (1820): (I) Precipe for capias; (2) capias. Case 73 of 1820o. Case A-93 UNITED STATES versus ONE PIECE OF YELLOW FLANNEL PAPERS IN FILE (1820): (i) Marshal's return of sale. Note: See note, case A-4o, supra. A notice to show cause against forfeiture was published in the Detroit Gazette June 16, I820. A notice of sale appeared Oct. 20, I820. A file in the record room of the federal courts in Detroit contains: (i) libel; (2) subpoena; (3) printed notice of sale. Case A-94 UNITED STATES versus EIGHT BARRELS OF CIDER Libel to condemn property seized by collector of customs PAPERS IN FILE (1821): (I) Precipe for subpoena. Note: See note, case A-4o, supra. A return of sale by the marshal is with the papers in case A-93, supra. A notice to show cause against forfeiture was published in the Detroit Gazette June 16, 182o. A notice of sale appeared Oct. 20, 1820. A file in the record room of the federal courts in Detroit contains: (;) libel; (2) subpoena; (3) printed notice of sale. 352 SUPREME COURT OF MICHIGAN Case A-95 UNITED STATES versus ONE TIERCE OF CIDER PAPERS IN FILE: [None] Note: See note, case A-4o, supra. A return of sale by the marshal is with the papers in case A-93, supra. A notice to show cause against forfeiture was published in the Detroit Gazette June 16, 1820. A notice of sale appeared Oct. 20, I820. Case A-96 UNITED STATES versus ROBERT SMART Action of debt for a penalty PAPERS IN FILE: [None] Note: See note, case A-4o, supra. A precipe for subpoena is in the file of case A-94, supra. A file in the record room of the federal courts in Detroit contains eleven papers including the declaration. Case A-97 UNITED STATES versus JOHN W. TOMPKINS Action of debt for a penalty PAPERS IN FILE: [None] Note: See note, case A-4o, supra. A precipe for subpoena is in the file of case A-94, supra. A file in the record room of the federal courts in Detroit contains: (1) precipe; (2) capias; (3) declaration; (4) subpoena. Case A-98 UNITED STATES versus PHILLIPS WARREN Action of debt for a penalty PAPERS IN FILE: [None] Note: See note, case A-4o, supra. A precipe for subpoena is in the file of case A-94, supra. A file in the record room of the federal courts in Detroit contains eight papers including the declaration and verdict. SUPPLEMENTARY CALENDAR A 353 Case A-99 UNITED STATES versus WILLIAM L. GILBERT Action of debt for a penalty PAPERS IN FILE: [None] Note: See note, case A-4o, supra. A precipe for subpoena is in the file of case A-94, supra. A file in the record room of the federal courts in Detroit contains four papers including the declaration. Case A-Ioo GABRIEL GODFROY, EXECUTOR, ETC., OF AGATHA POUPARD, versus JACOB VISGER Action of debt on .... PAPERS IN FILE: [None] 182! Calendar, MS p. I04. Case A-ioi UNITED STATES versus GEORGE BOYD Action of trespass on the case (assumpsit) PAPERS IN FILE: [None] Note: See Doty's Reports, infra, *p. I67. Also see note, case A-4o, supra. A file in the record room of the federal courts in Detroit contains thirteen papers including the declara- tion and reasons in arrest. Case A-Io2 DEGARMO JONES versus BENJAMIN WOODWORTH Action of trespass on the case (assumpsit) Removed from Wayne County Court by habeas corpus cum causa PAPERS IN FILE (1821-22): (I) Precipe for habeas corpus; (2) writ of habeas corpus and return; (3) recognizance; (4) bail piece; (5) discontinuance. 1822-23 Calendar, MS p. 2. 354 SUPREME COURT OF MICHIGAN Case A--1o3 WILLIAM MORRIS versus EZRA BALDWIN Action of replevin Habeas corpus cum causa to Macomb County Court PAPERS IN FILE (1822): (I) Precipe for habeas corpus; (2) writ of habeas corpus. 1822-23 Calendar, MS p. 56. Case A- i o4 JAMES BOYD, JR. versus JOSEPH LORANGER Action of debt on a bond PAPERS IN FILE (1822-23): (I) Precipe for capias; (2) capias and return; (3) recognizance; (4) exception to bail; (5) waiver of exception to bail; (6) declaration and oyer; (7) discontinuance. 1822-23 Calendar, MS p. 85. Case A-Io5 JAMES BOYD, JR. versus ZEPHANIAH W. BUNCE Action of debt on a bond PAPERS IN FILE (1822): (i) Precipe for capias; (2) capias and return. r822-2 Calendar, MS p. 65. Case A-xo06 JAMES McCLOSKEY versus ROBERT SMART AND GEORGE SMART Action of trespass on the case (assumpsit) PAPERS IN FILE (1822): (I) Capias and return. 1822-23 Calendar, MS p. 90. SUPPLEMENTARY CALENDAR A 355 Case A-IO7 JAMES ABBOTT versus WILLIAM HANDS Action of trespass on the case (assumpsit) PAPERS IN FILE (1823-24): (I) Precipe for summons; (2) summons; (3) dis- continuance. 1822-23 Calendar, MS p. 144. Case A-Io8 THOMAS EMERSON versus WHITMORE KNAGGS AND WILLIAM G. KNAGGS Action of trespass on the case (assumpsit) PAPERS IN FILE (1823-24): (I) Precipe for entry of amicable suit; (2) recognizance; (3) bail piece; (4) declaration; (5) warrant to confess judg- ment; (6) cognovit; (7) precipe for execution fi. fa. 1822-23 Calendar, MS p. 156. Recorded in Book B, MS pp. 283-85. Case A-109 GEORGE W. HUNGERFORD versus WILLIAM WOODBRIDGE, COLLECTOR OF THE PORT AND DISTRICT OF DETROIT Petition for mandamus PAPERS IN FILE (1823): (I) Affidavit and petition for mandamus, allow- ance; (2) alternative writ of mandamus and return; (3) discontinuance. Note: See note, case A-4o, supra. Case A-iio JUSTIN WORTHINGTON versus WILLIAM FULFORD Action of trespass on the case (on a judgment) PAPERS IN FILE (1824): (I) Precipe for capias; (2) affidavit for special bail; (3) capias; (4) notice of settlement; (5) discontinuance. 356 SUPREME COURT OF MICHIGAN Case A-IIx UNITED STATES versus DEGARMO JONES AND RICHARD SMYTH Habeas corpus cum causa to Wayne County Court PAPERS IN FILE (1824): (i) Precipe for habeas corpus. 1824-36 Calendar, MS p. 37. Case A- 11 2 ROBERT HILL versus JOHN BURNHAM Action of trespass (assault and battery) PAPERS IN FILE (1824): (I) Precipe for process; (2) affidavit for special bail; (3) capias, allowance of bail, return "non est." 1824-36 Calendar, MS p. 41. Case A-1u3 JOHN Y. CEBRA AND THOMAS B. CUMING, MERCHANTS TRADING UNDER THE FIRM OF CEBRA & CUMING, versus CONRAD TEN EYCK AND JEREMIAH V. R. TEN EYCK, MER- CHANTS LATE TRADING UNDER THE FIRM OF CONRAD TEN EYCK & CO. Action of trespass on the case (assumpsit) PAPERS IN FILE (1824-25): (z) Precipe for capias; (2) capias and return; (3) recognizance; (4) bail piece; (5) declaration; (6) discontinuance; (7) sheriff's bill of fees; (8) taxed bill of costs. 1824-36 Calendar, MS p. 44. Case A-uI4 JOHN McDONELL versus ROBERT SMART AND GEORGE SMART Action of trespass on the case (assumpsit) PAPERS IN FILE (1824): (I) Precipe for capias; (2) capias and return; (3) discontinuance. 1824-36 Calendar, MS p. 53. SUPPLEMENTARY CALENDAR A 4 357 Case A-I15 THOMAS EMERSON versus GABRIEL GODFROY Action of trespass on the case (assumpsit) PAPERS IN FILE (1824-25): (1) Precipe for entry of amicable suit; (2) stipulation extending time to plead; (3) discontinuance. 1824-36 Calendar, MS p. 52. Case A-I 6 THOMAS EMERSON versus GABRIEL GODFROY Action of trespass on the case (assumpsit) PAPERS IN FILE (1824-25): (I) Precipe to enter amicable suit; (2) recogni- zance; (3) bail piece; (4) stipulation extending time to plead; (5) dis- continuance. 1821-36 Calendar, MS p. Si. Case A- x u7 SAMUEL H. YALE AND WILLIAM W. YALE versus JOHN ANDERSON Habeas corpus cum causa to Monroe County Court PAPERS IN FILE (1824): (I) Precipe for habeas corpus; (2) letter from at- torney to clerk. 1824-36 Calendar, MS p. 62. Note: The above letter, which was dated Oct. 18, [1824] reads as follows: "Should the Court have settled the practice in relation to the place at which, the Writ of Habeas Corpus, cum causa, shall be returned please alter the Praecipe and direct the writ accordingly. When I left Detroit, the Court had not settled the point, whether a suit could be removed from the County Court in one County to the Supreme Court in another." Case A-uI 8 BENJAMIN DAVIS versus WYMAN A. TOWN Action of trespass on the case ( .. ) Habeas corpus cum causa to Monroe County Court PAPERS IN FILE (1824): (I) Precipe for habeas corpus. 1824-36 Calendar, MS p. 63. 358 SUPREME COURT OF MICHIGdN Case A- i 19 UNITED STATES versus RICHARD SMYTH, JOHN McDONELL AND CONRAD TEN EYCK PAPERS IN FILE [18. .1: (I) Draft of order transferring case to the Circuit Court for the District of Ohio. Note: See note, case A-4o, supra. The above draft reads as follows: "And now it is suggested to the Court here that a majority of the present Members of said Court, when heretofore Attornies & Counsellors therein, had been of Counsel in said case-And where- upon John L. Leib for the Defendant, now moves the Court that the said fact be entered of record in said suit- & being so entered, that an Authenticated copy thereof, as also of all the proceedings in said case be forthwith certified to the Circuit Court of the District of Ohio. Whereupon, the truth of said suggestion appearing to the said Court-& it further appearing in & by the Act of Congress intitled 'An Act passed on the ' that at least two members of said Court shall be present in order that the said Court be competent to decide in the premises-And it further appearing that there is no Circuit Court by law established in & for the District of the Territory of Michigan, & that this Court while exercising District Court powers, has no other jurisdiction in matters of this nature than such as was formerly vested in the District Court in & of the District of Kentucky; & it further appearing that the Circuit Court established in & for the District of Ohio is established in an adjacent State, & is the most convenient Circuit Court at which the sub- ject matter of this suit may be investigated heard & determined-Therefore it is considered by the Court here & so ordered that the said fact be so entered of record & also that the record & all the proceedings in said suit be forthwith certified to the next Circuit Court of the United States to be holden in & for the District of Ohio." This paper is not dated and it is not certain that it belongs to the period covered by this study. SUPPLEMENTARY CALENDAR B  CASES B-I-B-21 Cases B-I-B-21 appear in the portion of Supplementary Calendar B previously printed. (Transactions, 805-18114, I, 303-12) CASES B-22-B-33 This portion of Supplementary Calendar B contains lists of papers in matters heard by one of the judges within the period of this study (1814- 1824). Case B-22 IN THE MATTER OF JAMES FIG, A SOLDIER Habeas corpus ad subjiciendum PAPERS IN FILE (1815): (1) Petition for habeas corpus, allowance; (2) writ of habeas corpus; (3) return; (4) decision. Note: The writ of habeas corpus was directed to the commanding officer of Fort Shelby. The return stated that Fig appeared "on a muster roll as an enlisted soldier enlisted by Cap'. Price." The matter was heard by Woodward, "one of the judges in and over the Territory of Michigan." His decision was as follows: "It appearing by the return that James Fig is of tender years, that is to say between eleven and twelve years of age, and the personal appearance of the said infant before the undersigned now confirming the said fact, and Kitty Ann Cooper, late Kitty Ann Fig, being sworn, having deposed that at the time of the en- listment of the said James Fig his father also named James Fig had departed this life, and that she the said Kitty Ann Cooper was then the only guardian of the said James Fig, being then a widow, and that she did not at any time, either before or after, consent to his said enlistment, but remained ignorant of it for two days, and intending to return to Lexington in Kentucky is desirous of taking her said son with her; and no consent in writing, as re- quired by law, on the part of the parent or guardian of the said James Fig being made to appear, the said parent and guardian positively now swearing that no such consent in writing was ever given by her, or any other consent, it is thereupon considered that he be discharged." 361 362 SUPREME COURT OF MICHIGAN Case B-23 IN THE MATTER OF DAVID LYNN, A SOLDIER Habeas corpus ad subjiciendum PAPERS IN FILE (1817): (I) Affidavit for habeas corpus, allowance. Case B-24 IN THE MATTER OF JESSE BIDDLE, A SOLDIER Habeas corpus ad subjiciendum PAPERS IN FILE (1819): (1) Writ of habeas corpus and return; (2) writ of execution in case of Jonas W. Colburn v. Jesse Biddle issued by John McDonell, J. P.; (3) certificate of enlistment; (4) decision; (5) copy of decision. Note: The writ of habeas corpus was directed to the sheriff of Wayne County. The return states: "The cause of his detention appears to be debt, said Biddle was committed on the 29th October 1818 upon an execution which issued from Justice McDonells office in favor of Jonas W Colburn." The matter was heard by Judge Woodward, whose decision was as follows: "In the case of Jonas W. Colburn against Jesse Biddle it appears that the defendant is a soldier regularly enlisted. He was originally enlisted on the sixth of March 1813, was discharged on that day in 1818, and had in the interval contracted the present debt. He re-enlisted on the 16th of March 1818. The law of the United States is express that he cannot be arrested, or taken in execution, for this debt. Let the prisoner, therefore, be liberated." Case B-25 IN THE MATTER OF ELIZABETH GOSS Habeas corpus ad subjiciendum PAPERS IN FILE: [None] Note: See Doty's Reports, infra, *p. 90. Case B-26 IN THE MATTER OF LAURENT ROLETTE Habeas corpus ad subjiciendum PAPERS IN FILE (1820): (I) Writ of habeas corpus; (2) return; (3) decision. Note: The writ was issued by James Witherell, one of the judges in and over the Territory of Michigan. His decision was as follows: "After a full consideration of the Return to this Writ it is considered that the prisoner be remanded to the custody of John Burnham." See Doty's Reports, infra, *p. 90. This matter grew out of case 759, supra. SUPPLEMENTARY CALENDAR B 363 Case B-27 IN THE MATTER OF HENRY HANSON, HARVEY METCALF AND WILLIAM E. PROBERT Habeas corpus ad subjiciendum PAPERS IN FILE (1821): (I) Petition for habeas corpus, allowance; (2) writ of habeas corpus; (3) return; (4.) precipe for execution and copy of writ of execution issued by John McDonell, J. P., in the case of Moses Birdsall v. Richard Freeland; (5) decision. Note: See Doty's Reports, infra, *p. 117. Case B-28 IN THE MATTER OF WILLIAM JONES Habeas corpus ad subjiciendum PAPERS IN FILE (1821): (I) Writ of habeas corpus; (2) return; (3) decision; (4) recognizance. Note: The matter was heard by Woodward, "One of the Judges of Michigan." His de- cision was as follows: "The prisoner is remanded until he gives security for his good be- havior for a year, himself in four hundred dollars and one or more sureties to the same amount, and then to be discharged." Case B-29 IN THE MATTER OF JOHN F. CARTER Habeas corpus ad subjiciendum PAPERS IN FILE (1821): (I) Writ of habeas corpus. Case B-3o IN THE MATTER OF GEORGE DOUGHTS Habeas corpus ad subjiciendum PAPERS IN FILE (1821-22): (I) Petition for habeas corpus, allowance; (2) writ of habeas corpus; (3) return; (4) recognizance; (5) prisoner dis- charged on recognizance. Note: The matter was heard by Augustus B. Woodward, "One of the Judges of Michigan." This matter arose out of case 724, supra. 364 SUPREME COURT OF MICHIGAN Case B-31 IN THE MATTER OF JAIRUS BALDWIN Habeas corpus ad subjiciendum PAPERS IN FILE (1824): (I) Petition for habeas corpus, allowance, precipe for writ; (2) writ of habeas corpus, return, decision. Note: The matter was heard by John Hunt, "one of the Judges of the Supreme Court of the Territory of Michigan." He held, without giving reasons, that the return was in- sufficient. Case B-32 IN THE MATTER OF JAMES FULTON Habeas corpus ad subjiciendum PAPERS IN FILE (1824): (I) Petition for habeas corpus, allowance; (2) writ of habeas corpus and return; (3) certificate of clerk of county court; (4) decision, opinion. Note: The matter was heard by James Witherell, "Presiding Judge of the Supreme Court." His opinion is printed infra. (Opinions in Unreported Cases) Case B-33 IN THE MATTER OF HORATIO N. STRONG Habeas corpus ad subjiciendum PAPERS IN FILE (1824): (1) Petition for habeas corpus; (2) affidavit in support of petition; (3) precipe for writ; (4) writ of habeas corpus, return, decision. Note: The matter was heard by John Hunt, "one of the Judges of the Sup. Court of the Territory of Michigan." His decision was as follows: "The return in this case is considered insufficient, it appearing that the within named Horatio N. Strong, was at the time of his enlistment, a minor under the age of twenty one years, & the officer enlisting had not at the time of the enlistment, the consent of the Father of the said Strong, who it was proved was living at the time of sd enlistment." REPORTS OF CASES Argued and Determined in the Supreme Court of the Territory of Michigan James Duane Doty Detroit-18 19- [Editor's note: The above appears on the title page of Doty's Reports]  His Honor Augustus B. Woodward was appointed a Judge of the Territory of Michigan, March 2, I805. " " Frederick Bates, D° March 3d 18o05. . .John Griffin, D° March 29, 18o6. " " James Witherell, D° April 23, 18o8. James Duane Doty additional judge- 1823 " Solomon Sibley a Judge in place of J. G. resigned I824 " John Hunt " " in place of A B.W. removed 1824 Henry Chipman" " in place of J. Hunt, decd. 1827 Win. Woodbridge in place of J. Witherell transferred to the office of Secretary of the Territory 1828 Peter Audrain was appointed Clerk of the Supreme Court July 29, 18o5. James Duane Doty was appointed Clerk September 29, 1819. Melvin Dorr was appointed Clerk 1i820. Jonathan Kearsley was appointed Clerk I822. - J. Winder- James Duane Doty Judge - 1823 - E. Brush, Attorney General, from Charles Lamrned Do. from W. Fletcher- 1I826- Solomon Sibley, District Atty of the United States from 18 A. G. Whitney - 1824 - D. Le Roy 1827. [Editor's note: The above appears on a page which follows the title page of Doty's Reports] DOTY'S REPORTS Editor's note: James Duane Doty was clerk of the Supreme Court of the territory of Michigan from September 29, 1819 to June 22, 1820 (Outlines of Judicial System, supra, note 4) On November 23, 1819, the following rule was made: "ORDERED, That it be a rule of the Court; That Reports be constantly kept, by some person, or persons, to be appointed by the Court, of all decisions, adjudications, and opinions, rendered in the Court." (7ournal3, *P* 7) This rule was rescinded April 4, 1821. (Ibid., *p. 121) It nowhere ap- pears that Doty was appointed reporter and this cannot be assumed. It does appear, how- ever, that he prepared reports of several cases while the provision for a reporter was in force. His reports of two of these cases, In re Chittenden and Roby v. Reaume were printed in the Detroit Gazette in 1821 on the following days: March 2, 9, 16 and 3o; April 6, 13, 20 and 27. The two cases were ready for publication more than a year before they were printed. This fact appears from a letter written by Doty to Woodbridge dated January 8, 1820. Doty wrote: "I should now be enabled to make a full report of this case [Roby v. Reaume] -but you know the Printers of the Gazette. I see no means by which I can get it before the public-either that or Chittendens case. Now that they are finished I could wish how- ever that you might see them for your own satisfaction." (Woodbridge Papers, Vol. 14, Burton Historical Collection, Public Library, Detroit) Preceding the first installment printed in the Gazette (March 2, 1821) the following appeared: "The propriety of publish- ing the decisions of the courts of this Territory, upon important cases which come before them, will not be doubted, we believe, by any one who wishes well to this community. This course will tend, manifestly, to the benefit of the people, by rendering the decisions uniform and certain; and hence, may be relied upon in all cases founded upon similar circumstances. Fully impressed with a belief of the usefulness of the object, we are willing to devote a portion of our paper, occasionally, to its furtherance. Mr. Doty having collected and re- ported a few cases, we have obtained permission to publish some from his manuscript." In 1930 the Law Library of the University of Michigan purchased a MS volume entitled "Reports of Cases Argued and Determined in the Supreme Court of the Territory of Mich- igan." The name "James Duane Doty" appears on the title page with the year "1819," but there is no statement that Doty was appointed reporter or that he prepared the reports contained in the volume. It seems certain, however, that this MS volume contains the re- ports commenced by Doty in 1819. Much of the volume is in his handwriting and the re- ports of the first two cases are the same as those published in the Gazette in 1821. [*] In the matter of BENJAMIN CHITTENDEN, in the custody of the Sheriff of the County of Wayne at the Suit of Stephen Mack. I On the Affidavit and Petition of the prisoner, setting forth that he was illegally and unjustly imprisoned, and on motion of his Attorney, a writ of Habeas Corpus issued, on Saturday last, returnable this day at ten of the clock in the forenoon. The return of the Sheriff was in the following words, to wit; "In obedience to the within writ I have the body of the within named Benjamin Chittenden before the Court: and for return say, that the within named Benjamin [*] Chittenden was arrested and committed to the Jail of Wayne County, on the third day of November inst. in pursuance of a Capias issued from the office of the Clerk of the Supreme Court of the Territory of Michigan, dated September twenty first 1819, in which Stephen Mack is plaintiff. The demand endorsed upon the back of said Capias, as sworn to, is $2575.5423 , for which amount bail is required; and for want of bail, the said Chittenden was committed, and for the same cause still re- mains in Custody. Detroit November 9th 1819. (Signed) A. E. Wing Sheriff of Wayne County T.M. [*p. I] September Term, 1819. November 9. An Insolvent Debtor, who has been dis- charged from his debts under the Insolvent Laws of either of the United States, must, [*] p. 2 on application to this Court to be released from arrest in this Territory, produce an exemplification of the Statute under which he was discharged In the mat. of Chittenden Leib for the Prisoner, and Woodbridge, Sibly and Whitney contra. The Counsel for Mack moved the Court to quash the writ in this case; because by the return it was shown he was detained in a civil suit, and in civil cases the writ of Habeas Corpus is not appropriate, and will not re- lieve. [*] Whitney, said he had searched the books, and found but one case [*1 p. 3 touching the point, which is in 6 Cranch 52, where a writ was applied for, and denied; and contended the contrary practice was unheard of in Courts of Justice. Leib; said, in the Courts in which he had practiced, particularly in Penn- sylvania, the instances were frequent where this writ issued in such cases; and relief was always granted on the application. Witherell, judge, was of opinion the motion ought not to be sustained. Griffin, Judge was in favour of the motion. Woodward, Presiding jfudge. "The grand object of the writ of Habeas "Corpus is to ascertain whether the person of the Citizen be lawfully re- "strained. 369 370 SUPREME COURT OF MICHIGAN In the Chi "If this case were likely to turn on the question, whether the writ of "Habeas Corpus, be an appropriate remedy to relieve from imprisonment "in civil cases, I should deem it my duty to bestow on that question a "deligent investigation; and, if compelled to decide in the negative, I must [*] p. 4. "[*] do so; but it would be with reluctance. I regard the writ as a main mat. of "conservative of liberty, and as a remedy capable of great extension; and ttenden "whenever the restraint is unlawful, and no other remedy is known, it "ought to be paramount. Its return cannot be traversed; but collateral "matter may be let in." "In this case I should have preferred that the question, on the operation of a discharge under the insolvent laws of Missouri, should have been raised by a rule on the Plaintiff to show cause why the defendant should not be permitted to appear without bail. This would have been most analogous to the practice of the Courts in England; the use of common bail, and of all fictitious bail, and pledges, having been abolished in this Court. As the party, however, has elected the writ of Habeas Corpus as his remedy; and as it is made peremptorily, a writ of rights; I am not prepared to say that it is not appropriate to Civil Cases." [*] p. s "But as the whole object of the [*] present motion may, on a proper occasion, be obtained, on a decision of the main Question, it is overruled." Leib; now moved, that the "prisoner be discharged from the Custody of the sheriff, by reason of the production of a certificate of having taken the benefit of the Insolvent Laws of the Territory of Missouri; and also of his discharge from imprisonment on his debts, under the same. The Prisoner exhibited to the Court a certificate from the Clerk of the County of St. Louis, of having filed in his office certain papers relative to his insolvency. And it appeared he had obtained the benefit of the act before two Justices of the Peace of that County, but certified by one of them only, "against his Creditors," and of his discharge, under their warrant, from im- prisonment. At that time he was confined in Jail at the suit of several Creditors. Under the signature of the Acting Governor, and the seal of the Territory of Missouri, it was certified that the Clerk and Justices of the Peace were acting and duly Commissioned in their respective capacities [*]1 p. 6 in and for said County, which [*] Certificate bore date October ist 1819 mat. of The Counsel referred to the 4th Art. Sec. I. of the Constitution of the United ttenden States, by which it is declared, that "Full faith and credit shall be given "to the Public Acts, records, and judicial proceedings of every other state." He contended the provision extended to the Territories of the United States; and that these proceedings were well authenticated. It is a prin- ciple of the Laws of nations, and the Continual practice under them, that, from the Comity of nations, force is given to the laws of each respective nation. In the Chi DOTY' S REPORTS 371 A discharge, under the insolvent laws of one State, is considered and allowed good and valid, in any other State; and wherever he may go, such discharge will shield & protect him from arrest on debts which accrued previous to obtaining the same; and on application to Courts of Justice, and exhibiting to them his certificate, they will release from imprisonment. SDallas, 229. 2 Burr. 736. In 2 Strange, 1233, a bankrupt was discharged, and afterwards promised one of his Creditors to pay him his debt, upon which [*] Promise he was sued, [*1 p. 7 by the Creditor. On motion he was discharged without bail, and the Court said "it was still the same old debt." A second arrest will not be sanctioned by Courts, but they will discharge on common bail, where they are convinced the plaintiff is harrassing or rather persecuting the defendant. 2 Wils. 381. In Mahars case, this Court did not hesitate to discharge him from arrest on motion.- Whitney. This question of discharge under the Insolvent laws of a foreign State, could not have been raised by traversing the return to a Writ of Habeas Corpus, by the practice of any American or English Court. But this Court have today decided to the Contrary, and I submit. He divided the Question on the motion before the Court, into three parts, and stated them thus; ist Where both the parties are residents within the Country where the Insolvent law is made, and the Contract is made, and [*] a discharge is [*] p. 8 had under such Insolvent law, it is not necessary in this case to contend In the mat. of whether that discharge would warrant a court in releasing from confine- Chittenden ment, or not. 2nd Where the debt is contracted in one Country, and the remedy is sought in another jurisdiction under which the debtor has obtained his dis- charge, and where both parties are residents; in such instance it may, per- haps, be good. 3r But where the debt is contracted in one Country where both parties reside, and the discharge is obtained in another, in which neither the Cred- itor or debtor are residents; that discharge is no bar to an action by that Creditor, in the Country where the debt was contracted. 2 H. Blk. R. 553. i East 6, I Esp. N. P. pt. 2 p. 86, I Mass. T. R. 198. And if it is no bar to an action, the Court would certainly never release on Habeas Corpus. In this case the debt was contracted in Michigan where both parties were resident; the debtor fled from the Territory; and in another Country, in which neither party resided, obtained [*] the benefit of their Insolvent laws. [*1 p. 9 The debt on which he is now arrested was not inventoried, nor had Mack any notice whatever of his application; and after a few weeks absence, this man returns to this place, discharged from all his debts! 372 SUPREME COURT OF MICHIGAN The whole law of the Country, under which the discharge was obtained, must be set forth. Here it is not done. In Mahar's case, decided this term, it was. The Court will not in either case, but certainly not in the third, discharge on motion; but will put the party to his plea in an action. 2 H. Bl. R. 553, i Dal. R. I88, 366, I Mass, T. R. 191, 8 T. R. 609, i East 12, Note, I Johns. Ca. 133, 2 Caines Ca. o102, Halls Amer. Law Journal, 261. But there are two very doubtful points on the papers as they are shown, Ist The Certificate if valid in a Court in Missouri, is not here. It does not follow the provisions of the statute of that Country. That statute he has [*] p. o not produced. The proceedings do not appear to have been regular [*] under In mat. of the law, being certified by one Justice, and it seems from these very papers Chittenden that two were requisite. - 2d If it should be deemed valid here, it may be impeached for fraud, and set aside. And we not only state this as a legal objection to this motion, which alone would be sufficient, but we do unhesitatingly aver, that there has been gross fraud and collusion in this case. "The ground ought to be perfectly plain where the court are called upon "to interfere in a summary way. If there is the least doubt, the party "must put the matter upon record by pleading." 2 H. Bl. R. 554- But in what manner shall we prove the fraud? The Court will not try the validity of the discharge on affidavit, as to fraud, but compel the party to resort to his action. 3 Johns. Ca. 125, 9 Johns. R. 259. Will this Court then relieve on motion? They certainly will not. [*] p. 1x [*] Woodbridge. On general principles I have two grounds of objection to the present application. First; Insolvent Laws cannot have efficacy beyond the limits of the sov- reignty enacting them. Second; If such effect were given them; the present applicant has ad- duced no competent evidence of his legal discharge. First. Insolvent Laws affect either the contract itself, destroying its obligatory force; or the remedy, which enforces it, or which gives damages for its breach. I care not which alternative is resorted to. If the first; I answer, the Insolvent act, becomes a Bankrupt act; or it impairs the validity of a contract, otherwise than by a general Bankrupt Law. If a Bankrupt act, I object, that the General Government alone is competent to pass it. The States, and the people of the States, by the Constitution, granted, [*] p. 12 assigned, the whole power of passing [*] Bankrupt Laws, to the General In mat. of Government. That which is granted, is not retained; the power must be Chittenden exercised exclusively. If the validity of the contract be impaired by a legis- lative act other than a Statute of Bankruptcy, (which, however, will hardly DOTY'S REPORTS 373 be pretended,) such act, by anticipation, has been rendered null by the constitution. If Insolvent Laws, then, have any force, it must be because they affect the "remedy," by which the courts will give redress for a violated contract, rather than the contract itself. The contract itself does not furnish that remedy; but the laws of that country to whose courts you apply for redress, furnish exclusively the remedy. These I consider sound propositions, to wit; That the laws of that coun- try where a contract was made and where it was intended to be performed, must alone furnish the rule in any doubtful matter, by which that contract is to be construed: And, secondly, it is also equally clear, that the laws of the country to whose courts you [*] apply, must alone give character and [*] p. 13 form to the species of redress you obtain for the violation of the contract, - the lexfori can alone provide the remedy; and you must apply according to the rules of that law. Thus in Ohio in 1813 a judgment was recovered upon a simple contract made in Massachusetts in 1786, which, by the laws of Massachusetts, would have been forever barred, by the Statute of limitations. According to the laws of Connecticut the assignee of a note of hand, cannot, upon the refusal of the maker to pay it, sue at law in his own name; his only relief is in Equity, if he fears to sue in the name of the original payee. But in Pennsylvania the assignee of a note may sue at law in his own name; and for Courts of Equity - they have none. If the assignee of a note made and assigned in Connecticut be sued in Pennsylvania, the assignee can only sue at Law, and in his own name: if the note be made and assigned in Penn- sylvania, and sued in Connecticut, still must the nature of your action be regulated by the lexfori; and if the nature of the action, so [*] also must the [*] p. 14 form of your Execution. Connecticut being a commercial State, subjects In mat. of real estate to be sold on execution for the satisfaction of a debt. Virginia Chittenden being anti-commercial will not admit of a sale of land on Execution; and by her ancient laws, considered, for many purposes, tobacco (which it was her policy to encourage the growth of,) as money. In Connecticut the body of a defendant shall always be released, by turning out property real or personal, and the officer is bound to accept it: Whereas in other of the States, the debtor can never discharge his body by yielding up his property to the officer. If the lex loci contractus were to govern, and the contract were made in Connecticut and sued in Virginia, the body of the defendant taken on a ca. sa. shall be released, by his turning out land, which, according to the Laws of Virginia, could never be sold. Ohio at one time deemed it her policy to [*] exempt the sheep of the de- [*] p. Is fendant, however valuable, from execution. Her object was to encourage wollen manufactures. And in some instances her courts have decided, that 374 SUPREME COURT OF MICHIGAN a mere equitable interest shall be subject to sale on execution upon a judg- ment at law. If a debt were contracted in Ohio, and the debtor was to vest his whole property in merino sheep in Connecticut, and he were sued in Connecticut, he might impose upon the authorities of that State the neces- sity of enforcing the views of Ohio in relation to the policy of encourageing a particular species of manufactures not perhaps for the interest of Connect- icut to encourage. And so all executions are suspended in Ohio, in certain Suits, for one year; must, in simlar cases, execution be likewise suspended in any other State? Indeed, the absurd necessity would be imposed upon all Courts, lawyers, and parties, to learn and know, as well as their own, the laws and customs of every section of the inhabited globe, if such a doctrine were to prevail. But it is believed, both prin- [*] ciple and authority combine in Support of the proposition, that the lex Jori is to govern in whatsoever relates to the form of action and the nature and incidents of execution. The opinion as Stated of Heath, Justice, in the case of Smith and Bucan- non, it is believed is sound law; decisions in New York,® and in Massa- chusetts,x are in conformity with it. The case of Mahar has been referred to. That was a case where both parties to the contract were citizens of New York; the contract was made there-it was to be performed there-it was discharged there, so far as the Insolvent Laws of that State would discharge it. And yet in virtue of the same contract, the same party was afterwards committed [*] p. i6 In the matter of Chittenden ®7 Johns. R Mass. T. R. here. But this case which is now before the court, is the case of a contract made here - to be performed here - and by parties living here. I think the correctness of the decision in that case may be admitted, without at all admitting that a discharge of Chittenden ought now to be awarded. [*] p. 17 [*] Second; But in whatever manner this reasoning may be received, Chittenden has not yet produced any competent evidence of the fact of hav- ing obtained such a discharge as could avail him. Suppose the papers were duly authenticated which he now exhibits, What do they prove? Simply that having been committed to prison for some cause not appearing, he was by two Justices of the peace discharged from that commitment !-And that certain papers, purporting to be "the Insolvent papers," of the applicant, were filed with the Clerk of a County Court. Those papers consist merely of a Statement of the property and effects of the applicant, without showing any act judicial, legislative, or executive, consequent upon such papers, or such filing. But if the papers had exhibited proof of a regular discharge, by com- petent judicial authority, as an Insolvent debtor, the papers should have DOTY'S REPORTS 375 been authenticated according [*] to the Constitution, and Laws of the United [*1 p. i8 States. 2 Vol. U.S.L. 102, 3 ib. 621. In the m The Legislative act, Showing the nature of discharges obtained under it, hitte and the extent of their operation upon all debts &c. should have been Ex- hibited at length; that this Court might see if it comprehended this debt. That Statute should have been proved in the mode pointed out by the Laws referred to. The Judicial acts founded upon that statute, should have been fully set forth, and proved also in the manner prescribed by those laws; for those Laws having defined the particular mode by which this fact should be proved, they can be proved in no other manner. These papers then, not being legally authenticated, are not competent to prove any thing: if they had been legally authenticated, Still the intrinsic nature, or quality, of the evidence being examined, it will not be found that they prove a legal discharge, in virtue of a sufficient [*] Legislative act, of [*1 p. i9 the present applicant from all his debts; nor that they privilege the ap- plicant from arrest in this Territory. Leib, in reply. Witherell, 7udge. "I think the return is sufficient. The applicant should "have produced the statute under which he obtained his certificate. He "has not planted his claim for a discharge on a regular train of authorities." Griffin, 7udge. "The prisoner ought not to be discharged. The papers are "irregular. He should have produced the statute." "Woodward, Presiding Fudge. "The general rule of law is that the best "evidence which the nature of the case admits of is to be produced. It is "also a rule that the laws of foreign countries, being a matter in pais, may "be proved orally. "I am not prepared to say that in these cases, I should reject the printed "Statute book; but the documents exhibited by the defendant [*] not con- [*] p. 20 "taining a particle of matter shewing the nature of his discharge, and the In the m "act of Congress affording a complete mode of exemplifying the statutes o f Chitt "the States and Territories of this Union, I think an exemplification of this "statute might have been easily obtained; and that that, or some other "equivalent evidence of the law, is indispensible. "The Court deem the return to the writ sufficient; and the prisoner is "remanded." [Editor's note: See case 658, Calendar of Cases, supra.] nat. of den. natter enden 376 SUPREME COURT OF MICHIGAN [*] p. 21 [*] JOHN S. ROBY against ALEXIS LUC REAUME. S8 9. Woodbridge, Attorney for the defendant, moved the Court that this case Oar. ,cs 21. be continued to the next Term. The following were the reasons, on which he founded the motion, to wit; First. The attendance of a material witness residing at Mackinac could not be procured, due dilligence having been used to obtain it. The deposition of the Witness had been taken with a view to the trial at a Term prior to this, and filed with the papers in the case. But he contended, that according to the Rules of the Court he was entitled to the personal attendance of a witness at the trial, when the witness at that time is resident within the Territory: That the Rule allowing depositions to be read in evidence ex- [*] p. 22 tended to those cases only, [*] where the witness resided out of the Terri- Roby tory, or was departing from it at the time of taking them; without an V. intention of returning immediately, or at farthest, previous to the next Reaume R em term: And that in no other instance can the deposition of a witness be received. The examination of a Witness before the jury is always to be preferred, and will not lightly be dispensed with by the Court; particularly when, by requiring such personal attendance, they are inforcing one of their rules. Second. The present Jury impannelled and attending upon the Court are not competent to try this case. This Jury was not summoned in obedience to the statute, nor are they jurors contemplated by it. The Statute evidently relates to a jury which shall be summoned for the trial of all issues to a [*] p. 23 certain term; [*] and when all the issues prepared for that Term are tried, otherwise disposed of, the Jury is discharged from farther attendance dur- ing the term. So it has been at this term. The Jury summoned by the Sheriff to the first day of the term, has been discharged; and if parties were not ready with their cases, they cannot now be tried. The object and mean- ing of the statute was then fulfilled, This jury then is unknown to the stat- ute; is it known to the common Law?-This Jury was made up by order of the Court, and summoned without a venire.- As one of the parties in this case we do not consent to be tried by them. Can the Court then compel us to have our case tried by this jury? By the ordinance of 1787, we are entitled to have our case proceed, and to have a jury-according to the common 1*] p. 24 Law. It is essential by the common law [*] that a venire be awarded. A Roby jury cannot be made without such precept. Where is the security to prop- V. erty, to life, and to the liberty of the Citizen, if a Court in its caprice may Reaume. R . ..direct its own juries, for its own purposes, and compel parties to be bound by the verdicts of such juries? The assembling a jury in this manner de- feats the original objects for which the trial by jury was instituted,-is DOT Y'S REPORTS 377 without principle, and without parallel, and forces the Citizen to throw his freedom and personal security into the hands of arbitrary Judges-admit-. ting there is nothing to controul them but their own discretion! If this Court obeys the ordinance, a legal and competent jury cannot be denied us, as the proceedings in our case, must be "according to the course of the [*] common law." [*1 p. 25 Third. But the Defendant is an alien, and by the statute he is entitled to, and does demand, a jury de mediatate linguae. Fourth. The Bill of particulars of the plaintiffs charges against the de- fendant was furnished too late. We did not apprehend a trial at this Term; and it would have been unreasonable to have expected it, after he has had to months to furnish the Bill in, and has only two days since filed it. The nature of his demand is different from what we expected; the bill gives al- most an entire new aspect to the case, and requires another defence from what we anticipated making. The object of a bill of particulars, which is to inform the defendant of the nature and character of the plaintiffs demand for which he is sued, is entirely supersceded, [*] and without any cause [*] p. 26 shown, by driving us to trial on the second day after receiving it. If there Roby was reason and justice in granting the bill, why are we to be deprived of its v. Reaume benefits? Our object was to obtain a knowledge of his demand, by which --- we might shape our defence. The Court then thought it reasonable and just, and do not the same causes continue? If it was necessary then, is it not nec- essary now-is it not in every respect as important? The court must cer- tainly have done injustice to the plaintiff by depriving him of a trial at the last Term; for the same causes which were then deemed important are now considered trivial, and yet in their effects they remain in every respect the same. To injustice (and it is mutual between the parties,) the court, by forcing us to trial, will add inconsistency. An Affidavit was filed stating the absence of a material witness; that due dil- [*] ligence had been used to procure his attendance; and that the ap- [*] p. 27 plication for a continuance was not made for purposes of delay. Per Curiam. The motion for a continuance is over-ruled. But if the defendant wishes to avail himself of a jury de mediatate linguae, it is allowed him by the statute, and we will direct the sheriff to summon such jury. The Sheriff summoned a jury de mediatate linguae in obedience to an order of the Court, and they were called & sworn; but without the consent of the defendant. The writ in this case was tested on the I6th day of April 1816 and made returnable on the third monday of September next thereafter. The declaration, which was filed on the 1i5th day of Septr 1817, was in the following words, to wit; 378 SUPREME COURT OF MICHIGAN [*]1 p. 28 [*] "Michigan Territory. In the Supreme Court, of the Term of Sep- Roby tember, one thousand eight hundred and sixteen. V. John S. Roby complains of Alexis Luc Reaume, in custody &c. of a plea Reaume. R m of the case &c. For that, whereas the said Alexis Luc Reaume on the 15th day of De- cember I814, at Detroit in the Territory of Michigan, made his certain note in writing, commongly called a promissory note, with his proper hand writ- ing thereto subscribed, bearing date the day and year aforesaid, and then and there delivered the said note to said John S. Roby, and and thereby three months from date of sd note, promised to pay the said John, by the name of John S. Roby or his order, Two hundred & thirty six dollars and forty cents, with interest after, meaning after the day limited for payment, For value received. By reason whereof and by force of the Statute in such case made and provided, the said Alexis became liable to pay the said John, [*J p. 29 the said Sum of money in said note mentioned, [*] according to the tenor and effect thereof, and being so liable the said Alexis in consideration there- of, afterwards, to wit, on the same day and year aforesaid, at Detroit afore- said, in the Territory aforesaid undertook and then and there faithfully promised the said John to pay him said sum of money in said note men- tioned according to the tenor and effect thereof. Yet the said Alexis Luc Reaume, not regarding his promise aforesd but intending to damage the said John in this respect, has not paid him the sum of money in sd note mentioned, altho' often requested so to do, to wit, on the day of payment mentioned in said note, and often afterwards, to wit, at Detroit aforesd But hath hitherto refused and still doth refuse to pay the same. And whereas afterwards, towit, on the 16. day of May, 1815, at Detroit aforesd in the Territory aforesd in consideration that the said John S. Roby [*] p. 30 would sell and deliver the said Alexis Luc Reaume, all the goods [*] and Roby merchandize the said John had on hand in store at Detroit on said day, at V. first cost of said goods, adding thereto the costs of transportation of the Reaume. Resume. same, to wit, from Boston in the State of Massachusetts, the place where purchased by sd John, to Detroit, he the said Alexis did then and there undertake, promise and agree, to purchase and receive said goods, and to pay the said John for the same on demand, the price and value of said goods, the amount of purchase to be ascertained by adding to the first cost, the transportation as aforesaid; the payment to be made in manner follow- ing, to wit, Fifteen hundred dollars, on account of the purchase of said goods, to be paid by said Alexis to said John in good American Certificates, called Quarter-master paper, and such as Col. Anthony Butler (then commanding the Post at Detroit) upon inspection and examination, should pronounce [*1 p. 31 good, the said Alexis to procure the same to be examined [*] by said Butler; and the balance of said Sum, over and beyond said Fifteen hundred dollars DOTY'S REPORTS 379 to be paid by said Alexis to said John in money. And the said John avers, that relying on the promise of the said Alexis as aforesd made, and in con- sideration thereof, afterwards, towit, on the same day and year aforesaid, to wit, at Detroit aforesd, he the said John did sell and deliver to sd Alexis, and the said Alexis purchased and received of the said John under, and pursuant to, the stipulations and agreement aforesd divers large quantities of goods and merchandize, to wit, of the value of two thousand, one hundred and Eighty seven dollars and eighty four & 34 cents, being the amount of the first costs of said goods, and the costs and expenses of transport of the same goods aforesd, by said John to the said Alexis as aforesaid of which the said Alexis then and there had notice, and which said goods and merchan- dize so sold and delivered by said John to sd Alexis as aforesd consisted of all the goods and merchandize he the said John had on hand in his said store at Detroit, on the day & year aforesaid. [*] Yet the said Alexis not regarding [*1 p. 32 his agreement, promise and undertaking, so as aforesaid made to said John, Roby but intending to deceive the said John, has never paid and satisfied the said v. Reaume. John the sum of money last mentioned, by the delivery of quarter-master---- paper, inspected and approved of as aforesaid, altho' the said John was at all times ready at Detroit, to accept and receive the same to the amount of Fifteen Hundred dollars aforesd, and often requested the said Alexis to make payment for the goods aforesd, to wit, Fifteen Hundred dollars in paper of the denomination and description aforesaid, and the ballance of said sum in money, to wit, afterwards, on the 1st day of June in the year last aforesaid, to wit, at Detroit aforesd, and often afterwards, to wit, at Detroit aforesd But said Alexis to pay said John the value of said merchandize, according to the tenor of said agreement, or otherwise satisfy said John hath wholly neg- lected to pay him the said John still refuses. And also, for that whereas the said Alexis [*] Luc Reaume, afterwards, to [*1 p. 33 wit, on the 16. day of April, 1816, at Detroit in the Territory of Michigan, was indebted to the said John S. Roby in the sum of Five thousand dollars lawful money of the United States of America, for divers goods wares and merchandizes by the said John before that time sold and delivered the said Alexis and at his special instance and request; and being so indebted, he the said Alexis in consideration thereof, afterwards, to wit, on the day and year last mentioned, at Detroit aforesd in the Territory aforesd undertook and promised the said John to pay him said sum of money last mentioned, when he should be thereunto afterwards requested. And also, for that whereas afterwards, to wit, on the day and year last mentioned, at Detroit aforesd in the Territory aforesd in consideration that the said John had before that time sold and delivered the said Alexis at his special instance and request, divers other goods, wares, and merchandize, he the said Alexis undertook and then and there faithfully the said John to 380 SUPREME COURT OF MICHIGAN [*] p. 34 pay him so much [*] money as he therefor reasonably deserved to have: Roby And the said John avers, that he therefor reasonably deserved to have of 'v. the said Alexis other Five thousand dollars of like lawful money of the Re e. United States, to wit, at Detroit aforesd in the Territory aforesd whereof the said Alexis then and there had notice. And whereas the said Alexis, afterwards, to wit, on the same day and year last aforesaid, at Detroit, in the Territory aforesd was indebted to the said John in the sum of Five thousand dollars of like lawful money last aforesd for a like sum of money, by the said John before that time at the like special instance and request of the Alexis, paid, laid out and expended; and being so indebted he the said Alexis in consideration thereof, afterwards, to wit, on the same day and year last mentioned, at Detroit aforesd in the Territory aforesd undertook and promised the Said John to pay him said sum of money last mentioned, when afterwards thereunto requested. Yet the said Alexis, not regarding his promises and undertakings aforesd in the three last [*] p. 35 counts mentioned, but intending [*] the said John in this behalf to deceive, has never paid the said John either of the said sums of money in said three last counts mentioned, nor any part thereof, altho' often requested so to do by the said John, to wit, afterwards, on the day and year last mentioned, to wit, at Detroit aforesd But the said Alexis to pay the same or otherwise satisfy sd John hath hitherto neglected and refused, and to pay him the same still doth refuse. By means of the whole premises aforesaid the said John saith he hath sustained Five Thousand dollars damages, wherefore he brings suit, &c." To this declaration the defendant pleaded non assumpsit; and at the last Term issue was joined. During the same Term a rule was taken by defend- ant for a bill of particulars, and early in the vacation the plaintiff delivered defendant a paper which set forth the agreement in the 2 count of his dec- laration mentioned. On the 19. Oct. of the present year, a regular bill was filed, exhibiting the defendants account with the plaintiff. 1*] p. 36 [*] No venire issued to the Sheriff to summon the jury in this case; the Roby jury summoned previous to the Term had been discharged. V. The plaintiffs books were exhibited to the jury, and the clerk who made Reaume. R the entries swore they were made by him. But one item he found erroneous, which he stated should have been credited the defendant, instead of charged to his account; and it was now rectified by him. He said the plaintiff had received the "American certificates" or "Governmental paper" of the de- fendant, but knew not on what conditions. The plaintiff once "took the paper from his desk and said he was going to Col. Butler's that he might examine it"; but the witness knew nothing of it afterwards. The defendant produced a paper, on which the amount of his account with the plaintiff was stated, and the American certificates were credited DOTY'S REPORTS 381 him; and the balance as there struck was in defendants favor. This witness recollected making it himself and giving it to defendant, but for what pur- pose he did not remember. At the time he did it, he was not the Clerk of plaintiff, but "was drawing [*] off accounts for him." He had never fur- 1*] p. 37 nished defendant with any other statement of his account; nor was it shown that the defendant had received any other than this. The plaintiffs Books of Accounts were sent to the jury at their request after they had retired from the bar, to which the defendant did not consent. The jury returned a verdict for the plaintiff, for $2008.75. On Friday October 22, the defendant, by his Attorney, moved the Court, Octr. 22. that the verdict of the jury in this case be set aside, and a new trial granted. The motion for a new trial, on the part of the defendant, this day came Novr. 2. on to be argued. Woodbridge, for defendant.-The practice of this Court in granting new trials, he said he was unacquainted with; but, as it was a proceeding at common Law, he conceived it would conform to the practice of [*] courts [*] p. 38 in England. He referred to 3 Bl. C. 390, 3, 2 Tidd's Pr. 814-'9, I Burr. R. Roby 393, by which authorities the object in granting new trials was shown, and v. Reaume. as there defined,-as a general right,-the defendant in this case was en- s e. titled to a new trial. The present motion was founded on the following reasons; any one of which he believed a sufficient cause for granting the motion. First, SURPRISE. At the last Term of the Court, defendant had ob- tained a rule on the plaintiff, to furnish him with a Bill of the particulars of his demand. In the plaintiff's declaration there was, besides the common counts for goods Sold and delivered, and a quantum meruit thereon, a special count, stating an agreement between the parties, on the subject of the sale of the goods now in question. During that Term, or in the early part of vacation, the counsel for the plaintiff delivered him a copy of the Special agreement, & informed him that was the only bill of particulars he could then, or should probably ever [*] be able to, give. Hence the defendant had reason [* p. 39 to suppose that plaintiff relied upon his special count only, and accordingly shaped his defence to that point, and with a view of meeting him on that alone. And in that event, it would have been sufficient for him to prove, the contract, as stated, did not exist. A bill of particulars operates as an amend- ment of the declaration, or pleading under which it is required. i Tidd Pr. 537, Peak, 21x3, 2 Bos. & Pull. 245-. But at this present Term, the plaintiff comes into Court, and files a new bill of particulars, Showing that he relied upon the common counts, and deserting intirely the Special agreement. Even if he could thus abandon his first bill, which is denied, the forcing us to trial immediately after filing the second bill, was a surprise; for he lulled us into a supposed security by 382 SUPREME COURT OF MICHIGAN the first. If we were bound to accept the new one, its late delivery, at least, entitled us to a continuance to the next Term. [1*] p. 40 The general counts at all times subject [*] a party to Surprise. They in- Roby fringe upon the general principles and system of pleading, and should be re- v. strained. 2 Corn. 19, 2 Wash. R. i72, I Call. R. 239. A bill of particulars is Reaume. -- used to remedy the inconveniencies of the common counts-to shorten the pleadings-to restore, in a measure, the ancient manner of pleading-and more especially for the information of the parties, court, and jury. From the great reliance placed upon them, courts will never suffer anything to be proved on the trial, which is not charged in the bill. I Tidd's Pr. 537,2 Bos. & Pull. 245.-- Second; The verdict was contrary to law and evidence. It is admitted, on the part of the plaintiff, that a special contract existed between the parties. Where there is a special contract, that contract must be sued upon; for the court will not, and cannot, make contracts. The Law cannot imply a contract, where it is proved that an express one exists. A special contract for goods sold and delivered, must be specially declared [*] p. 41 upon, and it is contrary to law to admit it to be given in [*] evidence under the general counts. Esp. N. P. 13o-8, I Chit. on P1. 302,338, 2 Com. on C. 226, 2 Bur. R. o1098, r New Rep. 351, 270, 6 D. & E. 320, 7 ib. 384, I Bac. 262, Lawyers Ast. 22, 5 East 316, 451, 2 Mass. T. R. I47, .4 Cranch 239. In-as-much as there was a Special count in the declaration, and the de- fendant had been served with a copy of a special agreement, as a bill of par- ticulars, on which the action was founded, it was not competent for the plaintiff to abandon that count, and adduce to the jury, evidence of the sub- ject of that contract under the common counts. It was not regular for the court to instruct the jury, or to express an opinion, on the matters of fact. They have no right to express even an opin- ion as to the weight of the evidence adduced; nor how far it went in support of facts stated in the declaration. I Wash. R. 203. The Court did instruct the jury, that no special agreement was proved re- specting the "Governmental Paper," and that that paper was not received by the plaintiff in payment for the goods, "nor" said the court, "did it ap- pear to us that the plaintiff was to do any thing with it." Whereas about the [*] p. 42 time of [*] the Sale of the goods, it was Shown by the plaintiffs own witness, that he received that paper of the defendant to an amount equal to that Sale, for the purpose of having it allowed by the commanding officer. Did he show that he ever presented it? He left his house with the papers one day and told his Clerk at the time, that he was going to Colo. Butler's, the then commanding officer. And he proved nothing farther relative to their presentment. But the Court instructed the jury, from this testimony alone, that it was fair & reasonable to presume that he did present them at DOT Y'S REPORTS 383 that time, and that they were disallowed! The inference itself was not only unwarranted, but it was also incompetent for the Court to direct them what the inference should be. It was a matter solely for the consideration of the jury. But it was proved the plaintiff did not keep the paper in his own pos- session, but for some purpose or other, passed it over to a third person, a stranger to us in the transaction. Hence if he did not intend to receive it as a valuable consideration for the goods, he made it completely his own by parting with it, or not returning it to us. 3 Cranch. 311. Peake 233. 248. It did not appear the defendant was [*] informed of the situation of the [*]1 p. 43 paper until the day of this trial, and it was then produced at the instance of the Court. The authorities last quoted sufficiently show that when an order, note, or bill of exchange, are received as collateral payment only, it becomes actual payment by parting with it, or delivering the Same, to a third person, or by not using due dilligence to obtain it. And invariably, the onus probandi devolves upon the plantiff, when he Sues to enforce the payment. Hence we were Surprised; and the evidence which the jury received was incompetent and illegal: it did not prove the issue, but did prove an existing contract-rather of barter than of Sale-which the plaintiff should have sued upon. i H. Blac. R. 287. In this case interest was not recoverable; yet the jury allowed interest for more than four years. The account was unliquidated, and interest cannot be given on an open account. 3 Wils. R. 205, 2 Com. on C. 207, I Dal. R. 265-6-7-316, 349, Coxe's R. 176, 2 Call's, R. 366, I New Rep. 205, 12 East, 419, I H. Bi. 305, 2 Wm Bl. R. 761, Kirby R. 207, Root's R. 314, 248, 2 Bos. & Pul. R. 235, I Will. & C. 312.-An account closed is not an account Stated. 5 Cranch R. I9.-[*] If the plaintiff contends the short minute his Clerk [*] p. 44 furnished us is an account Stated, or the Statement of the closing of it, we of course grant it; for by that he has given us all the credits we ask, and in this case have claimed; The balance as there Struck brings the plaintiff in our debt. At no other time does he pretend to have presented his account. If that paper is good for one purpose it is for another: and the verdict, al- lowing that minute to be the statement of our account, was manifestly un- just and erroneous. The plaintiffs books of account were sent to the jury at their request, without the consent of the defendant, after they had retired from the bar. Except it be a sealed instrument, without consent, a jury cannot take with them, examine, or receive, at their room, any evidence, or papers, whatever. Will you Send a witness to a jury, and permit them to question him, without the presence of the court or the parties? Allow the jury to take books with them, and do you not suffer the parties to make evidence 384 SUPREME COURT OF MICHIGAN for themselves? What may not such books contain? They may contain illegal and false charges, items not proved by the witnesses, and they may also contain offers of bribery. To almost every species of villany and cor- [*] p. 45 ruption you throw open the doors to suitors and the [*] community at large. The court cannot receive a book of account in evidence; much less can a jury take it with them, without consent of both parties. Jurors can only receive testimony in open court. Cro. Eliz. I89, 6 Bac. 768. Books them- selves are illegal testimony when produced for their owner. 3 Bl. C. 368, Bull N. P.- Third: MISTRIAL. The 6 Bac. 66o. 2 Morg. Es. 266. 3 ib. 64-5. were re- ferred to on this subject. There was no legal constitutional Jury. A venire is required by law, and in this case no venire issued. The jury summoned previous to the Term had been discharged, and this jury now attending were brought here at the instance of the Court, and by their verbal order to the sheriff. *See end of The Statute of the Territory* respecting petit Jurors contains a declara- this case tion that it is adopted from the code of Virginia, and is as follows;-"That for the trial of all causes in the Supreme and district Courts of this Terri- tory, when a jury may be necessary, the marshall shall summon a Sufficient number of persons, not being under the age of twenty-one years, to attend the Court, that out of them may be empannelled sufficient juries for for the trial of causes depending in such Courts." Woodward Code, 48.- [*] p. 46 [*] In all cases when a Statute is dificient, either in its principles or detail, the common law remedy must be pursued; and it is a Sound, established rule, thatyou must construe every statute according to the common law; thus Supplying its defects, enforcing its principles, or preserving the Symmetry of the Science. Hence, if a power be given to a new Court to hear and de- termine a particular class of cases, the power must be exercised according to the common law, that is, by jury, and according to the rules of evidence, &c. Bull. pt. "Statutes."-This Statute therefore leaves the common law as it originally Stood on this point, and the necessity of a venire is not Super- ceded, nor the requisites, that a juror be a free holder, and a resident, dis- pensed with. The Statutes of this Territory are to be adopted from those of the orig- inal States. This purports to be taken from Virginia. But the Court have Said the words of their Statute need not be copied; and at all events, using your honors' emphatic language-used too emphatically-"We put our own Construction upon it." The Chief Justice expressly Says, "We are not bound to put the Same Construction upon a law, as is given it in the State from whose Code we adopt it." It is my misfortune to disagree with the [*1 p. 47 Court on these [*] points and I hold such a proposition to be contrary to every sound rule of construction. Other courts in the States, and without DOTY'S REPORTS 385 half so strong reasons, do submit to the humiliation of adopting the con- struction of a law-or rather the meaning of the law-with the law itself.- 2 Day, 225-6, I Bin. 218, 38o. And let me ask, what but the meaning of the law could it have been intended to adopt? Was it the unmeaning twenty- four letters of the alphabet? brought here, as Cadmus brought them to Greece ?-And when so imported, to be moulded to Your Honours fancy? Surely not! If the words of which your statute is composed, have acquired a fixed and definite meaning in the state from which they are brought, you must take them in that sense; and if whole Sentences, and the whole Statute have acquired a fixed meaning, that meaning must follow the letters of the law, as the soul does the body! Will you go to England to find the meaning of the word chapeau, rather than to France? or, refusing to resort to any authority, say it means "coat," or any other thing? But there is another, and a political, reason, which must have operation on this question. It grows out of the nature of our Government. A Strange, anomalous Govern- ment indeed it is, and at best has odious features. [*] Examining its Structure, 1*] p. 48 we find every thing of Sovrignty which remained here, vested in four men. The Governor brings with him into the legislature, the Executive power, and the Judges the Judicial. What possible form of Government would seem so intirely comprehended within the definition of a Despotism! And can it be, that the worthies of the Revolution-our very ancestors-those who struggled so hard, who bled so profusely, for their civil liberty, could have thought so lightly of ours? Could have devised no better garranty for ours? It was not, it could not be. Where, then, looking at the ordinance of '87, (our Constitution) do we find this bitter garranty? We find it in the assur- ance that all judicial proceedings shall be according to the course of the Common Law!-that common law, (now no favorite here-but) then, So highly valued. We find it in the security to us more especially of the right of trial by jury. We find it in the power reserved to congress of Supervising the laws adopted. And more especially we find it in that provission which forbids the Governor and judges from "making" any law whatsoever, but simply authorises them to adopt Statutes from the different States in the [*] Union, in all of whose *1 p. 49 codes they knew, and we know, the Liberty of the subject, and all his dear- est rights were, and must be well Secured. They are all free and republican States; their Governments and their laws were based upon civil liberty: By limiting thus the power of the local government;-by restraining it from making, and only permitting it to adopt Laws, Congress well Supposed that this Government would not-could not-impair the civil rights of the People: Thus understood;-thus administered-effect being thus given to the liberal views of the old Congress, this Government was well devised for us. And will the court consider such restrictions idle; and will you sweep away these, our only barriers ? You Say you may use your own words in 386 SUPREME COURT OF MICHIGAN adopting laws: you may put a different construction on those laws from that which is put upon them in the state whence they purport to have been adopted: a particular manner of getting a jury into the box, it is said, is a mere matter of form, and may be dispensed with, and what do you leave to the unfortunate inhabitant of-MICHIGAN ! The laws of his forefathers, [*1] p. So the [*] common law, and the sacred trial by Jury, are in a breath anihilated by the authoritative decision of this honorable Court-the last and highest tribunal in this Country. Where is the Security to liberty and to property! A venire is mere matter of form-that a juror be a freeholder, is mere matter of form-and So, may it please Your Honors, is the number of twelve for a jury, but mere matter of form! Ten men will answer as well as twelve: and So will Six as ten: and so will three, as Six! And let these three be, not free- holders, but vagrants, wanderers, men fleeing from justice, if you please, and "matter of form need not be preserved-the provisions of the common law are in this respect useless"! For an arbitrary Judge-for a Jeffries-such principles and practice may be convenient. A Jury may be called,-he dis- likes their countenences, or perhaps their names-the Sheriff may call in others and these again it is easy to discharge, until the court Shall at length announce itself pleased! And is this the trial by jury, which our fath- ers bled for? Is this the trial by jury which they interposed between tyranny and their freedom ?- [*1] p. 5x [*] A party to a suit in which his reputation and wealth may be at stake, knows on a certain day his case is to be tried. He Suggests it to his friends, who eagerly press forward on that day to your hall. The court directs the Sheriff to Summon a Jury for the trial of that case, and he turns around and impannels these very men, who, from interest or corruption, are thus in waiting to subserve the interest of the friend or purchaser.! And now let me ask, where is the benefit of the boasted trial by Jury? Where is the barrier to our civil liberty? And what is it worth? Not a sigh! First make it worthless, and there will be no difficulty;-we will all join "and throw it like a loathsome weed away"! But was it really intended that this government should legislate, that they should make laws? If so why not have stated it plainly in the ordinance, and made it at once an unqualified Despotism. Is it the Same to adopt, and make laws? On the present plan, you may take letters from one State, Syllables from a second, words from a third, Sections from a fourth, and then say you adopt it! And would you require us to believe that this is not [*1] p. 52 legislation! What shall limit the unbounded [*] range you take; more es- pecially what and who shall restrain you? Once in ten years Congress may, perhaps, examine your Code, and in the mean time the people in this Country must remaine obedient:-like good subjects,-and like their Stran- gled liberty,-speechless-! The construction of a Statute is in truth its DOTY'S REPORTS 387 Soul-its life-its meaning, it is indeed the Statute itself. Suppose you adopt a Statute from New York the meaning of which has been long Set- tled, but you think (correctly or not, I care not,) that a wrong construction has there prevailed, and you decide diametrically opposite from Such settled construction: You know the meaning of the Statute in the State from whence it is adopted, but will not give it the Same meaning here. Is it then the Same Statute? Do you comply with the requisitions of the ordinance in adopting Statutes! No, you deal with us in a double Sennce-you keep the word of promise to the ear, but break it to the hope. This is not mere matter of discretion in the court. You cannot thus fritter away the ordinance. Your Honor, the Chief Justice, has said, this is matter of discretion! Discretion? What is it? A thing always uncertain-arbi- trary. It is like a Chancellor's conscience. In the best men it is often caprice-[*] in the worst it is always influenced [*] p. 53 by all the evil passions human nature is heir to! Discretion is the law of Tyrants! * *See opinion It seems not denyed but that writs of venirefacias are used in Virginia;- of Ld. Camden it seems indeed necessarily inferable from the words of her Statute book. in Hindson vs Hersey. See 2 Vol R. C. Virginia, 99, oo: "Be it enacted &c. that where by law the Sheriff or other officer is directed to Summon a Jury &c. if the person Sum- See also notes at the end of moned &c. fail to attend, to the next court of his county &c, or to the next this case. District Court &c. if the process, under which the jury was Summoned, issued from &c." Again by the I vol. R. C. of Virginia 103, "When the Justices Shall have determined that a prisoner ought to be tried &c. the Clerk of the Court &c. Shall issue a venirefacias to be directed to the sheriff &c." And the issuing of venire's is Spoken of by her Reporters. i. H. & M. 213, 235, 387. If therefore Such writs do issue THERE, Surely there can be no doubt but that it is the imperious duty of this Court to adopt that course. But if on that point the Court are not Satisfied, let it be remembered that the Common Law, by whose rules this Statute Should be Construed, re- quires it; that it is according to the course of the common law that Jurors should be [*] so convened; (3 Bac. 728-9), that all parties interested may [*1 p. 54 ascertain, Seeing by the venire who the Jurors are, their qualifications, and how far their may be ground of challenge. But if that course be pursued, which is contended for; if this Court Can, as may Suit their views, take up & put down jurors, I do and will insist that this is not the Species of Jury which was intended to be Secured to us: it is not Such as was Contemplated by the ordinance. That ordinance is the paramount law: all laws adopted are to be taken Sub lege graviori, and we are thus brought back to the common law Jury. There has been a mistrial in this case: and therefore I pray this verdict may be set aside. 388 SUPREME COURT OF MICHIGAN SIBLEY, FOR THE PLAINTIFF. The defendant in this Case was not intiled to a bill of particulars on either of the counts of the declaration by the common law; or he certainly was not under the Special Count. i Tidd 534-5. The first was not intended as such, and the filing the last one did not operate to Stay the proceedings, (for a bill of particulars never does,) and the bringing the Case to trial this Term, therefore it could be no Surprise. [*1 p. 55 [*] Evidence can be given on the general counts, where a Special agreement exists relative to the same matter, and which Agreement is set forth in the declaration, in a special count. He quoted and read the following authorities as showing that a special agreement will be received in evidence under the common counts. Doug. R. 651. I1 Esp. N. P. 265-6. Bull. N. P. 239,-40, o10 Johns. R. 36, 7-Johns. R. 132, Esp N. P. pt. 1st 49, 2 Caine's Ca. 117. If the plaintiff might have his action without a special agreement, he may recover on his general counts; though he must declare on such agree- ment. He need not confine his evidence to that special count, but may en- tirely abandon it, if he finds he cannot support it; and may recover to the full amount of damages sustained under the agreement, on the common counts. It was legal for the jury to assess interest in this case. Interest on open accounts is allowed. I Mass. T. R. 69, ib. 308, 2. ib. 368, Kirby 38, 140, 207. When an account is rendered, and no objections, made to it when so presented, the account draws interest from that time. I Johns. R. 315, 3 Caine's, Ca. 234, Doug. 376. [*] p. 56 [*] The other points, which the opposite cousil had made, hee deemed unimportant; and even if admited, would not warrant the granting of a new trial. He conceived he had replied to those in any wise Subtantial, and neither of them, he was clearly convinced, would justify the court in allowing the motion. WOODBRIDGE, in reply; Adverted very generally to the grounds be- fore taken by him. In regard to the existance, of the Special Contract, which he contended to be still open, and the only one upon which plaintiff could sue, he observed, that plaintiff must sue either in affirmance or in disaffrmance of his Contract-there was no middle ground. He admited that the right might often exist, of suing generally in disaffirmance. As when the contract by its own terms conveyed that right; and where defendant also by his own consent gave up the contract. And admitting arguendo (which however he denyed,) that this was Such a case, yet he insisted, as no money is sought to be recovered back, but as goods were delivered on a contract which plaintiff [*] p. 57 says both parties now consent to put end to, trover, or detinue, [*] or replevin, are the only actions plaintiff could Support in disaffirmance. Assumpsit will DOTY'S REPORTS 389 not do, except where money paid is sought to be recovered back, if plaintiff Sue in disaffirmance. As to the matter of interest, he insisted, that by the plaintiff's own author- ities, it manifesty appeared, that upon an unsettled account no interest could be recovered. And that no account could be considered a Settled or liquidated account, unless Settled by the parties, or by Jury; and that in this very Case it was proved, and the Jury so decided, that the account was not Settled, for they Struck out a considerable charge made by plaintiff, and gave also credit to the defendant in the same account not previously given by plaintiff. But if it was a Stated account for one purpose, it must be for another; and if for all purposes, then most clearly the verdict is wrong, for the Statement relied upon by plaintiff Shows a considerable balance in our favor. [*] Nour. 4. WOODWARD, Presiding 7udge, delivered the opinion of [*] p. 58 the Court. We do not see on what merits the defendant has relied in this case. We saw none on the trial, and we have always conceived he had none. And as it appears so in the event, we know not why the counsel would have this case so important. As respects the quarter-master paper, and the other military papers, the defendant wished allowed him as credits, the plaintiff has done every thing reasonable for him to do; and it would have been imprudent in him, as a man of business, on so slender grounds, to allow the defendant an abso- lute credit for the amount of those papers. It was a part of their agreement, however, that they should be submitted to Col. Butler for his certificate, and it does not appear he approved of them. The onus probandi in this instance lay upon the defendant. It was reasonable for the Court to compel the trial at that time, because a [*] witness was to leave this City the next morning in the Steam Boat, on [*] p. 59 his way to England, whence his return was doubtful. His testimony was essential to the plaintiff, as he was the sole witness. In no respect has there been a Surprise on the defendant. The surprise stated appears rather an inference of law, than a matter of fact. The Court will not compel a plaintiff to become nonsuit. A nonsuit is intended for the benefit of the plaintiff, and he will not often insist upon a verdict when in the opinion of the Court he has not maintained his action. But if in such a case the jury should view the law differently from the court, and on their own view of it should find for the plaintiff, the Court are at liberty, if eventual injustice, and that perhaps gross, has not been done, to sustain the verdict. After verdict the court will not make themselves exclu- sive judges of the law; and they [*] will go a great way in sustaining verdicts. [*] p. 60 The present practice in relation to interest has been invariably pursued by this court. This court has as much the right to recommend to the jury 390 SUPREME COURT OF MICHIGAN when to allow interest, and the rate of it, in cases not recognized by statutes, as the courts of other places. On a liquidated account, we have recommend- ed to juries to allow interest, at the rate of six per centum, per annum; and the account is presumed to be liquidated on being presented to the debtor, and not objected to by him. In this case the jury were correct in allowing interest. It is ascertained from one of the jury that they commenced the calculation of the interest at the period of one year from the date of the last charge in the account, which was just, and as fair as the defendant could expect. The jury was regularly and legally empannelled; and according to the [*] p. 6i uniform practice of the Court. It was [*] a jury within both the letter and the meaning of the Statute; and the construction given to that Statute here, is the same as in Virginia, from the code of which State it was taken. There a venire is not used. The motion for a new trial is over-ruled.- Nov. i i Woodbridge, for the defendant, moved the Court in arrest of Judgment; and on Wednesday, the 24. Novr., (the counsel for the plaintiff not being ready for argument, and the defendants attorney, being necessarily obliged to set out for Washington) submitted in writing by the Clerk, to the Court, the following reasons and arguments in support of the motion. "I take it to be a rule invariably true in pleading that every fact which constitutes a link in the plaintiff's chain of title-that every fact which con- stitutes an essential part of his right-which limits or shows the extent of his [*] p. 62 claim, must be STATED, with precision [*] and with certainty, in his declaration. The plaintiff must show the precise extent of defendants promise; (if the suit be upon a promise,) and in order that the court may see that the promise is legal and binding in law, the consideration of that promise must be fully set out. If the action be upon a sealed instrument, the solemnity of executing the contract-the seal-is in law a sufficient consideration: but in all case of simple contract the consideration must be set out with the same certainty as the promise itself. 7 T. R. 350, I Chit. 215, Rushton & Aspenall, Doug. These propositions not being deniable I proceed to consider the plaintiff's declaration in relation to them. And First. I find the first count incurably defective. No plaintiffis bound to prove what is not stated in his declaration. No defendant can be called upon to resist what is not there stated. No jury can of right find what is not alledged in the pleadings. A general verdict may be considered to have found what is well alledged, and nothing else. [*] p. 63 [*] Does the promise of defendant in an action of assumpsit constitute the gist of the action? Must it be set out with precision? See i Chit 233. Is a promise well set out which does not show the precise sum of money DOTY'S REPORTS 391 which defendant undertakes to pay? Certainly not. The plaintiff proves a promise to pay an uncertain sum-the verdict cannot go beyond the allega- tion and proof, for to the allegation is it responsive. A general verdict then only proves that defendant promised to pay an uncertain sum. Is a promise to pay an uncertain sum void for uncertainty when neither the contract nor any general law (of which the Court can take notice) furnish any rule by which to render it certain? Surely such promise is void; and if a jury give specified damages for its breach, the verdict must be set aside-the judg- ment must be arrested. A, promises B, to pay him $ioo and interest. Now this promise is certain in three classes of cases only; first, where by statute, the general law of the land, the term "interest," and the quantum of interest, are defined; second, where, [*] the law prohibiting no rate of interest, the [*] p. 64 parties regulate that interest, embody that regulation in in the contract, and set it out in the declaration; and third, where by special custom the rate is affixed, and the contract is made in relation to that special custom, and that special custom is set out fully in the declaration, that it may be es- tablished by proof. Of the general law of the land courts take notice ex officio; of contracts they take notice, when stated and proved; of particular, or local, customs, courts cannot take notice, unless proved-they cannot be proved, unless stated. The Court cannot make contracts-the law never does, though it some- times authorises jurors to presume promises, on proving legal liabilities, but never unless those promises and legal liabilities are Stated, and that with certainty and precision. And now, what for interest did defendant promise to pay? It is not stated; no custom is stated-no general law of the land affixes it. Once there was a Statute [*] here affixing the rate of interest; [*1 P. 65 courts then acted upon that statute and applied it. That statute is repealed -What comes in lieu of it? The common law? It never gave interest. Special custom? It is not stated. The contract of the parties? It is not so stated. Does the discretion of the Court Supply all defects? Does it eke out all contracts? Does it stand in lieu of all law? Then may you sue for a cow and recover an horse! Then may you be charged with a libel-and be hung for theft!- This count is therefore fatally defective. There is a fact omitted to be stated, which is the very gist of the action; finding all the other facts to be true, does not find that fact, nor is there given in the pleadings any possible rule, by which to Supply the defect; for no Statute exists, in reference to whose provisions the rate of interest can be ascertained. Doug. 683, I T.R. 141, I Salk. 364, 2 Salk. 662. And if one count be bad, though all others were good, after verdict, the judgment must be arrested. H. & M. Rep. 2 Tidd 831, 4 Will. Ab. 700, 5 ib. 131, 3 D. & E. 434. 392 SUPREME COURT OF MICHIGAN [* p. 66 [*] But the second count is bad on principle. The promise is without con- sideration. The promise of defendant is nudum pactum, unless it were made, (and so stated in the declaration,) in consideration of some promise con- currently made by plaintiff to defendant, or in consideration of the sale and delivery of the goods concurrently with the promise. Neither happened here. The sale is averred to have been made after the promise, and no promise is stated to have been made in consideration of that promise. If A, say to B, if you will sell me your horse I will give you $ioo for him, and B, do no concurrent act, but takes time to consider, is the promise binding? Cer- tainly not. It is not on either, for it is not binding on B. But if afterwards B, do sell the horse to A, a new contract is made, and that contract must be stated: the promise is stated to have been made after the sale, unless the contract be founded upon mutual promises. But here no legal liability is stated-no promise to sell by the plaintiff and no sale averred, as a con- sideration of the promise. i Caines Ca. 583, I Root's R. 294, 3 T. R. 653. [*] p. 67 Neither in that count is there a positive [*] averment that the plaintiff delivered defendant all the merchandize he then had on hand in his Store at Detroit; and yet this matter must according to the soundest rules of good pleading, have been averred with the utmost certainty. Could an aver- ment like the one in this count be traversed? Certainly not, for the matter of it is no where positively asserted. The third count, for aught appears, is bad, according to former decisions of this Court by which the writ is considered a part of the record. I have been in the habit myself, of thinking that the writ is no part of the record, unless specially made so by being spread upon the record after oyer craved. But if for one purpose a part of the record, it must be so for all purposes. All pleadings, it is said, must be taken most strongly against those who plead. By that rule this count is clearly bad, for it does not appear but that the promise there set out, may have been made after the date of the writ, for both seem to have been on the same day. But when may an action be said to have [*] p. 68 been commenced, [*] on the day of the date of the writ, or on the day of the service? If, as the better opinion would seem to be, the date of the service be the commencement of the suit, then, past all doubt, the suit was com- menced before a right of action had accrued; a defect which, appearing on the face of the record, the court cannot get rid of. The fourth count is decidedly bad, for it states no promise. Will the court intend a promise where none is stated? See 2 Wash. R. 187, Stra. 793, Law- yers Asst. 83, 322, 335. The fifth count is bad, for it does not show to whom the money was paid, nor to whose use. Were I to request Judge Woodward to lay out and expend for the Cath- olepestemead $5oo, and he were to do so, it would be with this, a case DOTY'S REPORTS 393 precisely analagous. Now could Judge Woodward recover this money, upon proof only that he had expended it at my request? If he could recover in such case, then perhaps this fifth count may be good; [*] but if good, how [*] p. 69 much money might not be recoverd back, which Judge Woodward with so ardent philanthropy solicited the disbursement of?- For if it be unnecessary, and indeed incompetent, for the plaintiff to prove that which is not stated, it follows that enough is stated in this count, to justify a recovery. If enough be stated and proved, then I believe every individual who has contributed to the expense of the Catholepestemead, may recover the whole of such sum of Judge Woodward; for every cent so expended was undoubtedly at his special instance and request. Nothing is presumed after verdict. 4 T. R. 472, 2 Wills. Ab. 435, i T. R. 145, 543, 7 T. R. 523.-" This case was several times adjourned for argument on the part of the plaintiff; but on the 31 Decr. it was determined without farther argument. [*] [*] p. 70 Roby WITHERELL, JUDGE; gave no opinion. v. Reaume. GRIFFIN, JUDGE; was of opinion the motion ought not to be granted. (The objections, he said, "were nearly the same as were made on the mo- tion for a new trial. We then overruled them, and must do the same now.") f He considered the objections alltogether trivial and unfounded. WOODWARD, PRESIDING JUDGE. "There is no good reason al- ledged in Support of this motion on which the judgment can be arrested. The declaration is in every respect well drawn, and I see no part of it the least objectionable. The defects stated are technical and frivolous. The motion is overruled. Let judgment be entered for the plaintiff." Note. The next morning after the above motion was decided the following was handed the Reporter by Judge Woodward, as the reply of Mr. Sibley, the Attorney for the plaintiff, [1*] to the arguments adduced in support of the motion in arrest of judgment. It was not [*] p. 71 read in court, nor exhibited to either of the other Judges. Roby v. Reaume. "Roby vs. Reaume. Answer to exceptions to the first count. The declaration follows the contract, and is drawn according to settled precedents. Interest is matter of law, and not to be set out. If the objec- tion has any force, it should have been made by special demurrer. The ver- dict of the jury cures it. 5 Bac. 316, 317. If the note had been executed in New York, the court would have in- structed the jury to find 7 per cent. interest according to the custom of that 394 SUPREME COURT OF MICHIGAN place. The maxim of Law that, That is certain which can be rendered cer- tain, applies in this instance. 2d count,-was waived. But the objections to it are not supported. Mutual promises are set forth, with the necessary averments on the part of the plaintiff of the delivery of the goods under & pursuant to the agreement [*] p. 72 [*] It has sufficient substance. 5 Bac. 317. Roby 3d count. The objection to this count has no weight in it. The defend- Reaume. ant begs the question. The court will never presume any thing against -Y-- a fair verdict; but will endeavor by every reasonable presumption to sup- port it. 4th count. The consideration of the promise is stated; also a promise to pay. The defendant is stated to have undertaken to pay, which is a sufficient promise. The objection is technical, and cured by verdict. 5th count. The declaration states the money paid at the special instance & request of defendant. If it be a good exception, it should have been made on demurrer. The verdict cures the defect, as it finds the facts necessary, under the proofs adduced. General verdict. Where some of the counts are proved and others not, [*1 p. 73 the verdict may be applied to the counts [*] proved, and judgment thereon Roby entered. 5 Comy. 518, 2 Bur. I235-6-7, i Salk. 132, 133, Doug. 377, I H. Reaue. Blk. 79, (note)."- Reaume. Notes. page 45. The statute here referred to is since repealed:-it was passed in 18o0, in the time of Gov. Hull, and may be found in the Woodward Code p. 48. Although it purports to have been adopted from the Virginia code, a reference to the Virginia statutes (Virga Revd Code Vol. i. ioi.) will show that is not a copy of the Statute of that State. The Virginia Law requires that different Juries shall be summoned on different days of each Term-the Law of Michigan authorises the summoning of but one set of Jurors for each Term. The Virginia Statute requires that Jurors shall have sundry qualifications, such as a freehold &° in order to constitute them jurors-the Michigan Statute requires no other qualification than merely that the Jurors shall be over 21 years of age, &°- page 53. The following extracts may not perhaps be considered inapplicable to this sub- ject. "Decisions on the principles of abstract justice destroy the safety and liberty of the citizen, and strike at the most essential rights of property. They destroy all rule. They vary with the conceptions of every judge; and if, as has been impressively pronounced in a former stage of this case, discretion is the law of tyrants, can it be less alarming, if so detestable a law is expanded to the dimensions to which this doctrine is calculated to extend it." "If this court can thus prostrate the common law, protected by what it is bound to deem the inviolable provisions of the constitution, it may with as much ease, extend its irrisistible arm, and by one tremendous blow, demolish the statute law with it!" The Chancellors opinion in Yates case in the Court of Errors of N. York. 6 Johns. R. 493-4- "The discretion of an English Judge is not of mere will and pleasure; it is not arbitrary; it is not capricious:-But as that great lawyer (Littleton) truly says, 'Discretion, taken as it ought to be, is, discernere per legem quid sit justum. If it be not directed by the right line of the law, it is a crooked cord, and appeareth to be unlawful.' If discretion were arbitrary in the judge, he might introduce whatsoever novelties he thought proper. But says Lord Coke, 'Novelties without warrant of precedents, are not to be followed: Quicquidjudicis DOTY'S REPORTS 395 authoritati subjicitur, novitati non subjicitur'; and this sound doctrine is applied to the star- chamber, a court confessedly arbitrary." Junius. "But discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humor; it must not be arbitrary, vague and fanciful; but legal and regular." Lord Mansfield, in Wilkes case, 4 Burr. 2539. "When any thing is left to any person to be done according to his discretion, the law intends it must be done with sound discretion, and according to law." I Lill. Abr. 477. (:Tyl. Nt. R. 323.) [Editor's note: See case 533, Calendar of Cases, supra] [*1 HIGGINS, PENTLAND AND STEELE AGAINST CONNELLY. [*] p. 74 This was an action of assumpsit, brought to recover damages of defendant I819, for not performing his agreement with plaintiffs, to transport a quantity of Octr. provisions at a certain price from Erie to Detroit. 19. The defendant denied having made such an engagement; and in his de- fence set up, that if he had so contracted, his failure to fulfil could not have resulted to the injury of the plaintiffs, for that vessels unladen (and one of plaintiffs own vessels,) at and after the period of making the alledged con- tract, sailed from that port to this, and that transportation was then much cheaper than the price pretended he engaged for. Evidence was produced showing a conversation between the parties, the purport of which was, that if on defendant's arrival at Detroit he should not find his vessel engaged, he would then transport, &C But on this the evidence varied. Defendant on arriving at Detroit found his vessel laden for Chicago. [*]A person who was present at that conversation, but died soon after, had [*] p. 75 stated it, as understood by him, to a witness who was now offered by the Higgins & defendant to prove what that man had told witness relative to the trans- v. action. The evidence was objected to, but the court overruled the objec- " tion, and the witness was permitted to testify. The amount of his evidence was, that there was nothing positive in the engagement on the part of de- fendant; and defendant so understood it and communicated the same to the deceased in his life time. The court directed the jury that "if they from the evidence believed there was a contract between the parties they would give real damages to the plaintiffs; but if they believed, with the court, that there was no contract, then their verdict would be for the defendant." The jury returned a verdict for the plaintiffs for Five dollars damages. 396 SUPREME COURT OF MICHIGAN Sibley, for the plaintiffs, moved the court, that the verdict of the jury in this case be set aside, and a new trial granted. [*1 p. 76 [*] The following were his reasons; Higgins & "Ist Because hearsay evidence was introduced by the defendant on the Coelly. trial, and permitted to go before the jury: Also the declarations made by --ythe defendant himself of his understanding of the contract, the plaintiffs being absent at the time. 2d The verdict of the jury is against the charge of the court, on matters of law. 3d Because the jury mistook the law in their assessment of damages. 4/th Because the jury under the contract have assessed nominal damages, when real and large damages were fully proved. 5th Because the verdict of the jury is manifestly against law, and greatly oppressive and injurious to the plaintiffs just rights. (To this point he read from 3 Blk. C. 391.) 6"h Because the jury have given a verdict under a mistake of the law in the case." Nov. 2. The motion was argued, Sibley for the plaintiffs, and Lamrned contra. [*] p. 77 [*] Nov. 4. WOODWARD, Presiding 7udge, delivered the opinion of the Higgins &. court. CoVelly. "We are unanimously of opinion that the verdict of the jury, if in any wise incorrect, should have been for the defendant. The jury if they found a contract, however, should have given more than nominal damages. We do not think they intended to, and only meant that defendant should pay the costs; concluding that it was necessary to find a nominal sum to carry costs. The motion for a new trial is overruled." [Editor's note: See case 580, Calendar of Cases, supra.] [*] p. 78 [*]RATHBONE AGAINST PIERCE AND LAWRENCE. 1819, This case was brought into the Supreme Court by appeal from the court Octr. for the county of Monroe. The demand was on a promissory note. 28. This day, the case was called on for trial, when Pierce was defaulted, and Lawrence appeared by his attorney, who however was absent from court during the trial, while by mistake the court supposed another attorney was DOTY'S REPORTS 397 appearing for Lawrence, during the absence of him who had entered his appearance. The note was signed by Pierce, in the name of "Pierce & Lawrence," whose hand writing was proved; and evidence was adduced that they had been, and were about the time of the date of the note, transacting business as partners, in the county of Monroe. The jury found for the plaintiff. Lamed, attorney for Lawrence, moved the court, that the verdict of the Octr. 29 jury in this [*] case be set aside, and a new trial granted; and he founded [*] p. 79 the motion on the following reasons; Rathbone V. First, That one partner cannot bind the other after dissolution of the co- Pierce et. partnership, and public notice thereof given. That the defendants had dis- solved their copartnership before the signing of the note on which the ver- dict was founded, he alledged to be a fact. Second, That the attorney for defendant Lawrence, was necessarily absent at the trial of the case; and the suit was tried under a deception. Third, That neither of the jury were from the County of Monroe; and not coming from the vicinage of the defendant, they were not a legal and com- petent jury to try the case. The motion was argued by Whitney for plaintiff, and Lamrned Contra. Nov. 4. WOODWARD, Presiding 7.. "Two of the court are in favor of the mo- tion, not because the attorney was absent, but from their being mistaken as to the attorney who appeared. Any indulgence to the plff. to amend, will be allowed on motion." New trial granted. [Editor's note: See case 608, Calendar of Cases, supra.] [*] RAMSAY AGAINST SMART. [*] p. 8o Certiorari to the court for the county of Wayne. The case was originally 1819, commenced before a Justice of the peace. Judgment by default was ob- Octr. tained, and that judgment appealed to the county court, in which court 25. judgment also passed by default. Mc. Dougall and Davenport, for the defendant, now assigned errors for the reversal of the judgment rendered in the county court, as follows; First. The summons issued by the Justice was made returnable on an improper day, in as much as it was made returnable in Seven days from the 398 SUPREME COURT OF MICHIGAN day on which it issued, whereas by the Statute it should have been in five days. Second. The plaintiff laid his damages at, and thereby made claim to, only $20, and the Justice gave judgment for $25.50 besides costs which amounted to $3.18, and making in the whole $8.68 cents more than the plaintiff actually demanded of the defendant; in which respect the said judgment was unjust. [*J p. 81 [*] Third. That the said Justice proceeded to, and actually did, hear, try Ramsay, and render said judgment in said cause, when both of the parties were V. absent from court; he proceeding upon his own mere motion, thereby acting Smart. as counsel, attorney, and judge for the plaintiff. Fourth. The bill of costs taxed by said justice is illegal and unjust, in as much as he taxed and demanded of the defendant 5o cents for a transcript of the proceedings in said cause had before him, when by law he is entitled only to demand and receive for every xoo words of such transcript 614 cents; and on reference being made to said transcript in the aforesaid case, certified by said Justice under his hand, it will be seen that it does not contain o200 words: and also other items in the said Justices bill of costs are unjust and erroneous. Fifth. In rendering the judgment aforesaid by said Justice there is error [*1 p. 82 in this, that it is given as aforesaid for $25.50 cents [*] besides costs, when by Ramsay, a Statute of this Territory adopted and published on the 16. day of Sep- v. tember 181 o*, a Justice of the peace has no jurisdiction of cases where the amount demanded exceeds $20, unless by consent of both parties; or unless *"An act to one of the parties consents & elects to be tried by a jury; on whose verdict, abolish the or on such consent, the judgment of the Justice must be founded: no jury courts of Dis- having rendered a verdict, nor consent given, in this case, the said Justice tricts, & to had no jurisdiction, and it was incompetent for him to render Said judgment define & regu- late the powers, for said amount. duties, and Sixth. That it does not appear that the sd. Judgment of the said Jus- jurisdiction of tice was given upon, or by reason of, any evidence or testimony adduced to Justices, in matters ticivil & him by, or on the part of the plaintiff, and therefore the said judgment is criminal." incorrect and unjust. Cass' D. 92 Seventh. There is error in the record of the proceedings of the county court in said case, in this, to wit; The said plaintiff in & by his declaration [*] p. 83 in said suit does not show [*] that that court had jurisdiction, in as much as Ramsay he sues in a court which he styles by the name of "the Court of Common v. Pleas," whereas the said court to which Said case was appealed has no such m title, description or name, and is only known & entitled by the laws of the land "The County Court for Wayne County." Eighth. That plaintiff does not state or aver that said right or cause of action against the defendant arose or accrued to him said plaintiff, within DOTY'S REPORTS 399 the jurisdiction of that court: nor is it in any wise shewn in his declaration aforesaid that the said court had jurisdiction or conusance of said action. Ninth. The plaintiff has declared for other and a larger sum of money than he Sued for in in the Justice's Court; thereby altering and departing from the original action of which the defendant had been notified by the indorsement on the summons issued by the Justice, and in which the said defendant was sued.- [*] Tenth. No jury was called to, or did, assess the damages against the [*1 p. 84 defendant on his default in the said County Court. Ramsay Hunt & Larned, for the plaintiff, joined in error, and the case was sub- v'. Smart. mitted to the court without argument. WOODWARD, Presiding 7udge, delivered the opinion of the Court. "We are unanimously of opinion the judgment ought to be reversed for Nov. 5 the fifth error assigned. No Justice of the peace has jurisdiction to try a case himself, where the demand exceeds twenty dollars, unless by the con- sent of both parties, or one of them elects to be tried by a jury. Without such consent, or such jury, it was incompetent for the justice to render judgment in this case. The statute is positive." Judgment reversed. [Editor's note: See case 649, Calendar of Cases, supra.] [*] September Term 1820. [*1 p. 85 During the first part of this Term Judge Griffin was absent from the Territory. The case of the United States vs. Delavan was adjourned for trial to the day of , on which day Judge Witherell took his seat, but Judge Woodward did not appear in Court. Judge Wither- ell then stated his opinion, that it was not competent for one judge to hold a Court while either of the other judges were within the Territory, unless they were necessarily absent by reason of sickness, or interest in some ac- tion then before the court.* He said he should therefore adjourn the court *See the Act of to some day when it might be expected that another judge would attend. Congress of 8 But the Attorney General and the counsel for Delavan agreed to wave the May 1792, act y entid "An act error of the presence of only one judge, and they proceeded to the trial of respecting the the case and judgment was rendered therein. Govt. of the On the day of October Judge Griffin returned and on an ap- Terr of theS. y p u.s. N.W.& S. plication from a prisoner for a writ of Habeas Corpus, the writ was issued of the river and a special session of the Supreme Court ordered to be held on the Ohio." 4oo SUPREME COURT OF MICHIGAN Qu. If it was incompetent [*1 p. 86 for one judge to hold a court under these cir- cumstances, was it compe- tent for one to adjourn it? See Laws of Michi- gan Wood- wards Code, Sect. 17. day of October; on which day Judges Woodward and Griffin appeared, but Witherell did not attend. When that matter was determined, the court [*] expressed a willingness and desire to proceed with the general business of the term. Some of the Attornies brought forward their business, but others would not. They continued to sit until the 2ist of October when nothing farther appearing (although there were many cases which ought regularly to have been determined at this Term, but which the Attornies would not move in, because, they said, this was not the Term of the Su- preme Court, which had been adjourned to Dec', and that it was irregular to take them up now,) the court then adjourned to the second thursday in August next. After the trial of Delavan's case Judge Witherell had ad- journed the Supreme Court to the first Monday in Decr next, which ad- journment was rescinded by the special court on the first day of its session, "in order" as they said, "to let in the business of the Term."- [*] Louis Grignon against George Johnson. [*] p. 87 1820. On Appeal from the court for the county of Michilimackinac. This was an action of trespass quare clausum fregit brought in the county of Michili- mackinac for a trespass committed in the county of Brown where both of the parties resided. Octr. 17. Motion by Doty, Atty. for defendant, that the proceedings of the court below be reversed for the following errors, assigned, towit; First, want of jurisdiction. The trespass was committed out of the county in which the action was brought, and hence the said court, being limited [*] p. 88 [*] in its jurisdiction, had no authority to hear and determine the case. He Grignon cited from i. Sellon's practice 262. "Whenever the cause of action must VS. necessarily have arisen in any particular county, or wherever the parties Johnson. to the suit become such by mere privity of estate as it is called, such action is local, and must be brought in that county where the cause of action arose." "With respect to the first part of this definition, it may be easily under- stood; and it is obvious, that it must comprehend all actions, when the pos- session of the land is to be recovered, as ejectment and the like; and also where any actual trespass or waste has been committed on any premises; "The action of trespass quare clausum fregit is a local action, and conse- quently the venue must be laid in the county where the land lies." Selwin's N. P. 1232. DOTY'S REPORTS 4o "If the action be really local, and the venue be not of the proper county, should it appear on the face of the declaration, it would be de- murrable to; or if it is proved on the trial, plff. will be nonsuited." I Sellon P. 265. In Doulson vs. Mathews, 4. T. R. 503, the action was brought in England for a trespass committed in Canada, and held not maintainable. [*] Secondly. It is not stated in the declaration that the plaintiff owned, or was in possession of the premises at the time of the alledged trespass. "Being founded on an injury to the possession, it is essential that the plain- tiff should be in possession of the close at the time when the injury is com- mitted." Selwin N. P. 1227. He could not have been the owner, for the lands at Green Bay have never been confirmed, to the persons in possession, by the Government of the United States. Thirdly. The Seal of the court was not affixed to the writ on which the defendant was arrested. And he contended, that on an appeal errors in law might be inquired into as well as matters of fact. It was a proceeding in error. But the court said the motion could not be Sustained, because the Statute* has not given this court the power to enter into and investigate the proceedings in the court below. The motion is therefore overruled. But note. If the appellant, after having duly entered his appeal with the clerk, should fail to appear and prosecute it, and the proceedings before the inferior court should appear to be manifestly erroneous and illegal (and in this instance the court must examine the proceedings below) would or would not this court render a judgment Similar in every respect to that of the court below?-And also, if judgment has passed by default below, plea may be filed here-defects in the narr. may then be taken advantage of. It was not necessary this power should be specially given by statute-it is incident to this & every other Superior Court. [*] p. 89 Grignon vs. Johnson. *passed the 13th June 1818 [Editor's note: See case 695, Calendar of Cases, supra.] [*] In the matter of Elizabeth Goss, before 7udge WOODWARD on a writ [*] p. 90 of Habeas Corpus. April Motion, That W. W. Petit to whom this writ was directed, be sworn to 26. the return, inasmuch as he is not a Sworn officer. 1820. 402 SUPREME COURT OF MICHIGAN By the court. He cannot be compelled to Swear. It is quite immaterial, for in either event he would be liable to an action for a false return. Motion overruled. 1820 In the matter of Laurent Rollette, on a writ of Habeas Corpus returnable Nov. before Judge WITHERELL. DOTY, for the Prisoner, moved that he be discharged, for the following reasons; 1st That the capias on which the defendant is detained is directed "to the sheriff of the county of Michilimackinac," when it should have been directed l, p. 9' to the sheriff "by name and office" ac- [*] cording to the statute passed the Rollette, 13th of June 1818, which enacts, (Sec. 4.)"; and that the judges of the in the Supreme Court shall respectively have authority &c. to issue process to be r't. of. served in any part of this Territory; and every sheriff or other officer to whom such Summons, venire capias, testatum capias, or other writ or process, may be directed by name and office, shall and may execute the same at any place within this Territory, when the person or persons against whom the same issued, are not to be found within his official precinct." When the office of Marshal was abolished, his duties devolved upon the Sheriff of the County of Wayne. One of the duties of that officer was, to serve all process issuing from the Supreme Court, in any part of the Terri- tory. No statute was passed parceling out this authority and extending it to the other Sheriffs of the different counties; until that of 1818. This statute then only gives them power to serve such process when it is ad- dressed to them by name and office. It was therefore in this case incom. petent for the sheriff to execute, or to depute any person to execute, this writ, it wanting the form prescribed by the Statute. Hence the arrest was illegal. The following is the return made to writ of Habeas corpus. l*] p. 92 [*] "I John Burnham, to whom the annexed writ of Habeas Corpus is Rolette, directed, by his Honor Judge Witherell, do for return say, that I took the in the body of Laurent Rolette in the said writ named, at Michilimackinac in the mat. of. County of Michilimackinac, on the 30th day of October I820, in pursuance of the requirements of a certain writ or capias, issuing out of the Supreme Court of the Territory of Michigan and directed to the Sheriff of county of Mackinaw aforesaid, and by virtue of a special deputation, and in pursuance of the authority thereby given me, by Edward Biddle the Sheriff of sd county, to execute the said writ according to the requirements of the same, DOT Y"S REPORTS 403 which said writ and deputation are hereunto annexed, which I the sd John pray your Honor may be taken as a part of this return. "And farther that the said Rolette having neglected to procure sufficient bail, for his appearance at the supreme court, to be held at the city of Detroit, at the next Term of said court, to answer to the plaintiff in said capias named, I have brought his body in my custody to this place, by authority of the said deputation, and in pursuance of the requirements of sd writ, to have his body before the judges of the Supreme Court, at the time and place set forth and required in sd writ. To which end and purpose 1, the sd John Burnham humby pray your Honor, to grant a commit-[*]ment [*1 P- 93 to lodge the body of the sd Laurent Rolette in the common jail of the County of Wayne. (sgd) John Burnham. Copies referred to. "Territory of Michigan. The United States of America, Supreme Court. to the Sheriff of the County of Michilimackinac. You are hereby com- manded & " (common form.) Returnable on the 3d Monday of September 1821. Endorsed on the back of the capias, "Bail ordered in $6ooo." by Judge Witherell. "I Edward Biddle, Sheriff of the county of Michilimackinac, to whom the within writ (the capias) is directed, do constitute and appoint John Burn- ham of Detroit, County of Wayne, a special Deputy under me and in my name, to execute the within writ according to the requirements thereof, and do hereby grant unto him the sd John Burnham, full power and authority for the execution of sd writ as aforesaid according to law. Witness my hand this 30th day of October, A.D. 1820. Edward Biddle sheriff." If we are to be bound by the return, it will be perceived there is another error in the direction of the writ, inasmuch as it is stated to be addressed to the Shff. of the County of Mackinaw, when there is no such Coy in the Territory. [*] 2nd But if the writ were properly directed, the Sheriff has not given to [*] p. 94 John Burnham any sufficient authority to empower him to arrest the de- Rolette, fendant, because the deputation is not under the seal of the Sheriff. This in the mat. of. form was requisite at common law, - it has been so considered by the Sheriffs of the Territory, and so have they practised, as will be found on reference to the writs returned into the clerks office of the Supreme Court. The same solemnity and form as is used in granting authority to an officer will in general be required of that officer in delegating that authority. The 404 SUPREME COURT OF MICHIGAN appointment of a Deputy therefore by a sheriff must be written --must be signed, sealed and witnessed. These are not dispensed with by the act concerning Sheriffs. Surely the same formality will be required of a Sheriff as of a Clerk in constituting a Deputy. The Supreme Court during the last season declared the office of Clerk of that court vacant, because, in the ap- pointment of a Deputy, he had used the seal of the court instead of his private seal; and the court then determined that it was absolutely necessary his private seal should be affixed. 3 If the writ and the deputation were legal, still it was illegal to bring the defendant to this place, at this time. Although sheriffs of different [*] p. 95 counties [*] are authorised by the Statute before quoted, to serve process Rolette, issuing from the Supreme court in any part of the Territory, yet they are in the mat. of. not authorised by statute, to commit their prisoners to any jail, except that in the county of which they are respectively sheriffs; nor are jailers required to receive prisoners in civil cases coming from foreign counties. The sheriffs of counties are made keepers of the prisons in their respective counties, but are in no way authorised to interfere with those of others. Can the Sheriff of one county demand the use of the jail of another for his prisoners? More particularly can he when he has a good and sufficient one in his own? There is no law giving that right. The legislature never intended it. Shffs. are appointed for their counties and they have no authority beyond their limits. If the sheriff returns on the writ that he has taken the body into custody, and the plaintiff wishes the defendant brought into court and then com- mitted to the jail of this county, he may take his rule on the sheriff. This has always been the practice in this and other courts, and why should it be deviated from now? This practice forms an essential part of our system of jurisprudence, and is peculiarly applicable to the situation of the country. The Supreme Court, holding but one term in each year, and that at the city of Detroit; the population of the Territory having spread over a vast extent of country, and not having the benefit of circuit courts in each county, it is [*] p. 96 essentially necessary to justice and to prevent the citizen from [*] being Rolette, harassed and oppressed, that every defendant should be confined in his in the mat. of. own, or the county where he may be arrested. You then take from the law its severest rigours, and render it more congenial to the principles of justice. Tear him from his family, his friends and his home, and transport him 900oo miles from them to a place where there is not a human being of his ac- quaintance, and how shall he take advantage of that benevolent principle of the law which offers him his liberty on giving good & sufficient bail? To whom shall he give bail? The sheriff of Mackinac is liable for his appearance, for he was commanded to take the defendant and him safely keep so that he have his body at this place on the 3d Monday of Sept. 1821. Which sheriff would be liable for an Escape? - The defendant has a right to be bailed at DOTY'S REPORTS 4o any time before the return day of the writ, which bail must be to the sheriff and not to the action. Shall he give bail to the Sheriff of Mackinaw in whose custody he no longer is, or to the sheriff of this county who was neither au- thorised or commanded to take or keep him? Do you not mock him by telling him he has rights? It is evident if this practice is to be pursued, the situation of every defendant in those distant counties will be rendered very oppressive and grievious. In this case it can be proved that the defendant was taken from his county in two hours after the arrest, and during that time he was necessarily employed in instructing an agent in his business which he left. - [*] Motion overruled. The Judge said Burnham was duly authorized to [*] p. 97 keep him, and he might do what he pleased with him. The prisoner was accordingly remanded into his custody. [*1 [*] pp. 98 and 99 are blank. [*] Mr. N. I. Card, from the State of Ohio, applied to the Judges to be [*] p. zoo admitted a Counsellor and Attorney of the Supreme Court of this Territory. 1821. The Judges met at the Inn of Col. R. Smyth, and all of the members of the May. bar attended, except Mr. Sibley. Their opinion being requested by the In vacation. Court, they were unanimously of opinion, that the applicant was not actually a resident in the Territory, within the meaning of the "act to regulate the admission and practice of Attornies," Rev. L. 286, he having been here but a few days; but they differed as to the length of time it requires to gain a residence. It was decided by the Judges (Woodward dissenting) That a residence could not be gained under one year, during which time the person must actually be domicilliated in the country; and that they would hereafter require of every applicant an actual residence in the Territory of one year previous to their admission. This application was therefore refused. [*] In the matter of ANDREW ROBB, on a writ of habeas corpus re- [*1 p. ioi turnable before Judge Woodward. i8o8. Sept' 5. The petitioner David Robb set forth in his petition, that he was the father Robb, in the of Andrew Robb who had been enlisted into the U. S. Army and was mat. of. 4o6 SUPREME COURT OF MICHIGAN attached to the company commanded by Capt. Rhea-that the said Andrew is a minor, that he enlisted without the consent of his father, and that he is detained contrary to the wishes of both. Capt. Rhea in his return stated that the said Andrew had been regularly enlisted a private in his company for five years which time had not expired; and he annexed a copy of his Enlistment. The brother of Andrew Robb testified that he had known the said Andrew from his infancy, and that he verily believed the said Andrew was twenty years of age some time in the month of February last. Sept. 7. This day 7udge WOODWARD gave his decision as follows, towit. [Editor's note: This decision has been printed. Transactions, 18o05-1814, II, 425.1 [*] p. 102 1812. Augt 8. [*] p. 10o3 Livingston, in the mat. of. [*] In the matter of Robert Livingston, on a writ of habeas corpus before 7udge WOODWARD. The petition of the prisoner set forth, that he was an Interpreter in the service of his Britannic Majesty: that he had been sent by the commanding officer at Mackinaw with the prisoners of War taken on the Surrender of Fort Michilimackinac to protect them from the savages on the river St. Clair: that he has been arrested & is now confined in jail &' The sheriff returned on the writ that he had taken and detained the prisoner on a capias issued from the Supreme court in a suit where Thomas Emerson & Co. were plaintiffs and the said Robert defendant; - that bail was required, and that to the day of the return none had been given. The following are copies of papers produced by the prisoner on the hear- ing of the case. "Heights of Michilimackinac, July 17. 1812. Capitulation agreed on between Capt. Charles Roberts, commanding His Britannic Majesty's forces on the one part, and Lieut. Porter Hanks commanding the Forces of the United States, on the other part:- 1st The Fort of Michilimackinac shall immediately be surrendered to the British Forces. [*] 2nd The Garrison shall march out with the honors of war, lay down their arms, and become prisoners of war, and shall be sent to the United States of America, by his Britannic Majesty, not to serve this war, until regularly exchanged; and for the due performance of this article, the officers pledge their word and honor. DOT Y'S REPORTS 4o7 3d All the Merchant vessels in the harbor, with their cargoes, shall be in possession of their respective owners. 4th Private property shall be held sacred as far as it is in my power. 5th All citizens of the United States who shall not take the oath of al- legiance to His Brittannic Majesty, shall depart with their property from the Island in one month from the date hereof." "Michilimackinac 25th July 1812 "Report of Prisoners of War passengers on board the Schooner Mary, James Rough Master, consisting of the officers and soldiers of the American Garrison taken at this place, and a number of Individuals citizens of the United States with their property restored to them and guaranteed by the Capitulation of the Island of Michilimackinac on the 17th instant, as follows:" (here follows a list of [*] the names of the officers and citizens- 3 officers, 38 Soldiers, 8 citizens, and the names of the crew of the vessel.) "The above vessel, with the passengers, crew and the property belonging to the passengers and crew, is bound to Black Rock in the State of New York, under the protection of the British Flag, agreeable to the terms of Capitulation. (Sgd) Charles Roberts Capt. commanding His B. M. Forces." "Garrison Orders. Fort Michilimackinac, 26. July 1812. M' Robert Livingston is appointed to act as interpreter until farther orders. Mr Livingston is to embark on board the Schooner Mary with the Prisoners of War, with three Indians well acquainted with the bands living on the banks of the River St. Clair, and is to use his utmost endeavors to prevent any insult being offered by these people to the Prisoners of War. When this service has been performed, he is to report himself to the officer Commanding the nearest British Post. (Sgd) By order of the Comg. Officer. Joseph Lambeth, Lieut. Actg. Adjt." This day jfudge WOODWARD gave the following decision. [Editor's note: This decision has been printed. Transactions, o1805-z1811, II, 459.] [*] p. 10o4 Livingston in the mat. of. Augt 15- [*] pp. io5-i0o8 408 SUPREME COURT OF MICHIGAN [*] p. o9 [*] In the matter of Richard Pattinson, a subject of His Britannic Majesty, Sept. Term residing in Sandwich in the County of Essex, in his Britannic Majesty's 18o7. Province of Upper Canada. October 23. The applicant moved the court for a warrant to apprehend Joseph Quinn and Jane, his slaves, now within this Territory. The following is the decision by Judge Woodward upon the motion. [*] pp. iio- i16 [Editor's note: This decision has been printed. Transactions, 18o5-I811, I, 414.] [*] p. 117 1821. Feby. 10. [1*] p. 1x8 Hanson et al. in the mat. of. [*] In the matter of Henry Hanson, Harvey Metcalf and William E. Probert, on a writ of habeas corpus before Judge Woodward. The petition of the prisoners stated, "That they were held in the prison for the county of Wayne, on an execution issued from the office of John McDonell a Justice of the peace for said county, in favour of Moses Birdsall against Richard Freeland and Henry Hanson as defendants, and Harvy Metcalf and Wm E. Probert as securities: that they believed there was no judgment remaining of record in the office of sd Justice on which the sd Execution purports to have issued, but that the said Execution improvi- dently and unadvisedly issued, and they were in consequence held illegally in custody on a void process, &"- The facts in the case were, that one Robert Smart sued Freeland and Hanson before James Abbott a Justice of the peace, obtained judgment, and sued out his Execution on which the defendants were committed to jail. They gave security for the limits of the prison, the above mentioned Bird- sall and one Johnson, and regained their liberty. Birdsall, being apprehen- sive that Freeland was about to leave the limits, and flee to Canada, institutes a suit against him alone, in order to secure himself as bail, although he had not yet been sued on his bond. And this is the suit referred to in the petition of the prisoners, and the proceedings in which will be found in the certificate of the justice hereto annexed. The Return to the habeas corpus was as follows: [*] That the prisoners were committed to prison on the 7th of February, and have been since detained by virtue of an Execution from the office of John McDonell a Justice of the peace. A copy of the Execution was an- nexed; and it commanded the constable to take the goods and chattels of all of the pisoners, distinguishing them however as principals and as securities as before mentioned, and for the want of property to take their bodies and commit them to jail. Freeland had escaped before the execution issued. DOTY'S REPORTS 4o9 The return was confessed, and a copy of the record of the Justice offered in avoidance of it. To this the opposing counsel objected, but his Honor ruled that it should be admitted.* The following is a full copy of it. *6 Johns. R. 511. "Moses Birdsall "Moses Birdsall Jany 12, 1821. In a plea of trespass on the case, vs. Richard Freeland damages $5o. This is an action instituted by plaintiff against, defendant, to recover or secure the amt. of a bail bond where plff. is bound for the defendants safe continuance on the gaol limits, at the suit of Robert Smart against de- fendant. Plff. having satisfied the court by Robert Garratts Statement that deft. is about to abscond. Capias returnable forthwith. Garratt constable. Capias returned by Const. Garratt. Service & milage $.31 4. Deft. in court. Plff. appeared, and by consent of parties an imparlance took place. Whereupon the following arrangement has taken place between the parties, that is to say, viz: The deft. confesses to owe to the plff. $28.50 damages, together with the costs of Suit: But conditioned that deft. continues on the gaol limits whereon he is now confined at the suit of Robert Smart, instituted in the office of James [*] Abbott, Esqr., and the plaintiff his [*] p. I19 bail for the safe continuance on sd limits until discharged by due course of Hanson, et al. law. in the mat. of. It is therefore distinctly agreed upon, that if the defendant remains on the limits as aforesaid, and pay the present costs of prosecution, or that if the deft. Henry Hanson (who equally confesses himself indebted to the plff. conditioned as aforesaid,) shall pay to Robert Smart the amount of the debt, costs and interest due to him by judgment as aforesaid, wherein the plff. stands bail for the gaol limits for defts., or otherwise discharge the amt. of the Execution isd on sd judgment in such case, such payment or discharge shall operate as a discharge of this judgment, with the exception of the costs. Whereupon Harvy Metcalf and William E. Probert come into court and enter themselves security severally for the payment of this judgment conditioned as aforesaid. - " (There follows a copy of the precipe for an execution Signed by the agent of Birdsall, a copy of the Execution issued in this case, which is the Same as that annexed to the return, & a statement of the costs.) "I certify the foregoing to be a correct transcript from the Docket in said case, with a copy of the precipe and execution issued by virtue thereof hereunto annexed. J. McDonell Justice of the peace, county of Wayne, T.M.-" 41o SUPREME COURT OF MICHIGAN For the prisoners it was argued that the Justice of the peace had no [*1 p. 120 jurisdiction, the warrant having issued without any [*] sufficient cause Hanson, et al. appearing upon the record, as the statute requires that the circumstances in the mat. of. on which the application is made shall be stated in writing & that the party himself should have been examined on oath-; and that neither of the other parties were brought legally before him. The statute authorises no con- fessions of judgment except the deft. is brought before the Justice by virtue of some legal process, or the suit be an amicable suit. This is not stated to have been an amicable suit. That if the justice was authorised to have received the confessions of these parties, still on those confessions no judg- ment was rendered. But if there was a judgment, it was conditional; and it does not appear that condition has been forfeited. That the Justice could not enter Metcalf and Probert as security for any other purpose than for a stay of Execution, and if that was the intention all the parties were entitled to a Stay of execution for six months from the time of entering the supposed judgment, and therefore the execution issued five months before the expira- tion of the time for which it was stayed.* Judge WOODWARD gave the following decision. The petitioners are let into the matter contained in the record certified by the Justice. If the proceedings before the justice of the peace be a judgment, it is conditional; and, before the emanation of an execution, it would be neces- sary that the forfeiture of the condition should appear. If the fact be, that the condition was forfeited, before the emanation of the execution, there are no means by which such fact, if now made to appear, could come into the record so as to legitimate an execution which has previously emanated. [*1 p. 121 It is therefore ordered, that the prisoners be dis-[*]charged from custody Hanson, et al. under this Execution. in the mat. of. Whitney and Doty for the Prisoners; Lamrned, contra. *The statute establishing justices courts, and on which the arguments of the counsel were founded, is in the Revised Code p. 226. The sections particularly referred to are the Ist 2d 4th the proviso of the 9th and the 26th Section. [Editor's note: See case B-27, Calendar of Cases, supra.] is8o8. In the matter of David Robinson, on a writ of habeas corpus, before April. Judge Woodward. 29. T OT Y'S REPORTS 4II This was an application to be released from imprisonment under a corn.. mitment for a contempt before two justices of the peace. The marshal returned that he held the prisoner in his custody by virtue of the following warrant of commitment: "Territory of Michigan . District of Detroit. To the Marshal of said Territory. IDistrict of Detroit. Whereas David Robinson of the City of Detroit, [*] was brought before us, two justices of the peace, this day, by virtue of a warrant issued to the Marshall to that effect, for having committed an affray on tuesday the 5th inst.; And whereas the aforesaid David Robinson, when questioned by us concerning the aforesaid affray, refused to answer, and proceeded to abuse one of the said justices, by calling him a liar, a knave and a fool, and other improper and abusive language, and would not be examined by him, to the evil example of the spectators then present, and to the subversion of all law and good order. These are therefore to command you, that you take into your custody the body of the said David Robinson, and him safely keep until he finds security, himself in the sum of five hundred dollars and his bondman in two hundred and fifty, to appear at the next supreme court to be holden for said Territory, to answer the said court touching the abuse aforesaid, and in the mean time to keep the peace towards all the good citizens of Said United States. Given under our hands this seventh day of April at Detroit, A. D. 18o08. James May J. P. D. D. Geo. McDougall J. P. D. D." May 2. On this day the case was heard, and the following decision given by Judge Woodward. This writ was issued by the Judge. [*] p. 122 Robinson, in the mat. of. [Editor's note: This decision has been printed. Transactions, 1805o-1814, II, 416.] [*] pp. 122-127 In the matter of JOHN WHIPPLE The facts in this case are disclosed by the following extract from the i8os8. warrant issued by Judge Woodward, and on which Whipple was arrested. June, 28. "WHEREAS John Whipple, late of the District of Detroit, &c late a Captain in the Army of the United States, yeoman, on saturday the 25th 412 SUPREME COURT OF MICHIGAN [*] p. 128 Whipple, in the mat. of. day of June i8o8, in the afternoon, [*] at the district of Detroit aforesaid, did stop the undersigned, one of the judges in and over the Territory of Michigan, and say to him the said judge, that he the said John Whipple was present when an action depending in the Supreme Court of said Terri- tory, between James Peltier, and James and Francis Lasselle, was con- tinued, and that he, the said John Whipple, was of opinion that the said action ought to have been then tried; that he, the said judge, was prejudiced against his, the said John Whipple's relations, and was partial to the said Messieurs Lasselles; that the said Messieurs Lasselles were the damndest rascals in the country, and that he, the said judge, was a damned rascal, with other violent language and gestures; These are therefore to command you to take &C" - returnable before himself. On this warrant the said Whipple was brought before Judge Woodward, who, after hearing the case, gave the following decision. [*] pp. I29-130 [Editor's note: This decision has been printed. Transactions, z8o-z814, II, 253.] [*] p. I31I Sept. Term 1819. [*] Anonymous. Application was made for a continuance of this case to the next Term, but it was contended the affidavit did not contain sufficient matter to war- rant the application; and after much dispute, the court decided that on motions for continuances the following causes should be shown by the Affidavit: 1st That there is a material witness in the case. 2d That such witness is absent from the Territory. 3d That the party has used due diligence to obtain his attendance; and this must be determined by a subpoena taken out and re- turned non est. 4th That he expects to obtain his attendance at the next Term of the court. 5th That he expects to prove a credit, or something material by the witness. 6th That he is a competent witness. and 7th That the application is not made for the purpose of delay. - DOT Y'S REPORTS 413 [*] In the matter of 7ames Denison, Elizabeth Denison, Scipio Denison, and Peter Denison Jr. detained by Catherine Tucker, before Judge WOOD- WARD. [Editor's note: The opinion in this case has been printed. Transactions, 1805-1811, 1, 385.1 [*1 [*] p. 132 Septr Term 1807. Sept. 26. [*] pp. 133-150 [*] pp. I5I-166, inclusive, are blank. [*] The United States vs: George Boyd. This was an action brought on a Certificate from the Treasury Department of a balance due to the U. S. on the 4th. day of February, 1821, returnable to the last term of this court, Septr. 1821. - The declaration is in general indebitatus assumpsit. The first count is for money had and received; the second for money lent and advanced; and the third is on an account stated. The defendant plead non assumpsit. Sibley, District Attorney, moved the court at the last term for a judg- ment on the Certificate without a trial. He founded his motion on the act of Congress of 1797, 2 v.L.U.S. 594, the 3d Sec. of which provides that the court shall grant jugt. at the return term on motion, on a certified transcript from the books and proceedings of the Treasury. Doty, for the defendant, contended the U. S. had two modes by which they could recover their debts; one remedy was by the statute cited, the other at common law. Whichever they adopt they must pursue. In this case the common law course has been adopted by the Dist. Atty., he having filed his declaration. Under the statue no pleadings are necessary; and this is the distinguishing feature between them. [*] He also claimed the right of trial by jury, as gurranteed, by the Or- dinance of 1787 to the inhabitants of this Territory, "in all cases." - The laws of the United States have also provided, that in their courts every issue in fact shall be tried by jury. Witherell, Judge. The motion must be overruled. The Dist. Atty. has elected what remedy he will pursue and he must follow it. - Judges Woodward and Griffin were unable to attend the court from sickness. - The case was continued by the court for the want of time to try it, to the present term. - This case was called on for trial. Doty, moved for leave to amend his plea by filing a notice of set-off. [*] p. 167 Circuit and District Court U.S. Sept' Term 1822. Septr. 1821. [*] p. 168 U.S. V. Boyd. 1822. Octr. 8. 1822. 414 SUPREME COURT OF MICHIGAN The Court overruled the motion, Judge Witherell dissenting. -- Jury called and sworn. - Sibley, offered as evidence two certificates from the Treasury depart. ment, the first of which was dated the 24th. of Feby. 1821, and is as follows, [Editor's note: This certificate does not appear in the reports.] [*] p. 169 [*] Doty, objected to the introduction of the papers as evidence, because U. s. 1st By the common law rules of evidence, they are inadmissible. Those v. rules can neither be altered or abolished by Congress or the Legislature of Boyd. this Territory. The Articles of Compact contained in the Ordinance of 1822. 1787,* are to "forever remain unalterable, unless by common consent." By *1 V.L. the second article it is declared, "The inhabitants of the said Territory U.s. 478. shall always be entitled to the benefit of judicial proceedings according to the course of the common law." [*] p. 170 [*] 2nd If the Act of Congress of 1797* does not contravene this provision *2 v.L.U.S. of the Ordinance, yet these are not transcripts within the meaning of that 594 act. The 1st Sec. of the act of '97, provides, that persons accountable for U. S. public money, neglecting or refusing to pay the same into the Treasury on V. the adjustment of their accounts, shall be sued by the Comptroller for the sum Boyd. .--- stated to be due. Sec. 2. A transcript from the books and proceedings of the 1822. Treasury, certified by the Register under the seal of the department, shall be admitted as evidence in such suit. 02 v.L.U.S. This act must be considered as supplementary or in addition that of I795.° 502 This latter act was the first passed on the subject of defaulters, and is en- titled "An act for the more effectual recovery of debts due from individuals to the United States." It provides that persons receiving monies for which they are accountable to the U. S. Shall be notified by the Comptroller, and if they do not settle within one year after the notice, suit shall be brought therefor. That lists of the claims of such debtors not allowed by the Comp- troller, shall be served by the Marshalls on the claimants. The title of the act of 1797 is "An act to provide more effectually for the settlement of ac- [*] p. 171 counts between the [*] United States and receivers of public money." The U. S. act of '95 provides in detail for the adjustment of accounts, and only directs V. that suit shall be brought. The act of '97 presumes the accounts have been lyd. adjusted according to the act of '95 and provides for the more speedy col- 1822. lection of them - it makes no provision as to the adjustment of them. Both of the acts are in force and they must be construed so as to give effect to both; and this is the only construction they will bear. The "adjustment" of an account is the settlement of it by the parties or their agents. The mere footing up of the debits of a party's own account is certainly not a settlement, nor is it evidence of an account stated. That DOTY'S REPORTS 415 Boyd had charges against the government is admitted by the second ac- count-in the first it should have been stated whether they had been allowed or rejected, and then the balance would have appeared well.- The first certificate is not a "transcript from the books and proceedings of the treasury"-it exhibits nothing. A transcript is a copy. A certificate, that at the foot of certain columns on a certain page of a book are figures which when enumerated amount to a particular sum, would surely not be a transcript from the books. What is meant by proceedings? Is it not in- tended by this that whatever the accounting officers have done upon the accounts shall be certified so that the Court may be put in possession of all the facts as they appeared before the officers?- If a defendant [*] should [*] p. 172 alledge that he had not received a certain sum with which he is charged, when the acct. is certified in round numbers in this manner he is either pre- cluded from saying any thing about it or must himself show and prove the items which compose the plffs, demand. This very charge too may have been the only one in contest between the debtor and the accounting officers. Shall such a certificate then be evidence ?- Again, where the indebtedness has accrued by drafts on the Treasury, a certified transcript from the books and proceedings of the treasury can never be received as evidence of the consideration and due execution of the drafts. On the plea of non assumpsit the hand writing must be proved as in any other case. If not, aforged draft is as good as any other. It appears to me in such a case not only the item should appear in the acct. but the voucher itself must be produced. An affdt. of a deft. to these facts would be no ground for a continuance under the statute of '97. - 3d It may perhaps be well to remark that the act of '97 does not specify what fact the transcript shall be admitted to prove. I contend therefore the certificate is not evidence of the fact that there was a settlement between the parties on a [*] particular day- this remains to be established by [*] p. 173 other testimony, as would be required on the account of any other party If the Atty. shows that the provisions of the act of '95 have been complied with, then a regular transcript would be good evidence as that is the mode by which the U. S say their accounts with their debtors shall be adjusted. The wish to know what charges in our account have been allowed and what rejected- the transcript does not show it, nor has the Marshall served upon Boyd a list of the claims rejected. The defendt is in every way deprived of his defence. It is also necessary then, that the fact should appear that the deft. is a delinquent, that notice has been given him to settle, and the service of the list of the claims not allowed, before the transcript can be admitted as evidence. These transcripts do not charge the deft. either with money had & re- ceived, or lent and advanced- they say nothing about money. Although 416 SUPREME COURT OF MICHIGAN Judge Woodward, in the case of Roby and Abbott a few days since, decided, that goods, wares and merchandize are considered as money, and evidence concerning them may be given under the money counts, yet, understanding the law to be different, I must insist that nothing of the kind can be re- 11[* p. 174 ceived under them.* It will not be pretended these certificates [*] are * 7 Mass. evidence of an account stated, they do not apply to either of the counts in T. R. 358. the declaration, and are therefore inadmissible. The first transcript being U. S. bad, the second cannot be received, because, at best, it can only be evidence V. after its date, and it was made since the pleadings in the case have been Boyd. closed.- 1822. Sibley. The acts of '95 and '97 are independent of each other. But if not, that of '97 must have force to the exclusion of the other; for where the same subject matter is twice legislated upon, the latter statute virtually repeals the former. The transcripts are well made under the act of '97, and it is not necessary they should contain more than they do. The U. S. are not bound to furnish defendants with the means of their defence. The court must presume, from the words of the transcripts, that the charges are for money, and they will apply to either count. THE COURT - were unanimous that the transcripts were admissible as evidence. - Sibley then read them to the jury, and Stated he had no more testimony [*1 p. 175 on the part [*] of the United States. He made a few comments to the jury U. S. on the evidence. V. Doty - moved for a judgment of nonsuit, because the Dist. Atty. had Boyd. -. not produced certain papers according to the notice given him. At the last 1822. term he informed the Dist. Atty. verbally, that on the trial he should re- quire him to produce a certain contract between the parties, and on the 23d of Septr. last notice in writing to that effect was served upon Mr. S.- He referred to the Stat. of the Territory p. 320, and the 2 v. L. U. S. p. 63, for a Sec. containing the same provisions.- Sibley-said the notice given was not reasonable notice within the mean- ing of the Statutes. THE COURT - overruled the motion. Doty, then introduced as evidence a written contract under seal, between the Ordnance Department by and with the consent of the Secretary at War, and the defendant, dated the 1st. of Octr. 1816, by which the deft. agreed to purchase certain articles as flints, tools for the use of the armories of the U. S. and ten thousand stands of arms, in Europe, and deliver the same at certain places within the U. S., but no time for the delivery was specified. On the contract the U. S. advanced him $6o00oo. for which he gave a bond with two sureties. A certain per centum was to be allowed him on the DOTY'S REPORTS 417 purchases, and any other compensation [*] was to be settled between him [*] p. x176 and the Secy. at War. U. S. It was admitted by the Dist. Atty. and shown by the certificate of the V.' Byd. Comptrr to the second transcript, that the present action is brought for i1822. monies advanced the deft. on this contract.-22. Doty, moved for a judgment of nonsuit. Because the action should have been upon the contract. It is proved the money was advanced upon a contract under seal; and there is no evidence that the contract has been fulfilled or abandoned by either party; it is therefore still in force. And by the second certificate and by Mr. Lee's letter, it does appear the U. S. are still receiving guns upon it- and have received and credited some since the commencement of the suit. But it is not the business of the deft. but of the plff. to show that the contract was closed before this suit was instituted. He argued the question to the court, and offered to read the authorities in support of his motion, but Judge Witherell said "he might keep them for some other occasion, as they would probably be of no use now." The following are the cases he proposed to read- "Assumpsit upon a quant. mer. will not lie, where the parties have made a sealed agreement, under which the labor was done, the work agreed to be done, being in part finished, though the plff. was prevented from fulfilling his undertaking by the deft.; but the action must be brought on the agree- ment itself." Young v. Preston, 4 Cranch 239. [*] "The law will not imply an assumpsit, where there is an express [*] p. 177 promise." 7 Mass. T.R. 107. U.S. "Assumpsit will not lie upon a specialty, where the only contract which V. is stated as the cause of the liability of the defendant, is entirely contained Boyd. in the specialty, and no circumstance is added but such as is provided for 1822. by the specialty." I Cranch 332, I Dallas 208, I Washgn R 170, I Selw. N.P. 8o, Bull. N. P. 139, Strange 638, I Bos. & Pul. 354, I Wilson R. 17.- "An indeb. assumpsit will not lie upon a special agreement, till the terms of it are performed." Gordon & Martin, Fitzg. 302. "Declaration on a special agreement and a quant. mer., if the Special agree- ment is proved, the action is well." Keeks case, 1744. "Where there is a count on the Special agreement, and an insimul com- putasset, evidence may be given on the ins. comp." Douglass 65i. "Assumpsit for money had and received will not lie, when the payment has been made on a contract which is still open, and not given up by the de- fendant." Weston v. Downes, Douglass 23. "Money paid in advance on account of services to be performed, may be recovered back, in case of nonperformance, in an action for money had and received. And the defendant IS NOT bound to show a performance of the agreement on his part; but the plaintiff must prove the non-performance" 418 SUPREME COURT OF MICHIGAN Wheeler & v. Brackett, I2 Johns. R. 363. (In this case of Boyd's, it is admitted the contract was in part performed, and there is no proof as to the residue.) [*] p. 178 [*] "Indeb. assumpsit will not lie for the labor actually performed on a U. S. special contract, a part of which contract has been performed and the V. residue abandoned." "Where the contract is Still in force, the party cannot Bod. B._ resort to the general counts." 13 Johns. R. 96, 14 Johns. R. 326. 1822. "Where a contract is entire, a full performance is a condition precedent to the plffs. right of action." 13 Johns. R. 53. "Where a party intends to abandon or rescind a contract, on the ground of a violation of it by the other, he must do so promptly & decidedly, on the first information of such breach." 17 Johns. R. 437. (This not being done in Boyds case, the contract was continued in force.) "Where a special contract is still subsisting unrescinded, the remedy of the party must be upon the contract." Clark v. Smith 14 Johns. R. 326. The court unanimously overruled the motion for a nonsuit.- (They gave no reasons for the decision) Doty- then proceeded to show, that certain charges, made by the deft., ought to be allowed. On the 24th. Feby. 1821, the U. S. claim $6634.43, as [*] p. 179 appears by the first trans- [*] cript. On the 22d of August 1822, the accounts U. s. are re-audited, and on a charge of $5090.00 for 581 Stands of arms the deft. is v. allowed $4350.00, which reduces the whole claim of the U. S. to $2284.43. Boyd. Another charge in the defts. account is "For 500 guns delivered to T. L. 1822. MCKenney, Superintendent of Indian Trade, together with 700 doz. Indian knives and 100 doz. Fire-steels - $42oo." It was contended, that as the U. S. had recd these articles they should account for them at their price: that on this charge the U. S. have agreed to allow $2239.17, which on neither of the transcripts appears to have been credited to the deft.- As evidence of this acknowledgment he read from a letter written by Mr Lee, 2d Auditor to the deft.- dated the 15th. Decr. 1821. "In respect to the guns turned over by you to Col. McKenney Supertnt. of Indian Trade, he has only been able to dispose of 230 of them at $7. each, which with 700 doz. of Indian knives, and Ioo doz. of Fire steels, amount to the sum of $2239.17 which has been passed to your credit, being less $1960.83 than the amount you con- templated would be transferred to your credit on the books of this office through the agency of Col. McKenney." Thus it appears that in 1819 the bal. due the U. S. is $6634.43 - in Feby. 1821 it is the same, and although [*] p. i8o $2239.17. [*] "is passed to the defts. credit" on or before the 15th. of Decr. U. S. 1821, yet on the 22d Augt. 1822, the bal. is still $6634.43 against him! - for v' it is not pretended this Sum has any relation to the sum of $435o.oo. He Boyd. insisted also that the deft. was entitled to some compensation for his services 1822. and expenses while in Europe making the purchases under the contract, DOT Y'S REPORTS 419 and that there are various other things which this form of action precludes him from availing himself of in his defence. The sum charged for his services was $2200. It is also in proof that Mr. McKenney (one of the agents of the Govt.) recd of the deft. 270 Guns, besides the 230, which he now wishes to return to the deft. because they are unfit for use - having been 4 years in his possession. They must be allowed as recd on the contract, at $1o. each, the rate stipulated upon in the contract.- Judge Woodward charged the Jury that the plffs. demand was supported by the evidence, and that all had been allowed the deft. to which he was entitled. That as to the admission in Mr. Lee's letter it must be taken as it Stood - it stated that the sum of $2239.17 had been passed to his credit, and the jury must presume it was in some manner credited before the date of the letter. The jury returned a verdict for the plffs. for $2421.50 - [*] Doty moved the court in arrest of judgment, and on the ioth. day of [*] p. 181 Octr.- filed with the clerk his reasons for the arrest- U. s. The judgment ought to be arrested because, the action was discontinued v. before the day on which it was tried. The Term and sessions of the court* are Boyd. fixed and regulated by a territorial stat.- see L.M. 314, where the mode of 1822. adjourning the Court from day to day is declared and prescribed. It does not Octr. io appear by the Journal that the court adjourned, on the second day of term, to *Decision in the case of the any other day in the term, or without day; nor that the clerk attended every U.S.ev. Puthoff. day, as is provided by stat., until the court was opened again. The failure to enter the adjournment operated a discontinuance of every case. The persons who tried the case did not compose a legal jury. The 4th. Sec. of the "Act concerning Grand and petit jurors," L.M. 136, provides- that the clerk "shall issue a venire directed to the shff. of the county, and deliver the same to him at least 12 days before each stated session of the court, commanding" &c. "which venire shall be served at least six days before the setting of the court" &c. By an act of Congress, 2 v.L. U.S. 60, Juries in the U. S. courts are to be Summoned and returned in the same manner as they are in the highest court of law where such [*] U. S. courts [*] p. 182 may sit. No venire issued before the term, nor were these persons sum- U. s moned, according to the provisions of the territorial act referred to.- v. This is not the true term of the court when Sitting as a Circuit and District Boyd Court of the United States; nor was the writ returnable to a proper term.- 1822. The court overruled the motion, and gave judgmt for the U. S. [Editor's note: See case A-ioi, Calendar of Cases, supra. Compare United States v. Charles Curry, Transactions, 8o05-18f4, I, 397] 42o SUPREME COURT OF MICHIGAN [*] pp. I83-232 (Editor's note: Pages 183-187 are blank. A newspaper clipping containing a reference to Governor Doty is attached to p. 188. Clippings from the Detroit Gazette (1822) are at- tached to pp. 189-192. These clippings contain the first three of a series of articles entitled "NOTES OF TRIALS, ARGUMENTS, DECISIONS, AND PROCEEDINGS, IN THE SUPREME COURT OF THE TERRITORY OF MICHIGAN-SEPTEMBER TERM, I821. (The entire series is reprinted, infra.) In the margin, opposite the first article, the following appears: "It should not be forgotten that Woodward had been a Judge in this Territory 16 years-Griffin I5 & Witherell 13 previous to this term. This is a fair specimen of their mode of transacting all business during the term, and every term was alike. J. D. D." Pages 193-198 are blank. Pages 199-232 contain clippings from various newspapers. Although containing legal material of general interest, these clippings are omitted as they do not pertain to Michigan.] [ORIGINAL INDEX TO DOTY'S REPORTS] Constitutional Law. The Const. of the U. S. emanated from the people and not from the States; but when adopted, it bound both . . . . . A Territorial government is a corporate body, and is constitu- tional . . . . . . . . . . . . . . . . It is different from a Bank Charter . .... . Congress has power to incorporate a Bank .... . A law passed by a state Legislature, imposing a tax on such bank, or on one of its branches, is unconstitutional . . . . . The Real property of Such Bank may be taxed in common with other real property of citizens; but a tax on the operations of the Bank is unconstitutional ... .. .. Lotteries established by Corp. of Washington City, are author- ised by the Constitution of the U.S.; and any law of a State legislature prohibiting the sale of the tickets of Such Lotteries, is unconstitutional . . . . . . . . . . The powers of the Govt. of the U. S. are restricted by the const., and a rigid construction ought to be given them ... State Constitutional Law. The powers under the State constitutions are the same respec- tively as if they had all been adopted on the same day with the Constitution of the U. S. . . . . . . . . The Sovreignty of a state extends to every thing which exists by its own authority, or is introduced by its permission . . . An act by the Legis. of Kentucky to suspend sales under execu- tions is unconstitutional in that State ......... . It is more than a delay- it is a denial of Justice ....... It subjects the secureties in replevin bonds to a liability beyond their contract .............. p. 201 205 220 206 207-8 208 213-14 218 p. 203 207 DOTY'S REPORTS 421 In the T. of M. if the meaning of the Statute is adopted by the Govr. & Judges it is sufficient- the words are unnecessary The S.C. are not required to put the Same construction upon a statute as is given it in the State from which it is adopted. 46 The Govt. of Michigan is principally despotic . . . . . 48 Execution. Imprisonment upon recommended in N. York ..... 215 An act to Suspend sales under in Kentucky, with the Govr's objections . . . . . 216 Exns. are suspended in Ohio, in certain suits . . . 15 When issued on a conditional judgt. of a justice, the condition not appearing on the record to have been forfeited, deft. dis- charged .... . . . . . . . . . . . . 120 Evidence. Declarations of a persons made some time before his decease as to an agreement to which he was not a party, admitted . . 75 Insolvency. Repeal of the Insol. Laws of N. York recommended . . . . 215 Where a debt is contracted in one country, where both parties reside, and the debtor is discharged under the Insolvent Laws of another, in which neither the creditor or debtor reside, Such discharge is no bar to an action by that creditor, in the coun- try where the debt was contracted . . . . . . . . p. 8 A court will no discharge an insolvent from arrest, on motion . 9 Where fraud is alledged, the court will not try the validity of the charge on affidavit............. O10 An Insolvent act which destroys the obligatory force of a con- tract, is a Bankrupt act . . . . . . . . . . . I Such an act can only affect the remedy; and the Laws of the country where the action is brought, furnish exclusively the remedy . . . . . . . . . . . . . . . . 12 An In. D. who has been discharged under the In. L. of any of the S. must, when applying to be released from an arrest in the T. M. Shew the nature of such discharge, and the Statute under which it was obtained,- . . . . . . . . p. I to 20 Insolvency contd- page hereof Imprisonment for debt. Continuance of, recommended by Chan. Judges of N. Y. . . 215 422 SUPREME COURT OF MICHIGAN Interest, - See Practice. Limitation. In Ohio, in 1813, a judgement was recovered upon a simple con- tract made in Massachusetts in 1786, which, by the Laws of M. would have been forever barred. The Laws of the Country where the action is brought, must alone give character and form to the Species of redress you obtain for the violation of the contract- the rules of that law must govern. The lex loci must furnish the rule in any doubtful matter by which the contract is to be con- strued. The lexfori is to govern in whatsoever relates to the form of action and the nature and incidents of execution . p. I2-13-16 Practice- Mo. in ar. of judgt. because the action was discontd. no regular adjournment of the court having been made. Because the case was not tried by a legal jury . . . 181 Because the case was not returned to or tried at, a proper term of the Court .... . .......... 182 How they make a 7ury in Michigan . . . . . . . 189 A person was arrested in Philadelphia, for a murder committed in Ireland, decided that the arrest was illegal, and he could not have been detained in prison for subsequent delivery to the British Govt. ..... ............... 212 A court will inquire into the legality of an arrest after the process is returned by the officer. The return does not conclude the court 217 The special deputy of a Marshall should be appointed under the hand and seal of the Sheriff, and be sworn . . . . . . 218 A Habeas corpus lies where a prisoner is detained in a civil suit . p. 2 A continuance asked on affdt. because a material witness who resided in the Tery. was absent, due dilligence having been used because there was not a legal jury attending upon the court, nor could one be obtained during the term - because the deft. was an alien and entitled to a j. de m. 1. - and be- cause the plff. did not file his bill of par. until 2 days before the trial. Application overld and jury de m. 1. ordered . . . 21 New trials, when allowed- 38 Reasons for a new trial because the plffs. bill of particulars, which operates as an amendt to the declare was filed too late . . .. 38 because the verdict was contrary to law & evidence . . 40 DOTY'S REPORTS 423 A special contract for goods sold & delivered must be specially declared upon, and cannot be given in evidence under the general counts.. . . . . . . . . . . . . . 40 The court expressed an opinion on the matters of fact . . . 41 That interest was given upon an unliquidated account . . . 43 Because there was a mistrial. The jury was summoned without a venire . . . . . . . . . . . . . . . . 45 A plff. must sue either in affirmance or disaffirmance of his con- tract . . .. . . ... . . . . . . . 56 The court will not compel a plff. to become nonsuit . . .. 59 Interest may be allowed on an acct. which has been presented to the debtor and not objected to, the int. to commence one year after the last charge in the acct. . . . . . . . 60 A venire is not necessary to make a jury . . . . . . . 60 Motion in arrest of judgment .. ... ........... 61 Every fact which constitutes an essential part of a plffs, right should be stated with precision and certainty in a decln. The extent & consideration of defts. promise must be fully set out. No plff. is bound to prove, no deft. required to resist, & no jury can find, what is not stated in the pleadings . . .. 62 Where there is no Stat. allowing interest, the custom of the coun- try must be stated and proved. The com. law never gave in- terest. . . . . . . . . . . . . . . . . 63 If one count be bad, judgt. must be arrested . . . . . . 65 One promise concurrently made with another is a good consider- ation . . . . . . . . . . . . . . . .66 The promise is stated on the same day of the date of the writ- bad . . . . . . . . . . . . . . . . . 67 Is the writ a part of the record? . . . . . . . . . 67 A suit is said to be commenced on the day of the service of the writ . . . . . . . . . . . . . . . . . 67 Will the court intend a promise where none is stated ? . . . 68 The decln. must state to whom the money was paid, or to whose use . . . . . . . . . . . . . . . . . 68 Nothing is presumed after verdict . . . . . . . . . 69 Interest is matter of law, and need not be set out . . . 71 Where some counts are proved & others not, the verdict may be applied to those proved . . . . . . . . . . 72 Where, in the op. of the Court, a verdict should have been given for a deft., but nominal dags. were given the plff., the court will not grant a new trial on the appln. of plff. . .. . 77 424 SUPREME COURT OF MICHIGAN New trial granted because the court were mistaken in the atty. who appeared for deft.,-there being, in fact, no appearance for him ...... . . ................ 79 On appeal-the proceedings in the court below cannot be re- garded by the court above whether erroneous or not.-In- sisted that it might be a proceeding in error .. ..... 89 The return to a writ of Hab. Corp. need not be sworn to. An action for a false return would lie 90 The special deputy of a Sheriff should be apptd. under his hand and seal .................. A sheriff cannot confine his prisoner in a county other than that in which he is shff. or the pr. is arrested, in a civil suit . . 94 A minor, discharged from his enlistment as a soldier, on a writ of Hab. Corp. . ............. .. 101 If a citizen of one country pass to an ennemies country with a flag of truce, or in a cartel, and he is recognized by the military authority as a person attached to such flag, he cannot be ar- rested for a civil matter, though it originate anterior to the war and within such enemies country. Whether a vessel is a flag of truce, or a cartel, and whether any individual is pro- tected by her flag, are strictly military questions and to be determined by that authority . . . . . . . . . 107 If a Justice render a conditional judgt. a forfeiture of the con- dition must appear upon the record before the exn. issued . 120 The certified copy of a justices record, not attached to the re- turn admitted on a hearing upon a Hab. Corp . . . 120 To call a justice "a liar a knave and a fool," while in the execu- tion of his office is a contempt, & the justice may commit the offender, and rule him to enter into recogni. for his appearance to the Sup. C. to answer therefor . . . . . . . . . 127 To say to a Judge, out of court, "that he continued a case when it ought to have been tried-that he was prejudiced against one man and partial to another & that the latter was a damned rascal;-and other violent language and gestures," is a con- tempt, for which the party may be bound to his good be- havior, & to appear at the next term of the court . . . 130 Affdts. for continuances should show seven reasons .... 131 The U. S. have two modes of proceeding against their debtors, and which ever is adopted must be pursued without reference to the other.. ... ............... i68 In such actions the evidence must be governed by the com. law rules ....... ................. 169 DOTY'S REPORTS 425 What is a "transcript used in the Act of Cong.? . . . 170 Mo. to produce papers &.1. . ............ 175 Where there is a Contract, written, when must the action be brought upon it?.............. 176 Terms of the S. C. T. M. Proceedings and argts at Septr. Term 1820 . ..... 85 Residence- What is it................. 100oo Slavery- Is recognized by the U. S. & Great Britain . . . . . . 1 12 But is not permitted in the states of Massachusetts & Ohio, and the Territory of Michigan; nor in the European dominions of G. B. If a person is in any other country a slave, & he finds his way into G. B., she liberates him. Lord Mansfield said "that a right of property could not exist in the human species." A right of property cannot exist in the human species in Michigan, excepting as to persons in the actual possession of British settlers within this territory on the i ith. July, 1796; and every other man coming into this terry. is, by the law of the land, a freeman, unless he be a fugitive from lawful labor and service in some other American state or territory, and then he must be restored ....... ......... .112to I16 A right of property can exist in the human species . . . . 139 Words, "Necessary and proper," in what sense used in the Constn. of U. S. . . . . . . . . . . . . . . . . 203-4-5 Another definition . ...... ............. 219 "Transcript"-"adjustment"--meaning of in Act of Cong. . 170 NAMES OF CASES REPORTED OR CITED [Editor's note: This table appears in the original volume.] A. Anonymous............... .. 131. B. Boyd, The U. S. v. . .............167. BankofU.S.v.Orr ............ ..217. 426 SUPREME COURT OF MICHIGANf C. Chittenden, in the Matter of............... I. Connelly, Higgins & v. . . . . .. 74. D. Denison, in the Matter of................132. E. F. G. Goss, Eliz. in the matter of................ .0 [Grignon, Louis, v. George Johnston...........871 H. Hanson &, in the matter of................117. Higgins &. v. Connelly..................74. I. Jury, Grand, impanneling of 1821...................89. J. K. L. Livingston, in the mat. of................102. Lennington v. Campbell................209" Lottery Tickets....................213. M. Mack v. Chittenden................. McCulloch v. State of Maryland 201. McGirr, matter of....... ............212~ Mahar's case cited..................., 9) 16- N. Notes of Trials, &c.................. 89. 0. DOTY'S REPORTS P. Pattinson, in the mat. of. . Pierce, &., Rathbone v. . . Q. R. Ramsay v. Smart ... Rathbone v. Pierce . . . Robb, in the matter of . . Robinson, in the mat. of . . Roby v. Reaume . . . . Roby v. Abbott-(cited) . . Rolette, in the matter of, . S. Smart, Ramsay v. . T. Tucker, C. & her Slaves U. United States v. Boyd . . United States v. Puthuff (cited) V. W. Whipple, in the matter of 427 o109. 78. . . . 80 . . . 78 . . . 101 . . . 121 . . . 21 . . . 173 . . . 9o 80. 132. 167 18I I 127.  OPINIONS IN UNREPORTED CASES Astor et al. v. Campau ... ......... Court; Opinion Relating to Act defining duties of, etc. Fulton, James, In the Matter of ..... Grant v. Thomas, Earl of Selkirk .. ...... Labady v. Richard . . . . . . . . . . Porter et al. v. Smyth . . . .. Washburn v. Halsey . .. .. . . . . . p. 472 . . . . p. 457 . . . P. P. 454 . . . . p. 43I . . . P. 451 . .. . p. 466 . . . . p. 462  JAMES GRANT versus THOMAS, EARL OF SELKIRK October 13, 1818 j. Arrest on civil process on Sunday is illegal at common law. 2. A person illegally arrested on civil process may be discharged on motion. 3. The court may take notice without trial by the country that an arrest was made on Sunday. As shown by an indorsement on the capias, this action was brought "to recover damages for the illegal imprisonment of James Grant by defendant, and the illegal taking away of Said James from within the limits of the United States into the territories of the King of Great Britain, and the forceable and violent seizure of his property, and for other enormities by the said defendant committed upon the person & property of the said plain- tiff in September & october I816." The amount of damages claimed was ~o,ooo. Woodward, Presiding Judge, authorized the defendant's arrest and fixed the amount of bail at $30,000. The sheriff made the following return: "I have served the within and have the body. September sixth I818." A bail bond was executed on September 6, 1818, upon which the defendant was released from custody. On September 28, 1818, the following motion was made: "Solomon Sibley, atty for the deft and as Amicus Curiae, moves the Court to quash the return of the sheriff, made on the above writ, dis- charge the Defendant from the arrest and cancel the Bail Bond entered into, to the sheriff, conditioned to appear in Court and answer the Pltf in the above action-Because the said Attorney saith and giveth the Court to understand and be informed, that the service of the above writ was made, and the Def thereon arrested, at the City of Detroit in the Terry of Michigan by the sheriff of the County of Wayne, on the sixth day of September, One thousand Eight hundred and Eighteen, the said day on which said arrest was made, being the first day of the week commonly called sunday, con- trary to Law and in violation of the personal rights and privileges of the Deft with costs &." The above motion was argued on October 7, I818, and the matter taken under advisement. On October 13, I818, the motion was granted. Andrew G. Whitney and William Woodbridge, attorneys for plaintiff. Solomon Sibley and Henry Whiting, attorneys for defendant. [Syllabi and statement of case by Editor; opinion by Augustus B. Woodward, Presiding 7udge.] 43 1 432 SUPREME COURT OF MICHIGAN [OPINIONI In the Case of JAMES GRANT against the Right Honorable THOMAS, Earl OF SELKIRK; on a motion from the noble defendant to be discharged from his arrest, on the ground of the same having been made, between nine and ten of the clock, on a SUNDAY morning. Two questions have arisen min this case; first, whether the arrest on SUN- DAY was legal; and, second, whether, if otherwise, it is competent for this Court to discharge the noble defendant on motion. In support of the legality of the arrest, it has been contended, by the learned counsel, who have appeared for the plaintiff, that, at the common law, the service of process, on SUNDAY, was lawful; that the Statute of the twenty ninth year of CHARLES the Second, chapter seventh, prohibiting the execu- tion of process upon SUNDAY, was never in force in this country, unless between the years 1763 and 1783; and that the Statute of the General As- sembly of the Territory of the United States North West of the River Ohio, having in view similar objects, is not, now, in force, in the Territory of Michigan. The learned counsel, who have appeared for the noble defendant, relying on the continuance in operation of the Statute of the North Western Terri- tory, have, in my humble judgment, too hastily conceded the point, that, at the common law, the arrest on SUNDAY was lawful. The English authorities, on this subject, are very imposing; but, I con- ceive, on a careful analysis of them, the result, which has been deemed, by the counsel for the plaintiff, inevitable, is far from being so certain. The most ancient case, that can now be referred to, is that of JOHN MACKALLEY; which occurred in the reign of King JAMES THE FIRST; and is reported by Lord COKE. COKE'S REPORTS, Part IX, Folio 66. This is a case written in blood; nor is it surprizing that the perseverance of justice, and the feelings of the community, exacted the life of the offender. But more is decided in this case; or, at least, from the manner of reporting it adopted by Lord COKE, appears to be decided; than the case itself required. In a judicial decision, the principle will be found to be as correct, as in another branch of learning; that more causes are not to be assigned than are adequate to produce the effect. RICHARD FELLS was a Serjeant of the Mace, in London. On SUN- DAY, the eighteenth day of November, in the eighth year of King JAMES the First, being the year I611, between the hours of five and six of the UNREPORTED CASES 433 clock, at night, he arrested Sir JOHN MURREY, in the name of the King, at the suit of ROBERT RADFORD. JOHN MACKALLEY was a ser- vant of Sir JOHN MURREY; and, being commanded by his master, to draw, drew his sword, and thrust RICHARD FELLS with it, giving him a wound, of which he instantly died. Here it is sufficient to decide THAT THE PARTY OUGHT, AT HIS PERIL, TO OBEY THE OFFICER ARRESTING HIM, IN THE NAME OF THE KING; AND THAT, IF THE PROCEEDINGS ARE ILLEGAL, HE MAY HAVE HIS ACTION OF FALSE IMPRISON- MENT. 2. Bulstr. 65. Godb. 403. 4. Coke 40. 41. Hal. Pl. Cor. 41. 45. 46. 345. 5. Coke 92. i. Hawk. P. C. 128. 6. Coke 54- 3. Inst. 52. 56. 9. Coke 61. 65. 66. 68. 69. Jenk. Cent. 291. io. Coke 76. Latch 223. Cro. Car. 183. 371. 538. Moor 767. Cro. Eliz. I64. 2. Roll 493. Cro. Jac. 3. 280. 485. 486. Say. 63. Sum. 45. 46. But to decide THAT ALL MINISTERIAL ACTS MAY BE LAW- FULLY EXECUTED ON THE SUNDAY; THAT ALL PROCESS, CIVIL AS WELL AS CRIMINAL, MAY BE SERVED ON THAT DAY; is to decide more than was necessary to justify the execution of MAC- KALLEY, more than the case under adjudication required, and, as I humbly conceive, what was in contravention of the Common Law, at that era. The original SUNDAY, regarded by Christians, assumes it's date from the fifth day of April, in the year thirty-three, of the existing era. On that day, the SAVIOR of MANKIND arose from the dead; and, on that day, he appeared to his disciples, and received their worship. The first evidence of it's recurrence, as a day of religious assemblage and worship, is afforded in the twenty-sixth verse of the twentieth chapter of the Gospel of Saint JOHN. It's recurrence again appears in the second chapter of the ACTS of the APOSTLES; for, on comparing the text of it's first verse with that of the sixteenth in the twenty-third chapter of LEVITICUS, there cannot remain a doubt that the PENTECOST, or fiftieth day, when the Apostles were, thus, all assembled with one accord, in one place, was SUNDAY. It's further observation and recurrence are proved, by Saint LUKE, in the twentieth chapter of the Acts of the Apostles; and, by the Apostle PAUL, in the sixteenth chapter of his primary epistle to the Church of Corinth. 434 SUPREME COURT OF MICHIGAN That SUNDAY had, at a very early period, acquired its appropriate appellation of CYRIACA HEMERA, DOMINICA DIES, or THE LORD'S DAY, is manifested by the Apocalypse. Saint JUSTIN, one of the earliest philosophers of Heathen antiquity converted to Christianity; who attested with his blood the sincerity of his faith, and who lived within a century from the first SUNDAY; notices the regular observance of the day, in his time. He assigns, as a reason for the observance of Sunday, the circumstance of its being the first day of the creation of the world; in addition to its being the day of the resurrection of the Savior. The Fathers DENIS, CLEMENS of Alexandria TERTULLIEN, CY- PRIAN, AUGUSTIN, attest the continuance of this Christian observance; and bring down the evidence even to the fifth century. The primitive Christians, notwithstanding their selection of this day for public worship, yet, in other respects, used all days alike; making no ex- ception in favor of Sunday. They proceeded, even, one step farther. They gave a PREFERENCE to Sundays, for judicial transactions. For these practices they had two reasons. The first was, in order to mark, with greater precision, the line distinguish- ing Christianity from Paganism. The Heathens were superstitious observers of days and times; regarding some as peculiarly ominous and inauspicious, and others as of an eminently opposite character. The Christians laid aside ALL superstitious observance of days. The second was, by keeping the tribunals among Christians ALWAYS open, to relieve Christian suitors from the necessity of repairing to the Heathen Courts. The first recognition of Sunday as one of the Roman FERIAE, or HOLIDAYS, took place under the Emperor CONSTANTINE, in the year 321. In that character, it became distinguished as a day of exemption from ordinary labor, and from pleadings in courts of justice; nor is it, in the slightest degree, improbable that it was, then, accompanied with the personal privi- lege of protection from arrest, in civil cases. For the imperial constitution of THEODOSIUS, the Younger, whose reign terminated in 450, beginning "UT IN DIE DOMINICO," and which was itself made in confirmation of the previous constitution of the Emperor CONSTANTINE, beginning "SICUT," recited in the Theodosian Code compiled in the year 438, under the title "DE FERIIS," and in the Justinian Code, compiled about the year 533, under the same title, contains the fol- lowing enactment: "SOLIS DIE OMNIUM, OMNINO, LITIUM ET NEGOTIORUM QUIESCAT INTENTIO:" "ON THE SUNDAY, LET UNREPORTED CASES 435 THE BRINGING OF ALL SUITS, AND CASES AT LAW, BE, AL.- TOGETHER, SUPPRESSED." And the Emperior LEO, whose reign terminated in the year 474, January the twenty sixth, and the Emperor ARTHEMIUS, his contemporary, in the law preserved in the Code of JUSTINIAN, numbered eleven, beginning "DIES FESTOS," and under the title, "DE FERIIS," or, "CONCERN- ING HOLIDAYS," forbade "the making of any executions, or PURSUITS, for debts, whether of a private or of a public nature," on those Holidays; "willing," as the law expresses it, "that all affairs, and all INSTRUCTIONS "OF PROCESS, should cease; that the OFFICERS OF JUSTICE should "dwell in REST, and in SILENCE; and that the PARTIES should enjoy "PEACE, in that interval, in order that they might MEET TOGETHER "WITHOUT FEAR, and, without relaxing the sanctification of the day, con- "fer upon reconciliations and arrangements." And the enactments of THEODOSIUS, and of LEO, are, evidently, not new and original laws; but, obviously, re-enactments and enforcements of preceding regulations. This observation of Sunday in the character of a Public Holiday recog- nized, under the authority of the State, as a day of general exemption from labor, and from civil process, and as, therefore, emphatically, a dies non juridicus, soon received the sanction of the Ecclesiastical or Canonical Law; and was confirmed by a succession of Councils, reaching even to modern times. In the year 517, a canon appears, probably from a Council held under the Emperor ANASTASIUS the First, prohibiting the adjudication of causes on Sunday. This is followed by several others. The Council of Meaux, in the year 845, forbade the taking of an oath, in justice, in a civil case, on Sunday. The Council of Tribury, about the year 895, in terms which will, pres- ently, be exactly quoted, inhibited secular dignitaries from coercing popular attendance on Sundays. A canon against secular pleas on Sundays was made by the Council of Erpfurd, in the year 932, and enlarged by the Council of St. Medard. These canons became general, and were taken into the body of the Canon law, by GRATIAN, about the year I S1. Pope GREGORY the Ninth, who was elected in the year 1227, having been consulted, if it should be permitted to execute acts of justice on Sunday, decided that neither process, nor judgment, could be sustained on that day; not even by consent of parties. The fourth Canon of the Council of Bourges, in the year 1584; a Council which had been preceded, in similar regulations, by that of Tours, in 1583; 436 SUPREME COURT OF MICHIGAN and those, by that of Milan, in 1573; uses a language which is very com- prehensive and expressive. "DOMINICO DIE CESSENT SAECULARIA OPERA, CESSENT LICTORES, SILEAT PRAECONIS TUBA, CON- TRACTUS, NOTARIORUM INSTRUMENTA; NISI QUAE EX NEC- ESSITATE TESTAMENTORUM, AUT MATRIMONIORUM CAUSA, DIFFERRI NON POSSUNT." "On the Lord's Day shall cease secular operations, shall cease the executive officers of justice, shall be silent the trumpet of the Crier. Contracts, and Notarial instruments," shall not be made; "ex- cepting those which, from the necessity of Wills, or on account of Marriages, cannot be deferred." The civil authorities, on the rise of the Feudal Thrones, will be found advancing, with a step alike regular and firm, in the same career. CHILDEBERT, king of France, in the year 554, enjoins his subjects honorably to celebrate the Sundays and Holidays commanded by the Church; adopting, nearly, the language of CONSTANTINE, on that subject. By an ordinance given at Macon, in the year 585, GONTRAN, King of Burgundy, commanded that all pursuits of process shall cease on Sunday. The Emperor CHARLEMAGNE, by an edict of the year 813, expressly prohibited "pleadings from taking place, or judgment of death, or of any other punishment, from being rendered on Sunday." The Emperor LOUIS the First, the son and the successor of CHARLE- MAGNE, whose reign terminated on the twentieth day of June, in the year 840, repeats the same capitular. These two emperors adopt the very words of the first Canon referred to, that of the year 517. It remains to enquire how far the regulations of CONSTANTINE, adopted by the Canonical Law, and thence transferred to the Civil Codes of Christendom, are ingrafted into the Common Law of England; and then, more particularly, to examine whether an arrest, on civil process, on Sunday, be an infraction of that law. That system of regulations and enactments, which bears the grand, and widely circulated, appellation of "THE COMMON LAW," receives its date from the third day of September, in the year i 189. On that day, being the epoch of the coronation of RICHARD Coeur de Lion; and the first monarch of the name of RICHARD on the English throne; the "COMMON LAW" became complete, and insusceptible of any additions. The Common Law is composed of the unwritten, and of the written, law of England, anterior to that sera. The first Christian monarch in England was ETHELBERT King of Kent. He espoused BERTHA, daughter of CHARIBERT, King of Paris. UNREPORTED CASES 437 On her invitation, Saint AUGUSTINE, with forty associates, was dele- gated, from Rome, by Pope GREGORY the First, to convert Britain to Christianity; and he succeeded in the mission. This event took place about the year 596. The Christian religion always implies, produces, and sustains, civilization and learning; and the Common Law, anterior to this sera, could not have begun to assume a written form; since the English were, previously, without an alphabet. What we possess of it may thus be considered as matured by a regular growth of six centuries. Until the reign of King HENRY the Eighth, which terminated in the year 1547, England continued a Roman Catholic country. The Christian religion, in the form then bearing the denomination of the Catholic, the Apostolic, and the Roman, was a part of the Common Law. The civil law was, in its primary stages, identified with the ecclesiastical law; and the whole administration of civil justice, in England, was, originally, in the hand of ecclesiastics. In England, accordingly, the Canons made by the early Councils, re- specting the observation of Sunday, and the other Holidays, were received, and were implicitly adopted, by the Saxon, and by the Danish monarchs. King EDWARD, the elder, the son of ALFRED the Great, who succeeded to his throne in the year 9oo; and who, imitating the wise policy of his father, in erecting the University of Oxford, founded that of Cambridge; with a view to enforce the Canonical Law, and the regulations of the Church, prohibited, expressly, "ALL PROCEEDINGS IN LAW," on the Canonical Holidays. King CANUTE, the Dane, a century later, having secured his triumphs over the Saxon dynasty, used the precaution to re-enact, in express words, the previous regulations of King EDWARD, the elder. EDWARD the Confessor made the following constitution: "PAX DEI, ET SANCTAE ECCLESIAE; PER OMNE REGNUM, OMNIBUS SABBATIS, AB HORA NONA, ET TOTA DIE SEQUENTI, USQUE AD DIEM LUNAE, &C." "THE PEACE OF GOD, AND OF HOLY CHURCH," shall be maintained, "THROUGHOUT THE WHOLE KINGDOM, ON EVERY SATURDAY, FROM THREE OF THE CLOCK IN THE AFTERNOON, AND DURING THE WHOLE OF THE SUCCEEDING SUNDAY, UNTIL MONDAY." These Canons and Constitutions were all confirmed by WILLIAM the Conqueror, and by HENRY the Second, the immediate predecessor of RICHARD the First, surnamed Coeur de Lion; "AND SO," to use the precise words of Lord MANSFIELD, as reported by Sir James BURROW in the case of SWANN and BROOME, "BECAME PART OF THE COMMON LAW OF ENGLAND." 438 SUPREME COURT OF MICHIGAN The latter of these monarchs, HENRY the Second, expressly extended the canonical regulations, respecting the sanctity of the Lord's Day, into the Forest Laws. By the laws and ordinances of the POURALLEES, a term afterwards modernized into purlieus, made in the thirtieth year of King HENRY the Second, or in the year I184, at Woodstock, and commonly called the Assizes of Woodstock, it is enacted that "no Pourallee-Man may hunt on the Lord's Day, commonly called Sunday; for that is wholly appropriated to the service of Almighty God, and, by his Laws, appointed to be kept holy, and not be prophaned by using or doing any worldly business therein." Under the reign of King EDWARD the First, about the year 1275, several alterations and relaxations, with respect to days to be observed, and the manner of observing them, were introduced. In the reign of EDWARD the Third, about the year 1377, a clergyman, on any day, was privileged from arrest in going to the church, and in return- ing, and while engaged in performing divine service. This regulation was afterwards fortified in the reign of Queen MARY, about the year 1554. A Statute, passed in the reign of HENRY the Sixth, about the year 1449, particularizes Good Friday, as one of the Holidays to be observed with the same solemnities as Sunday. At the dawn of the Reformation it was enacted, in Parliament, "that the Canonical Law should still be used and executed." As the Reformation advanced, not a little vacillation was manifested, both with respect to the number of the true Holidays, and with regard to the manner in which they ought to be observed. In a Statute of EDWARD the Sixth, about the year 1553, the Holidays were recited; and, including the Sundays, the days of the Saints, and the Vigils, they amount to one hundred and fifteen days in the year. They were afterwards reduced to about one hundred. King JAMES, the First of Great Britain, in whose reign the existing United States of America were colonized, June the 26th 1607, issued, in the year 1618, a proclamation allowing of sports on Sundays, after divine service; and it was the policy and practice, both of that reign and of the succeeding, to encourage them. While the Roman Catholics multiplied Holidays, and often celebrated them with a portion of positive festivity; the Lutherans admitted many in addition to the Sundays, and generally observed them all with a degree of ease, and of sociability. The Calvinists, on the other hand, were inclined to limit the sacred days to the Sundays, and to observe those with a pe- culiar sanctitude; regarding any degree of unnecessary labor, of festivity, or of amusement, as amounting to a profanation. The Puritans not only invested the DAY of the LORD with the rigorous quietude of the Jewish UNREPORTED CASES 439 SABBATH; but were, even, disposed to reduce the time of its commence- ment and close to a conformity with the Levitic ritual. "From even unto even shall ye celebrate your Sabbath." The original regulations of CONSTANTINE, and afterwards the Stat- utes of England, excused from their operation, respectively the laborers of harvest. At length the Britannic Statute, made in the reign of CHARLES the Second, in the year 1677, definitively settled the civil character of Sunday, in relation to the British dominions; and from this source have emanated those American Statutes, on the same subject, a temporary suspension in the operation of one of which has given origin to the question, that has just been agitated with such animation. The total inhibition of judicial proceedings, including, in express terms, exemption from arrest in civil cases; the suspension of the ordinary labors of the community; and the tranquil protection of religious assemblies; compose the principal general features, constituting the civil characteristics of the Sunday, in the United States of America. In order to determine whether, without the intervention of a statutory enactment, exemption from civil arrest, on Sunday, existed at common law, it becomes, now, necessary to find the correct construction of the terms "PAX DEI ET SANCTAE ECCLESIAE"; "The Peace of God and of Holy Church."-If arrest, on civil process, on Sunday, be an infraction of that "PEACE," the exemption exists.-If it be not inconsistent with this "PEACE," arrest, on Sunday, will be legal. To ascertain the correct construction of the terms, "Pax Dei et Sanctae Ecclesiae" "The Peace of God and of Holy Church," it is obvious that the interpretation must be sought from the canonical or ecclesiastical docu- ments and writers, in preference to all others; and particularly from those of the contemporary or vicinous ages. The Councils, the Popes, the Roman Emperors, the distinguished and celebrated Theologians, BABIN, CABASSUT, COLLET, NAVARRE, PONTAS, SOTO, TOLET, all maintain a uniform and consistent tenor; and such as is little liable to any misapprehension. Minute references to some of these documents and writers, and others, will be found in the subjoined list of authorities. I do not here recite these authorities because they are so numerous; and the list of them is constructed in a manner similar to that before presented. From the canonical documents and writers, the following facts, principles, and doctrines, are deduced. All acts of civil justice, which were founded in FORCE, which were at- tended with any degree of violence, with contention, with disturbance, with noise, with tumult, were deemed a violation of "the Peace of God and of 44o SUPREME COURT OF MICHIGAN Holy Church"; and, as such, were inhibited on Sundays, and on other days regarded as holy. "Debet judicialis strepitus conquiescere"; are the words of Pope GREGORY. "Let the sound of judicial proceedings be hushed." The following are the words of BABIN, Dean of the Faculty of Theology at Angers, in France; in his Ecclesiastical Conferences of that Diocese, as reduced by the order of Bishop VAUGIRAULD. "On ne doit faire aucun difference, entre l'obligation de sanctifier les Fetes, et l'obligation de sanc- tifier les Dimanches." "No distinction must be made between the obligation of keeping the Sundays holy, and the obligation of keeping the other Holi- days holy." He adds that the Popes and the Councils make no such dis- tinctions; nor the Princes, when they make laws obliging their subjects to perform what the church has ordained, respecting the celebration of Holi- days. No distinction is made between Sundays and the other Holidays in the law, reported by Eusebius, in his life of Constantine; none in the ordi- nance of Childebert, King of France; none, as to Sabbaths, in the book of Nehemiah. Extraordinary assemblages of the people, on Sunday, at any other places than the church, or having their origin in any other than religious purposes, were deemed a violation of that "peace," which the ecclesiastical law re- quires. "Nullus comes, nullusque omnino secularis, Diebus Dominicis, placitum habere, sed nec populum illo praesumat cohercere;" is the lan- guage of the Canon, made in the Council of Tribury. "No Count, no merely secular person, shall be allowed to hold pleading, nor presume to coerce the attendance of the people on him, on Sundays." Even the administration of an oath, on Sunday, was deemed a violation of its peculiar quietude. "Decrevit Sancta Synodus ut, in Diebus Dominicis, nullus supra Sacra Evangelia jurare praesumat;" is the language of the Council of St. Medard. "The Holy Synod has decreed, that no one shall presume to swear upon the Holy Evangels, on Sundays." "Tous les actes de Justice, qui se font avec bruit et contention, sont defendus, les Dimanches, et les Fetes." This is the language of the "Con- ferences of Angers." "All acts of justice, which are attended with noise, and contention, are forbidden, on Sundays, and Holidays." The proceed- ings of the Palace, as they are termed, turn away the faithful from the wor- ship of God, and works of piety. The Justinian Code ordains that, on Sun- days and Holidays, "the noise of the palace shall be made to cease." It forbids "pleading" on those days. In 845 the Council of Meaux, as has been already stated, forbade oaths on Sunday. "Le Concile de Bourges vent que les Huissiers, et les Sergens, s'abstien- nent, tout-i-fait, de leurs fonctions, les jours de Dimanches." "The Council of Bourges desires that Bailiffs and Serjeants abstain altogether, from their functions, on Sundays." UNREPORTED CASES 441 "Vetant leges plurimae, ne, diebus festis, habeantur strepitus forenses; imo, quidquid fit, tunc temporis, judicialiter, ipso facto, irritum est." "Many laws prohibit the bustle of forensic business on Holidays. Nay, whatever is done, at that time, judicially, is ABSOLUTELY void." This is the language of the "Institutiones Theologicae," of Collet. "Les Gens de Justice doivent s'abstenir de tous jugemens, et procedures du Barreau; afin que les Fideles ne soient point distraits, par le soin des affaires temporelles, de l'application avec laquelle ils doivent s'occuper de Dieu et de ce qui regarde leur salut." "The People of Justice ought to ab- stain from all judgments, and proceedings of Court, in order that the Faithful may not be at all distracted, by the care of temporal affairs, from the ap- plication with which they ought to occupy themselves with God, and with what regards their salvation." These terms are extracted from the cele- brated "Dictionary of Cases of Conscience, or Decisions of the most con- siderable difficulties touching Morality, and Ecclesiastic Discipline, drawn from the Scriptures, the decrees of Councils and Popes, the Fathers, and the most celebrated Theologians and Canonists," by Monsieur PONTAS. Many acts, connected with the administration of justice, and of political concerns, which were unattended with violence, were permitted by the Ec- clesiastical, or Canon Law, on Sundays. The execution of a Will, by a sick person, was permitted. Contracts of marriage were lawful. It was permitted to take possession of a benefice. The enfranchisement of slaves, being regarded as an act of charity and mercy, was lawful, on Sundays. The election of officers, to sustain a public charge or trust, was lawful on that day. The deliberations of the Parochial Assemblies were usually held on Sun- days, after the celebration of Mass; on account of the difficulty of assembling the people on work-days. The oppositions and protestations of parties interested were also received, on that day, against the acts of such assemblies. Citations were generally published on that day, or delivered after the celebration of divine service; and, accordingly, in England, at this day, it is lawful to publish or deliver a citation, emanating from an Ecclesiastical Court, on Sunday. Advocates might attend, on that day, out of the hours of divine service, to professional concerns, "except6 celles qu'ils ne peuvent faire qu'avec le bruit du Palais, qui doit tre ferm6 en ces jours," say the "Conferences of Angers:" "excepting those which cannot be made without the noise of the Palace, which ought to be shut on that day:" that is to say, when converted into the correlative language, applicable to our republican institutions, 442 SUPREME COURT OF MICHIGAN excepting those which require the intervention of civil magistrates and officers, whose functions must rest on that day. These are some of the transactions permitted on Sunday by the Canonical Law. But games, Theatrical exhibitions, those of the Circus, combats of ani- mals, fencing, spectacles, shows, gaging stocks, plays, sports, feats of ac- tivity, frolics, profane music, fortune-telling, fowling, fishing, frequentation of inns, taverns, and drinking-houses, pleasure-parties, luxury, debauchery, and, generally, all profane diversion; traffic, dances, hunting, public enter- tainments, and a variety of other abuses; relics of Paganism, which have been introduced into some Roman Catholic countries and others; are, en- tirely, contrary to the Ecclesiastical Law. Such is a faithful representation of the doctrines and expositions of the Canonical writers, relative to the peace of God and of Holy Church; and the consequent quietude of the Christian Sabbath. Nor did the DAY OF THE LORD alone, but the HOUSE OF THE LORD also, according to the Canonical Law, extend its protecting aid against the pursuits of justice. Dire necessity might, indeed, yield to the civil arm some dreadful offenders; but generally the altar, and the temple, served as the ultimate asylum, even to criminals of the deepest die. A particular examination whether an arrest, on civil process, on SUN- DAY, be an infraction of this peace of God and of Holy Church, insisted on by the Canonical Law, will, of course, close the present branch of this enquiry. Arrest is the seizure of the person, in order to coerce response to a plaint. It is, in its nature, an act of force. The force may, and when requisite must, be actually exerted; and, when no actual force exists, the law implies it. The defendant, when arrested, must either be conducted and committed to prison, or put in bail. The method of putting in bail is by entering into a bond or obligation, with one or more sureties, to guarantee the appearance of the defendant at the return of the writ. When reason alone is competent to solve a moral question, it is a right, it is a duty, it is one of the attributes of the human mind, with which it is invested by the Creator for the wisest purposes, to rely on its dictates, in- dependently of extrinsic authority. It is also a sound rule in the illustration of any law, that the main object which it has in view is to be regarded as the principal guide in its construc- tion. The previous state of the law, as it would have subsisted without the new enactment, is, therefore, to be first adverted to; the evil intended to be remedied is to be next contemplated; and, lastly, the remedy is to be con- sidered which has been provided to relieve against this evil. It is the duty of those, who are called to judge of the law, so to construe it, as at once to obviate the evil, and to advance the remedy. UNREPORTED CASES 443 Now what was the object intended to be effected by rendering SUNDAY an injuridical day? Was it not to promote the worship of God in universal tranquillity? The object of the inhibition is to free the mind from the cares, the busi- ness, and the affairs of the world; to divest it of fear; to fill it with peace; and to enable it to turn its undiverted attention to the worship of the Deity. Now the mere formality of ordering the suit, or preparing any papers or writs relating to it, is not that which gives to the mind of the defendant the disturbance contemplated to be guarded against. It is the service of the process which has this effect. It prevents the de- fendant from repairing to the public worship of the Deity, or takes him from the House of God to the Prison, or requires him to seek for, and to obtain, surety to appear, and to answer the complainant. To prevent a person from repairing to the public worship of the Deity, to take him from the bosom of the church, in the act of divine service, to oblige him to apply and search for bail, to require from him, and them, the execution of a bail-bond, or, otherwise, to drag him to a prison, and to con- fine him therein - these acts make that tumult, that violence, that din, that disturbance, that strepitus, that violation of the peace of God and of the holy church, which is so odious in the eyes of Christians, on the day respected by them as so peculiarly sacred. Reason, therefore, is amply adequate to pronounce, that arrest, on civil process, on SUNDAY, is totally inconsistent with the object, the spirit, and the intention, of the enactment. But the aid of express and plain authorities is abundant, to fortify, and to confirm, the inference. The expressions used by the Roman Emperors, by the Popes, by the Councils; the interpretations given by the civilians, and by the theological writers and expositors; are plain enough not to be susceptible of mistake, misapprehension, or misconstruction. Intentio litis, or negotii, in the language of the Romans, as we are in- formed by Cicero, and by Quintilian, signifies to commence a suit against a person; as depulsio signifies to defend it, or to plead not guilty. The enactment, therefore, of the Theodosian statute is as broad, and as express, as language can make it. "Solis die, omnium, omnino, litium et negotiorum quiescat intentio." "On the day of the Sun, let the bringing of all suits and actions at law be, entirely, suspended." So the Justinian Code inhibits, among other things, pursuits for debts, whether public or private, and all suits and preparations of process, and prescribes to the executive officers of justice absolute rest and silence; and expressly designates the object of its injunctions to be, that the parties, on the sanctified day, may enjoy peace, and assemble without fear. 444 SUPREME COURT OF MICHIGAN So, also, Pope Gregory forbids, even that the consent of parties shall jus- tify the service of process on SUNDAY. Thus, too, the language of the Council of Bourges plainly implies that an officer cannot serve process, and that a contract, or bail-bond, cannot be lawfully executed, on SUNDAY. "Cessent saecularia opera, lictores, con- tractus, notariorum instrumenta." The ordinance of the King of Burgundy prohibits pursuits of process on Sunday. The forensic strepitus, judicial assemblages, the administration of oaths, pleadings, judgments, acts attended with noise or with contention, are par- ticularized, as we have seen, by the Councils, and by the Canonical exposi- tors, as inconsistent with the quietude of Sunday; and bailiffs, serjeants, and officers of courts, are, pointedly, enjoined, on that day, to abstain alto- gether from the exercise of their functions. Lastly, the THEOLOGICAL INSTITUTIONS declare that whatever acts relating to justice are done on Sunday are absolutely void. "Imo, quidquid fit, tunc temporis, judicialiter, ipso facto, irritum est." I am, therefore, of opinion, according to the most luminous authorities which I can obtain, and from the best judgment which I can form, that arrest, on civil process, was not, at the Common Law, legal on Sunday. The statute of Charles the Second appears to me to be an enactment of the previous Common Law, so far as it relates to this particular point. It is not surprizing that in the struggle between the Protestant and the Roman Catholic interest, in England, the Common Law, on these subjects, should have been somewhat disturbed; nor that an express statutory pro- vision, to regulate them, should have become requisite. The English law writers, reposing an implicit reliance on the dictum, given in the case of Mackalley, have treated this question with unusual careless- ness. Hence the latitude of assertion in Croke, Comyn, and other eminent juris consults of England, that "ministerial acts might, at common law, be legally executed in the Sunday." The question indeed had become, by the statute of Charles, divested of all interest; nor is it by a co-incidence of events the least singular and surprizing, that it has suddenly acquired so much importance, at this time, and in this country, in the case of the Earl of Selkirk. Deeming arrest, on civil process, illegal on Sunday, at common law, I am not bound to approach any of the ingenious questions which have been raised relating to the local statutes. It may be conceded that the English statute, and that the statute of the North Western Territory, are repealed by the law of the sixteenth of September 1810, entitled "An Act to repeal all acts of the Parliament of England, and of the Parliament of Great Britain, within the Territory of Michigan, in the United States of America, UNREPORTED CASES 445 and for other purposes;" and, yet, the arrest of the Earl of Selkirk, on Sunday, will not remain legitimate at the Common Law. The following is as correct a reference as I have been able to make to various authorities establishing, supporting, and illustrating, the principles, the doctrines, and the facts, adverted to in the preceding part of this in- vestigation; relative to SUNDAY, and the Sabbath, generally. They are alphabetically arranged Acts. c. i. passim. c. 2. v. I. c. 13. v. 14. 27. 44. c. 15. v. 21. c. 18. v. 4. c. 20. v. 7. I6. Ainsworth's Lat. Dict. in verbis, Depulsis, Intentio Negatium. 5 Ann. c. 9. Asylum. i Gregory 179. I Atkyns. 55. Babin. 347.408. 4 Bacon. 456. Belsham's Review of Wilberforce 20. 133. 139. 140. 141. 142. 203. I Blackst. Comm. 64. 65.66. 67. 68.69. 70o. 71. 72. 73.79. 80. 82. 83. 87. 3. Blackst. Comm. 6I. 63. 277. 289. 4. Blackst. Comm. 59. 401. 402. 403. 404. 405. 408. 420. I BI. Rep. 499. 526. 2 Bl. Rep. 1273. 1314. I H. Bl. 628. Britton. c. 53- 2 Bulst. 72. 3 Bulst. 206. 3 Burrow 1595, 1596, 1597, 1598, 1599, 16oo, 16oI, 1602. Buxtorf. Judaica Synogoga. c. 10o. 12. i Car. I. cap. I. 3 Car. I. cap. 4. 29 Car. II. c. 7. Cawley 78. Cicero. Intentio. 5 Coke 83. 8 Coke 127. 9 Coke 66. b. Co. Litt. 135. Collet. 167. I68. 169. 170. 171. 172. 173. I74. Coloss. c. 2. v. 16. 17. 6 Comyn, 317. 318. 319. 320. 321. Conferences Eccl6siastiques du Dioc6se d'Angers. 347.4o7.408.409.410.411. I Cor. c. I. v. 18. 20. c. 16. v. I. 2. Cro. Car. 602. 446 SUPREME COURT OF MICHIGAN Cro. Jac. I6. 279. 280. 496. Cro. Eliz. 227. Cyriaca Hemera, Greek Original, Rev. c. I. v. 10. 2 Dall. 213. Deuteronomy, c. 5. v. 12. 13. 14. 15. c. 16. v. 9. 10o. 11. 12. 13. 14. 15. Dictionnaire des Cas de Conscience de M. Pontas. 415. 416. 417. 418. 419. 420. 421. 422. 423. 424. 425. 426. 759. 760. 761. 762. 763- 764. Digest of the Laws of the Territory of Michigan, by Governor Cass, Title, REPEALING ACTS, pages I19. 120. Dominica Dies. Vulgate. Rev. c. 1. v. 10. Dugd. Cr. J. 89. 90. Dyer, 168. Ecclesiastes, c. 3. v. 4. 3 Edw. I. c. 51. 50 Edw. III. c. 5. 12 Edw. IV. 8. b. pl. 22. 6 Edw. VI. c. -. i Eliz. c. I. Encyclopaedias; articles Asylum, Lord's Day, Sabbath, Sunday. 18 Enc. Brit. 417. 2 Esp. 227. 228. or 604. 605. Evidence 409. 539. N. P. Ca. 99. Esther, c. 9. v. 17. 18. 19. 20. Eusebius, Life of Constantine, Lib. 4. Exodus, c. 12. v. 14. 15. 16. 18. 19. 20. c. 13. v. 6. 7. c. 16. v. 22. 23. 25. 26. 27. 29. 30. c. 20. v. 8. 9. 10. II. c. 23. v. 12. 15. c. 31. v. 13. 14. 15. 16. 17. c. 34. v. 21. 22. c. 35. v. 3. Ezekiel. c. 18. v. 5. 9. c. 20. v. 10o. II. 12. c. 22. v. 8. Fitz-Herb. Nat. Brev. 36. Garth 504. Genesis, c. 2. v. 2. 3. c. 7. v. 4. 10. c. 8. v. 4. 10. 12. c. 29. v. i8. 20. 27. 28. 30. Godb. 280. Hal. Hist. C. L. 102. 162. Hale's P1. Cor. 45. I Hawk. P. C. i1i. Hebrews, c. 4. v. 4. 27 Hen. VI. c. -. 25 Hen. VIII. c. 19. Index, Chronological, to Eyre and Strahan's Bible, London, 1772. Year after Christ 33. misprinted before. Index to the Holy Bible. Oxford. Dawson, Bensley, and Cooke. 1800. Year after Christ 33. UNREPORTED CASES 447 2. Inst. 220. 264. 265. 4. Inst. 259. Institutiones Theologicae, 167-174. Iremaeus. sabbatizat. Isaiah, c. 56. v. 2. 4. c. 58. v. 13. 14. c. 66. v. 23. Jenk. Cent. 291. Jeremiah. c. 17. v. 2I. 27. John, c. 5. v. 9. 10. i16. 18. c. 7. V. 22. 23. c. 9. v. 6. 7. 14. 15. 16. c. 19. v. 21. C. 20. v. I. 8. 9. 14. 15. I6. 17. 18. 19. 20. 21. 22. 25. 26. 27. 29. Johnson, History of the English Language. In Principio Dict. Verb. Easter. 3 Johnson's Reports 157. 261. 4 Johns. Rep. 45. 6 Johns. Rep. 121. 326. I Jones, 156. Joshua, c. 6. v. 3.4. I1I. 14. 15-. Leg. Athelstan. Leg. Edw. Conf. c. 9. LL. Edgar, c. 5. Lempriere; Articles, ANASTASIUS I., ARTHEMIUS, CONSTANTINE, JUSTINIAN, LEO I., THEODOSIUS. I Lev. 328. Leviticus, c. 19. V. 3. 26. c. 23. v. 2. 3. 8. io. ii. 15. i6. 17. 21. 24. 25. 27. 28.32. 34. 39. 40. 41. 42. c. 25. v. 2.3.4. 5.6.7- 8.9. 10. I. 12. 13. 20. 21. 22. c. 26. v. 34. 35. Lord's Day. King James's Bible. Rev. c. I. v. 10. Luke, c.4. v.i6.31. c. 6. v.I.2.5.6.7.9. c. 13. V. IO. 14. 15. c. 14. V.I.3.5. c. 24. v. 1. 3.6. 13. 15.21.23.31.33.34.35.36.39.40.43.46.47.48.51.52. I Maccab. c. I. V. 43. 45. c. 2. v. 32. 34. 38. 41. c. 4. v. 59. c. o10. v. 34. 2 Maccab. c. 5. v. 25. 26. c. 6. v. 6. 11. c. 15. V. I. 2. 3. 4. Mad. 55I. Magee on Atonement. 63. 64. 470. 471. Manwood's Forest Laws Abridged. 50. 58. 64. 67. i Mar. s. 2. c. 3. Mark, c. 2. v. 23. 24. 26. 28. c. 3. V. 2. 4. [c.] 6. v. 2. c. i6. v. I. 2. 6. 9. 12. 14. 19. Matthew, c. 12. v. I. 2. 5. 8. 10. Ii. I2. c. 28. v. 1. 6. 7. 9. 10. I16. 17. 18. 19. Mirror of Justices. Art. 11 I. Mod. Ca. 148. I59. 196. 231. 5 Mod. 95. 449. 450. 6 Mod. 95. Nehemiah, c. 8. v. I. 2.3. 9. 10. II. I2. c. 9. v. 14. c. 13. V. 15. I6. 17. i8. 19. 21. 22. Numbers, c. 15. V. 32. c. 28. v. 9. 10. 17. I8. c. 29. v. I. 448 SUPREME COURT OF MICHIGAN Paley's Moral Philosophy. Book V. c. 5. 6. 7. 8. p. 272-288. Pentecost, Greek for fiftieth. Lev. c. 23. v. I6. Pontas, 415-426. 759-764. Poph. 208. Quintilian. Intentio. Depulsio. Lord Raymond, 250. 705. 2 Lord Raymond, 1028. Revelations, c. i. v. 10o. I Salk. 78. 79. 2 Salk. 626. 684. 3 Salk. 148. Selden, 6. I Sellon, 336. Sirmond, Councils of France, Vol. I. p. 300. Spelman, Or. T. 75.76. 77. 78. 79. 80. 81. 305. Stephen. Restoration of the Laws of Edward the Confessor. Str. 36. 702. 834. I Taunton 131. i Term Rep. 265. 266. 3 Term Rep. 642. 5 T. R. 25. 170o. 7 T. R. 336. 8T.R.36. Theodosian Code, c. 3. De Temporibus et Diebus Pacis. i Tidd, 39. 44. 193. i Vent. 293. Wilberforce, Practical Christianity. c. 4. sect. 2. p. 142-146. Wilk. Leg. Ang. Sax. 197. 292. Willes, 459. The second question, in this important case, is; whether it is competent for this court to discharge the noble defendant on motion? There have been some English adjudications, in which, though an arrest has been deemed illegal, yet, the courts have refused to discharge the de- fendant; but have referred him to his action of trespass; or false imprison- ment; reserving, also, the right of summary proceedings against the officer, by attachment. These adjudications have all grown out of a single case, reported in the an- cient year book of the eighteenth of Edward the Fourth, placitum nineteen. In that case, the sheriff, in execution of a fieri facias, unlawfully, broke open an outer door; and, then, broke open a trunk, and took out the goods. It was held that trespass would not lie for the second act; that of breaking open the trunk, and taking out the goods. UNREPORTED CASES 449 On this decision, have been grounded those reported in Yelverton 29, 5 Coke. 92, 5 Modern 95, 6 Modern 96; and others. See, also, 2 BI. Rep. 823. Buller 62. Cowper I. 64. Cro. Jac. 485. 2 Esp. 227. 409. 539. Esp. N. P. Ca. 99. Hob. 62. I Salk. 78. 79. 626. 5 Ann. c. 9. 2 Dallas. 213. I. Taunton 131 Nehem. c. 13. v. 15-22. 4 Bl. Comm. 63. 64. o10. II. W. 3. c. 24. 11. 12. W. 3. c. 21. 2 G. 3. c. 15. 5. T. R. 449. 21. G. 3. c. 49. 34. G. 3. c. 61. 4. Bl. Comm. C. 33. Brackenridge L. M. 217.218. 219.220. Esp. on Ev. 15. 2 Inst. 220. Acts c. 18. v. 44. Lev. c. 19- v. 30. Ezek. c. 46. v. 3. In the case in i Salkeld 78, it is decided; "that false imprisonment lies for arrest on Sunday"; but the report is silent respecting the discharge of the defendant. In the case of Wilson versus Guttery, S Modern 95, "the discharge of the defendant, who had been arrested on Sunday, was denied; and he was directed to bring an action of false imprisonment." In the case of Lidford versus Thomas, 6 Modern 96, the defendant was taken, without any warrant, on a Sunday, and kept, lock'd up, until Monday morning; and, then, a writ was obtained. The court do not appear to have granted the discharge of the defendant; but, with manifest animad- version, on the irregularity of the transaction, refer him to his remedy by false imprisonment; at the same time, directing an attachment, and pro- nouncing the officer liable to indictment. The sentiment, expressed by Bacon, that it seems the better opinion, that the killing an officer, who endeavors to arrest on an unlawful day, is not murder, is not fully supported by the authority cited; for Mr Serjeant Hawkins merely states that, perhaps, if a bailiff arrest one on a Sunday, since the statute by which such arrest is made unlawful, the killing him may be manslaughter only. 4 Bacon 456. i Hawk. P. C. 130. See, also, Kely. 137. I Hale 457. 458. 5 Co. 93. 2 Hale 117. 470. Salk. 79. Such an inference might, indeed, not be illegitimate, from the premises exhibited by Lord Coke, in his report of the case of Mackalley. It is, how- ever, obvious, from the principles evolved by Lord Mansfield, in the case of Swann versus Broome, decided on the twenty eighth day of November 1764, and reported by Sir James Burrow, Vol. III, page 1595, that, if the question of the legality of an arrest on Sunday had then, for the first time, have arisen, almost the whole of the inferences deduced by Lord Coke, from the case of Mackalley, would have been shaken. How far resistance of the officer might have been palliated, or whether the execution of Mackalley might have been deemed, by his Lordship, justifiable, I will not pretend to say; but the elegant talents and sound judgment of Lord Mansfield would prob- ably have been found in favor of the positions, that arrest on Sunday, on civil process, would, at Common Law, be illegal; that the party is, yet, bound to obey the officer; and that, for a tortious arrest, there is remedy by action, and by 450 SUPREME COURT OF MICHIGAN other means; and that the officer is liable to attachment, and to indictment; remedies more consistent with humanity and moderation than that the party should take the important question of the legality of the arrest en- tirely into his own hands, and sacrifice the life of his fellow citizen. The enactment of Edward the Confessor is expressly declared by Lord Mans- field to be a part of the Common Law; and an arrest, on civil process, on Sunday, is, clearly, a violation of that PEACE, which is contemplated by the Roman, and by the Canonical law. And though the decision in the case of Mackalley, even, might not, in the present age, be deemed impregnable, it is, yet, pleasing to behold that tenderness of life, so honorable to the jurisprudence of England, prevailing at that early aera; nor is it prepos- terous to contrast the single mind of Lord Mansfield, enriched with the accumulated lore of a century and a half, against the twelve judges of England, in those more ancient days. The principle, involved in the original decision of the ancient Year Book of Edward the Fourth, and, afterwards, supported in the case of Semaine, 5 Coke 92, and in others, is an extremely dangerous one, in a free country; in any country, where the laws are presumed to govern, and not the arbi- trary volitions of men. It would be more dangerous in a republican govern- ment than in the kingdom from which it is derived. In the former, all the muniments of personal rights ought to be sacredly maintained; and not only ought an officer, committing a tortious act, to be liable to public prosecu- tion, and to private action, and to summary proceedings for contempt; but the citizen should, also, be exposed to no disadvantage whatever from the commission of the original tort. Shall the PRIVATE INDIVIDUAL be prohibited from taking advantage of his own wrong; and shall the monstrous position be maintained that the PUBLIC OFFICER may do so? If I do not misapprehend the implication intended by Lord Mansfield, in the case of Lee versus General Gansell, in I Cowper 6, the principle meets his reprobation. I am not bound, however, to touch this principle any farther; for, though I hold this court, on this part of the subject, at perfect liberty, under municipal statutes, to settle and regulate its own practice, unfettered by any extrinsic decisions whatever; yet the English authorities, when faith- fully compared, fully sustain the competency of the court to discharge the defendant on motion. In I Atkyns 1 52,Lord Hardwicke says: "Where there is an irregular arrest, a court of law will discharge the defendant." In the case of Parker versus Sir William More, 6 Modern 95, Lord Holt observes: "That the relief must be by AUDITA QUERELA, for the fact of the arrest being on Sunday is traversable." But the other judges hold the opposite doctrine, and say: "If there were no more in it, we would relieve upon motion." UNREPORTED CASES 451 And, in conformity with their opinion; that the court may take notice that the arrest was upon a Sunday, without trial by the country, are the following authorities: Cro. Eliz. 227., I Leo. 328., 6 Comyn 317., 4 Bacon 456. In the present case, the court will, in like manner, take notice, that the sixth day of September 18z8, on which day the Earl of Selkirk was arrested, was Sunday. In the case of Lee versus General Gansell, I Cowper 9, Lord Mansfield says: "The discharge of the party depends on his behavior. Gross misbehavior might induce the court to refuse it. The court, where a person is arrested, who has been attending its process, will interpose, not only, by punishing the officer; but, by discharging the prisoner out of custody. Cases of this sort are, always, matters of discretion." Against this array of the highest authorities, stands, at last, opposed, the minute and solitary case of Wilson versus Guttery, in 5 Modern 95. I am, therefore, of opinion, that the Earl of Selkirk was illegally arrested, that he ought to be discharged, that the writ ought to be quashed, and the bail-bond cancelled. It is the judgment of the court, that the defendant be discharged, the writ quashed, and the bail-bond cancelled. A. B. WOODWARD. Michigan; Tuesday, October 13th 8z8. Editor's note: See Calendar of Cases, supra, case 581. As there pointed out, the opinion is reprinted from a photostat of a copy made by Judge Woodward for the Detroit Gazette. Labels and directions to the publisher have been omitted. FRAN§OIS LABADY versus GABRIEL RICHARD October 7, 1823 r. A charge of adultery made by a priest in relation to the discipline and doc- trines of his profession is not actionable slander. 2. If a general verdict is found on a declaration containing several counts, and entire damages are given, and one of the counts is bad, judgment must be arrested. Action for slander commenced August 29, 1817 and tried October i I and 12, 1821. The jury found for the plaintiff and the defendant moved in arrest ofjudgment. The pleadings and the reasons assigned for arresting judgment are set forth at length in the judgment record printed herein. (Selected 452 SUPREME COURT OF MICHIGAN Papers, infra, case 643) The motion in arrest was made October 12, 1821 but was not argued until October 4, I823. The judges present on the latter date were Woodward and Witherell. The same judges were present October 7, 1823 when the motion was overruled. Woodward favored the motion, as shown by the opinion printed below, but the motion was overruled pre- sumably because the two judges did not agree. Witherell alone was present September 21, 1824 when judgment was entered on the verdict. Woodbridge & Larned and Hunt & Larned, attorneys for plaintiff. Sibley & Whitney, attorneys for defendant. [Syllabi and statement by Editor; opinion by Augustus B. Woodward, Presiding 7udge.] [OPINION] It is a rule in law that words, in themselves actionable, may, nevertheless, not bear an action; from the particular circumstances, under which they are used. AUTHORITIES. 2 Binney 6o, Bull. N. P. 8, Caines 346, I Cowp. N. P. 98, 267, 269, Co. Rep. 146, 4 Co. 14 b, 16a, 16 b, 19, Cro. Eliz. 230, 3 Esp. Rep. 32, 5 Esp. Rep. 13, 109, 2 H. B. 531, Hutt. 2, 2 Hutt. 18, 2 Johns. Rep. 1i, 5 Johns. Rep. 188, t Johns. Ca. 279, Peake N. P. 4, Salk. 694, Sittings after Trinity 5 G. 3, Sittings after Easter 6 G. 3, I Term Rep. 11o, 6 Term 691, Tyng's Mass. Rep. 406, The following words, among others, are contained in the first count of the declaration in this case: "Ce FRANCOIS LABADIE est en pcheur scandaleux. Il commet adultere. Ayant unefemme encore vivante, il pousa, la veille, une autre femme; et se fit marier par un magistrat protestant. Ce mariage, qu'il a contracts, n'est ni bon ni valide. C'est un concubinage." "This FRANCIS LABADIE is a scandalous sinner. He commits adultery. Having a wife yet living, he married, yesterday evening, another woman; and caused himself to be married by a protestant magistrate. The marriage, which he has contracted, is neither good nor valid. It is a concubinage." These words, not alledging an adultery cognizable by the law of the land; and the circumstances, under which the preacher is charged to have used them, having evident relation to the discipline and doctrines of his profes- sion; the rule of law alluded to applies, and the count is obviously bad. AUTHORITIES. Concilii Tridentini, Sessio XXIV, Canon VII, Concile de Trent 303, I Johns. Ca. 279, Peake N. P. 4. UNREPORTED CASES 453 It is a question, which need not, now, be decided, whether the second count is not liable to the same objection. The third and fourth counts appear to be free from it. It is a second rule in law, that if a general verdict be found, on a declara- tion containing several counts, and entire damages be given, and any one of the counts be bad, the judgment, in that case, MUST be arrested. AUTHORITIES. Barnes 478, 3 Caines 329, io Coke 130, b, Doug. 362, 5 Johns. Rep. 476, 3 Wils. 177. I am, therefore, of opinion, that, in this case, judgment, must be arrested, from the defects of the first count. Michigan, Tuesday, Oct. 7. I823. A. B. WOODWARD. Editor's note: See case 643, Calendar of Cases, supra. The opinion is reprinted from a photo- stat of a copy made by Judge Woodward for the Detroit Gazette. (MS Mich. Hist. Society R-T, Folder R 38, Burton Historical Collection, Public Library, Detroit) The opinion was printed in the Gazette January 9, 1824. The MS copy is headed, "LAW INTELLIGENCE. The opinion delivered by Judge Woodward in the case of Francois Labadie, against the Reverend Gabriel Richard." Richard, it seems, submitted Woodward's opinion to several lawyers outside of Michigan for their comment and opinion. Copies of comments obtained [Richard Papers (copies), Burton Historical Collection, Public Library, Detroit, Vol. 2, p. 2371 read as follows: "Sir We have examined your statement, and considered the opinion of Judge Woodward which you have submitted to us. Our opinion is First: That if a general Verdict be rendered for the Plaintiff on a Declaration containing more than one count, and one of the counts be bad, the Judgment must be arrested. Second: Words in themselves actionable may nevertheless be spoken under such circumstances and in such connection as that they thereby cease to be actionable; and if in this case it sufficiently appear that the Defendant meant only to impute to the Plaintiff that which the Roman Church con- siders as an offence and not that which the municipal Law regards as such, no action will lie for such words. We may add that there are many cases in which words are spoken before Ecclesiastical Jurisdictions, or in the exercise of ecclesiastical discipline, which can not be made the subject of a suit for slander, altho' they might be actionable if spoken without such cause, or occasion, and maliciously. But the chief ground of our opinion in this case is that the words, under the circumstances & in the connection in which they appear to have been spoken, do not charge any offence punishable by the municipal Law: therefore we think they are not actionable. June 17th 1824. Danis Webster Edw Livingston John W. Taylor John Scott of Balt. Peter L. Du Ponceau of Philada I concur in the above opinion. H. Clay Hon: Gabriel Richard I have examined the opinion of Judge Woodward referred to above, and upon the statement contained in it, entirely concur in his view of the law. Hor: Binney" "I have read the opinion of Judge Woodward and the words charged to have been slanderously spoken of Francois Labadie by the Reverend Gabriel Richard. These words spoken in the course of church discipline and expressive of a positive dogma of the Catholic Church cannot support an action of slander against the clergyman who uttered them in the course and exercise of his profession duties. Where one count is bad and the verdict is general the judgement must be arrested. William Sampson. Having seen the declaration in the cause above referred to, I see no reason to alter my opinion. The term Excommunication has a meaning so determinate and the Plaintiff's own innuendo that the Defendant spoke and acted as a priest explains it so fully that I cannot see how any temporal 454 SUPREME COURT OF MICHIGAN judge can award judgement or execution against a Catholic priest to whom that power is delegated without violating the most fundamental principle of the Constitution which pro. vides against all religious intolerance and leaves every religious communion free to exercise the natural right of preserving its own purity by its own appropriate modes of Government and discipline. William Sampson. New York. I8 Novr I824." Indorsement: (In Richard's handwriting) "Opinion of several Gentlemen of the Bar in the case of fr. Labadie vs. G. Richard." IN THE MATTER OF JAMES FULTON August i8, 1824 i. The "feudal reason" for the exemption of the body from execution in civil cases having ceased to exist in England and having never existed in this country, the early common-law rule against body execution in civil cases cannot be regarded as law. 2. Statutes of the territory of Michigan recognize the practice of issuing writs of capias ad satisfaciendum in civil cases. 3. An alias ca. sa. issued more than a year and a day after the return of an original ca. sa. which was issued within a year and a day after judgment, is valid. [Syllabi by Editor; statement of case and opinion by James WVitherell, Pre- siding Judge.] [OPINION] This is a case of Hab. Corpus; in which James Fulton petitions to be discharged from imprisonment on a Capias ad satisfaciendum Issued from Wayne County Court - Mr Fletcher Atty for petitioner - M' Lamed for Creditor It appears that on the I3th day of Jany 1823, Joseph Campau recovered a Judgment on Contract in said County Court against James Fulton for the Sum of $410.57. Damages, and $16.25. Cost - That on the 14th day of June following, being within one year and one day, after the rendition of said Judgment, a Capias ad Satisfaciendum was Issued thereon against said Fulton - which was, on the I6th day of the same Month, returned with non est inventus - That on the 13th day of August 1824 an Alias Capias was Issued on said Judgment, on which the said Fulton was commited, and still stands conm- mited, from which commitment he petitions to be discharged, alledging for UNREPORTED CASES 455 cause, that by the Common Law, Execution cannot Issue after one year and one day after the rendition of the Judgment on which it is founded without the intervention of a Scirefacias - for which reason, in as much as the said Alias Execution did not Issue untill more than one year and one day after the return of the first Execution, the commitment is contrary to the provi- sion of the Common Law - and there being no statutory Authority on the Subject, the commitment is illegal, therefore the said Fulton ought to be discharged from it - In resisting the Application, Mr Larned, for the Creditor on the ground of the alias Execution having been Issued more than a year & a day after the return of the first Execution, admits the fact, but denies its legal applica- tion - And offers the Authority of Sir William Blackston Vol. 3d page 420 to shew, that by the Ancient common Law of England, no Ca. Sa. could Issue on Judgments in Civil Cases- Unquestionably this was once the Law of England on that Subject -- but when the feudal reason which introduced it yealded to a more enlightened, and rational policy, those exemptions were restricted by the Statute of Edward the 3d although those exemptions were wholly in favor of the Crown, and not of the Subject - and the body of the Subject was made liable as well as his property to Execution for his debts - as the reason for such exemption there has long since ceased; and at no period ever existed in this Country, it cannot in this case be regarded as law - This part of the Question being thus disposed of I proceed to the con- sideration of the Second part of it - that is the right of the Creditor to an Alias Execution, after a year and a day has elapsed after a non est in- ventus return on the first Execution, without the intervention of of a Scirefacias - The Authorities cited on the hearing of the case fall very far short in their application to the present question - they are adapted to a System of Jurisprudence so totally dissimilar to those of the United States, that it is impossible that they should apply - But if any doubt could rest on the mind as to the exemption of the body from Execution in Civil Suits under the old common law, that doubt must be dissipated as it respects its application in this Territory by a reference to our own Territorial Statutes on the Subject of Executions on Judgments in Civil cases - for the practice is abundantly recognized in an Act con- cerning poor Debtors - page 133 - and by an Act to regulate and define the duties and powers of Justices of the peace, and Constables in civil cases. page 226. It only remains to enquire whether the law is imperative on the Creditor after a Non est inventus return on a first Execution taken out within a year 456 SUPREME COURT OF MICHIGAN and a day after the rendition of a Judgment, to continue taking out Sub. sequent Executions within a year and a day to save his lien on the Judgment, without resorting to a Scirefacias - In examining which, the mind perhaps is left too much without a legal guide, applicable to our own institutions - in the absence of which, the general texture of our Judicial Systems, growing out of, and founded on, the customary intercourse, and habitual views under which our Citizens carry on their commercial concerns in ordinary dealings must be the best guide - We have hence to conclude, that prudent men will shape their contracts to their abilities, under the provision of laws extant at the time of their formation - he, who by entering into an engagement becomes the Debtor, can calculate on all the consequences which can await the want of punctuality in the discharge of his debt - well aware that in the last resort it Subjects his body to incarceration. The Creditor on the other hand incurs the hazard of his Debtors in- solvency, on indisposition to discharge the demand without legal coercion - and as the Creditor has in the outset the sole right to give, or refuse the Credit, when he has given it, he rarely needs any other Stimulous than that of his own Interest, in the pursuit of payment - as he certainly possesses the moral and legal right to forgive the whole debt, does he not equally possess a moral right to pursue the most lenient and humane course that the law allows towards his debtor? one of which, is an extension of time, beyond that in which, by the most rigorous pursuit, he might have inforced payment, without being thereby Subjected to an inconvenience, which is of no sort of use to the Debtor, but an unnecessary expense to both? I here allude to a Scirefacias in obtaining a Second Execution. perha[p]s there is not a more equitable maxim in law, than that the in- dulgence of a Plaintiff shall not turn to his prejudice, nor the Defendant be allowed any advantage of it - As it is the duty of the Debtor to discharge the demand, it is within his legal power to avoid either Execution, or Scirefacias - I can find but one Solitary reason assigned for a Scirefacias on a Judgmint of Debt; which is, that if Execution be not taken out within a year and day after Judgment rendered, the Court concludes, prima facie, that the Judgment is satisfied - Thus it appears that this rule of law, if law it be, has no other reason, or foundation, than the conjecture of the Judges of the Court where the Judg- ment is rendered - but suppose it to be reasonable law, it does not appear to relate to anything but the first Execution to be taken out on a Judgment - leaving it Optional with the Creditor when he will take out Subsequent Executions till the Judgment be satisfied - and leaving to the Debtor at all times his Audita Qurela to Supersede the operation of any Execution, after the Judgment is satisfied - UNREPORTED CASES 457 Having bestowed such attention to the Subject, as time, & means have afforded me, I have arrived at the conclusion, that the return to the Writ of Hab. Corp is sufficient - that the Creditor has proceeded as by law he had a right to, in taking out the Alias Capias ad Satisfaciendum, and there- fore, the Debtor must be remanded - J. WITHERELL Augt. 18. 1824 - Editor's note: The above opinion is in Judge Witherell's handwriting and has been pre- served with the other papers in the case. See case B-32, Calendar of Cases, supra. OPINION RELATING TO ACT DEFINING DUTIES OF COURT, ETC. September 20, 1824 i. So much of the act of August 5, 18214 as purports to restrict the business of the Supreme Court to the county in which it sits is void. 2. So much of the act of August 5, I824 as provides that the clerks of the county courts shall be, ex officio, clerks of the Supreme Court is void. An act of the Legislative Council approved August 5, 1824 provided that the judges of the Supreme Court should, once in every year, hold a court in each of certain counties named in the act. (Laws of the Territory of Michigan, II, 217) The act further provided that all writs of error, habeas corpus cum causa, certiorari and other process for the removal of causes to the Supreme Court, should issue from the office of the clerk of the Supreme Court in the county where they were to be served; also, that any appeal to the Supreme Court should be made to the Supreme Court in the county where such appeal should be taken. The act further provided that the clerks of the county courts should, ex officio, be clerks of the Supreme Court in their respective counties. [Syllabi and statement by Editor; opinion by Solomon Sibley, one of the judges.] [OPINION] The question now presented to the Court, and which must be disposed of, before the Court can, consistently, proceed to discharge its official duties, is important and not entirely free from dificulty - The Court is compelled to pronounce a Judgment, before it is fully organized, and at the 458 SUPREME COURT OF MICHIGAN first moment of its Judicial Labours, and unaided by a regular argument, upon a question which necessarily involves, the provisions of an act of the Territory, that is presented to the Court, clothed with all the essential formalities, incident to a valid Law- Whilst I regret the existence of the necessity that compels me to act I have no wish to shield myself from the legal responsibility, that divolves on me as a member of the Court - The Opinion which I shall give, altho hastily committed to writing, has been deliberately made up, under a careful examination of the laws connected with the question, aided by much re- flection. I am satisfied myself of the correctness of my conclusion; others however may question it, and amongst the number I am compelled, re- luctantly to place one of my honorable Colleagues, whose sound Judgment, aided by much experience, entitles him to my highest respect - That the reasons on which I predicate my opinion, may not be misunder- stood, I consider it proper to state the following propositions which I assume as uncontrovertable- 1st That a Territory, under the United States Government, in its own right, possesses no sovereignty either absolute or limited- 2d That all the Political rights of a Territory, are derived from, and depend for their Continuance, on the United States- 3d That Congress possesses the power and authority of direct legislation, in and over a Territory - 4th That the laws of the United, are in their character and nature, para- mount Laws--They are to be considered and treated, as principles, and are binding on every department and branch of our Local Government - And lastly. That an act of the Local Government, which is repugnant to the Constitution, ordinances or Laws of the United States is void from its creation - Having advanced the above propositions, I will now proceed with the enquiry, and endeavor to test the act of the Territory of the 5th of August 1824 by them - I admit that the Governor and Legislative Council, under the act of Con- gress on the 3d of March I823 possess the same powers and authority, to Legislate that the representative government, under the ordinance of 1787 could legally exercise - and I accord to them no greater authority or powers - By the ordinance of 1787 it is provided, that "The Governor, Legislative Council and House of Representatives, shall have authority to make laws in all cases, for the good Government of the District not repugnant to the principles and articles in the same ordinance established and declared" "And for the prevention of crimes and injuries the laws to be adopted or made shall have force in all parts of the District" UNREPORTED CASES 459 The power of making laws above conferred is ample, and when correctly pursued, the acts and laws are binding on the Court, as well as every other department of govt The same ordinance which confers the legislative powers, creates and establishes the Court for the District or Territory - It also gives to such Court its Jurisdiction and powers - The words of the ordinance are "there shall also be appointed a Court, to consist of three judges, any two of whom to form a Court, who shall have a Common law jurisdiction and reside in the District" &C and by the 2d Article of Compact the inhabitants of the Territory have a guarantee that "Judicial proceedings shall be according to the course of the Common Law" The Court created by the ordinance, has at all times and on all occasions, and in every Territory of the United States, where the ordinance of 1787 has been applied, and I think correctly, been considered a Territorial Court of the highest grade and possessed & exercised an undivided jurisdiction, thro and over the whole Territory or district of Country embraced within the Territorial limits - And whenever the Court has been opened for transacting business, it was, necessarily, opened for transacting the Business of the whole Territory that might be properly before it, and that it is not, nor can be confined to the transacting the Business of a County, or other district of Country less than the whole Territory unless by a positive law of Congress - An act of the Territory, that should attempt to limit the Court, to the Business of the County, where it holds its Term, would abridge the jurisdiction of the Court, and would be contrary to the or- dinance of the United States, which confers on the Court its jurisdiction - Such an act of the local Legislature, would under my last proposition, be nul and void in its creation - Does the Act of the 5th of Augt which purports to be an act, defining the jurisdiction and duties of the Supreme and County Courts, deprive the Supreme Court of its jurisdiction or any part thereof, which it can rightfully claim and exercise under the ordinance and laws of the United States? I answer that according to my understanding of the provisions of that Act, it does interfere with and abridge the the rightful jurisdiction of the Court - ist The Act deprives the Supreme Court of an undivided general jurisdiction in and over the whole Territory - The Supreme Court as a Court of the Territory, is distroyed, and in lieu thereof, the act established five District or County Courts, and assigns to the Judges of the Territory the duties incident to holding such Courts, as a Supreme Court of the Territory - and at the same time restrains the Court - when opened from doing the Business of a Court of the Territory, by confining it to business, local to the County where the Court sits - Such a restriction I consider, 460 SUPREME COURT OF MICHIGAN an attempt to limit and abridge the Court in the enjoyment and exercise of a legitimate jurisdiction, derived from and exercised under the ordinance and laws of Congress - That the local legislature, have the power by Law, to increase the Terms of the Court, and to designate other places than Detroit for its sessions, I grant and the Court are bound to respect such an act when made - But whether a term of the Court is required to be held at Detroit, Macomb or Monroe, it must be the same Court in and for the Territory, when or where opened - Therefore so much of the act of the 5th of Augt as purports to restrain the jurisdiction of the Court when opened from doing business as a Court of the Territory, and to confine its powers to the business originating in or local to the County, I consider in the same light as tho such provi- sions had never existed or been embodied into an act. - I pronounce them void - Another question remains to be considered, and disposed of, before the court can proceed, in the business of the Term - Has the Court a Clerk and if so under what authority must the Court receive and recog- nize him? Previous to the taking effect of the Act of the 5th of August, this Court possessed a Clerk of its own appointment, under a Law of this Territory- If the provisions of the act of the 5th of Augt purporting to have created five Clerks of this Court by Legislative enactment and by the same act to have appointed and designated the persons to discharge the duties, stand well with the laws of the United States, then the Court must call on the Clerk of the County of Wayne, and require his attendance in Court to dis- charge the duties incident to the office - If on the contrary it should be found that the Council were not authorised, by a Legislative act to desig- nate the person who should be the Clerk of the Court, much less to impose five Clerks, upon the Court, and each to act without the qualification of an oath, or the surety of a Bond, then and in that event, the Clerk appointed by the Court will remain unaffected by the Act, which retains all acts and parts of acts in force, so far as they are not altered or affected by the legal provisions of the new act. - It is fair to presume, that the act in question, the provisions of which, embarrass the Court, was made under the authority, supposed to be Con- ferred upon the Council, by the 3d Section of the Act of Congress of the 3d of March 1823 That section provides that the powers and duties of the Judges of the Territory shall be regulated by such laws as are or may be in force therein - I do not understand the enactment embraced in the 3d Section, to confer any new or additional authority, over the Judges, that the Council did not UNREPORTED CASES 461 possess and might not fairly exercise, under their powers conferred by the first section - I ever have and still consider the enactment chiefly declara- tory of the powers that always appertained, by necessary implication, to the Legislative authority - The powers had been exercised and submitted to, by the Court - All the jurisdiction, and all the powers, that the Court can correctly exercise, are conferred on it by the laws of the United States - The times when and the places where, and the manner in which these, powers, for local purposes, should be exercised, are left to be provided for by the Local Government - The details are proper and suitable matter to be embodied in a law, defining and regulating the practice of the Court - Whatever might have been the motives of Congress for inserting that enact- ment, if they are not apparent on the face of the law, the Court cannot avail itself of them, in putting a construction upon the law. One thing is very evident, to me that whatever else might have been in view, Congress never intended to give authority to the Council, to furnish the Supreme Court, with five Clerks - For by the same act, Congress has vacated the office of one of the Clerks of the Court, when it had but Two, and by a positive enactment confined, the Court to one - I refer to the 7th Sect of the Act of the 3d of March already mentioned, which I conceive settles the Question, so far as the clerks are concerned. I therefore consider the clerk heretofore appointed, as well in office, and that he is competent to discharge the duties incident to that office, and until he shall resign, or be displaced from office, the Court cannot recognize any other person to be clerk of the Court. Such are my views upon the Laws in question-I think them correct, and upon the construction given them by me the Court can proceed with the business before it without embarrassment-A Contrary Construction of the law, would embarrass the Court-We should be hedged in by dificulties, that to me appear, wholly insurmountable- Editor's note: This opinion has been preserved with the papers of Solomon Sibley. (Burton Historical Collection, Public Library, Detroit, Vol. 51, pp. 10, II, 12, 15, 18) It is in Judge Sibley's handwriting and bears this indorsement: "S Sibleys Opinion as read in open Court the 20 of Sept 1824 relating to the Act of Terr defining duties of Court &*" Governor Cass, in a message to the Legislative Council (January i8, 1825), had this to say: "In the execu- tion of the act entitled 'An Act to amend an act concerning the supreme and county courts of the Territory of Michigan, defining their jurisdiction and powers, and directing the plead- ings and practice therein in certain cases,' difficulties have arisen respecting an important provision of it. It has been decided by the Supreme Court, that so much of that act as provides that the Clerks of the County Courts shall be ex-officio Clerks of the Supreme Court, contravenes that clause in the act of Congress, entitled 'An act to amend the Ordinance and acts of Congress, for the government of the Territory of Michigan and for other pur- poses;' which declares that there shall be but one Clerk of the Supreme Court, and is there- fore void. In resuming, as it will be necessary to do, the consideration of the Territorial Act, with a view to render this provision conformable to the decision, I recommend an entire re-examination of the acts, which regulate the Supreme Court. I think it will be found, on a full consideration of the subject, that a system, which shall provide for the trial of issues 462 SUPREME COURT OF MICHIGAN in fact, in the various counties, and for the determination of other questions at a court in bank, will operate most beneficially in the present circumstances of the country. The time generally allowed upon a circuit, and the opportunities of consulting authorities, are not favourable to a mature consideration of such questions, as must frequently engage the attention of that important tribunal. Deciding in the last resort, both in cases arising under the Territorial laws and the acts of Congress, it is of great consequence, that such a court should possess all the means of examining fully, and of deciding correctly." (Detroit Gazeute, Jan. 21, 1825) LEVI WASHBURN versus SILAS HALSEY September 25, 1824 I. A justice of the peace in making a return to a writ of certiorari must make a special return to all facts stated in the affidavit which accompanies the writ, but need not notice facts not positively stated. 2. In making a return to a writ of certiorari a justice of the peace must answer each exception singly; a general denial amounts to nothing. 3. In making a return to a writ of certiorari a justice of the peace should send a transcript of the declaration and plea and of all other papers in the case. This was an action of trover brought before Taber Willcox, a justice of the peace in and for the County of Macomb, to recover the value of certain carpenters' tools. A jury was impanelled which found for the plaintiff. Judgment was rendered for the plaintiff, and the defendant applied to John Hunt, one of the judges of the Supreme Court, for a writ of certiorari. The application, which was granted July 28, 1824, was accompanied by the following affidavit: "Silas Halsey, the Defendant in this cause being duly sworn deposeth & saith that a summons was issued in this cause returnable the twenty second day of May last at two OClock P M, at which day & hour the said Deft appeared in his own person & that the said Plaintiff did not appear in said Court, but that John Stockton, who was County Clerk of said County appeared as attorney of said Ptff, that the said Deft objected to this on two grounds; Ist because he did not show some authority author- izing him thus to appear, 2d Because he was County Clerk & therefor for- bidden by the statute to practice as an attorney in any Court in this Terri- tory. & that both these objections were overruled by the said Justice. That the said Stockton did not then show or mention any declaration or demand against the Deft, but immediately moved for an adjournment till the next Saturday, the twenty ninth of that month, seven days, that the Deft then observed he did not want an adjournment, but that he (meaning the said UNREPORTED CASES 463 Stockton) could get the adjournment in spight of him, the said Deft & that the said Justice then adjourned said cause, till the said next Saturday-& further that the said Justice did on the said return day & on other days between this and the adjourned day, say to several most credible men, that he did not know of any declaration in this case-And this Deponent further saith that although there was no issue joined nor even a declaration in this cause yet the said Stockton, as soon as the said adjournment was granted, demanded of the said Justice, a jury of twelve men to try this cause; that the said Justice thereupon immediately issued a venire for summoning twenty four men as Jurors for the trial of this cause, which venire was handed to a constable the same day & the said Jury accordingly summoned; that on the said adjourned day the 29 of May last, the parties appeared in said Court, the Ptff by his own attorney, John Stockton & the said Deft in his own proper person & that the said John Stockton then delivered to the said Deft the Ptff's declaration in this case That the Deft then moved the said Court for an adjournment for want of material evidence & that this motion was also overruled by said Justice, & that the said Deft then aban- doned the cause & took no further part in the trial-and that twelve men of the twenty four Jurors summoned as aforesaid were impannelled by the said Justice to try this cause; that this was an action on the case, brought to recover damage of the Deft for his taking & secreting certain carpenter and joiner tools belonging to the Ptff as he said, which said tools the said Deft had taken by virtue of an attachment as the property of Lewis Stewart, a carpenter and an absconding debtor; that on the trial of this cause, no witness was sworn, nor any evidence offered to the jury to prove that the said tools belonged to, or were the property of the said Ptff, except a writing like a short bill of sale of said tools, by the said Lewis Stewart to the said Plaintiff, to which the name of the said Lewis Stewart was subscribed; but no attempt was made to show or prove the said name to be the signature of the sd Lewis Stewart or written by him or his order; that yet the said Jury found a verdict for the Ptff of fourteen dollars and twenty five cents, on which verdict the said Justice gave judgment & further this Deponent saith not." To the writ of certiorari, which was issued July 28, 1824, the justice made the following return: "Levy Washburn vs Silas Halsey Before Taber Willcox a Justice of the peace in and for the County of Macomb Action Tresspass on the case Brought to recover damages of the defendant for taking & secreting a certain quantity of Carpenters tools the property of the Plaintiff thereby willfully oppressing the plaintiff by Color of his office as a Constable-Summons issued returnable on the 22d May at I oclock P. M May 22d 1824-I P M Court opened Plaintiff appeared by Jno Stockton his Agent Deffendant appeared personally Issue Joined Plaintiff by his 464 SUPREME COURT OF MICHIGAN agent required an ajournment Granted-Plaintiff by his agent required a Jury to consist of 12 to try this issue Adjourned to the 29th day of May present May the 29th I824 present the parties as before-Defendant re- quired an adjournment for the want of a material witness The Court re- quired of the Defendant the oath necessary under the Statute to entitle him to an Adjournment Defendant refused to make oath or even offer Security Cause proseded to trial Whereupon the following Jurors were cald and sworn To wit Charles Tucker Jacob Tucker William Litle Julia Firto Samuel Williams Horace Cady William Tucker Henry Tucker Ignace Tebo Ezekiel Allen J. B. Duprey J B Delonia The Jury after hearing the proofs and alegations of the parties retired accompanied by a Sworn Con- stable for that purpose to consult on their verdict and returned that they found for the plaintiff $ 14,25 Damages Whereupon the Court rendered up a Judgement for the plaintiff for 14-25 Damages and cost of Suit 5-88 [total) $20-13 TABER WILLCOX J. P I do hereby certify that the foregoing return of the Case above Stated is as the facts relative to the Said case took place before me as a Justice of the peace in and for the county of Macomb the affidavit of the defendant to the contrary not withstanding Givin under my hand this 15th Day of September 1824 TABER WILLCOX J. P." September 25, I824, "On Motion of Fletcher Attorney for Plaintiff in Error; ORDERED by the Court, that Taber Willcox, the Justice to whom the Certiorari in this case was directed, make further return in six days, after service of a Copy of this rule to the said writ, to the following points; to wit: Whether the said Halsey objected to the appearance of John Stock- ton as Attorney for the said Washburn, during the progress of the said suit, on the grounds that the said Stockton was the Clerk of the County of Macomb, and that he produced no evidence of his authority to appear for the said Washburn. Whether any evidence was offered to the Jury, respect- ing the said Washburn's right to the property in controversy in the said suit; and if any, what evidence; and whether any witness was offered to prove the hand writing of Lewis Stewart, purporting to have been sub- scribed to a Bill of Sale, offered to the said Jury, of the said property, to the said Washburn; And that the said Justice also send to this Court, a copy of the declaration, plea, and all other papers and process, which are on file in the said case." (7ournal3, *pp. 486-87) John Stockton, attorney for plaintiff in court below. Lamrned & O'Keeffe, attorneys for plaintiff (defendant in error). William A. Fletcher, attorney for defendant (plaintiff in error). [Syllabi and statement of case by Editor; opinion by Solomon Sibley, one of the judges.] UNREPORTED CASES 465 [OPINION] Silas Halsey vs Levi Washburn Certiorari to Justice Taber Wilcox of MComb County, at the instance of Deft requiring sd Justice to return and certify the proceedings in said Cause to Supreme Court allowed by Judge Hunt on affidavit of Deft Motion of Fletcher, for Deft for a rule on the Magistrate to amend his return, by answering Certain facts stated in the affidavit and not noticed by the magistrate in the return filed- The 17 Section of the Act giving jurisdiction to Justices &cmakes it the duty of a Justice on his return of a Certiorari to make a Special return to all the facts stated in the affidavit, that accompany the writ-Laws of Michigan 235. Upon inspection of the return of the Magistrate and comparing the same with the affidavit of the Deft accompanying the writ, I discover that the Magistrate has wholly neglected specially to notice Certain facts, which evidently relate to the Cause on trial before him, contained and set forth in the affidavit-which facts so omitted are set forth by defts atty in his motion for the justice to amend his return (I however except the first sup- posed error, which relates to the adjournment-The original affidavit does not state that the deft objected to the adjournment and was overruled by sd Justice-Something of that character is implied, arguendo-The affidavit should have stated the fact positively, that in the event it should have been proved untrue he might be punished, on a Conviction of perjury-I think that unless, the facts not necessarily entered in the proceedings are so positively stated, that a magistrate is not bound to notice them in his return-The other exceptions alledged in the Motion, are sufficiently alledged in the affidavit to require an answer from the Justice-Whether the objections are important to the decision of the question, or whether the deft can avail any thing by their being answered as he expects they will be, I give no opinion in this stage of the proceedings- I will remark as regards what may be considered a denial of the facts in the affidavit, by the justice, at the end of his return In my view it amounts to nothing-each exception must be answered singly by the justice-The justice has not done it, in the present instance- The M° contemplates including in the return a requisition on the Magis- trate, to send up the declaration and plea with all other papers that were before him on the trial as papers of the case. I think the defendant entitled to a transcript of them and that the justice should send such transcript to this Court- Editor's note: The opinion is in the handwriting of Judge Sibley. See case lo91, Calendar of Cases, supra. 466 SUPREME COURT OF MICHIGAN AUGUSTUS PORTER, BENJAMIN BARTON, PETER B. PORTER, JAMES L. BARTON, NATHANIEL SILL AND SHELDON THOMP. SON, MERCHANTS TRADING UNDER THE FIRM OF SILL, THOMPSON & CO., versus RICHARD SMYTH October I1, 1824 I. In an action by partners on a promissory note payable to the partnership the newly discovered fact that two persons not joined as plaintiffs were partners at the time the note was made, is not ground for a new trial 2. In an action by partners on a promissory note payable to the partnership the newly discovered fact that a person joined as plaintiff was not a partner at the time the note was made, is not ground for a new trial. 3. A motion in arrest of judgment will not be granted for such non-joinder or such misjoinder, the same being cured by the Statute of 7eofails. 4. The payees of a promissory note indorsed by a third person in blank may make the indorser a second indorser or may fill up the indorsement so as to make it an original undertaking, but must prove such special contract. 5. The making of a special contract may be inferred from facts and circum- stances; positive evidence is not required. 6. That the court sufered illegal or improper evidence to go to the jury is good cause for a new trial, but no such evidence was admitted in this case. 7. Misdirection of the jury in matters of law, if excepted to, is cause for new trial, but misdirection is not claimed in this case. 8. The verdict is in accord with substantial justice and the court is bound to lean in favor of, and to support, such a verdict. This was an action of assumpsit to recover the amount of a promissory note dated July 13, 18i6 and payable to Sill, Thompson & Company, or order. The declaration contains four counts. In count one (1) it is alleged that Richard Smyth, defendant, made and executed the note. In count two (2) it is alleged that John McDonell made the note and that the de- fendant afterwards by his writing on the back of said note, for value re- ceived, undertook and promised to pay plaintiffs the amount of said note. In count three (3) it is alleged that John McDonell made the note, that the defendant indorsed the note and that McDonell has not paid the amount due thereon. In count four (4.) plaintiffs sue for money had and received; for work, labor and services done and performed; for money laid out and expended. To all of the counts the defendant pleaded non assumpsit. The jury found for the plaintiffs. The defendant moved for a new trial and assigned the following reasons: "First That the finding of the Jurors in this case is contrary to law Second That the finding of the Jurors aforesaid UNREPORTED CASES 467 is contrary to the evidence Third That the Jurors aforesaid were not legally ballotted for--empannelled-nor selected. Fourth That the said defendant has, since the trial of the issue in said case by said Jurors dis- covered evidence that two persons not named nor joined with the plaintiffs in this case constituted at the time of the supposed execution of the note in said declaration mentioned & by said plffs given in evidence, two members of said Firm known & called by the name & style of 'Sill Thompson & Co' & that therefore there was a nonjoindure of those who ought to have been joined Fifth That one person towit James L Barton was joined in said suit who at the time of the supposed execution of said note, was not a member of said Firm-which said newly discovered evidence was not known to this defendant & could not by any legal diligence have discovered the same before the said hearing & trial of said issue-Sixth-That the said defendant has discovered further evidence since the trial of said issue to wit that after the supposed execution of said note, & before the commencement of said suit the said plaintiffs without the knowledge or consent had given & did give to the said John M'Donell in said declaration, further time for the payt of the money in said supposed note mentioned." This motion was overruled October I I, 1824, and a motion for judgment nisi was granted. The defendant moved in arrest of judgment and assigned the following reasons: "First That there is a misjoinder in this towit James L. Barton was joined therein as plaintiff when it manifestly appeared that the said James was not at the time of the supposed contract and of the making thereof was not a party to said supposed contract Second That there is a nonjoinder in this towit that two persons were omitted to be joined in the said suit as manifestly appears. Third That the declaration in the said case filed is irregular in this towit that it does not appear to be in the same case & especially in this viz that the said declaration purports to be in a case in which damages alleged are stated to be one thousand dollars whereas in a suit brought against said Deft. the said Deft. was sued in a case in which Damages alleged are eight hundred dollars only. Fourth That the said declaration is defective & irregular that it wants substance & that it wants form Fifth That the said said Jury in the said case impannelled & sworn was irregularly summoned impannelled & sworn. Sixth That in other respects the said judt & proceedings are irregular & defective." Oc- tober 16, I824, it was ordered that judgment be entered on the verdict. Hunt & Lamrned, attorneys for plaintiffs. Woodbridge & Lanman and John L. Leib, attorneys for defendant. (A. G. Whitney, of counsel.) [Syllabi and statement of case by Editor; opinions by Solomon Sibley, one of the judges.] 468 SUPREME COURT OF MICHIGAN [OPINION ON OVERRULING MOTION FOR NEW TRIAL] Sill Thompson & Co. vs Rich Smyth- The application to the Court is for a New Trial, The reasons assi[g]nd and relied on by the Counsel of Smith, are that the verdict is against evidence 2d that it is against Law and 4th & 5th that the Pltffs have not well entitled themselves in this Court, to maintain the action The Two first reasons may be considered in one view from their Connec- tion, and are proper matter for a Court to Consider under a motion for a new trial - The 4th & 5th reason might, if sustainable, be more properly, urged on a motion in arrest, as it goes to the foundation of the suit, and if it is any thing, it is error, which cannot be remedied by a new Trial. I shall therefore pass by that reason as well as the law and arguments, offered in support of it and confine my remarks to the two first reasons offered - The facts of the Case, as appeared by the evidence before the jury are understood to be these - Sill Thomson & Co, who are forwarding merchts and reside at Buffalo, transmitted to their agent at Detroit, James Abbott, a quantity of merchan- dize, to deliver to John McDonnel, on condition that he should make a note to sd Sill Thompson and Co, with a good indorser, for a certain sum of money, for which they held said merchandize forward[ed] as a security or Lien - They forwarded at the time the form of a note to be executed by McDonnel - James Abbot had an interview with McDonnel and informed him of the instructions he had received from Sill Thompson & Co, and that on his Complying with the instructions, said Abbot would deliver the merchandize to McDonnel - McDonnel then enquired, if Richard Smyth would be accepted as indorser - Abbot agreed that he would be sufficient Mr Abbot then drew the note made use of on trial, and delivered it to McDonnel, who left the office, and after a short time returned, with the note signed by himself and indorsed in blank by Richard Smyth, and delivered the same to Mr Abbot, who thereupon delivered Mr McDonnel the goods and merchandize - Mr Abbot further states that at the time of the execu- tion of the note he did not see Mr Smyth nor at any time before had he any conversation with him on the subject of the note or indorsement - That shortly before the action was commenced, and after the note became due, he called on Mr Smyth with the note and informed him that Mess' Sill Thompson and Co, held him responsible for the payment of the note and made a demand on him of the money - That Mr Smyth did not deny UNREPORTED CASES 469 his liability to pay the note but is not understood at that time to have made an assumption or promise Shortly before the Trial the Attorneys of the Pltffs filled up the indorse- ment on the back of the note, over the name of M' Smith which until that time was in Blank, so as to make him a guarantor of the payment of the note, unconditionally - Sill Thompson & Co the payees of the note did not indorse the note, nor did they on trial prove any demand on McDonnel, or notice to Smyth of the non payment until the time Mr Abbot called on him as above The evidence of M' Abbot in support of the foregoing facts, was per- mitted to go to the Jury by the Court, altho resisted by the defendants Counsel, and on it the jury found the verdict, which is now moved to be set aside - The defendants Counsel, in support of their motion, Contend, that the indorsement on the back of the note, is not filled up in Conformity with M Smyths undertaking or legal liability - That he was liable only as second indorser and that the Drawers of the note should themselves have indorsed the note, before they could have made him liable as second in- dorser - And as such 2d indorser, he was entitled to notice, according to the rules of the Law merchant. It is evident, that the drawers of the note might have made him a second indorser, and have subjected him to all the liability of a 2d indorser, if they had thought proper so to do-And in that case he would have been entitled to notice of non payt &C But in the present case the Pltffs did not elect to bring the Defendant within the Law merchant by making him a second indorser - and for the best of reasons - That Course would have destroyed his liability for the payt of the note so far as regarded Sill Thompson & Co and it plainly appears by Mr Abbotts Testimony, that their object was to obtain responsi- ble security for the payt of the money to themselves - I think from the authorities that have been read, that the pltffs were not obliged to pursue the Course suggested by the defendants Coun- sel - I think they had the election within themselves, either to bring the defendant within the Law merchant, or to pursue the Course they have done - The signing in blank gives to the parties receiving the paper so signed great powers over the fortune of the writer - It may become a Draft, a Note of hand, an indorsement or a Letter of Credit - The note in the present instance being filled up at the time it was indorsed, restricted the Pltffs in the use of the name to the subject matter of the note - The Pltffs have so considered their authority over the indorsement, and have so filled it up - 470 SUPREME COURT OF MICHIGAN It is filled up as a special undertaking or Contract by Mr Smyth to pay Sill Thompson & Co the amount of said note at all events and as an original undertaking - The Pltffs were under the authorities read, warranted, to consider Mr Smyths Legal liability to be that of an original undertaking, and so shape their indorsement, as might answer their purpose - But the mere filling up the indorsement of itself does not charge the deft - It is like other special Contracts - The Jury must have evidence in support of the undertaking, on which they are to find the facts argued - I cannot however assent to the correctness of the defendants argument when he contends, that positive evidence of the actual agreement of the parties at the time of the agreement made, must be given - The facts of the agree- ment must be made out at the trial, by such evidence as may be satisfactory with the jury to Convince them of the existence of the Contract - The same discription of evidence as applies in support of other special Contracts, would equally well apply in the present instance - It is competent for a Jury to infer a Contract from facts found and cir- cumstances, connected with those facts, from which they may draw their conclusions - The Court have no other Controul of the evidence, but to judge of its Competency and either to give or withhold it from the jury - When once properly with the jury it is their province to weigh and apply it to the facts - If the Court suffer illegal or improper evidence to go to the jury, it has always been held a good Cause for a new trial - But in the present Case I do not consider the Court to have erred, in permitting the evidence of Mr Abbot to go to the Jury - And when so possessed of his Testimony, it was their province to apply it to the Case and to draw their conclusion from it - Under that Testimony, as it appears they had no other, they have found for the Pltff and in so doing have found the Contract according as set forth in the indorsement - And as one of the Court I cannot say the jury found wrong, nor do I discover, that any injustice is done to the defendant --- It may operate a loss to the defendant in case Mr McDonnel should prove unable to indemnify him by payt of the demand and Costs - But if a loss is to fall on the Pltffs or Mr Smith both being innocent persons in the transaction, it would more properly, light on Mr Smyth as he gave the credit, which the plaintiffs refused to do - The Court are bound to lean in favor of a verdict, and to support it if it is in conformity with the real substantial justice of the Case,- It is evident that Mr Smith became and intended to become surety for the debt - It can be of no consiquence as to the justice of the case, in what manner he is charged so that he is not made accountable for more money than he guar- anteed - There can be no good reason assigned for turning the Pltff round UNREPORTED CASES 471 to a new action on the merits, altho another mode of action might be more technical. It is not stated that the Court misdirected the jury in matters of Law - Had the exception been taken, and should appear to the Court upon a Careful examination that the Law had been mistaken, It would be in- cumbent on the Court to rectify the mistake by a new trial - The Court are not apprised that any new evidence, upon the merits has been discovered since the last trial, altho such fact is stated as one of the reasons assigned for a new trial - Taking into view the whole case and duly considering the arguments of Counsel as well as the authorities read at the Bar, I am of opinion, that neither the law or the Justice of the Case, require the Court to grant a new Trial. [MEMO. OPINION ON MOTION IN ARREST OF JUDGMENT] Sill & others vs. Smith M° in arrest If A & B sue C. on a note made by C to B - The Pltffs should be non- suited- Because the Contract offered in evidence is not the Contract declared on - If A sues B on a note made by B & C he cannot recover agt B without joining C - This applies to a Joint note and not a joint and several under- taking - That there is a Nonjoinder, in this that Two of the parties are not named That there is a misjoinder in this that James L. Barton, was not one of the Co. That there is a variance between the writ and Declaration - in this the writ states 8oo damages and the deci iooo damages - Misjoinder & nonjoinder alledged is Cured by the 6 Art' of the statute of Jeoffails - I am of opinion that the M° be overruled Not considering the same supported. Editor's note: The above opinion and memo. opinion are in the handwriting of Judge Sibley and were found among his papers. The opinion is indorsed, "Sill Thompson & Co vs Richd Smyth-Motion for N. Trial Opinion of S. Sibley." See case 665, Calendar of Cases, supra. The Statute of Jeofails cited in the memo. opinion was adopted by the governor and judges October 30, 1820. (Code of I8zo, p. 347; Laws of the Territory of Michigan, I, 757) 472 SUPREME COURT OF MICHIGAN JOHN JACOB ASTOR, RAMSAY CROOKS AND ROBERT STUART versus LOUIS CAMPAU, JR. October 15, I824 x. Where three judges have been named in a joint commission the judge first named may be considered the presiding judge for the purpose of testing writs until otherwise ordered by the judges themselves. 2. Although a person appointed judge cannot act under his commission until he has qualified according to law, writs tested in his name are valid. 3. In issuing writs, the clerk of a court acts upon his own responsibility as a legal officer without the aid of the judge or judges of the court. This was an action of trespass on the case. Leib, attorney for defendant, moved to quash the writ "because the same is not tested by a Presiding Judge of this Court, and further because at the time of issuing the Writ, there were no actual Judges of the Supreme Court in this Territory." (7ournal3, *p. 485) This motion was argued September 28, 1824 and was overruled October 15, 1824. The facts are given in the opinion. William Woodbridge, attorney for plaintiff. John L. Leib, attorney for defendant. [Syllabi and statement of case by Editor; opinion by Solomon Sibley, one of the judges.] [OPINION] On Motion to quash the writ for the following causes, to wit- 1st That the writ is not tested in the name of the Presiding Judge- 2d That on the day the writ bears date and issued there was no Judge of the Tery of Michigan. and 3d That the Clerk of the Court, was not warranted in making use of the seal of the Court, by applying it to the writ, on the day the writ issued- The facts of the Case are these- By the Law of Congress of the 3d of March 1823, the offices of the Judges of the Tery of Michigan expired on the it of February 1824 - On the 21' of January 1824, the President with the advice and consent of the Senate, appointed and commissioned James Witherell, Sol Sibley and John Hunt Judges in and over the Territory of Michigan, which Commission is to take effect on the first day of Feby 1824 - The Judges named in the Commission, were qualified by oath before the govr on the 3d of March I824 The Commission is joint and James Witherell is first named - UNREPORTED CASES 473 The writ in question bears date Feb' 27th I824 and was served the same day - And is tested in the name of James Witherell The Seal of the Supreme Court is affixed and the Clerk signs it - The seal was affixed by the Clerk without any direction from Judge Witherell - Upon the point first made - I do not think it necessary that it should appear on the face of the writ, that James Witherell, was the presiding Judge - If it is proved that James Witherell was at the time presiding Judge, it answers the requisition of the law - The Commission being a joint one and James Witherell being first named therein, the Plaintiff was authorised to Consider him presiding Judge, until it should be otherwise ordered by the Judges themselves - I admit the full force of the Pltffs Counsels reasoning on this point, and am satisfied that his conclusions are Correct - That objection cannot therefore prevail - The second objection goes to the Authority of the Judges - It is con- tended that the Judges, Can do no act under their appointment until qualified by oath pursuant to the 4th Section of the act of Congress of the first of June 1789. (Vol. 2. pa 2) - And in as much as the writ bears date at a day before the Judges were qualified it is therefore void - The Pltffs Counsel on the Contrary Contends that James Witherell became a Judge, on the first day of February 1824 - That all acts done by him or supposed to be done by him, as a Judge of the Territory after the 1st of Feby 18 24 and before the 3d of March 1824 the day on which he was qualified, were and are good & valid in reference to third persons - The Act must stand well and the judge incurs the penalty of the Law, for assuming on himself to act before he was qualified in pursuance to the requisition of the Act of Congress. In support of this proposition several authorities have been read, both from abroad and from N York - I have perused the Authority Cited at the Bar - The Cases relate to executive officers and their acts, or to Cor- poration officers, who had been elected under Charters, and are bottomed on the fact that the interest and rights of third persons had been attained, acquired or varied by the acts done - In such Cases Courts have Considered the Acts well done, so far as to protect such rights acquired or attained - so far as the authorities go I think they are correct, and I trust this Court would under like circumstances, support the acts of an officer de facto - The Legal presumption is, that every person, who undertakes to dis- charge the duties of an office is qualified to discharge such duties - Under such presumption, individuals and strangers, are not required to look into the fact of qualification - But the present Case does not come within the reasons of the authority Cited - It is not pretended that Judge Witherell did or authorised to be done in his name the Act on which the question rests - Nor is it the fact that the 474 SUPREME COURT OF MICHIGAN rights of third persons, have been varied or that they will be compromitted or altered, by any Act done - The remedy of the Pltff is only affected - The defendant complains to the Court that his personal liberty has been illegally interfered with under Colour of the authority of this Court, and applies for redress - He applies at the earliest day in his power for redress, and must receive it if he makes out his Case - The question made under the 2d Exception to the writ, brings up the point, at what time did James Witherell under his Commission of the 21 of Jany' become a Judge of the Territory. So far as the Government is Con- cerned, he became a Judge on the 1st of Feby I824 - But by the Act of Congress, the appointment was Conditional and required an Act to be done by himself, to render the appointment absolute - this Act to be done by him was the acceptance of the appointment, and which could not be ef- fectively made by any act less than an actual qualification to discharge the duties of the office - Had Judge Witherell declined the office, and another person have been appointed to the vacancy, it would not have been on the ground of his resignation - It would have been on the principle that the office was vacant by his nonacceptance - I am therefore of the opinion that Judge Witherell, could not do any Legal Act as a Judge of the Territory between the first day of Feby and the 3d of March 1824. - the day of his acceptance and qualification - The 3d exception was to the authority of the Clk to issue the writ, under the Circumstances and at the time the writ issued - It is contended by the Pltfs Counsel that the issuing a writ by the Clerk is of Course and a Mere Ministerial Act, and as Judge Witherell was in fact a Judge on the 1st of Feby 1824 by appointment, and having qualified himself after the writ issued He was at the time the writ issued a Judge so far as to legalise the the Test. This part of the question involves some dificulties To suppose that an officer of the Court, who in Contemplation of law acts under their authority and duties, should be able to do an act in the name of a Judge which the Judge is not authorised himself to do or direct to be done would appear to involve an absurdity - The act of the Territory authorises the Court to appoint their Clk - When appointed the same act requires him to qualify before he acts - When qualified altho appointed by the Court he becomes an officer under the Law, and bound to perform those duties prescribed by Law - One of his duties under the law is to issue a writ on a precipie being filed in his office - in the discharge of this part of his Legal duty, neither the Court nor any Judge thereof have any power or authority to interfere - The writ issues on the Clerks legal responsibility - UNREPORTED CASES 475 If the writ, on its being before the Court, has been issued Contrary to Law, or is otherwise defective the Court may quash it or set it aside - The Clerk of the Court was duly appointed previous to the Ist of Febr 1824, and was not affected by the act of Congress of the 3d of March 1823. Therefore at the time the writ issued the Clerk was an existing legal of- ficer of the Supreme Court of the Territory, Capable of acting in the line of his duty, so far as the actual aid of the Judge or Judges of the Court were not required to give efficacy to said Acts - If I am Correct in this view of the Case, and that the Clerk acted under the law, and independent of Judge Witherell, the Test leaves a mere matter of form - And as he was potentially a Judge at the time, and by his ac- ceptance the appointment became absolute, that for the purpose of the writ, it may refer to the first of Feby 1824 - and therby the writ stood good and effective in Law - I incline strongly to Construe the act of the Territory so as to support the writ - I think that such a Construction may be given to the Law, and to protect the official Acts of the Clk between the 1st of Feby and the 3d of March 1824, it appears necessary and proper to give this Construction to the Act. My opinion therefore is that the deft take Nothing by his Motion - Editor's note: See Calendar of Cases, supra, case lo56. A memorandum, also in the hand- writing of Judge Sibley, reads as follows: "Astor vs Campau-M° by Defe At" Leib to quash the writ-Because at the time the writ bears teste there was no judge of the Ter" authorized to Test a writ pursuant to the act of the Ter", therefore the writ is void-317. T L. date of writ 27 Feb" 1824-2 vol. L. U. page 2. oath of office before acting requa Ex- ception that the writ issued before the Judges were qualified-2d That the writ bears teste of Jas Witherell as presiding Judge, who at the time was not presiding Judge of this Court- l)ateof Corn 21. JanY 1824 Took effect I Feby I824 qualified March 3 1824 writ dated Feby 27. 1824 served 27. Feby I824-tested James Witherell one of the Judges of the Supreme Court. By the fourth section of the Act of Congress, regulating the time and manner of administering oaths &° passed I June 1789. (2 vol. page 2. U S. L) provides that all officers, after to be appointed under the Authority of the United States, should take an oath to sup- port the Constitution, before such persons should enter on the discharge of the duties of their offices-The Judges of the Supreme Court are officers, deriving their authority by appointment of the United States, and fairly included within the fourth Section of the Law -By the ordinance of 1787 the judges of the S C are required to take an oath before the Governor of fidelity and of office-The oath to support the Constitution, a requisition made since the passage of the ordinance, has been added to the oaths required by the ordinance- The ordinance of 1787 is silent as to the time when the judges shall qualify-it does not contain the restricting clause embraced in the 4th Section-It may be fairly understood however, that the same provision is implied by the ordinance and that it was never intended that the Judges should enter on the duties of their office, until they were qualified by the requisite oaths-If this Construction is correct and that the judges ought to qualify them- selves by taking the above oaths, before they act officially, and undertake to act and do some act before so qualified-How is such act to be Considered-Is it void? Or is the judge obnoxious to punishment, and the act done well done."  NOTES OF TRIALS, ARGUMENTS, DECISIONS, AND PROCEEDINGS September Term, 1821 The "notes" following were printed piecemeal in the Detroit Gazette in I822-23. They are re- printed from the Gazette. See comment by Doty, supra. (Doty's Reports, *p. I 89)  Notes of Trials, Arguments, Decisions, and Proceedings THE GAZETTE FRIDAY, OCTOBER 18, 1822. We have been furnished with the pro- ceedings in the Supreme Court of this terri- tory for a number of days, during which some important and some unimportant cases occurred. The Notes, we believe, are very correctly taken; and as the publication of them may be of some benefit to the pub- lic, and cannot possibly be injurious, we give them with pleasure. It is very certain that, as all men's memories are more or less treacherous, and as it is all important that judges, above other men, should continually have their eyes upon their past decisions and proceedings, in order to preserve a consis- tency of conduct, and also to maintain among suitors and lawyers a confidence in the propriety and uniformity of their official demeanor-for these reasons, we say, it is very certain that such "Notes of Trials" as the following will not fail of being of some little service, even to the honorable gentle- men whose decisions and opinions constitute the greatest proportion of them. Some fastidious critic may, perhaps, en- deavor to throw blame upon the "Reporter," for adhering so closely to the manner and ,atter-and he may, also, be blamed for "noting down" occasional conversations, which, on the first glance, may appear trivial, and with respect to the matter before the court, extraneous. But we are inclined to think that the "Notes" would lose much of their interest, and, perhaps, their usefulness, were the conversations omit- ted. Besides, it is a very general impression, that everything that falls from the lips of a Judge, (a Judge of a Supreme Court) when sitting in judgment on the lives, the liberties and the possessions of his fellow beings, is truly proper, and truly law. We shall not, then, take upon ourselves the responsibility of deciding as to anything detailed in the 'notes,' but, with our fellow-citizens gen- erally will glean from them all the instruc- tion and amusement which we may. We not unfrequently find, in the news- papers of the Atlantic cities, "Notes of Trials;" and they contain, generally, much to entertain and enlighten--Yet, we never have perused any "Notes" with more intense interest than those of our Correspondent: and, as our little city, in many things, en- deavors to imitate the great ones, why may not we, as printers of the former, imitate those of the latter, in amusing and instruct- ing our readers by publishing "Notes," of trials and the proceedings of our courts? The "Notes," commence with the Sep- tember Term of 1821, and will be continued (regularly or irregularly) until the whole are published. [THE GAZETTE, OCT. I8, 1822 Notes of Trials, Arguments, Deci- sions, and Proceedings, in the Supreme Court of the Terri- tory of Michigan - September Term, 1821. "A man may see how this world goes with no "eyes. Look with thine ears; see how yon Justice "rails upon yon simple thief. Hark in thine ear- "change places; and handy-dandy, which is the "Justice, which the Thief?" KING LEAR. SEPTEMBER 17. On calling the Grand Jury, the question was raised-What is the form of the oath to be administered to them? Leib--said if the statute concerning jurors did not prescribe the form, the court must proceed according to the common law. He quoted the Ordinance to show that the court must proceed according to the common law rules-that the court must appoint the fore- man of the grand jury, and the other jurors must take the oath of the foreman. M'Dougall-from reading a little, thought the common law and statute must jump to- gether, i. e. cumulative-where the common law and statute are diametrically opposite, they may go along hand in hand-i. e. pursue them both Woodward, .-said there was ingenuity and good sense in mr. M'Dougalls remarks; 479 480 SUPREME COURT OF MICHIGAN and asked if mr. Leib saw any difficulty in this course? Leib-said he could not see how things diametrically opposite could go hand in hand. M'Dougall-The gentleman don't under- stand me at all. Leib-I was saying nothing about what you said; I was answering the court. Woodward-(after pausing some time) said, Let the court swear the jury according to the statute oath,* and appoint a foreman; then let them get into the box, and choose their foreman, they will of course choose the same foreman the court have selected; then swear them over again, according to the common law oath, and they will be a good jury-as one or the other mode of swearing must be good, and the bad will be mere surplusage. Larned, At. Gen.-thought there was great ingenuity in Mr. M'Dougall's proposal: and that that mode would obviate all difficulties. He considered the provision in the statute as inconsistent with the ordinance, as it varied the form of the oath, and was there- fore null. He wished to proceed by the common law, the statute being null. Woodward-The court, as Mr. Leib says, is of counsel for the prisoner, therefore ought not to assist the prosecutor with suggestions -he must see that every thing is legally done. Leib Ridiculed the idea of surplusage in an oath, he never heard of such a thing-the court cannot get a jury at all without going through the appointment of a foreman-the statute swearing leaves the twenty-four men as it found them. The statute is not null, for the governor and judges have power, by the ordinance, to adopt a law repealing the common law. M'Dougall-Suggested that in the oath ought to be the words-"United States of America's counsel," &c. Woodward-Do you, Mr. attorney-gen- eral, make this motion? Larned-No-Mr. M'Dougall makes it. Witherell, 7.-There is no other United States. *This statute was repealed on the 7th February, 1~2o. It seems the judge, although a member of the legislature, and after 19 months had expired, had yet to be informed of its repeal! ! ! ISee Laws Mich 136. Griffin, 7.--Was uncertain whether it ought to be made. Woodward-There are other United State Witherell-Name them. Woodward-Both in Europe and America -Netherlands-provinces in South Amer. ica. Witherell-THERE ARE NOT. Woodward-The Netherlands, I tell you. Witherell-They are monarchies Woodward-They were United States. Witherell-Yes; but it was before yVo were born. The word "America" was finally inserted -and the three grand jurors who had been sworn before the amendment, were sworn again. Mr. Dequindre, one of the jurors, en. quired of the court how long the obligation to "keep the United States' counsel" must be kept? the court waived giving an opinion: but judge Woodward gave it as the opinion of Mr. Sibley, that it must be kept during life, unless demanded in a court of law by judicial process. Here a long desultory conversation ensue.:i between the judges and mr. Sibley about the obligation of secrecy: judge Griffin stated a case where a grand juror heard a witne swear before the petit jury contrary to his testimony before the grand jury; he dis- closed, and the witness was convicted of perjury. The court, however, agreed with mr. Sibley; judge Witherell seemed to be of a contrary opinion; judge Woodward dis- liked the obligation as to secrecy altogethe A discussion followed about swearing some talesmen-talesmen not sworn. Nineteen grand jurors were sworn, and the court put the question to them, if they were all freeholders; much discussion fol- lowed about freehold. Mr. Bucklin, a grand juror, objected to serving on the jury, because he was sum- moned on one of the days of the election, on which the service of all civil process is prohibited. Witherell-He ought to be sworn. Grifin-He was not legally summoned. Woodward-A venire is NOT such a ciri process as is contemplated by the statute: the service of a venire is not therefore pro- hibited-let him be sworn. Larned-proposed now to swear the grand jury according to the common law also. NOTES OF TRIALS, ETC. 481 Woodward-If you wish, I will put the question to the court. Sibley--Thought the oath already taken was sufficient, as it was substantially the same. Larned-The oath taken is the one re- pealed by the late statute.t Therefore, he wished them sworn again, after they have chosen a foreman, by the common law oath. The question was put to the court. WIVitherell-As to territorial matters, I am satisfied with the jury so far as we have gone; but as to U. S. grand jury, see what is the mode in U. S. courts. Lib-By the U. S. law, jurors are sum- moned in the same manner as by the law of the state; but if a state should alter the law as to grandjurors, still the marshal must summon them as the law then existed. WVitherell-In Vermont the law is incon- sistent with this mode, and in that manner a jury could not be got. (to be continued.) THE GAZETTE, OCT. 25, 18221] Notes of Trials, Arguments, Deci- sions, and Proceedings, in the Supreme Court of the Terri- tory of Michigan- September Term, 1821. "A man may see how this world goes with no eyes. Look with thine ears; see how yon Justice "rails upon yon simple thief. Hark in thine ear- change places; and handy-dandy, which is the "justice, which the Thief?" KING LEAR. SEPTEMBER 17. (Continued) Woodward-Read U. S. law of Sept. 4, 1809, in relation to two judges sitting to- gether in U. S. courts, in opposition to Mr. Leib's assertion that but one judge sits. Leib--stated the mode of getting grand and petit jurors in Pennsylvania. Woodward-After concurring with mr. Leib, asked judge Griffin his opinion on the attorney-general's motion. Griffin-Did not agree-he sat to declare laws-not to make them. .This was the first discovery made of this fact in the discussion! Woodward-Mr. Larned, you see the two judges are of different opinions, and mine, if given, would not aid you, as they each wish a mode different from your motion. Larned-Thought, with judge Witherell, that the jury was a good one-but he saw that the court leaned to a different opinion- and did not wish all the labor of trials lost by arrest of judgment-wished it deter- mined now for this reason-he felt great anxiety as to the good of the community. Woodward-Mr. Larned, are you willing to withdraw your motion? Larned-I don't know that I am. Witherell-I don't think the oath is com- mon law, more than John Rogers' verses-I think the jury a good one. Woodward-I have given no opinion as to the goodness of the jury-when it comes before me, I shall do it to the best of my skill. M'Dougall-Permit me, as an old in- habitant, to state my views-I regret that every villain escapes by the departure of the court from the common law. Hudson never will be punished. I hope the court will go straight according to the common law. Witherell-You don't go far enough with your common law. A man must have a large real estate to qualify him as a juror. Woodward-NO. Witherell-'Tis so. Criminals should also be entitled to the benefit of clergy. M'Dougall-Take the common law as it was at the revolution. The jury declared that they had chosen Louis Beaufait their foreman. Griffin-They can't be a grand jury until they are sworn. According to the common law, the foreman must be sworn first. Witherell-Proposed to adjourn till the next day, and, as a legislature, pass a law prescribing the form of the oath. Woodward-Mr. Larned, what do you think of the mode proposed by judge Witherell, to make a law off hand? Larned-I think it would obviate all difficulties Woodward-Mr. Leib, what is your opin- ion? Leib-Not prepared-though he thought of this mode in the morning; 'twould look curious-but, on the whole, thought it the only remedy, if that could be a remedy. This proposal seemed to take with the court. 482 SUPREME COURT OF MICHIGAN Larned-Proposed that the entry of swear- ing the jury be omitted on the journal of the court. Woodward-Asked mr. Leib's opinion. Leib-The court have power over all entries. Thought it would be best to omit it. Woodward-Must not the entry appear, as the law required the jury on the first day of Term. Leib-Thought not. Woodward-Two of the court are of opinion that the swearing of the jury need not be entered on the minutes. I am not of that opinion, but yield to them. The jury were discharged from further attendance, and the court adjourned, until the next day. [THE GAZETTE, NOV. I, 1822] Notes of Trials, Arguments, Deci- sions, and Proceedings, in the Supreme Court of the Terri- tory of Michigan - September Term, 1821. "A man may see how this world goes with no "eyes. Look with thine ears; see how yon Justice "rails upon yon simple thief. Hark in thine ear- "change places; and handy-dandy, which is the "Justice, which the Thief?" KING LEAR. (Continued) SEPTEMBER I8. The Grand Jury was called, when mr. Russell claimed to be excused, on the ground that he was not a freeholder, and therefore could not legally serve as a grand juryman. He had a U. S. certificate for land in Oak- land county, but no deed. Sibley-I think he is not a freeholder. Witherell-If that is granted, we must go back to salt water law, and freeholders must have a certain quantum of land. Sibley-I think not-one acre or one thousand are the same, for making a free- holder. Witherell-No; at common law a certain quantity was necessary-it has been altered by statute in England. Sibley-I think it is doubtful as to the quantum required by the common law. The qualifications of petit jurors are indefinite, and the law assimilates the requisites of the grand to those of the petit jurors. Witherell-If you are right, they cou: not get a jury in Oakland county. Woodward-(to Witherell)-You are o opinion that Russell is a freeholder? Witherell-I don't say so. Woodward-Then you are of opinion that he is not a freeholder? Witherell-I don't say so. (all silent for a time) The title to U. S. lands, when the certificate is given, is out of the Unite; States-it is imperitive on the United States to give a deed-not like a bond from an individual. O'Keefe-states the case of a voter in England. A mortgagor who had mortgaged his estate over and over again, beyond al possibility of redemption; yet the fee was in him, and not the mortgagees-and he was a freeholder. Witherell-The reason in England for requiring a freehold is, that there shall bhe none but men of character and standing to pass on the lives and fortunes of their fellows. O'Keefe-Russell is not in possession, he is therefore situated like the mortgagees. The question was now put. Witherell-I think he is a freeholder enough for the purposes of the statute con- cerning the qualifications of grand jurors Griffin-He has not the fee by the cer- tificate; therefore he is not a freeholder. Larned-recommends to examine the certificate, to see how it reads. Woodward-It is very clear he is not a freeholder: this statute does not apply to Oakland county; only to this court. They ought to be freeholders, but it is a cash omissus. [reads the jury act. L. of Mich. 136.] Russell is discharged from the jury. Lamrned-suggested that Chene is not a freeholder; he had sold his farm to Ball for a consideration of fifty dollars. Woodward. I wish mr. Chene to state the facts as to his title. M'DougalL Ball bought of Chene. An absolute deed was made; but Chene thinks it was a mortgage. The deed is in my hands. Larned. 'Tis an absolute deed. Witherell and Griffin. He is not a free- holder. NOTES OF TRIALS, ETC. 483 Wood ward. I am of a different opinion; for if it was the understanding of the parties that it was a mortgage, it is a mortgage, and Chene is a freeholder. Chene is discharged. Sixteen Jurors only remaining, there was some talk about tales. Larned I think Steinback is not a free- holder. Steinback. I am; I came here in the fall of 1796. [See 2d article of Jay's treaty.] The court called upon mr. Leib to state what was the decision as to his citizenship at the election. L. said that he was admitted to vote by liberality. Judge May was called to show that Steinback was naturalized. M. stated that S. applied to him, but he had no power to naturalize, &c. Mr. Sibley then read the U. S. law authorizing the election of a delegate. He then remarked: "Citizen of this territory" are the words used: can a man be a citizen of a state or territory, and not of the United States? Witherell. I wish to know if mr. Lamed challenges Steinback. Lamed. I do. The court unanimously agreed that Stein- back be discharged from the jury. (Mem. The frst time they have been unanimous.) Lamed. Charles Gouin elected under Jay's treaty to remain a British subject. (Jay's treaty, 2d art ) M'Dougall. I wish to ask him in French if he did elect. Mr. Gouin said he never signed a paper electing to become a British subject. Lamed. I think mr. Gouin is mistaken. Lteib. I think his name is on the paper, but he never wrote it; the names of others are there who say they never signed, nor authorised any one to do it. Here the old records of Wayne county were brought into court. The court ordered five talesmen to be summoned on the grand jury. They were summoned, when-one was excused for sick- ness-another was driving a flock of sheep to St. Clair when summoned-and a third was excused because his wife was sick and he came to town after the doctor. On the excuse of the latter, the court were unanimous. The Sheriff was ordered to summon four more, which he did; but among the number there was one Labidie, who not being a citizen was excused. The Sheriff was then ordered to summon five more-which was done. Leib. The Sheriff has summoned Smith; I am counsel for him; he is a suitor in court and protected from summons. Godfroy too, should be excused for the same reason- witnesses and parties are exempted. Woodward. I will take the opinion of the court. The opinion of the court was, as to Smith, that he could not be excused, being only a suitor. Witherell. I think Godfroy ought to be excused, because he is summoned from a distance. Griffin. I am of the same opinion. Woodward. I think differently; I would rather have him on the jury for that reason. Cook was excused; being sick. Woodward-Has the attorney general any more challenges to make? Lamrned. I have none. Judge Woodward then asks mr. Sibley about the oath, and was referred by mr. S. to the law passed last night, which prescribes the form of jurors' oath. The clerk reads the law. Woodward. I presume Judge Witherell is now willing the jury be sworn. Witherell. Yes. Griffin. I am likewise. Woodward. (to the clerk) Call the two first jurors. Leib. I would inform the court that Conelly, one of the tales, is not a freeholder. Conelly. I am; Abbott has reconveyed my farm to me. The objection was withdrawn; and eight- een jurors were sworn. There were several French jurymen who did not understand English-and a pretty long discussion took place as to the proper translation of the word "envy" into French. It was finally agreed that "envie" was the correct word. Woodward. The district clerk will make the same entries, up to the swearing of the grand jury, inclusive, on his record, as are made by the clerk of the supreme court. Deming. (clerk) Ought not the tales be summoned by the marshal also, as well as by the sheriff of the county? This question produced a discussion-and the presiding judge agreed that the marshal 484 SUPREME COURT OF MICHIGAN should summon the same jurors; and, on mr. Sibley's suggestion, that the whole panel should be sworn over again on the district side of the court, changing the words "territory of Michigan," to "United States." Judge Woodward explained the matter to the jury-the marshall summoned the talesmen-and the district clerk called and swore the whole jury on the district side of the court. Woodward. I have many matters to charge on both sides of the court, therefore shall delay the charge till 2 P.M.-as the time of the recess comes.-Day! you will proclaim a recess of the court for one hour. Day repeats the proclamation. (To be continued.) [THE GAZETTE, NOV. 15, 1822] Notes of Trials, Arguments, Deci- sions, and Proceedings, in the Supreme Court of the Terri- tory of Michigan - September Term, 18 2 I. "A man may see how this world goes with no "eyes. Look with thine ears; see how yon Justice "rails upon yon simple thief. Hark in thine ear- "change places; and handy-dandy, which is the "Justice, which the Thief?" KING LEAR. (Continued from No. 276.) SEPTEMBER 18 2 P.M. Charge of the Presiding Judge. Woodward-Gentlemen of the Grand Jury, on account of a difference of opinion as to the power of one judge to hold a court, it is best to wait until two attend. (Griffin comes in-silence commanded while the charge is delivered.) Fellow citizens of the Grand Jury for the body of Michigan-It will appear by a statute I shall read, that the Supreme Court is invested with exclusive jurisdiction over all capital offenses. You will readily apprehend the object-it is to secure for the accused all the talents the country affords. Shall also read a clause of the statute of the territory of Michigan as to the crime of murder, and also from the laws of the United States. Having done this, shall proceed to the law on the subject of murder. You have in all cases jurisdiction a jurors of the district of the U. S. as well a of the territory. [Read territorial act giving exclusive jurisdiction to Supreme Court in capital cases, and 2d section of the criminal law as to the crime of murder, and punishment of same.] By a clause in the Ordinance also it is provided that the laws to be adopted, shall have operation in all parts of the district- the construction of which is, that it is not necessary the Indian title should be ex. tinguished to give jurisdiction. By the act of Congress (2d vol.) pro. vision is made for the punishment of murder in districts held by posts of the United States, as forts, arsenals, &c. or any other place under the exclusive jurisdiction of the United States. The Constitution of the United States provides that no one shall be punished for a capital offence but by indictment found by a Grand Jury. [Reads now the common law at large from 4 vol. Bl'k. com. 14, 176. Before he had concluded his quotation some of the jurors were "caught napping."] [Read the section of the statute prescrib- ing the mode of punishment of murder by hanging. and all the sections abolishing appeals, trial by battle, corruption of blood, &c] I have but one more statute to read, I shall then leave you to your own judgments, and the advice of the Attorney General. It is the act of Congress, 2d vol. L U. S., 67, as to summoning 12 petit jurors from the county where the murder was committed. I have now submitted all of the law, and every thing essential, as to the crime and punishment of murder. If anything more is wanted, I refer you to the prosecuting attormnies. I will remark on one point more. The same evidence nearly will be required by the Grand Jury before an indictment is found, as will be required by a petit jury in trying the offender. You are not to present on probability, merely-[Reads from 4th vol. Bl'k. Com.] And you must find the offence committed within this territory. "Whoso sheddeth man's blood, by man shall his blood be shed." These are emphatic words-not as having any divine authority, NOTES OF TRIALS, ETC. 485 or containing any thing holy-but as evidence of early and wise opinions-they contain solemn law, solemnly expressed. It is your duty to see that every murderer be put to death; and also that no one is indicted without sufficient evidence. Pas- sions must be quiet. You are not to be influenced by partialities or animosities in finding bills. It is better that 99 criminals should escape, than that one innocent man should suffer. Be not, therefore, too rigorous. I submit to you, as is required by an act of Congress, the last census, and the manner it has been taken by the marshal, for your consideration. [Sits down.] Sibley. I beg leave to refer your honor to the U. S. law concerning murder committed in the Indian country. Woodward. I knew of the existence of the law, but could not find it. I chose, rather to omit it than to state it without having it. But as the law is found I am glad (Reads the law)-Mr. Sibley, is there any treaty on this subject? Sibley. Not that I know of. The treaty of Grenville provides for punishing Indians who come upon our lands and commit murder, and also white men for going into the Indian country and doing the same Woodward. Do Messrs. Sibley and Lamrned wish any thing to be given in charge to the Jury? Both. Nothing. Woodward. The jury will retire and con- sult of their presentments and indictments. September I19th, The Grand Jury came into court and presented two bills against two Indians- Kewabishkim and Ketauna. Soon after, the prisoners were brought in; when Messrs. Beaufait, Godfroy, & Visger were called on to act as interpreters-but they all decline. A boy was then sworn to interpret from Menominee into French, and vice versa; Godfroy was sworn to interpret from Chippe- way into French, and vice versa, and M'Dougall was sworn to interpret from French into English. Woodward. (To M'Dougall.) Tell the boy toask Kewabishkim why he was brought here. The question being asked, Kewabishkim answered that he did not know. Woodward. I wish to know for what he is brought here. I have not read the indict- ment, nor do I wish or intend to. I would rather not look at it. Messrs. Hunt and Lamrned examine the indictment, and inform the Judge that he was there for the murder of a Frenchman at Green Bay. Kewabishkim informs the court by the interpreter, that he does not understand Chippewa, and that he only understands what the boy says.-He was then told for what he was brought to the court; and he said that he knew it The interpreter was then directed to ask him if he was ready for trial; but the boy could not ask the question; for he said there was no such word as trial in the Menomine tongue. Woodward. Ask him if he is willing to pass before twelve men. Kewabishkim answed-Yes. [Here (says the Reporter) I could not understand much that passed between the Indian, the court and the interpreter] On being asked if he wanted any wit- nesses Kewabishkim said that he wanted the Indian who lent him the knife-he was the only man present. He was asked if he had any friends whom he wished to speak for him? he said he had not-and on being asked if he wanted any, he said he would be very glad to have them help him. Woodward. Ask him if he is willing the court should appoint some persons to speak for him. Kewabishkim said he was willing and would be glad to have some appointed. Woodward Inform him that he is not to con- fess any thing. Take off his fetters-no one should be brought before the court in chains. Desnoyers and Beaubien were now sworn to interpret Chippewa and French-and the court consults about appointing counsel. Mr. Woodbridge informs the court that Gov. Cass objects to paying fees to counsel from the funds of the Indian Department. Sibley. I shall object to employing the boy as an interpreter for the counsel of the Indian, as he is a principal witness for the prosecution. Messrs. Leib. Coleman, Witherell and O'Keeffe, were assigned as counsel for prisoner. Woodward. How many days does he want to prepare for trial? 486 SUPREME COURT OF MICHIGAN Kewabishkim said he wanted four nights -and when asked why, he said, that they may take pity on him, and give him his liberty He said he would be ready on Monday next He was told by the court that he might have his counsel with him at any time-he said he wants them to come to-morrow. He was further informed, that there would be a man to speak against him -he replied that it was very good-he was told also, that the four would speak for him; that the t[h]ree judges would do all they could to clear him, and that they will be his friends. He was then remanded to prison. Devotion vs. Anderson. This was a case removed by habeas corpus cum causa, from Wayne county court to this term of the supreme court. Doty (att'y for plaintiff) moved for a rule on the sheriff, to bring in the body of the defendant Woodward. The rule cannot be granted- The defendant is not in the custody of the sheriff. The county court is only commanded to send up the record; and the plaintiff has nothing to do with the defendant's body. Grigffin-was of the same opinion. Doty-then moved that the defendant be ruled to enter special bail in four days. The court overruled the motion. (To be Continued) [THE GAZETTE, NOV. 22, 1822] Notes of Trials, Arguments, Deci- sions, and Proceedings, in the Supreme Court of the Terri- tory of Michigan - September Term, 1821. "A man may see how this world goes with no "eyes. Look with thine ears; see how yon Justice "rails upon yon simple thief. Hark in thine ear- "change places; and handy-dandy, which is the "Justice, which the Thief?" KING LEAR. (Continued) SEPTEMBER 20. May vs. Burnet. Sibley, Whitney, and Lanman attornies for Plaintiff-Hunt, Leib and M'Dougall, for defendant. The attornies for the defendant moved, that the entry of the granting a new trial at the last term, in this case, be stricken off- it having been entered by mistake. Witherell, J.-I can give no opinion, because I was not present when the record was made Griffin, 7-I am of opinion that the record is good and ought not to be altered. Woodward, J.-I think the record is correct. At all events, it cannot be altered in this man[ner] but must be by writ. de cor. nov. Leib-moved for a writ de cor. nov., returnable forthwith. In support of his motion he cited Fits. Her. Nat. Br. 2 and Bac. Ab. Lanman-Great injustice was done to the plaintiff by the verdict, and he is entitled to a new trial. The court may grant anew trial, instanter, without argument. The authori- ties produced in favor of granting the writ are all of them black letter. The practice has never prevailed in this court, and I hope it will not be introduced. Leib-I never heard before that mine were black letter authorities-but I may be wrong, as the gentleman is very learned. The verdict was just; and I am prepared to show that no new trial could be granted in this court-that altho the verdict was con- trary to the direction of the court there was no good cause. [No decision] United States vs. Ketaukah. Ketaukah was brought into court and his fetters taken off Woodward-I propose to proceed with this Indian as we did with the one yesterday. Witherell. I won't agree to it. Woodward. Mr. Knaggs, ask the Indian if he knows for what he is brought here. Witherell. I object-it is an improper question. Mr. Knaggs, you will not put the question until the court orders you. Woodward. Mr. Knaggs, you will inform the Indian he need not confess any thing that will criminate himself. Sibley-states the proper mode of pro- ceeding-and some indistinct conversation took place among the Judges. The prisoner was then asked, why he was brought before the court? He said he did not know. NOTES OF TRIALS, ETC. 487 Woodward. Mr. Knaggs inform Ketaukah that this is a court to try murder; that he will be tried by twelve men, and that he has a right to object to any thirty-six on the panel, if he only dislikes their looks; that the twelve men will have to say if he is guilty; that before the twelve, one man will appear to speak against him, and do all he can to make the twelve men declare him guilty; and that he will now be pointed out to him that he may know him personally. Sibley and Lamrned-object to be pointed out, and state what is their duty-they don't want to be made liable to the Indian's resentment or revenge, should he be ac- quitted. W'oodward. Tell the Indian that there will be an agent of the government to speak against him, and ask him if he has any friends. Ketaukah said he had no friends, and when asked if he wished to have some appointed to assist him, he said he would be thankful, and hoped they would take pity on him. Doty, Coleman and Petit, were appointed counsel. Doty suggests that Hunt be of the counsel also-to which Woodward objects, because Hunt is the partner of Larned. Hunt, however, is appointed, and also Lanman. Lanman declines-Hunt also de- clines, as his appointment was not spon- taneous from the court, but drawn by friend- ship of Doty-he was excused. Knaggs is directed to tell the Indian that four men are appointed to speak for him Woodward-finds out that the statute allows only two counsel. Knaggs is instructed to tell the prisoner that his counsel will do every thing he wishes-Knaggs states to the court, that as an officer (sworn interpreter) he must take notes of what passes between the prisoner and the counsel. unless he is sworn not to divulge any thing that is said by the Indian. Sibley-explains Knaggs' views. Doty-I wish that we may have an interpreter, not an officer of the United States, and that he be sworn not to disclose. Woodward. (to Knaggs) Instruct the prisoner that whatever passes between him and the counsel shall not injure him-that he is to tell them only what he chooses-and if he does, the court will not allow him to be harmed on that account: and further, that besides the four, the three judges are also his friends. Ketaukah was then asked if he wants any witnesses-he said he had no friends. He was asked if he was ready for trial, and if not, when he would be-he said he would be ready in four nights. He was told that the court would try him on Monday next. On being asked if he was well treated in jail, he said he was well, and had enough to eat and drink, and had no reason to com- plain. He was then told that he would be then sent back to the jail and on Monday be again brought before the court without fetters, as a freeman. [THE GAZETTE, DEC. 6, I8,221 Notes of Trials, Arguments, Deci- sions, and Proceedings, in the Supreme Court of the Terri- tory of Michigan - September Term, 1821. "A man may see how this world goes with no "eyes. Look with thine ears; see how yon Justice "rails upon yon simple thief. Hark in thine ear- "change places; and handy-dandy, which is the "Justice, which the Thief?" KING LEAR. (Continued) SEPTEMBER 22. Parker vs. Parker. Woodbridge & Lawrence moved that the writ be quashed. It is a capias, and there is no endorsement thereon that bail is required. The plaintiff does not show that he was entitled to bail-and in such cases the statute provides that a summons shall issue. There are not six judicial days between the day of service and that of the return. The service was on the loth Sept. and the return-day was Monday the 17th; the sixth day was therefore Sunday. Lamrned for plaintif.-If a capias issue, bail must be taken by the officer, for the writ itself is a demand of bail. It is not necessary therefore that there should be any endorsement on the capias that bail is required. Sunday must be counted, as it is an intervening day, and not the last of the return. 488 SUPREME COURT OF MICHIGAN Per curiam.-There must be an endorse- ment on the capias when it is issued, that bail is required. The capias itself does not require bail. (No decision on the other point.) Johnson vs. Stead. This case was removed from Wayne County Court to tho [the] last term, by hab. corp. cum. ca. Whitney-Moved for a rule on the de- fendant to plead in two days. Hunt & Larned-contra. Witherell, 7.-was in favor of laying the rule. Griffn and Woodward-The statute allow- ing thirty days to plead in affects this case. The defendant has acquired rights under it- he is entitled to all the days, and we cannot take from him one of them. The plaintiff had acquired no rights under the practice which prevailed anterior to the statute; and even if he had, he had neglected and for- feited them, he has never attempted to exercise them. He did not attempt to file his narr until after the statute had attached to the case. The time for declaring and pleading by the rules of the court, has been superseded by the statute. Rule refused. Whitney-then moved for a procedendo in this case. Bail was not entered before the court or Judge previous to the emanation of the writ, as the statute required. (See Lawyer's law, act of 13th June, 1818.) The bail was taken before a justice of the peace, under a a rule of this court, and not accord- ing to the provisions of the statute. That statute also requires the party to enter into the recogizance, here he did not. Larned-The plaintiff has acknowledged the case-himself and the defendant well in court, by fling his narr. He has by this waived all error in bringing up the case. We are therefore entitled to plead to the declaration, and so the court have just decided. Whitney-Filing the narr. before bail en- tered is no waiver-so is the rule of court. Hunt-He has admitted himself in court. Whitney-I have done so-if I had not. I could not have moved. But I deny that the defendant is in court. Hunt--our appearance for the defendant was entered last term. Witherell-The cause has not been brought up according to the statute. It must there. fore be remanded. Griffin-the plaintiff has admitted himself well here. The cause must remain. Woodward-The defendant has a right to plead to the declaration. The declaration may perhaps be withdrawn, and the plan. tiff then move to quash the writ. Whitney-Then moved to withdraw the narr. Larned--opposed it, because the defendant has a right to have it on file and plead to it.. It had admitted the cause here-and so the plaintiff has considered it, by moving for a rule to plead. Hunt-No declaration can be withdrawn -it may be amended, but never withdrawn. Witherell-The court, as soon as they are aware they have no jurisdiction, will dis. miss the suit. As this is one step towards getting rid of it, I am in favor of allowing the narr. to be withdrawn. Griffin-The plaintiff has admitted the suit well here. Woodward-The plaintiff may at any time withdraw his declaration, for whatever pur- pose he pleases. Narr. withdrawn. Whitney-Then moved that the case be remanded by procedendo. He cited the same statute as before, and offered the same reasons. Larned-Made the same objections he had previously made. He added farther- this case is removed at common law, by the rules of which he had proceeded correctly. He did not pretend it was according to the statute-never intended it. It was optional with him which course to pursue. Had therefore given bail in the alternative. The statute cannot take away the common law right, for it is guaranteed by the Ordinance of '87. Hunt-offered the same arguments as before. Sibley-If the case is improperly brought here, it must be sent back. Consent cannot give jurisdiction. The county court cannot be deprived of its jurisdiction, except the [the] rules of law ore [are] complied with. The Governor and judges are allowed to adopt any law from the statutes of the original states. They may therefore adopt a statute altering or abolishing the common NOTES OF TRIALS, ETC. 489 law. The statute of I818 embraces "all cases." This must of course be one. If the common law exists, yet there are no cases left for it to operate upon, although there are no negative words in the statute, yet those affirmative are so general, that they include every case. [THE GAZETTE, DEC. 13, 18221 Notes of Trials, Arguments, Deci- sions, and Proceedings, in the Supreme Court of the Terri- tory of Michigan - September Term, 1821. "A man may see how this world goes with no "eyes. Look with thine ears; see how yon Justice "rails upon yon simple thief. Hark in thine ear-- "change places; and handy-dandy, which is the "lustice, which the Thief?" KING LEAR. (Continued) SEPTEMBER 22. This day the three judges sat as a Circuit and District Court of the United States.) U. S. vs. Ketaukak. The prisoner was brought into court and nearly half arraigned. A discussion followed, as to how far the court are counsel for the prisoner. Sibley-states what the judge (Wood- ward) said in his charge last night, as to courts being special counsel, and then what the duty of the court is. Formerly as the prisoner was allowed no counsel, the court were counsel for him. Their duty is now only to see that all the principles and forms of law are preserved. Woodward-Explained his views, and re- ferred to his charge of the last night. Every individual judge might perform that duty in their several manners, according to the peculiar feelings of each: and no judge is responsible for the manner in which he discharges it. Witherell-Thought with Sibley, that it was the business of the court to summon interpreters to explain the indictment to the prisoner. Griffin-Ditto. Woodward-positively dissented. He said it was the duty of the District Attorney, and not of the court: nor is it their duty to aid him. If the prisoner asks for inter- preters, it is theirs to assist in obtaining them. Witherell-gave his reasons-i.e. the court want to know from the prisoner if he is, or is not guilty. It is necessary to explain to him the forms by which the court are to arrive at that knowledge. This is an act of the court; the prosecutor has nothing to do with it. The court must therefore move, and summon one interpreter. Subpcena issued for Connor and Knaggs. Woodward and Griffin-depart the court for a long time--gone-no one knows where. Grigfin-at last returns, bare-headed. Sibley-moved the court to proceed with the case. Witherell-agreed. Grigffin-dissented-"wait till judge Wood- ward comes." Division of the Court. Doty-declared he was ready to proceed with the prisoners case. A long silence: Griffin-Is willing to adjonrn the cause till to-morrow, the party has a right to have the three judges present. Sibley-If it is a right of the party to have them, he gives it up-but if it is a right, what becomes of it when one of the judges is out of the territory, or absent from the bench, when in it? Griffin-to get rid of the difficulty, pro- posed a recess till 2 o'clock. Witherell-was opposed-he was ready to go on whenever two judges were present- was unwilling to take the responsibility of stopping business in this way when two are on the bench. Witherell---shortly after left the bench, and Griffin proclaimed a recess till 2 o'clock, P.M. At two o'clock, P.M. Woodward and Griffin were present. Woodward-again required Sibley to sum- mon an interpreter, and gave his reasons why he would not aid him in summoning one. He said, if the court do it, he could not sit in the case, &c. Sibley-again stated his views on the question how far the court are counsel for the prisoner-they are to see that the pro- ceedings are correct, the law carried into effect; but when the trial is over, the court 490 SUPREME COURT OF MICHIGAN charging the jury are to act as a court, not as counsel. You are to charge the jury impar- tially on the law and fact, and lay every thing fairly before them. (To Woodward) One judge is bound by the decision of the majority. Woodward-Yes-but I cannot aid to carry their judgments into effect, when I believe they have decided wrong. Griffin-To prevent embarra sment, I will agree to rescind the order for a subpoena Sibley-I consider myself well before the court with that prisoner, and the court are to aid me in the means of trying him. Two persons are now in court who are willing to assist as interpreters, if required. Woodward-If the court cannot sue out a subpoena for an interpreter in a civil suit, then certainly not in a criminal case. Sibley-No-it is my business in a civil case to put the facts before the jury-and if papers which I wish to use are in French, I must put them to the jury in English. But if there is a Frenchman on the jury, and my papers are all in English, it is not mine, but the court's duty, to see that they are ex- plained to the Frenchman. In this case the presumption is, that every one understands English, and the court cannot know the contrary until the prisoner is arraigned, and the indictment read, and the prisoner asked for a plea. I will now make a specific mo- tion-that the prisoner be now brought in for trial. Woodward-It does not appear by the record but what he is now in court. Clerk-When the recess was proclaimed, I asked Griffin if it was not necessary to order the prisoner to jail. Griffin said it was a matter of course. I therefore made no order on the minutes. A long talk followed about recess and adjournment-which was the proper name, &c. Leib-never heard of such a thing as a recess-it was always an adjournment en- tered on the record. Woodward-Is doubtful how to proceed, as the clerk had entered no commitment. Sibley-If the clerk omitted to enter the order, he should now enter it. Talk all around the bar with the court- and the opinion of all asked, whether it should be a recess or an adjournment- finally, Woodward-asked Sibley if he wished an order should be entered by the clerk for the late adjournment? Sibley-Made the motion. Talk between Leib and Lamrned about the motion. Irwin. (a juror) said he spoke for thirty. six men-there had absolutely been a rec:, and he had got a good dinner by it-the prisoner was ordered to jail-the court went away-the prisoner went away-and the jury went away-and now they have come back Hunt-Stated the practice in Massa. chusetts-the whole term is one day, and no entry of an adjournment to dinner is made. The courts keep no journal, as we do here-simply a docket, &c. Woodbridge-Stated the practice in Ohio, North-Western territory, and Virginia, where the practice of keeping a journal originated Opinions of the bar asked. Witherell, jr.-Thought there was no need of an entry of recess. Doty-It is the practice in New York to adjourn to dinner-the courts keep no journal-and did not know that it was entered on any record-thought they had none but the rolls. Woodward-When the court is full, I will take their opinion as to the entry of adjourn. ment. In the mean time, the court is con- sidered open from the morning when it met -No entry is on the journal-and the pris- oner must be considered as in court now. Sibley-I then move that he be arraigned now-and that he plead to the indictment now. Woodward-Moves Griffin that the order for subpoenas to issue for interpreters be rescinded-both agree that it be rescinded. Sibley-Thought it would be indecorous for him* to move for rescinding the order of the court about the subpoenas-finally The court-ordered the clerk to enter a rescinding order of the order for issuing the subpoenas for interpreters. [The subpoenas had issued-been served- and the interpreters were attending in obedience to them! ! An order rescinded after it had been executed!! .!] At 4 o'clock, P.M. the prisoner wasbrought into court, in fact, as well as on the record. *Him i.e. Woodward because Woodward was not in Court when the order was made for issuing of subpoenas by Witherell and Griffin. NOTES OF TRIALS, ETC. 491 Sibley-Again moved that the prisoner be arraigned. The clerk called up the prisoner. Sibley-Moved that Louis Beaufait be sworn as an interpreter. Beaufait wished to be excused-there was an impropriety in his being an interpreter, because he was a witness for the government. The court asked if he had been summoned -the answer was-"yes." The court paused. Doty. Moved that the court issue a subpoena on the part of the prisoner. Woodward. Asked what would be the consequence if no interpreter could be had? Doty. It would be unjust to try him. Woodward. Then it is the duty of the U. S. officer to find one. Sibley If he stands mute and don't plead, the court must proceed and try him, as if he had pleaded not guilty. The Court. Decided that Beaufait ought not to interpret, as he was foreman of the Grand Jury which found the indictment. Knaggs was called-he excused himself. Court. Has Mr. Sibley any remarks to make? Sibley. I have nothing to say. Court. Have prisoner's counsel any thing to say? Prisoner's Counsel. Nothing. Grifin. Said he should be sworn. Woodward. Called for the subpoena: said it was the one issued on the order which had been rescinded-and therefore, as he was not subpoenaed, he should not be sworn. Sibley. Said he was in court-how he came there was immaterial. He offered Knaggs to the court, but he could not com- pel him to be sworn. Knaggs. Still declined-and Woodward. Said he was excused. Sibley. I can summon any man to give testimony-but I know of no process by which I can get one, if the court will not aid-It is all I can do. I am but an individual in society, &c. Knaggs was then under a subpoena. The court had no right to rescind an order after it had been executed. Knaggs' excuse was, that he was an officer of the Indian Department. Woodward. The prisoner got up before by Rowland's order. Sibley. It is the duty of the court to have the prisoner stand up. Woodward. You may have him arraigned. (to the Indian) "Ketaukakh! stand up." You see, mr. Sibley, he does not stand up. Sibley. The court must take means to inform the prisoner, if ignorant. You may as well address him in Latin. If he under- stands and does not obey, he is in contempt. It is the duty of the court as counsel for the prisoner, to inform him of his error. Woodward. The court is not bound to inform him. Sibley. I have rights, so has the govern- ment. I have to do my duty. This court has duties to perform; if they refuse, it will produce investigation. The government must know of the matter. One of us is in fault, they must decide which. Enquires of the clerk. Is the motion for the arraignment and also the fact that the two interpreters were excused, entered on the record? Answer, They are. Doty. As the U. S. are not ready for trial, I move that the prisoner be bailed on his own security. Sibley. I am ready. I ask for the arraign- ment of the prisoner. Doty. It seems he cannot be arraigned. You are therefore not ready to proceed. Therefore the prisoner ought to be bailed. Woodward. Said the court wish Sibley would go on. Sibley. I ask that the prisoner be arraigned. Pause. Doty. In support of his motion, to bail without sureties, asked for leave to read a case from a newspaper. Sibley. Opposed. The Court allow the paper to be read. Doty. Read the case of Tommy Jemmy from the Albany Gazette. Court. Asked Sibley if he wished to reply. Sibley. No. Court. Overruled the motion for bail. The Marshal. Said Connor, an inter- preter, was in court. Woodward. Asked Sibley if he would use Connor? Sibley. Said he had moved the court to arraign the prisoner, and put him to plead. It is the Grand Jury that finds the indict- ment, not him, and it is the duty of the court to inform the prisoner what is in it. Woodward. Asked why Sibley had sum. moned Connor? 492 SUPREME COURT OF MICHIGAN Sibley. To give evidence. Woodward. Then there is as strong an objection to Connor, as an interpreter, he being summoned as a witness, as to Beufait. who was on the Grand Jury. Sibley. Remarked that in the morning one judge was extremely anxious to have a full bench, and would not go on without, although both parties wished it. Perhaps he may feel the same delicacy now. Griffin. Said he was of that opinion, and if Mr. Sibley wished, he would then agree to adjourn the court till to-morrow, for a full bench. Sibley. Thought the court would pursue the same mode as in the trial of yesterday; and give the United States Attorney, the same privileges as were allowed the Attorney General. Knows not why they act thus, unless they intended a personal attack on him. Woodward, As for myself I have not changed my mind, and I have no intention of any attack. [After some conversation] Said, that the only difficulty is a difference of opinion as to whose duty it is to produce an interpreter to arraign the prisoner, the court's or the attorney's. Leib. Shows the court an article of the constitution. Woodward. Read and made comments on it. And concludes that it is the duty of the attorney to give information to the prisoner, of what is in the indictment. Sibley. The court only can perform all the things required by the clause read. I have not the power to do any of them. The court have. Griffin. Mr. Sibley I am still of the same opinion I was in the morning, to have the court adjourned. Sibley. It is not in my power to adjourn the court. In the morning Griffin refused absolutely to sit without Woodward, although both parties, and Witherell wished it. Larned. Said Beufait never objected-it was the court that made the objection first. He is perfectly competent, he is only to tell what is in the indictment, which is a record. Woodward. Asked Larned if he did not summon Beufait. Larned. I did; but as a witness-not as an interpreter. I can state my reasons for it. Woodward. The court do not think it necessary. Addresses the jury and di. charged them till 9 o'clock to-morrow. Connor. Applies for leave to go home. Woodward. Who summoned you? Answer. Mr. Sibley. Woodward. Then asked if he had any objection to serve as an interpreter? Connor. I have none. Woodward. Then tells Mr. Sibley of it, and asked if he wished him, and if he will issue a subpoena for him. Sibley. I have no objection to summon him as a witness, that he may have his fees. Woodward Said if he had a right to have the science and knowledge of scientific men to know the meaning of a word; then he had of a whole language, &c. Sibley. I have power to summon a witness, not an interpreter. The constitution en- joins the court to give information to the prisoner, of what he is charged. 8 o'cLocK AT NIGHT. While the clerk was reading the minutes of the day, Judge Wood. ward ordered the clerk to strike out the en. tries made as to the appearance of Beufait and Knaggs as interpreters, and of their be- ing excused by the court; because the clerk made them without the order of the court. [THE GAZETTE, DEC. 27, 1822] Notes of Trials, Arguments, Deci- sions, and Proceedings, in the Supreme Court of the Terri- tory of Michigan - September Term, 1821. "A man may see how this world goes with no "eyes. Look with thine ears; see how yon Justice "rails upon yon simple thief. Hark in thine ear- "change places; and handy-dandy, which is the "Justice, which the Thief?" KING LEAR. (Continued.) SEPTEMBER 26. (This day the three judges sat as a Circuit and District Court of the United States.) U. S. vs. Ketaukah. Sibley-Moved the court, that the pris- oner be now brought in and arraigned-a dilatory plea will be put in, and I wish it NOTES OF TRIALS, ETC. 493 filed, that I may reply and proceed to the argument to-morrow--or have it otherwise disposed of, that the trial may procceed without farther delay. Witherell--was decidedly of opinion that the prisoner should be immediately arraigned. Griffn-was for deferring it until to- morrow. Woodward-was for deferring it, as he was anxious that all the proceedings should be had on one day. 5 o'clock, P.M. On reading the journal it was found there was an entry that the subpoena for the in- terpreter on motion of the district attorney, when it was by the court themselves-and so Woodward and Griffin considered it in rescinding the order on which it issued. The original entry was, "Ordered by the court, Woodward dissenting, that a subpoena issue for Knaggs, &c." Now Woodward says it was done on the motion of the district attorney. Sibley-suggests that the entry is in- correct. Witherell-The prisoner was brought be- fore the court to be arraigned, and the court wanted to know his answer-and the court quo ad hoc were certainly counsel for the prisoner, and it was their duty to provide means of giving knowledge to the prisoner of what he was accused-therefore it was the court's duty to summon interpreters, and to issue the subpoena. Sibley-acknowledged as before, that when the U. S. want an interpreter, he is bound to furnish them. But he did not want them-then, therefore, the record ought to show the fact. It is not on motion of the district attorney, but by order of the court. Explains the duties of the court, as the judiciary of the government, and his own as the representative of the executive de- partment. After a talk between Woodward and Sibley till 6 o'clock-then the court ordered the words "U. S. Attorney," to be struck off -and also that Woodward's dissent to the order for issuing the subpoenas, be struck out Sibley-Moved that the minutes be so altered that it should appear that he moved the court for the swearing of Beufait and Knaggs, as interpreters, and that they were both excused by the court, on their own suggestion, though the prisoner's counsel declared they had no objection to their being sworn. The motion was not granted. The court adjourned till to morrow. September 27. At half past ten. A.M. the court having made no order for bringing up the prisoner, Sibley-Moved the court to bring up the prisoner for arraignment. Woodward-after assigning reasons, put the question on his own motion-that the minutes of yesterday be brought up and closed-and Griffin-seconded his motion. Journals on three sides of the court- circuit and district-supreme and chancery -read, approved and signed. Woodward---ordered the district clerk to proceed to call the panel of the petit jury. ii o'clock-Marshal ordered to bring in the prisoner. On motion of Mr. Sibley, the marshal was ordered to call the witnesses. Half past I I-prisoner was brought into the court-and- Sibley-Moved that he be arraigned. Woodward-ordered the clerk to arraign him. Deming-Clerk, said he could go through the forms-but did not know how he could arraign him without an interpreter, as he was before stopped at this stage of the proceedings. Sibley-said that the court had ordered several interpreters, as appears by the record. Woodward-asked for their names. Sibley-named Knaggs, Beaubien, God- froy and Connor. Woodward-said none were present but Beufait, and he had not been named by Sibley. Sibley-said the court hod [had] excused Beufait, and that was the reason he had not mentioned him. Woodward-said that though excused be- fore, he might not be now. Old statement that he as counsel for prisoner could not aid him, &c. Sibley-Read the constitution to show that the court must arraign the prisoner: (6th art. of amend'ts.) 494 SUPREME COURT OF MICHIGAN Woodward-agrees that it is the duty of the Court to see that he is informed of the indictment, and enabled to plead-and shall see it done. When the government comes before the court as a party, the court must be impartial, unbiassed, &c.-same as between individuals, &c-he is not to be driven; and if the prosecutor will not do what is necessary, the court must stop-he is not as one to aid-the prosecutor will not summon Knaggs as an Interpreter, because it will cost the U. S. $I 25 The prosecu- tio[n] must stop. Sibley-reiterates what he had before advanced, and Woodward-replied as before. Griffin-was of the same opinion as Woodward. Sibley-then I wish an order on me to procure an interpreter, and I will obey it right or wrong, and that question may be settled before another tribunal than this. Woodward. Supposed this should be the order-"that the prisoner should be dis- charged, in a given time, unless the prosecu- tor furnishes an interpreter." Wished a specific motion in writing be- fore he put it to the court. Sibley. I have made the motion for arraignment. This order grows out of that decision, that he be arraigned. But the clerk asks the court for assistance, to let the prisoner know the meaning of the words "stand up." Witherell. Said this is the only point- the clerk is endeavoring to obey the court- he asks the assistance of the court; they are bound to render it. Woodward. The court would violate their dnty as counsel by aiding him. They have no authority or means to carry it into effect. If they attempted it, it could only be done by giving a commission as inter- preter. "We reposing special confidence, &C." Sibley. Said the court had already appointed and sworn interpreters generally whenever they were necessary. Woodward, Denied it. Sibley. Appealed to the record-the clerk read the entries of Thursday the 20th inst. -where it appears that several interpreters were sworn by the court, &c. suggests that Beufait is in court and willing to act as an interpreter, will not move. The clerk swears Beufait-and Woodward again orders the clerk to proceed to arraign him-he did-and Beufait told him it Indian to stand up, &c. Clerk read and Beufait interpreted. Clerk-asks Woodward if he shall pro. ceed to read the indictment through? Woodward. You may pursue your own course, I shall not interfere. Clerk. Proceeded to read the whole indict. ment-having ended-he then said to Woodward, I will now read it, if the court please, by short sentences, so that Beufait may translate it. Woodward. You will read it in such manner, that you will understand by a sig- nal from Beufait that he has got as much at a time as his mind can embrace. But you are under oath and not bound by instruc- tions from me. Indictment was read by short sentences and interpreted. At the words, "with force and arms, within the U. S. and territory of Michigan, and within a district of county to which the Indian title has not been ex- tinguished."-Beaufait stopped, said it was too difficult for him to interpret. Sibley. It is not necessary the prisoner should understand the technical terms- the substance of the charge will be sutffi- cient. Woodward. Thinks Beufait will be able on recollection to do all that is necessary to explain the indictment. Beufait proceeds. Sibley. Suggests he has not finished the arraignment-must ask if he is guilty or not guilty. Woodward. Mr. Deming is perfectly ac- quainted with the form. Deming. Asked if he was guilty or not. Doty. Handed to the prisoner a plea to the jurisdiction of the court-which the prisoner handed to the clerk, and the clerk read it, &c. (see file.) The plea was signed by the mark of the prisoner, and witnessed by Doty one of his counsel. Woodward. Asked Doty if he has had the plea explained to the prisoner, and if not whether he wished it should now be done. Doty. It has not-but the prisoner is well advised of the nature of the defence, and puts it in as his plea. I have no wish that it should be interpreted to him. NOTES OF TRIALS, ETC. 495 Woodward. Asked if Sibley was ready to reply to the plea-and if not, to what time the prisoner shall be remanded. Sibley. Proposes to-morrow morning. Prisoner remanded till to-morrow, Io, A.M. [THE GAZETTE, JAN. 3, 1823] Notes of Trials, Arguments, Deci- sions, and Proceedings, in the Supreme Court of the Terri- tory of Michigan - September Term, 1821. "A man may see how this world goes with no eyes. Look with thine ears; see how yon Justice "rails upon yon simple thief. Hark in thine ear- "change places; and handy-dandy, which is the "Justice, which the Thief?" KING LEAR. (Continued.) SEPTEMBER 28. This day the three judges sat as a Circuit and District Court of the United States.) U. S. vs. Ketaukak. Half past io A. M. Prisoner brought in. Sibley-read a replication to the plea to the jurisdiction filed by the prisoner. Woodward.-What steps do you wish to take on the part of the prisoner, Mr. Doty? Doty-I am ready to rejoin either orally or in writing. Woodward-You may plead orally and the clerk will enter it. Doty--added the similiter in writing. Grifin-Absent. Sibley for the government, and Doty for the prisoner, proceeded to the argument of the plea to the jurisdiction of the court. After the argument was closed, Woodward-asked how he should put the question on the plea "Shall it be-shall the replication be sustained? Witherell-doubted how the case would stand if the question was put in this form, and the court be divided. Sibley supposed the question should be- shall the plea in bar be sustained? Woodward-put the question-has the court jurisdiction? Witherdl-Yes. Woodward--same opinion. Plea overruled. Sibley-proposed that the prisoner plead over to the indictment. Witherell, att'y.-moved that the indict- ment be quashed-because the grand jury was taken up under the statute of the territory, and not under any statute of the United States. The jurors were not legally summoned. By the 25th section of the act regulating the election of a Delegate to Congress-the service of all civil process is prohibited on the 4 days of the election. See 2d sec. same act. Because the jury was not composed of the common law number. The legislature cannot alter the common law; by which law 24 is required. The statute requires but 18. Because the statute is unconstitutional, by virtue of which this jury was made. The Ordinance of 1787, only authorizes "the Governor and Judges of this territory to adopt laws from the laws of original states." This statute was adopted from the laws of Vermont, which state was not admitted into the union until four years after the Ordinance was passed. It was not therefore one of the original states referred to in the Ordinance. Sibley-As to the first point, it was the intention of the law that electors should not be prevented from going to, or be taken from, the polls. The venire is only a sum- mons, and it does not molest his rights. Besides the juror is the only one who can contest the legality of the service Vermont was admitted into the Union before this became a separate territory. When this became a new territory, the North Western Territory ceased to exist, and the Ordinance of '87 only attached to it by virtue of the act of Congress of I8o5. Vermont was therefore an original state as to this territory, and any statute taken from its laws are constitutional. Witherell, again-the act of 1805 gives to the Governor and Judges of the Michigan territory the same powers only as the Governor & Judges had under it in the North Western Territory. The latter could not have adopted a law from Vermont, so neither can the former. Woodward-put the question-shall the indictment be quashed. Witherell-NO. Woodward-The election law gives to a voter one day to travel to the polls, another 496 SUPREME COURT OF MICHIGAN to attend them-vote challenge, &c.--a third to be present when the votes are counted-and the fourth day is to give him an opportunity to return home. It is no infringement upon either privilege to be summoned as a juror. As to the number of days-Sunday is to be counted. The statute does not require judicial days. There are two rules of law on counting Sunday. 1st. In days of grace, if Sunday is the last, the day is lost, thereby limiting them to two. In other cases, if the last day is Sunday it goes over to Monday-as in filing pleadings, &c. I shall always endeavor to support the latter when consistent. The statute alters the common law num- ber of men necessary to compose a jury, from 23 to 16. This is an alteration greatly in favor of liberty, for the less the number of jurors required, the greater is the chance for the prisoner. The legislature may alter the common law in civil and criminal cases by adopting statutes from the states. Ver- mont is an original state-although not so to the Congress which passed the Ordinance, yet it is to us. Motion to quash overruled. Half past 5, P.M. Prisoner arraigned and the indictment read and interpreted to him again. Prisoner plead "not guilty." Jurors called. Woodward-to the interpreter-instruct the prisoner that these I2 men are to try him for his life. and if he has any objection even to the countenance of any one, he may challenge him when he comes to the book to be sworn. Tell him he may chal- lenge 35 without assigning any reason- need only say "he does not like that man." Proclamation made-'that the prisoner stands at the bar on his deliverance,' &c. Doty-moved for a jury de mediatate linguae: and read from 4 Blk. Com. 372, to show he was entitled to his motion. Sibley-Read i vol. L.U.S. 68. Jurors in District courts to possess the same qualifica- tions as are required in the highest court of law in the state or territory, where the trial is-venire to be issued by the Clerk of the District Court and served by the marsha, &c. Juries de med. lin. are given by the statute of Ed.-they were unknown at common law. There would be many dit. culties if six Indians were on the jury-the residue of the jurors never could find out when they had agreed on a verdict-s would be necessary to have an interprete in the jury room. Again an Indian cann: be sworn, as he has no ideas of future re. wards and punishments. On this and other accounts they are not competent jurors. Witherell-The prisoner not being a foreigner he is not entitled to the jury. Woodward-Admitting for argument, that at common law an alien is entitled to a jury of that kind, yet the prisoner is not, for he is not an alien. He and his country are at least under the protection of the U. S.-it therefore cannot be allowed him. To permit an interpreter to be with the jury in their deliberations would vitiate the verdict-it is therefore inadmissible. I think however that an Indian may be sworn-instances Hindoos, &c. Doty-challenged the array. Because the panel of Jurors contained but 36 instead of 48 names. By permitting 35 to be challenged peremptorily, leaving but one on the panel, defeats the object of the law. Read Blk. Com. 350 in support of this point. 2. Because they are not all freeholders. 3. Because they are not brought from the county or country where it is alleged the crime was committed. We have a right to a jury from the vicinage. Witherell-The U. S. law provides that the jury shall be got according to the prac. tice of the highest court of law in the terri- tory, &c. This jury has been so summoned The challenge ought not to be sustained. Woodward-Agreed with Witherell. The offence is not charged in any county of the territory. The jury may therefore come from any county. Challenge disallowed. Trial postponed by consent till Tuesday next to, A. M. SELECTED PAPERS The following papers have been selected from the records and files of the Supreme Court of Michigan Territory. The original spelling, capitalization and punctuation have been preserved as far as practicable. Signatures are indicated by printing names in capital letters. The numbers in brackets correspond to the numbers of the cases and papers as set forth in the Calendar of Cases, supra.  [Case 408, Paper i] [Indorsement] No 43 Indictment United States vs Robert Smart filed in court 5. october 1814. Jury Room 5th Octr 1814 a True Bill ROBERT ABBOTT Foreman Nolli prosequi 10 No' 1819. CHAs LARNED Atty Gen' John Harvey Prosecutors Sarah Harvey [Case 408, Paper I] IN THE SUPREME COURT OF THE TERRITORY OF MICHIGAN SEP TERM 1814. The Jurors of the United States of America for the Territory of Michigan, upon their Oath present, That Robert Smart, late of the Town of Detroit Commonly Called the City of Detroit, in the Territory aforesaid, leather Merchant on the fifth day of November one thousand Eight hundred thir- teen with force and arms at the Town aforesaid and district aforesaid in the Territory aforesaid in and upon one Sarah Harvey Wife of John Harvey, in the peace of God and the said Territory then and there being did make an assault by throwing or casting from his right hand a certain Cane or Walking Stick, and other Wrongs to the said Sarah Harvey Wife of John Harvey then and there did, to the great damage of the said Sarah Harvey, and against the peace and dignity of the Territory of Michigan and of the United States of America. CHAs LARNED Atty Gen' M. Ty [In the handwriting of Charles Lamrned] 499 oo SUPREME COURT OF MICHIGAN [Case 424, Paper I] [Indorsement] United States vs. Richard Smyth Jury Room IOth 0ctr' 814. A True Bill. ROBERT ABBOTT Foreman Witness Benj" Lucas [Case 424, Paper I] IN THE SUPREME COURT OF THE TERRITORY OF MICHIGAN OF SEPTEMBER TERM 1814. TERRITORY OF MICHIGAN. The Jurors of the United States of America for the Territory of Michigan, upon their Oath present, That Richard Smyth late of Town of Detroit com- monly called the City of Detroit, in the District of Detroit and Territory afore- said, Esquire, on the twenty third day of August, in the thirty ninth year of the Independence of the United States of America, & year of our Lord one thousand eight hundred fourteen, and at divers other days and times, as well before as afterwards, at the Town of Detroit aforesaid, did sell and utter and did cause to be sold and uttered spirituous Liquors, or other liquids of intoxi- cating quality to an Indian, or Indians, against the form and effect of "An Act to prevent the selling of spirituous liquors to Indians," in such case made and provided, and against the peace of the United States of America, as well as against the peace and dignity of the Territory aforesaid- And further, That the said Richard Smyth at the Town of Detroit afore- said did on or about the twenty third day of August, in the year aforesaid, convey convey or attempt to convey, or was instrumental in conveying spirituous Liquors or other Liquids of intoxicating quality to an Indian, or Indians, without being authorised by the proper authority, against the form and effect of "an Act in such case made and provided & against the peace and dignity of the United States of America and of the Territory of Michigan. Grand Jury Room Ion Octr 1814 CHAs LARNED Atty Gen M TV SELECTED PAPERS 5oi [Case 426, Paper 2] [Indorsement] United States vs. Thos Sergeant. Jury Room 10o Oct 1814. A True Bill ROBERT ABBOTT Foreman Louis C. Boit T Metty. [Case 426, Paper 2] TERRITORY OF MICHIGAN SEPT TERM 1814. The Jurors of the United States for the Territory of Michigan upon their oath present That, Thomas Sargeant late of the Town of Detroit commonly called the City of Detroit in the district of Detroit and Territory of Mich- igan Yeoman on the twenty fifth day of March one thousand eight hundred fourteen with force and arms at the Town aforesaid in the district and Ter- ritory aforesaid in and upon one Louis Charles Boit-(then being a deputy Marshall for the Territory of Michigan in the peace of God and said Terri- tory then and there being, and in the due Execution of his office then and there also being) did make an assault and him the sd Louis then and there did beat wound and ill treat so that his life was greatly dispared of and other Wrongs to the said Isaac then and there did to the great damage of the sd Louis and against the peace and dignity of the United States and the Ter- ritory of Michigan. And the Jurors upon their oath do further present, That the said Thomas Sargeant on the said twenty fifth day of March in the Year aforesaid with force and arms at the Town of Detroit in the Territory and District aforesaid, in and upon the said Louis Charles Boit, in the peace of God and said Territory, then and there being did make an assault, and him the said Louis then and there did beat wound and ill treat, so that his life was greatly dispaired of and other Wrongs to the said Louis then and there did to the great damage of him the said Louis and against the peace and dignity of the United States of America and the Territory of Michigan. CHAS LARNED Atty Gen' M. Terry 50ot SUPREME COURT OF MICHIGAN [Case 430, Paper i ] [Indorsement] Presentment Against James May. filed in court 17. oct"r 1814. [Case 430, Paper i] TERRITORY OF MICHIGAN SEPT TERM 1814 The Grand Jurors for the United States in the Territory of Michigan on their oath present that James May late of Detroit in the Territory of Mich- igan Esquire has been guilty of a misdemeanour by greatly oppressing Joseph Thibault one of the Citizens of the Territory aforesaid by Com- plaining to the British Commandant at Detroit during the time the British had possession of this Territory that the sd Joseph Thibault refused taking in payment for goods and Merchandise British Bills in Violation of a procla- mation issued by Gen' Proctor, which subjected the aforesaid Joseph to a penalty of two hundred dollars, and when the sd Joseph was tried before John Martin acting Justice of Peace for Gen' Proctor, the said James May gave it as his opinion that the sd Joseph should pay the penalty aforesaid. Grand Jury Room 19th Ocr 1814. J W MACOMB JOHN PALMER CONRAD TEN EYCK L. DEQUINDRE M BRADSHAW D' G' JONES RICHD SMYTH G W SELBY DENIS CAMPAU HIRAM KING ABM C. TRUAX ANTOINE PELTIER WILLIAM RUSSELL JEAN DUREETT [?] ABRAHAM COOK SELECTED PAPERS 503 [Case 43', Paper 2] [Indorsement] Indictment United States vs Timothy Holton filed in court 19. Octber 1814 Grand Jury Room 18th October 1814 a true Bill ROBERT ABBOTT Foreman Witnesses Isaac Day David Spencer Thomas John Mrs Day [Case 43I, Paper 2] TERRITORY OF MICHIGAN SUPREME COURT SEPT TERM. UNITED STATES OF AMERICA TERM. The jurors for the United States of America in the Territory of Michigan on their Oath present That Timothy Holton late of the Town of Detroit Commonly Called the City of Detroit in the District of Detroit and Ter- ritory of Michigan retailer of Spiritous liquors, on the sixteenth day of October one thousand Eight hundred fourteen about the hour of Eleven oclock in the night of the same day with force and arms, at the town afore- said in the district aforesaid and Territory aforesaid, the dwelling house of Robert Piatt and Jacob Fowler under the firm of Jacob Fowler and Com- pany, there situate feloniously and burglariously did break and Enter three and three quarters brown cloth, two yards blue cloth, one and a half yards yellow mersailles, thirty seven Cotten pockett hankerchiefs, one and a half yards striped nankeen, twenty one and three quarters yards black sarse- nette ten and a half yards dark Calicoe three yards dark calicos, of the goods and chattels of the aforesaid Robert Piatt and Jacob Fowler, under the firm of Jacob Fowler and company as aforesaid, in the sd dwelling house then and there being found, then and there feloniously and burglariously did steal take and carry away, against the peace and dignity of the United States of America and of the Territory of Michigan. 5o4 SUPREME COURT OF MICHIGAN And the Jurors aforesaid upon their oath aforesaid do further present that Timothy Holton late of the Town aforesaid in the district aforesaid and Territory aforesaid retailer of spirits as aforesaid on the sixteenth day of October one thousand Eight hundred fourteen with force and arms at the town aforesaid in the district aforesaid and Territory aforesaid three and three quarters brown cloth of the value of forty shillings, two yards blue cloth of the value of twenty shillings, one and a half yards yellow mersailles of the value of ten shillings thirty seven cotten pockett hankerchiefs, one and a half yards striped nankeen twenty one and three quarter yards black sarsa- nette ten and a half yards dark calicoe of the goods and chattels of Jacob Fowler and Robert Piatt under the firm of Jacob Fowler and company the store of them the sd Jacob Fowler and Robert Piatt under the firm afore- said then and there being found feloniously did steal take and carry away against the Peace and dignity of the United States of America and of the Territory of Michigan CHAs LARNED Atty Gent M Terry [In the handwriting of Charles Larned] [Case 435, Paper Io] [Indorsement] No 7. Commission for taking depositions in the province of Upper Canada Dann Ames vs Wm H. Puthuf [Case 435, Paper io] TERRITORY OF MICHIGAN TO WIT IN THE SUPREME COURT OF THE TERRI- TORY OF MICHIGAN OF THE TERM OF SEPTEMBER ONE THOUSAND EIGHT HUNDRED SIXTEEN. Dann Ames vs In case. William H. Puthuf To Robert Richardson Esquire, or any Judge, or Justice [SEAL] of the peace residing in the province of upper Canada au- thorized by law to administer oaths. WHEREAS a rule of the Supreme Court was granted to authorize the tak- ing evidence and depositions de bene esse of Witnesses residing out of the SELECTED PAPERS 505 territory, on giving reasonable Notice to the opposite party of the time and place of taking the Same; NOW this is to authorize you, the Said Richard- son, or any judge or Justice authorized by law to administer oath, as afore- said, to take and transmit, under your hand and Seal, to the Supreme Court of the territory of Michigan, to be holden at Detroit, on the third Monday in September next, Such depositions and evidence as Shall be made before you touching the merit of the above Cause; and for your So doing this will be your Sufficient Commission IN TESTIMONY whereof I have hereunto Set my hand, and affixed the Seal of the Said Supreme Court this fourth day of August one thousand eight hundred Seventeen. PETER AUDRAIN Clk. S.C.T.M. [In the handwriting of Peter Audrain] [Attacked to the foregoing] UPPER CANADA WESTERN DISTRICT Personally appeared before Mr Robt Richardson TOWIT Esqr one of his Majestys justices Assigned to Keep the Peace in The Said District, Thomas Elliott of the Town of Amherst- burg, Shoemaker in said District, of lawfull age, who being duly sworn, de- poseth and sayeth, That on or about the 27t day of March 1815: he the deponent was standing in the Street of Amherstburg in Said District, That while Standing there in company with others, he Saw Major Puthoff then commanding the United States troops, at that time in possession of Said Town, at the head of a party of soldiers about Six or Eight, go up to the front door of of the Dwelling house of Dan Ames a Citizen of the United States, at the time living in said Town of Amherstburg with his family and knock at the door of Said house, then steppd back, and with his foot forced the door open The Said Puthoff went into the House with the soldiers and the soldiers rolld out at the Door two Barrels of whisky and a keg of cherry Bounce, and placed a guard over the Said liquor. That after a Cart and Horse arrived, and Said Puthoff caused Two Barrels of the Whisky to be put into it, the heads cut with an ax - The cart was then drove Through the streets untill the whiskey had all run out - The Said Puthoff following the Cart - The cart then returned and two other Barrels were put into it, also the keg of Bounce - The Heads cut the Same as the first and the cart drove about as before untill the whole was run out and destroyed - during this Transaction Mr Ames was absen at the new Settlement some distance from Amherstburg About Two days after the whisky was taken and spill'd The Deponent saw Major Puthoff come down the Street, to the house of Said Ames with a party of soldiers (Said Ames Still absent) and into the 506 SUPREME COURT OF MICHIGAN Said House, and put out the Wife and family of Said Ames, together with their furniture into the Street, it raining hard at the time Mr Ames called on the Deponent and requested him to take charge of their property, which he declined but Sent his young Man to inform Mr: James Chittenden - That Shortly after a Mr Wm Smith came up with his Waggon and took the furniture Away - That at the time Mr Ames was turned out into the Street there was in the Town a large Quantity of Corn and wheat. The property of Said Ames - That Said Puthoff, as the Dept understood and believes, ordered the Said Ames wife and family to leave the Town of Am- herstburg, and not to appear within Two miles of the Said place under pen- alty of being put into the guard House - The Said Ames afterwards came into Amhurstburg whilst Said Puthoff commanded, and was actually put into the Guard house by his order - and while there he the dept visited him - That The Said Barrels of Whisky were of the Common Size - he Supposes would contain about Thirty Three or four gallons That The Keg appeared of The Size of Eight gallons but understood at the time The liquor was spilld That it was not quite full - That The whisky was worth Two dollars a gallon It was selling commonly for That price at the time Says further That the house which Ames occupied was the property of James Chittenden Says that when Ames's wife and family were turned out of the house Major Puthoff took charge of it and loked it up Ames's goods remaining in it - and further the deponent Sayeth not THos ELLIOTT At the Same time and place personally Appeared John McDonald of Am- herstburg of lawfull age, who being duly Sworn deposeth and Sayeth, That he was present standing in the Street of Amherstburg, when Major Puthoff with a party of Soldiers (as Stated in Th' Elliotts Deposition) came to the house of Dan Ames and rolld out four Barrels and a Keg of Liquor, and which was distroyed and spilld in the Street of Said Town - in manner fully stated by Said Elliott in his deposition - Says further That a short time afterwards he saw the furniture of the said Ames in the public street which he understood had been turned out by Major Puthoff on his order - further the Deponent Sayeth not JOHN MCDONALD Also appeared Daniel Botsford who being duly Sworn deposeth and Say- eth, That he was employd by Dan Ames to remove his property to Mr Chit- tendens house, some time about the middle of March I815 among this property there was a quantity of grain - both wheat and Corn - does not know positivly, but thinks There was upwards of one hundred Bushels of Each he was employd, with a horse and Cart The best part of Two days in SELECTED PAPERS 507 removing it from one house to another - Says further That he Saw Ames furniture in the Street, which he undrood had been turned out by Major Puthoffs orders - That he went down by Direction of the first Deponent Elliott, to Mr James Chittenden who Sent up Mr Mirkle with a horse to take them away - Says that he afterwards Saw Some of the American offi- cers living in the house - Says that he heard that a number of Barrels of Liquor were taken out of Ames house and destroyd, by Major Puthoff - but he Saw nothing of the Transaction being out of Town at the time - and further this Deponent Sayeth not DANIEL BOTSFORD Question by Mr. Sibly to Th3 Elliott - what was the Value of Corn and Wheat p' Bushel at the time this transaction took place - ? Answer - in the fall of 1814 corn was selling for nine shillings - and wheat from 14 to fifteen shillings per Bushel in hard Money - in the spring of 1815 - grain was very Scarce and was of course worth more on being ques- tind whither he has any Knoledge That Ames Sold liquor to Soldiers, he Says he has not - but That he was in the habit of Selling them Butter, Cheese - Cake &C THos ELLIOTT The Above three depositions made Subscribed and sworn to before me the Subscriber the Eleventh day of September one thousand Eight hun- dred and Seventeen at the house of William Searl in Amherstburg between the hour of one and Two oClock in the Afternoon of The said day under the authority of the Annexd rule of the Supreme Court of the United States, Territory of Michigan, and to be read on Trial of an Action pending in Said Court wherein Dan Ames is Plaintiff and Wm H. Puthoff is Defendant - Taken at the Instance of Said Dan Ames Sol. Sibly Esqr appeared and was present at the taking of the Said depositions - The Said Puthoff did not appear or any attorney on his behalf R. RICHARDSON J.P.Wn District Upper C' [Indorsement] N° 9 N° 9 Ames v. Puthuff opened in Court 15 Septber- 1817. NoI. 508 SUPREME COURT OF MICHIGAN [Case 435, Paper 17] [Indorsement] No 8. Affdt of Deft. for continuance 1818. [Indorsement] No 16 4m es mes Affidavit Puof for Continuance Putof Septr 22nd 1818. [Case 435, Paper 17] Ames IN SUPREME COURT TERRITORY OF MICHIGAN- V. SEPTEMBER TERM 1818. Henry W Puthof Affidavit of Deft for conte of Said Cause Henry W Putoff upon oath deposes & says, that the aforesaid Ames, has instituted a suit against him for the recovery of the value of a quantity of Whiskey wheat & corn, as he says was seized by your Deponent while com- manding officer at the post of Amherstburg in the province of Upper Can- ada in the year 1815. That your Deponent upon the commencing said suit employed & retained Charles Lamrned Esqr as counsel to defend Said suit - That your Deponent has been constantly stationed at the post of Mackinaw, since the commencement of Said suit, & depended upon his Said council to give him such legal instructions as would be necessary to his Defence in Said Suit, that such instructions have not been furnished by his Said council, & upon his arrival at this place a few days since he found his Said council absent from the City of Detroit - That your Deponent immediately em- ployed other council in his said Defence, & now learns that the military proclamations & orders, made by Genis Procter, McArthur & Commodore Perry, & further orders made by ColP Miller & Butler, & also orders made in pursuance of the Same, by your Deponent, are indispensably necessary to his Defence That Said orders your Deponent verily believes are now in the war Department at the City of Washington where the Same by law are to be deposited - And that he did not know that the Same would be SELECTED PAPERS 509 necessary until informed two days since by his present council, which pre- cluded him from the possibility of procuring them in Season for his Defence at the present Term of this Honble court. And your Deponent further states that Governor Lewis Cass, is a material witness in his defence in Said Suit & is now absent as he is informed in the public service of the United States and without which he cannot proceed to trial That he verily believes Said Cass is possessed of such facts in relation to the transactions which have originated the within Suit, he having held important military & civil Sta- tions under the Government of the United States at the time the supposed injury is complained of by the plaintiff, as would go to prove a complete justification, to your Deponent, for the supposed injury complained of by the said Ames Sworn & Subscribed before me WM HEN' PUTHUFF. 24. Septber 818 PETER AUDRAIN J.P.D.D. This Deponant doth further (in explanation of the Proclamations and orders within alluded to), declare, that he confidently expects to prove by the Proclamation of Gen' Proctor, that the western District of upper Can- ada was, by said Proclamation, declared to be govern'd by Military Law, so far as regarded the Subsistance of Troops, Movment, Supplys, Trans- portation, Quartering, & encampment of Troops, & in a word all things relating to an Army in its most extensive view, with all its rights, Powers & Priviledges under Law Military, as Practic'd & Sanction'd by the British Government - which Proclamation Prevail'd at the time of the Taking possession of said Western District of upper Canada by the American Arms, under the combin'd Naval & Military Forces of the United States of Amer- ica, Commanded by Comadore Perry & General Harrison in the year 1813. And that he further expects to prove by the Proclamation of said Comadore Perry & Gen' Harrison, that the said Western District of upper Canad was Put, Plac'd & held, in, and under, the same Rule, Government & Laws, by the legitimate Authority of the United States, as that which prevail'd in said Western District Prior to & at the time of the Taking Possession of said District, as aforesaid - & that he expects to Prove by the orders of Governor then Brigadier Gen' Cass to him the Deponant (then Captain 26th U.S. Inf') Directed 1813, Authoring & instructing him the said De- ponant to assume the command of said Western District of upper Canada, making Sandwich or Amherstburg at said Deponants Discretion, his Head Quarters, & That said Western District of upper Canada was, by said Gen' Cass aforesaid, consider'd as being under the Government of Law Military, to the extent of the aforemention'd Proclamation as Deponant expects to 510 SUPREME COURT OF MICHIGAN make fully appear by an after order of said General Cass to him the afore. said Deponant directed, Authorising & commanding him to make strict search, with military Force, of all suspected Houses or Persons, for all & every Discription of Property by Indians taken from the Inhabitants of the Michigan Territory while in Possession of the British Troops, contrary to Gen' Hulls Capitulation, & to take into immediate possession & restore sai Property so found to such Persons as should claim & Prove It to have been from them thus by Indians taken, & sold, exchang'd or given, to any in- habitant of said western District aforesaid. And that Deponant expects to Prove by the orders of General McArthur & those of Colonel Butler, the uniform existance & exercise of said Law Military, in the aforesaid Western District, during the whole of the time it was held in possession by the American Troops - & that the furnishing ardent Spirits to American Troops, without special Permission was uni. formly, by Positive order forbiden - And that he expects to Prove ba the Orders of Col. John Miller, that Bread Stuffs of All kinds was positively Forbiden to be purchas'd by any Individual Person or by any Person whatever in said Western District, farther than an absolutely necessary Supply for their immediate Subsistance, Except for the use of the American Troops, under penalty of Forfiture of all such purchases, & other severe Pun- ishment. - And that An Order Issued by said Deponant, while command- ing the Post of Amherstburg or Malden, Subjected all Ardent Spirits found in the possession of Any Person so detected in the selling or giving Ardent Spirits to any Troops under Deponants command, to the being Spill'd in the Public Streets of Amherstburgh, & the Person with Family & all his Proper Effects to be immediatly dispossessed of his or their House or Dwell- ing & to remove to a Distance of at least 3 Miles from Camp, not again to return without special permission &c &c &c And that the Deponant was never appris'd at any time of the necessity of having said Original Proclamations & orders or certified Copies of them, for his Defence, until so inform'd a few days since, by his Present council - But did verily believe it wou'd be sufficient for him to Prove their Existance by such Persons as might have Knowledge of that Fact. Sworn before me WM HEN' PUTHUFF. 29. Septber 1818 PETER AUDRAIN J.P D.D SELECTED PAPERS 5i [Case 435, Paper 27] [Indorsement] N° 24 Ames Affdt vs for Puthuf New trial filed in court Nov. Ist 1819. [Case 435, Paper 27] Be it remembered that on this 31st day of october one thousand Eight iundred and nineteen personally came before me the undersigned a Justice of the Peace Chas Lamrned who being duly sworn saith that he is informed and verily believes that in the case of Ames vs Puthuff if a new trial were granted to the defendant it would be proved that an order was issued by Co' John Miller then in the service of the United States declaring that Breadstufts of all Kinds were positively forbidden to be purchased by any individual person or by any person whatever in the western District of upper Canada than were absolutely necessary for a supply of their imme- diate subsistence Except for the use of the American troops under penalty of forfeiture of all such purchases and other given punishment and this afliant further States that he is informed and verily believes that in the Event of a new trial the defendant will be able to prove that after issuing an order as commanding officer of the United States troops at Malden for- bidding the sale of all ardent spirits to Soldiers and Subjecting all ardent spirits found in the possession of such persons detected in the Sale of ardent spirits to be spilt in the public Streets of Amherstburg and the person with family and all his proper Effects to be immediately dispossed of his or their Home or dwelling and to remove to a distance of at least three miles from camp and not again to return without special permission &c And this affiant further states that he is informed and verily believes that the defendant will be able to prove that the plaintiff did Sell ardent spirits to Soldiers and that a court of Enquiry was convened to hear the Testimony who decided that he had been so guilty and this affiant further states that he as council for the defendant in the case of Ames vs Puthuff did not Expect a trial at this term of this court and that he does verily believe if a jury of the county could be possessed of all the Testimony they would never return a verdict 5I2 SUPREME COURT OF MICHIGAN for damages and that he does verily believe that the rights of the defendant will be seriously impaired by a refusal to grant him a new trial. CHAs LARNED Subscribed & affirmed to before me at Detroit this 1st day of Novr AD 1819 GEO MCDOUGALL (Justice of the Peace C° W T M [Case 44i, Paper 3] [Indorsement] N° 21 4 Bond $300-o. josh Loveland to Daniel Taylor filed 20. May 1815. S. Sibley Atty for plff [Case 441, Paper 3] TERRITORY OF MICHIGAN, TO WIT- KNOW all men by these presents that we Joseph Loveland and are held & firmly bound to Daniel Taylor in the Sum of three hundred dol- lars, lawfull money of the United States, for the payment whereof to the Said Daniel Taylor, his executors & administrators, we bind ourselves, our Executors & administrators firmly by these presents Sealed with our Seals dated the twentieth day of May one thousand eight hundred fifteen: THE CONDITION of this obligation is Such that Whereas the above named Joseph Loveland has this day Sued out, his Certain writ of attachment from the Clerk's office of the Supreme Court of the territory of Michigan against the Said Daniel Taylor for the Sum of three hundred dollars; Now if the Said Joseph Loveland Shall prosecute Said attachment, and Shall respond all Costs and damages that Said Daniel Taylor may Sustain & recover against the Said Joseph Loveland on his failure in Said Suit, then the above bond to be Void and of no effect, otherwise to remain in full force. JOSEPH LOVELAND [SEAL] [sEAL] [In the handwriting of Peter Audrain] SELECTED PAPERS 513 [Case 443, Paper 4] [Indorsement] Plea of abatemt Dant Sutherland vs Francis Lasselle fas. Lasselle & George Meldrum in debt Plea filed in Court 16 Septber 1816 Sol Sibley Aty [Case 443, Paper 41 IN THE SUPREME COURT OF MICHIGAN OF THE TERM OF SEPTEMBER 1816 Daniel Sutherland, Curator &C vs James Lassele, Francis Lassele and George Meldrum - in a plea of Debt &C And the said Francis Lassele and George Meldrum, by Sol Sibley their Attorney, come into Court here this Sixtenth day of September 1816. And pray the judgment of the Court On the Plaintiffs writ and declaration afore- said and that the same may be abated, because they say that Since the Plaintiff Sued out his said writ, and since the last continuance of the above action, Towit on the Tenth day of Dcember 1815, at the District of Erie in the Territory of Michigan, James Lassele One of the Defendants, named in the writ sued out by the Plaintiff, against the said James Francis and George, did die and depart this life and is now dead, which the Said Francis and George are ready to verify and prove &c Wherefore the said Francis & George for the Cause aforesaid pray judment of the Court upon the writ and declaration aforesd so sued out and prosecuted as aforesd and that the same for the Cause aforesd may be abated, and the said Francis & George therof and therefrom discharged &C and that they have their Costs &C. SOL SIBLEY Aty for Francis Lassele & George Meldrum [In the handwriting of Solomon Sibley] 514 SUPREME COURT OF MICHIGAN [Case 466, Paper 3] [Indorsement] 58. In the Supreme Court Henry 7 Hunt vs Will" Macomb retie 3d Monday in Sept 1818 Sol Sibley Atty for Pltf I have Served the within by reading and delivering a Coppy Sept 19th 1818 Serve $2-oo Mldg I-oo00 $3-oo00. Witnesses- Richard Smyth Esqgr John MCDonell Esqr ASA PARTRIDG Deputy Sheriff filed 21. Septber 1818 [Case 466, Paper 3] The United States of America. TERRITORY OF MICHIGAN TOWIT - TO THE SHERIFF OF THE COUNTY OF WAYNE IN SAID TERRITORY- Whereas Henry J Hunt lately in our Supreme Court of the Territory of Michigan, Towit on the twentieth day of September one thousand Eight hundred and Fifteen towit at Detroit in said Territory, by the Considera tion of our said Supreme Court, recovered judgment against William Macomb, upon an action of Debt, as well a certain debt of Ten thousand eight hundred and forty Two dollars, to be discharged and satisfied by the SELECTED PAPERS 515 payt of Five thousand four hundred and Twenty one dollars, with interest from the Twentieth day of July one thousand Eight hundred and fifteen, at the rate of Six percentum per annum until paid and satisfied, together, with the Costs of s suit, amounting to Twenty dollars and fifty cents, which were adjudged to the said Henry, for his damages, costs and charges by the occasion of the detaining the said debt, whereof the said William is con- victed as appears by the record thereof remaining in our said Court at Detroit - Yet execution of said Judgment still remains to be made, as on the information of the said Henry, we have been given to understand - And because we are willing that those things, which in our said Court are rightly done and transacted, should be executed - we command you that by good and Lawful men of your County, you make known to the said William Macomb, that he be and appear before our Judges, at Detroit, on the third Monday of September Instant, to shew, if any thing he has or Knoweth to say for himself why the said Henry should not have execution for the debt and damages aforesaid, according to the form and effect of said recovery if it shall seem expedient for him so to do, and have you then there the names of them by whom you shall make known to him and this writ - Witness Augustus B. Woodward, presiding Judge of our said Supreme Court, the fourteenth day of September, one thousand Eight hundred and Eighteen PETER AUDRAIN [SEAL] Clk. S.C.T.M. [Case 466, Paper 4] [Indorsement] Sup: Court Henry . Hunt vs William M'Comb Narr: on Sci: facias filed 30. Septber 1818. [Case 466, Paper 4] TERRITORY OF MICHIGAN, SS: OF THE TERM OF SEPTEMBER IN THE YEAR OF OUR LORD ONE THOUSAND EIGHT HUNDRED AND EIGHTEEN. The United States of America Sent to the Sheriff of the County of Wayne in Said Territory their writ closed in these words, that is to say, - The United States of America to the Sheriff of the County of Wayne in Said S6 SUPREME COURT OF MICHIGAN Territory whereas Henry J Hunt lately in our Supreme Court of the Terri. tory of Michigan to wit on the twentieth day of September one thousand Eight hundred and fifteen to wit at Detroit in Said Territory by the con. sideration of our Said Supreme Court moved Judgment against William M'Comb upon a certain action of Debt, as well a Certain debt of ten Thou. sand Eight hundred and forty two dollars to be discharged and Satisfied by the payment of five thousand four hundred and twenty one dollars with interest from the twentieth day of July one thousand Eight hundred and fifteen at the rate of Six percent per annum untill paid and Satisfied, to. gether with the Costs of the Suit Amounting to twenty dollars and fifty Cents, which were adjudged to the Said Henry for his damages, Costs and Charges by the reason of the detaining the Sd debt Whereof the Said William is convicted as appears by the Record thereof remaining in Our Said Court of Detroit, yet Execution of Sd Judgment still remains to be made, as on the Information of the Said Henry we have been given to understand. And because we are willing that those things which in our said court are rightly and transactd should be executed, We command you that by good and Law- ful Men of your County, you make Known to the Said William M'Comb that he be and appear, before our Judges at Detroit on the third Monday of September instant, if he has or knoweth to say for himself why the Said Henry should not have execution for the debt and damages aforesaid according to the tenor and effect of Sd recovery, if it shall seem expedient for him So to do, & have you then the names of those by whom you shall make known to him and this writ. - Witness Augustus B. Woodward pre- siding Judge of our Said Supreme Court the fourteenth day of September, One thousand Eight hundred and Eighteen. At which day, before the Jus- tices Aforesaid, Comes the said Solomon Sibly Administrator as Aforesaid And the Sheriff, to wit Austin E. Wing Sheriff of the Said County aforesaid here now makes Return in these words, to wit, - "I have served the Within by reading And Delivering a Copy." And the said William M'Comb being solemnly called comes by John Hunt his Attorney And hereupon the Said Solomon Sibley Administrator as aforesaid prays that Execution may be ad- judged to him against the Said William M'Comb of the damage aforesaid, according to the force form & effect of the Said Recovery &C SELECTED PAPERS 517 [Case 492, Paper I] [Indorsement] Clariet Allen [Case 492, Paper i] Blac 1-442 TERRITORY OF MICHIGAN, TO WIT To the Honble A'.g:: rs ..... ir r.id.hrg 7i:dgs fA Suprsnv C.,r# 1f-d -T- e:iy the 7udges of the supreme Court now in Session The Petition of Claret Allen, the Wife of William Allen, most Humbly sheweth That she is imprisoned by James H Audrain, the Marshal of the District of Detroit, in said Territory, without just cause to which she can make answer according to Law; and under a pretended Execution as is said, of one Oliver Williams & Co, who James May e.1.o.Ui..hiee. a justice of the peace pretends obtained Judgment against one M" Allen, since Sep 15. I85 Your petitioner avers that - her name is Claret Allen as above stated, and not Mrs Allen, that she is the lawful Wife of William Allen, now living, from whom she hath never been devorced, being a Feme Couvert; & if She has contracted debts she is informed She is not liable to be imprisoned for the same by this Mr Oliver Williams & Co or any other person, at this time. Your petitioner therefore prays that a Writ of -hnea rn. e Error may issue t brn by fo ih forthwith Returnable before the Supreme Court now in Session - & that justice may be done in the prem- ises; & as in duty bound, your Memorialist will ever pray. From Detroit prison Sep 22 1815 GEO. MCDOUGALL Attorney for the petitioner TERRITORY OF MICHIGAN STO WIT DISTRICT OF DETROIT I do solemnly swear that the facts contained in the within petition, in my belief, are the truth & nothing but the truth, Sworn & subscribed before me, the mark of in the Jail of the District CLARET X ALLEN of Detroit this 22 Sep A D 1815 the Wife of Wm Allen GEO MCDOUGALL Justice of the Peace [In the handwriting of George McDougall] SUPREME COURT OF MICHIGAN [Case 492, Paper 2] TERRITORY OF MICHIGAN SS DISTRICT OF DETROIT I, James May, Esquire, one of the Justices assigned to keep the peace in said District, Do certify that before the coming to me of said Writ. To Wit, on the eighth day of August, in the year of our lord one thousa eight hundred and fifteen, at the City of Detroit in district and Territor aforesaid, Oliver Williams, surviving partner, of Oliver Williams & Cotn. pany, in the said writ named, came to the office of the said James May, then being one of the Justices of the peace for said district, then and there prefered his Plaint against Mrs Allen, in the said writ also named, in a p of the Case, to their damage thirty dollars and prayed of me process, agains the said Mrs Allen; Whereupon, at the prayer of said Oliver Williams, and in pursuance of a Statute of said Territory, "Entitled, an Act to abolish the "courts of Districts, and to define, and regulate, the powers, duties, ad "Jurisdiction, of Justices, in matters civil, and criminal." - made an adopted by the Governor and Judges; on the 16th day Septr. 18Io I, the said James May did issue a Capias, directed to the Marshal of said district, where the said Mr Allen, dwelt, thereby requiring the said Mar- shal, to take the said Mr' Allen, and her bring before me, to answer, said Oliver Williams & Co, in a plea of the case to their damage thirty dollars which said Capias was delivered to Peter F. Audrain deputy Marshal for said district, who afterwards to wit on the same day and year aforesaid retd thereto, that the same was duly served, and that he had the defend' before me, and on the same day and year aforesaid, the said MS Allen appeared in her proper person, and pled that she was not bound to pay t Debt; Whereupon James Dodemead, late a Clerk to said Oliver Williams N C° was called, and sworn according to law, and testified that M' Allen. came to Plaintiffs Store, and requested them to credit her, on her own re- sponsibility, (they having expressed a wish not to credit William Allen) - That on the 28th and 29th June I811. The Plaintiffs accordingly credited the said Ms Allen, to the Amount of Thirty one dollars, ninety six and half cents, and further that she paid them, on the 28th June 181I on account of said Credit, the sum of twelve dollars eighty two cents, leaving a balance unpaid of $I9.14j cents. for which this action was brought, (to recover; after hearing the above testimony and Allegations of the parties. I, the said James May, did rule, the said Mrf Allen, to prove her Mariage, xith William Allen, and for which purpose, I did allow her, until the I2h day of August of the Month and year aforesaid, to produce her proof if any she had, the foregoing rule, was never attended to, on the part of M" Allen, and SELECTED PIPERS 519 on Motion of the said Oliver Williams, surviving Partner, of Oliver Wil- liams & C° Judgement was rendered by default against the said Mr' Allen, for the Amount of Debt and costs. on the 15th day of September A D. 1815 on which said day I. the said James May. did issue a Writ of execution, directed to the Marshal, of said district, commanding him to levy of the goods, and Chattels, of said Mr Allen, the Amount of Debt and costs and for want of goods, and Chattels, whereon to levy, to take the Body of said MI' Allen, and her detain, in prison, until the said debt, and costs, are paid, or she otherwise discharged, and to make due return of said Writ of execu- tion in Sixty days. Given under my hand & Seal at Detroit this 24th day of Septr in the year of our lord, One thousand eight hundred & fifteen. JAMES MAY [SEAL] Justice of Peace [In the handwriting of James May] [Attached to the foregoing] Mr Aliens, case Blkstone Vol Ist Page 442. The Husband is bound to provide his wife with necessaries by law; as much as himself, and if she contracts debts for them he is obliged to pay them; but for any thing besides necessaries, he is not chargeable. Also if a Wife elopes, and lives with another Man, the husband is not Chargeable even for necessaries; at least if the person, who furnishes them, is sufficiently apprised of her Elopement. [Indorsement] Filed in Court 25. Septr' 1815 Clairette Allen- writ of error & return. [Case 492, Paper 3] TERRITORY OF MICHIGAN, SS IN THE SUPREME COURT OF THE TERRITORY OF SEPTEMBER TERM A D ONE THOUSAND EIGHT HUNDRED FIFTEEN Claret Allen the lawful Wife of William Allen from whom she hath never been devorced, being a Feme Couvert, in her own proper person and by George McDougall her Attorney, comes and says, that in the Record and 520 SUPREME COURT OF MICHIGAN proceedings, as also in the rendition of the Judgment of a plaint which was in our Court, before James May, one of the Justices assigned to keep the peace within the District of Detroit in the Territory aforesaid, by Capias issued out of the Office of the said James May, as a Justice of the peace aforesaid, dated the eighth day of August A D i 815 (fifteen) and made re- turnable at no defenite time, between Oliver Williams & Co, (as is said) of a certain action of trespass on the Case, to their damage, Thirty Dollars as is said, which the said Oliver Williams & C° demand of the aforesaid M' William Allen, and in the Execution (on which she is now in confine. ment in the Common Gaol of the said District of Detroit,) issued thereon by the said James May dated Sep. I5 A D 185, THERE IS MANIFEST ERROR, in this to wit, that the Capias and Execution aforesaid, and the matters therein contained, are not sufficient in Law, for the said Oliver Williams & C°, to have and maintain their action aforesaid against the said M' Allen: Thrci alz -rc i hi, tc wit=, that b.y... th R...r afcrcaaid:. i....... t1hat th-61 aidM"Alcnwa ompolled to answer to the paid Oliver Willia, & C0, n thcp af;,rzaid, aho' "che p4 lad at che anla.Ie tiundtoWp th Dzt h cigaFm Ccvradta h ad lvrWlim 00.. cght nt to have had. or maitained their aforecaid action thereof a... h-.r, ....a... ah^ ad that ,3h^ thKc ,,aid CIar.t bcfcr, a--d at- thc ti.mc of & Ca"iao -^-"zncd, ":'a. & thon wathc Wife cf ^--William A-1c. &c thz cci Jutc"aigrs ~si MSi!,f ro~ ~~~t Jrz._ ............ .....n .. a for ..hich. -ur--':"a^c. hc^... t -:c-..d Jctico" did . : all=.w. hcr,-u.til . .K;^K A.. AAA AA .. .. %- . . ".m % D . .A , .. ." . &%0 .. ..%"W& A- n.4* whchda t de z per b"h eodaoead htayo h ~t appeared befre aid J-.oatice,-"here) the paid--uit abatcd tcta!ly.,..ao-':: dcciaizn cf thc laat Suprcmc Couart, M{r B!ackstCn rcmarking Ycl 3 ....316 "_..! n1l. z -o,_3... in' -h- ,r.r .. b th thc: p .. artic, .. up , dcfau- Azf. .,nc -f--the-- afcr...aid, viz.t zn tk... 15 Scr A TD iO. £^.. .....cwng rcnd.ring T..dg.... L_ ........, a .. .. ... prtc d "-h"n h.. ... nc a..h..... d by L...... tz hav e .... ,, r ^._..l .^ t. .. . ^ . . i .^_ i.w . .. . . ix .~ ^.i..^ i^. i-h .. ,, r ,.. - . There is also Error in this, to wit, that by the Record aforesaid, it appears, that the said M" Wm Allen was compelled to answer the said Oliver Williams & C°, in the plea aforesaid, altho' no PRECIPE, before the parties, in the plea aforesaid, is filed of Record, nor remains of record in the said Court, of the said James May, at the District of Detroit aforesaid, and that the said James May, forgetting his Duty as an impartial Judge & his oath of office, SELECTED PAPERS 521 to execute the same according to Law, and without respect to persons & to do equal right to all manner of people great & small, ignorant & learned, did undertake to act as Attorney for the said Oliver Williams & C° by writing the declaration or cause of Action on the back of said Capias endorsed, thereby disqualifying himself to act impartially on the trial. Therefore in that there is manifest error. There is also Error in this, that it appears by the Record, aforesaid, that the Judgment aforesaid, in form aforesaid given, was given for the said Oliver Williams & C° against the said Mrs W Allen, whereas by the Law of the Land the said judgment ought to have been given for the said Mrs Allen against the said Oliver Williams & C°, therefore in this there is manifest Error - there is also Error in this, to wit that there is no Warrant of Attor- ney filed of Record, nor remains of Record in the Court of the said James May, Justice of the peace as aforesaid, between the parties of the plea aforesaid, to warrant the said Oliver Williams to be the Attorney for the said Oliver Williams & C° in the plea aforesaid, tL_ p . .....i Li_ di~az'vzd &- "f the. Plain:tiff had bzzn ingznuc.ua znc ugh. hz w::ud! hayz praz ..... "a " Surviving p..rtn.r of c-id Firm- thz oth....r ".oi.. Je...ph Frw ...lI & ,A.ze Lz- bir:_ Izng ind za but' thia b'- i'ng matt-= r f •c _. nz sl.. " " Lt00.:t. o:14. n There is also Error in this to wit, that there is a material Error between the original Capias and the Execution, the said Claret, being called Mr, Wm Allen in the original Capias and only Mrs Allen in the said Execution there- fore therein there is manifest Error GEO. McDOUGALL Attorney for Claret Allen the Wife of William Allen There is also error in this, that it appears by the Record aforesaid, vizt in the original Capias & in the Execution aforesaid, a palpable misnomer, the Capias being to take the Body of Mrs William Allen, and in the Execution, she is called M" Allen, whereas we aver that the person in custody is Claret Allen the Wife of William Allen, as aforesaid, therefore in this there is also manifest Error GEO. MCDOUGALL Atty for Claret Allen the Wife of Wm Allen [In the handwriting of George McDougall] 522 SUPREME COURT OF MICHIGAN [Case 492, Paper 5] [Indorsement] Account Mr Allan filed in my office Augt 8th 1 815 JAMES MAY J.P. [Case 492, Paper 5] 1811 Mr Allan To Oliver Williams & Co Dr July 28 To her assumption for a French Woman 8/ 1.00 29 " I Bbl Whisky 35IZ Glls @ 6/2 Bbl with ditto 8/ 27.6214 " " 434 yds Calicoe @ 5/ (Aug. 12) I yd Calicoe 3/ 3.34 31961 _ Cr July 28ByCash--------------------------------128. Balce Dolls 191I41 E E. Detroit 26th January 1812 [Case 495, Paper I] [Indorsement] United States vs Alexander T. E. Vidal A true Bill STEPHEN MACK Foreman Jury Room Sept' 26th 1815 Witnesses Louis Bourre Charles N. Gouin Gen' Jas Miller Thomas Maye John Miller Nolle Prosequi C. LARNED Atty Gen' M. T. SELECTED PAPERS 523 [Case 495, Paper i] TERRITORY OF MICHIGAN TO WIT The Grand Jurors of the United States within & for the body of the Territory of Michigan upon their oaths present, That Alexander T. E. Vidall Lieut in the Naval service of his Brittannic Majesty, on the fifth day of September, One thousand eight hundred and fifteen, with force and arms in the District of Detroit and Territory of Michigan in and upon One Thomas Ramer in the peace of God and the United States then and there being did make an assault; and him the said Thomas Ramer then & there did beat wound & ill treat, so that his life was greatly despaired of, and him the said Thomas Ramer then & there unlawfully and injuriously against the will and without the consent of the said Thomas Ramer without any legal warrant authority or justifiable cause whatsoever did detain and unlawfully deprive of his personal liberty, and other wrongs to the said Thomas Ramer then and there did to the great damage of the said Thomas Ramer & against the peace and dignity of the United States and this Territory. And the Jurors aforesaid upon their oaths aforesaid do further present. That the said Lieutenant Alexander T. E. Vidall on the fifth day of September, One thousand Eight hundred & fifteen with force and arms in the District of Detroit in the Territory of Michigan in & upon the said Thomas Ramer in the peace of God and the United States then & there being did make an assault and other wrongs to the said Thomas Ramer then and there did to the great damage of the said Thomas Ramer and against the Peace and dignity of the United States and of this Territory. CHAs LARNED Atty for U S. T. M. [In the handwriting of Charles Larned] [Case 496, Paper 3] [Indorsement] A. T. Vidal [Case 496, Paper 3] TERRITORY OF MICHIGAN TO WIT DISTRICT OF DETROIT Personally appeared before me George McDougall, a Justice assigned to keep the peace within the District of Detroit aforesaid, Louis Bourre, of La Grosse Pointe in said District, who being solemnly sworn, deposeth and saith that on the fifth day of September present, three Strangers arrived 524 SUPREME COURT OF MICHIGAN at his House and one of them (whos Name he has since learned is Alexander T E Vidal a Lieutenant in the Naval Service of His Britannic Majesty) immediately proceeded to search the four different Rooms in his House, and on going into the fifth Room he asked this Deponent if Any Seamen De- serters were in his House, and was answered that some Strangers had been there but were gone, the Lieutenant remarked that they were Deserters from his Command, and then sent one of his associates with orders to a number of Men, who were then about thirty yards from the shore to load their Guns, and looking towards them saw them shortly after had their Guns - Lieut Vidal, & the two others who accompanied him (one of whom afterwards said he was the Son Framboise by the name of Joseph La fram- bois6) were armed with Fusees, Deponent saw the Lieutenant aforesaid, Conveyed to Detroit by Capt John Meldrum & Lieut Ch' N. Gouin, and further this Deponent saith not Louis BOURR Sworn & subscribed before me at my Chambers in the City of Detroit the eleventh day of Septemr AD 1815 (fifteen) GEO. MCDOUGALL Justice of the peace D D T M [In the handwriting of George McDougall] [Case 496, Paper 4] [Indorsement] Genl. Miller's Affdavit vs Vidal [Case 496, Paper 4] TERRITORY OF MICHIGAN TO WIT DISTRICT OF DETROIT Be it remember'd that on this sixteenth day of September A D one thou- sand eight hundred fifteen, Personally appeared before me George McDou- gall, a Justice of the peace for the District of Detroit aforesaid, Brigadier Gen' James Miller, who being solemnly sworn deposeth and saith, That in a conversation with Lieut Vidal at James Mays House in the City of Detroit on the evening he was brought to Detroit a prisoner about the fifth Instant, He the said Lieut Vidal acknowledged that he had taken a Man, he called SELECTED PAPERS 525 a Deserter, on the American shore above this place, put him on board his Boat and sent him on board the British vessell laying off from whence he took him JAMES MILLER Sworn & subscribed before me at Detroit the day & year first above written GEO. MCDOUGALL Justice of the Peace D D T M [In the handwriting of George McDougall] [Case 496, Paper 5] [Indorsement] United States vs Alexander T. E. Vidal A True Bill STEPHEN MACK Foreman Jury Room Septr 26th 1815. Witnesses Louis Bourr6 Charles N. Gouin Gen' Jas Miller Thos Maye John Miller [Case 496, Paper 5] TERRITORY OF MICHIGAN TO WIT The Grand Jurors of the United States, within and for the body of the Territory of Michigan upon their Oaths present That Alexander T. E. Vidal Lieutenant in the Naval Service of his Britanic Majesty together with divers other evil disposed persons to the Jurors aforesaid as yet unknown on the fifth day of September One thousand Eight Hundred and fifteen with force and arms in the district of Detroit and the Territory of Michigan did unlaw- fully riotously & routously assemble and gather together to disturb the peace of the United States, and being then and there so assembled and gath- ered together were armed with Muskets, Fusees and other instruments, with an intent to seize and carry away unlawfully and improperly one Thomas 5z6 SUPREME COURT OF MICHIGAN Ramer in the peace of God, and the United States then and there being, He the said Alexander T. E. Vidal then and there in the district aforesaid and Territory aforesaid threatening to resist by force of arms any attempt of the good citizens of this Territory to protect or defend the Said Thomas Ramer and other wrongs then and there did against the peace and dignity of the United States and of this Territory And the Jurors aforesaid upon their Oaths aforesaid do further present that the said Alexander T. E. Vidal together with divers other evil disposed persons to the Jurors aforesaid as yet unknown on the fifth day of September One Thousand Eight Hundred and fifteen, with force and arms in the district of Detroit and Territory of Michigan, did unlawfully, riotously and routously assemble and gather to- gether to disturb the Peace of the United States, and being then and there so assembled and gathered together were armed with Muskets, Fusees, and other instruments, did seize and carry away unlawfully, and improperly the said Thomas Ramer against the Peace and dignity of the United States and of this Territory CHAS LARNED Atty for U S T M [Case 505, Paper i] [Indorsement] Search Warrant vs. Henry Hudson March 4th 1815 [Case 505, Paper i] TERRITORY OF MICHIGAN ss. DISTRICT OF DETROIT To the Marshal of said District (GREETING). Whereas it appears to me James May Esquire, One of the Justices as- signed to keep the peace for the District aforesaid, by the Information on Oath of Richard Smyth Esqr of said District, That the following Goods. viz. Six Barrs of round Iron, was Stolen and carried away from his Shop loft on the twenty third day of February last, and that the said Richd Smyth Esqt hath reasonable cause to suspect and doth suspect that the said six Barrs of Iron are concealed in some part of the Dwelling house or out Houses of Henry Hudson of said Detroit - which he now Occupies. SELECTED PAPERS 527 These are therefore in the Name of the United States, to authorize and require you with necessary and proper assistants, to enter in the day time, into the said dwelling House and out Houses of the said Henry Hudson at Detroit aforesaid and there diligently to search for the said six Barrs of round Iron aforesaid, and if the same or any part shall be found, upon such Search, that you bring the same so found, and also the Body of said Henry Hudson, before me to be dipose of according to law. Given under my hand Seal at Detroit this 4th day of March A.D. 1815. JAMES MAY [SEAL] J.P.D D. [In the handwriting of James May] [Indorsement] In obedience to the within Warrant, I have search the House of said Henry Hudson and found the Six Barrs of round Iron, which I have brought likewise the Body of said Henry Hudson. Detroit March 4th 1815. FRs AUDRAIN Dy Marshall [In the handwriting of James May] [Case 505, Paper 6] [Indorsement] United States vs. Henry Hudson A true Bill STEPHEN MACK Foreman Jury Room Sep. 26th 18I No 4 Witnesses Richd Smyth Benj. Chittenden [Case 5o5, Paper 6] TERRITORY OF MICHIGAN SS: The Grand Jurors of the United States within and for the body of the Territory of Michigan upon their oaths present that Henry Hudson late of Detroit Inkeeper on the twenty third day of February in the year one thou- 528 SUPREME COURT OF MICHIGAN sand eight hundred and fifteen, with force and arms, towit, at Detroit afore. said, thirty pounds of iron of the value of forty shillings of the goods and chattels of one Richard Smith, by a certain ill-disposed person (to the said Jurors yet unknown) then lately before feloniously stolen by the same ill- disposed person, unlawfully and unjustly, and for the sake of wicked gain, did receive and have (he the said Henry Hudson then & there well knowing the said goods and chattels to have been feloniously stolen) to the great damage of the said Richard Smith and against the peace and dignity of the United States and of this Territory. CHAs LARNED. Atty for U States. Terry Michigan [Case 511I, Paper i] [Indorsement] No 8. N°2. United States vs. Ignace Morasse filed in court 17. Octber 184 Jury Room 17th Octor 1814 a true Bill ROBERT ABBOTT Foreman Witnesses Jno McGregor John Connelly Geo. McDougall [Case 5I I, Paper I] Sept Term 1814 TERRITORY OF MICHIGAN UNITED STATES OF AMERICA The Jurors for the United States of America in the Territory of Michigan, upon their Oath present That Ignace Morasse late of the district of Huron in the Territory of Michigan Yeoman, little regarding the laws and Statutes of the United States of America and not fearing the pains and penalties SELECTED PAPERS 529 therein Contained on the thirteenth day of Jany one thousand Eight hun- dred thirteen at the District aforesaid in the Territory aforesaid with force and arms, did bargain agree and contract with John McGregor a subject of his Brittanic Majesty George the 3d King of England Scotland and Ireland the openly declared Enemy of the United States aforesaid to furnish sd MCGregor a subject aforesaid of his Majesty aforesaid Masts Spars and timber to the use of his Brittanic Majesty then the openly declared Enemy of the United States aforesaid, he the sd Ignace Morasse thereby feloniously and traiterously aiding assisting and comforting the Enemies of the United States aforesaid Contrary to the form and Effect of the laws and Statutes of the United States of America in such case made and provided and against the peace of the United States of America and the Territory of Michigan [Case 512, Paper I 5] [Indorsement] N° 2. Supreme Court fames May vs.h John W. Burnet Plea Hunt & Larned Defts Atts. filed in court 29 Septber 1818. [Case 512, Paper 15] SUPREME COURT James May John W. Burnet And the said Defendant by McDougall Hunt & Lamrned his Attornies, comes & defends the wrong and injury, when, &C and says that the said Plaintiff ought not to have or maintain his aforesaid action thereof against him, because he says that he the said Defendant never was Executor of the last will and testament of the Said William Burnet deceased, nor ever ad- ministered any of the goods and Chattels which were of the said William Burnet deceased, at the time of his death as Executor of the last will and 530 SUPREME COURT OF MICHIGAN testament of the said William Burnet deceased, in manner and form as the said Plaintiff hath above in his said declaration in that behalf alleged. And this he the said Defendant is ready to verify, wherefore he prays judgment, if the said Plaintiff ought to have or maintain his aforesaid action thereof against him &c MCDOUGALL HUNT & LARNED for Deft Defts. Atts. [Case 512, Paper 16] [Indorsement] No 3 James May vs John Burnett Ext Replication filed 30 Septer 1818. Sol Sibley Aty [Case 512, Paper 16] And the said James May, in replication to the plea of the said John above pleaded in Bar of the action of the said James says that by any thing alledged by the said John in his said plea, he the said James, ought not to be Barred or precluded of having and maintaining his action aforesd against the said John Because the said James saith that the said John Burnett at the time of commencing the action of the said James was and from thence hitherto, hath been and still is, Executor of the last will and Testament of the said William Burnett deceased, and hath administered diverse goods and chattels, which were of the said William Burnett deceased at the time of his death, as Executor of the last will and Testament of the said William Bur- nett, Towit at Detroit in the Territory of Michigan aforesd and this he prays may be enquired of by the Court, &' SOL SIBLEY At for Pltff. [In the handwriting of Solomon Sibley] And the Said Deft likewise By GEO. McDOUGALL SELECTED PAPERS 531 [Case 512, Paper 23] [Indorsement] I. 1820 Sup. Court 7ames May vs John W. Burnet ext7 Affidavit of J. L. Leib Filed in Court. Sept 19. 1821 F. HINCHMAN Dy Clk. [Case 512, Paper 23] IN THE SUPREME COURT OF THE TERRITORY OF MICHIGAN 7ames May john Burnet Ex' &c John L. Leib on his solemn oath declares & says That he was counsel with the defendant in the trial of the above case, which took place as appears by the record on the 25th day of Septr 182o. That the trial continued until a considerable time after night, that this deponent left Court with the con- sent of his colleagues Messrs Hunt and Davenport before its conclusion. That on the next day he was informed that a verdict was rendered in favour of the Defendant & that his counsel had made a motion for a new trial, after which he applied to Mr Sibley counsel for the plaintiff to fix upon a day for the argument of the motion in favour of a new trial, to which Mr Sibley re- plied that he should not argue it without giving this deponent notice, and stated further to this deponent then or at some other time that he had not fully made up his mind whether he should endeavour to obtain a new trial or take another remedy or words in effect the same. That no argument ever did take place on the above motion nor was there any new trial as this de- ponent verily believes awarded - nor was this deponent ever apprized until yesterday that there was an entry on the Docket granting a new trial - which entry this deponent verily believes was made under a mistake. JOHN L. LEIB [In the handwriting of John L. Leib] Sworn to in open Court. Sept 19th 1821 MELVIN DORR Clk 532 SUPREME COURT OF MICHIGAN [Case 527, Paper i] [Indorsement] LaRiviere 1815. [Case 527, Paper I] TERRITORY OF MICHIGAN-IN THE SUPREME COURT OF THE TERRITORY or MICHIGAN OF SEPR TERM A D ONE THOUSAND EIGHT HUNDRED FIFTEEN To the Honble 7udges of the Supreme Court now in Session The petition of Joseph LaRiviere, Hmnbly Sheweth, That he is imprisoned in the Prison of the District of Detroit for a Debt of Three Dollars & 4 by force of an Execution dated the ninth day of Oct A D 1815 (present) from the Court of James May, a Justice of the peace of said District, at the suit of John David, contrary to "An Act of this Territory for the relief of poor Debtors adopted at Detroit the eleventh day of January, one thousand eight hundred and twelve," - He therefore prays that your Honors will direct a Writ of Habeas Corpus to issue to bring his Body before the Court, & thereupon to do as to Justice shall appertain And as in Duty Bound your Petitioner will ever pray Sworn & subscribed before me his in prison this tenth day of JOSEPH X LARIVIERE October A D 1815 (fifteen) mark GEO. MCDOUGALL JPDD THE UNITED STATES OF AMERICA, To the Marshal of the District of Detroit TERRITORY OF MICHIGAN TO WIT. DISTRICT OF DETROIT Whereas John David hath obtained Judgment against Joseph LaRiviere for three & 4 Dollars debt, and one Dollar & fifty Cents, Costs, as appears of Record whereof Execution remains to be done -These are therefore to Command you to levy the said Debt & Costs of the Goods & Chattels of the said Joseph LaRiviere & for want thereof to take the body of the said Joseph LaRiviere and him detain in prison until the said Debt and Costs are paid, or be otherwise discharged and of your proceedings make due Return in Sixty days -Given under my hand at the City of Detroit the ninth day of October A D 1815 (signed) James May Justice of the peace. SELECTED PIPERS 533 I do hereby Certify that the above is a true & just Copy from the original execution in my hands in consequence of which I have the Body of the said Joseph LaRiviere in Prison, not having found Goods & Chattels of his to levy on Given under my hand & Seal at Detroit the io Oct A D i8I5. [SEAL] JAS H AUDRAIN Marshal. [In the handwriting of George McDougall] [Case 532, Paper 4] [Indorsement] No 7 Declaration :fohn MDonell vs Reginald James in case filed 4th May 1817. plea not guilty and General issue Sol Sibley Aty [Case 532, Paper 4] MICHIGAN TERRITORY TOWIT-IN THE SUPREME COURT OF SAID TERRITORY OF THE TERM OF SEPTEMBER ONE THOUSAND EIGHT HUNDRED AND SIXTEEN John McDonell, by Sol Sibley his Attorney, complains of Reginald James, in custody &C of a plea of Trespass on the case &c For that whereas the said John McDonell now is a good, true, honest, just and faithful citizen of the United States of America and of This Territory, and as such hath always conducted himself, until the comitting of the sev- eral grievances by the said Reginald James, as herin after mentioned, was always reputed esteemed and accepted by and amongst his neighbors and other good and worthy citizens of the United States, to whom he was anywise known, to be a man of good fame credit and reputation, Towit at Detroit aforesd in the Territory aforesd And whereas the said John McDon- ell, hath not been guilty, or until the time of committing the several griev- ances by the said Reginald James, as herin after expressed, been suspected 534 SUPREME COURT OF MICHIGAN to have been guilty of Homicide, Murder or any other such crime, by means of which said premises, he the said John McDonell, before the committing of said several grievances by the said Reginald James as herin after men. tioned, had deservedly obtained the good opinion and credit of all his neighbors and other good and worthy Citizens of the said United States, to whom he was in any wise known, Towit at Detroit aforesd and the Territory aforesd Yet the said Reginald James, well knowing the premises, but greatly envying the happy state and condition of the said John MCDonell and contriving and maliciously intending, wickedly to injure the said John McDonell in his said good name fame, and credit, and to bring him into public Scandal, infamy and disgrace with & amongst all his neighbors, and other good and worthy citizens of the said United States, and to cause it to be suspected and believed by those neighbors and citizens that he the said John McDonell had been and was guilty of homicide and Murder, and to subject him to the pains and penalties of the Laws of the United States and this Territory, made and provided against, and inflicted on persons thereof guilty thereof and to vex, harass, oppress, impoverish, and wholly ruin him the said John McDonell, Heretofore Towit on the Twentieth day of June One thousand Eight hundred and Fifteen, Towit at Detroit in the Territory of Michigan, falsely, wickedly and maliciously did compose and publish, and cause and procure to be published of and concerning the said John McDonell, a certain false Scandalous, malicious and defamatory libel, con- taining amongst other things, the false, scandalous, malicious, defamatory and libellous matter following of and concerning the said John MCDonell as aforesaid that is to say, "I" (meaning the said Reginald James) "am sur- prised that such a respectable man as Col. Anderson" (meaning John An- derson) "who ought not to to be put on a footing with McDonell" (meaning meaning the said John McDonell) "who," (still meaning the said John) "has been guilty of various crimes, not excepting that of Murder" meaning that the said John was a murderer and had committed the crime of murder And the said John McDonell further saith that the said Reginald James, further contriving and intending as aforesaid, heretofore towit, on the said Twentieth day of June One thousand Eight hundred and fifteen aforesaid, at Detroit aforesd in the Territory aforesd falsely, maliciously and wickedly did publish and cause and procure to be published, a certain other false, scandalous, malicious and defamatory libel of and concerning the said John, containing amongst other things the false, scandalous, malicious, defama- tory and libellous matter following, of and concerning the said John, that is to say "I" (meaning the said Reginald James) "am surprised that such a respectable man as Mr Anderson" (Meaning Col. Jn° Anderson of the Ter- ritory of Michigan) "who" (meaning the sd John Anderson) "ought not to be put on a footing with McDonell'T (meaning the said John McDonell) SELECTED PAPERS 535 "who" (meaning the said John McDonell) "has been guilty of many crimes, not excepting Murder, (meaning that the said John was a murderer and guilty of the heinous & wicked crime of murder. And the said John McDonell further saith, that the said Reginald James, further wickedly and maliciously contriving & intending as aforesaid, after- ward, towit on the same Twentieth day of June, one thousand eight hundred and Fifteen, towit at Detroit aforesd in the Territory aforesd falsely wickedly and maliciously, did compose and publish and cause and procure to be pub- lished of and concerning the said John McDonell aforesaid, a certain false, scandalous, malicious and defamatory libel, containing amongst other things, the false, scandalous, malicious, defamatory and libellous matter following of and concerning the said John MCDonell, that is to say, "That CoPl Anderson" (meaning Col John Anderson of the Territory of Michigan) could not be placed upon the same footing with McDonell" (meaning the said John McDonell) "who" (meaning the said John McDonell) "had been guilty of various crimes not excepting murder" (meaning that the said John McDonell was a murderer and that he the said John had committed the crime of murder. And the said John McDonell further saith that the said Reginald James, further contriving and intending, wickedly and maliciously to injure the said John as aforesaid, afterward, Towit on the same Twentieth day of June, in the year One thousand eight hundred and fifteen, aforesd Towit at Detroit aforesd in the Territory aforesd falsely, wickedly, and maliciously, did com- pose and publish and cause and procure to be published of and concerning the said John McDonell a certain other false, scandalous malicious and defafatory libel, containing amongst other things, the false, scandalous, malicious defamatory and libellous matter following of and concerning the said John McDonell that is to say, "Colonel Anderson" (meaning John Anderson) "could not be placed on the same footing, with McDonell (mean- ing the said John McDonell) "who" (still meaning the Plaintiff) "had been guilty of many crimes, not excepting that of murder" - (meaning that the Plaintiff was guilty of the crime of murder, and that he the said John McDonell had feloniously comitted the crime of murder By reason of which said premises the said John hath been greatly injured &C and hath sustained Two thousand dollars damages, wherefore the said John McDonell brings suit, &c SOL SIBLEY Atty MICHIGAN TERRITORY. TOWIT: John McDonell puts in his place and stead Sol Sibley his Atty against Reginald James, to prosecute in a plea of the case &c [In the handwriting of Solomon Sibley] 536 SUPREME COURT OF MICHIGAN And The Said Reginald James by his attorney Charles Larned comes and defends the wrong and injury when &c and says that his is not guilty in manner and form as the plaintiff hath thereupon declared against him and of this he puts himself on the country. Reginald James by C. LARNED Atty for Deft [In the handwriting of Charles Larned] the Pltf likewise SOL SIBLEY for Pltf [Case 532, Paper 6] [Indorsement] In the Supreme Court Rtble 3d Monday in Septber next 1817 John McDonnell Subpoena vs duces tecum Reginald James duces tecum for John Anderson, Esq' Served the within by Coppy-Sept 4th 1817 Serve 25 DUNCAN REID Mileage 2 25 Dept Chff $2.50 [Case 532, Paper 6] TERRITORY OF MICHIGAN-TO WIT [SEAL] THE UNITED STATES Of America to John Anderson Esq' You are hereby Commanded that laying all other matters aside you be in your proper person before the judges of our Supreme Court on the 3d mon- day in Sept' next, and that you bring into Court a Certain letter written by Reginald James to Richard Pattinson, & by the Said Pattinson trans- mitted to you the said John Anderson about the month of June one thou- sand Eight hundred fifteen. Hereof fail not under the penalty of the law WITNESS Augustus B. Woodward presiding judge of our Said Court Detroit 30 August 1817 PETER AUDRAIN clk S.C.T.M. [In the handwriting of Peter Audrain] SELECTED PAPERS 537 [Case 533, Paper 9] [Indorsement] Roby Bill of parts vs. under special Reaume Count, in decl" [Case 533, Paper 9] Copy. We the undersigned agree to Leave out to competent judges, the follow- ing case, now in question, that as Mr Reaume and Mr Roby some time Last May, made a Bargain to this effect, that Mr Roby, was to and did sell Mf Reaume all the goods he then had on hand, for first Costs and charges for transportation - Mr Reaume, on his part did then and there agree to give for part payment, the sum of fifteen hundred dollars, in american cer- tificates to be examined by Col Butler then commanding officer of this post, those that where by him pronounced good and he should say would be paid by the American government without any trouble or hesitation as soon as there was funds in the quartermaster department or commissioner for that purpose, the said Roby to take those so pronounced good and keep as part payment, until the final result; without any expense to the said Reaume, and if it should happen, that any should prove not to be paid, the said Reaume then shall be accountable to the said Roby for that amount not paid - and as Col Butler did not examine them we wish to have them examined and the said Roby agrees on his part to take what should be pronounced good and present to the proper department for payment at his own expense - Mr Reaume being accountable for the sum that should not be paid to the sd Roby in Cash on demand and furthermore what interest and damage the said Roby if any should receive for the Balance if any that should be due him - and we furthermore agree to leave it to Mr Sol Sibley, James MCClosky, Mr Higings and M' James Abbott Detroit 28. March Sigd John S. Roby 18 I6. Alexis Luc Reaume in presence of James Conner & Tho' Jones. [In the handwriting of Solomon Sibley] 538 SUPREME COURT OF MICHIGAN [Case 533, Paper io] [Indorsement] No 6. Roby Affdt vs for Reaume continuance 1817. [Case 533, Paper Io] TERRITORY OF MICHIGAN COUNTY OF WAYNE TOWIT SUPREME COURT SEP. TEMBER TERM A D ONE THOUSAND EIGHT HUNDRED AND SEVENTEEN 7ohn S Roby vs affidavit. Alexis Luc Reaume And now Alexis Luc Reaume above named defendant maketh oath that heis advised and verily believes that His Excellency Lewis Cass Esquire is a mate- rial witness for him in this case & that he cann[ot] safely come on to trial without his evidence - He fur[ther] maketh oath that he has made use of due diligence to obtain the attendance of said Lewis Cass Esquire at this term but could not, the said Lewis Cass Esquire, being, as this affiant has been informed and verily believes, now absent on publick business of the United States. And this affiant further maketh oath that he is advised & verily believes that Anthony Butler Esquire is also a material witness for him in said case without whose testimony he is advised & verily believes he cannot go safely on to trial of the same - that the said Anthony has been a long time absent from this Territory in parts unknown to this affiant until within a short [tim]e so that this affiant could not take the depositio[n of the sa]id Anthony - but this affiant further make[th] oath that he has recently been advised that said Anthony is now in Kentucky at which place he believes, before the next term of this Court, with the aid of a Dedimus potestatem of said Court, he can obtain the deposition of said Anthony - and also that he can obtain the evidence of said Lewis Cass Esquire at the same Term And this afliant further maketh oath that he does not make this affidavit for delay merely but because he is advised & verily believes that the said witnesses named are material for him in the trial of this case without whose evidence he cannot safely go on to the trial of said case Subscribed before me ALEXIS Luc REAUME PETER AUDRAIN J. P. D. D SELECTED PAPERS 539 Sworn to & subscribed before me the undersigned [o]ne of the Justices of the Peace in & for said Territory [by] the abovenamed Alexis Luc Reaume this [eigh]teenth day of September A D one thousand eight hundred and seventeen. JAMEs ABBOTt. ALEXIS Luc REAUME Justice of the Peace [In the handwriting of William Woodbridge] [Indorsement] Affidavit of Reaume filed in court 20. Septber 1817. [Case 533, Paper II] [Indorsement] Affidavit of Alexis Luc Reaume filed 23d Septber 18I7. [Indorsement] No 5 Affidavit of Reaume ads. Roby [Case 533, Paper IxI] SUPREME COURT SEPTEMBER TERM IN THE YEAR OF OUR LORD ONE THOUSAND EIGHT HUNDRED AND SEVENTEEN. TERRITORY OF MICHIGAN TOWIT. 7ohn S Roby vs Alexis L Reaume Alexis Luc Reaume defendant in the above case doth further make oath that he hopes & expects to prove by the testimony of Col Anthony Butler, if permitted to obtain his evidence in the premises that John S Roby being in company with this affiant did apply to him said Anthony & in the pres- ence of this affiant did state to said Anthony that he said John S Roby the 540 SUPREME COURT OF MICHIGAN plaintiff in said suit had bought of this affiant to the amount of about six. teen hundred dollars of American Quarter master certificates such as are i said declaration of said plaintiff described & did thereupon exhibit the same certificates to the said Anthony & did request of him to state his (the said Anthony's) opinion of the validity thereof - And this affiant further mak. eth oath that he expects to prove by said Anthony that he the said Anthony did thereupon express & deliver to said plaintiff as his (said Anthony's, opinion that the said paper was good & would be paid with time & this ali. ant further expects by said Anthony to prove the terms of the agreement between said plaintiff & this affiant & that the same were variant from those set out in the plaintiff's declaration And this affiant further swears that he hopes & expects to prove by the testimoney of His Ex' Governour Cass if permitted to obtain his evidence, that said plaintiff applied himself to him, said Govr Cass, & exhibited the same certificates to him & that said Govr Cass being then Governour & an officer of the U States, conversant with such things did state to said plaintiff in reply that he had no doubt but that with proper exertions & when money for such purposes should be provided he said plaintiff would obtain his money therefore - & further, by the confessions of said plaintiff to said Gov Cass that said plaintiff was obligated by his contract with this affiant to use every exertion & pursue every means to procure at his own expense the money appearing due upon said certificates - and further this deponant says not Sworn & Subscribed before me 23 Septber 1817. PETER AUDRAIN ALEXIS Luc REAUME J. P. D. D. [In the handwriting of William Woodbridge] [Case 5 3 3, Paper 15] [Indorsemrnent] Roby vs. Reaume Bill of particulars. Filed in Court Octr 19. I8 I9. SELECTED PAPERS S41 [Case 533, Paper I5] Dr Mr Alexis Luc Reaume in a/c with John S Roby 1814 Dec' 17 To 2 p5 factory Stripe 30, 33 63 Yds @ 6/6 $5i 18 34 .. , 2 pS [factory Stripe] 2734, 273 554 7/6 51 811 S" " I ps [factory Stripe] 28 8/ 28 00 . ' I " black Cambrick 29 Yds Io/ 36 25 " " " 6 [p5] Madrass Hdkfs 20/ 15 00 S" " 4 Shawls 16/ 8 00oo " " " 7 pS wide Ribbon 24/ 21 00 " " " 6 " Narrow 16/ 12 00 " " " Doz fine Combs 28/ 3 00 " " " 2do do 28/ 7 00 " " " I do black Ball 3 00 " " " 3 Psblue Cottons 88/ 33 00 " " " I Pen Knife 87/ c ,c cc '4 Thread 12/ I32 peper - 6/ II 6212 cc " 634 Snuff 52 cts 3 25 S" I Box Windsor Soap 96/ 12 00 " 8 Yds blue Cloth 40/ 40 00oo " " " 2 Bbls Salt $37.50 75 00 " " " I Bbl whiskey 35 Galls 16/ 70 00 " " " 3/ Yds Casinet 48/ 19 5o 3 Skains Silk 2/ .75 " " " 6 Bottles peppermint 4/ 3 00 " " " 2 Doz Quills 8/ 50 24 " 2 Razors io/8 2 6834 29 " I Doz Combs 28/ 3 50 Sc I do do 200 c ccc 2 Shell do 3/ 75 3/ 75 c cc I Cod line I o/ I Doz Combs 20/ 3 75 c c 2 p5 Stripe 5834 yds 6/6 47 6834 " c c I do Check 300 I Bbl whiskey 34 Galls I6/ 68 oo00 _ I Bbl with do 100 542 18I5 Jany 27 " " " " Feby I SUPREME COURT OF MICHIGAN I cc cc cc Qr paper pr order I Bbl whiskey 35 Galls I Bbl with do I Bbl Sugar 2251bs To amt Carried forward i6/ 8/ 3/3 70 I 1 91 801oi 75 00 00 402 2814 Dr To Amt brot forward 1815 8oi0 , Feby "9 cc cc cc cc cc cc tc cc cc cc cc 2 To I Gall whiskey pr order " " 10 Yds Cassimire pr Self 32/ " " 2 Gross large Buttons 4o/ " I do Small " I Doz fine Combs 24/ " " 2 " Do 28/ " " I pS Cotton 2o0 Yds 5/ " " 2 prs mens Shoes 20/ " " I6c" " " I2/ " " 8 " " " 14/ " " 4 'Stripes III Yds 8/ " "io pepper 8/ 3 " 2 Bbls whisky 34. 341 681 16/ " " 2 Bbls with do 8/ 13 " 2 Bbls whisky 342. 343/2, 69 @ 16/ " " 2 [Bbls] with Do 15 " 6' Hyson Tea pr order 28/ 18 " IQr paper pr Do 18 " amt of goods delivered you to be Sold on Commission as pr Invoice " dated 3d Feby J 16 pd St Amour for Boat , , pd 2 Men for Service 16 " Amt of Goods Sold you this day as pr Invoice delivered you J 40 IO 2 3 7 12 5 24 14 III IO 00 00 oo 50 00 00 8II" 00 00 00 00 00 $2 00 120 313 " 49 137 00 2 00 138 00 2 00 21 00 .75 398 00 " " April " June May 321 12 I 00 75 2187 843/4 2534.47'4 3854.604 2431 27 $1422 79'4 deduct Credit Bal due SELECTED PAPERS 543 ssly Cr 1815 C Jany 13 By 6 Army Bills 32/ each $ 24 00 " " " 3 Do do 8/each 3 00 Feby 2 " 34 Yds Casinet 48/ 19 50o S13 " Cash 5o 00 S" " James Audrains Order onQM 600 April 18 " Cash $27. Do $23. 50 o00 " " 39Bu Corn 12/ 58 50 S" Cash recd in your letter 195 00 S" draft on Pyatt 14 00 S" do on Do iM Flour 53 57 " 3 cwt Flour 24 oo00 " Joseph Robidous draft 245 00 " 34 Coons 3/6 14 87 S 8o Musk Rats 2/6 25 00 14 Do Do 2/6 4 87 12 do do 1/8 2 50 S 32 Coons 2/4 9 33 . 44 Do 1/9 9 6232 " I Fisher 4/ 2 Cats 3/6 I 37Y June I6 " Draft on Dousman 1400 00 " " " Do on Crawford 221 12 2 2431 272 By amt carried forward 2431 2712 Cr By amt brought forward $2431.2714 Copy of Note. "For value recd I promise to pay John S. Roby or his order, Two hundred and thirty six dollars forty cents, three months from date interest after - $36.40 Alexis Luc Reaume Detroit i5 Decr 1814 Samuel Abbott" 544 SUPREME COURT OF MICHIGAN [Case 533, Paper 25] [Indorsement] Roby Affdt. on mo. R u for new trial. Reaume filed in Court Nov' 3d 1819. [Case 533, Paper 251 MICHIGAN TOWIT SUPREME COURT SEPTEMBER TERM A D ONE THOUSAN EIGHT HUNDRED AND NINETEEN Roby vs Affidavit. Alexis Luc Reaume In this case William Woodbridge maketh oath that at the last Term Of this Court this affiant did apply to this Court as attorney for the defendant, for an Order that the plaintiff furnish to the Defendant or his attorney a Bill containing the particulars of the said plaintiffs demand in the said case, so that the said deft might know on which count or counts of his Declara. tion the said plaintiff intended to rely & so that the said defendant might know how to shape his defense And this affiant further maketh oath that the motion submitted in the premises was granted the said defendant was ruled to furnish the said Bill of particulars - Whereupon and during said Term Solomon Sibley Esquire attorney for the said plaintiff did during the said Term or immediately after furnish to this affiant the paper herewith presented to the Court, as & for said Bill of particulars & did further state to this defendant that he should rely on the special Count in the declaration contained & on the note, & that the same paper was all the particulars he should or could give And this affiant further maketh oath that defendantin said case was at the same Term ruled at a short day to plead in the said case & given to understand by the Court that a trial would be expected during the said Term - This affiant further maketh oath the defendant in the said case was not present during said Term & this affiant could not & did not have access to or communication with him during said Term And this affiant further maketh oath that on examining the files in the said case, this affiant found that no writ having the legal requisites was ever issued in the said case against said defendant and that said defendant was never right- fully called into Court - whereupon this affiant desiring to have a fair tria SELECTED PIPERS 545 upon the merits in said case, & feeling no wish to avail himself of any pre- vious irregularity, showed the paper purporting to be a writ, but not having the legal requisites of a writ, to the said counsel for the plaintiff & at the same time informed him that would waive said advantage & rely upon general issue plea, if he (said attorney) wished it & would continue said case by consent; - whereupon said attorney did agree to this affiant's proposi- tion, & caused said case by his consent to be continued until this present Term. And this affiant further maketh oath that in the consideration which he gave to said case he expected & believed that counts in said Declaration upon the note therin mentioned & upon the special agreement, would be the only ones relied upon by said plaintiff - & he accordingly prepared his defense, so far as he could prepare it, solely in that view & expectation - and this affiant further maketh oath that he had been informed by the said defendant & also had repeatedly heard said attorney admit, that there was a special agreement between the said parties relative to the subject matter of said suit - And was therefore, not only led into the belief that the plain- tiff would rely upon said special agreement because a special agreement was set out in said declaration & because the said attorney had given to this affant said Bill of particulars but also because this affiant understood & believes the law to be, that there being a special contract not rescinded, it was not competent for the plaintiff to desert the said special contract & recover upon any implied one - And this affiant further maketh oath when the said case was first called up during this Term on a motion for a con- tinuance this affiant had forgotten that the said bill of particulars had been given him, & did not discover them or know that this affiant had them until after the said attorney had filed a new Bill of particulars, which this affiant applied for, after finding upon examining the files that none was there - And this Affiant further maketh oath that he was utterly & totally surprised when on examining said new bill of particulars he found that the said attor- ney for the defendant had therein deserted said special contract & this afliant did believe that it was by mistake that it was done, being intirely satisfied that by the rules of law said plaintiff could not recover upon the general counts in the declaration, & for the purpose of giving to the said plaintiff an opportunity of correcting said mistake, if it were one this affiant mentioned the subject to said attorney, & was by him given to understand that he did not rely upon the said special contract And this affiant further maketh oath that in consequence of the premises, the proper defense of said defendant assumed an intirely new aspect, which this affiant was not, & could not be prepared to meet and that this affiant was consequently alto- gether taken by surprise - And this affiant further maketh oath that he has been advised & verily believes that his client the said defendant is con- fined in Goal for debt or claim of debt on the Island of Michilimacinac, & 546 SUPREME COURT OF MICHIGAN could not at any time during this Term have attended to his said suit her - and further that when the said case was at an unusual hour forced on trial, two or three days after said new Bill of particulars had been furnish viz in the evening of the ultimo - this affiant was so mu fatigued & exhausted by attending the Court during the whole day witho, recess or dinner that it became physically impossible for him properly t attend to said case - wherefore & for other matters in the premises, this affiant maketh solemn oath that he verily believes no fair, just, or lega trial has been had in the premises. - And in behalf of said Defenda: prays that a new trial may be awarded. WM WOODBRIDGE [In the handwriting of William Woodbridge] Sworn to & subscribed in open Court this 3d day of Novr 1819. JAs DUANE DOTY, Clerk. [Case 533, Paper 26] Nov. II. I II. Roby vs Reaume In this case the Defendant moves in arrest of Judt & shows to the cour: here reasons why judgt ought not of right to be entered up upon said ver- dict as follows towit - viz that the declaration by said plaintiff filed is insufficient uncertain & wants form 2nd That the verdict in said case purports to be a general verdict, and yet that one of the counts thereof is uncertain & wants substance 3d That the 4th Count of said Declaration is void & bad in law becauseit states no promise to have been made by the Defendant to the plaintiff also because it does not appear in & by said Count that any promise to pay any sum of money was made by said defendant to any person whatsoever and further that the said declaration is in other respects bad & wants. WM WOODBRIDGE Atty for Deft [In the handwriting of William Woodbridge] Nov. 20. 1819 furnished Mr. Sibley a copy of above. J.D.D. SELECTED PIIPERS 547 [Case 5 36, Paper 2] [Indorsementi 1817. Abbott et al. vs: Thompson [Case 536, Paper 2] TERRITORY OF MICHIGAN TO WIT In the matter of Fames ,lbbott Now imprisoned in the Common Jail of the vsusl Territory, being used as a Jail in & for the Gtussaleto County of Wayne, in 5d Territory of Michigan E'iCreo liak Cine Russell& on said Action instituted William Thompson This "Trespass vi et armis, quare clausum fregit" Damages $8oo Th A1.% 646 Oa txh cjf Sa iJ1~AbbL L .t"1116 bcf -'o iJ~ . thJAbLzJ10Rxlil V i&AibA3 aAz.JL% "(por tho ar- d &u fiazvyof h zasd ma d bytho aid Jan dul 548 SUPREME COURT OF MI CHIGAN torpy &; tha i t i y accidont trucLob Apto th oald thp Bnd ofrtho ur4t f-igndin his0411A;0 ir44ivd~I CapacityAmthathwill upholRad ton nandfihr unjun esidgtedthpmaysthatFiohron tormil ireca ito HaideCas Porusar tieRberthwazint eor& youd tonor atdtheor or ndianl donciltoebydWrecith oiesz &fit coPrisons ofb toht baiforez Abott HinorcbstSart feecruffrin a Commol n cetrdyth inasuch asren thehaebeundeo ined prwithu umbly case.indthasotin tyBound youor ettione iee roft p ay ;ilb lac fiilyt notg NB DetrdintNov h.r181 Theaetundersed ray tatyor oo wlldrecta Wi oaba orsponissuesRblecufortwihtefreyor foor atDthenCourtsorisnian Council ui sdRectingteodisoPioestebogtbfr your HnOfiasteoav eebufeininngJalsicwyseratnsmc asm th odf tyhhve eensociedithsoutjthcUSe.CAndisinrDuftyeBound NBic iDeripae11JB.AlrsdtLaro Novim-~i Please to direct2a writue1o8MDUGL oupoe o ntuceseumgt of h Cattys four defndanserionerse him, bthewRecrs he roeeg of the U S Commissioners ostof the cland undreeriged o hi olduihttpad fishhero w hiselbbottcoplylshi Respectfully GEG MCDOUGALL SELECTED P41PERS 549 TERRITORY OF MICHIGAN TO WIT DISTRICT OF DETROIT Be it remembered that on this first day of November in the year of our Lord one thousand Eight hundred & sixteen, personally appeared before me Peter Audrain, one of the justices of the peace in & for said district of Detroit, George McDougall, Counsel & attorney at Law in the Superior Courts of said Territory, who being solemnly sworn on the Holy Evangelists of Almighty God deposeth and saith that he verily & conscienciously be- lieves that the two foregoing Complaints by him signed in behalf of himself Chas Poupard & Otis Russell Guy Carleton, Eliah Cene Russell and Wil- liam Thompson, are in substance true & that he believes he can prove the same to the satisfaction of the Honbl A B. Woodward, one of the Judges of the Supreme Court of the Territory of Michigan provided sd Judge will investigate the same and further this Deponent saith not Sworn & Subscribed GEO McDOUGALL before me, at my Office in the City of Detroit the day & year first above written [In the handwriting of George McDougall] PETER AUDRAIN Justice of the peace D. D. T. M. MICHIGAN SS. Let a writ of habeas corpus issue on this application returnable in open court on Monday next. WOODWARD One of the judges. Nov. I, 1816. [In the handwriting of Augustus B. Woodward] 550 SUPREME COURT OF MICHIGAN [Case 536, Paper 3] [Indorsement] In the Matter of Otis Russell, Guy Carlton, Elijah Cane Russell. & William Thompson z816 Hab. Corpus [Case 536, Paper 31 TERRITORY OF MICHIGAN WAYNE COUNTY TOWIT SUPREME COURT NOVEMBER 4. 1816. In obedience to the writ of Habeas corpus hereto attached I the under- signed sheriff of said county have herewith the bodies of the said Otis Russell - Guy Carleton, Elijah Cune Russell and William Thompson: And for the cause of their caption and detention, I do here show to your Honours the writ of Capias ad respondendum and the order for bail of the Honourable John R Williams Senior associate Justice of the Honourable the County Court of Wayne County which are in these words to wit "Territory of Michigan Wayne County towit - The United States "of America To the Sheriff of said County - you are hereby com- (L S) "manded to take Otis Russell Guy Carleton, Elijah Cune Russell "and William Thompson, if they may be found within said County "and them safely keep so that you may have their bodies, before the Jus- "tices of our said County Court to be holden at the City of Detroit on the "first Monday of January next, then & there in our said Court to answer "unto James Abbott Esquire in a plea of Trespass vi et armis quare clausumn "fregit to his damage eight hundred dollars and of this writ make due re- "turn - Witness John R Williams Senior Associate Justice of Our said "Court. Detroit the thirtieth day of October One thousand eight hundred "and sixteen Thomas Rowland Clerk. which said writ is duly sealed and signed & on the same the said Thomas Rowland Clerk of said Court has indorsed the words following towit "This action is brought to recover damages for a trespass committed by the de- fendant in breaking plff's close & entering therein, treading down his Grass, & destroying his fishery thereon - Bail is required" and the said order of said Honbie John R Williams Senior associate Justice as aforesaid is in these words towit "It is ordered that Bail be taken to the amount of SELECTED PAPERS 551 "the damages stated by the plaintiff's affidavit towit in the sum of eight "hundred dollars Jn° R Williams "To Thomas Rowland Esqr Asst J. of W.C.Ct "Clerk of the County Court of W.C. Which above mentioned writ was duly committed to me whereupon by vir- tue thereof I did on the 3xt day of October 1816 take the bodies of said defendants and they the said defendants refusing to give good bail & main- prize in the said sum agreeably to the said direction of said Honourable Jus- tice I did by reason thereof & in virtue of the premises detain the bodies of said defendants, for want of Bail as aforesaid & for the causes aforesaid In witness whereof I have hereto set my hand & seal the said 4th Novr I816. Service $ 2:oo00 AUSTIN E WING [SEAL] Mileage :25 Sheriff $ 2:25 [In the handwriting of William Woodbridge] [Case 537, Paper I] [Indorsement] Francois Labadi Esq' vs Appolline Labadi Bill of Complaint filed in the Supreme Court 4th NOvber 1816 PETER AUDRAIN Clk S.C. [Case 537, Paper i] TERRITORY OF MICHIGAN TO WIT To the Honbue the 7udges of the Supreme Court of the Territory of Michigan. The complaint of Francois Labidee Esquire humbly Sheweth. That Francois Labidee Esquire Your complainant made his addresses for marriage to Appoline Rejerdin about the first of March one thousand seven hundred and ninety eight, That on the eighteenth day of June one thousand seven hundred ninety eight, he The said Francois and Appoline were law- fully joined together in holy matrimony by the Reverend Charles Bejens catholic priest of the Parish of Gt Constant, that said marriage was con- summated and they the said Francois and Appoline cohabited together as man and wife, That your complainant is a person of modest industrous and 552 SUPREME COURT OF MICHIGAN virtuous life and conversation, and hath at all times during his residence with her since his marriage behaved himself toward her as a dutiful and indulgent husband. That your complainant was informed shortly after his marriage with the said Appoline, that she the said Appoline had previous to his marriage with her forfeited her character for chastity, that she had led a licentious and wicked life and that a child had been unlawfully begotten of her body, that your complainant mindful of his duties as a husband con- tinued to support cherish and maintain the said Appoline, That your com- plainant was compelled by the unavoidable calls of business to leave mon- treal the place of his residence, for Detroit in the Territory aforesaid That the said Appoline unmindful of her conjugal vow and her duties as a wife hath had adulterous and improper and criminal intercourse, with several persons and hath been by such criminal and adulterous intercourse the mother of illegitimate offspring. That your complainant hath caused public notice to be given in one of the public journals at Montreal of his intention at this Session of the Supreme Court to make application for a divorce from the said Appoline, that said notice was addressed to the said Appoline, re- quiring her attendance at this term of our Supreme court, if she had ought to object why the prayer of your complainant should not be granted. Your complainant therefore prays right and justice to be effectually done and administered to him, and that by the order or decree of this Court your complainant may be divorced from the bonds of matrimony with the said Ap- poline, and that Such other and further relief may be extended and given your complainant, in the premises as to your Honors may seem meet and proper, and as the nature and circumstances of your Complainants case shall require May it please your Honors Francois Labidee, by his Atty CHAs LARNED [In the handwriting of Charles Lamrned] [Case 538, Paper 4] [Indorsement] Notice to McDougall of motion to deliver all papers in his hands, of Richardsons. filed in Court 4. Nov'r I8I6. Copy furnished to G. McDougall by Clk SELECTED PAPERS 553 [Case 538, Paper 4] To George MiDougall Esquire Attorney at Law SIR You will take notice that a motion will be submitted to this Honourable Court tomorrow or as soon after as counsel may be heard that you deliver to George Jacobs agent & attorney in fact of Richard Pattinson all the papers bonds bills & evidences of claim which were deposited with you as attorney at law & also all money which you as such attorney may have collected for said Richard Pattinson You will also take notice That at the same time a motion will also be sub- mitted to the same Honble Court that your name be no longer continued as attorney of said Richard Pattinson in any & all cases in which he is suitor in said Honble Court. Richard Pattinson Nov 4. 1816 By WILLIAM WOODBRIDGE his Att' [In the handwriting of William Woodbridge] [Case 538, Paper 5] [Indorsemnent] Affidavit of George JacobEsqr filed 9. Novber i816 [Case 538, Paper 5] TERRITORY OF MICHIGAN WAYNE COUNTY TOWIT Richard Pattinson vs sur Motion George MAfDougall In this case this affiant maketh oath that according to the best of his knowledge and belief, the said Richard Pattinson heretofor[e] put into the hands of said George as attorney of this Honourable Court, for collection various notes bonds & other evidences of claim against various individuals within said County & elsewhere - and the said Richard did fully & amply by power of attorney legally executed vest in this affiant the exclusive & intire controul of the whole of his said business & all other his business & affairs & this affiant further maketh oath that he has cause to believe that a part of said claims has been collected - And this affiant further maketh oath that he has caused a demand to be made of the said George of said 554 SUPREME COURT OF MICHIGAN money & of the residue of said notes &c & other evidences of claim so as aforesaid put into the hands of said George & that he (the said George) hath hitherto neglected to comply with said demand and this affiant further maketh oath that he has caused to be revoked & annulled all further power of the said George to proceed in the premises Sworn & Subscribed before me GEO. JACOB at Detroit 9. November 1816 PETER AUDRAIN J. P. D. D. [In the handwriting of William Woodbridge] [Case 547, Paper x] [Indorsement] recd i o1Jany 1817 and filed in the Supreme Court Honble Judge Griffin By Mr Gumel try [Case 547, Paper I] Detroit Jany 9th I816 Honble Fudge Griffin DEAR SIR I have the Honor to submit the enclosed unanimous recommendation of the Gentlemen of the Michigan bar, in my favor, addressed to the Honor- able the Judges of the Supreme Court for your consideration, and beg leave to state that Judge Woodward has been pleased to say that he is ready to meet you at the Clerks office, so soon as you can make it convenient to act on the subject; he mentioned this Evening, but thought the day was too far advanced I beg leave to suggest that several of my Clients are suffering, having suits instituted by me in their behalf in the County Court, to which I cannot attend until allowed to practice by Your Honors With the utmost Respect I have the Honor to be, Dr Sir, Your most faithful & ob Sert GEO. MCDOUGALL [In the handwriting of George McDougall] SELECTED PAPERS 555 At a court &c. special- On the motion of G. McD. who presented and filed a written assent from the members of the Michigan bar the suspension ordered by this court on the day of last is rescinded. [Case 549, Paper I] [Indorsement] Declaration Richard Pattinson vs Antoine Lasselle filed in Court 29 Novbr x 816 This action is brought for the use of Daniel Sutherland Curator of the Vacant Succession of Patrick Robertson deceased W" WOODBRIDGE Atty [Case 549, Paper I] TERRITORY OF MICHIGAN TO WIT SUPREME COURT SEPTEMBER TERM IN THE YEAR OF OUR LORD ONE THOUSAND EIGHT HUNDRED AND SIXTEEN. Antoine Lasselle of the said Territory was summoned to answer unto Richard Pattison of Sandwich in the Province of Upper Canada Esquire, in a plea that he render unto him the sum of four Thousand dollars which he owes to & unlawfully detains from said Richard. Whereupon the said Richard by William Woodbridge his attorney de- clares & says, for that whereas the said Antoine Lasselle on the twenty seventh day of September at Sandwich towit at Detroit in the Territory aforesaid, in the year of our Lord one thousand eight hundred and sixteen had and received a large sum of money to wit the sum of four thousand dollars to & for the use of the said Richard, and to be paid to said Richard when he the said Antoine should be thereto requested whereby and by reason of the said last mentioned sum of money being & remaining wholly unpaid, an action hath accrued to the said Richard to demand and have of & from the said Antoine the said last mentioned sum of four thousand dollars. 556 SUPREME COURT OF MICHIGAN Yet though often thereto requested, & particularly on the twenty eighth day of instant september at Detroit aforesaid he the said Antoine, hath not as yet paid the said sum of four thousand dollars above demanded nor any part thereof to the said Richard: But he to do this hath hitherto wholly refused & still doth refuse to the damage of the said Richard in the sum of fifty dollars-to recover which & the debt aforesaid he brings suit &c WILLIAM WOODBRIDGE Att' for plff. Supreme Court Territory of Michigan Sepr Term 1816 And the said Richard puts in his place the above named Wm Woodbridge as his attorney in this suit [In the handwriting of William Woodbridge] [Case 557, Paper 4] [Indorsement] No 4 Boston vs Lacroix Plea. filed in court 29 Septber1 818 [Case 557, Paper 4] Thomas Boston surviving Partner of Lilly & Boston vs Hubert Lacroix And the said Hubert Lacroix by George M'Dougall his attorney comes &c when &c & craves oyer of the said supposed writing obligatory & also the condition thereof, in said declaration mentioned & they are read to him in the words following that is to say Know all men by these presents that Hubert Lacroix of the District of Erie in the Territory of Michigan, was held and firmly bound unto Gilbert Lilly and Thomas Boston of the City of Montreal in the province of Lower Canada in the just and full sum of thirteen hundred seventy three dollars, money of the United States to be paid to the said Gilbert Lilly & Thomas Boston their certain att' their Executors, adms or assigns -To which payt well and truly to be made and done, I bind myself my heirs Executors and administrators by these presents signed with my hand and sealed with my seal at Detroit in the sd Territory of Michigan this Eleventh day of January in the year of our Lord One thousand Eight hundred and Twelve (1812-The SELECTED PAPERS 557 condition of the above obligation is such that if the above Hubert Lacroix, shall on the Execution of this Bond pay down to the said Lilly and Boston or their Atty, the sum of Two hundred forty dollars, and shall Continue to pay on the first day of September in every year for the Term of four years next ensuing the date hereof, the sum of one hundred dollars per annum and on the first day of Sepr which will be in the year of our Lord one thousand Eight hundred and sixteen, the further sum of Eighty Dolls, the aforesd sums being a compromise or composition offered by the sd Hubert Lacroix and accepted of by the sd Lilly and Boston in satisfaction of the said sum of thirteen hundred seventy three dollars in the writing obligatory mentioned, on condition that if default shall be made by the said Hubert Lacroix his heirs Executors or administrators in any of the payments above mentioned at the several and respective times therein limited for the pay- ment thereof, then the whole debt is to survive against the Hubert Lacroix, his Executors and administrators, and neither he nor they are to receive or take any benefit by reason of the condition of this Bond, save only such sum or sums as he or they may actually pay thereon. But in case the condition of this Bond is strictly complied with, the same is to be void and of no effect, otherwise in default thereof it is to remain in full force and virtue - And it is understood that a certain judgment entered up in the supreme Court of the Territory on the twentieth day of September last in favor of the said Lilly and Boston against the said Hubert Lacroix for the sum of Two hundred Eighty seven dolls, nine cents, is part and parcel of the aforesd sum of thirteen hundred Seventy three dollars in the writing obligatory mentioned, and is extinguished by being corporated into this Bond. Signed Sealed & delvd (Sigd) Hubert Lacroix (SEAL) in presence of Sol Sibley (Indorsed) Recd of the said Hubert Lacroix this i i Jany 1812 the said sum of Two hundred and forty dollars Sgd E Brush Aty Which being read & heard the said Hubert the said Hubert says that the said supposed writing obligatory is not his deed & of this he puts himself upon the Country for trial. and the pllff likewise And for further plea in this behalf the said Hubert by the leave of the Court further says, that the said Thomas ought not to have & maintain his action aforesaid against him because he says that he did pay down to the 558 SUPREME COURT OF MICHIGAN said Thomas Boston & Gilbert Lilly to wit on the said eleventh day of January one thousand eight hundred & twelve the said two hundred & forty dollars--& did continue to pay on the first day of September in every year for the term of four years next ensuing the date of said writing the sum of one hundred dollars per annum & did on the first day of Septem- ber in the year one thousand eight hundred and sixteen pay to them the further sum of eighty dollars in the said writing severally mentioned according to the form & effect of said condition to wit at Detroit aforesaid in the said Territory & this he is ready to verify wherefore he prays jud' &c if the said plaintiff ought to have or maintain his aforesaid action thereof against him.&c GEO McDOUGALL Att' [Case 562, Paper 5] [Indorsement] No 4. McDonell vs Hudson filed 20th Sept 18i8 [Case 562, Paper 5] John McDonnell vs Henry Hudson in case The Defendant in the above Action by his Counsel moves the Court that the writ issued in the above action be quashed, Because the deft saith that the said writ of the Pltff. was issued by the Clerk on the 18 January 817 without any precipie being filed by the Pltff to warrant the issuing thereof MCDoUGAL & SIBLEY And because the said writ since the issuing thereof has been altered and made to correspond with a paper said to be filed in sd Cause on the 22d of July 1817. McDOUGALL & SIBLEY [In the handwriting of Solomon Sibley] SELECTED PAPERS 559 [Case 562, Paper 7] [Indorsement] No 8. 7n° McDonnell vs Henry Hudson plea filed 29th Sept 1818 With Drawn & filed the 30th Septr I818 [Case 562, Paper 7] TERRITORY OF MICHIGAN IN THE SUPREME COURT OF THE TERM OF SEPTEMBER A D 1818 John M6Donell vs In Case dams $2ooo Henry Hudson And the Defendant by Geo. McDougall his Attorney comes and defends the wrong and Injury &c and craves oyer of the original writs Precipe & Declaration aforesaid, and they are read to him-which being read & heard, the said Defendant prays Judgment of the said writs, Precipe & Declaration and pleads that there is a variance between the said writs precipe and declaration thereupon, in this particular, that is to say, for that in and by said writs, it is said, that this a plea of trespass on the Case, to the damage of said John as is said Two thousand Dollars, by said writs which issued on the eighteenth day of January one thousand eight hundred & seventeen, when the cause of action was endorsed that "This action is brought to recover one thousand and seventy one Dollars, for goods wares and mer- chandise, sold and delivered, Monies laid out and expended, Money advanced, Money had and received -" but which writs are since vitiated, defaced & altered to conform to a precipe afterwards filed, & the dates in the writs altered to the twenty second day of January one thousand eight hundred & seventeen, and the word Stolen, then apparently interlined, which precipe under oath, states the cause of action to be for goods wares & Mer- chandise, before this time Stolen by the said Defendant and that he is not entitled to any Credit &c - And in the said Declaration aforesaid, founded upon the said Writs & precipe it is complained That in and by the said writ the Plaintiff alledges, that he hath sustained damages to the amount of Three Thousand Dollars, thereby making a manifest variance between 560 SUPREME COURT OF MICHIGAN the Writs and Declaration in said action, as will appear on inspection of said writs, and Declaration, as the said Henry avers - whereupon the said Henry prays Judgment, of the writs & declaration aforesaid and that the same for the variances aforesaid may be abated, & the said Henry thereof and therefrom discharged, from making further answer MCDOUGALL & SIBLEY for Defendant [In the handwriting of George McDougall] [Case 564, Paper 2] TERRITORY OF MICHIGAN - TO WIT THE UNITED STATES of America to John L. Leib chief justice, Henry J. Hunt, and John McDonnell associate justices of the County Court of the County of Wayne: Because in the record and proceedings, and also in the giving of judgment in a plaint which was before you by indictment, wherein the United States of America were Complainants, and Henry Hudson respondent, manifest error has intervened to the great damage of the Said Henry Hudson, as by hi[s] Complaint we are informed: We being willing that the error, if any there be, Should in due manner be Corr[e]cted, and full & Speedy Justice done to the parties aforesaid in this behalf, do Command you that if judgment be thereupon given, then you Send to our judges of our Supreme Court of our territory of Michigan distinctly and openly, under your Seal the record & proceedings of the plaint aforesaid with all things concerning the Same, and this writ, So that they may have them on Monday the fifteenth day of September, instant at the City of Detroit, that the record & procedings aforesaid being inspected, we may Cause to be further done thereupon for correcting that error what of right, and according to law ought to be done Witness Augustus B. Woodward presiding Judge of our Supreme Court the fifteenth day of September one thousand eight hundre Fifteen [seventeen] [SEAL] PETER AUDRAIN - Clk.S.C.T.M. [In the handwriting of Peter Audrain] [Indorsement] WAYNE COUNTY TOWIT In obedience of the command of the within writ, the record and proceed- ings therein mentioned, as full and entire as the same remain, in our said Court are herewith returned By the Court THOMAS ROWLAND Clerk [In the handwriting of Thomas Rowland] SELECTED PAPERS [Attached to the foregoing] [Indorsement] 1817. Copy of the Records in the case of the United States vs Henry Hudson N° 191 filed in court 22d Septber 1817 TERRITORY OF MICHIGAN TOWIT COUNTY OF WAYNE COUNT[Y CO]URT OF WAYNE COUNTY. Copy of the records in the case of the United States, .Monday Ih 7uly vs Henry Hudson N o 191 1817 On Indictment for receiving Stolen goods &c United States By the oaths of Joseph King, Thomas Willit, William vs Bucklin, Aaron Thomas, Junior, Henry B. Brevoort, Henry Hudson Peter Desnoyer, John S. Roby, John McDonell, Robert 191 Smart, Conrad Ten Eyck, Reuben Kelsey, Louis Chapaton, Benois Chapaton, Louis Moran, Charles Goin, Francis St obein Jaquez Campeau, Antoine Beaubien and Gabriel Godfroy Junior, good and lawful men of the County of Wayne, sworn and charged to enquire for the United States and for the body of said County of Wayne it is presented, that Henry Hudson late of Detroit in the County of Wayne and Territory of Michigan, Tavern keeper on the thirtieth day of November one thousand eight hundred and sixteen, with force and arms at Detroit in the County of Wayne, and Territory of Michigan, feloniously did buy and receive seven barrels of salt, of the goods and chattels of one Shubal Conant then lately before stolen taken and carried away, by one Michael Cronin, he the said Henry Hudson then and there knowing the same to have been so stolen against the form of the Statute in such case made and provided, and against the peace and dignity of the Territory of Michigan and of the United States. MICHIGAN TERRITORY WAYNE COUNTY TOWIT - COUNTY COURT OF WAYNE COUNTY TOWIT - JANUARY TERM IN THE YEAR OF OUR LORD ONE THOUSAND EIGHT HUNDRED AND SEVENTEEN, United States Territory of Michigan vs Henry Hudson upon Indictment - plea And now towit on the fourth day of March of the year aforesaid, Henry Hudson being here in his own proper person, as heretofore, to answer to the matters charged in the premises against him, and having had oyer of the said supposed Indictment, for plea in this behalf saith, that the said supposed Indictment ought to be 562 SUPREME COURT OF MICHIGAN quashed, and the said Henry thereof and therefrom discharged; because he says that the said Bill, purporting to be a bill of Indictment, was not found a true bill, by any regular and legal grand Jury, duly summoned and con- vened by virtue of any writ of process of venire facias, or other process whatsoever or any order of said Court according to the due course of law- but that the same bill was presented to this Honourable Court, by one Henry B. Brevoort, for himself and in behalf of a number of persons, promiscuously and casually attending this Court, without process of venire facias or other proper authority or warrant of this Court so to do, by reason whereof, the said Henry saith, that the bill aforesaid and the finding thereof is irreg- ular defective and void in law, all which the said Henry is ready to verrify by the Records of this Court in the premises, before this Court remaining, wherein and whereby said matters manifestly appear - Wherefore the said Henry prays Judgment &c and that the said bill of Indictment and pro- ceedings aforesaid in the premises may be quashed, and the said Henry be therefrom discharged without further day or answer. And the United States Territory of Michigan by Charles Lamrned who prosecutes in their behalf, say that for any thing above set forth in the plea of the said Henry Hudson they ought not to be barred of their said prosecu. tion against him and of this they pray Judgment of the Court The Court overrule the motion of the said Henry Hudson, as set forth in his plea aforesaid. And afterwards towit on the fourteenth day of July one thousand eight hundred and seventeen at Detroit aforesaid, here comes the said Henry Hudson in custody of the Sheriff, and being brought to the bar in his own proper person, and being demanded of and concerning the premises, how he will acquit himself saith he is not guilty, and thereof he puts himself upon the Country, and Charles Larned Attorney General who prosecutes for the United States doth the like, whereupon the sheriff of the County of Wayne is commanded to cause to come before the Court twelve good and lawful men of the County of Wayne, to recognize upon their oaths whether the said Henry Hudson is guilty in the premises as above specified or not guilty, because as well the said Charles Lamrned who prosecutes for the United States as the said Henry Hudson, put themselves upon that Jury, and the Jurors of that Jury by the Sheriff empannelled and returned towit Alpheus Williams, Elisha Harrington, Robert Abbott, Henry Conner, Jacob Visgar, William Meldrum Warren Howard Abraham Cook, Gideon Morgan, John Stockton, John Grant and William Little, being called come, and being elected tried and sworn, the truth to speak of and concerning the premises, upon their oaths do say that the said Henry Hudson is guilty of the premises aforesaid on him above charged, as by the Indictment aforesaid is above supposed SELECTED PAPERS 563 during the pending of the Issue aforesaid, Henry Hudson moved the Court, that the testimony of Michael Cronin be rejected and not suffered to go to the Jury on the ground, that by law it is not competant that an Accessory shall be tried until after the principal is first convicted. The Court overruled the motion of the prisoner. And afterwards towit on the nineteenth day of July one thousand eight hundred and seventeen, the said Henry moves the Court for a new trial for the following reasons towit first that the verdict in the said case is contrary to evidence, second that the said verdict is contrary to law, third that the pannel of petit Jurors was defective, and not conformable to the agreement of the parties, fourth that the act purporting to be a statute under which he stands indicted, has not the force of law, having been enacted by an author- ity not duly qualified, as required by the ordinance of congress relative to its Territories, fifth that the letter and spirit of said statute is contrary to the rights granted by the second article of said ordinance The Motion of the Prisoner for a new trial as above set forth was over- ruled by the Court. And afterwards towit on the ninth day of august one thousand eight hundred and seventeen, the said Henry Hudson moves the Court, for an arrest of Judgment on the following grounds towit - first because the said Indictment concludes against the peace and dignity of the United States, - second because said Indictment concludes against the peace and dignity of the Territory of Michigan - third because the said Indictment is uncertain in this that it does not appear whither the same concludes against the Statute of the United States or against the Statute of this Territory - fourth because the caption of said indictment is vague irregular and uncer- tain fifth because it is not stated that the offence charged was within the Jurisdiction of this Court - sixth because it is not stated when the articles alledged to have been stolen were stolen - seventh because the Indictment is otherwise uncertain double and void - eighth because it is therein stated that the statute is made and provided, and does not state that the same was adopted and published - ninth because the act purporting to be a statute is not adopted nor made by any authority qualified under the ordinance of Congress, of seventeen hundred and eighty seven, for the government of the Territories north west of the Ohio river, and in its letter and spirit the same alledged Statute is contrary to the rights secured by the second article of said ordinance - tenth because the return of the Sheriff of the venire facias for the Petit Jury is deficient and irregular, because one of the Jurors on said venire named was not returned - eleventh because the offence in said Indictment is described and stated to be a felony The Court overrule the Motion in arrest of Judgment, in the above case. 564 SUPREME COURT OF MICHIGAN The Court proceeded to pass sentance upon Henry Hudson in the words following towit "Henry Hudson, the Court sentance you to an Imprison. "ment at hard labour for and during the period of three years, to be corn- "puted from the seventeenth day of June one Thousand eight hundred "and seventeen, to pay a fine of three hundred dollars, to the Territory, "and the costs of prosecution, and to remain imprisoned until this sentance "is complied with" TERRITORY OF MICHIGAN TOWIT COUNTY OF WAYNE ) WAYNE COUNTY COURT JUNE TERM 1817. [SEAL] I do Certify that the above is a true copy of the Records of said Court, in the case of the United States vs Henry Hudson No 191 Given under my hand and the seal of said Court, Detroit September the seventeenth A.D. 1817 THOMAS ROWLAND Clerk [In the handwriting of Thomas Rowland] [Indorsement] filed 22d Septber 1817. [Case 564, Paper 3] Territory of Michigan ] COUNTY COURT JUNE TERM vs upon Indictment. Henry Hudson No 19 A D 18 17. Be it remembered that the demurrer to the Plea of the Defendant having been sustained, the said deft having afterwards pleaded over not guilty, & the said case coming on to be tried, the said defendant moved the Court that he might be permitted to challenge four of the Jurors that had then before been called but who had not yet been sworn in the case without showing any particular cause of challenge, as alledged by the Deft Counsel to be heretofore practised - whereupon the said Court towit the Honbe J L Leib Esquire Chief Justice of said Court & the Honble J McDonell Esquire associate Justice thereof overruled the motion of said Defendant. And afterwards during the trial of the same cause before the Court aforesaid & the Jury the attorney for the Territory having read said Indictment offered in evidence the testimony of S. Conant, for the purpose of proving that said salt in said Indictment mentioned had been stolen, & that the SELECTED PAPERS 565 same was afterwards found in the possession of said defendant whereupon it was objected by the Counsel of the defendant that it was not competent to introduce said evidence until the said Attorney for the prosecution should first have proved the regular conviction of the said Cronan in said Indict- ment mentioned, of having stolen the said salt in said Indictment mentioned alledging that it was not competent to prove the alledged fact of the Stealing by Cronan in an Indictment against the defendant, unless by the Record of some Court of such conviction: - whereupon the said Court towit the said J L Leib Esquire Presiding Justice of said Court and the said John McDonell Esquire associate Justice overruled the said objection and admitted the evidence offered by the said attorney General - & further in the premises decided that it is not in any wise necessary to show in evidence the convic- tion of the person in said Indictment named as having been guilty of the same stealing, in order to convict the Defendant of receiving & buying said articles in said Indictment mentioned - but that it was competent for the prosecution to prove the previous fact of stealing by other evidence, than the Record of the conviction of such principal offender Whereupon the said matters not appearing of record, the said Justices are prayed that they sign this Bill containing the matters & exceptions aforesaid which they accord- ingly do this 15th July 1817 JoHN L. LEIB [SEAL] J M[c]DONELL [SEAL] [In the handwriting of William Woodbridge] [Case 564, Judge MCDonell's Opinion] (We have been favored with the following opinion of his Hon. Judge M'DONELL, relative to the trial of Henry Hudson, which will, no doubt, be interesting to many of our readers.) The United States vs. Henry Hudson. This indictment charges the prisoner that he feloniously did buy and receive seven barrels of salt, of the goods and chattels of Shubael Conant, stolen and taken by one Michael Crenan, he, the said Henry Hudson, knowing the same to have been so stolen, against the form of the statute in such case made and provided, &c. and upon which indictment the said Henry Hudson was tried and found guilty by a jury of his country. A motion was made by the counsel for the prisoner for a new trial--on which motion argument was heard and overruled by the court. The motion now under consideration is in arrest of Judgment. 566 SUPREME COURT OF MICHIGAN The first objection taken by the counsel for the prisoner is, that felony cannot be indicted as a misdemeanor, neither can a misdemeanor be indicted as a felony-To this I would observe, that the receiving of stolen goods, knowing them to be stolen, is only a misdemeanor at common law, and an affront to public justice (but by different British statutes afterwards en- acted, which have no bearing or force in this Territory) make the offender accessory to the theft and felony-Felony in the general sense of the law comprises every species of crime.-Therefore a man that commits a crime, in violation of the laws of his God and his country, is guilty of a felonious offence. It is true our territorial statute makes the receiver of stolen goods, knowing the same to have been stolen, guilty of a high misdemeanor, and on conviction be punished by fine not exceeding 300oo dollars, or imprison- ment at hard labor not exceeding three years, or both. The acceptation of the term misdemeanor is undoubtedly a crime, and a crime, when com- mitted knowingly, is done with a felonious intent. The celebrated sir Wil- liam Blackstone justly observes, in his commentary on the laws of England -"Crimes and misdemeanors are mere synonimous terms, tho' in common usage, the word crime is made to denote such offences as are of a deeper dye while smaller offences, and omissions of less consequence, are comprised under the gentle name of misdemeanors only; that in favor of life great strictness has at all times been observed, in every point of an indictment. Sir Matthew Hale, indeed, complains that this strictness is grown to be a blemish, and inconvenience in the law, and the administration thereof-for that more offenders escape by the over easy ear given to exceptions in in- dictments, than by their own innocence, and many times gross murders, bur- glaries, robberies, and other crying and heinous offences, remain unpunished by these unseemly niceties, to the reproach of the law, the shame of the gov- ernment, to the encouragement of villainy and to the dishonor of God. And yet, notwithstanding this laudable zeal, no man was more tender of life than this truly excellent great judge. Another objection is, when a statute describe an offence, the very words of the statute must be pursued, and if it be against the United States or the territorial statute the indictment is laid, that it is necessary to recite that statute. To this objection I shall observe, that all statutes of the United States, that have relation to this Territory, are binding on the inhabitants thereof, or within its jurisdiction. And in like manner so are all statutes adopted and published by the Governor and Judges agreeably to the or- dinance of Congress creating this territory into a distinct government, and a component part of the government of the United States. I believe it to be a settled principle; that there is no necessity for an indictment, on a public statute, whereupon it is grounded, to recite that statute. For the Judges must ex offcio take notice of all public statutes, or if there be any SELECTED PAPERS 567 more than one by which the indictment may be maintained, they will go upon that which is most to the government's advantage. Another objection is, that an indictment should state when and where the original offence was committed. To this objection I shall observe, that I believe it also to be a settled principle, that an indictment against the receiver of stolen goods need not allege time and place to the fact of stealing the goods; it is sufficient if they be alleged to the fact of the receipt. These are all the material points in the exceptions, that I think are necessary to be noticed. The arguments urged in support of the arrest of judgment, by the prisoner's counsel, merits approbation for the diligence and integrity manifested to their client, and the decorum and respect shewn to the court during this arduous session and also to the brilliant display of professional talents-but which are more ingenious than solid in the present case-when the groundwork is unsound, the most magnificent superstructure is in danger of falling. It will be but doing justice to mention that the Attorney-General has conducted this prosecution with patience, candor and ability, which reflect honor on him as a man and credit as a public prosecutor. I have made these observations after examining the subject under consideration with atten- tion. I am well aware that my ideas are not delivered with that precise, technical, lawyer-like manner, that is customary to a professional charac- ter-it is merely the result of a close examination of the subject. I give it therefore as my opinion, that the indictment is good, and that the rule ought to be discharged. [Reprinted from the Detroit Gazette, Aug. 29, x8171.] [Case 567, Paper I] Russel vs James Henry's Heirs & Allii. in chancery To the Defendants in this case or their Solicitors &c. Please take notice that I shall proceed to take the Deposition of Mrs Elizabeth Chittenden (a sick & infirm witness at the House of Cap' James Chittenden on Grosse Isle within the County of Wayne by & before John A. Rucker Esq on Saturday the second day of October 1824. between the hours of eight oclock A M & 4 oclock P.M. of the said day to be used in the said case & especially in the hearing of the case as between the Complainant & Solomon Sibley Esquire one of said Defendants. WOODBRIDGE for Compt Detroit Sepr 30, I824 This day Sepr 30, 1824 a true Copy of the above served upon me. [In the handwriting of William Woodbridge] 568 SUPREME COURT OF MICHIGAN [Case 567, Paper I6] [Indorsement] I 1820 Russell vs Sibley Adm' &c Retd & filed I5 Oct 1824 JER. V R TEN EYCK Depy Clerk I have served the within personally oct 15. 1824 fees $.i8Y4 SAML SHERWOOD Dy sheriff [Case 567, Paper 16] TERRITORY OF MICHIGAN THE UNITED STATES f America, SUPREME COURT - SS to on P Sheldon to john P Sheldon IN CHANCERY We command you, that laying aside all and singular your [sEAL] business and excuses you be and appear before the Judges of the Supreme Court of the Territory of Michigan sitting in Chancery at the Council House in the City of Detroit forthwith, then and there to give evidence in a case to be tried between William Russell Com- plainant and Solomon Sibley Administrator et alii; Defendants, and bring with you a number of the Detroit Gazette of the date of the 31St of July 1818 and also the same Gazette published the three Successive weeks Hereof fail not, under penalty of what may befal thereon. WITNESS James Witherell Presiding Judge of the Supreme Court aforesaid, at the City of Detroit, on the fifteenth day of October one thousand eight hundred and twenty four J. KEARSLEY. Clerk. SELECTED PAPERS 569 [Case 569, Paper 12] [Indorsement] N° 13 Supreme Court Sepr 28. 1820 U. States vs H. Hudson Notice of Motion to Quash. [Case 569, Paper 12] To the Attorney General of the Territory of Michigan SIR, You will please to take notice that I shall move the Court as soon as counsel may be heard to quash the several Indictments now pending against me in the Supreme Court of the Territory of Michigan for the following reasons towit I That it does not appear in and by said Indictments nor the captions thereof nor by the Record that they were preferred before any Court of this Territory competent to receive the same 2. That it does not in & by the premises appear that any competent grand Jury passed upon or found the same 3. That the several offences in said several Indictments charged, are not charged to have been committed at any definite time or times certain 4. That said several supposed offences are not set out & discribed in that certain & definite manner which the Laws of the land require 5 That said several charges in said several Indictments set out are re- pugnant & inconsistant 6 That said Indictments are otherwise uncertain & indefinite & are de- fective in substance & in form 7th That the Statute against which said supposed offences are charged to have been committed has been repealed by competent authority wherefore no judgment can ever be legally & of right rendered against said defendant Supreme Court Sepr Term 1820. for Henry Hudson SIBLEY & WOODBRIDGE Attors 570 SUPREME COURT OF MICHIGAN [Case 574, Paper 3] [Indorsement] No 3. No Younglove vs Reume. Deposition of Robert Dixon filed 25th Sept 1818 [Case 574, Paper 3] IN THE SUPREME COURT IN THE TERRITORY OF MICHIGAN-OF THE TERM OF SEPTEM. I818 Ezra Younglove vs Trespass asst & Batty and false imprisonment. Charles Rheaume Robert Dickson an inhabitant of Upper Canada being duly sworn accord- ing to law deposeth and says That he was in the month of December in the year one thousand eight hundred and sixteen at Green Bay, now within the said Territory of Michigan, that he has a perfect knowledge that the plaintiff in the said month was imprisoned in the Fort at the said Green bay by the order or warrant of the defendant, who then was acting as a Justice of the peace, whether with or without authority this deponent is ignorant-That this deponent saw the plaintiff in his imprisonment and offered him releif. That the defendant confessed to this deponent that the plaintiff was imprisoned by his authority. That the plaintiff was in prison several days but the precise number this deponent does not recollect Question-When Deft. confessed that plff. was imprisoned by his (Deft's) authority, did he state what that authority was?-Did he state he was Justice of the peace at that time?-What was the cause of the commitment? How long has Deft. acted as Justice in that Country?-Please state par- ticularly the whole of the conversation between you & Deft. when he con- fessed that plff. was imprisoned by deft's authority. I only Know that deft acted as justice of the peace during my residence at Green Bay which was upwards of four months I do not remember that the deft Stated the cause of the Commitment The only conversation that passed was my offer to assist him if in my power SELECTED PAPERS 571 I remember that the deft stated that he had confined Mr Younglove, but did not say by what Authority he did so I do not recollect any thing further than I have already stated R DIcKSON Sworn in open Court September the 22nd 1818 PETER AUDRAIN Clk S.C. [Case 575, Paper i] [Indorsement] No MDougall & Poupard vs H' De Gerdin admr of Lapierre reasons to reverse Judgt & decree [Case 575, Paper I] MICHIGAN TERRITORY SUPREME COURT OF TERRITY Geo. McDougall and Charles Poupard dit Appeal from Decree tHyS Des Gerdin, administrator Register &C entered &C of john B. Alloire Dit Lapiere And the sd Hysth Des Gerdin Admr &W appellant, comes and says, that the Decree above by the Register entered, & appealed from, by the sd Francis, ought not to be confirmed, But that the same ought to be reversed and annulled by the Judgment of this Court I Because said Decree, does not follow or conform to the agreement, entered into in writing betwen the said Alloire, deceased and the said Poupard, mentioned in the Petition & 2 Because other and irrevelent matter, not mentioned in such agreement in writing, is introduced into and made part of the decree 3d Because, George McDougal Esqr is made party in said Judgment and Decree, altho no contract in writing or privity of Contract, was ever made or existed, betwen the said Alloire, deceased & the sd George McDougall, suft to found a decree of Judgement on. 572 SUPREME COURT OF MICHIGAN 4. Because, the interest and rights of the minor children, Heirs at Law of said Alloire deceased, are wrongfuly sacrificed by said Decree and Judgt 5. Because the decree is founded on an ex parte Survey of the Land men. tioned in sd Judgment, of the making whereof no notice was ever given the sd Francis Admr Because, in the proceedings before the sd Register and in the passing the decree and judgment there is manifest error. Wherefore the sd Francis Prays Judgment and that the Judgt and decree above may be reversed annuled and set aside &C. SoL SIBLEY Aty for Appellant. [In the handwriting of Solomon Sibley] In nullo est Erratum Poupard & MCDOUGALL Complainants [In the handwriting of George McDougall] [Case 590, Paper 3] [Indorsement] The United States of America to 7ohn McDonnell & Ann MYDonnell & others writ of injunction I have served the within on John MCDonell, Anne McDonell, John L Lieb Thos Rowland, and Chas Lamrned April 28th 1818 Service on J McDonell $2.00 Mileage 6Y do on Anne MCDonell 2. 64 do on J L Lieb 2.I8Y4 do on T Rowland 2 64 do on Chas Lamrned 2. 64 $Io.43/ AUSTIN E WING Sheriff SELECTED PAPERS 573 [Case 593, Paper 31 TERRITORY OF MICHIGAN-TO WIT- THE UNITED STATES of America to fohn McDonnell of the County of Wayne, in the Said territory, Esquire, and Ann, your wife, and to John L. Leib, and Thomas Rowland Esquires, Justices of the peace, in and of the Same County and territory, and to all & Singular his, her and their Counsellors, attornies, Sollicitors, and agents; and to all Constables, or other officers of them the Said Justices, GREETING WHEREAS it has been represented unto us in our Supreme Court Sitting in Chancery on the part of Charles Vermet and others complainants that they have lately exhibited their bill of Complaint into our Said Court Sit- ting in Chancery against you the Said John McDonnell, and Ann McDonnell & defendants to be relieved, touching the matters therein Contained, and especially touching a Certain process of forceable detainer, or by what Soever name, the Same may be Called, by you Sued out and obtained by the Said Justices, whereby, and by reason of the proceedings thereon had there is design that the Said Complainants unjustly & illegally evicted from a certain freehold, of which Said Complainants are Seized & possessed, and further that you unjustly, as is alleged, prosecute the Said Charles at law touching Said matters; We therefore, in Consideration of the premises, as aforesaid, do Strictly enjoin and Command you the Said John McDonnell, and Ann McDonnell, and all and Singular your agents, attornies Coun- sellors, and also you the Said John Leib, and Thomas Rowland, Esquires, jutsices as aforesaid, and all and Singular the Constables, and other officers of your Court by what Soever Style, or names Called, and all, and every one of you, under the penalty of what may befall thereon, to you Severally, that you, and every one of you, do from henceforth altogether, absolutely desist from proceeding upon Said process and forceable detainer, or by what Soever other name the Same may be Called, and upon any and every judg- ment, order, an decree thereon rendered by you the Said justices, and upon all and every writ, or writs of restitution thereon by you the Said justices, or either of you awarded upon, or under Colour of Said process or judgment; and that you, and every one of you do absolutely desist from all manner of proceedings at law against Said Complainants, or any of them, touching any of the Matters in Said bill Complained of, untill our Said Court Shall make other order to the Contary. WITNESS Augustus B. Woodward, presiding Judge of our Said Court Sitting in Chancery, Detroit the twenty Eighth day of April one thousand Eight hundred Eighteen. PETER AUDRAIN SEAL] Clk. S.C.T.M. 574 SUPREME COURT OF MICHIGAN [Case 593, Paper I] A. Copy At a Court of the Register of Probate for the District of Monroe holden on the thirty first day of July in the year of our Lord one thousand eight hundred and Eighteen before the Hon. Isaac Lee was presented the petition of Thomas Caldwell in right of his wife Nannette Caldwell late Nannette Lasselle daughter of and heir at Law of James Lasselle late of River Raisin in the Territory of Michigan, deceased, and as Prochin Amy or next friend of Julia Lasselle and James Lasselle minor children and heirs at Law of the said James Lasselle deceased-which petition was in the words following Towit here follows the petition at Length To the Worshipful Isaac Lee Esq Register of Wills &c, in and for the Judicial District of Erie in the Territory of Michigan-The petition of Thomas Caldwell in right of his wife Nannette Caldwell late Nannette Lasselle daughter and heir at Law of James Lasselle Esq late of River Raisin in said Territory, deceased, and as Prochin Amy Proximus Amicus or next friend of Julia Lasselle and James Lasselle minor children and heirs at Law of said James Lasselle, deceased, humbly shews and gives your Worship to be informed-That on or about the last day of November in the year of our Lord one thousand eight hundred and fifteen the said James Lasselle the much respected Father of said Nannette Julia and James deceased, leaving as is said a very large and valuable estate, and your peti- tioners his heirs at Law, That on the Seventeenth of June, in the Year of our Lord one thousand eight hundred and Sixteen, Francis Lasselle brother of said James Lasselle deceased was appointed Administrator to the Estate of the said James by letters duly granted by George McDougal Esq then Register of District of Erie now the District of Monroe- Your petitioner further states that the Mother of the said Francis together with his brother Anthony executed bond for the faithful performance of his trust- Your Petitioner now humbly states to your Worship that the said Francis has been guilty of gross and wicked conduct and mismanagement respecting said estate-Your Petitioner is advised and verily believes that a just and true invantory of said estate was not taken and presented to the apprizers but that a large amount of property is imbezzled and has been converted to the use of the said Francis which was not invantoried and which was the rightful property of the heirs of James Lasselle deceased That papers of great value relating to the disposition of said Estate have been destroyed by the said Francis which he the said Francis has no right to destroy and which was done with a wicked intent to injure said heirs of James Lasselle- SELECTED PAPERS 575 Your Petitioner further states that he is informed and verily believes that the said Administrator has been guilty of gross and unwarrentable waste and mismanagement, that he has suffered the property of the said James to decay and go to ruin for want of even ordinary care and attention, that farms belonging to said estate have been allowed to run perfectly wild orchards and buildings and fences to go to ruin - Your Petitioner further states that he is advised and verily believes that a large amount of money and other personal property of said estate has converted by the said Francis to his own use without any account and in a wicked and fraudulent man- ner- That at an Auction of personal property belonging to said estate Your Petitioner is advised and verily believes that fraud and collusion respecting said Auction and injuries to the rights of the heirs were prac- ticed to a great degree. Your Petitioner further states that a long time has elapsed since the death of the said James that the estate is yet unsettled and that the said Francis the Administrator is not disposed and is wholly incompetent to settle said estate that he is allowing it daily to waste and decay without the least exertion to preserve or to close its important con- cerns- That the said Francis has repeatedly declared that there would be nothing left to the Heirs when your Petitioner is advised and verily believes that with skillful and proper management they the sd Heirs would inherit a very large amount of property Your Petitioner further states that the Francis having converted the personal property to his own use is now en- deavoring to sell of the real estate beloning to said Heirs for the purpose more completely of depriving said Heirs of every vestage of their inherit- ance. Your Petitioner further states that he is advised and verily believes that the bonds given to the former Register of Erie are not sufficient because your Petitioner is informed and verily believes that at a future day it will be made to appear that a great proportion of the property held by the said Anthony Lasselle or of the bondsman of the said Francis is held by the said Anthony in trust for the heirs at Law of the late James Lasselle deceased and that the destruction of the vouchers of said fact can at a future time be proved Your Petitioner further states that he is informed and verily be- lieves that the said Francis entirely neglects and disregards the interest and welfare of the heirs at Law of said James Lasselle Contrary to his oath as administrator and to the near relationship between the heirs at Law of said James and the said Francis that the said Francis wantonly willfully and wickedly disregards their interest and the interest of said estate and that he is conspiring with persons unknown to defraud said Heirs - Your further states as he is advised and verily believes that a long time since sd estate of James Lasselle deceased should have been settled but that the said Francis the Administrator has not settled said estate and is wholly incompetent so to do but your petitioner is advised and verily believes that said estate is 576 SUPREME COURT OF MICHIGAN rapidly wasting and will continue so to do so long as said Francis shall have management thereof- Your petitioner further gives your Worship to under- stand that the said Francis has not rendered a just and true account of his proceeding and that he will not but that the business is in a wild unsettled situation and that the property of the Heirs at Law of the said James Lasselle is rapidly wasting away and will continue so to do so long as the said Francis is connected therewith - Your Petitioner further states and gives your Worship to understand that the evidence of the estate of Anthony Lasselle security of the said Francis is either in the hands of said Anthony or sd Administrator or has been destroyed - Your petitioner further States to your Worship that he is advised and verily believes that the said Francis Administrator has been guilty of unfaithful Administration in consequence the Heirs at Law of said Estate and the interests of the just Creditors are greatly damnified and injured - Your Petitioner therefore States to your worship that the most imperious necessity compels him to adopt such a course as the Law and Justice point out-He therefore in right of his wife as heir at Law of said James Lasselle deceased and as the Prochin Amy Proximus Amicus or next friend of Julia Lasselle and James Lasselle infant children of said James Lasselle deceased humbly prays your Worship that the letters of Administration heretofore granted the said Francis Lasselle by the Register of the District of Erie now the District of Monroe may be revoked annulled and set aside as having been granted to a wasteful and unfaithful Administrator - Your petitioner further humbly prays your worship that an Administrator upon said estate of said James Lasselle deceas'd may be appointed who will faithfully administer who will not be guilty of waste or mismanagement but who can and will account and who is able competent and willing that said estate should be settled upon principles of Justice and who will conduce to the interest of the creditors and Heirs of said estate - And your petitioners as in duty bound will ever pray Dated at Frenchtown County of Monroe and Territory of Michigan this third day of August in the year of Our Lord one thousand eight hundred and Eighteen Thomas Caldwell in right of his wife Nannette Caldwell late Nannette Lasselle and as Prochin Amy of Signed Julia Lasselle Jaques Lasselle A copy of the said petition and notice to the said Administrator Francis Lasselle was ordered to be made and served on the said Administrator and summons issued to the said Administrator to appear before the Sd Register SELECTED PAPERS 577 if he see cause on the ioth of August at Io Oclock to answer to the foregoing petition which were returned served the 4th of Augst 1818 Signed James Wyman Dpt Shff. August IOth 1818 Appeared this day Thomas Caldwell the petitioner by his Council and also Francis Lasselle Respondent to the above petition by his Council. The respondent entered a plea to the Jurisdiction of the Court which after argu- ment of Council was over-ruled and the respondent conceiving himself agrieved by the decision of the Court Claimed an appeal to the Supreme Court on the next term to be holden at Detroit on the third Monday of Septr next - The court then adjourned for one hour The parties again appeared and an exception was taken by the Council for the Respondent to admission of Testimony except that which related to the charges against the Administrator for neglecting or refusing to account on the ground that no cause by the statute could be shown for the revoka- tion of Letters of Administration except those two The Court then adjourned till the IIth Aut I818 at Io Oclock A.M. when the parties again appeared and the Testimony was gone through in support of the Charges in the petition and no testimony being offered by the Re- spondent, after argument of Council [This paper is incomplete.] [Case 6oo00, Paper 21] [Indorsement] Opinion - Copy. [Case 6oo, Paper 21] (Copy) On Wednesday, the 14th December, the Commissioners met at i i. Oclock. A.M. present Gov Hull, John Griffin & James Witherell.- Ordered, that the Attorney General of this Territory, be requested to lay before this Board, in writing, his opinion, in whom the fee of the Lots now is, in the City of Detroit, which were deeded by the Governor & Judges of this Territory-as Commissioners, under the Act of Congress the 21st April 18o6, to the president, Directors & Company of the Detroit Bank.- on Thursday, 22 Decr 18o8. Pursuant to the order of the 15th Dec. I8o8. the Attorney General re- turned to the Commissioners his Legal opinion, on the question "in whom 578 SUPREME COURT OF MICHIGAN the fee of the Lots now is, in the City of Detroit which were Deeded by the Governor & Judges, as Commissioners under the Act of Congress of the 21st April 18o6, to the President Directors & Company of the Detroit Bank" which opinion was ordered to be Entered on the Journals & is in the words following: TERRITORY OF MICHIGAN.- The Attorney General hath been honored with the receipt of a question, proposed to him by the Hon the Legislature thereof, which if he were to answer in the form that it is expressed, without anticipating the wishes of the Legislature, he could not but say that the fee of those Lots now in the City of Detroit, which were Deeded by the Governor & Judges as Commis- sioners under the Act of Congress, of the 21st of April 1 8o6, to the President Directors & Company of the Detroit, still remains there: Because by the question as it is proposed, it is not shewn that there Ever has been a Trans- fer of the fee by the said Corporation, or that the Said Corporation hath Ever by any means, been dissolved, or that it has forfeited its Charter: But anticipating the wishes of the Legislature on this Subject, he has taken the Liberty of varying the question, & reducing it to Such form as to afford an answer to the Case as it realy is at the present time.- Question, The Gov: & Judges of Michigan; on the 19th day of Sept i8o6. adopted a Law, incorporating a Bank at Detroit, under the name of The President Directors & Company of the Detroit Bank, to whom as Commis- sioners under the Act of Congress of the United States of the Twenty first of April 18o6, they did deed, in fee simple absolute, two certain Lots of ground in the City of Detroit, Subsequent to this, & on the third day of March I8o7, the aforesaid Law incorporating the Bank of Detroit aforesaid, was negatived by Congress, by reason whereof the Said Corporation, became dissolved; the question then is, in whom is the fee of those Lots vested, that were thus Deeded as aforesaid, to the Corporation, they having never made any Disposition of the Same. Answer: There are in General, two kinds of incorporations, aggregate & Sole: created Either by the Common Law, by Legislative authority, as by act of parliament, by prescription or by Charter. To a Corporation created by any of the foregoing means, they have incident to them certain things, & that too, without any Express words in their Charter to authorise them, as for Example, to purchase & alien Lands, to sue & be sued, implead & be impleaded; So likewise are they liable, to lose their Corporate franchise & be destroyed, in a variety of different ways & means, as for Example, in a corporate Sole, by a reunion with itself, an Antecedent Corporate Right granted out. So likewise in Aggregate Corporations, by Surren- der, by forfeiture & last, by the dissolution of its Corporate franchise, by SELECTED PAPERS 579 legislative authority, - which M'r Blackstone considers as boundless in its operation.- The question, then, what is to become of the Lands that a Corporation thus dissolved, were seised & possessed of at the time of its dissolution, these agreeable to the Common Law of England must revert to the grantor, donor or their heirs, for the Law, Saith the Same learned authority, doth always annex a condition to Every such grant, that if the Corporation be dissolved, the grantor shall have the Lands again, because the cause of the grant faileth, which in contemplation of Law, is only supposed to be made, during the life of the Corporation, & this is Said to be the only instance where a reversion can be Expected, on a grant in fee Simple absolute.- With great respect &c (Signd) E. Brush To the Legislature of the Michigan Territoryi [Case 603, Copy of Writ of Injunction] TERRITORY OF MICHIGAN THE UNITED STATES Of America SUPREME COURT ss: To 7onathan Eastman, and all and Sin- IN CHANCERY gular the Agents and Attornies of the Said Jonathan Eastman; And To the Sheriff (L.S.) Under Sheriff & Deputy Sheriffs of the County of Wayne, And to all the Sheriffs within the respective Counties of said Territory And all other persons: GREETING: Whereas it has been represented unto our Supreme Court for the Terri- tory of Michigan, sitting as a Court of Chancery, on the part of Henry B: Brevort, Complainant, that he has lately exhibited his bill of Complaint, in our Said Supreme Court in Chancery, against Jonathan Eastman, de- fendant, to be relieved, touching the matters therein complained of, In which bill, amongst other things Set forth that the Said Defendant, lately in our Supreme Court for the Territory aforesaid, at the September Term last past, recovered a Judgment against the Said Complainant, for the Sum of Four hundred & forty four dollars & fifty Seven cents, together with the Sum of thirty two dollars & Six & one fourth cents Costs, and that the Said Eastman hath on the Said Judgment, sued out of the said Supreme Court, his execution of Fieri Facias, for the amount of the damages & costs afore- said, against the Said complainant, and the same delivered to the Sheriff of the County of Wayne, or his Deputy, to levy & collect of the Said Com- plainant and that the said defendant is combining & confederating with 580 SUPREME COURT OF MICHIGAN other persons unknown to injure the said complainant touching the matters set forth in the Said Bill; and the actings & doings of the said Defendant, touching the matters in the said bill mentioned are contrary to Equity & good concience. We therefore, in consideration of the premises, and of the particular matters in said Bill Set forth, do Strictly enjoin & command you the said Jonathan Eastman, and all & every of the persons before men. tioned, and each & every of you, under the penalty of what may befall thereon; that you & every of you do absolutely desist, & refrain from all further proceedings, at Law, against the said Henry B: Brevort upon the judgment and Execution aforesaid, in favor of the said Jonathan Eastman, and mentioned in the Said bill; and that the said Execution be returned into the office of the Clerk of the Supreme Court unsatisfied; until the further order of our Said Supreme Court to the Contrary. And this under the penalty aforesaid Witness Augustus B. Woodward, Presiding Judge of our said Court in Chancery, at the City of Detroit this twenty fifth day of October A D. one thousand eight hundred & twenty one Melvin Dorr, Clerk Hunt & Larned Solicitors for Complainant A True Copy of the Original. HUNT & LARNED Solicitors for Complainant [Case 6 I1, Paper 9] [Indorsement] 31 1820 Supreme Court Affidavit Filed in Clerks office 26 July I823 JEREMIAH V R TEN EYCK Dep' Clerk SELECTED PAPERS S81 [Case 611, Paper 9] SUPREME COURT Stephen Downing vs Hubert Lacroix William G Taylor attorney for the above named Deft of Detroit in the County of Wayne in the Territory of Michigan being duly sworn saith That the above suit was removed from the County Court of Monroe County in the Territory aforesaid by Habeas Corpus cum Causa into the Supreme Court of the Term of September one thousand Eight hundred and Nineteen to the best of this deponants understanding and that in the Term of September one thousand Eight hundred and Twenty no Declaration having been filed in said Cause This deponant obtained a Rule for the Plaintiff to declare, which was duly entered of the Term last aforesaid--And this deponant further saith he caused diligent search to be made at several times in the office of the Clerk of the Supreme Court for a Declaration to enable this deponant to plead thereto and none could be found or had been filed in said Cause - and that in the Term of September one thousand Eight hundred and Twenty one or Two no declaration having been filed, the above plaintiff by his attorney Charles J Lanman obtained a Judgment against the above Named Defendant - and hath issued an Execution thereon which said Execution is in the hands of the sheriff of Monroe County issued for the purpose of collecting the Judgment so as aforesaid obtained Subscribed and Sworn this twenty fifth day of July one thousand Eight hundred and Twenty three W G TAYLOR To the Honorable Augustus B Woodward- The within named deponent being the attorney for Hubert Lacroix in the case mentioned in the affidavit-prays that a writ of supersedeas may be issued- July 25th 1823 W G TAYLOR [In the handwriting of William G. Taylor] Allowed, WOODWARD, judge. July 25. 1823. [In the handwriting of Augustus B. Woodward] 58 SUPREME COURT OF MICHIGAN [Case 61x 1, Paper x o] [Indorsement] 31 1820 Supreme Court Stephen Downing Vs. Hubert Lacroix Allowed by A B Wood- ward Presiding Judge of the Supreme Court of the Territory of Michigan July 29 - 1823- JER. V R TEN EYCK Dept Clerk Filed in Clerks office 15 Sep. 1823 - JER. V R TEN EYCK D' Clerk [Case 6II, Paper io] TERRITORY OF MICHIGAN THE UNITED STATES of America SUPREME COURT SS J To the Sheriff of the County of Monroe GREETING: WHEREAS Stephen Downing lately in our Supreme Court aforesaid ob- tained a judgment against Hubert Lacroix for his damages which he sus- tained by the occasion of the non performance of certain promises and undertakings made by the said Hubert Lacroix to the said Stephen Downing whereof he is convicted as appears of record: and whereas from the complaint of the said Hubert Lacroix shewing good cause therefor, it appears in ren- dering the said judgment manifest injustice hath been done to the great damage of the said Hubert Lacroix, and being willing that full justice may be done in this behalf to the said Hubert Lacroix you are [SEAL] hereby commanded that if before the receipt of these presents you have not made execution of the said Judgment then you supercede entirely as well from taking, arresting, or in any manner molest- ing the said Hubert Lacroix by reason of the occasion aforesaid, as from SELECTED PAPERS 583 taking the goods and chattels lands & tenements of the said Hubert Lacroix by occasion of the Judgment aforesaid, but should you have taken or arrested the said Hubert Lacroix that you forthwith release and set him at large, or should you have taken the goods and chattels lands or tenements of the said Hubert Lacroix that you make restitution of the same until his said complaint be fully heard & determined by the Supreme Court aforesaid at the next Session thereof. WITNESS Augustus B. Woodward presiding Judge of the Supreme Court of the Territory of Michigan at the City of Detroit on the twenty ninth day of July in the year One thousand eight hundred and [twenty] three, and in the Forty eight year of the Independence of the United States of America JER. V R TEN EYCK DY Clerk [Case 6x 1, Paper ii] [Indorsement] 31 1I820 Downing vs Lacroix Filed 25 Sep 1824 JVRTENEYCK Dy Clerk [Case 6II, Paper II] Downing vs Lacroix Motion by Lamrned for Deft to shew cause in 2 days why super- sedeas should be set aside having inadvisedly issued 25. Sepr 1824 C LARNED [In the handwriting of Charles Larned] 584 SUPREME COURT OF MICHIGAN [Case 625, Copy of Indictment] TERRITORY OF MICHIGAN s e ss Term of January 1819. COUNTY OF WAYNE COURT The Grand Jurors of the United States Territory of Michigan, in and for the body of the County of Wayne in the Territory of Michigan, Upon their Oath present That Louis Devotion at Detroit in the County of Wayne in the Territory aforesaid, Merchant, on or about the fifteenth day of July, One thousand Eight hundred and Eighteen - with force and arms at Detroit aforesaid in the County and Territory aforesaid, did falsely alter a certain Writing Obligatory, purporting to be a due bill signed by one W. Prescot which said W. Prescott then and long before was a Clerk, Entrusted and Employed by the said Louis Devotion to give Due Bills for him the said Louis Devotion at Detroit aforesaid in the County and Territory aforesaid, which said writing obligatory, sometimes called a Due Bill, was in the words and figures and letters following To wit, "Good to Corp' White or bearer for Four Dollars in Goods for L. Devotion W. Prescott" which said writing oblig- atory sometimes called a Due Bill as aforedescribed, for a legal and Valuable consideration, came into the hands and possession of one Peter Vanavery of Detroit in said Territory, Tavern Keeper, which said Peter Van Avery at Detroit aforesaid, in the County and Territory aforesaid on the day and year aforesaid caused said writing obligatory, sometimes called a due Bill to be presented to the said Louis Devotion for Payment; that the said Louis Devotion on the same day and year aforesaid, at Detroit afore- said, at the place aforesaid, with force and arms did falsely alter and erase the word Bearer in the said writing obligatory sometimes called a Due Bill, with interest thereby to prejudice, injure, damage and defraud the said Peter Vanavery the bearer of Said writing obligatory sometimes called a Due Bill, against the Peace and dignity of the County of Wayne and Territory of Michigan and against the Statute of the Territory of Michigan in such case adopted and provided Chas Lamrned [Case 625, Copy of Indictment] United States }T.R~~ rMems United States TERRITORY OF MICHIGAN vS ss Louis Devotion COUNTY OF WAYNE COURT No 96 - 7th Jany 1819. Term of January 1819 The Grand Jurors of the United States, Territory of Michigan, in and for the body of the County of Wayne in the Territory of Michigan, Upon SELECTED PAPERS 585 their Oaths present, That Louis Devotion of Detroit in the County of Wayne in the Territory of Michigan, Merchant, on or about the nineteenth day of October, One thousand Eight hundred and Eighteen, With force and arms at Detroit aforesaid, in the County and Territory aforesaid, did falsely alter a certain writing obligatory, purporting to be a Due Bill signed by one W. Prescott, which said W. Prescott then, and long before was a clerk, entrusted and Employed by the said Louis Devotion to give due Bills for him the said Louis Devotion at Detroit aforesaid, in the County and Terri- tory aforesaid, which said writing obligatory, sometimes called a Due Bill, was in the words, letters and figures following to wit, "Good to Crawford or Bearer for three Dollars in Goods, for L Devotion W. Prescott" which said writing obligatory as sometimes called a due Bill as aforedescribed, for a legal and valuable consideration came into the hands and possession of one John S. Roby of Detroit in said County and Territory, Merchant, which said John S. Roby of Detroit aforesaid, in the County and Territory aforesaid, on or about the nineteenth day of October, One thousand Eight hundred and Eighteen, caused said writing obligatory sometimes called a due Bill, to be presented to the said Louis Devotion as aforesaid for pay- ment; that the said Louis Devotion on the same day and year aforesaid, at Detroit aforesaid, in the County and Territory aforesaid, With force and arms, did falsely alter and erase the word 'bearer' in the said writing obligatory, sometimes called a due bill, and on the face of said Writing, did write in the words and figures following, to wit, "I will pay to Crawford only D." with intent thereby and the Erasure of the word bearer, in the said writing obligatory sometimes called a Due Bill on the day aforesaid, at the place aforesaid, in the County and Territory aforesaid, to prejudice, injure, damage and defraud the said John S. Roby, the bearer of said Writing Obligatory against the peace and Dignity of the County of Wayne and Territory of Michigan, and against the Statute of the Territory of Michigan in such case adopted and provided Chas Lamrned Atty Gen' 586 SUPREME COURT OF MICHIGAN [Case 625, Paper 5] [Indorsement] NO 5 Supreme Court Sept 25t 1820o United States vs Lewis Devotion Motion to quash Same in both [Case 625, Paper 5] TERRITORY OF MICHIGAN SUPREME COURT SEPTEMBER TERM IN THE YEAR OF OUR LORD ONE THOUSAND EIGHT HUNDRED AND NINETEEN United States of America vs sur Indictment Lewis Devotion In this case the said Lewis by Woodbridge & Lanman his attorneys, moves the Court here that the said Indictment be quashed & for nothing held and that he the said Lewis be thereof discharged without day- And for cause shows to your Honours here that it does not appear in and by said Indictment nor in and by the Caption thereof nor any part of the Record, that said Indictment was found by any competent Grand Jury insomuch as the names of no Grand Jurors are returned here, & as it does not in the premises appear that any twelve or more Grand Jurors of the said United States of America inquiring for the body of the County of Wayne in said Territory agreed to or found said bill of Indictment a true bill and secondly that said Indictment does not conclude against the peace and dignity of the United States of America And Thirdly that said Indictment does not charge the said Lewis with committing any crime or other illegal act at any specific time And Fourthly that the said Indictment is inconsistent, uncertain & con- tradictory in this that it charges said Lewis with having altered a certain "writing obligatory" whereas it appears by other parts of said Indictment that the writing which said Lewis is charged with having altered was not & could not have been a writing obligatory And fifthly that there is not charged any where in said Indictment against said Lewis that he committed any offence whatsoever which which SELECTED PAPERS 587 could or can, according to law, be prosecuted by Indictment - but that if any offence whatsoever were committed or be charged to have been com- mitted by said Lewis in & by said Indictment, said offence (if any) was as fully appears in & by said Indictment) a mere trespass not legally the subject of an Indictment. And sixthly In this that said Indictment is otherwise uncertain illegal & Defective both in substance & form Wherefore and because the said Indictment and the caption thereof & the records & proceedings in the premises are altogether insufficient the said Lewis prays that the same may be quashed and holden for nought. WOODBRIDGE & LANMAN [In the handwriting of William Woodbridge] [Case 631, Paper 4] [Indorsement] No 4 Geo. MAfDougall vs Francois Lasselle Oyer of bond or covenant declared upon, prayed for by Deft filed in office of Clerk of Sup. Court Augt 14th 1820 [Case 631, Paper 41 In Sup. Court Sept Term 1820. George McDougall ag' In a plea of breach of covenant Francois Lasselle And the Said George McDougall, the Plaintiff in this case, having neg- lected to file the bond or covenant declared on, or a Copy of the same, the said Defendant, before entering his plea to the action aforesaid prays oyer of the bond or covenant declared on By his Att " HUNT & LARNED. 588 SUPREME COURT OF MICHIGAN [Case 639, Paper 15] [Indorsement] 24 '20. Sup: Court. Samuel Phelps vs Lewis Rouse. Plea & notice of set off. with joinder of Issue. filed in Court on the 23d Sept. 1822. CHs CHR TROWBRIDGE Dy Clerk [Case 639, Paper 151 SuP: COURT. Lewis Rowse adsm Sam' Phelps And the Sd Deft by Sibley & Whitney his Attorneys comes & defends the wrong and injury &c and says that he never undertook and promised in manner and form as the said Plaintiff hath above declared against him and of this he puts himself on the country. SIBLEY & WHITNEY. Atts and the Plaintiff likewise by his Attys W & L. The Plff: in this case or his Attornies will please take notice that the Deft on the trial of this Case will insist and give in Evidence that the above named plaintiff before and at the time of the commencement of this Suit, was & Still is indebted to the said Defendant in the Sum of four thousand dollars for the work & labor, Care, and diligence, and attendance of the Said defendant by him before that time done, performed & bestowed in and about the business of the Plff: and for the Plff: & at his request; and also for divers goods wares & merchandises -sold & delivered by the defendant to the Plff at his like request and for money by the Defendant before that SELECTED PAPERS 589 time lent and advanced to-& paid, laid out and Expended for the Plff: at his like request; and for other money by the Plff: before that time had and received, to and for the use of the Deft & for other money due & owing from the plff: to the Defendt upon an Acet Stated between them: & that the Sd Defendent will set off and allow to the said Plff: on the said trial, So much of the said Sum of four thousand dollars so due & owing from the sd Plff to the said Defendt against any demand of the Plff, to be proved on the sd trial, as will be sufficient to satisfy & discharge such demand, according to the Statute in such case made & provided. SIBLEY & WHTY [Case 64.1, Paper I] [Indorsement] N. 49. (I5) Supreme Court Oliver W. Miller Robert Smart & Conrad Ten Eyck in Debt. vs. Austin E. Wing [Case 641, Paper i] IN THE SUPREME COURT OF THE TERRITORY OF MICHIGAN Oliver W. Miller Robert Smart and Conrad Ten Eyck Amicable Action in Debt-five thousand Assignees of Henry Hudson Dollars-of September Term 1819 vs dustin E. Wing. And now this IIth day of September 1819. It is agreed that the above action be entered on the Docket of the Supreme Court of September Term 1819.-being Debt on a bond in the penalty of five thousand Dollars, conditioned for the payment of one thousand Dollars on or before the first day of January 1818 -one other sum of one thousand dollars on or before the first day of January 1819-and the further sum of five hundred dollars on or before the first day of January I82o0-The said Bond bearing date the third day of December 8i6--That it be considered as effectual as if a writ 590 SUPREME COURT OF MICHIGAN had issued and been served & that Special bail be entered in like manner as in other cases with release of the errors if any be alledged on acct. of the want of writ-it being expressly agreed that by consent a writ shall be considered as issued & returned legally Jon L. LEIB Atty for pitff WV" WOODBRIDGE Atty for Deft. To Peter Audrain Esqr Clerk of the Supreme Court &c [Case 64i, Paper 4] [Indorsement] 26. 1820 Oliver W. Miller et al V. Austin E. Wing Notice for oyer of Bond declared upon filed in the Clerks office Nov 8th 1821 M DORR Clerk [Case 641, Paper 4] TERRITORY OF MICHIGAN IN SUP. COURT Oliver Miller Conrad Ten Eyck & Robert Smart V. Austin E. Wing Detroit Oct' 7. 1821 SDebt on Bond And the Said Austin E. Wing by, Woodbridge & Lanman, and Hunt & Lamrned his attornies, comes into court, & gives notice to the Plaintiffs that he prays oyer of the Bond declared upon by the Plaintiffs WOODBRIDGE & LANMAN Att" for . HUNT & LARNED Deft [Attached to the foregoing] Know all men by these presents that I Austin E. Wing am holden and firmly bound unto Henry Hudson in the sum of five thousand dollars to be paid to SELECTED PAPERS 591 the said Henry Hudson his certain Attorney Executors and Administrators: for the true payment whereof I bind myself, my heirs Executors and Adminis- trators firmly by these presents. Sealed with my seal and dated the third day of December in the year of our Lord one thousand eight hundred and sixteen. The Condition of this obligation is such, that whereas I the said Austin E. Wing have this day bought of the said Henry his Mansion house in the City of Detroit, together with all its appertenances & certain other tracts and parcels of ground for which the purchase Money is either paid or secured to be paid except the sum of two thousand five hundred dollars, to be paid as herein after stated: and whereas the wife of said Henry has not yet conveyed to the said Austin her right of dower in the premises, nor the title to one of the lots which is yet in her, but is yet to do it, now there- fore, if the said Austin E. Wing, his heirs Executors or administrators do and shall well and truly pay or cause to be paid unto the said Henry his Executors administrators or assigns on or before the first day of January one thousand eight hundred and eighteen, the sum of one thousand dollars, and also, if he do well and truly pay or cause to be paid as aforesaid to the said Henry his Executors Administrators or assigns one other sum of one thousand dollars on or before the first day of January A.D. one thousand & eight hundred and nineteen, - And also if he the said Austin his heirs Exec- utors and Administrators do pay or cause to be paid to the said Henry his Executors, Administrators or assigns the further sum of five hundred dollars on or before the first day of January A.D. one thousand & eight hundred and twenty. -the said Henry first causing to be conveyed to the said Austin his heirs and assigns the said title and right of dower of his said wife in and to said property so as aforesaid sold bargained for or conveyed before the said Austin his heirs or assigns to be holden and required to pay said several sums or any of them, which said sums to be paid (said conveyance by the wife of said Henry being first completed according to law) at Detroit, on demand, after the said several days and terms-Then this obligation to be void and of no Effect-Otherwise to be and remain of full form and virtue. Signed, sealed and delivered on the day and year above written, in presence of Sol Sibley Austin E. Wing (Seal) Recd on this Bond on the day of Execution three hundred & thirty five dolls 30o Cts. J Detroit Decr 3, 1816. I, the undersigned do hereby obligate myself for & in behalf of the above Named Austin E. Wing, for the full compliance of the said Austin with the provisions and Conditions which are thereby Imposed upon him to perform (Signed) Sol Sibley Wm Woodbridge (Seal) 592 SUPREME COURT OF MICHIGAN [Case 64I, Paper 5] [Indorsement] 26. I820 Oliver W. Miller et al V. Austin E. Wing Plea & notice filed in the Clerks office Dec 13. 1821 MELVIN DORR Clerk [Case 641, Paper 51 IN SuP. COURT Oliver W. Miller et al vs Defts plea Austin E. Wing And the Said Austin E. Wing by Hunt & Larned his Attorneys comes & defends the wrong & injury when &c & for plea Says he does not owe the Plaintiffs as they in their declaration against him have alledged-And thereof he puts himself on the Country for trial- By HUNT & LARNED and the Plaintiff doth the like JOHN L. LEIB for pltff And the Said Defendant hereby gives notice to the Plaintiffs or their Attorney, That he shall in the trial of Said case in his defence to the Same. offer evidence of a want of consideration in the making & executing Said Bond declared on, the Same having been made to one Henry Hudson, who it is alledged has assigned the Same to the Plaintiffs, that said Bond was made & executed upon the express condition, agreed upon between the Said Hudson & said Deft that Said Hudson should in consideration of his the Said Def making & executing the bond declared on, make execute & deliver to the Plaintiff a good & sufficient warantee Deed of the following tract or lots of ground situate in the City of Detroit, viz, the lot on which SELECTED PAPERS 593 the house of said Hudson then stood, also the lot on which the Store house & wharf of said Hudson was erected, also two five acre out lots, in Said City, so called, also the lot number one in section number eight, as numbered Sdesignated in the plan of said City, being the donation lot of Mary Hudson, wife of Said Henry Hudson - Also one other lot which was drawn Sassigned, as the donation lot of one Samuel Watts, by the Govr & Judges of the Territory aforesaid, also the donation lot of one Peggy Welch which was drawn & assigned by said Govr & Judges to her which said lots are numbered & designated on the plan of said City-Which warantee Deed of conveyance so to be made as aforesaid by said Hudson to Said Defendant, he the Said Hudson has wholly neglected & refused to do, & still refuses- Whereby the consideration of said bond has wholly failed-And the Said I)ef further gives notice-That by the bond declared on, oyer of which has been granted him, and is now on file in said court, it appears, that the said Sum of money demanded of the Defendant by said Plaintiff in his writ & declaration, at the time of bringing said suit was not due & owing from said Def to Said Plaintiff-And the Said Defendant further gives notice, that on the trial of said case, he shall in his defence offer evidence, that said bond was assigned by said Hudson to Said Plaintiffs, without the payment of any money as the consideration of said assignment, or other property, & without any consideration whatever and that said Plaintiffs well knew that said Bond was made executed & delivered to Said Hudson, upon a con- sideration which had entirely failed, the said Hudson never having con- veyed the several parcels of land on which said Bond was given, but the same was assigned for the purpose of enforcing the collection against said Deft, when in fact said Deft avers that nothing is due on the same HUNT & LARNED Attys to Deft [Indorsement] filed in the Clerk's Office Dec 13th 1821 M DORR Clerk 594 SUPREME COURT OF MICHIGAN [Case 64.1, Paper 6] [Indorsement] 26 Sup. Court 1820 0. W. Miller et. al vs Austin E. Wing Copy. of Bond filed in the Clerks office Nov 12th 1821 MELVIN DORR Clerk [Case 641, Paper 6] Know all men by these presents, that I, Henry Hudson for value re. ceived, do assign and transfer the within Bond, and all rights in law therin, unto Oliver W. Miller, Robert Smart and Conrad Ten Eyck to have and hold the same and all benefits thereof to them, their Heirs executors, Adm' and assigns, with authority if Necessary to make use of the name of said Henry in the collection thereof and the money when collected and received to be for the proper use & benefit of the said Oliver, Robert & Conrad. In witness whereof, I have hereto set my bond and seal at Detroit the fourteenth day of March 1817. his Henry X Hudson (Seal) mark Sealed and Delivd In presence of D. D Dodemead L. Cochois SELECTED PAPERS 595 [Case 64I, Paper I x] [Indorsement] 26 Sup. Court 1820 0. W. Miller et al vs Austin E Wing Filed in Open Court 2nd Oct: - 1823 - JER. V R TEN EYCK Dy Clerk [Case 641, Paper Ii] Smart- Miller et al. vs. A. E. Wing Reasons in arrest of judt i. That there was a mistrial-the Jury in said case not having been summoned convened nor brought in to this Court by the Coroner of the County of Wayne nor by any indifferent Officer of this Territory 2. That the Action is misconceived the facts of said case not exhibiting any privity of Contract nor any legal ground for an Action of Debt 3. That the bond in said Declaration set forth is not by law assignable & that the said plffs. could not by law sustain an Action in their own name thereupon 4 That the assignment of said Bond set out in said declaration is not shown to have been made according to law: the same being by an instrument under seal. 5 That the declaration in said case is insufficient in law is uncertain & bad--& that the pleadings in the said case are insufficient A. E. WING [In the handwriting of William Woodbridge] 596 SUPREME COURT OF MICHIGAN [Case 643, Paper 14] [Indorsement] Sup. Court Francois Labadie vs Gabriel Richard Precipe to Enter office Judgt Filed in the clerks office Augt i6 I821. M DORR Clk. [Case 643, Paper 14] SuP. COURT Francois Labadie To the clerk of the Sup. Court. vs Gabriel Richard Please enter Office Judgt by default, in the above case for want of rejoinder Augt 16. 1821 WM WOODBRIDGE Atty for plff [Case 643, Paper 21] [Indorsement] 27 I820 Supreme Court Francois Labadie vs Gabriel Richard Subpoena Duces Te Cum for William Woodbridge. filed in Court Octr IIth 1821 MELVIN DORR Clk SELECTED PAPERS 597 [Case 643, Paper 21] TERRITORY OF MICHIGAN SUPREME COURT THE UNITED STATES of America, To William Woodbridge. GREETING: We Command you, that laying aside all and singular all manner of business and excuses, you be and appear in your proper person before our Judges of our Supreme Court for the Territory of Michigan at Detroit, in Said Territory, on the Eleventh day of October present-and bring with you, to be read in evidence, a Certain letter, written to you, by the Revd Bishop Flaget Dated on the Ohio River the Eleventh day of June A.D. one thousand eight hundred and nineteen, in a Certain Cause now depend- ing in our Said Supreme Court, before the said Judges thereof, between Francois Labadie plaintiff and Gabriel Richard defendant and this you Shall in no wise omit, under the penalty of what may befall thereon. Witness A. B. Woodward Presiding Judge of our Said Supreme Court, at the City of Detroit, the tenth day of October, one thousand eight hundred and twenty one. MELVIN DORR Clerk. On part of Deft. [Case 643, Judgment Record] [*] Pleas at the City of Detroit in the Territory of Michigan before [*] p. 319 the Judges of the Supreme Court of said Territory, in the Term of September in the year of our Lord one thousand Eight hundred and seventeen. Territory of Michigan, to wit, Francis Labadie, puts in his place William Woodbridge and Charles Larned, his Attornies, against Gabriel Richard in a plea of the case. Territory of Michigan, to wit, The said Gabriel Richard puts in his place Solomon Sibley and Andrew G. Whitney, his Attornies, at the suit of the said Francis Labadie, in the plea aforesaid. Territory of Michigan, to wit, According to the form of the Statute in such case adopted and provided Gabriel Richard was served with a certain writ called a Capias ad Respondendum, issuing, out of our Supreme Court afore- said, before the Judges thereof at the suit of Francis Labadie, in a plea of Trespass on the case, which said writ follows in these words, that is to say. TERRITORY OF MICHIGAN, TO WIT, THE UNITED STATES of America to L. S. f the Sheriff of the County of Wayne. You are hereby commanded, that you take Gabriel Richard, if to be found within the Territory of Michigan, and him safely keep so that you 598 SUPREME COURT OF MICHIGAN have his body before the Judges of our Supreme Court to be holden at Detroit on the third Monday of September next, then and there to an- swer, Francis Labadie, in a plea of Trespass on the case, Slander, to the damage of the said Francis Labadie as is said five thousand dollars, which shall then and there be made to appear, and of this writ make due return, Witness, Augustus B. Woodward, presiding Judge of our said Court, the twenty ninth day of August, one thousand Eight hundred seventeen. Peter Audrain Clk S.C.T.M. Endorsement This action is brought, to recover of the Defendant for words maliciously spoken by Defendant against the character of the plaintiff. Damages $5000o. Return. I have the body agreeable to the within, service $2.00 mileage, I22-= $2.I23. Sept ioth. 1817 Austin E. Wing, Shff. W.C. And afterwards, to wit, in this same Term of September, in the year of our Lord one thousand Eight hundred and seventeen, before the Judges of our Supreme Court aforesaid at the Council House, in the City of De- troit, come the parties aforesaid by their respective Attornies aforesaid, and hereupon further process between said parties is continued, until the Term of September now next ensuing. [*] p. 320 [*] At which day, that is to say, in the Term of September, in the year of our Lord one Thousand Eight hundred and Eighteen, before the Judges of our Supreme Court aforesaid, at the Council House in the City of Detroit, comes the said Francis Labadie, by William Woodbridge and Charles Lamrned, his Attornies aforesaid, and brings into our said Court, before the aforesaid Judges thereof now here his certain bill against the said Gabriel Richard, in the plea aforesaid, which said bill follows in these words, that is to say. TERRITORY OF MICHIGAN SUPREME COURT. SEPTEMBER TERM IN THE YEAR OF OUR LORD ONE THOUSAND EIGHT WAYNE COUNTY, TO WIT, HUNDRED AND EIGHTEEN. HUNDRED AND EIGHTEEN. Francis Labadie of said Territory Esquire (plaintiff in this suit) com- plains of Gabriel Richard, of Detroit in the said County and Territory, Preacher (Defendant in this suit) in custody &c. in a plea of the case &c. Whereupon the said Plaintiff, declares and says, for that whereas he the said plaintiff, is a good, just and honest citizen, and as such hath ever behaved and conducted himself: - and hath never been guilty, nor, until the time of the committing of the several grievances, by the said Defend- ant, as hereinafter mentioned, been, by any persons, suspected, of being guilty of the atrocious crimes of adultery or polygamy or open lewdness, or any other, the offences and misconduct hereinafter mentioned to have SELECTED PAPERS 599 been imputed to him: - But until the speaking and uttering of the words hereinafter mentioned, hath ever been justly esteemed and accounted among all his neighbors and acquaintances, an honourable, moral and upright man; And hath hitherto maintained himself and his family re- spectably, by diligent attention to his business, as a farmer and husband- man, and as a merchant. And also has performed with diligence, pro- priety and dignity, for many years past, the duties of a civil magistrate and Justice of the peace, in and for said Territory; and had thereby acquired not only the confidence and respect of all his neighbors and others, but also, as and for his legal fees for services performed in his said function of Justice of the Peace divers considerable sums of money. - to wit in said Territory: Nevertheless the said Defendant, well know- ing the premises, but maliciously intending to injure the said plaintiff in his aforesaid good name fame and credit: - cruelly to bring him into scandal and disgrace - to cause him to be despised and shut out from all his aforesaid honest modes of livelihood, by exciting aagainst him the odium of all his neighbours, and to expose him to be prosecuted in the manner prescribed for those who may commit crimes of open lewdness, adultery and polygamy - and to harrass - oppress and wholly ruin the said plaintiff - heretofore, to wit, on the sixteenth day of February in the year of our Lord one thousand eight hundred and seventeen, at De- troit aforesaid, in the County aforesaid in the Territory of Michigan and within the jurisdiction of this Court, in a certain discourse which he (said Defendant) then and there had, of and concerning the said plaintiff, in the presence and hearing of divers good and worthy citizens, did then and there, and in the presence and hearing of said [*] divers good and worthy C*l p. 321 citizens, falsely and maliciously, speak and publish of and concerning the said Plff. the false, scandalous, malicious and defamatory French words following that is to say, "Ce Francois Labady est un pecheur scandaleux, (meaning said plaintiff was a shameful sinner)- "il commet adultere" (meaning that said plaintiff committed adultery) "ayant une femme en- core vivante il epousa la veille vive autre femme, et se fit marier par un majestrat protestant" (meaning that said plff was guilty of polygamy, in causing himself to be married the evening before, to another woman by a protestant magistrate, having at the same time a former wife still living)- Ce marriage qu'il a contracts n'est ni ben, ni valide (meaning that said supposed marriage of said plff. was neither good nor valid)- "C'est un concubinage" (meaning that said plff was herein guilty of con- cubinage, and open lewdness) "et que les majestrats etaient des imbeciles et des betes" (meaning that all such protestant magistrates were Simple- tons and Blockheads) "qu'ils viennent qu il viennent; et je les ferai voire leur devoir--et leur ignorance (meaning that if they the said majistrates 600 SUPREME COURT OF MICHIGAN would come to him, the said Defendant, he said Defendant, would learn them their duty, and make them see their own ignorance. And the said plaintiff avers that the said divers good and worthy citizens and others, in whose hearing and presence the afore recited false and scandalous French words were uttered and published, did then and there understand french & comprehended the meaning of said false and defamatory french words - and further that at the time of the speaking of the same and for a lon time before the said plaintiff was a husbandman, and also employed i- mercantile business, as well as a Justice of the Peace in and for said Ter ritory, in which several businesses he made by his honest industry, atten- tion and skill a considerable profit and large sums of money. And after. wards, to wit, on the twentieth day of May of the year aforesaid at De. troit aforesaid, in the County and Territory aforesaid, and within the jurisdiction of this Court the said Defendant, in a certain other discourse which he (said Defendant) then and there had with one Mr. John S. Roby in the presence of the said John S. Roby, and of divers other good and worthy citizens of and concerning the said plaintiff and further in- tending as aforesaid in the premises to aggrieve and ruin the said Plaintif, falsely and maliciously spoke and published of and concerning said Plain. tiff, and in the presence and hearing of said John S Roby and others, the other false, scandalous, & malicious words following, that is to say, "Mr. Labady is an adulterer" (meaning that said plaintiff had committed adultery) "I have given notice in church that I shall excommunicate him (meaning that he the said Defendant as priest had given notice that he should excommunicate the said Plaintiff) "I have forbidden the french people from trading with or speaking to him, and unless he will put away the woman, he calls his wife I will ruin him" (meaning that he the said Defendant as priest had forbidden the citizens of this Territory commonly [*] p. 322 called french from dealing with [*] said plaintiff as merchant as aforesaid, and as husbandman as aforesaid, and applying to him as magistrate as aforesaid, and thus destroy all his abovementioned means of livelihood, unless he said plaintiff would part from and put off his said wife. And afterwards, to wit, on the sixth day of July of the year aforesaid at Detroit aforesaid in said County and Territory and within the juris- diction of this Court, the same Defendant, in a certain other discourse, which he (said Defendant) then and there had, and delivered, in the pres ence and hearing of divers good and worthy citizens and others, of and concerning the same plaintiff, further intending herein to aggrieve and ruin said plaintiff, falsely and maliciously then and there, and in the pres- ence and hearing of said divers good & worthy citizens and others spoke and with a loud voice published, of and concerning said plaintiff, the other false, scandalous, and malicious French words following, that is to SELECTED PAPERS 6oa say, "Ce Labady, (the said plaintiff meaning) est vraiment un adultere" (meaning that said Plaintiff was guilty of adultery) Ii n'est plus un homme" (meaning that said plaintiff was no longer a man) "C'est un Bete pave qu'il est revetu de heres imperceptible" (meaning that said plaintiff was a Brute influenced by spirits of evil - and no longer to be trusted) and the said plaintiff avers, that the said divers good and worthy citizens and others, last above mentioned, in whose presence and hearing said last above recited words, false and defamatory were spoken and pub- lished as aforesaid in french, did then and there understand the french language and comprehend the meaning of said recited french words. And afterwards, to wit, before and on the day, and year of the com- mencement of this suit, at Detroit aforesaid, in the County and Territory aforesaid, and within the jurisdiction of this Court, the said Defendant with the like wicked intent, and of his further malice, in a certain other discourse, which the said Defendant then and there had in the presence and hearing of Charles Larned Esquire, and others, good and worthy citi- zens, of and concerning the said plaintiff, falsely and maliciously spoke and published of and concerning the said plaintiff, these other false and malicious and defamatory words following, that is to say, "he" (meaning said plaintiff) "is an adulterer" - meaning that said plaintiff had com- mitted the atrocious crime of adultery. By means of the committing of which said several grievances by the said Defendant as aforesaid, he the said plaintiff hath been and is greatly injured in his good name, fame and credit, and brought into public scandal, infamy and disgrace, with and among all his neighbours, and other good and worthy Citizens of this Territory and others - insomuch that divers of the good, honest and respectable inhabitants of said Territory, who were always be- fore wont to treat said plaintiff with kindness, respect, and confidence, in consequence, and on occasion of the committing of said grievances, by the said Defendant as aforesaid, from thence, hitherto have suspected and be- lieved, and still do suspect and believe the said plaintiff to have been and to be a person guilty of all those several, atrocious crimes wherewith the said plaintiff hath been, by the said Defendant, as above recited, so wrongfully and maliciously charged, - And from thence hitherto wholly refused and still do refuse to have any transactions or discourse with him the said plain- tiff as they were before used and accustomed to have and otherwise would have had. And also by reason [*] thereof one John S. Roby of Detroit [*] p. 323 aforesaid merchant, who before, and at the time of the committing of the said grievances, had employed for a long time before, and still at the time of said several grievances committed, continued to employ said plaintiff, as merchant and salesman and clerk, for certain very high wages and profits to the said plaintiff, accruing to sell and retail certain large quantities of 602 SUPREME COURT OF MICHIGdN merchandizes, and would otherwise have continued to have so employed him the said plaintiff, for the same wages and great profits:- Afterwards, to wit, on the day and year last above mentioned, and re. ferred to, in the said Territory by reason solely of said grievances and wrongs, wholly refused any longer so to employ him:- Also by reason thereof, the said plaintiff, while in the performance of his ordinary labours and calculations, as an husbandman, and having certain large quantities of grain and other crops ready to be harvested, could no longer, as he was ever before able to do, and in the habit of doing, employ any of those labourers, whom he was always before accustomed to employ, for the pur. pose of harvesting and gathering in and saving his aforesaid large quan. tities of grain and other crops but by reason of the premises, afterwards, to wit, during the year last aforesaid in the said Territory, lost the same, - and has ever since been unable, in consequence of said grievances prof- itably to carry on his said farming business:- Also by reason thereof those of the good citizens of said Territory who were accustomed to apply themselves, to the said plaintiff for the performance of various official duties, as justice of the peace to the very great advantage, and profit of the said plff. by reason of said grievances from thenceforth refrained from and ceased for such purposes to apply themselves as aforesaid, to this plaintiff, whereby, he lost large sums of money - And the said plaintiff hath been and is, by means of the premises otherwise, greatly injured, to wit at Detroit aforesaid, To the damage of the said plaintiff in the sum of five thousand dollars, and therefore they bring suit &c. Larned&. Woodbridge Attys for Plff. And afterwards, to wit, in this same Term of September, in the year of our Lord one thousand Eight hundred and Eighteen, before the Judges of our Supreme Court aforesaid, at the place aforesaid, come the parties aforesaid, by their respective Attornies aforesaid, and hereupon further process between said parties, is continued until the Term of September, now next ensuing. At which day, that is to say, on this twenty first day of September, in the Term of September, in the year of our Lord one thousand Eight hun- dred and nineteen, before the Judges of our Supreme Court, at the Council House in the City of Detroit, come as well the said Gabriel Richard, as the said Francois Labady, by their respective Attornies aforesaid, and the said Gabriel Richard, by Sibley & Whitney his aforesaid Attornies, now and here defends the wrong and injury when &c. and as to the above declaration and all the matters and supposed grievances therein set forth [*1 p. 324 and contained [*] and mentioned, except as to the following french words SELECTED PAPERS 603 in the first count of said declaration mentioned, to wit, "II commet adul- tere" and the following English words in the second count of said declara- tion, to wit "Mr. Labady is an adulterer," and the following french words in the third count of said declaration mentioned, to wit, "Ce Labady est vraiment un adultere," and the following English words in the fourth count of said declaration mentioned, to wit,"he is an adulterer," therein says that he is not guilty thereof, in manner and form as the said Plaintiff hath thereof complained against him, and of this he puts himself upon the country. And the said Francis Labady, by his Attornies aforesaid, now here appearing doth the like. And for a further plea in this behalf, as to the residue of the said sup- posed wrongs and grievances in said declaration set forth, to wit, as to the speaking and publishing of and concerning the said Plaintiff, by the said Defendant, on the said day and at the said place as in the said first count of said Declaration mentioned and set forth, the following french words, to wit, "Il commet adultere" (meaning that the said Plaintiff com- mitted adultery) and on the said day and at the said place as in the said second count of said declaration mentioned, the following English words, to wit, "Mr Labady is an adulterer" (meaning that the said Plaintiff had committed adultery) and on the said day, and at the said place as in the said third count of said declaration mentioned, the following french words, to wit, "Ce Labady est vraiment un adultere" (meaning that said Plaintiff was guilty of adultery) and on the said day and at the said place as in the said fourth count of said declaration mentioned, the following English words, to wit, "he is an adulterer" (meaning that said Plaintiff had committed the atrocious crime of adultery) the said defendant, by Sibley & Whitney, his Attornies, by leave of the Court here for that pur- pose first had and obtained, Saith, that the said Plaintiff ought not to have and maintain his aforesaid action thereof against him, because he says that long before the speaking and publishing the said several words of and concerning the said Plaintiff by the said Defendant as in the said several counts of said Declaration mentioned, to wit, on the fourteenth day of September, in the year of our Lord one thousand Eight hundred and four- teen, And on divers days and times thereafter and between the said fourteenth day of September, one thousand Eight hundred and fourteen, and the day of the commencement of this action, to wit, within the county of Wayne and Territory of Michigan, the said Plff. did have carnal knowl- edge of and commit adultery with one Mary Griffard formerly wife and widow of one Louis De Hetre deceased, the said Plaintiff then having a lawful wife still living. Wherefore he the said Defendant, afterwards, to wit, on the said divers days, and at the said several places, as are in the said several counts of said declaration mentioned and set forth, did speak 604 SUPREME COURT OF MICHIGAN and publish of and concerning the said plaintiff, and in the presence and hearing of divers good and worthy citizens, (which said citizens, in whose presence and hearing the following french words in the said first and third [*1 p. 325 counts, in said decla [*] ration set forth, were spoken and published, did then and there understand the french language), the following french words, as in the said first count of said declaration mentioned, to wit, "Il commet adultere" (meaning the said Plaintiff committed adultery, and the following English words, as in the said second count of said decla- ration mentioned, to wit, "Mr. Labady is an adulterer" (meaning that the said Plaintiff had committed adultery) and the following french words as in the said third count of said declaration mentioned and set forth, to wit, "Ce Labady est vraiment un adultere" (meaning said Plaintiff was guilty of adultery) and the following English words as in the said fourth count of said declaration mentioned and set forth, to wit, "he is an adul. terer" (meaning that said Plaintiff had committed, the atrocious crime of adultery) - as well he might do for the cause aforesaid, and this he is ready to verify: wherefore he prays Judgement if the said Plaintiff ought to have or maintain his aforesaid action thereof against him &c. Sibley & Whitney And hereupon further process between said parties is continued until the Term of September now next ensuing. And afterwards, to wit, on the twenty sixth day of September, in the Term of September, in the year of our Lord one thousand Eight hundred and twenty, before the Judges of our Supreme Court aforesaid, at the Council House in the City of Detroit, come as well the said Labadie as the said Richard, by their respective Attornies aforesaid, and the said Labadie by his aforesaid Attornies, now here, makes replication, to the plea of the said Richard, in the words following, that is to say. Replication . And the said Francois Labadie, as to the second Gabriel Richard. .. Gabriel Ricard plea of the said Gabriel Richard, by him sec- adsm. . ondly above pleaded, saith, that he the said Francois Labadie Francis, by reason of any thing by the said Gabriel, in that plea alledged, ought not to be barred from having, and main- taining his aforesaid action thereof against him the said Gabriel, be- cause, protesting that he, (said Francois) did not have carnal knowledge of, and commit adultery with one Mary Grifford, formerly wife, and widow of one Louise Hetre deceased, he the said Francois having then a lawful wife still living, on the said fourteenth day of September in the year of our Lord one thousand Eight hundred and fourteen, in man- ner and form as the said Gabriel hath above in his said second plea in that behalf most wrongfully alledged: - for replication, nevertheless, in this SELECTED PAPERS 6oS behalf, the said Francois saith, that the said Gabriel, at the several times mentioned in said declaration, at Detroit in the said County and Terri- tory, talking and discoursing to and with divers good and worthy citi- zens, and others, who well understood the French language, of and con- cerning the said Francois, did, of his own wrong and mere malice, falsely and maliciously speak, repeat and declare the several french words men- tioned in said declaration, and attempted to be evaded in said second plea of said Gabriel, of and concerning said Francois [*] and charged the [*] p. 326 said Francois with the said crime in said declaration set forth and in said plea attempted to be evaded:- And also, at Detroit aforesaid in said County and Territory, at the said other times mentioned in said declara- tion, the said Gabriel, talking and discoursing with said John S. Roby, and also(as in said declaration mentioned, with Charles Lamrned Esquire and with divers other good and worthy citizens, of his own wrong and mere malice, did falsely and maliciously, repeat speak and declare the said other several English words in said declaration mentioned and in said plea repeated and attempted to be evaded, of and concerning said Francois:- and charged the said Francois with the said other crimes, in said declara- tion described, and in said second plea attempted to be evaded. And the said Francois says, that the said false scandalous and malicious words in said declaration mentioned and in said second plea of said Gabriel re- peated, were uttered, spoken, declared and pronounced by the said Gabriel, as in said declaration is set forth, maliciously and with a view to injure, aggrieve and ruin the said Francois and from the mere malice of said Gabriel and not otherwise; and this he prays may be enquired of by the country. Lamrned &. Woodbridge Attys for Plff. And hereupon further process between said parties is continued until the Term of September now next ensuing. At which day, that is to say, on this sixth day of October, in the Term of September, in the year of our Lord one thousand Eight hundred and twenty one, before the Judges of our Supreme Court aforesaid, at the Council House in the City of Detroit, come, as well the said Richard, as the said Labadie, by their respective Attornies aforesaid, and the said Richard, by Sibley & Whitney, his aforesaid Attornies, rejoins to the aforesaid replication of the said Labadie, in the words following, to wit. Gabriel Richard And the said Gabriel Richard, as to the said rep- Rejoinder adsm. lication of the said Francois Labadie to the said Francois Labadie second plea of him the said Gabriel, and which the said Francois prays may be enquired of by the Country, doth the like. Sibley & Whitney, Atty' 6o6 SUPREME COURT OF MICHIGAN And afterwards, to wit, on this Eleventh day of October, in this same Term of September, in the year of our Lord one thousand Eight hundred and twenty one, before the Judges of our Supreme Court, at the Counci House in the City of Detrot come as well the said Richard as the said Labadie, by their respective Attornies aforesaid; Therefore let a Jury thereupon come before our Judges aforesaid, at the Council House in the City of Detroit, on this day, by whom &c. and who neither &c. to try the issue joined between said parties, because as well the said Labadie as the said Richard, put themselves upon that Jury. And the Jurors of the Jury [*] p. 327 of whom mention is made, to wit, John Bird, Ralph R. Bell [*] Seth Dun- ham, George Gage, Asa Madison, Louis Thibault, John Corbus, Aaron C. Corbett, John Sargeant, David Johnson, Thomas Noxen and Daniel B. Cole, being called also come, who to speak the truth of and concerning the matters herein contained, being duly chosen tried and sworn, do say upon their oaths, that the said Gabriel is guilty in manner and form as the said Francois, hath above thereof complained against him, and do now and here assess the damages of the said Francois Labadie, on occasion of the premises, besides his costs and charges by him about his suit in this behalf expended, to Eleven hundred, and sixteen dollars. Motion in And hereupon the said Gabriel Richard, by Sibley & Whitney, his arrest Attornies aforesaid, says that the Court here ought not to proceed to give Judgement, upon the said verdict and prays that Judgement against him the said Gabriel Richard in and upon the verdict aforesaid, by the Jurors aforesaid, in form aforesaid given, may be arrested and stayed for the reasons following to wit. Reasons in First, That the verdict is given by the Jury against the evidence given arrest and exhibited to the court and Jury. Second, That the words charged to have been spoken, were proved to have been spoken by the defendant in the course of religious discipline, between members of the same religious society - and not cognizable in a Court of Law. Third, That the several words charged to have been spoken by the Defendant of and concerning the Plaintiff are not actionable or such as will support an action at Law. Fourth, That some of the words charged to have been spoken, are not actionable, and for inasmuch as the verdict of the Jury rendered is a general verdict for damages, and it cannot appear to the Court, but, that the same has been rendered on said words, that are not actionable, con- tained in the declaration, therefore no Judgement can be entered on said verdict by this Court. Fifth, That there was a mistrial, for inasmuch as no proper issue was joined on the second plea pleaded by the Defendant. SELECTED PAPERS 607 Sixth, Because illegal and improper evidence was admitted to go to the jury. Seventh, Because there are many and numerous errors, in the pleading not aided or cured by the verdict. Sibley & Whitney Attys for Deft. And because the Court here are not now advised what Judgement to give of and concerning the premises, therefore, further process, between said parties is continued, until the Term of September now next following. At which day, that is to say, in the Term of September, in the year of our Lord one thousand Eeight hundred, and twenty two, before the Judges of our Supreme Court, at the Council House in the City of Detroit, come as well the said Richard as the said Labadie, by their respective Attornies, aforesaid, and hereupon further process, between said parties, is continued until the Term of September, now, next ensuing. [*]At which day, that is to say, on this seventh day of October, in the (*1 p. 328 Term of September, in the year of our Lord, one thousand Eight hundred and twenty three before the Judges of our Supreme Court aforesaid at the Council House in the City of Detroit come the parties aforesaid by their respective Attornies aforesaid, upon which, the parties aforesaid, having been heard, by their respective Attornies aforesaid, in and upon the afore- said motion of the said Richard, in arrest of Judgement, and the Record and matters, aforesaid, having been seen, and by the Court here now fully understood, and all and singular the premises having been examined and mature deliberation, being thereon had, it is considered by the Court now here, that the said Richard do take nothing by his said motion. And upon that the said Richard by Sibley & Whitney, his Attorneys Motion for aforesaid, says that the Court here ought not to proceed to give Judge- New Trial ment against him, upon the said verdict, and prays that the same verdict may be set aside, and that the issue aforesaid, may be tried anew by other Jurors to be afresh empannelled, for the reasons following, to wit. First, Because the verdict is given by the Jury, against the evidence Reasons for given and exhibited to the court and Jury. New-Trial Second, Because the verdict was contrary to Law. Third, Because illegal and improper testimony was permitted to go to the Jury. Fourth, Because previous to the Term of this Court in x820 an order of this court was made on motion of this Defendant for a special Jury to be struck for the trial of this case in obedience to which the Sheriff returned to the clerk's office a pannel of forty eight, from whom a jury was to be struck in this manner, to wit; the parties were each to strike out twelve; the remaining twenty four were to be put in box and twelve 608 SUPREME COURT OF MICHIGAN drawn from the box, who were to be returned as a jury to try this case. -but on examination of the panel on the day appointed to strike the jury, by this Defendant, it was found that out of the forty eight, there were but fourteen catholicks, and that by the operation of the rule for selecting the Jury from the forty eight, such as they were found to be, the object of the rule for a struck Jury was entirely defeated. Fifth, Because in consequence of reasons last assigned the Jury who tried this case were composed of eleven protestants, and one catholick, and was not constituted of such men as was intended and contemplated by this Court when they made the order for a special Jury. Sixth, Because the jurors of the Jury who were empanneled to try this cause and who rendered the verdict in this case were not elected or drawn by ballot from the whole pannel, but were called in the order in which their names stood on the general panel. Seventh, Because, the verdict rendered in this case is inconsistent with and at variance with the issue joined by the pleadings and which was tried by the Jury, inasmuch as the verdict finds the Defendant guilty in manner and form as is charged in the declaration, when the most im- [*] p. 329 portant matters charged in the declaration [*] were put out of the issue by the Plaintiffs own pleadings. Eighth, Because, there were weighty and substantial objections to the credibility of many of the witnesses sworn on the part of the Plaintiff, which were not known to the council, at the time of the trial, on accoun: of the unexpected abscence of the Defendant, at and long before the time of trial. Ninth, Because, there were several witnesses whose evidence was ma. terial and necessary to the defence of the Defendant who were not known to the council at the time of the trial on account of the abscence as afore- said of the Defendant. Tenth, Because, the damages assessed in the verdict of the Jury are excessive. Eleventh, Because,-the matter really and substantially in contest in this case, is of highest importance, not only to this Defendant, but to the largest portion of this community, and is of a nature novel in this country. Twelfth, Because, this cause, after having been once continued on mo tion of Deft's council, at the same term, was ordered on to trial during: the necessary, unexpected and unavoidable abscence of the Defendant from the country, at notice too short for the purposes of doing Justice to the Defendant, and in consequence of which his council could notbe prepared for trial. Thirteenth, Because, the trial was had when but one Judge of this Court, was on the bench, whereby this Defendant was deprived, of the SELECTED PAPERS 609 advantage and right every citizen is entitled to expect, by the Law of the Land, especially in a case so important and novel in its character, to have the benefit of the deliberation of the whole court, and a decision of a majority of the same. And afterwards, to wit, on this Eleventh day of October, in this same Term of September, before the Judges aforesaid at the place aforesaid come the parties aforesaid, by their respective Attornies aforesaid, and the said Richard, by his Attornies aforesaid, having been heard in and upon his aforesaid motion to set aside said verdict, and for a new trial of said issue; - and all and singular the premises having been examined, and by the Court here now fully understood, and mature deliberation being thereon had, it is considered by the Court now here that the said Richard do take nothing by his said motion. And hereupon further process between said parties, is continued, until the Term of September now next ensuing. At which day, that is to say, on this twenty first day of September in the Term of September, in the year of our Lord one thousand Eight hun- dred and twenty four, before the Judges of our Supreme Court aforesaid at the Council House in the City of Detroit, come as well the said Laba- die, by his Attornies aforesaid as the said Richard by Andrew G. Whitney his Attorney, and the said Labadie by his Attornies aforesaid, prays Judgement against the said Gabriel Richard, in and upon the verdict aforesaid, by the Jurors aforesaid, in form aforesaid given. Therefore it is considered [*] by the Court, now here, That the said Francois Labadie [*] p. 330 do recover against the said Gabriel Richard, his damages, by the Jurors aforesaid in form aforesaid assessed to Eleven hundred and sixteen dol- lars; and also thirty five dollars and sixty two and one half cents, for his costs and charges by him about his suit in this behalf expended, by the said Court now here adjudged to the said Francois Labadie and with his assent. Signed by order of the Court In open Court - Decr 6th. 1825. J. KEARSLEY. Clerk. [Judgment Records, Book B, MS PP. 319-30] 6Io SUPREME COURT OF MICHIGAN [Case 645, Paper 17] [Indorsement] 39. 1821 Sup. Court Rouse & Smith vs Mack & Fisher Plea. Filed in Court. Octr 2. 1821 F. HINCHMAN Dy Clk. [Indorsement] Rouse & Smith vs Mack & Fisher Plea [Case 645, Paper 171 SUPREME COURT TERRITORY OF MICHIGAN TOWIT SEPTEMBER TERM IN THE YEAR OF OUR LORD ONE THOUSAND EIGHT HUN DRED AND TWENTY George Washington Rouse & Silas Smith pffs. Action sur case &c vs Plea Stephen Mack and Otis Fisher Defts. And now the said Stephen Mack one of the defendants in this suit, comes by Woodbridge & Lanman his Attorneys & protesting the he in no wise assumed & promised as the plaintiffs in their declaration hath alledged for plea saith that the said Otis Fisher one of the defendants is dead and died during the pendency of this suit - before any interlocutory judgment had been rendered therein & before the said plaintiffs filed their said declaration to wit on or about the third day of May of the year of our Lord one thou- sand eight hundred & twenty in Canada towit in the Territory of Michigan SELECTED PRPERS 6zi & this he is ready to verify & therefore prays judgment of the said writ & that the same and the proceedings in the premises may be quashed & for nothing holden &c WOODBRIDGE & LANMAN [In the handwriting of William Woodbridge] [Case 645, Paper 20] [Indorsement] 39. 1820 Sup Court Rouse & Smith vs Mack & fisher Notice to Administrator I have summoned the within named James McCloskey & Shubael Conant-Detroit. Sep. 9th 1822. A. E. WING Sheriff Service $i.oo on the 2nd 50 $1.50 Mileage 122 $I.6242 Filed in the Clerks office Sept 9. 1822 M DORR Clk [Case 645, Paper 20] SUPREME COURT. George W. Rouse & Silas Smith vs. To 7ames McCloskey and Shubal Conant. Stephen Mack & Otis Fisher You and each of you are hereby notified to appear, as administrators of the Estate of Otis Fisher deceased, one of the defendants in the above en- titled cause, before the Judges of the Supreme Court of the Territory of 6i2 SUPREME COURT OF MICHIGAN Michigan, at the Council House in the City of Detroit on the third Monday of September Instant, to answer for the said Otis Fisher deceased, in the above entitled cause. Detroit September 9th. I822. By order of the Court. [SEAL] MELVIN DORR Clerk [Case 648, Paper 2 ] [Indorsement] 29 1820 Hubbel & Cory vs John Anderson Deft' Plea & Notice filed in the Clerks Office Dec 13. 1821 M DORR Clerk [Case 648, Paper 21] Hubbel & Cory IN SuP. COURT. v. Deft' Plea John Anderson And the Said John Anderson the Deft in this case by Hunt & Lamrned his Atty comes & defends the wrong & injury when &c & for plea Says, he never promised the Plaintiffs as they in their declaration against him have alledged And thereof he puts himself on the country for trial And the Pltffs likewise HUNT & LARNED by WOODBRIDGE & SIBLEY Atts And the Said Def, hereby gives notice to the Plf or his Attorneys that the PfIP not having furnished a bill of particulars in this case as demanded, he will will move the court to withdraw this plea & plead anew at the next Term of this Court HUNT & LARNED SELECTED PAPERS 613 [Case 66o, Paper 3] [Indorsement] Sup: Court N° 2 Oliver Rose vs 1 JP" G. Taylor Gent Bill of Privilege Sib: & Whit: Filed in Court Nov. 16. 1819. [Case 660, Paper 31 OF THE TERM OF SEPTEMBER TERRITORY OF MICHIGAN ONE THOUSAND EIGHT HUNDRED AND NINETEEN. suP: COURT, Oliver Rose Plaintiff in this cause complains of William G. Taylor, Gentleman one of the Attornies of this Supreme Court of the Ter- ritory of Michigan, present here in Court in his own proper person, defend- ant in this cause, of a plea that he render to the said Plaintiff the sum of four hundred and fifty two dollars and fifty Six cents lawful Money of the United States, which he owes to and unjustly detains from him the said Plaintiff, for that whereas the said Plaintiff heretofore, to wit, in the Term of February, in the year of our Lord One thousand Eight hundred And Eighteen, before the Judges and Assistant Justices of the Court of Com- mon Pleas, held at the Court house in the town of Canandaigua in And for the County of Ontario, in the State of New York and within the Jurisdic- tion of the said court of said county & state aforesaid, to wit, at the City of Detroit in the County of Wayne, and within the Jurisdiction of this Court, by the Consideration & Judgment of the said court of Common pleas in & for the said County of Ontario in the state aforesaid, recovered against the said Defendant as well the sum of four hundred and twenty five dollars and thirty Cents, for his damages which he the sd Plaintiff had sustained by occasion of the taking and converting, by the said Defendant, of Certain Goods and Chattels the property of him the said Plaintiff, as also the sum of twenty seven dollars and twenty six cents for his Costs And charges by him about his suit in that behalf laid Out And Expended to the said Plain- tiff by the said Court of said County aforesaid, then And there Adjudged, making and amounting together in the whole to the sum of four hundred and fifty two dollars and fifty six cents: the sum of money above demanded 614 SUPREME COURT OF MICHIGAN whereof the said Defendant is convicted as by the proceedings And Record thereof remaining in the said Court of Common pleas aforesaid before the said Judges and Assistant Justices, which Record duly Authenticated, ac- cording to the provisions of the Act of Congress in that Case made & provided and here shown the Court, more fully appears; which said Judg- ment Still Remains in full force, Strength And Effect, And not in Any wise, reversed, Annulled, vacated or Satisfied: whereby an Action hath Acrued to the Said Plaintiff to demand and have of the said Defendant the said Sum of four hundred And fifty two dollars And fifty Six Cents, above de- manded, - yet the said Defendant, Altho' often requested hath not yet paid the said sum of four hundred and fifty two dollars & fifty six cents, or any part thereof to the said Plaintiff, but to pay to him the said Plaintiff, the same or any part thereof hath hitherto wholly refused And Still doth Refuse to the damage of the said Plaintiff of One hundred dollars and there- fore he brings suit. SIBLEY & WHITNEY. Att' TERRITORY OF MICHIGAN suP: COURT Oliver Rose puts in his place Sibley And Whitney his Attornies against Wm G. Taylor in a plea of Debt. [In the handwriting of Andrew G. Whitney] [Case 660, Paper 5] [Indorsement] No0 6 Sup: Court Supreme Court Oct 3d 1820 N° 6 Rose Aft of vs Service Taylor of Bill & Rule [Case 660, Paper 5] TERRITORY OF MICHIGAN SUPREME COURT Oliver Rose Personally appeared before me, the undersigned One vs of the Justices of the peace in And for the County of William G. Taylor Monroe - A. G. Whitney who being duly sworn de- poseth And saith that on this seventh day of Febru- ary One thousand Eight hundred And twenty he this deponent, did make serv- ice of a Copy of the Bill of Privilege in the above entitled Cause, certified SELECTED PAPERS 615 under the hand of the clerk of the Supreme Court - and also a copy of the Rule of the Supreme Court entered in the above cause on Friday the thirty first day of December One thousand Eight hundred and Nineteen, certified also by said clerk as aforesaid, on Wm G. Taylor aforesaid, by delivering the same into the hands of the said W. G. Taylor at his office between the hours of Ii. & 12 O'Clock of sd 7th day of Feby and further this deponant saith not. A G WHITNEY [In the handwriting of Andrew G. Whitney] Subscribd & sworn to this Seventh day of Febry A.D. 1820 Before me CHAS NOBLE. Justice of the Peace [Case 671, Paper 12] [Indorsement] 68. 1820 Supreme Court Asa S. Fox vs h Luc 3ollette Plea. Filed in Court. Oct. 6. 1821. F. HINCHMAN Dy Clk. [Case 67I, Paper 12] TERRITORY OF MICHIGAN SS IN THE SUPREME COURT OF THE TERRITORY OF THE TERM OF SEPTEMBER, IN THE YEAR OF OUR LORD ONE THOUSAND EIGHT HUNDRED & TWENTY ONE NO year page Asa S Fox Action originally instituted before year page vs Thos Rowland a Justice of the peace 50 - 20 - 68 Luc 7ollette in & for the County of Wayne in Oct. 1819, demand $40 for 16 Cords of Wood 2.50 a Cord. And the said Luc Jollette, by George McDougall his Attorney, comes and defends the wrong and injury, when &c and as to all the said several sup- posed promises & undertakings in the said Declaration mentioned except as to the Sum of Two Dollars and fifty Cents parcel of the said several 616 SUPREME COURT OF MICHIGAN Sums of Money, in the said declaration mentioned, says that he did not undertake or promise in manner and form as the said Asa B Fox hath above thereof complained against him and of this he puts himself upon the Country & & the Plaintiff likewise And as to the said sum of One hundred Dollars - parcel of the said several sums of money in the said Declaration men- tioned, the said Luc Jolette says that the said Asa S Fox ought not to have, or maintain his aforesaid action thereof against him to recover any more or greater damages than the said sum of two Dollars and fifty cents & in this behalf, because he says that after the making of the said several prom- ises and undertakings in the said Declaration mentioned as to the said sum of Two Dollars and fifty cents parcel &C and before the commencement of this Suit before Thomas Rowland Esquire to wit on the thirtieth day of September in the year of our Lord one thousand eight hundred and nine- teen at Detroit in the County of Wayne and territory aforesaid he the said Luc Jolette was ready and willing, and then and there tendered and offered to pay, to the said Asa S Fox the said sum of two Dollars and fifty cents parcel &C, to receive which of the said Luc Jolette, he the said Asa S Fox then and there wholly refused, And the said Luc Jolette in fact further saith that he the said Luc Jolette hath always from the time of the making of the said several promises and undertakings in the said Declaration mentioned as to the said sum of two Dollars and fifty cents parcel &C, hitherto at &' aforesaid been ready to pay, and still is there ready to pay to the said Asa S Fox the said sum of two Dollars and fifty cents parcel &C and he now brings the same into Court here ready to be paid to the said Asa S Fox if he will accept the same, And this he the said Luc Jolette is ready to verify, where- fore he prays Judgment if the said Asa S Fox ought to have or mantain his aforesaid action against him to recover any more or greater damages than the said sum of two Dollars and fifty cents parcel &' in this behalf &c. And this he the said Luc Jolette is ready to verify wherefore he prays Judgment if the said Asa S Fox ought to have or mantain his aforesaid action thereof against him &c GEO MCDOUGALL Atty for L Jolett [Case 673, Paper 12] To the Honorable Augustus B Woodward The petition of William G Taylor humbly Represents That Enoch Fifield & Ester Frary administratrix of the Estate of David Frary Deceased, did at the last September Term of the Supreme Court of the Territory of Mich- igan recover Judgment against your Petitioner Wolcott Lawrance Lowrin Marsh & Heman Brown Jr. for the Sum of thirteen Hundred Dollars- your petitioner not having appeared to answer said Action supposing the SELECTED PAPERS 617 same was discontinued - and your petitioner alledged that the said action was originally brought in the Name of Enoch Fifield, & David Frary, and that the said Esther Frary administratrix of the said David, has been made a party Plaintiff to said Suit contrary to Law as your petitioner humbly apprehends & is advised and the Judgment found is in the Name Jointly with the said Fifield and your petitioner further represents that the decla- ration in said action was filed more than twelve months after the commence- ment thereof without the leave of the Court aforesaid being obtained for that purpose as your petitioner is informed - when in fact it ought to have been filed at a much earlier period or the said writ be discontinued and your petitioner further states the Judgment in fact ought to have been in favour of your petitioner - when in fact is against him and that there are many errors in fact and Law in obtaining the Judgment aforesd and your peti- tioner prays an allowance of a writ of Error Coram nobis - to retify the Error aforesaid that Justice may be done in the premises as your petitioner in duty Bound will pray Sept loth 1823 W G TAYLOR [In the handwriting of William G. Taylor] [Case 673, Paper 13] Enoch Fifield & Esther Frary vs William G Taylor Lowrin Marsh Wolcott Lawrance & Jeman Brown Jnr William G Taylor one of the above Named De- fendants being duly sworn saith that the declaration in the above cause was filed twelve Months after the commencement of the above Action, originally commenced in the Names of Enoch Fifield & David Frary - when in fact the said Declaration ought to have been filed according to the statute within a much shorter period as this deponant is advised - and this deponant further saith that the Name of Esther Frary administratrix of David Frary has been added to the said declaration - and made a party to said Suit, after the commencement of said action as this deponent is informed - and that Judgment has been entered against this deponent and the above De- fendant in favour of the said Enoch Fifield & Esther Frary administratrix aforesaid - without the consent or approbation of this Deponent - when in fact it ought to have been in favour of this deponent - as this deponent is advised - & believes - and this deponent further saith the said Decla- ration was not as this deponant is informed filed by the permission of the 618 SUPREME COURT OF MICHIGAN Court or any order granted for that purpose - Neither was the said Esther made a party to said Suit by the consent of this deponent Subscribed and Sworn this fifteenth day of September one thousand Eight Hundred and Twenty three W G TAYLOR before me WOODWARD, Judge, [In the handwriting of William G. Taylor] [Case 673, Paper 14.] SUPREME COURT Wm G. Taylor. Wolcott Lawrence Lowrin Marsh & Heman Brown Jnr. adm. Enoch Fifield & Esther Frary administratrix of the Precipe for a Writ of Error, Coram Nobis Estate of David Frary Diseased, The Clerk of the Supreme Court will issue a Writ of Error for William G Taylor Wolcott Lawrence Lowrin Marsh & Heman Brown Jnr. at the Suit of Enoch Fifield Esther Frary administratrix of David Frary Diseased on a Judgement in favour of the Said Enoch & Esther in trespass on the case, - Returnable on the third Monday of Sep tember Instant. William G Taylor. In person Detroit. Sept. 1oth I823 [In the handwriting of Charles C. Trowbridge] SELECTED PAPERS 619 [Case 673, Paper I5] [Indorsement] 126 182o Supreme Court William G Taylor Wolcott Lawrence Lowrin Marsh & Heman Brown Jr adm Enoch Fifield & Esther Frary admx &c Precipie & petition for Writ of Error Coram Nobis Taylor in person Filed in Clerks office 15 Sep. 1823 JER. V R TEN EYCK D' Clerk [Case 673, Paper Is5] MiCHIGAN TO WIT Let a writ of Error Coram Nobis issue on this petition - and when the applicant shall enter into recognisance with sufficient security in an amount double of the original Judgment - let a Supersedeas issue WOODWARD, Judge. Michigan, Monday, September 15th, 1823, half after nine of the clock, ante meridiem. 62o SUPREME COURT OF MICHIGAN [Case 694, Paper 2] [Indorsement] fohn /ewell vs. Abraham Noyes. Petition notice Returnable on the first day of Novr at o10. A M [Case 694, Paper 2] TERRITORY OF MICHIGAN COUNTY OF WAYNE ) to two of the 7ustices assigned to keep the pea( in and for the County aforesaid Abraham Noyes Respectfully sheweth that he is Confined in the Common goal in the County of Wayne on Execution i favour of John Jewell issued out of the County Court of Wayne County and that he is not able to maintain himself in prision and pay prision Charges and prays releif according to Law that his creditors may be notified of his intentions of takeing the benafit of the act for the releif of poor prisenors Committe on Execution for Debt Detroit prision Oct Ilth A.D. I8: Wit W, HOWARD ABRAHM NOYES [Case 694, Paper 3] [Indorsement] 7n° 7ewell vs. Abraham Noyes. Notice. I have served the within by leaving a Certified copy with the Pltffs Attorney S. T. Davinport Oct. I Ith 1820. A EWING Shff of Wayne Cy Service $0.25 Mileage 6 $0.31 SELECTED PIAPERS [Case 694, Paper 3] To Mr john 7ewell or to Samuel T. Davinport Esq his Attorney. SIR, Abraham Noyce, a prisoner confined on an execution in your favor, hav- ing set forth in his petition that he is desirous of taking the benefit of the act entitled "an act concerning poor prisoners" I have appointed the first day of November next at ten o'clock in the forenoon, for you to appear at my office and shew cause if any you have, why he should not be discharged, according to the provisions of said act. THOMAS ROWLAND Detroit Oct I Ith 1820. Justice of the peace [Case 694, Paper 4] TERRITORY OF MICHIGAN COUNTY OF WAYNE )sS Before me the undersigned Justice at the Gaol of the County aforesaid Personally came Abraham Noyce a Prisoner confined on execution for debt at suit of John Jewel and made oath that he is unable to maintain himself in prison ABRAHM NOYES Sworn and subscribed before me this 12th October 1i820 THOMAS ROWLAND Justice of the peace We the undersigned Justices having duly examined the above named Abraham Noyce are of Opinion that he is unable to maintain himself in prison, and direct the Sheriff to maintain him in diet at the expence of the plaintiff. GEO MCDOUGALL THOMAS ROWLAND justice of the peace Co W T M Justice of the peace [Indorsement] 1 have served the within by Leaving a certified copy with Samuel T. Davin- port the Atty for the Plaintiff Detroit October I2th I820. Service $o.25 Mileage 6 $0.31 AE WING Shff of Wayne County. 622 SUPREME COURT OF MICHIGAN [Case 695, Paper 2] [Indorsement] 1820 7ohnson. ohnson Brief on ads. Grignon Motion. Grignon Doty for Deft. [Case 695, Paper 2] SUPREME COURT. George onston Appeal from the Court of the county of Michili. George Johnston. adsmackinac Louis Grignon Motion by Defts. Atty. that the judgment of the L gCourt below be reversed. zst The Court below had not jurisdiction of the case. It is an action of trespass quare clausum fregit, alledged and charged in and by the declaration to have been committed at Green Bay in the Countv of Brown; and hence the said court could in no manner take cognisance of, try and render judgment in, said action, being Statute limited in their juris- diction to the County of Michilimackinac. "Wherever the cause of action must necessarily have arisen in any par. i Sellon's ticular county, or wherever the parties to the suit become such by mere Practice privity of estate, as it is called, such action is local, and must be brought in 262 that county where the cause of action arose." "With respect to the firs: part of this definition, it may be easily understood; and it is obvious, that it must comprehend all actions where the possession of the land is to be recovered, as ejectment and the like; and also where any actual trespass or waste has been committed on any premises; &c' Selwin's "The action of trespass quare clausam fregit, is a local action, and conse- N. P. 1232. quently the venue must be laid in the county where the land lies." Doulson Trespass committed in Canada, action brought in England - held not vs. maintainable. Mathews This error of instituting the action in a wrong County, may be taken 4T. R. 503.y advantage of after the general issue plead, in any manner to arrest the judgment. It is a good ground for non-suit. "If the action be really local, and the venue be not of the proper county. i Sellon's should it appear on the face of the declaration, it would be demurrable to; or if Prac. 265. it is proved on the trial, the plaintiff will be nonsuited." SELECTED PAPERS 623 ?' It is not stated positively in the declaration that the plff. owned, or was in possession of the premises at the time of the alledged trespass. He could not have been the owner, because the Lands at Green Bay have never been confirmed to the persons in possession, and the title still rests in the Government of the United States. "Being founded on an injury to the possession, it is essential that the Selwin's defendant should be in possession of the close at the time when the injury N. P. 1227. is committed." This court cannot presume the possession proved in the court below, be- cause it was not stated in the declaration - unless averred it could not be proved. 3d The Seal of the court below was not affixed to the writ in this case, and hence the arrest was illegal. J. D. DOTY Octr 17. 1820. Atty. for Deft. [In the handwriting of James Duane Doty] [Case 697, Paper I] [Indorsement] 55 Sup:Court. 1821 In the matter of John Campbell. Petition for Hab: Cor: Filed in the Office of the Clerk of Supreme Court Ap' 9. 1821 M DORR Clerk [Case 697, Paper i] To the Hon: A. B. Woodward Presiding 7udge of the supreme Court of the Territory of Michigan. The Petition of John Campbell of the City of Detroit, humbly sheweth that your petitioner is confined and held in prison in the Common Goal of the County of Wayne, on a Commitment from the office of Mr Justice Rowland, on the Application of David Pond - Stating your petitioner to be a slave absconding from his Master, and that he the Sd David Pond is authorized to take your petitioner into his Custody. - And the sd David Pond threatens to transport your petitioner from this Territory, with the intention of carrying him to his supposed master, but as your petioner has 624 SUPREME COURT OF MICHIGAN cause to fear & believe, with the intention of Selling him as a slave.- Whereas your petitioner declares and avers that he is not a Slave --And that the Said David Pond has no legal power or authority whatever to take or meddle in any way with your petioner, or deprive him of his personal liberty. Wherefore, your petitioner believing himself unjustly, and illegally imprisoned, contrary the Laws of the Land, humbly prays your honor to grant a Writ of habeas Corpus, in his behalf, directed to the Sheriff of the County of Wayne, as Keeper of Sd Goal, to bring him before your honor; returnable at such time & place as your honor may direct, that he mayl discharged & Released from his illegal imprisonment. And as in duty bound will ever pray. his Detroit April 9th I821. JOHN X CAMPBELL Attest Mark SAML T. DAVINPORT JR W, HOWARD Michigan, to wit; Let a writ issue returnable to Wednesday next before the Supreme Court. WOODWARD, judge. April 9. 1821. [Case 697, Paper 2] [Indorsement] Commitment of John a Black Man a fugitive from labour [Case 697, Paper 2] TERRITORY OF MICHIGAN THE UNITED STATES OF AMERICA TERRTOR OF ICHGAN SS COUNTY OF WAYNE To the Goaler of the County of W'ayv' WHEREAS David Pond of Bourbon County Kentucky hath produced before the undersigned Justice a Black Man who calls himself John but whose r:ai name as is said is Allen and the said David Pond having been solemnly sworn upon the Holy Evangelists of Almighty God deposeth and saith that he verily believes the said Blackman is a fugitive from Labour and a slave the property of Samuel Lamme of Harrison County Kentucky and that he the said David Pond the deponent is authorized by the said Sam' Lamme to seize and deliver said fugitive to his Master and the said David having exhibited an Advertisement describing minutely the said Blackman and purporting to be signed by the said Samuel Lamme but further evidence SELECTED PAPERS 625 being deemed requisite under the Act of Congress. The Goaler is hereby required to receive and keep the said John alias Allen a Black Man in se- cure Custody untill further Examination can be had for which I have assigned Thursday the Twelfth day of April next Given under my hand at Detroit the 4th day of April 1821 (Signed) Tho' Rowland Justice of the Peace I certify the above to be a true copy of the original on file at the goal Detroit March 11th 1821 AUSTIN E WING Copy o 1834 Sheriff of Wayne County [Case 698, Paper 5] [Indorsement] In Matter of Ezra Younglove Copy of Petition of Prisoner for his Support in prison, from Justice Rowland's office filed in Court, April I I. 1821. [Case 698, Paper 5] Copy of the petition of Ezra Younglove to Justices Rowland and Doty for an order for support in prison, and the decision on that prayer, respecting the support. "TERRITORY OF MICHIGAN To two of the 7ustices assigned to keep the "COUNTY OF WAYNE ) peace in and for the County aforesaid, "Ezra Younglove respectfully sheweth, That he is confined in Gaol on Exe- "cution issued from Justice Doty's office and in favor of James May Esq, "and that he is not able to maintain himself in prison and pay prison "charges, and prays relief according to law, that his creditor may be notified "of his intention of taking the benefit of an act for the relief of poor debtors, "committed on execution for debt. "Detroit Prison April 5th I821. Wit. W. Howard. (Signed) Ezra Younglove. 626 SUPREME COURT OF MICHIGAN Order endorsed thereon: "We the undersigned Justices of the Peace, hay- "ing attended at the gaol on the within application, and having examined "the within named Younglove upon oath, are of opinion that the application "so far as relates to support, ought not to be allowed, he not having satis. "fled us of his inability to support himself in prison and to pay prison "charges. "Detroit April 6th 1821. (Signed) Thomas Rowland Justice of the Peace (Signed) J. D. Doty Justice Peace. I Certify the above to be a true copy of the petition and order now on file in THOMAS ROWLAND my office. Detroit April II. 1821 Justice of the peace [Case 706, Paper i] [Indorsement] Examination of Ke-wa-bish-kim. Received in the office of the Clerk of the Supr Court Sept I1Ith 1821 M DORR Clk [Case 706, Paper I] TERRITORY OF MICHIGAN SS. BROWN COUNTY Be it remembered that on the Sixth day of July in the year of our Lord one thousand eight hundred and twenty one, Personally came before me tfe undersigned a Justice of the Peace in and for the County aforesaid Ke-wa. bish kim an Indian of the Me no min na Tribe charged with the Murder of Charles Ulrick on the fourth day of September one thousand eight hundred and twenty, at Green Bay County and Territory aforesaid, upon due exami- nation he the said Ke-wa-bish-kim deposeth and Saith that about the time abovementioned one other Indian and himself, slept in the new house of Robert Irwin Jr. in Green Bay, where the said Charles Ulrick was lodged also; that about day break one Morning he the said Ke-wa-bish-kims friend SELECTED PAPERS 627 came to him and awoke him and observed let us take that hat pointing to one in the Room where the said Charles Ulrick slept, accordingly they took it and Started down to Mr Lewis Rouse and there pledged the hat for goods to the value of five muskrats about five or Six days after he the said Ke-wa- bish-kim was informed that the said Charles Ulrick intended to flog him the foregoing information he received on his way up the River however he proceeded on about five miles from the mouth of Fox River and Stoped at a M' Carbonoes where he met with the said Charles Ulrick, he the said Ke-wa-bish-kim expecting he would be attacked by the said Charles Ulrick he fled for the woods but soon was overtaken by the said Charles Ulrick Antoine Carbonoe and Joseph Howl when the said Charles Ulrick Struck him the said Ke-wa-bish-kim several times with his fist, he the said Ke-wa- bish-kim and the said Charles Ulrick then Started down along the bank of Fox River untill they came to Joseph Ducharm house near the present Site of Camp Smith in Green Bay where they remained untill about Sun down, when he the Said Ke-wa-bish-kim Solicited the Said Charles Ulrick to ac- company him down to Lewis Rouse and get the hat beforementioned the said Charles Ulrick accordingly complied they both then departed from the house crossed the field in the rear of the aforesaid house and entered the woods they proceeded but a few yards before they both seated them- selves on the ground and after conversing a short time together he the Said Ke-wa-bish-kim, rose up and drew his Knife and Stabbed him the said Charles Ulrick in the breast. So Soon as he had Stabbed him the Said Charles Ulrick leaped up and run and jumped over the fence and fell dead he supposes a few steps from the fence he the said Ke-wa-bish-kim, further States that he Solicited him the said Charles Ulrick to go with him with the positive intention of murdering him the said Charles Ulrick if in his power and that he chose the Rout they took because he the said Ke wa bish kim thought it would favor his views. So soon as he had committed the deed he the said Ke-wa-bish-kim States that he Started for the Rapids in Fox River about five miles up said River, and further the Prisonor Saith not. Taken before me at Green Bay County of Brown and Territory of Michigan this Sixth day of July A D. 1821. ROBERT IRWIN JR. Justice of the Peace C.B. [In the handwriting of Robert Irwin, Jr.] 628 SUPREME COURT OF MICHIGAN [Case 706, Paper 2] [Indorsement] Received in the office of the Clerk of the Supreme Court Sept II. 1821 M DORR Clk [Case 706, Paper 2] TERRITORY OF MICHIGAN SS. cOUNTY OF BROWN Be it remembered that on the thirtieth day of July 1821 Personally came before me the undersigned a Justice of the Peace within Said County Ebe- nezer Childs of Said County who being duly Sworn according to law says that about the first day of September Eighteen hundred and twenty he was passing in the front of Joseph Ducharms farm on the East bank of Fox River in Green Bay County aforesaid about Sun down that he saw Charles Ulrick cross one of the fields of the said Joseph Ducharm in Company with an Indian and enter the woods in the rear of the field Soon after he heard two or three Screams, but paid little attention to them and proceeded on as far as Mr Daniel Whitneys Store where he the witness remained but a few minutes and on his coming out of the Store he discovered Some persons run from Joseph Ducharms house in the direction he thought that he had heard the Scream before mentioned he the witness Suspecting something wrong he Started also on his arrival at the fence on the opposite Side of the field he discovered the abovementioned Charles Ulrick lying about ten feet from the fence on the inner Side dead on examination he discovered a wound on the left breast apparently made by a Knife he the witness further States that he traced blood about four rods into the woods on the opposite side of the fence. Further this deponent Saith not. Taken before me the day and year first above written at Green Bay. ROBERT IRWIN JR. Justice of the Peace. On the thirteenth day of July Eighteen hundred and twenty one. Person- ally came before me the undersigned a Justice of the Peace within the County of Brown Lewis Ducharm who says that he thinks about the first of September 1820 in the Evening about Sun down while he was engaged in milking his Fathers Cows he Saw Charles Ulrick and Ke-wa-bish-kim SELECTED PAPERS 629 an Indian of the Minomina tribe walking down the road on the East bank of Fox River towards his Fathers House on there arrival at the house they Seated themselves and entered into conversation but too far from the witness he could not understand what they said but saw the said Ke-wa- bish-kim point with his finger towards the woods imediately they both arose and proceeded across the field towards the woods where they entered and did not remain the witness thinks more than ten or twelve minutes before he heard Some person Cry out My God My God and imediately discovered the said Charles Ulrick Jump over the fence in the rear of the field and fall he the witness then in Company with two or three others proceeded to the place where they had discovered him fall on their arrival they found the said Charles Ulrick dead lying about ten feet on the inner Side of the fence on examination they discovered a wound on the left breast apparently made by a Knife, the witness further States that he saw the said Ke-wa-bish-kim Stand about fifteen yards from where the Said Charles Ulrick while they were examining the wound but he soon Started across one of the neighbour- ing fields and direct his course towards Fox River at the Same time flourish- ing his hand and exclaiming look there look there he is in his own toungue and I have delivered up my body, further this deponent Saith not. Taken before me this thirtieth day of July 1821. at Green Bay ROBERT IRWIN JR. Justice of the Peace On the day and year above mentioned at Green Bay personally came be- fore me the undersigned a Justice of the Peace within the County of Brown Luke La Bord who says that about the first of September 1820 one Eve- ning about Sun down he discovered from his Fathers house Charles Ulrick and Ke-wa-bish-kim and Indian of the Manomana tribe cross a fence in the rear of Joseph Ducharms farm and enter the wood together Soon after he heard Some person Cry out my God My God and presently discovered Charles Ulrick come out of the wood and leap over the fence into the field and fall he the witness imediately ran to where he fell and found the said Charles Ulrick lying about ten feet on the inner Side from the fence on examination they discovered a wound on the left breast apparently done with a Knife the Witness further States that the said Ke-wa-bish-kim Stood about twelve or fifteen yards from where Charles Ulrick lay at the time they approached the body and further this deponent saith not. Taken before me this Thirtieth day of July Eighteen hundred and twenty one at Green Bay. ROBERT IRWIN JR. Justice of the Peace C.B [In the handwriting of Robert Irwin, Jr.] 630 SUPREME COURT OF MICHIGAN [Case 706, Paper 3] [Indorsement] To The Clerk of the Supreme Court of the Territory of Michigan Detroit M Ty Recd by the Clerk of the Court Sept. I1th I821 filed in Ge~or Sept 2 [Case 706, Paper 3] Green Bay T.M. 2d August 1821 To the Clerk of the Detroit Supreme Court SIR you have herewith enclosed the examination of Ke-wa-bish-kim an Indian of the Manomina tribe charged with the Murder of Peter Ulrick a Citizen of this place in the fall of Eighteen hundred and twenty, and Ka-ta-koh an Indian of the Chippewa tribe charged with the Murder of Doct. William S. Madison of the third Regiment United States Infantry near Man-a-tu-walk river in May last together with the examinations and recognizances of all the Material witnesses I believe excepting one Man that was with Doct Madison when he was shot but is now at Chicago on express should he return in Season I will examine him. I hope there may be some indulgence allowed by the Court should the documents now forwarded prove not exactly in form it being the first proceedings of the Kind I have ever been engaged in; and being destitute in a great Measure of all the forms used in such cases. Yours very Respy ROBERT IRWIN JR. Justice of the Peace C.B. P.S. Since writing the above Elijah McCray has returned from Chicago and I have examined and recognized him and have herewith enclosed said examination and Recognizance. ROBERT IRWIN JR. Jus. Peace. C.B. [In the handwriting of Robert Irwin, Jr.] SELECTED PAPERS 631 [Case 706, Paper 5] [Indorsement] The United States of America us Ke-wa-bish-kim. A True Bill Louis BEUFAIT Foreman Filed in Court. Sept 19th 1821. F. HINCHMAN Dy Clerk. Witness Louis Ducharm Luc La Bord Louis Dequinder Barnabe Campau Louis Boufet Ebenezer Childs Grand Jury Room 19th Sept' I821 [Case 706, Paper 5] SUPREME COURT OF THE TERRITORY OF MICHIGAN. OF THE TERM OF SEPTEMBER, ONE THOUSAND EIGHT HUNDRED AND TWENTY ONE. The Grand Jurors of the United States, in and for the body of the Terri- tory of Michigan, upon their oath present, That Ke-wa-bish-kim, an Indian, of the Menomini tribe, not having the fear of God before his eyes, but be- ing moved and seduced by the instigations of the Devil, on the fourth day of September, one thousand eight hundred and twenty, with force and arms, at Green Bay, in the County of Brown, in the Territory of Michigan, and within the jurisdiction of the Supreme Court of the Territory of Michigan, in and upon one Charles Ulrick, in the peace of God and of the United States then and there being, wilfully and of his malice aforethought, did make an assault, and that he the said Ke-wa-bish-kim, with a certain Knife, of the value of sixpence, which he the said Ke-wa-bish-kim in his right hand then 632 SUPREME COURT OF MICHIGAN and there had and held, the said Charles Ulrick, in and upon the left breast of him the said Charles Ulrick, then and there wilfully, feloniously and of hi malice aforethought, did strike, and thrust, giving to the said Charles 12. rick, then and there, with the knife aforesaid, in and upon the aforesaid lef breast of him, the said Charles Ulrick, one mortal wound, of the breadth of one inch, and of the depth of three inches, of which said mortal wound the said Charles Ulrick, on the said fourth day of September one thousand eigh: hundred and twenty, at Green Bay, in the county of Brown, in the Territory of Michigan, Died; and so the Jurors aforesaid, upon their oath aforesaid. do say, That the said Ke-wa-bish-kim the said Charles Ulrick, in manner and form aforesaid, wilfully and of his malice aforethought, did murder, against the peace and dignity of the United States of America, and against the statute of the Territory of Michigan in such case adopted and provided. And the Jurors aforesaid, of the United States aforesaid, in and for the Territory of Michigan aforesaid, on their oath aforesaid, further present, That Ke-wa-bish-kim, an Indian, of the Menomini tribe, not having the fear of God before his eyes, but being moved and seduced by the instiga. tions of the Devil, on the fourth day of September one thousand eight hun. dred and twenty, at Green Bay, in the County of Brown, in the Territory of Michigan, and within the jurisdiction of the Supreme Court of the Ter. ritory of Michigan, in and upon one Charles Ulrick, in the peace of God and of the United States then and there being, feloniously, and in the fury of his mind, did make an assault, and that the said Ke-wa-bish-kim, with a cer- tain knife, of the value of Six pence, which he the said Ke-wa-bish-kim, in his right hand then and there had and held, the said Charles Uldrick, in and upon the left breast of him the said Charles Ulrick, (the said Charles Ulrick then and there not having any weapon drawn, nor the said Charles Ulrick then and there having first stricken the said Ke-wa-bish-kim) then and there in the fury of his mind, feloniously did strike and stab, giving unto the said Charles Ulrick, then and there, with the knife aforesaid, in and upon the left breast of him the said Charles Ulrick, one mortal wound, of the breadth of one inch and of the depth of three inches; of which said morta wound, he the said Charles Ulrick, then and there instantly Died; and so the Jurors aforesaid, on their oath aforesaid, do say, that the said Ke-wa- bish-kim, him the said Charles Ulrick, in manner and form aforesaid, then and there feloniously, and in the fury of his mind, did kill and slay, against thepeace and dignity of the United States of America, and against the statute of the Territory of Michigan in such case adopted and provided. CHAS LARNED Atty Gen' T MD SELECTED PIAPERS 633 [Case 706, Paper Io] [Indorsement] filed in Court Oct ° I2th I821 MELVIN DORR Clerk [Case 706, Paper io] TERRITORY OF MICHIGAN IN THE SUPREME COURT OF THE TERRITORY The United States orF MICHIGAN, IN AND FOR THE TERM OF US SEPTEMBER, IN THE YEAR OF OUR LORD, ONE Ke-wa-bish-kim THOUSAND EIGHT HUNDRED AND TWENTY ONE And the said Ke-wa-biskim in his proper person, and by George A OKeeffe, one of the Counsel assigned by this Honorable Court on his be- half, come and say, wherefore Judgment should not be rendered against him, upon the verdict had and obtained against him, at the present term of this Honorable Court, for the alledged murder of Charles Ulrick, on the fourth day of September one thousand eight hundred and twenty at Green bay in the County of Brown, in the Territory of Michigan First for that the said Ke-wa-bish-kim was not arraigned, tried and con- victed for said alledged murder, within the Body of the proper County, where such offence is charged to have been committed, to wit, the County of Brown aforesaid, as was his, the said Ke-wa-bishkim's Just and acquired right so to be, according with the Common Law of England, as guaranteed to him, the said Ke-wa-bish-kim, in common with every other individual within this Territory, by the ordinance of the Congress of the United States granted the 30th day of July, in the year of our Lord 1787, Any Law of the Legislature of this Territory, contravening or obstructing such right so ac- quired as aforesaid to the contrary thereof notwithstanding. He the said Ke-wa-bish-kim protesting, that the said Legislature of said Territory were not invested with any authority or power to enact, adopt, or provide any Law depriving him of such right, so as aforesaid acquired and described- Secondly That the time when said murder is alledged to have been committed, is not stated with sufficient certainty and precision, in as much as it only states, the said murder to have been committed on the fourth day of September one thousand eight hundred and twenty without setting out, as the said Ke-wa-Bish-kim avers that the said Indictment should and ought to have done, from what period, Era, or Epoch the said years were 634 SUPREME COURT OF MICHIGAN to be computed and commence, namely whether from the year of our Lord, the Independence of the United States, of America, or the Creation of the World Thirdly That by the fifth section of an act of this Territory entitled "an act for the limitations of suits on penal statutes criminal prosecutions and actions at law" it is expressly provided and enacted, that the Clerk of the Court or magistrate to whom such Bill complaint, information or Indictment shall be brought or commenced shall "at the time of exhibiting or signing as aforesaid, make a minute in writing under his official signature on such Bill, complaint, information, Indictment or original writ, of the true day, month, or year when the same was so exhibited or signed, and every Bill, com- plaint, information Indictment, or original writ on which a minute of the day, month, and year shall not be made as aforesaid shall be VOID - Wherefore the said Ke-wa-bish kim expressly avers, that such Indictment is defective and void to all intents and puposes inasmuch as Melvin Dorr Esq the Clerk of this Honorable Court, does not appear to have officially signed the said Bill of Indictment, or made such minute as is thus required, and absolutely rendered an integral and component part of such Indictment, and without which it is expressly declared, pursuant to the Section aforesaid to be absolutely VOID And the said Ke-wa bish kim in further verification and sustainment of this his third allegation why Judgment should not be pronounced against him, states that said bill of Indictment, appears to be indorsed "filed in Court Septr 19th 182I F Hinchman Dy Clerk" now the said Ke-wa-Bish-kim respectfully suggests that even if the said F Hinch- man has been regularly appointed the Deputy Clerk of said Court, by virtue of the Toth Section of an act entitled "an act concerning Supreme & County Courts of the Territory of Michigan defining their Jurisdiction and powers, and directing the pleading and practice therein in certain cases" yet by a reference to said Section, the said Ke-wa-bish-kim expressly protests and avers, that the said F Hinchman is only entitled under said act to con- tingent and not concurrent powers & duties with said Melvin Dorr, such clerk as aforesaid, such section expressly declaring that such Deputy shall only be clothed with the powers and duties of the Clerk, "in case of the sickness death or absence of the Clerk" and until he shall return to the Execution of the duties of his office - wherefore the said Ke-wa-bish kim prays this Honorable Court will arrest the Judgment in this behalf, and the more particularly, in addition to the reasons hereinbefore assigned, for this further important, essential, and (as he trusts) conclusive argument, that as the conviction, so as aforesaid had against him the said Ke-wa-bish-kim was obtained under the first Section of an act of this Territory entitled "an act for the punishment of crimes" that he the said Ke-wa-bish-kim will not by this Honorable Court, administering strict Justice with mercy, be SELECTED PAPERS 635 deprived, debarred, or precluded of such beneficial advantages as any non- compliance with the several acts regulating criminal proceedings may entitle him to - his Signed Ke-wa-bish-kim X mark GEORGE A OKEEFFE Counsel for said Ke-wa-bish-kim [Case 706, Paper i ] [Indorsement] filed in the Clerks Office Oct0 25th 1821 MELVIN DORR Clk [Case 706, Paper i I] Mr Dorr DR SIR If the Court should not have given you directions to make out a complete copy of the Record in the case of the Indian who was tried, convicted & sentenced to be executed, for the purpose of transmission to the President - then I feel it a duty, devolving upon me as acting Govr of the Territory to be done, in behalf the Executive of this Territory This may be justly considered as the business of the Court, in their wis- dom, to attend to - but if they do not, I consider it my duty to cause it to be done - Be pleased therefore as early as practicable to prepare such a transcript as will exhibit, a full (& for your own sake, a handsome) legal history of the proceeding - respectfully yr obedt servt Detroit Oct. 25. 1821. WM WOODBRIDGE Acg Govr Mich' [In the handwriting of William Woodbridge] 636 SUPREME COURT OF MICHIGAN [Case 706, Paper 12] Call the Jurors, then ask them, "are you agreed on you verdict," "who shall say for you." then call the prisoner to the bar, then Say to the Jury "look upon the prisoner; you that are sworn, what Say you, is he guilty of the murder whereof he stands indicted, or not guilty? then the clerk records the verdict, then says, "Hearken to your verdict as the Court have recorded it. You say Ke-wa-bish-kim is Guilty of the Murder whereof he stands in. dicted & So you say all. The same on the second count & the verdict was not Guilty. You solemnly Swear that the evidence you shall give to this Court and Jury, in the matter at issue betwen the U State of Amer and the prison a- the bar shall be the truth the whole truth and nothing but the truth s help you GOD [Case 715, Paper 5] MICHIGAN TERRITORY WAYNE COUNTY COURT, JUNE TERM, IN THE YEAR OF OUR LORD ONE THOUSAND EIGHT HU N- WAYNE COUNTY DRED & TWENTY. The Grand Jurors of the United States in and for the body of the Count% of Wayne, in the Territory of Michigan, upon their oath present, Tha: David Gwynne, late of the County of Wayne in the Territory of Michigan, with force and arms, at the County of Wayne, in the Territoryof Michigan, and within the jurisdiction of the County Court of Wayne County, on the third day of May, in the year of our Lord one thousand eight hundred ard twenty, did, on purpose, and with malice, abet, prompt, encourage and per- suade a certain Otis Fisher, and a certain John Farley, (then and there being in the peace of God and of the United States) to fight a duel, against the peace & dignity of the United States, and against the statute of the Terri- tory of Michigan, in that case adopted and provided. (Signed) Chas Lamrned (Signed) Robert Abbott Pros Atty W.Co Foreman SELECTED PAPERS 637 [Case 716, Paper 2] [Indorsement] 3 1822 Supreme Court Warren Howard vs William Brown & Abraham Edwards County Commissioners Mandamus. By order of Court Returned & filed in open Court 3rd Oct 1823 JER. V R TEN EYCK Dy Clerk Hunt & Witherell Atts for Howard [Case 716, Paper 2] TERRITORY OF MICHIGAN, THE UNITED STATES of America, SS. SUPREME COURT S To William Brown and Abraham {SEAL] Edwards, County Commissioners, for the County of Wayne, in Said Territory. You are hereby commanded, that you pay or cause to be paid to Warren Howard the sum of two hundred and seventy five dollars, out of the County Treasury of the County of Wayne, in obedience to the requisition of an act of the Legislature of said Territory, entitled "An Act for the relief of War- ren Howard" made, adopted and published at Detroit on the first day of May, one thousand Eight hundred and twenty, or shew good and sufficient Cause for neglecting and refusing so to do: And of this writ make due re- turn to our Supreme Court, at Detroit, on the third monday of September next. Witness Augustus B. Woodward, Presiding Judge of our said Su- prerne Court, on the tenth day of October, one thouand Eight hundred and twenty one. MELVIN DoRR Hunt & Witherell Atts for Howard. Clerk 638 SUPREME COURT OF MICHIGAN [Indorsement] To the Supreme Court of the Ter' of Michigan now in Session - The demand of Warren Howard has been adjusted, and of course the within writ Complied with -- rdA. EDWARDS Octr 2d 1823 One of the Comisss W. County [Case 721, Paper 77] [Indorsement] 62 182o :ames Fulton vs Phelps & Colburn Reasons for New trial. filed in open Court Oct. 4th. 1824. J. KEARSLEY. Clerk. [Case 721, Paper 77] SUP: COURT. SEPT TERM A D. 1824 James Fulton vs In this Case the Plff. moves the court here that :he Phelps & Colburn finding of the jury in this Case, may be set aside and a new trial awarded - & for cause assigns the following reasons, - to wit. i. That the finding of the jury in this Case contrary to Evidence 2d That the finding of the jury in this Case is Contrary to Law. 3d That the said jurors of the jury aforesaid were not legally ballotted "or, empannelld nor selected. 4. That a Deposition which was very Material and important to the PlIs cause, & which was taken, as was understood & believed by Counsel, by Consent with agreement to be read at the trial was, not allowed to be read on the trial; being objected to by the Deft" Counsel, On ground that there was no written agreement on file, & that this testimony, can be obtained on a new trial. SELECTED PAPERS 639 . That, important and Material testimony to the Plff taken under a Com- mission, in New York, was not allowed to be read on the trial on account of Objections merely technical, whereby most important and material to the plff's Cause, And on which he had relied, for the trial, was lost. And that the Plff:will be able to procure the testimony of Said Witness on anew trial. 6. That a Witness whose testimony was very important and Material, And who was Subpoenaed And was during the first week of the sitting of the Court, in Attendance on the Court but was absent and at a great dis- tance from the Court, and could not be got in season before the trial was over. - And he expects & has no doubt he shall be able to obtain the Attendance of the sd Witness at the next term. . that- there was great irregularity and misbehavior in the jury in sep- erating- leaving the jury Room without consent of parties or leave of the Court - and talking with divers persons, before they were agreed upon their Verdict- WHITNEY for Plff. [Case 729, Paper 15] [Indorsement] 84 1820 I have served the within by presenting the same to Wm Woodbridge Esquire that he read the same and by leaving a copy of the same with s Woodbridge 2 Oclock. P.M. Service $ 12W Copy of Notice 1834 $.31Y4 A. E. WING Shff of Wayne County Octr 18. 1822 filed in the office of the Clerk of the Supreme Court Oct. 18th. 1822. at 3.h.30.m. P.M. J. KEARSLEY. Clerk. 640 SUPREME COURT OF MICHIGAN [Case 729, Paper 151 Ira Eno VS IN SUPREME COURT Anon Harmon To Woodbridge & Lanman Esquires Attornies for Ira Eno, or to Ira Eno You are hereby notified that Anon Harmon the undersigned committed to prison by virtue of an Execution issued from the Supreme Court of the Territory of Michigan in favour, of Said Ira Eno, that he the Said Anon Harmon will proceed at the End of twenty days from this date to Set offt personal property, rights and credits adiquate in value to satisfy the judge. ment & costs for which Such Execution issued. The articles to be Sett off are as follows - One Gold Watch, Estimated by sd Harmon at $40 a one horse waggon & plated Harness do $90 one bay stud Horse do do 25 one New carriolle do do 65 one Horse cart & Harness do 6o one Roan Horse 70 one Book case do do 6o a judgement agt Lorin Marsh and R Kelsey at - River Raisin I20 Sam' Lasleys accepted order for 22 tons plaister o100 18th octr 1822 ANAN HARMON SELECTED PAPERS 64! [Case 730, Paper i] John Bt Lasselle Plaintiff in this Case Complains of Antoine Lasselle defendant in this Case in Custody &c: in a plea of the Case for that the Plaintiff Since the twelfth day of may in the year of our Lord one thousand Eight hundred and twelve has been Seized & possessed of a farm or tract of Land with his dwelling house, barn & out houses Situated thereon in the Town of French Town in the County and Territory aforesaid and within the Jurisdiction of this Court Containing two hundred and three acres & forty one hundredth of an acre of Land bounded South on the River Raisin on the west by Land Confirmed to Alexis Campeau on the north by unlocated United States Land and on the East by the farm whereon the Said Antoine Lasselle lives of all which the Said Antoine Lasselle is well knowing, but the Said Antoine Lasselle minding & Contriving to injure the Plaintiff & de- priving him of the benefit of his Said farm or tract of Land & dwelling house & other buildings hath ever Since the twelfth day of may in the year of our Lord one thousand Eight hundred and twelve maintained & keept up & Continued a milldam acrost a Stream of water Called the River Raisin aforesaid which Said River is & for a Long time past has been a public highway by Statute of this Territory below the Plaintiffs farm aforesaid & within the Jurisdiction aforesaid & the water of the River Raisin aforesaid by reason of the dam aforesaid is raised upon & overflows the plaintiffs Land aforesaid & by means thereof the water aforesaid in the pound of the dam aforesaid have been & are Stagnant unwholesome & poisonious ever Since the Said twelfth day of May whereby the Plaintiffs farm & buildings aforesaid have been made worse & have been greatly injured and the water of the river aforesaid by reason of the dam aforesaid & overflowing have become greatly Stagnated unwholsome impur & poisonious So that the plaintiff has been greatly in his Life & health & the life & health of divers persons in his family have been greatly injured, whereby the plaintiff hath been put to great Expences & trouble to wit the Sum of one thousand dol- lars, wherefore he brings Suit &c by his atty Wolcott Lawrence. John Doe & Richard Roe pledges to prosecute [In the handwriting of Laurent Durocher] 642 SUPREME COURT OF MICHIGAN [Case 734, Paper i o] [Indorsement] 128 1820 Supreme Court Benjamin F. Larned vs William G Taylor Wolcott Lawrance Benjamin Davis J Notice - to file I have served a certified copy of the within on Charles Lamrned Service and mile $ .313 for A. E. Wing Shff SAMUEL SHERWOOD Nov 30th Dy Sheff 1822 Filed in Clerk's office 30th Nov 1822 JER V R TEN EYCK Dept Clerk. [Case 734, Paper io] TERRITORY OF MICHIGAN SUPREME COURT Benjamin F. Lamrned vs William G Taylor Wolcott Lawrance & Benjamin Davis GENT Take Notice, That pursuant to an act of this Territory en- titled "an act to abolish imprisonment for debt in certain cases and for other purposes" and the amendments thereof - I will on the Twenty fifth day of December next ten oclock in the fore noon of that day on apprai" - according to the act aforesaid, Sett off to Benjamin F Lamrned Plaintiff SELECTED PAPERS 643 in the above suit the Real Estate herein after mentioned - or so much thereof as will be sufficient to satisfy and discharge the Judgment and costs in favour of said Plaintiff against William G Taylor - Wolcott Lawrance & Benjamin Davis defendants in the suit aforesd Upon which Judgment an Execution hath issued and I am committed to the Jail in and for the County of Monroe in the Territory aforesd by Virtue thereof - To wit Lots No 91 and 132 and the North halves of Lots No 92 and 131 - situate in the Village of Monroe in the County and Ter- ritory aforesaid - being the same on which I now reside - Bounded as follows on the West by McComb Street - on the North by Lots No. 90 - S133 - on the East by Francis Navarres west line - on the south by the south halves of Lots No - 131 - & 92 - Monroe Nov 21st I822 To Messr Hunt & Lamrned W G TAYLOR Representatives & Atty" for the above Plaintiff [In the handwriting of William G. Taylor] [Case 734, Paper IX] [Indorsement] 128 1820 Benj F. Larned vs William G Taylor et al Filed in Clerk's office 24 December 1822 J ER. V R TEN EYcK Dept Clerk Benj]" F. Larned .vs William G. Taylor Wolcott Lawrence. Benjamin Davis in Satisfaction of the [Case 734, Paper II] TERRITORY OF MICHIGAN IN SUPREME COURT In this case, one of the Defendants, towit William G. Taylor, having notified us as Attorneys, of Benj" F. Larned, that he offered, at appraisal cer- tain real estate, situate in the village of Monroe mentioned & particularly described in Said notice, debt & cost on the Execution, on which he is now confined on the Prison limits of said County by virtue of a Statute of this 644 SUPREME COURT OF MICHIGAN Territory Will take notice, that we shall not accept or receive in behalf of said Lamrned, the real estate mentioned in his Said notice in Satisfaction of said Jugment at the appraisal of men - The same not being the property of Said Taylor, but which was conveyed by him to one Joseph Laronger, to secure the payment of a certain Sum of money, mentioned in the Deed of mortgage, as will appear of record, which Deed is in full force & effect, & was at the time of his notice aforesaid HUNT & LARNED Attys to Detroit December 24th 1822 Benja F. Lamrned [Case 742, Paper 7] [Indorsement] 98. 1820 Mary Ann Scott, Admx V. 7n° Anderson. Defts Plea filed in the Clerks office Dec. 13. 1821 M DORR Clerk [Case 742, Paper 71 IN SUP. COURT SEPT TERM 1821. Mary Ann Scott Admx of J" MYD. Defts Plea Scott. v. John Anderson And the Said John Anderson the Def" in this case by Hunt & Lamrned his Attys comes & defends the wrong & injury when &c & for plea says he does not owe the Plaintiff as she in her declaration against him hath alledged & thereof he puts himself on the Country for trial - By HUNT & LARNED and the plff: doth the like - by SIBLEY & WHITNEY The Plaintiff or his Attorney in this case will take notice that the defend- ant will offer demand & evidence of set off to the demand of Plaintiff for the Sum of eight hundred dollars, being an amount due from Plf to Deft for rent, use & occupation of a certain house & lot situate in the City of Detroit - And also the further Sum of eight hundred dollars as an offset, being SELECTED PIPERS 645 that amount allowed by the Commissioners of insolvency on the estate of said deceased - And duly returned into the Probate Court of the County of Wayne & accepted by said Court The Plaintiff in this case or his Atty5 will take notice in this case that the prayer for oyer of the bond not being complied with, the Deft will move the court, to withdraw the above plea & plead anew at the next term of the Sup. Court HUNT & LARNED. [Case 754, Paper 5] Peter J Desnoyers SUPREME COURT SEPTEMBER TERM A D plea ONE THOUSAND EIGHT HUNDRED & Stephen Mack & Shubael Conant. TWENTY ONE Conant. And now the said Stephen & Shubael by Woodbridge & Lanman their attornies come &c when &c & say that they did not undertake & promise in manner & form as the said plaintiff in his said declaration hath alleged & of this they put themselves upon the Country for trial WOODBRIDGE & LANMAN Atts for Defts and the said plffs in like manner To Mess' Hunt & Lamrned Please take notice that at the trial of the above cause the said defendants will insist upon & give in evidence under the general issue above pleaded, that they said defendants made full & intire payment of all & singular the contents of the within described bill of exchange & of the money thereon & thereby due & made payable, to wit on the day before the commencement of the above mentioned Suit against them. 2 That they the said Stephen & Shubael to wit on on the nineteenth day of August Anno Domini one thousand eight hundred & nineteen ten- dered & offered to the said plaintiff Peter J. Desnoyers the sum of twenty dollars (money of the United States) that being all the monie at that time due & owing to said Peter in virtue & by reason of the premises, on the day aforesaid & that ever since said nineteenth day of August, the said Money has been ready to be delivered to said Peter 3d That the said contract in the premises between the said Peter & the said John & James Mahar in said declaration mentioned, was & is, in & by the laws of the State of New York (where the same was to have been per- formed, as appears in & by said Declaration) usurious, null & void, & that if said defendants, by the indorsement in said declaration supposed to have been made, became liable as guarantees which said Defendants in no wise 646 SUPREME COURT OF MICHIGAN admit but utterly deny, that then & in such case the said instrument & said supposed indorsement in no wise subjects or renders liable said Defendants to pay said sum & penalty the whole thereof being void as aforesaid WOODBRIDGE & LANMAN Attornies [In the handwriting of William Woodbridge] [Case 758, Paper i] [Indorsement] 71. 1821 Supr Court john McDonell vs John Scott Petition for Certiorari filed in the Clerks Office June 21st 1821 M DORR Clk [Case 758, Paper I] WAYNE COUNTY SS: Application for a writ of certiorari to James John McDonell Abbott, a Justice of the peace for sd county - in vs a suit tried before and a judgment rendered by, John Scott him, wherein the sd McDonell was plaintiff and the sd Scott deft., - on the 13th day of March 1821. John Scott the above defendant, having been duly Sworn, saith, That this was an action of trespass on the case brought against him by the plff. to recover the amount of certain costs which accrued to the sd puff. as he alledged on a certain complaint made on behalf of the United States by the said Scott before the said McDonell as a justice of the peace on or about the Ioth day of August, 1820: That on that complaint the said McDonell bound the person against whom the complaint was made to appear at the next Su- preme Court of the Territory: That at that term of the sd. court this affiant was not called upon to go before the grand jury on the Subject of said com- plaint, nor did the said jury return any bill into the said court to shew that SELECTED PAPERS 647 the sad complaint or the matter thereof had been before them: It therefore did not appear in this case tried as aforesaid before Justice Abbott, that the prisoner against whom said Complaint was made by the said Scott, was discharged by the sd MceDonell acting as Justice as aforesaid, or tried and acquitted, and therefore this affiant believes the judgment was contrary to law: That oral testimony was admitted on the said trial to go to the jury, to prove that the complaint aforesaid was made by the said Scott before the said Justice McDonell: That the Docket of the said Justice McDonell plff in this suit, was permitted to go to the jury as legal evidence, although it was objected to by the atty. for the said Scott: That a transcript of the Docket of the said plaintiff certified by himself was admitted as legal evi- dence to the jury altho' it was objected to by the counsel for the said Scott, and although it was not certified by the clerk of the county of Wayne and under the seal of the court of Said county, that the said plaintiff was a justice of the peace at the date of such proceeding or certificate, as is required by Statute, even if the plff had a right to introduce his own certificate as evi- dence for himself, which is denied: That one or two of the jurors, (as this afflant is informed by three of the jurors, and verily believes,) disclosed facts to the jury after they had retired to their room which influenced the jury to give a verdict against this affiant: That no other testimony or evi- dence than what is herein above stated, was adduced to the jury on the said trial: That the justice charged the jury "that it was no matter how they got at the facts, they were bound to take notice of every thing," by reason of which the juror or jurors aforesaid disclosed to the others those facts which were of their own private knowledge, and the jury also received and credited all the illegal testimony which had been during the trial ad- duced, and all conversations &C which passed before them that day: That in order to ascertain the rate of fees which were due by or claimed of, the said Scott, for the complaint aforesaid the plff. was permitted by the justice to give in evidence a Statute which this affiant verily believes was repealed long before the said complaint was made, and the Said repealing act was exhibited to the justice at the time but rejected by him: That at the time the said complaint was made, this affiant verily believes there was no statute in force allowing fees to justices of the peace for such services as was rendered on the complaint aforesaid: That the venire by virtue of which the jury was summoned was not according or equivalent to the form provided by Statute: That two venires were issued each of them command- ing the constable to have six men only before the justice, and were in other respects informal, and the costs for issuing, to the justice, and for serving, to the constable, are taxed in the bill of costs against this affiant, which he believes is unjust and illegal: That the plff. by his account claimed of the deft. only four dolls. & Eighteen cents, and laid his damages at $5., and the 648 SUPREME COURT OF MICHIG1AN jurors brought in a verdict for the plff. for $5.56 , and judgment has, as this affiant believes, been rendered against him erroneously to the amount of the damages as laid, and the costs besides, which in the whole makes a sum considerably larger than was demanded by the plff. of the deft in this action: and that the summons, or other process, issued in this case, was as this affiant believes altogether informal. JOHN Scorr Sworn to & subscribed before me this 3d day of April 1821. J. D. DOTY, Justice Peace. John Scott the above affiant humbly prays your honor to allow him a writ of Certiorari on the above affidavit and that the Clerk of the Supreme Court may be directed to issue the same - And your Petitioner &c J. D. DOTY, Atty for sd Scott JoHN Scorr [In the handwriting of James Duane Doty] Michigan, to wit; Allowed. WOODWARD, judge. April 3d 1821. [In the handwriting of Augustus B. Woodward] [Case 758, Paper 2] [Indorsement] 71 1821 Supr Court John M Donell vs 1 ,John Scott Certiorari Endorsed on the petition "Michigan, to wit; Allowed. Woodward, Judge. April 3d 1821." MELVIN DORR Clerk J D Doty Atty for Deft SELECTED PAPERS 649 [Case 758, Paper 2] TERRITORY OF MICHIGAN, THE UNITED STATES of America to ames SUPREME COURT. ' Abbott, a Justice of the peace in and for the County of Wayne BEING willing for certain reasons, that the Supreme Court [SEAL] of the territory of Michigan should be certified what plaints are levied or affirmed before you, against John Scott at the suit of John McDonell you are therefore hereby commanded, that all and singular the said plaints, together with all things touching the same, you distinctly and openly send to the said Supreme Court, at the city of Detroit, on the third Monday of September Next as fully and amply as the same remain before you, by whatsoever names the parties may be called in the same, together with this writ, that the said Supreme Court may cause to be done thereupon, what of right ought to be done. Witness A. B. Woodward Presiding Judge of the Supreme Court of the territory of Michigan, at the city of Detroit, on Thursday the twenty first day of June in the year one thousand eight hundred and twenty one and in the forty fifth year of the Independence of the United States of America. J. D. Doty Aty for Scott MELVIN DoRR Clerk [Case 758, Paper 3] [Indorsement] 71 1821. Sup. Court. John MacDonell vs. Joh/n Scott. Transcript 1.31x4 Certificate 25 $1.5614 filed in Court Sept 19th I821. M DORR Clk 650 SUPREME COURT OF MICHIGAN [Case 758, Paper 31 TERRITORY OF MICHIGAN, ss. COUNTY OF WAYNE I James Abbott, one of the justices of the peace for the county aforesaid, do certify to the Honorable Judges of the Supreme court of the Territory of Michigan, that on the twenty fourth day of February, in the year of our Lord one thousand eight hundred and twenty one, at the city of Detroit, in the county aforesaid, John MacDonell in the said writ named, complained before me against John Scott also in the said writ named of a plea of Tres- pass on the case to his damage five dollars, and required of me process on his said complaint: whereupon in pursuance of the authority given to me, in and by the act entitled "An act to regulate and define the duties and powers of Justices of the peace and Constables, in civil cases," I issued a summons directed to any constable in the county, commanding him to sum- mon the said defendant to appear before me at my office in the city of Detroit in the said county, on Saturday the third day of March, at ten of the clock in the forenoon of the said day, to answer the said plaintiff John MacDonell in a plea of trespass on the case, to his damage five dollars, which said summons, on the day mentioned therein for the return was deliv- ered to me by Samuel Sherwood, one of the constables within the county aforesaid, with an indorsement thereon signed by him, that he personally served the same on the defendant by reading it to him on the twenty sixth day of February aforesaid, in the year of our Lord one thousand eight hun- dred and twenty one aforesaid; - And I do also certify that on the said return day, vizt the third day of March aforesaid, the Defendant by his Attorney Samuel T. Davenport appeared before me, and on motion the case was continued to the ninth day of the said month of March; and on the said ninth day of March at ten of the clock in the forenoon the Defendant appeared and on motion the case was continued to four of the clock in the afternoon of same day; and in the afternoon of same day towit, at four of the clock, the parties as well the Plaintiff as the Defendant appeared and on motion and for reasons appearing to the court the case was continued to the twelfth day of the said month of March; and on the said twelfth day of March the parties as well the Plaintiff as the Defendant appeared in court, and on motion of the Plaintiff and for reasons appearing to the court the case was continued to the thirteenth day of the said month of March; and on the said thirteenth day of March parties appeared in court in their proper per- sons and also by their attornies; and the said Plaintiff declared against the said Defendant in the following words "This action is brought to recover of the Defendant the sum of four dollars and eigteen cents, for services ren- dered said Defendant by Plaintiff at his special instance and request as a SELECTED PIPERS 65 Justice of the peace," and the Defendant being called upon to answer the said complaint plead the "General issue": AND issue being so joined between the said parties, the Defendant demanded that the same should be tried by a Jury, upon which demand I issued a second venire facias having previously issued one at his request on the eighth day of March aforesaid, directed to any constable within the county aforesaid, commanding him to summon six good and lawful men to be and appear before me to make a jury for the trial of the action aforesaid; and on the return thereof, it appearing to be, on examination of the statute, imperfect, I issued a new venire directed to any constable of the county aforesaid, commanding him to summon twelve good and lawful men to appear before me on the same day, towit, on the thirteenth day of March aforesaid, for the trial of the action aforesaid: at which time Samuel Sherwood one of the Constables of the county aforesaid returned the said venire to me, with a panel containing the names of twelve persons summoned by him for the jury aforesaid. AND I do also certify that on the day and at the place aforesaid, the said Plaintiff and Defendant in their proper persons as also by their attornies appeared before me as before mentioned; and the names of the persons so impannelled being written on ballots and drawn for, as is prescribed by a statute of our Territory, six of the persons so impannelled, towit; Jairus Baldwin, Abraham Wendell, John B. Durette, Abraham Canniff, Peter John Desnoyer and Ephraim Farnsworth, being duly elected, tried and sworn, well and truly to try the matter in difference between the parties aforesaid, and to give a true verdict according to evidence, after hearing the proofs and allegations of the parties which were delivered in public in their presence, said upon their oaths that the said Defendant did promise and undertake in manner and form as the said plaintiff hath complained against him and they assessed the damages of the said Plaintiff, by occasion of the premises, over and above his costs to the sum of five dollars and fifty six and one fourth cents: Whereupon I the said justice, in pursuance of the directions of the said Act, did adjudge that the said plaintiff recover against the said Defendant the sum of five dollars (the Defendant having released fifty six and one fourth cents) by the jury between the said parties as afore- said assessed, and also the sum of six dollars and sixty two and a half cents for his costs in prosecuting his said complaint before me, according to the bill thereof hereunto annexed: AND being further required by the seventeenth section of the act before mentioned, on the service of any certiorari to re- verse any judgment rendered as aforesaid, to make a special return as to all the facts stated in the affidavit of the Defendant which was not filed with me until the fifteenth day of September instant, I do therefore make return of the following as facts to the best of my knowledge and belief, vize The action aforesaid was brought to recover of the Defendant the sum of four 652 SUPREME COURT OF MICHIGAN dollars and eighteen cents for services rendered said Defendant by Plaintiff at his special instance and request; and it appeared on the trial of the case, that the services rendered were for certain costs which accrued to the said Plaintiff on a certain complaint made in behalf of the United States by the said Scott before the said McDonell, as a Justice of the peace, on the tenth day of August eighteen hundred and twenty, against John and Stephen Hazell: that on that complaint the said justice MacDonell bound the said John & Stephen to appear before the Supreme Court of the Territory of Michigan: that the said John & Stephen did appear before the said Supreme Court; but that the said John Scott the Defendant did not go before the Grand Jury, then in session, for reasons best known to himself; conse- quently, it was impossible for the said Grand Jury to find a Bill against the said John and Stephen Hazell, inasmuch as the said Scott neglected or did not go before that body and testify to the same facts as he had done before the said justice MacDonell on his application to him for a redress of the wrongs and injury he had suffered. That oral testimony, namely, that of Edward W. Goodwin, clerk to said justice MacDonell, was ad- mitted on the trial of the case aforesaid, to go to the Jury; but for what purpose was it admitted; it was, to prove the hand writing of the said Defend- ant Scott to the original complaint filed with said justice on the said tenth day of August aforesaid, and which is in fact the foundation of the action aforesaid. That a transcript of the Docket of the said Justice MacDonell, certified by himself, was admitted to go the Jury is a fact; but not until it had been examined and found to be a correct and true transcript of the said Justices record: it was then suffered to go to the Jury, together with the original book of record. That in the charge given to the Jury aforesaid, they were instructed "that it was a mater of no great consequence how they came at the facts, but the same being once in their possession, they as Jurors, in my opinion, were bound to take notice of them" and not as the defendant Scott states "that it was no matter how they got at the facts, they were bound to take notice of every thing." That in relation to the admission of illegal testimony, the undersigned is not aware that any went down to the Jury; and verily believes that none did. That in order to ascertain the rate of fees, the Plaintiff justice MacDonell was permitted to read and give to the Jury one of our statute books, which, in the opinion of the undersigned was not repealed at the period the services were said to have been rendered by the Plaintiff to and for the Defendant; nor was it demonstrated by the Defendant aforesaid or his counsel, to the satisfaction of the subscriber, that the statute alluded to was repealed. SELECTED PAPERS 653 That the venire facias was not issued nor defficient in the manner that the Defendant Scott has stated in his affidavit; but was issued in the man- ner as herein before mentioned, and was in every way, in the opinion of the undersigned, equivalent to the one prescribed in our book of statutes. That the bill of costs, a copy of which as before mentioned, is hereunto annexed, the undersigned trusts and believes will on examination by the Honorable Judges be found to be correct and just, and not erroneous as the Defendant has been pleased to state. That the plaintiff aforesaid in his writ laid his damages only at five dol- lars is a fact; and it is also a fact, that the Jury in their verdict as before mentioned gave him damages to the amount of five dollars and fifty six and one fourth cents: but judgment was rendered only for five dollars, the plaintiff as before mentioned having released the sum of fifty six and one fourth cents part thereof. All of which I send with the process, pleadings and other things, touching the aforesaid proceedings and judgement, in as full and ample a manner as the same remain before me, as within I am commanded. Given under my hand and seal at the city of Detroit, the fifteenth day of September in the year of our Lord one thousand eight hundred and twenty one. JAMES ABBOTT, [SEAL] Justice of the peace Bill of Costs Jurors fees 6 a 25 I 5o Constables attendance 25 Ditto for the service of 3 venire's I 5o Ditto for summons 25 Ditto for 3 Subpoena's 371 Witnesses attendance 2 50 Justices, vizt Summons 122 3 Subpoenas 371 Swearing Jury 25 Ditto Witnesses 1834 Continuances 4 50 Venire facias 3 37 Entry of verdict 64 taking security 1212 Judgement 25 25 $6 62W 654 SUPREME COURT OF MICHIGAN Copy of the venire John MacDonell Vs In case &c:- 7ohn Scott. THE UNITED STATES of America, to the constable of the County of ane. Summons a Jury of twelve good and lawful men to enquire upon their Oaths the truth in the above case, before me this day at IO.A.M. Hereof fail not. Given under my hand at Detroit, the thirteenth day of March, A.D. 181. JAMES ABBOTT Justice of the Peace. [In the handwriting of James Abbott] [Case 758, Paper 4] [Indorsement] Sup. Court. John Scott ads. John MADonell Mo. that the Justice be directed to amend his return to the Cer- tiorari Filed [Case 758, Paper 4] SuP. COURT. John Scott. ohn Scott Facts as to which the Justice has ads. made an insufficient return. John MmDonell Whether it appeared by the record of the clerk of the Supreme Court pro- duced and examined on the trial, that the Grand Jury returned any bill on the complaint of said Scott either found or not found, and whether the said Scott did not enter his appearance in said court at the Term he was bound to appear, and whether it appeared on said trial that said Scott was called upon or directed to go before the Grand Jury. SELECTED PAPERS 655 What was the date of the Statute by virtue of which the plff. demanded fees of the deft. on said complaint, and for which this action was instituted. And what was the date of the Statute which the deft. produced to show that the act by virtue of which the plff. claimed fees was repealed. Whether on the transcript certified by the plff. there was also a certificate of the Clerk of the County of Wayne that the plff. at the date thereof was a justice of the peace. Whether there was any other testimony than what is stated in the affi- davit adduced to the jury on the trial of said cause. Give a copy of the Summons. [Case 758, Paper 5] [Indorsement] 71. 1821 Supreme Court Additional return of the Justice, in the matter of fohn MacDonell vs John Scott. filed in the Clerks office Sept 6th I822 M DORR [Case 758, Paper 5] COUNTY OF WAYNE, SS. I James Abbott, one of the Justices of the peace for the county aforesaid, being required by the Honorable Judges of the Supreme Court of the Ter- ritory of Michigan to make further return as to certain other things said to be facts that appeared on trial of the foregoing matter, do accordingly hereby certify, that no record of the Supreme court was exhibited to me, which went to prove that the Grand Jury returned any bill on the com- plaint of said John Scott: that he did appear before the Supreme court afore- said at the term he was bound to appear I have heretofore stated; but whether he was called upon to go before the Grand Jury, or directed to go 656 SUPREME COURT OF MICHIGAN before that body I know not, but that he did not go I have also hereto- fore stated. The date of the statute under which the Plaintiff demanded his fees I do not recollect; but that it was of a date prior to the twenty third day of January, eighteen hundred and twenty one I do hereby certify. That the transcript of record certified by the Justice and Plaintiff before whom the said John Scott originally complained, was not clothed with a certificate from the clerk of the court for the county of Wayne purporting that the Plaintiff was a Justice of the peace; nor did I think that a certificate of that kind was at all essential on the trial of the aforesaid action, inasmuch as it was a fact of notoriety that the Plaintiff was a Justice of the peace, and one of which I had personal knowledge. I do not recollect that there was any other testimony adduced to the Jury on the trial before stated, other than that heretofore recapitulated, indeed, I verily believe not. The following is a copy of the summons on which the Defendant in this case joined issue, viz' TERRITORY OF MICHIGAN, Ss. COUNTY OF WAYNE. To any Constable of the said county. In the name of the United States of America, You are hereby commanded to summon John Scott, if he shall be found within your county, to be and appear before me at my office in the city of Detroit in the said county, on Saturday the third day of March next, at ten of the clock in the forenoon of the said day, to answer unto John MacDonell in a plea of Trespass on the case, to his damage five dollars. Hereof fail not and have you then and there this precept. Given under my hand the twenty fourth day of February, in the year one thousand eight hundred and twenty one. Signed James Abbott, Justice of the Peace. Endorsement thereon. This action is brought to recover of the Defendant the sum of four dol- lars and eighteen cents, for service rendered said Defendant by Plaintiff at his special instance and request as a Justice of the peace. All of which is respectfully refered - JAMES ABBOTT Fees 3/6. Justice of the peace. [In the handwriting of James Abbott] SELECTED PAPERS 657 [Case 758, Paper 6] [Indorsement] 71 1821 Supreme Court. fohn Scott ads. John McDonell Assgt. of Errors. J. D. Doty. Atty. Filed in Court Sept i8t 1822 MELVIN DORR Clerk [Case 758, Paper 6] SUPREME COURT. John Scott ads. 7ohn McDonell And the said John Scott by James D. Doty his Attorney comes and Says, that in the record and proceedings aforesaid, by and before James Abbott Esq' one of the Justices of the Peace aforesaid, and also in giving the judg- ment aforesaid, there is manifest error in this, to wit: That the said suit was adjourned several times by the said justice, on mo- tion, without any affidavit of the absence of a material witness &, contrary to the statute. That the venire facias by virtue of which the jury was summoned who tried the issue joined in this cause, was not issued on the demand of either of the parties; and that the said venire was not in form equivalent to the form prescribed by the Statute. That a certificate, made and Signed by the plaintiff aforesaid, the said justice decided was legal evidence of the Said plaintiffs demand upon which the said action was instituted, and permitted by him to go to the jury as Such, although it was at the time objected to by the defendant. That oral testimony, to prove a fact which should have been proved by record, was admitted by said justice on said trial, as legal evidence. 658 SUPREME COURT OF MICHIGAN That the Statement of the said justice, and also hearsay evidence, to prove that the Said plaintiff was a justice of the Peace on the day the said action accrued, were permitted to go to the Said jury as legal evidence, although objected to by the defendant. That the said plaintiff had no right to demand fees of the said defendant on the Complaint mentioned in the proceedings aforesaid, because it did not appear that on said Complaint, the person complained of was discharged or tried and acquitted; no evidence having been given on the said trial as to either of these facts. That the act by virtue of which the said plaintiff as a Justice of the Peace on the complaint aforesaid claimed and demanded fees of the said Scott, t wit, an act passed the 16t day of September 181io, was repealed by a Sub. sequent act long before said complaint was made before said plaintiff. That a constable was not sworn to attend the jury when they retired to consult of their verdict. That the verdict of the jury was for a larger sum than the plaintiff demanded of the defendant in his Said action. That there is a variance between the verdict and the judgment. That in the bill of costs in this suit the Said Justice taxed against the said defendant to the Constable for the service of three venire's, and to himself fees for issuing the same, and also fees to himself for entering four continuances or adjournments: And farther the said plaintiff's and defendant's costs are taxed entire against the said defendant, and compose a part of the judgment aforesaid: There is also error in this, to wit, that by the record & return aforesaid it appears that the judgment aforesaid, in form aforesaid given, was given for the said McDonell against the said Scott, whereas by the law of the land said judgment ought to have been given for the said Scott against the said McDonell. And the said John Scott prays that the judgment aforesaid for the errors aforesaid, and other errors in the record and proceedings aforesaid, to be designated and shown on the argument hereof, May be reversed, annulled and altogether held for nothing, and that he may be restored to all things which he hath lost, by occasion of the Said judgment, & J. D. DOTY, Atty for Said Scott. [In the handwriting of James Duane Doty] SELECTED PAPERS 659 [Case 758, Paper 7] [Indorsement] 71 '21 Supreme Court 7ohn McDonell In error vs h on 7ohn Scott Certiorari Joinder in error filed in Court Sept 24' I822 M DORR Clerk [Case 758, Paper 71 John McDonell SUPREME COURT SEPTEMBER TERM 1822. vs. John Scott. In Error on Certiorari from a Justice's Court. And the said John McDonell by Spencer Coleman his attorney comes and says that there is no error, either in the Record or proceedings as returned by the Justice to the writ of certiorari in this cause, or in giving the Judg- ment below by the said Justice; and he prays that the said Supreme Court may proceed to examine, as well the record and proceedings aforesaid as the matters by the said plaintiff assigned for error, and that the Judgment aforesaid in form as given by the said Justice below may be in all things affirmed &. S COLEMAN Atty &c [Case 77 1, Paper 5] [Indorsement] 21 1821 Andrew Westbrook vs William Austin & Rufus Hatch Nar. Filed in the Clerk's Office Nov 12th 1821 MELVIN DORR Clerk 66o SUPREME COURT OF MICHIGAN [Case 771, Paper 5] TERRITORY OF MICHIGAN Andrew Westbrook IN SUPREME COURT vs William Austin Nar. & Rufus Hatch Andrew Westbrook complains of William Austin & Rufus Hatch, in Custody &c In a plea of Debt, for that the said DefP on the twenty eighth day of Novem- ber in the year of our Lord one thousand eight hundred & eighteen, at the County of macomb & within the jurisdiction of this Court, Before one John K. Smith, a Justice of the Peace, within & for the County of Macomb, & Territory aforesaid, duly appointed & qualified, to do and perform all judicial & other acts, appertaining to said appointment & office, they the said Deft' did then & there, towit, at the County of Macomb, aforesaid, enter into a recognizance before said Justice, wherein & whereby, they jointly & severally acknowledged themselves indebted to the Plaintiff in the sum of two hundred & four dollars & sixty cents, to the payment of which sum, they the said Defendants bound themselves, their heirs & assigns jointly & severally with the condition under written to said recognizance, a true & perfect record of which recognizance, duly & properly attested, by said Justice, is here in court to be produced - Which condition of the recog- nizance aforesaid, was, that if the said William Austin should well & truly prosecute, a certain suit or action, on which judgment had been duly & legally entered against the said William, before the Said John K. Smith, the day and year last aforesaid, at the County of Macomb aforesaid, wherein the said Westbrook was Plaintiff and the said William was defendant, for the sum of one hundred & two dollars & thirty cents for debt & costs, at the County Court for the County of Macomb, to be holden at mount Clemens on the first monday of February, next after the rendition of said Judgment to effect & abide the orders of said County Court therein, then the said recognizance was to be of no effect, otherwise to be & remain in full force effect & virtue - And the said Plaintiff avers that the said Wm nor the said Rufus, have in no wise complied with or kept the condition of the recog- nizance, so entered into as aforesaid by them, but the said Judgment of the said Justice, upon the entry of the same in the County Court of the County of Macomb aforesaid, upon a trial of said case, was then & there rendered & adjudged against the said William, the record whereof remains in said County Court, a transcript whereof is here in court to be produced for the sum of one hundred dollars Damages, and the costs of said suit taxed & adjudged to the said Plaintiff for the sum of thirty eight dollars & seventy SELECTED PAPERS 661 eight cents. Whereupon the said Plaintiff on the twentieth day of October, in the year of our Lord one thousand eight hundred & nineteen, at the county of Macomb, sued out of the clerks office of the County Court of said County, his writ of Execution for the amount of his damages & costs afore- said directed to the Sheriff of Said County, in favor of said Plf. agt the said Deft directing & commanding him, if the said William should be found in his county, to have him before the Judges of the County Court of said County, at this Term of said Court on the seventh day of February in the year of our Lord one thousand eight hundred & twenty which Execution, so sued out of the County Court of the County of Macomb aforesaid, was afterwards, on the said twentieth day of October, at said County, delivered by the Plaintiff into the hands of the Sheriff of said County, to be by him obeyed according to the tener therein expressed, which said Execution, afterwards, on the said seventh day of February, in the year of our Lord one thousand eight hundred & Twenty, at the county aforesaid, the same being the return day of said Execution to the County court of the County aforesaid as therein expressed the Said Sheriff of said County made due return of the Same, that he had made diligent search & could not find the body of the said William Austin, within his precinct whereon to levy said Execution, & therefore returned the Same wholly unsatisfied - whereby the condition of said recognizance is wholly broken & become forfeit, and the said Plaintiff thereby entitled to have & recover of the said William & Rufus the before mentioned Sum of two hundred & four dollars & sixty cents- And for their detention of the Same to his damage, five hundred dollars, & for the recovery of the Same he brings Suit Andrew WestBrook puts in his place Hunt & Lamrned as his Attorneys to prosecute this Suit HUNT & LARNED, Atty' to Plf. 662 SUPREME COURT OF MICHIGAN [Case 77 i, Paper 6] [Indorsement] 21. 1821 Supreme Court Rufus Hatch & William Austin ads. Andrew Westbrook Plea J D Doty defts Atty filed in the Clerk's office Dec I3th 1821 M DORR Clerk [Case 771, Paper 6] SUPREME COURT Rufus Hatch & William Austin ads. And the said defendants by James D Doty their Andrew Westbrook attorney come and defend the wrong and injury, when &c and say, that they do not owe the said sum of money above de manded, or any part thereof, in manner and form as the said plaintiff hath above thereof complained against them, and of this the said defendants put themselves upon the county &c And the said Plaintiffs likewise, By HUNT & LARNED Attys to Plffs And the said defendants for further plea say there is not any record of th said supposed recognizance or judgments in the said declaration mentioned, remaining in the said courts, in manner and form as the said plaintiff hath above in his said declaration alledged, and this &C; wherefore they pray judgment if the said plaintiff ought to have or maintain his aforesaid action thereof against them the said defendants, & J D DOTY Defts. Atty. SELECTED PAPERS 663 [Case 771, Paper 8] [Indorsement] 21 1821 Andrew WestBrook V. William Austin Rufus Hatch Plf. Replication filed in the Clerk's office Jany 26. 1822 M DORR Clk [Case 771, Paper 8] Andrew WestBrook TERRITORY OF MICHIGAN SUPREME COURT V OF THE TERM OF SEPTEMBER IN THE YEAR William Austin OF OUR LORD ONE THOUSAND EIGHT HUN- & DRED & TWENTY ONE Rufus Hatch And the said Plaintiff as to the said plea of said Defendants, in this case, Secondly by them pleaded saith, that he the said Plaintiff, by reason of any thing by the said Defendants in their plea alledged, ought not to be barred from having & maintaining his aforesaid action thereof against them the said Defendants, because he saith, that there is such record of the said recognizance, remaining in the office of said John K. Smith Esquire as mentioned in said Plaintiffs declaration who at the time of said Defendants so entering into said recognizance was one of the Justices of the Peace within & for the County of Macomb, & Territory aforesaid, and this the said Plaintiff is ready to verify, a true & attested Copy of which recognizance is here in court to be produced, or by inspec- tion of the record aforesaid, And the said Plaintiff further saith, there is such record of said judgment remaining in the said County Court, of the County of Macomb, as he the said Plaintiff, hath above in his said declara- tion in that behalf alledged and this the said Plaintiff is ready to verify, by the record, a true & attested copy whereof is here in court to be pro- duced, wherefore he prays judgment and his debt aforesaid, together with his damages by him sustained on occasion of the detaining thereof to be adjudged to him By JN° HUNT & CHARLES LARNED his Attorneys 664 SUPREME COURT OF MICHIGAN [Case 787, Paper 4] [Indorsement] 40. (4) 1821 Sup. Court John Meldrum vs James Fulton Bail piece filed in Court Octr Ist 1821 M DORR Clk delivered to John S. Roby Nov 14th 1821 M DORR Clerk [Case 787, Paper 4] MICHIGAN. SUPREME COURT. OF THE TERM OF SEPTEMBER, IN THE YEAR OF OUR LORD ONE THOUSAND EIGHT HUNDRED AND TWENTY ONE. James Fulton of the County of St Clair, is delivered to bail, on a cepi corpus, unto David C. McKinstry, of the County of Wayne, yeoman and Conrad Ten Eyck of the County of Wayne, yeoman, and John S. Roby, of the County of Wayne, Merchant., at the suit of John Meldrum, in a plea of Debt on Bond. CHARLES C. TROWBRIDGE Com' of Bail Hunt & Larned Wayne County, T.M. Att' for Deft [Indorsement] TERRITORY OF MICHIGAN, SS: The within named Defendant having on the prayer and for the indemnity of his manucaptors been committed to the custody of the Sheriff of the County of Wayne, in the Territory aforesaid, at the Suit of the Plaintiff on the within plea, the Said manucaptors of their recognizance within Con- tained are fully exonerated. MELVIN DoRR Clerk Dated Detroit Sept' 9th 1822. SELECTED PAPERS 663 [Case 787, Paper 9] [Indorsement] I. 40 (9) 1821 John Meldrum V James Fulton. Copy of Bail piece, Commit- titur, acknowledgement of Shffs Dept' of the receipt of the Deft, and Certificate of the Com'r of Bail. 5 Sept' 1822. filed in the Clerks office Sept 9th 1822 M DORR Clk [Case 787, Paper 9] 1ICHIGAN, SUPREME COURT. OF THE TERM OF SEPTEMBER IN THE YEAR OF (Copy) OUR LORD ONE THOUSAND EIGHT HUNDRED AND TWENTY ONE. James Fulton, of the County of St Clair, is delivered to bail on a cepi Corpus, unto David C. McKinstry of the County of Wayne, yeoman, and Conrad Ten Eyck, of the County of Wayne, yeoman, and John S. Roby, of the County of Wayne, Merchant, at the Suit of John Meldrum, in a plea of Debt on Bond. (Signed) Charles C. Trowbridge Comr of Bail Hunt & Larned Atts for Deft. Wayne County, T.M. MICHIGAN TERRITORY, TOWIT: SUPREME COURT. I Certify that the above is a true Copy of the Bail piece on file in my office, in the Case of John Meldrum against James Fulton. Detroit September 5th 1821. MELVIN DORR Clerk of the Supreme Court of the Territory of Michigan. 666 SUPREME COURT OF MICHIGAN COUNTY OF WAYNE, TOWIT: The within named Defendant, James Fulton, on the prayer, and for the indemnity of his manucaptors, is Committed to the custody of the Sheriff of the County of Wayne aforesaid, at the suit of the Plaintiff in the plea within mentioned. Dated at the City of Detroit, on the fifth day of September, in the year One thousand Eight hundred and twenty two. CHS. CHR TROWBRIDGE Comr of Bail, County of Wayne, T.M. COUNTY OF WAYNE, TOWIT: I acknowledge that the Defendant James Fulton, above named, hath been delivered to and received by me, and is in my custody in the Gaol of the County of Wayne, by virtue of the above committitur. for Austin E. Wing Sheriff of the County of Wayne T. YOUNG Dept COUNTY OF WAYNE, SS: I Certify that Timothy Young, Deputy of Austin E. Wing, sheriff of the County of Wayne, signed the above acknowledgement in my presence. CHS. CHR TROWBRIDGE Com'r of Bail, Wayne County. [Case 787, Paper i o] [Indorsement] 2. 40 (1o) 1821 John Meldrum vs 2ames Fulton. Copy of Bail piece, Order for notice, Return of Shff, and order for Exoneretur. Filed in the Clerks office Sept 9' 1822 M DORR Clk SELECTED PAPERS 667 [Case 787, Paper xo] MICHIGAN, SUPREME COURT. Copy.) OF THE TERM OF SEPTEMBER, IN THE YEAR OF OUR LORD ONE THOUSAND EIGHT HUNDRED AND TWENTY ONE. James Fulton, of the County of St. Clair, is delivered to bail, on a cepi Corpus, unto David C. McKinstry, of the County of Wayne, yeoman, and Conrad Ten Eyck, of the County of Wayne, yeoman, and John S. Roby, of the County of Wayne, Merchant, at the Suit of John Meldrum, in a plea of debt on Bond. (Signed) Charles C. Trowbridge Comr of Bail, Wayne County, T.M. Hunt & Lamrned Atts for Deft. MICHIGAN TERRITORY, TOWIT: SUPREME COURT. I Certify that the above is a true copy of the Bail piece on file in my office, in the Case of John Meldrum against James Fulton. Detroit September 5th 1822. MELVIN DORR Clerk of the Supreme Court, of the Territory of Michigan. COUNTY OF WAYNE SS: Let notice be given, without delay, to the within named Plaintiff or his Attorney, that the Defendant hath On the prayer and for the indemnity of his manucaptors been committed to the Custody of the Sheriff of the County of Wayne aforesaid, at the Suit of the Plaintiff in the within plea mentioned; and that unless Cause to the Contrary be shown by the Plaintiff before me, at my office in the City of Detroit, on Monday - the Ninth day of Sep- tember, present, at four of the Clock in the afternoon, of that day, an exon- eretur will be endorsed on the Bail piece accordingly. Dated at the City of Detroit, on the 5th day of September 1822. CHS CHR TROWBRIDGE Comr of Bail Wayne County. I have notified John Meldrum, to appear before Chs C. Trowbridge Esq. Commissioner of Bail, in compliance with the above order, on Monday, the ninth day of September, instant, at 4 o'clock p.m. Detroit September 5th I822. For A. E. Wing Shff T. YOUNG Dept Sworn to and Subscribed Before me. CHS CH' TROWBRIDGE Comr of Bail. 668 SUPREME COURT OF MICHIGAN COUNTY OF WAYNE ss: City of Detroit, Monday 9th Sept. 4 p.m. The Plaintiff not having appeared, and due proof having been made of the service of the notice, as appears by the affidavit hereto annexed, let an Exoneretur be endorsed on the Bail piece accordingly. CHS CHR TROWBRIDGE Comr of Bail. [Case 813, Paper 9] [Indorsement] 97 1821 Heman Brown Jun' vs Lowrin Marsh I certify that Wolcott Lawrence one of the Attornies in the within suit personally appeared before me, in open court, this day, and being duly sworn, declares to the truth of the within plea, ac- cording to the best of his knowledge & belief - Sept' 17th 1823. J. KEARSLEY. Clerk. filed in open Court Sept' I7th 1823. J. KEARSLEY. Clerk. [Case 813, Paper 9] SUPREME COURT Lowrin Marsh ads Heman Brown 7r And now at this day to wit on the fifteenth day of September in the year Eighteen hundred and twenty three, untill which day the suit aforesaid was last continued, came the said Heman Brown Junior by John L. Lieb his Attorney, and the said Lowrin Marsh by his Attornies Lanman & Lawrence, and the said Lowrin Marsh SELECTED PIPERS 669 saith that the said Heman Brown Junior ought not further to prosecute his said suit against him, because he saith that after the last continuance of this cause, that is to say, after the last Term of this Court, from which Term this cause was last continued, and before this day to wit on the Second Tuesday in November in the year Eighteen hundred and twenty two be- fore the county court of Genesee County in the State of New York, (to wit at Detroit in the Territory of Michigan) he the said Heman Brown Junior did in pursuance of the provisions of a public law of the said State of New York for giving relief to Debtors in certain cases, authorising the premises, by the consideration assent & direction of said court held in the said County of Genesee, transfer make over and assign to Ira Wait of Bethany in the county of Genesee aforesaid, as assignee under the said Law, among other things, all and singular his right & claim in & to the subject matter of the said supposed cause and causes of action, in the said Heman Brown Junior's writ and declaration set forth and exhibited to wit the said several notes and accounts, and all the right title and interest, either in law or Equity, which he had or could have therein or thereto as by the law aforesaid, of the said State of New York, he well might and could do, which law of the said State of New York the said Lowrin Marsh now exhibits to the court here & to which for greater certainty he refers himself; and the said Lowrin Marsh avers that by the form and effect of the said transfer and assignment to the said Ira Wait in the premises of the said several notes and accounts and of the legal proceedings of said county court of said Genesee county, sanctioning the same, all the right property & interest therein & thereof, and the right to collect and recover the same, because by operation of law & by & with the assent of said Heman Brown Junior, vested exclusively in the said Ira Wait assignee, and this the said Lowrin Marsh is ready to verify; wherefore he prays Judgment, if the said Heman Brown Junior ought further to prosecute the said action thereof against him, and that the writ sued out in this case by the said Heman Brown Junior against the said Lowrin Marsh and the proceedings thereon aforesaid be quashed LANMAN & LAWRENCE Defts Attys (70 SUPREME COURT OF MICHIGAN [Case 813, Paper 13] [Indorsement] 97 1821 Sup: Court Heman Brown 7'fr vs Lowrin Marsh Reasons on Motion for New trial by Marsh Filed in open Court 3' Oct 1823 JER. V R TEN EYCK Dy Clerk [Case 813, Paper 131 MICHIGAN TO WIT SUPREME COURT SEPTEMBER TERM ONE THOUSAND EIGHT HUNDRED & TWENTY THREE Heman Brown 77r vs Reasons - on motion for New Trial Lowrin Marsh First - that the verdict in said case is contrary to law - Second That the said verdict is contrary to evidence Third That incompetent & irrelevant testimoney was permitted to go to the said Jury - And especially in this to wit that it appeared by the plaintiff's own showing that the charge of the said plaintiff of $324.51 was founded upon an alleged special & written agreement the terms whereof are in no wise set out in said declaration & that it further ap- peared by the plff's own showing that there had been an award or an appraisment in the premises & that it was not competent to prove said matters in the premises by parol. Fourth. That the said Defendant was taken by surprise in this that he was compelled unexpectedly to trial in said case, & lost thereby the benefit of his own testimoney. SELECTED P PERS 671 Fifth - That there was a mistrial in this that before the finding of said ver- dict an issue in law was presented to the Court in said case which issue in law ought by the law of the land to have been decided before the finding of said Verdict - And in this to wit that a plea puis darein continuance was regularly put in & filed, which, being received, by the law of the land it became improper to proceed further upon the issue previously closed in said case LANMAN & LAWRENCE Sd Marsh, Attys [In the handwriting of William Woodbridge] [Case 813, Paper 14.] [Indorsement] Affidavit Brown vs. Marsh Affidavit Wollcott Lawrence Atty for Defdt filed in open Court Oct. 9th 1824. [Case 813, Paper 14] Heman Brown 7r vs IN SUP. COURT Lowrin Marsh Wolcott Lawrence one of the Attornies for the Defendant in the above case being duly Sworn Saith, that the Said Defendant was taken by surprise in the above case, the same being ordered for a trial before a Jury when at the same time there was an issue in law pending in the same case, and this Deponent further saith that from his best knowledge of the Law, he was of opinion & did verily believe that according to the law the issue in law ought to have been first tried by the court as standing upon the Imparlance Docket, & this Deponent did advise and counsel the said Defendant that it would not be necessary or proper, that he should be at the expense of Com- ing with his witnesses from the County of Monroe, to attend in court, untill the Court should give a Judgment on the issue in law in the case and the 672 SUPREME COURT OF MICHIGAN said Defendant was deprived of the benefit of any witnesses in the case except this Deponent and further this deponent saith not WOLCOTTr LAWRENCE [In the handwriting of Wolcott Lawrence] Oct 9' 1824. Sworn to in open Court Oct. 9th I824 J. KEARSLEY Clerk. [Case 823, Paper i] [Indorsement] 107 1821 Supreme Court Sept Term 1821. James 7ackson vs J7ohn Stiles [Case 823, Paper I] MICHIGAN TERRITORY SS. SUPREME COURT OF SEPTEMBER TERM IN THN YEAR OF OUR LORD ONE THOUSAND EIGHT HUNDRED AND TWENTY ONE, James Jackson complains of John Stiles, in custody, &c for this, to wit, that whereas the United States on the thirtieth day of May in the year one thousand eight hundred and eleven in the Territory of Michigan and withirn the jurisdiction of this Court had demised, set and to farm let, to the said James Jackson, one messuage or dwelling House, six hundred acres of arable land, six hundred acres of pasture land, six hundred acres of meadow land, six hundred acres of wood land, and six hundred acres of land covered with water with the appurtenances situate lying and being in the County of Monroe in the Territory aforesaid. To have and to hold the said tenements, with the appurtenances unto the said James Jackson and his assigns, until the full end and term of Twenty one years from thence next ensuing, and fully to be complete and ended. By virtue of which said demise, the said James Jackson entered into the tenements aforesaid, with the appurte- nances, and was possessed thereof, until the said John Stiles afterwards to wit on the thirtieth day of May one thousand eight hundred and eleven with force and arms &c, entered in and upon the tenements aforesaid with the appurtenances, in the possession of the said James Jackson aforesaid, and SELECTED PAPERS 673 then and there ejected, expelled and amoved the said James Jackson from his said farm, his said term thereof being not yet ended, and kept out and still keeps out the said James Jackson so expelled, ejected and amoved from his said possession, and then and there did other injuries to him, against the peace of the United States, and to the great damage of the said James Jack- son; wherefore he says he is injured, and hath damage to the value of Five Thousand dollars; and therefore he brings suit &c Pledges of prosecution John Doe Richard Roe James Jackson puts in his place Woodbridge and Lanman his Attoys against John Siles in a plea of tresspass and ejectment. To Mr Francis Poulin tenant in possession of the premises in the foregoing declaration of ejectment mentioned, or of some part thereof. Sir, I am informed that you are in possession of, or claim title to, the premises in this declaration mentioned or some part thereof, and I being sued in this action as a casual ejector, and having no claim or title to the said premises, do advise you to appear at the next Supreme Court to be holden at Detroit within and for the Territory of Michigan on the third monday of September next at the Council House in said City in person or by some Attorney, and then and there by rul of said Court, to cause your- self to be made defendant in my stead, otherwise I shall suffer Judgment to be entered against me by default and you will be turned out of possession. Monroe Yours &c, August sixteenth John Stiles. one thousand eight hundred and twenty one MICHIGAN SS. I have this day served a declaration and notice of which the foregoing are true copies by leaving the same in the hands of the be- forenamed Francis Poulin, upon the premises in sd declaration mentioned or some part thereof. August eighteenth - one thousand eight hundred and twenty one. Sworn before SAMUEL EGNEW me this 21st day Cornor Co Monrow of August 1821 CHAS JAs. LANMAN Justice of Peace County of Monroe. 674 SUPREME COURT OF MICHIGAN [Case 823, Paper 4] [Indorsement] 107 I821 Common Rule fames 7ackson ex demise 7facques Navarre vs de bene esse [Case 823, Paper 4] Consent Rule - Sold by T. B. Jansen, I I Chatham-street. MICHIGAN TERRITORY SUPREME COURT. JAMES JACKSON, ex dem. OF THE SEPTEMBER TERM, IN THE YEAR OF OUR Jacques Navarre LORD ONE THOUSAND EIGHT HUNDRED AND TWENTY VS. ONE JOHN STILES. IT IS ORDERED, by consent of the attorneys of both parties, that Francis Poulin be made defendant instead of the now defendant, JOHN STILES, and do appear forthwith at the suit of the above plaintiff and file common bail, and receive a declaration in an action of trespass and ejectment of the premises in question in this cause, and forthwith plead thereto not guilty; and upon the trial of the issue confess lease, entry, and ouster, and insist upon the title only, otherwise let judgment be entered for the plaintiff against the now defendant, JOHN STILES, by default. And if, upon the trial of the issue, the said Francis Poulin shall not confess lease, entry, and ouster, whereby the plaintiff shall not be able further to prosecute his bill against the said Francis then no costs shall be allowed for not prosecuting the same, but the said Francis shall pay costs to the plaintiff in that case, to be taxed. AND IT IS FURTHER ORDERED, that if, upon the trial of the said issue, a verdict shall be given for the said Francis or it shall happen that the plain- tiff doth not further prosecute his said bill, for any other cause than for not confessing lease, entry and ouster, then the lessor of the plaintiff shall pay to the said Francis costs in that behalf to be adjudged. JoN L. LEIB Atty for Defdt SELECTED PAPERS 675 [Case 84x, Paper i] [Indorsement] 43. 182[I] Supreme Court Attachment against William Hudson, Mary Hudson and Henry Hudson for Contempt. Retble forthwith By order of Court. I have Henry Hudson & William Hudson before the Court. Octr 8th 1821. Service $ 25 Mileage 122 A E WING Shff. I have the Body Mary Hudson Before the court Oct 9th 1821 Service 12Y SAML SHERWOOD Mileag 64 for Sheriff $ .183 4 I have committed the Body of Henry Hudson to prison Mary Hudson and William Hudson entered into reconisune and was discharged from my care By the court comnitnent Oct 9 1821 mileage SAML SHERWOOD under Sheriff Returnd and filed in Court Oct0 loth 1821 M DORR Clerk 676 SUPREME COURT OF MICHIGAN [Case 841, Paper I] TERRITORY OF MICHIGAN SUPREME COURT THE UNITED STATES of America to the Sheriff of the [SEAL] County of Wayne. GREETING: We [Com]mand you that yo[u] attach William Hudson, Mary Hudson and Henry Hudson of the said County of Wayne, so that you may have them before the Judges of the Supreme Court, at the Council House in the City of Detroit, forthwith, to answer to the said Judges for certain trespasses and Contempts done and Committed in our Said Court before the Judges afore- said; And have then there this writ. Witness Augustus B. Woodward Presiding Judge, of our Said Court, at the City of Detroit the Eighth day of October, one thousand eight hun- dred and twenty one. By the Court. MELVIN DORR Clerk [Case 845, Paper 3] [Indorsement] 72. 1821. Samuel Hanna V. 7ohn P. Hedges Joseph Barrow. In Attachment William Suttenfield This action is brought to recover of Defendants, the amount of their Bond made to Plf on the first day of January 1821. for the sum of $1145.38. & payable the first day of April 1821. 3 The Sheriff will attach, the goods & effects, rights & credits as within directed in the hands of Henry J Hunt Returned & filed in the Clerks Office July 6th 1821 M DORR Clk Hunt & Lamed Pltfs Atty SELECTED PAPERS 677 [Case 845, Paper 3] TERRITORY OF MICHIGAN. SUPREME COURT. [SEAL] THE UNITED STATES OF AMERICA. To Austin E. Wing, Sheriff of Wayne County. You are hereby commanded to attach the rights & credits moneys & effects, goods & chattels, lands & tenements, of John P. Hedges, Joseph Barrau & William Suttenfield, wherever they may be found, To answer to Samuel Hanna, in a plea of Debt. And of the rights & credits moneys & effects, goods & chattels lands & tenements of the said John P. Hedges, Joseph Barrau & William Suttenfield, so attached, make due return to our Supreme Court, to be held at Detroit, on the third Monday of September one thousand eight hundred & Twenty one And have you there this Writ. Witness Augustus B. Woodward presiding Judge of the Supreme Court of the Territory of Michigan, at the City of Detroit, in the said Territory, on the twenty third day of June in the year of our Lord one thousand eight hundred & Twenty one MELVIN DORR Clerk Hunt & Lamrned Pltfs Atty [Indorsement] I have served the within writ of Attachment as within directed and attached Three hundred and Eighty Nine Dollars & Seven & half cents being the Amount due John P. Hedges from Henry J Hunt as appears from his Books Detroit Service $1.00 2nd July 1821 for Austin E Wing Sheriff R GARRATT Depy Sheriff Wayne Co [Case 845, Paper 6] [Indorsement] Commission to Auditors in the Case of Hanna v. Hedges, Suttenfield & Barrow. Auditors, William W. Petit George McDougall & James McClosky 678 SUPREME COURT OF MICHIGAN [Case 845, Paper 6] TERRITORY OF MICHIGAN, SUPREME COURT, OF THE TERM OF SEPTEMBER, IN THE YEAR OF OUR LORD ONE THOUSAND EIGHT HUNDRED AND TWENTY TWO. In the case of Samuel Hanna against John P Hedges, William Suttenfield, and Joseph Barrow. In Attachment. On Motion of Hunt & Lamrned Attor- nies to Plaintiff, that Auditors be appointed, to audit, and adjust, the de- mands of the Plaintiff, and to audit, and adjust, the demands of such creditors, as shall present their claims, against said Defendants, to said Auditors, in conformity to the Statute. It is ordered by the Court, that William W Petit, George MCDougall, and James McCloskey, be, and they are hereby appointed Auditors, whose duty it shall be, or any two of them, to ascertain the sum due to the Plain- tiff, and each of the Creditors aforesaid, and to make their report thereof in writing, under their hands, to the next Term of the Supreme Court aforesaid, to be holden at Detroit on the third Monday of September next. In Testimony whereof I have hereunto set my hand and the Seal of the Supreme Court of the Territory of Mich- [SEAL] igan this Eight day of July in the Year of our Lord one thousand eight hundred and Twenty three. JEREMIAH V R TEN EvYcK Dy Clerk [Case 845, Paper 7] [Indorsement] 72 1821 Hannah vs Hedges &c Filed in open Court IO Oct I823 JER. V R TEN EYCK Dy Clerk [Case 845, Paper 7] We the undersigned having been appointed by the Supreme Court of the Territory of Michigan, as will appear by the annexed, commission, to audit & allow such claims, as should be presented to us, by Samuel Hanna, agt SELECTED PAPERS 679 John P. Hedges, William Suttenfield & Joseph Barrow, and also to audit & adjust the demands of such other creditors, as should present their claims, against said Defendants, in conformity to the Statute Having been first sworn to the faithful discharge of the duty assigned us Have pro- ceeded to the duty assigned us, & report; That we have audited & allowed the demand which has been presented to us, by the said Samuel Hanna, by his Attorneys Hunt & Lamrned, against the said John P. Hedges, William Suttenfield, & Joseph Barrow, to be justly due & owing from them, the Sum of thirteen hundred & nineteen dollars & & nine & one half cents, the same having been allowed, on the bond of said Hedges, Barrow & Suttenfield, to said Hanna, Dated the first day of January eighteen hundred & twenty one, & payable the first day of April next after the date of said Bond, interest having been allowed by us on said bond after due And we do further re- port, that no other person has presented to us for allowance any claim or demand agt the Said Barrow, Hedges & Suttenfield - Given under our hands at the City of Detroit, this ninth day of October A D one thousand eight hundred & twenty three. GEO MCDOUGALL WM W PETIT JAMES MCCLOSKEY [Case 864, Paper 5] TERRITORY OF MICHIGAN OF THE TERM OF FEBRUARY A D TOWIT ONE THOUSAND EIGHT HUNDRED COUNTY OF MACOMB SS AND TWENTY The Grand Jurors of the United States of America in and for the County of Macomb in said Territory of Michigan upon their oaths present That Robert Little of the Said County of Macomb Yeoman on the fourth day of January in the year of our Lord one thousand Eight hundred and twenty in the Said County of Macomb and within the Jurisdiction of this court with force and arms &c in and upon one Francis Hassen in the peace of God and of the Said United States then and there being did make an assault and the Said Robert Little a certain Gun of the value of five dollars then and there charged with gun powder and leaden shot, which Said gun the Said Robert in both of his hands then and there had and held, to upon and against the Said Francis Hassen, then and there wilfully and of his malice afore- thought, did Shoot and discharge with intent him the Said Francis Hassen then and there feloniously, wilfully and of malice aforethought of him the Said Robert Little to kill and murder against the peace and dignity of the United States and this Territory 680 SUPREME COURT OF MICHIGAN And also the Said Jurors upon their oaths further present that the Said Robert Little on the fourth day of January in the year of our Lord one thou- sand Eight hundred and twenty in the Said County of Macomb and within the Jurisdiction of this Court with force and Arms in and upon one Francis Hassen in the peace of God and the United States then and there being did make an assault and him the Said Francis Hassen did then and there beat Strike, wound and evil treat and other wrongs to the Said Francis Hassen then and there did to the damage of the Said Francis Hassen and against the peace and dignity of the United States and this Territory and the laws in Such Cases made adopted & provided Signed E Prescott. Pros. Atty Witnesses Endorsed Feby 8th 1821 Francis Hassen Complainant A true Bill Jacob Hassen Signed John K Smith Foreman Freeman Noles I Certify that the foregoing is a true Copy of the Original Indictment onr, file in this Office Given under my hand and the Seal of the Court this tenth day of September A D 1821 JOHN STOCKTON Clerk Macomb County Court [Case 888, Paper i] [Indorsement] 92. 1822. Supreme Court In the Matter of Charles Jackson, Admr on the estate of Daniel Mack, deceased. Petition for sale of real estate. W. A. Fletcher Atty for petitioner. Filed in Court 18 Sep 1822. CHS CH' TROWBRIDGE Dy Clerk SELECTED PAPERS 681 [Case 888, Paper I] TERRITORY OF MICHIGAN SUPREME COURT, OF THE TERM OF SEP- TEMBER IN THE YEAR EIGHTEEN HUNDRED WAYNE COUNTY SS. TWENTY TWO. To the Honourable the Fudges of the Supreme Court of the Territory aforesaid, to be holden at the City of Detroit in the county aforesaid, on the third Monday of September 1822. The petition and representation of Charles Jackson Administrator upon the estate of Daniel Mack late of the city of Detroit aforesaid, deceased, humbly sheweth, That the goods and chattels belonging to the said deceased's estate, are not sufficient by the Sum of Nine hundred forty three Dollars and thirty one cents to answer the just debts which the said deceased owed at the time of his death: He therefore prays that your honours would grant him license to sell the real estate of Said deceased, subject to the widows right of Dower, that he may be enabled to Satisfy the Said debts, with incidental charges: And as in duty bound will ever pray &c Dated I4' September 1822. CHARLES JACKSON [Attached to the foregoing] TERRITORY OF MICHIGAN. WAYNE COUNTY SS. I the subscriber, Judge of the Court of Probate within and for the county aforesaid, do hereby certify to the Judges of the Supreme Court of the Ter- ritory aforesaid, that the value of the estate of Daniel Mack late of the city of Detroit in Said county deceased, as the same is appraised in the Inven- tory thereof, duly taken and returned into the probate office by Charles Jackson Administrator, and Hannah Mack Administratrix, on the estate of said deceased, is as follows, viz. The real estate consisting of a house and lot of land in the city of Detroit aforesaid appraised at Nine Hundred & Seventy five Dollars . . 975-- The personal estate appraised at Four hundred nine Dollars and seventy two cents. . . . . . . . . . . . . . $4o9.72Y4 That the just debts of said deceased, as exhibited to me by Commissioners duly appointed to examine the claims of the creditors of said estate, amount to the sum of Thirteen hundred fifty three Dollars & three cents.. $1353.03 And it is my opinion that it is necessary that the whole of the real estate of said deceased should be sold, for the purpose mentioned in the foregoing petition. Given under my hand this 16' day of September A.D. I822. CHAs LARNED: Judge Probate W:C: 68z SUPREME COURT OF MICHIGAN [Case 895, Paper i] [Indorsement] 1822 27. John S. Robey vs John L. Leib. Affidavit & order for Certiorari. filed in the Clerks office May 25th 1822 M DORR Clk [Case 895, Paper i] John S. Robey Action the Case for goods wares & Merchandise & Money lent & advanced & laid out & Expended. Be- fohn L. Leib: fore Justice Abbott in the City of Detroit & County of Wayne. - Plff's demand $84.4612 John S. Robey being duly Sworn, deposeth & saith that on the twenty seventh day of February last he commenced An Action by summons against John L Leib Defendant named in the Above entitled Suit - to which the Deft appeared - & which was adjourned & continued by Justice Abbott & by Consent, several times, till the second day of April last, when both this deponent and the Sd Deft appeared before the Sd Justice aforesaid, and this deponent exhibited An Acct for Sundry goods - wares & Merchandise sold sd Deft & also for Money lent - amounting to Eighty four Dollars forty six & Y" Cents which Amt he claimed to recover of the said Deft - that the sd Deft to this demand plead the Gen' issue of Non assumpsit - & claimed & filed an offset Amounting to One hundred dollars - & demanded Judt of the Court in his favor for the ballance. Whereupon the sd parties went to trial - And on the trial, the whole of this Deponents Account was proved and admitted, except an Error of two Shillings -- That the said Deft then stated that his sett-off of One hundred dollars was the Amount of a fee to that Amount, which he said this deponent Contracted & promised to give him On condition he would Engage as a Counsellor & attorney to assist the Atty Gent of this Territory in the prosecution of Henry Hudson then ex- pected to be indicted before the County Court of the County of Wayne, that in support of this set off the Defendant produced to the Court a Small Memorandum Book - in which was an Entry of a Memorandum by the SELECTED PAPERS 683 Deft of his being on a certain day employed by this Deponent in the case of an indictment against Henry Hudson as aforesaid and the sum of one hun- dred dollars put opposite the Same as the amount of his fee in sd Case. - Which Book was allowed to be shown & Read in Evidence, by Consent of this Deponent he agreeing that it might go for what it was worth, but at the same time contending that it was not sufficent Evidence to prove a con- tract made by him. - And further that in Support of the sd Deft's Sett off, he produced John McDonnell - Robt Smart - H. P. Brevoort - Richd Smith - and Mary Hudson as witnesses who were all sworn on his behalf. - And this deponent further saith that to the best of his Reccollection & belief- the Amount of the testimony of Mary Hudson went to show that she called on Judge Leib the Deft on the Same day that he told her he had been employed by a certain gentleman to assist in prosecuting Henry Hud- son - for the purpose of retaining him to assist in the defence of the Sd Hudson, And that she would have given him a much larger sum than One hundred dollars - but that the sd Leib told her, he had been employed by some gentleman to assist in the prosecution & therefore could not be re- tained by her on behalf of her husband. - And further that the Amount of the testimony of all the other witnesses above named went generally to show, by certain Conversations had by this Deponent - in their presence principally in the grand jury Room - (when they were members of the Grand jury that found indictments against the Sd Henry Hudson) and Els- where, that they had understood from such conversations that this depo- nent was - to give - (as some of the sd witnesses thought) or to procure (as others understood) the Sum of fifty dollars to the Sd Leib, as a fee for assisting in drawing the indictments against the Sd Hudson & assisting in the prosecution thereof before the sd County Court - and that some of the s witnesses also had understood in said Conversations that the sd Deponent was also to procure by subscribtion other fifty dollars for the Sd Leib - on the Condition aforesaid - but that not one of the sa witnesses stated on Sd trial that- this deponent was to give, himself, more than fifty dollars. And further that this deponent, not Knowing the Nature and extent of the Sd Sett off Nor the testimony that was to be produced in support of it - was not pre- pared to Rebut the same - But being Confident from the testimony given on the trial, that No more than fifty dollars of the sd Sett off would be allowed by the sd Justice, he intended to appeal the case to the county Court where he believed he should be able to produce such testimony as would entirely set asside the Sett off claimed by Sd Defendant. But further this Deponent States that the sd Justice Abbott after the Examination of the Said witnesses, informed the parties that he should hold the case under advisement for two days untill the fourth day of April pres- ent - when he would give judgment - And that before the Sd time for 684 SUPREME COURT OF MICHIGAN giving Judt at the request of the Sd Defendant, the said Justice did send for One of the Sd witnesses, Ricd Smith, - and examined him again without the Knowledge or consent of this Deponant and without his or his counsel's be. ing present on such examination. - And that on the evidence given on S Second examination - the sd Justice, (as this deponent has been informed by the sd Justice himself & verily believes) was induced to change his opin- ion, as before made up from the Evidence given on the trial, - And toy Allow the Deft'S offset at One hundred dollars instead of fifty dollars- And that the sd Justice did accordingly give judgt against this Deponent And in favor of the Sd Defendant for the sum of fifteen dollars and fifty three & one half cents And this Deponant further States that on the sd trial he did contend that the Sd Defendant had never given any assistance in drawing the Sd Indict. ments against the Sd Henry Hudson or in prosecuting the said Henry Hud. son on the sd indictments when drawn - All which was admitted by the Sd Defendant on the Sd trial. And this deponent further States that after the Rendition of Sd Judt and within the time limited by the Statute, he did claim an appeal to the county court from Sd Judt which at that time was granted and allowed by Sd Justice and Security for the appeal was produced and entered on the Docket of the sd Justice but on the next day after, the sd Justice, considering that the ap- peal was not Allowable by law - inasmuch as the sd Judt was rendered for a less sum than twenty dollars - altho' the amount in contest between the parties was One hundred dollars. - And further that this deponent did con- tend before the sd Justice that he was entitled to an appeal from the S Justice - and that the question whether the Law would sanction the appeal ought to be left by the sd Justice to be decided by the County Court on the sd appeal's being brought before them- that the sd Justice, nevertheless did peremptorily refuse to grant the Appeal- thinking himself bound so to do by the Statute. - And further this Deponent saith not Sworn and subscribed JOHN S ROBY before me this 25th April 1822. THOMAS ROWLAND Justice of the peace [Attached to the foregoing] John S. Robey, being duly sworn, deposeth and saith, that, in the Affi- davit made by this deponent in a case between this Deponent and John L Leib - & to which Affidavit this is supplementary and attached, the word "last" - as written after the word "April," - on the first page of Sd Affi- davit was an error in writing - that the Sd month of April mentioned in Sd Affidavit, and the time intended to be Reffered to thereby, was the SELECTED PAPERS 685 Month of April of this present year, to wit, the year of our Lord One thou-.. sand Eight hundred and twenty two. And was the same month as is men- tioned in the second page of Sd affidavit by the words "April present." - And further this deponent Saith that the time at which the claim for an appeal was made, as mentioned on the third page of said affidavit was on the fourth of the Sd Month of April then present & now past, and that the time when the security was presented & entered on the docket of the Sd Justice was the fifth day of the Sd month of April - And that the time mentioned in Sd affidavit as being the "next day after" - the Entering of the Sd Se- curity on the Docket of the Sd Justice for the appeal he had granted was on the sixth day of the month of April - on which sd sixth day of April it was that the said Justice decided that he could not allow the Appeal- And further that it was on the same sixth day of April immediately after Sd Justice had decided that he could not allow the appeal that this deponent gave notice that he should apply for a certiorari And further this Deponent saith not Sworn to and JoHN S ROBY subscribed before me this 9' day of May A.D. 1822. THOMAs ROWLAND Justice of the peace MICHIGAN, TO WIT; The supplemental affidavit, which I deem perfectly admissible, having identified the day, on which the appeal was claimed, granted, and allowed, to have been the fourth day of April, one thousand eight hundred twenty two, and the security having been taken on the fifth day of the same month, the judgment, thereby, became, for the time being, vacated; and if re- instated on the sixth, as the original affidavit, perhaps, means to state, or whether on the fifth, or, by relation back, on the fourth, still leaves the appellant virtually and fairly within the twenty days allowed by the law for making the affidavit; and, being satisfied that there is reasonable cause therefor, a certiorari is allowed as prayed for. WOODWARD, Judge. Mon. May 13. 1822. [The allocatur is in the handwriting of Augustus B. Woodward] 686 SUPREME COURT OF MICHIGAN [Case 895, Paper 4] [Indorsement] 27. 1822. Return of the Justice in the matter of 7ohn S. Robey vs John L. Lieb. Filed in Court on the 16th Sep' 1822. CH' CH' TROWBRIDGE D' Clk. [Case 895, Paper 4] TERRITORY OF MICHIGAN, COUNTY OF WAYNE ss In obedience to the writ hereunto attached, I, James Abbott, one of the justices of the peace within the county aforesaid, do hereby certify to the Honorable Judges of the supreme court of the Territory of Michigan, that on the twenty eighth day of February, in the year of our Lord, one thousand eight hundred and twenty two, at the city of Detroit, in the county afore- said, John S. Robey in the said writ named, complained before me against John L. Leib, also in the said writ named, of a plea of trespass on the case, to his damage one hundred dollars, and required of me process on his said complaint: Whereupon in pursuance of the authority given to me, in and by the act entitled "An act to regulate and define the duties and powers of Justices of the peace and Constables, in civil cases," I issued a summons in the words and figures following, viz, TERRITORY OF MICHIGAN,~TOWIT: TOWIT" COUNTY OF WAYNE ) THE UNITED STATES of America, to any constable of the county aforesaid. You are hereby commanded to summons John L. Lieb to appear before me, one of the Justices of the peace within the county aforesaid, on the ninth day of March next at 10. A.M. then and there to answer to John S. Robey, in a plea of Trespass on the case, to his damage one hundred dol- lars. Hereof fail not, but of this writ with your doings make due return according to law. SELECTED PAPERS 687 Given under my hand at the city of Detroit, the twenty eighth day of February A.D. 1822. (signed) James Abbott, Justice of the peace. Endorsement thereon "This action is brought to recover of the Defendant $84 46 the amount 100 "of an account for goods, wares and merchandize sold and delivered by "Plaintiff to Defendant, and for cash lent, paid out and expended and "advanced. "I acknowledge the service of the within process and agree to appear "agreeably thereto." Signed John L. Lieb. "February 28th 1822." And I do also certify, that on the return day of the writ, towit, on the ninth day of March aforesaid, the Plaintiff and Defendant in their proper persons, appeared before me, and on motion of the Plaintiff, and with the consent of the Defendant the case was continued to the sixteenth day of the said month of March; and on the said sixteenth day of March the Defend- ant comes into court in his proper person, and on motion the case was continued for the second time to the twenty third day of the same month of march; and on the twenty third day of March aforesaid, the parties come into court in their proper persons and by consent case again continued to the twenty sixth day of the same month of March; and on the twenty sixth day of March aforesaid the parties come into court in their proper persons, and by consent case continued for the fourth time until the second day of April of the current year; and on the second day of April aforesaid, at ten of the clock in the forenoon, come the parties into court in their proper per- sons; and the Defendant aforesaid being called upon to answer the said com- plaint plead the "General issue", gave notice of an offset, and filed a bill of particulars of the same; and at the same time put himself upon the court, and so did the Plaintiff: And issue being so joined between the said parties, the Defendant did admit that the account of the Plaintiff against him for goods, wares and Merchandize sold and delivered and money lent, paid and advanced him to the amount of eighty four dollars and forty six cents and a half was correct; but that he was entitled to his offset as before mentioned, which would leave a balance in his favour: AND WHEREAS I am required by the seventeenth section of the act before mentioned, on the service of any Certiorari, to make a special return as to all the facts stated in the Affidavit of the person requiring the same, I do therefore make return of the following as facts, in addition to what I have already mentioned, vizt It appeared in evidence, that the Defendant as a Counsellor and Attorney at law had an offset or demand against the Plaintiff for professional services rendered or 688 SUPREME COURT OF MICHIGAN to be rendered for the Plaintiff in and about the aiding and assisting to prosecute one Henry Hudson: that in support of said offset, the Defendant did produce to the court a small memorandum book, in which was entered or charged the said offset, amounting to one hundred dollars, which entry was read in evidence by consent of parties: That the names of the persons examined as witnesses on the trial were Richard Smyth, John MacDonell, Robert Smart, Henry B. Brevoort and Mary Hudson: that the conversa- tions of the Plaintiff with the witnesses respecting the former's having em- ployed the Defendant as Counsellor and Attorney aforesaid, for the pur- poses aforesaid, were not only in the Grand Jury room but at divers other places: that the Plaintiff must have been prepared to rebut the same, other- wise it is to be presumed that he would not have joined issue in the case, which was not done on the return day of the writ, but long after, to wit, after several adjournments or continuances had taken place, byand with his consent as I have heretofore stated: that it is a fact, that I informed the parties, after a patient hearing of them and their attornies, that I should hold the case under consideration for two days: that on the fourth day of April, in the year before mentioned, and a few minutes previous to the ren- dition of the Judgement, I did send for one of the witnesses namely Richard Smyth and examined him again touching the premises, the Defendant being present and the Plaintiff absent: which examination or I would say the evi- dence given on the second examination of the said Richard Smyth was somewhat different in my opinion from his first, but on my saying so to him, he observed, that if he was not so understood at first, it was his intention that he should be, that is, "that he Richard Smyth, in conversation with the "Plaintiff John S. Robey, said Robey informed him, that he was to give the "Defendant John L. Lieb one hundred dollars for assisting to prosecute one "Henry Hudson, towit, fifty dollars out of his own pocket, and the re- "mainder he was to raise by subscription". That in consequence of said misunderstanding of said Richard Smyth's first evidence it did operate on my mind, so as in some measure to alter the opinion I had formed at the first view of the case; and thereupon I did conclude to allow said offset in full amount, consequently rendered judgement in favour of the Defendant for fifteen dollars and fifty three and a half cents damages, together with his costs in this behalf by him laid out and expended. It did not appear in evidence that the Defendant had drawn any of the indictments against the said Henry Hudson; but one of the witnesses said, that he was under an impression, that he was asked so to do by the Grand Jury. It is a fact, that the Plaintiff did after the rendition of the judgement aforesaid, and within the time prescribed by statute, enter an appeal to the county court, which was granted and recognizances entered into accordingly; SELECTED PAPERS 689 but the next day, on a further examination of our laws, I was satisfied that I ought not to have granted the same, inasmuch as the amount of the judgment aforesaid was under twenty dollars, consequently, I refused to carry said appeal into effect, and informed the Plaintiff thereof, so that he might act accordingly: - That the Plaintiff thereupon did contend that he was entitled to his appeal aforesaid, and that the question, whether the law would sanction the appeal ought to be left by me to be decided by the County Court on the said appeal's being brought before them; but I was of a different opinion and so refused. All of which things I send, in as full and ample a manner as they appeared before me, and which are respectfully refered. Given under my hand and seal at the City of Detroit, the third day of September, in the year of our Lord, one thousand eight hundred and twenty two. JAMES ABBOTT [SEAL] Justice of the peace Costs in the foregoing suit as follows. Allowance to Witnesses, vizt Hy: B. Brevoort 1.25 Robert Smart 1.25 Mary Hudson 1.o614 3.564 Justices fees are for Summons 12" Subpoenas 2 122 Continuances 4 50 Swearing Witnesses 184 Judgement 25 1.1834 This transcript i. 12 $ 5.87W [In the handwriting of James Abbott] 690 SUPREME COURT OF MICHIGAN [Case 91x 3, Indictment] [Indorsement] 70. 1822. United States vs Francois Poulain. Grand Jury Room February the Twenty Sixth in the year of Our Lord one thousand eight hundred and twenty two. A True Bill Oliver Johnson Foreman John Anderson, Prosecutor, Oliver Johnson Foreman. PRESENTED in Court & filed the twenty Sixth day of Feb- ruary one thousand eight hundred and twenty two. Laurent Durocher, Clk A True Copy, Septber 14t 1822. LAURENT DUROCHER, CIk M.C.C [Case 913, Indictment] UNITED STATES OF AMERICA TERRITORY OF MICHIGAN OF THE TERM OF FEBRUARY IN THE YEAR SS OF OUR LORD ONE THOUSAND EIGHT HtL- MONROE COUNTY DRED AND TWENTY TWO. The grand Jurors within and for the body of the County of Monroe afore- said upon their Oath present that Francois Poulain of the County of Monr aforesaid in the Territory aforesaid on the twenty third day of april in the year of Our Lord one thousand eight hundred and twenty one at the Town SELECTED PAPERS 691 of Monroe in the County of Monroe aforesaid and within the Jurisdiction of this Court he the Said Francois Poulain being then & there committed to the Common prison within & for Said County by virtue of an execution issued from the office of Laurent Durocher esquire One of the Justices of the peace within and for Said County of Monroe for the Sum of twenty dollars & forty eight cents debt or damages and One dollar and eighty One and one fourth cents costs of Suit in favor of John Anderson Surviving partner of John Anderson & Duncan Reid against Francois Poulain aforesaid dated the thirtieth day of January in the year of our Lord One thousand eight hun- dred and twenty one, On application to Charles Noble and Laurent Du- rocher esquires two of the Justices assigned to keep the peace within and for the County of Monroe aforesaid in the Territory aforesaid he the Said Francois Poulain being then & there an applicant to Said Charles Noble and Laurent Durocher esquires as aforesaid for the benefit of "an act Concerning poor debtors" made adopted and Published at Detroit the Seventh day of February One thousand eight hundred and twenty, the Said John Anderson the Creditor in the execution aforesaid having been notified in writing ac- cording to law of the Said Francois Poulains desire of taking the privilege allowed by the act aforesaid and then and there the Said Francois Poulain in due form of Law was Sworn as provided in the act aforesaid and did take is Corporal Oath upon the Holy evangelist of Almighty God before the Said Charles Noble and Laurent Durocher Esq" then & there having Sufficient power and authority to administer an Oath to the Said Francois Poulain in that behalf and the Said Francois Poulain then & there upon his oath afore- said taken before them the Said Charles Noble and Laurent Durocher es- quires as aforesaid and the Said Francois Poulain So being Sworn not having the fear of God before his eyes but being moved and Seduced by the insti- gation of the Devil then & there upon his Oath aforesaid falsly wilfully and Coruptly and Say & Swear in this words following that is to Say "I Fran- "cois Poulain do Solemnly Swear that I have not any estate real or personel "in possession,remainder, or reversion Sufficient to Support my Self in prison "or to pay prison Charges, and that I have not Since the Commencement "of this Suit against me or at any other time directly, or indirectly, Sold "Leased or otherwise conveyed or disposed of to, or intrusted any person or "persons whomsoever with, all or any part of the estate real or personal "whereof I have been the Lawful owner or possessor with any intent or "design to Secure the Same or to receive, or to expect any profit or advan- "tage therefrom, or have Caused or Suffered to be done any thing else what- "Soever whereby any of my Creditors may be defrauded. So help me GOD" Whereas in truth and in fact the Said Francois Poulain has Sold released and otherwise Conveyed, Consealed and disposed of, and had intrusted his estate directly and indirectly Contrary to the foregoing oath, and that he 692 SUPREME COURT OF MICHIGAN the Said Francois Poulain has Caused and Suffered to be done other Acts and things whereby the Said John Anderson having the execution aforesaid and the Said Francois Poulain being Lawfully Committed to Prison as aforesaid on the execution aforesaid, was then & there defrauded by means of the oath aforesaid do Say that the Said Francois Poulain On the twenty third day of April in the year of Our Lord One thousand eight hundred and twenty one at the Town of Monroe aforesaid in the County of Monroe aforesaid in the Territory aforesaid and within the Jurisdic[tion] of this Court in his Oath aforesaid before the Said Charles Noble and Laurent Durocher esquires So as aforesaid having Sufficient power and authority to administer the Said Oath to the Said Francois Poulain in manner afore- said of his wicked mind falsley and malisiously and Coruptly did Commit wilful & Corupt perjury to the great damage of the Said John Anderson to the evil exemple of all others in like case offending against the peace dignity & authority of the Said United States of America within the Territory of Michigan aforesaid in the County of Monroe aforesaid and also against the form of the Statute in Such Case made and adopted in the Said Territory of Michigan. Wolcott Lawrence Prosecuting Attorney appointed by the Court A True Copy of the Original September I3th 1822. LAURENT DUROCHER, Cik M.C.C. Clk fees for Copy $0.75. [Case 933, Indictment] MICHIGAN TERRITORY OF THE TERM OF FEBRUARY ONE THOUSAND EIGHT HUNDRED MACOMB COUNTY TOWIT AND TWENTY The Grand Jurors of the United States of America in and for the body of the County of Macomb in Said Territory of Michigan upon their oaths present - That Robert Little of the County of Macomb on the fourth day of January one thousand Eight hundred and twenty, in the County of Macomb and within the Jurisdiction of this Court with force and Arms &c in and upon James Fulton then being Sheriff of the Said County of Macomb in the peace of God and the Said United States and in the due execution of his Said office of Sheriff, then and there being, did make an assault and the Said James Fulton with Guns, Swords, Sticks and Staves did forcibly and with threatnings, resist, impede and obstruct in the due execution of his Said office as Sheriff of Said County, and then and there did beat, wound, Shoot and ill treat the Said James Fulton and other wrongs to the Said SELECTED PAtPERS 693 James then and there did and committed contrary to the laws of the Terri- tory of Michigan in evil example of others offending in like manner and against the peace and dignity of the United States and this Territory Signed E Prescott Prosecuting Atty for the U States. Witnesses Endorsed James Fulton Feby 9t I820 John K Smith A true Bill Wm Brown Signed John K Smith Ira Marks Foreman Charles Stewart I Certify that the foregoing is a true Copy of the original Indictment and of the proceedings had before the County Court of Macomb County in the foregoing Case Given under my hand and the Seal of the Court this tenth day of September A D 1821 JOHN STOCKTON Clerk Macomb County Court. [Case 937, Paper 4] [Indorsement] 48 1822 The United States vs Simon Shover Copies of Oaths to Grand and Petit Jurors in Wayne County Court. filed in the Clerks office July 15th I822 M DORR Clk [Case 937, Paper 41 You shall diligently enquire and true presentment make as well of all such matters and things which shall be given you in charge, as of those things which you know to be presentable here. The United States Counsel, your fellows and your own you shall keep secret, You shall present no one 694 SUPREME COURT OF MICHIGAN through envy, hatred or malice, nor shall you leave any one unpresented thro' fear, favor, affection, reward, gain or any hope thereof, but shall pre- sent all things truly as they come to your knowledge, according to the best of your understanding, So help you God. You and each of you do solemnly swear, that you will well and truly try the issue joined, between the United States of America and the prisoner at the bar, and a true verdict give according to the evidence, So help you God. WAYNE COUNTY, TOWIT: I Certify that the above are the Copies of the Oaths administered to the Grand & Petit Jurors in Wayne County Court, in June Term last past. [SEAL] Given under my hand & the seal of said Court, on the 12th day of July 1822 CHS C. TROWBRIDGE Dy Clerk [Case 944, Paper i, Affidavit] [Indorsement] 84: 1822. Sup. Court Smith Knapp us. In Error. Jenievre Beaubien Affidt for Certiorari Fletcher Atty & of Counsel for Plff in Error. Filed in Clerks office, on the 12 Sepr. 1822. CHS CHR TROWBRIDGE Dy Clerk [Case 944, Paper I, Affidavit] WAYNE COUNTY SS. William A. Fletcher being duly sworn deposeth and saith that an action was commenced on the first day of August instant, wherein Jenievre Beaubein was Plaintiff and Smith Knapp was Defendant by writ of Replevin for ten Hogs, returnable before John L. Leib Esquire SELECTED P.,IPERS 695 one of the Justices of the peace in and for the county aforesaid, on the sev- enth day of August instant - that on the day last mentioned, Spencer Coleman of counsel for Plff and this Deponent of Counsel for Deft agreed to adjourn the trial of said action until the fourteenth day of the same month - And this Deponent saith that on the said fourteenth day of August, the said Defendant by this Deponent avowed the taking & de- taining of the said Hogs, and pleaded in justification that he, the said Defendant acted under the authority of a law made by the board of Trustees of the city of Detroit, to prevent swine from running at large within the limits of the said city, when the parties by their respective counsel pro- ceeded to trial before the said Justice and a jury - And this Deponent saith that on the said trial, this Deponent on behalf of said Defendant, admitted that the said Hogs at the time of the taking thereof by said Defendant were the property of said Plaintiff, and that the said Hogs had accidentally departed from the enclosure of said Plaintiff, and without his express knowl- edge - that the counsel for said Plaintiff admitted that at the time of the taking the said Hogs by said Defendant, they were going at large in the public streets within the limits of the said city - And that the counsel for said Plaintiff agreed that the said law of the board of Trustees aforesaid, should be read by this Deponent, from the book of the Secretary to said board, as evidence to the said justice & jury, without any other evidence of its existence - And this Deponent saith that after the said parties by their counsel had been heard on the said trial, the said Justice proceeded to charge the said jury, in substance as follows towit: that the Legislature of the Territory of Michigan could not delegate a power to the Trustees of the City of Detroit, to make original laws, inasmuch as the said Legislature itself could not exercise such a power - That the act of the said legislature entitled "an act concerning the city of Detroit" passed the 24th day of October 1815, was unconstitutional and void, and that therefore the said law made by the said board of Trustees to prevent swine from running at large was made without legal authority - that the laws of the said Territory of Michigan permitted cattle & swine to run at large, & that therefore the said law of the said board of Trustees was inconsistent with the laws of the said Territory, & therefore void - That if the said law of the said board was legal and valid, it could not operate to affect any persons living without the limits of the city of Detroit, altho such persons should suffer their Hogs to run at large within the limits of the said city - And this Deponent further saith that upon the proceedings aforesaid the jury found a verdict for the Plaintiff for Six cents damages, whereupon the said Justice rendered judg- ment for the said Damages & Costs against said Deft - And this Deponent saith that at the time of the said trial the said Defendant was confined by legal process within the prison limits in the city of Detroit - that the said 696 SUPREME COURT OF MICHIGAN trial was had at the dwelling house of the said justice, situate without the said prison limits, and that the said Defendant could not, therefore, be per- sonally present at the said trial - And further this Deponent saith not. Subscribed & sworn the WM A. FLETCHER. 23d day of August 1822 before me THOMAS ROWLAND Justice of the peace [In the handwriting of William A. Fletcher] [Case 947, Paper 7] [Indorsement] 88. 1822. Sup. Court John Mountfort ads. William C. Kelly Plea. H. S. Cole Deft Atty Filed in Clerk's office 27th March 1823. JER. V R TEN EYCK Dy Clerk [Case 947, Paper 7] TERRITORY OF MICHIGAN SUPREME COURT, OF THE TERM OF SEPTEMBER, IN THE YEAR OF OUR LORD, ONE THOUSAND EIGHT HUNDRED & TWENTY TWO. Joh/n Mountfort ads. William C. Kelly And the Said John Mountfort, by H. S. Cole his attorney, Comes & says that this Court ought not to have or take further cognizance of the action aforesaid, because he says that the Said supposed Causes of action & each & every of them, (if any such have accrued to the Said William C. Kelly) accrued to the Said William C. Kelly out of the Jurisdiction of this Court, that is to say, at the United States' Military reservation, Called by the name of Fort Shelby, and not within the Juris- diction of this Court; and this the Said John Mountfort is ready to verify, SELECTED PAPERS 697 wherefore he prays judgment whether this Court Can or will take further Cognizance of the Action Aforesaid. WAYNE COUNTY SS: John Mountfort puts in his place Henry S. Cole his Attorney At the Suit of William C. Kelly in the plea aforesaid. WVAYNE COUNTY SS. H. S. Cole, Atty for Jn° Mountfort, (the within Named Defendant), being duly sworn, says that the within plea is the answer of the Said defendant to the action within Mentioned, & further says not Sworn before me this HENRY S. COLE 25 day of March 1823 J CHs C TROWBRIDGE Comr for Taking affidavits Wayne County. [Case 955, Paper 4] [Indorsement] Sup Court 9/22 Anthony Beelin & Henry C Bosler vs Thomas Rowland xd Narr in case Filed in Clerk's office Oct. 24. 1822 JER. V R TEN EYCK Deputy Clerk [Case 955, Paper 41 TERRITORY OF MICHIGAN SUPREME COURT SS. COUNTY OF WAYNE. OF THE TERM OF SEPTEMBER, ONE THOU- SAND EIGHT HUNDRED & TWENTY TWO. Anthony Beelin & Henry C. Bosler, Merchants in Company, trading under the Firm of Bosler & Co. Plaintiffs in this case, complain of Thomas Row- land, Defendant in this case, in custody &c of a plea of the case &c.- For that whereas Isaac A Rowland, on the twenty fifth day of June, in the year 698 SUPREME COURT OF MICHIGAN of our Lord one thousand Eight hundred & Sixteen at Detroit in the County of Wayne & Territory of Michigan & within the Jurisdiction of this Court, made a certain Note in writing, commonly called a promissory note, bear- ing date the day & year last aforesaid & then & there delivered the Said note to the Said Defendant. By which said note, the Said Isaac A Row. land, promised to pay to the Said Defendant by the name of Thomas Rowland or order two years after the date of the said Note, Four Hundred Dollars without defalcation, for value received.- And the said Defendant, to whom or to whose order the payment of the said sum of Money in the said note specified, was to be made as aforesaid, afterwards & before the payment of the said sum of Money mentioned in the said Note, or any part thereof; & also before the time limited & appointed by the said Note for the payment thereof, to wit, on the same day & year, & at the place aforesaid, Endorsed the said note in writing, & by that Endorsement ordered & ap- pointed the contents of the said Note to be paid to the said Plaintiffsororder & then & there delivered the said note so Endorsed to the said Plaintiffs. - And the said Plaintiffs in fact say that, afterwards, when the said Note be- came due & payable, according to the tenor & Effect thereof, to wit, on the twenty sixth day of June in the year of our Lord one thousand Eight hun- dred & Eighteen, at the place aforesaid, the said Note, with the Said En- dorsement so thereon made as aforesaid, was presented, & shown to the Said Isaac A Rowland for payment thereof; who then & there had Notice of the Said Endorsement, & who then & there was requested to pay the said sum of money in the said note specified, according to the tenor & Effect of the said note, & of the said Endorsement so thereon made as aforesaid; But the said Isaac A Rowland then & there refused & neglected to pay the said sum of Money in the said note specified or any part thereof, to the said Plaintiffs, of which the said Plaintiffs afterwards, to wit, on the same day & year last aforesaid, gave notice to the Defendant. By reason whereof, & by force of the Statute in such case made & provided, the said Defendant became liable to pay to the said Plaintiffs, the said sum of money in the said note specified, & being so liable, the Said Defendant, in consideration thereof, afterwards, to wit, on the same day & year & at the place aforesaid, undertook, & then & there faithfully promised the said Plaintiffs to pay to the said Plaintiffs the said sum of money in the said note specified when the Defendant should be thereunto afterwards requested. - And whereas the said Isaac A Row. land, afterwards, to wit, on the same twenty fifth day of June one thousand Eight hundred & Sixteen, at Detroit aforesaid, in the County & within the Jurisdiction aforesaid made his certain other note in writing commonly called a Promissory Note, subscribed by the said Isaac A Rowland, bearing date the day & year last mentioned & then & there delivered said last men- tioned note to the Defendant, & thereby, two years after date, promised to SELECTED PAPERS 699 pay the Defendant by the name of Thomas Rowland or order, Four Hun- dred Dollars, without defalcation for value received. - And the said De- fendant, to whom or to whose order, the payment of the said sum of money in the said last mentioned note specified was to be made as aforesaid, after- wards, & before the payment of the said of the said sum of money mentioned in the said note, or any part thereof, & also before the time limited for the payment thereof, to wit, on the same day & year aforesaid, & at the place aforesaid, Endorsed the said note in writing, & by that Endorsement, ordered & appointed the contents of said note to be paid to the Plaintiffs or order, for value of them received & then & there delivered the Plain- tiffs said note so Endorsed, & the said Plaintiffs in fact say, that afterwards, when said note became due & payable to wit, on the Twenty fifth day of June one thousand eight hundred & Eighteen, at Detroit & throughout the Territory of Michigan, they made & caused to be made diligent search & Enquiry after the said Isaac A Rowland in order & for the purpose of pre- senting Said note & with the Endorsement thereon made, to him the said Isaac A Rowland, for payment. But the said Isaac A Rowland, upon such search and Enquiry, was not found at Detroit or within the Territory of Michigan. But at the time Said note became due & payable & for a long time before and Ever since said day, the said Isaac A Rowland, hath lived & resided abroad & out of the Territory of Michigan, in some country & place to the Plffs wholly unknown as the Plaintiffs aver. By reason of which said absence of Said Isaac as aforesaid, the Plaintiffs became unable to pre- sent said note to the said Isaac for payment, nor hath the said Isaac at any time paid the money or any part thereof to the Plaintiffs, of all which facts, the Defendant afterwards, to wit, on the day & year last aforesaid, at De- troit aforesaid, had notice, & thereupon as indorser of said note, & by force of the Statute in such case made & provided, became liable to pay the money therein mentioned to the Plaintiffs, & being so liable, the Defendant, in con- sideration thereof, afterwards, to wit, on the day & year last mentioned, at Detroit aforesaid, undertook & then & there faithfully promised to the said Plaintiffs, to pay to the said Plaintiffs, the said sum of money in said note mentioned, when the said Defendant should be thereunto afterwards re- quired by the Plaintiffs. And whereas also, the said Defendant, afterwards, to wit, on the twenty seventh day of June, in the year of our Lord one thou- sand Eight hundred & Eighteen, at the place aforesaid, was indebted to the said Plaintiffs in the sum of One thousand Dollars, lawful money of the United States of America, for so much money before that time lent & ad- vanced by the Said Plaintiffs, to the said Defendant & at the special instance &request of the said Defendant. And for other money by the said Plaintiffs, before that time, paid, laid out & Expended for the said Defendant & at the like request of the said Defendant. And for other money by the said 700 SUPREME COURT OF MICHIGAN Defendant before that time had & received to & for the use of the Said Plain. tiffs. And being so indebted, the said Defendant in consideration thereof, promised the said Plaintiffs well & truly to pay unto the said Plaintiffs, the said sum of money in this count mentioned, when the said Defendant should be thereunto afterwards requested. Nevertheless, the said Defendant, (altho' often requested &c) hath not yet paid the said several sums of money above mentioned, or any or Either of them, or any part thereof, to the said Plaintiffs, but to pay the same or any part thereof, to the said Plaintiffs, the said Defendant hath hitherto wholly refused & still doth refuse to the dam- age of the said Plaintiffs of one thousand dollars, & therefore the said Plaintiffs bring suit &c. SIBLEY & WHITNEY Att' SUPREME COURT - TO WIT: Anthony Beelin & Henry C Bosler put in their place Sibley & Whitney their Atty against Thomas Rowland Deft to prose- cute in an action on the case &c. [Attached to the foregoing] And the Said Thomas Rowland comes & defends the wrong & injury when &c & for Plea says he never promised the Plaintiffs as they in their declara- tion against him have alledged & thereof he puts himself on the Country for trial By HUNT & LARNED his Attorneys And the P' likewise - SIBLEY & WHTY The Deft demands a bill of particulars of PlfP claim - HUNT & LARNED Atty' [Case 956, Paper 3] [Indorsement] 10/22 R. I1I9. William MCroskey VS John McDonnell Adm' of Edward Richardson. xd Narr in Case Filed in Clerk's office Oct. 24. 1822. JER. V R TEN EYCK Deputy Clerk SELECTED PAPERS 7o [Case 956, Paper 31 TERRITORY OF MICHIGAN SUP: COURT SS. COUNTY OF WAYNE. OF THE TERM OF SEPTEMBER ONE THOU- SAND EIGHT HUNDRED & TWENTY TWO. William McCroskey, Plaintiff in this cause, complains of John MCDon- nell, Administrator of all & singular the goods, chattels, rights & credits that were of Edward Richardson, deceased, at the time of his death, who died intestate, Defendant in this cause, who was summoned &c. For that whereas the said Edward Richardson, in his life time, to wit, on the Tenth day of February, one thousand Eight hundred & fifteen, at Detroit in the County of Wayne & within the Jurisdiction of this Court, was indebted to the sd Plaintiff in the sum of sixty two dollars & Seventy five cents, for the work, labor, care attendance & professional services of the said Plaintiff by him before that time done, performed & bestowed for the said Edward & at his special instance & request, in & about the healing & curing of the said Edward & divers other persons of divers diseases, disorders & maladies under which they had before then respectively languished & labored & in & about the Endeavoring to heal & cure the said Edward & divers other per- sons of divers other diseases, disorders & maladies, under which they had before then also respectively languished & labored & also for divers medi- cines & other necessary things before that time found & provided, adminis- tered, delivered & applied by the said Plaintiff on those occassions for the said Edward in his life time & at his like special instance and request, & being so indebted, he the said Edward, in his life time, in consideration thereof, afterwards towit, on the day and year last aforesaid, at the place aforesaid undertook & then & there faithfully promised to the said Plain- tiff, to pay him the said sum of money, when he the said Edward should be thereunto afterwards requested. And whereas also afterwards, to wit, on the day & year last aforesaid, and at the place & within the Jurisdiction aforesaid, in consideration that the said Plaintiff, at the like special instance & request of the said Edward, had before that time done, performed & bestowed, other his work, care labor, diligence & attendance as a Physician, in & about the healing & cur- ing of the said Edward & divers other persons of divers other disorders & maladies, under which they had before then respectively labored & lan- guished, & also in & about the Endeavoring to heal & cure the said Edward and divers other persons of divers other diseases, disorders & maladies under which they had before then respectively laboured & languished & had also at the like special instance & request before that time found & provided, administered and applied, divers other medicines & necessary things on those last mentioned occassions for the said Edward, he the said Edward 702 SUPREME COURT OF MICHIGAN undertook & then & there faithfully promised the said Plaintiff to pay him so much money therefor as he reasonably deserved to have of the said Edward, when he the said Edward should be thereunto afterwards re- quested. And the said Plaintiff avers that he therefor reasonably deserved to have of the said Edward, the further sum of sixty two dollars and seventy five cents of lawful money, to wit, at the place aforesaid, whereof the said Edward, to wit, at the place aforesaid, then & there had Notice And also for that whereas the said Edward in his life time, afterwards, to wit, on the day & year last aforesaid & at the place aforesaid, accounted with the said Plaintiff of & concerning divers other sums of money, from the said Edward to the said Plaintiff before that time due & owing & then in arrear & unpaid, & upon such accounting the Said Edward was then & there found to be in arrear & indebted to the said Plaintiff in the further sum of Sixty two Dollars & seventy five cents, & being so found in arrear & indebted as aforesaid, he the said Edward, in consideration thereof under- took & faithfully promised to pay the said Plaintiff the Said last mentioned sum of money when he should be thereunto afterwards requested. Yet the Said Edward in his life time, & the said Defendant, Administra- tor as aforesaid since the Death of the said Edward, have not, nor have Either of them as yet, paid the said sums of money, or any, or Either of, or any part thereof, to the said Plaintiff (although often requested so to do), but to pay the same or any part thereof to the said Plaintiff, the said Ed- ward in his life time, wholly refused & the said Defendant, administrator as aforesaid, hath Ever since the Death of the said Edward, hitherto wholly refused & still doth refuse so to do to the Damage of the said Plaintiff of one Thousand Dollars & therefore he brings Suit. SIBLEY & WHITNEY Att SUPREME COURT. S.S. William McCroskey puts in his place, Sibley & Whit- ney his Attys against John McDonnell, Administrator of the Estate of the late Edward Richardson, in a plea of tresspass on the case. TERRITORY OF MICHIGAN TOWIT, SUPREME COURT SEPTEMBER TERM ONE THOUSAND EIGHT HUNDRED & TWENTY TWO And the Said John MCDonell, by Hunt & Lamrned his Atty' comes &c when &c & for plea saith that the Said Edward Richardson, in his life time afore- said did not assume & promise the Said Plaintiff as in his said declaration against him he hath alledged, & of this he puts himself on the country for trial HUNT & LARNED Att to PI. And this Plf likewise - SIBLEY & WHITNEY The Defendant gives notice to the Plf or his Att" that he demands a bill of particulars, of Plaintiffs claim HUNT & LARNED Att to PI. SELECTED PdPERS 7o3 [Case 965, Paper 7] [Indorsement] 1822 35 Plea & Notice of Sp' Matter Robert Little vs p. 35 Sept. 1822 Wm Little Filed in Clerk's office this 22 Nov. 1822 JER. V R TEN EYCK Dept Clerk [Case 965, Paper 7] And the said William Little gives notice that he intends under the general issue to give special matter in evidence, to wit, That John Little his father in the said declaration mentioned died intestate, and that therefore the sum of "one hundred pounds New York currency, equal to two hundred and fifty dollars" were not given and bequeathed by the will of the said John Little, as it is alleged in the said declaration, and that he was not thereby "ap- pointed executor and residuary Legatee of the personal & real estate of said John Little," therefore not liable to pay said sum out of the estate of said John Little" And that the condition of the promise contained in the said note having failed, it became void & without consideration and that he is therefore discharged from any obligation to pay the same JOHN L. LEIB Atty for Wm Little GEO. M DOUGALL Atty for W"' Little [In the handwriting of John L. Leib] [Case 967, Paper 4] [Indorsement] King & King Adm"s &c 51/22. adsm Edward Brooks Plea 70o4 SUPREME COURT OF MICHIGAN [Case 967, Paper 4] James W King & Jane King Joint Administrators of the Estate of the adsm late William J MCGee deceased Edward Brooks And the said James W King & Jane King, Joint Administrators as afore- said, by Sibley & Whitney their Attu come & defend the wrong & injury when &C & say that they did not undertake & promise in manner & form as the said Edward Brooks hath above thereof complained against them & of this they put themselves upon the Country, &' & the plaintiff like- wise. And for a further plea in this behalf, the said James W King & James King, joint administrators as aforesaid, by leave of the Court here, for this purpose first had & obtained, according to the form of the Statute in such case made & provided, say, that the sd Plaintiff ought not to have or main- tain his aforesaid action thereof against them, because they say, that before the commencement of the sd Action by the sd Plff. against the sd Deft' as joint Administrators, as aforesaid, they did, according to the Statute in such case made & provided,represent the Estateof the sd Wm McGee, their said Intes- tate as insolvent, before the Honorable Charles Lamrned, Judge of Probate for the County of Wayne, & did pray that Commissioners might be ap- pointed according to the Statute. - which sd Prayer of them the said Joint Administrators, was granted by the sd Judge of Probate, & commissioners were appointed by the said Judge, to audit, settle & allow the claims of all the creditors of the Estate of the sd McGee, & report the same for the ac- ceptance of the said Judge that a dividend may be made for the sd creditors of the said Insolvent Estate, according to the Statute in such case made & provided. And further they say that by the first Section of the Act of this Territory, Entitled "An Act for the distribution of Insolvent Estates" it is provided that no action brought against any administrators after the Estate of the Intestate, shall be represented insolvent, shall be sustained, - Except for debts due for Rates or taxes, the deceased's last sickness & funeral charges, unless the Executor or Administrator shall consent to have the same Settled by due course of Law. And the said Defendants Joint Administrators as aforesaid, aver that the said Demand set forth in the sd Declaration & the said Note in said Declaration set forth, if any such Exists, was not for Rates or Taxes or for the last sickness or funeral Expenses. And the said Defend- ants Administrators as aforesaid, aver that they have never consented that the same be settled by due course of Law, as contemplated by the Section of the sd Statute, the Title of which is above recited. And this they are SELECTED PAIPERS 705 ready to verify, wherefore they pray Judgment, if the said Edward Brooks ought to have or maintain his aforesaid action thereof against them &c SIBLEY & WHITNEY. Detroit Nov: 25. 1822. [Case 971, Paper 6] [Indorsement] 69 Sup Court 1822 Edward R. Campbell vs. Stephen Mack. Report of assessment of Principal & Interest due in this case and as- sented to by the Atte of parties. Filed in open Court Sept' 23d 1824. J. KEARSLEY. Clerk. [Case 971, Paper 6] SUPREME COURT, MICH TERRY Edward R. Campbell vs. Stephen Mack Principal $905.20 Interest thereon from August I Ith 1821, which is for 3 yrs. I month and I1i days 169.12 $1074.32 I have examined the matter referred and do certify & report the above sum (to wit one thousand and seventy four Dollars & thirty two cents) due & owing to Edward R. Campbell by Stephen Mack and as such respectfully submit this report in obedience to the order of this Court. Septr 22d 1824. J. KEARSLEY. Clerk 706 SUPREME COURT OF MICHIGAN [Indorsement] This Report is accepted by the Attornies of the parties A G WHITNEY Plff's Att' WOODBRIDGE Deft's Att' [Case 975, Paper 3] [Indorsement] 82 1822 Sill, Thompson & Co. U Austin E. Wing, Sherif Nar. Filed in Clerks Office 5 January 1823 JER. V R TEN EYCeK Depy Clerk [Case 975, Paper 31 Augustus Porter Peter B: Porter TERRITORY OF MICHIGAN Benjamin Barton SUPREME COURT OF THE TERM OF Sheldon Thompson SEPTEMBER IN THE YEAR OF OUR 7acob Townsend LORD EIGHTEEN HUNDRED & Alen Bronson TWENTY TWO & Augustus Porter, Peter B. Porter, Benjamin Bar. Nathaniel Sill ton Sheldon Thompson, Jacob Townsend Alen v Bronson & Nathaniel Sill, late partners in trade Austin E. Wing & merchandize, under the firm of Sill, Thompson & Sheriff of Wayne Company By Hunt & Larned their Attorneys, County complain of Austin E. Wing who was summoned to answer to the Plaintiffs In a plea of trespass on the case. For that the said Plaintiffs, on the fifteenth day of December in the year of our Lord one thousand eight hundred & twenty, purchased our writ of capias ad respondendum, out of the Clerks office of our Supreme SELECTED PAPERS 707 Court, in form by law prescribed, for the recovery of the Sum of one thou- sand & two dollars & fifty cents with interest, due the Plaintiffs from Ralph & George Lockwood, by their two notes of hand, duly executed to the Plain- tiffs, with the signature of Ralph Lockwood & Company affixed thereto, the said Ralph & George being then merchants in company trading under the firm & style of Ralph Lockwood & Company & dated at Black Rock, in the State of New York, on the twenty eighth day of August, in the year of our Lord one thousand eight hundred & nineteen, wherein & whereby the said George & Ralph Lockwood, For value received, promised the said Plaintiffs, by the name & style of Sill, Thompson & C° or order (to pay them) the sum of five hundred dollars, on or before the first day of February next ensuing (meaning then next after the day of the date of the note afore- said, which time of payment had then long since passed And also for the recovery of one other note of hand, made as aforesaid, & bearing date the day & year aforesaid, at Black Rock in the State of New York, wherein the said George & Ralph in the name & style of Ralph Lockwood & Company, For value recd promised the Plaintiffs by the name & style of Sill Thompson & CO to pay them or order, five hundred & two dollars & fifty cents, on or before the first day of April next ensuing (meaning then next ensuing the date of Said note, which time of payment had then long since passed) And the Plaintiffs declared accordingly in their praecipe filed, in the Clerks office of said Supreme Court, and endorsed on said writ of Capias ad responden- dum, setting forth the Sums due from said George & Ralph Lockwood, on the notes before mentioned, and the Plaintiffs damage by the said George & Ralphs neglecting to pay said sums to the Plaintiffs. And the said writ of capias ad respondendum, sued out as aforesaid was directed to the Sheriff of the County of Wayne, under the seal of said Court in the words following "Territory of Michigan. Supreme Court. The United States of America, to the Sheriff of the County of Wayne You are hereby commanded to take Ralph Lockwood & George Lockwood, trading under the Firm of Ralph Lockwood & Co., if they be found in your County, and them safely keep, so that you have their bodies, before the Judges of the Supreme Court of the Territory of Michigan, at the City of Detroit, on the third monday of September, one thousand eight hundred & twenty one, to answer, Augustus Porter, Peter B. Porter, Benjamin Barton, Sheldon Thompson, Jacob Townsend, Alen Bronson & Nathaniel Sill, trading under the firm of Sill, Thompson, & C° In a plea of trespass on the case. To their damage fifteen hundred dollars, & that you have there, then this writ. Witness Augustus B. Woodward. Presiding Judge of the Supreme Court, of the Territory of Michigan, at the City of Detroit, on Friday the fifteenth day of December, in the year one thousand eight hundred & twenty. And forty fifth year of the Independence of the United States of America. Melvin Dorr Clerk." 708 SUPREME COURT OF MICHIGAN And afterwards towit on the Sixteenth day of December, in the year of our Lord one thousand eight hundred & twenty, the Said Plaintiffs delivered said writ of Capias ad respondendum, to Said Defendant then & to this day Sheriff of our County of Wayne, to execute & return the Same as therein commanded And to return said writ on the third monday of September eighteen hundred & twenty one, to our said Supreme Court, which was held at the City of Detroit, for the Territory aforesaid, on Said day. And the said Defendant, then & there, on said sixteenth day of December eighteen hundred & twenty, at Detroit aforesaid, promised to serve & return said writ of capias ad respondendum accordingly. Yet the said Defendant, neglecting in the premises, never made any return of said writ, as he was commanded & required to do on said third monday of September, to which said writ was made returnable to our said Supreme Court, or his doings therein, when & where it was returnable as aforesaid: Whereby the Plain- tiffs have lost the benefit thereof, and have thereby wholly lost said several sums of money due & owing from said Ralph & George Lockwood on their notes of hand before mentioned. And also for that the Said Plaintiffs on the fifteenth day of December in the year of our Lord one thousand eight hundred & twenty purchased our writ of capias ad respondendum out of the Clerks office of our Supreme Court, in form by law prescribed, for the recovery of the Sum of one thou- sand & two dollars & fifty cents with interest due the Plaintiffs, from Ralph & George Lockwood, by their two notes of hand duly executed to the Plain- tiffs, with the signature of Ralph Lockwood & Company, affixed thereto, the said Ralph & George being merchants in company trading under the firm & style of Ralph Lockwood & company, and dated at Black Rock in the State of New York, on the twenty eighth day of August in the year of our Lord one thousand eight hundred & nineteen, wherein & whereby they the said Ralph & George Lockwood, For value received promised the said Plaintiffs by the name & style of Sill Thompson & Company or order to pay them, the Sum of five hundred dollars, on or before the first day of February next ensuing, meaning then next after the day of the date of the note aforesaid, which time of payment had then long since passed And also for the recovery of one other note of hand, made as aforesaid, & bearing date the day & year aforesaid, at Black Rock in the State of New York, wherein the Said George & Ralph, in the name & style of Ralph Lockwood & Company For value received promised the Plaintiffs by the name & style of Sill Thompson & Company, to pay them or order five hundred & two dollars & fifty cents, on or before the first day of April next ensuing, meaning then next ensuing the date of said note, which time of payment had then long since passed, And the Plaintiffs declared accordingly, in their praecipe filed in the clerks office of said Supreme Court, and endorsed on Said writ SELECTED PL'PERS 709 of capias ad respondendum, setting forth the Sums due from said George & Ralph Lockwood, on the notes before mentioned, and the Plaintiffs damage by the Said George & Ralphs, neglecting to pay said sums to the Plaintiffs And the said writ of capias respondendum, sued out as aforesaid was di- rected to the Sheriff of the County of Wayne, under the seal of said Supreme Court in the words following, "Territory of Michigan Supreme Court. The United States of America, To the Sheriff of the County of Wayne, you are hereby commanded to take Ralph Lockwood & George Lockwood, trading under the firm of Ralph Lockwood & Co. if they be found in your county, & them safely keep, so that you have their bodies, before the Judges of the Supreme Court of the Territory of Michigan, at the City of Detroit, on the third monday of September one thousand eight hundred & twenty one, to answer, Augustus Porter B. Porter, Benjamin Barton, Sheldon Thompson, Jacob Townsend, Alen Bronson & Nathaniel Sill, trading under the firm of Sill, Thompson & Co - In a plea of trespass on the case To their damage fifteen hundred dollars, & that you have there then this writ. Witness Augustus B. Woodward, Presiding Judge of the Supreme Court of the Ter- ritory of Michigan at the City of Detroit, on Friday the fifteenth day of December, in the year one thousand eight hundred & twenty - And forty fifth year of the Independence of the United States of America. Melvin Dorr Clerk" And afterwards, towit, on the Sixteenth day of December in the year of our Lord one thousand eight hundred & twenty the said Plain- tiffs delivered said writ of capias ad respondendum to one Robert Garrett, then a Deputy Sheriff, of said Defendant for the Said Defendant then was & ever since has continued Sheriff of the County aforesaid, to execute & return the Same as therrin commanded to return said writ on the third monday of September eighteen hundred & twenty one, to our said supreme Court, which was held at the City of Detroit, for said Territory on Said day, as by law he was required to do. Yet neither the said Defendant, nor said Robert Garrett Deputy Sheriff of said Defendant, as aforesaid, for whose doings the said Defendant is answerable, neglecting in the premises, never made any return of said writ as he was commanded & required to do, on said third monday of September to which said writ was made returnable as aforesaid, whereby the Plaintiffs have lost the benefits thereof, & have thereby wholly lost said several sums of money, due & owing from said Ralph & George Lockwood on their notes of hand before mentioned. And to the damage of the Plaintiffs two thousand dollars. And thereof they bring suit. Augustus Porter, Peter B: Porter, Benja Barton, Sheldon Thompson, Jacob Townsend, Alen Bronson & Nathaniel Sill, put in their place Hunt & Lamrned as their Attorneys to prosecute this Suit. 7o SUPREME COURT OF MICHIGAN [Case 986, Paper 3] Pleas at the City of Detroit, before the Chief Justice, and associate Jus- tices of the County Court, for the County of Wayne, in the Term of January, in the Year of our Lord, one thousand, Eight hundred and Twenty three. WAYNE COUNTY, TOWIT: Ezra Baldwin puts in his place, Benjamin F. H. Witherell his attorney, against Austin E. Wing, Sheriff of the County of Wayne aforesaid, in a plea of trespass on the Case. WAYNE COUNTY, TOWIT: The Said Austin E. Wing, Sheriff as aforesaid, puts in his place John Hunt & Charles Lamrned his Attornies, at the suit of the said Ezra Baldwin in the plea aforesaid. WAYNE COUNTY, TOWIT: Be it remembered that on the seventh day of January in this Same Term of January, before the Chief Justice and associate Justices of our County Court aforesaid, at the Council House in the City of Detroit, Comes Ezra Baldwin, by Benjamin F. H. Witherell his attorney and brings into our Said Court, before the Said Justices thereof Now here, his certain bill against Austin E. Wing Sheriff of the County of Wayne, who appealed from the judgment of Jn° McDonell Esquire, one of the Justices of the Peace, within and for the County of Wayne Aforesaid, in a plea of tres- pass on the Case; - which said bill follows in these words, that is to Say; MICHIGAN TERRITORY. WAYNE COUNTY COURT. Ezra Baldwin vs Austin E Wing, Sheriff Narr. Of The January Term 1823. of the County of Wayne aforesaid Ezra Baldwin complains of Austin E. Wing, Sheriff of the County of Wayne in the Territory aforesaid, (who appealed from the judgment of Jn° McDonell Esquire, one of the Justices of the Peace within and for the County of Wayne aforesaid, to this Court). For that the Said Ezra Baldwin, by the consideration of Jn° McDonell Esquire, one of the Justices of the Peace, within & for the County aforesaid, on the sixth day of April, in the year of our Lord, one thousand Eight hundred and nine- teen, at Detroit, in the County of Wayne aforesaid, and within the Juris- diction of this Court, recovered a judgment against one Robert H. McNiff, of the County aforesaid, for the sum of Twenty dollars, and thirty seven and SELECTED PIPERS 711 a half cents debt or damages, and Two dollars, and twenty five Cents costs, as by the record thereof remaining in the office and Court of the Said Justice, appears; And on the third day of July, in the year aforesaid, sued out a writ of execution thereon in due form of Law, directed to any Constable of the County of Wayne, returnable into the office of the said Justice, within the Term of Sixty days from the time, the Same was issued, and on the third day of July in the year aforesaid, at Detroit aforesaid, delivered the Said writ to one Jonas W. Colburn, then and there being a Constable, in and for the County aforesaid, in due form of Law to be executed, by force wherof he the Said Jonas W. Colburn Constable as aforesaid, afterwards, and be- fore the return thereof, towit, on the seventeenth day of July aforesaid, at Detroit aforesaid, And within the Jurisdiction aforesaid, for want of prop- erty of the Said Robert H. McNiff, took his body and Committed him to the Common Gaol of the County of Wayne aforesaid, and to the Custody of the Said Austin E. Wing, being Sheriff and keeper of the Gaol as afore- said, until the twenty first day of July, in the year aforesaid, when the Said Austin E. Wing, being Sheriff And Keeper of the Gaol as aforesaid, suffered and permitted the said Robert H. McNiff to escape out of his Custody and go at large, wherever he would without the Consent of the said Baldwin, who then was and still is wholly unsatisfied and unpaid, for his debt and Costs aforesaid, and every part thereof, whereby an action has arisen to the Said Baldwin to demand and have of the Said Austin E. Wing, the aforesaid debt and costs, amounting in the whole to Twenty two dollars, and sixty two and one half Cents, with the legal interest accruing thereon. Yet the said Austin E. Wing, although often requested to do the Same, hath hitherto wholly refused & neglected so to do, and still does neglect and refuse, to the damage of the said Baldwin, Five hundred dollars, and there- fore he brings suit. And afterwards, towit, on the ninth day of January, in this Same Term of January, before the Justices of our County Court aforesaid, at the Coun- cil House in the City of Detroit, Comes the Said Austin E. Wing Esquire, Sheriff as aforesaid, by his attornies aforesaid. And the Said Austin E Wing defends the wrong and injury when &c. and says that he is not guilty in manner and form, as the said Ezra Baldwin, hath in his declaration, above thereof Complained Against him, And of this, he puts himself upon the Country for trial. And the Said Ezra Baldwin doth the like. Therefore, let a Jury come thereof, before our Justices aforesaid, at the Council House in the City of Detroit, on the Tenth day of January, in this Same Term, by whom the matter in issue between the parties Aforesaid, may be better Known, And who Are neither of kin to the Said Ezra Baldwin, or to the said Austin E. Wing, Sheriff as aforesaid, to recognize upon their oath, whether the Said Austin E. Wing is guilty in manner and form as the Said 712 SUPREME COURT OF MICHIGAN Ezra Baldwin hath Above thereof, Complained against him, or not guilty, because as well the said Ezra Baldwin, as the said Austin E. Wing, put themselves upon that Jury. At which day, towit, on the tenth day of January, in this same Term, be- fore the Chief Justice and associate Justices of our County Court aforesaid, at the Council House in the City of Detroit, Come as well the said Ezra Baldwin, as the Said Austin E. Wing, Sheriff as aforesaid, by their respec- tive attornies aforesaid. And the Jurors of that Jury,of whom mention is made, towit, Charles Jack- son, Alva Gage, Perez Merritt, Charles Deslile, Obed Waite, Jeremiah Moores, Joseph Riddle, Orville Cook, William Anderson, Adna Merritt, John Smyth, and Joseph Jackson, being summoned, Come who to speak the truth of and Concerning the premises, being duly chosen, tried, and sworn, do say upon their oath, that the said Austin E. Wing, Sheriff of the County of Wayne as aforesaid, is not guilty of the premises above laid to his charge, in manner and form as the Said Ezra Baldwin, hath above thereof Complained against him. Therefore, it is Considered, that the Said Ezra Baldwin, do take nothing by his said bill, but that the said Austin E. Wing, do go thereof without day &c. And it is further considered that the said Austin E. Wing do recover against the said Ezra Baldwin, sixteen dollars, and ninety four cents, for his costs and charges, by him about his defence in this behalf expended, by the said Court, before the Aforesaid Justices thereof, now here adjudged to the said Austin E. Wing, and with his Consent. January 12. 1823. Signed by order of the Court C. C. Trowbridge Dy Clerk (Bill of Exceptions, tendered by the plaintiff's Counsel.) TERRITORY OF MICHIGAN Ezra Baldwin r WAYNE COUNTY COURT OF THE TERM OF JANUARY IN Austin E. Wing THE YEAR EIGHTEEN HUNDRED & TWENTY THREE. Be it remembered, that on the tenth day of January, during the sitting of the said County Court, at its January Term, in the year, One thousand, Eight hundred & twenty three. Came the parties in this suit by their re- spective attornies, And it appearing to the Said Court, that an issue had been duly joined & closed, a jury was impanelled & sworn, & the Said issue Came on to be tried; & on the trial of the said issue, it was admitted on the part of the Defendant, that there had been a judgment, execution, Com- mitment And enlargement of the prisoner, as set forth in the plaintiffs SELECTED PAPERS 713 declaration, and the Said Defendant, by his attorney offered and proved in evidence, a receipt given by the Said plaintiff to the said Defendant, for a bond which was given by the said prisoner & his surety for the prison limits of the said County; Whereupon the Attorney for the said plaintiff produced a certain instrument in writing, which was admitted by Defendant's Attor- ney, to be the bond mentioned in the said receipt, and to have been taken for the purpose aforesaid, which Said instrument was signed only by the said prisoner, McNiff, and one surety, & upon which, was put opposite the names of the Said prisoner And his surety, a scrawl with a pen, & the initials (L.S.) instead of an actual Seal, & the respective attornies for the parties, after having been heard by the Said Court and Jury, in their several allegations, admissions, proofs & arguments, submitted the Said Cause to the Said Jury for their Consideration, under the direction of the Said Court; Whereupon, the Honorable John L. Leib Esquire, Chief Justice of the Said Court, with the Concurrence of the Associate Justices thereof, proceeded to direct & charge the Said Jury, in substance as follows, towit; That no actual seal, or impression upon some adhesive substance, was necessary to constitute such an instrument as aforesaid, a sufficient & lawful bond to be given, in pursu- ance of the act of the Legislature of this Territory, in force, at the Com- mencement of this suit, regulating prison bounds, & prescribing the security to be taken therefor, but that a scrawl with the initials aforesaid, set oppo- site the names of the said prisoner & his sureties, were sufficient to Consti- tute the said instrument a lawful & valid bond under the act & for the purpose aforesaid; That such a security or bond for the purpose aforesaid, if the surety therein was certified by two Justices according to the directions of the Said act, was good and sufficient under the act, although one surety only had signed and entered into the same with the said prisoner; And gen- erally, that in the opinion of the Court, such an instrument so taken, de- scribed & given, in evidence as aforesaid, was a good & sufficient bond in the Law, to authorize and compel a Sheriff, upon the Same being tendered to him for that purpose, to permit & allow to such debtor in execution as afore- said the prison limits of his County; Wherefore, inasmuch as the matters aforesaid, do not appear of record, in the said Cause, and being requested by the Counsel for the plaintiff in said suit to sign & seal this Bill of Excep- tions, in Conformity with the Statute in such Case made & provided, We the undersigned, Justices of the Said Court, have hereto put our hands & Seals, this thirteenth day of January, and in the Term aforesaid. (Signed) John L. Leib (L. S) Chief Justice C. C. W. C Henry J Hunt (L. S) A.J.C.C.C.Wayne 714 SUPREME COURT OF MICHIGAN TERRITORY OF MICHIGAN. COUNTY OF WAYNE, SS. These are to certify unto all whom it may con- cern, That the foregoing pages contain a true [SEAL] exemplification of the record & proceedings of Wayne County Court in the Case of Ezra Baldwin against Austin E. Wing. In testimony whereof, I have hereunto set my hand and affixed the seal of Said Court, at the City of Detroit, on the Tenth day of September in the year of our Lord, one thousand, Eight hundred and Twenty three, and of the Independence of the United States, the Forty eighth CHS. C. TROWBRIDGE D3 Clerk Plaintiff's Costs in Wayne Co Court $3.87 4 Defendant's do do 16.94 [Case 987, Paper 6] [Indorsement] 112 1823 Lecuyer ads Plea. Reed Filed in open Court 9th Oct 1824 JER. V R TEN EYCK D3 Clerk [Case 987, Paper 6] Philip Lecuyer ads SUPREME COURT OF THE TERM OF SEPTEMBER 1824 Rufus S. Reed And the said Philip Lecuyer, relinquishing his said plea by him above pleaded, says that he cannot deny the action of the said Rufus S. Reed nor but that he the said Philip Lecuyer did undertake and promise in manner and form as the said Rufus S. Reed hath above thereof complained against him, nor but that the said Rufus S. Reed hath sustained damages on occasion of the not performing the said several promises and undertakings in the said declaration mentioned, to the sum of six hundred and eighty seven Dollars and sixteen cents. P. LCUYER SELECTED PAPERS 715 [Case ioo8, Paper 5] [Indorsement] 134 Sup: Court 1823 The United States vs Andrew H Westbrook I have Served the within on Andrew H Westbrook by Reading the Same on the third day of October 1823 at Eleven OClock. A.M. HENRY COTTRELL. Sheriff St Clair C° fees Milage 3.32 Services $0.13 3.45 Returned & filed on Monday 6 Oct 1823 JER. V R TEN EveYCK D' Clerk [Case ioo8, Paper 5] TERRITORY OF MICHIGAN THE UNITED STATES of4 America to the Sheriff SUPREME COURT S S: J of the County of St. Clair. GREETING.- Because, in the record and proceedings, and [SEAL] also in the giving of Judgment, in a plaint which was in our County Court, in and for your County of St. Clair, before the Cheif Justice, and associate Justices of said Court, on an indictment against Andrew H Westbrook, for Larceny, preferred by the Grand Jurors of the United States, in and for the body of the said County, at the February Term of said Court, in the Year, one thou- sand eight hundred and twenty three. It is said manifest Error hath inter- veened, in the record and proceedings, We have lately caused to be brought before our Judges of our Supreme Court, in and for the Territory of Mich- igan for certain causes in Error; And the said United States have duly assigned Errors of record upon the judgment aforesaid; And we being willing that the errors if any there be, should in due manner be corrected, and full and speedy justice done in the matter aforesaid. We command 716 SUPREME COURT OF MICHIGAN you, that you make known to the said Andrew H Westbrook, that he be before our said Judges, of our said Supreme Court aforesaid at the Council House in the City of Detroit, on Monday the sixth day of October next, to hear the record and proceedings aforesaid, if it shall seem expedient to the said United States, and further to do and receive, what our Supreme Court aforesaid shall consider of the said Andrew H Westbrook in this behalf; and have you then there this WRIT. WITNESS Augustus B Woodward, presiding Judge of the Supreme Court for the Territory of Michigan at Detroit the twenty sixth day of September in the Year of our Lord one thousand eight hundred and twenty three. JEREMIAH V R TEN EYCK Dy Clerk [Case ioio, Paper 5] [Indorsement] No 153. I1823. Supreme Court Sept' Term 1823. William Morris V. Ezra Baldwin Nar Filed in Open Court 6th Oct. 1823 JER. V R TEN EYCK Dy Clerk [Case o1010, Paper 5] William Morris TERRITORY OF MICHIGAN v. In Replevin SUPREME COURT OF THE TERM OF SEP- Ezra Baldwin TEMBER, IN THE YEAR OF OUR LORD ONE THOUSAND EIGHT HUNDRED & TWENTY THREE Ezra Baldwin was summoned to answer to William Morris, of a plea, wherefore he took the goods & chattles of the said William Morris & unjustly detained the Same, against Sureties & pledges until &c And thereupon the Said William Morris, by Hunt & Lamrned his Attorneys, complain for that the Said Ezra Baldwin on the first day of August in the year of our Lord one thousand eight hundred & nineteen, at the County of Macomb, and within the Jurisdiction of this Court, took the goods & chattles, to wit, six cows & three Steers, & three calves of him the Said William Morris, of great SELECTED PAPERS 717 value, towit of the value of two hundred dollars, and unjustly detained the Same - Until &c Wherefore the Said William Morris says he is injured & sustained damage to the value of two hundred & fifty dollars - And therefore he brings Suit &c William Morris puts in his place Hunt & Larned as his Attorneys against Ezra Baldwin to prosecute this Suit in a plea of replevin HUNT & LARNED, Att" to William Morris [Case i o I o, Paper 9] [Indorsement] 153. Morris 1823. vs Baldwin Plea filed in open Court Sept' 24. 1824. J. KEARSLEY. Clerk. [Case I o I o, Paper 9] Ezra Baldwin Replevin adsm and the said Ezra Baldwin by Whitney his Attor- William Morris ney comes and defends the wrong and Injury &c - & saith that the sd Plff ought not to have or Maintain his action aforesaid thereof against him, because he says that the property of the said Goods and chattels in the sd Declaration mentioned at the said time when &c was in the sd Defendant to wit at the County of Macomb, - with- out this that the property of the said goods and chattels or any part of them, at the said when &c, was in the sdPlff as is by the said Declaration is supposed - and this he is ready to veryfy wherefore he prays Judt and a Return of the sd goods, chattels & cattle to be adjudged to him, &c. WHITNEY Att for Deft [In the handwriting of Andrew G. Whitney] 718 SUPREME COURT OF MICHIGAN [Case oio , Paper I o0] William Morris vs Replication Ezra Baldwin And the Said William Morris by Chas Lamed his attorney as to the plea of the Said Ezra Baldwin by him above pleaded Saith that by reason of any thing by the said Ezra Baldwin in that plea above alledged ought not to be barrred from having & maintaining his aforesaid action thereof against him the Said Ezra Baldwin for the taking and detention of the Said goods and chattells; Because he saith that the property of the Said goods & chattells at the time when &c was in him the Said William Morris towit at the county aforesaid & within the the juris- diction aforesaid and this he the said Wm Morris prays may be enquired of by the country By CHAS LARNED his Atty and the deft likewise [In the handwriting of Charles Larned] [Case o1010o, Paper 17] [Indorsement] 1823 153 Sup Court W Morris vs Ezra Baldwin Verdict Filed in open Court 2nd October 1824 JER. V. R. TEN EYCK Depy Clerk [Case ioio, Paper 17] Morris We the Jurors in this Case find that the defendant is guilty vs as aledged by the Plaintiffs declaration therefore find a ver- Baldwin dict for the Plaintiff. Jury Room 2nd Oct I824 JOHN HOWARD foreman SELECTED PAPERS 719 [Case Io1o, Paper x8] [Indorsement] 153 1823 Morris vs Baldwin Reasons for New trial Filed in open Court 5 Oct I824 JER. VR TEN EYCK Dy Clk [Case 1010, Paper 18] SuP: COURT. SEPT TERM 1824 William Morris vs And now the Deft comes by Whitney his Att' and Ezra Baldwin moves the court here to set aside the Verdict found in this case, and that a new trial may be granted the Deft - for the follow- ing Reasons to wit i-because the Verdict in this Case was found Contrary to Law 2-Because the same was found Contrary to Evidence. 3.-Because - the Deft since the trial in this Case has discovd new testi- mony which he is advised & verily believes is material and necessary for his defence - that the witness resides at Green Bay - & he expects to be able to obtain his testimony at the next term. WHITNEY Atty for Deft [In the handwriting of Andrew G. Whitney] [Case I o i o, Paper 20] [Indorsement] 153 1823 Baldwin affidavit adsm Morris J. G. Brainer filed in open Court Oct. 14th. 1824. J. KEARSLEY. Clerk. 720 SUPREME COURT OF MICHIGAN [Case Io1o, Paper 20o] William Morris IN THE SUPREME COURT OF MICHIGAN. OEzra Baldwin F THE TERM OF SEPTEMBER 1824. Ezra Baldwin Before me, the undersigned, one of the Commissioners of Bail of the County aforesaid, personally appeared Jeremiah G. Brainerd, who being duly sworn deposeth and saith, that he was one of the Jurors in the trial of the above entituled case, at the present term of the Court afore- said, and that in the consideration of the facts, connected with the case & proved before the Jury, the jurors agreed unanimously, that they were satis- fied of the payment of the sum of Eighty dollars, by the defendant to Elijah Root, and that the Jurors were not perfectly satisfied of the further pay- ment of fifty three dollars by said defendant to said Root, as was charged in defendants defence; and that they, the jurors, therefore determined under the circumstances, to leave that point to the Court, under the impression that the Court would allow such part of the said sum of fifty three dollars as to the Judges thereof might seem correct & proper to be allowed. J. G. BRAINARD Sworn to & Subscribed on the I41 Octr 1824 J Before me. CHS CR TROWBRIDGE Comr of Bail Wayne County. [Case I o I o, Paper 21 ] [Indorsement] Affidavit of Fouchet Morris vs Baldwin filed in open Court 22 Sep 1825 JOHN MCPHERSON JR Dpy Clk [Case Ioio, Paper 21] Charles Fouchet maketh oath and saith that he was one of the Jury who tried the case of Replevin between Wm Morris and Ezra Baldwin that it was proved on the trial that Morris claim to the cattle grew out of a Bill of sale given by Baldwin to one Root which Root assigned to Morris that it was SELECTED PAPERS 721 proved that Baldwin had paid Root a part of the amount for which the bill Morris of sale was given that the jury were much dived in opinion that it was your vs affiant's opinion as well as the opinion of most of the jury that if they found Baldwin for the Plaintiff that Baldwin would have the cattle returned to him & that Baldwin would be oblidged to pay Morris the ballance due on the Bill of sale which Judgement your affiant supposed the Court had the power to make up. CHARLES FOUCHt Sworn and subscribed before me the 22d September A.D. 1825 JAMES ABBOTT. Justice of the peace. [Case 101 5, Paper i] [Indorsement] 80 1822 Supr Court foseph Marin vs David C MAKinstry Precipe for writ of Replevin filed in the Clerks office Sept 7. 1822 M DORR Clk [Case ioS15, Paper I] 7oseph Maran SUPREME COURT vs Replevin Damages fifty dollars - This action is David C MKinstry brought to recover a certain pirogue, the property of the Pff, unlawfully taken and detained by the said Defendant, of the value of Twenty dollars, and over The Clerk of the Supreme Court will issue a writ of Replevin in the above action returnable 3d Monday Septr Inst WM W PETIT Atty for Pff Detroit Septr 7. 1822 721 SUPREME COURT OF MICHIGAN [Case 1015, Paper 2] [Indorsement] 80o 1822 Supr Court Joseph Marin vs David C. MeKinstry writ of Replevin Damages $5o.oo This action is brought to recover a certain perogue the property of the Plff, unlawfully taken and detained by the said Defendant, of the value of twenty dollars and over. In Obedience to the within I have taken the property named here in and Delived the same to the plff I also have sumond the deft as directed within. Sept 7th 1822 Service and mile. $I.o6; for A. E. Wing Shrff SAML SHERWOOD DY Shrff Wm W. Petit Atty for Plff Received of Samuel Sherwood Deputy Sherriff the within Perogue. Detroit Sept 7th I822 his SAMIEL AMIDON JOSEPH X MARAIN mark Returnd & filed in the Clerks Office Sept 7. 1822. M DORR Clk [Case 1015, Paper 2] TERRITORY OF [M]ICHIGAN THE UNITED STATES Of America, to the COUNTY OF WAYNE. J Sheriff of the County of Wayne. We Command you that you replevy the goods and chattles, namely a certain perogue, belonging to Joseph [SEAL] Marin now taken & detained by David C. McKinstry at Detroit in the County of Wayne aforesaid, and that deliver unto the said Joseph Marin provided the same is not taken and de- tained upon attachment warrant of distress or upon execution, as the prop- erty of the said Joseph Marin and summon the said David C. McKinstry that he appear before the Supreme Court of the Territory of Michigan, on SELECTED PAPERS 723 the third Monday of September instant, to answer unto the said Joseph Marin, in a plea of replevin; for that the said David C McKinstry on the Seventh day of September instant, at the City of Detroit aforesaid unlaw- fully and without any justifiable cause took the goods and chattles of the said Joseph Marin as aforesaid, and them unlawfully detained to this day, to the damage of the said Joseph Marin as he says, the sum of fifty dollars provided he the said Joseph Marin shall give bond to the said David C McKinstry with sufficent surety or sureties, in the sum of forty dollars being twice the value of the said goods and Chattels to prosecute the said replevin to to final Judgement, and to pay such damages and costs as the said David C. McKinstry shall recover against him, and also to return and restore the said goods and chattels, in like good order and condition as when taken, in case such shall be the final judgment; and have you there this writ, with your doings herein, together with the bond you shall take. Witness Augustus B Woodward Presiding Judge of the Supreme Court of the Territory of Michigan this seventh day of September one thousand eight hundred and twenty two. MELVIN D)ORR Clerk Wm W. Petit Atty for Plff. [Case 10o 5, Paper 3] [Indorsement] Bond Joseph Maran Vs D C MCKinstry Replevin [Case 101oi5, Paper 31 Know all men by these presents, that We Joseph Maran, as principal and David Cooper as Security, are held and firmly bound unto Austin E Wing, Sheriff of the County of Wayne in the full & just penal sum of one hundred dollars, to be paid to the Said Austin E Wing, his executors, administrators or assigns, for which payment, well, and truly to be made we bind ourselves, and each of us by himself, our, and either of our heirs, Executors and ad- ministrators firmly by these presents, sealed with our Seals, dated this Sev- enth day of September A D, one thousand eight hundred and twenty two, Whereas the above bounden Joseph Maran has this day sued out a writ of Replevin from the office of the Clerk of the Supreme Court of the Terri- 724 SUPREME COURT OF MICHIGAN tory of Michigan, to recover of one David C McKinstry a certain Perogue, of the value of twenty dollars, and over Now therefore, the condition of the above obligation is this, that if the said Maran shall well and truly prosecute the said suit to final Judgement, and (if the judgement should be that the said Maran should return the Said Perogue to the said McKinstry) if the said Maran shall return said Perogue, in accordance with said judgement, then this obligation to be void otherwise of full force & effect Signed, sealed & delivered his in presence of JOSEPH X MARAN [SEAL] WM W PETIT Mark D COOPER [SEAL] [Case 1028, Paper I] [Indorsement] 145 1823 Sup. Court Precipe Filed in Clerks Office 25 Augt. 1823 JER. V R TEN EYCK Dep' Clerk [Case o1028, Paper I] MICHIGAN TOWIT. To the Clerk of the Supreme Court Issue writ of Error coram nobis for John M'Donell Esq in the suit of John Scot vs John M'Donell upon certio- rari -(also Supercedeas to the Sheriff thereupon.) re- turnable next Term - Wayne County Augt 26. 1823 WM WOODBRIDGE for plff in Error Indorse this action is brought to reverse & set aside the Entry of a judt of reversal in the above mentioned case supposed to have been made thru' mistake in matter of fact. [In the handwriting of William Woodbridge] Allowed. WOODWARD, Judge Aug. 25. 1823 SELECTED PAPERS 725 [Attached to the foregoing] In the case of Scott and McDonald in the Supreme court taken by certiorari from the office of James Abbott Esqr I distinctly recollect that when the opinion of the court was given in Said case, I was so entirely surprised at the decision, I could not resist the belief that it was a mistake in the use of the term "reversed" instead of affirmed CHAs LARNED 23d Augt 1823 Sworn & subscribed before me this 23d Aug. 1823 RICH SMYTH J. P. [Case 1028, Paper 2] [Indorsement] 145 1823 Supreme Court 7ohn McDonell vs 7ohn Scott. Error. This action is brought to reverse and set aside the en- try of a judgt of reversal in the above mentioned case supposed to have been made thro' mistake in matter of fact Allowed Woodward, Judge Aug. 25. 1823 [Case 1028, Paper 2] TERRITORY OF MICHIGAN SS THE UNITED STATES of America, to SUPREME COURT J the Judges of the Supreme Court of the Territory of Michigan [SEAL] GREETING. BECAUSE in the record and proceedings, and also in the rendition of Judgment of a plea which was in our Court before us by writ of Certiorari, from the Court of James Abbott Esquire, between John McDonell defendant, and John Scott Plaintiff, Error has intervened to the great damage of John McDonell as is said. 726 SUPREME COURT OF MICHIGAN WE willing the error, if any hath been, should be duly corrected, and full and speedy justice done to the parties aforesaid in this behalf, Command you, that if Judgment therein be given, then the record and process afore- said which before you now remain, as it is said being inspected you farther cause to be done therein to correct that error what of right and accord- ing to the laws and customs of the Territory of Michigan shall be to be done. WITNESS Augustus B Woodward Presiding Judge of the Supreme Court of the Territory of Michigan at the City of Detroit on Monday the Twenty fifth day of August in the Year of our Lord one thousand eight hundred and twenty three. JER. V R TEN EYCK Depy Clerk [Case 1028, Paper 3] [Indorsement] 145 1823 Sur Error John M'Donell Assignment Assignment vsof Errors John Scott Filed in open Court 4th Oct. I823 JER. V R TEN EYCveK Dy Clerk [Case 1o28, Paper 3] TERRITORY OF MICHIGAN TO WIT SUPREME COURT SEPTEMBER TERM IN THE YEAR OF OUR LORD ONE THOUSAND EIGHT HUNDRED AND TWENTY THREE John M'Donell vs upon Error coram nobis. Assigt of Errors John Scott Afterwards to wit, at the September Term of the said Supreme Court in the year of our Lord one thousand eight hundred and twenty three before the said Judges of the Said Court comes the said John M'Donell & says that in the record and proceedings aforesaid and also in the record of the Judg- ment aforesaid there is manifest error in this to wit that the judgment in said case was in fact given & rendered in said case in favour of said John M'Donell against said John Scott, affirming with other costs &c the said SELECTED PAPERS 727 Judgment of the said Justice, whereas by mistake & accident & clerical error in the recording thereof & the brief minutes of the judgment aforesaid the same was entered as a judment of reversal, & this the said John M'Donell is ready to verify, wherefore he prays that the entry aforesaid may be cor- rected & the record in the premises amended & that the entry & record aforesaid purporting that a judgment of reversal was rendered may be cor- rected & amended & the former record thereof revoked & altogether held for nothing and that he may be restored to all things which he hath lost by occasion of the entry & judgment aforesaid John M'Donell by WOODBRIDGE his Atty [In the handwriting of William Woodbridge] [Case 10 o3 1, Paper xi] [Indictment] 1822. United States vs fokn Sergent September Term, 1822. There being no Evidence but documentary to Establish the charge in this indictment Except at the city of Washington I herby Enter a nolli prosequi 30.Sept'r 1824 CHAs LARNED P. Atty A true Bill JACOB VISGER Foreman Witnesses Robt Abbott Aaron Thomas Filed in open Court on the 21st day of September 1822. CHS CH' TROWBRIDGE D Clerk 728 SUPREME COURT OF MICHIGAN [Case o1031, Paper I] TERRITORY OF MICHIGAN SS SUPREME COURT OF THE TERRITORY OF MICHIGAN OF THE TERM OF SEPTEMBER IN THE YEAR OF OUR LORD ONE THOUSAND EIGHT HUNDRED AND TWENTY-TWO. The Grand Jurors of the United States in and for the body of the terri- tory of Michigan do upon their oath present, That John Sargent late of the county of Wayne in said territory, laborer, contriving and intending to de- fraud one George Price of a certain large sum of money due to him from the United States, on the twentieth day of November in the year of our Lord one thousand eight hundred and seventeen, at Detroit, in the county of Wayne and within the territory of Michigan, wittingly, subtilly and falsely did forge and make and cause to be forged and made a certain false writ- ing, purporting to be executed, signed, and made by the said George Price and in itself purporting to be an authority or letter of attorney from him the said George Price to one Thomas Sargent: in which said letter of attorney is mentioned and supposed in substance (among other things) that the said George Price thereby appointed and ordained the said Thomas Sargent the true and lawful attorney of him the said George Price, to demand and receive from the United States the amount of a certain claim of him the said George Price against the United States for a certain quantity of oats which had been valued or appraised at one hundred and fifty dollars: to the great damage of the said George Price, against the form of the statute in such case made and provided and against the peace of the United States and their dignity. And the Jurors aforesaid upon their oath aforesaid, do further present, that the said John Sargent, being a person of wicked disposition, and con- triving and intending the said George Price unjustly to injure, defraud and aggrieve, on the said twentieth day of November, in the year last aforesaid, at Detroit aforesaid, falsely did utter and publish one false forged writing, purporting to be made and published by the aforesaid George Price, as a true writing, he the said John Sargent knowing that writing to be a false, forged and counterfeited writing, the same writing in itself purporting to be a letter or power of attorney from the said George Price to one Thomas Sargent and to bear date on the twentieth day of November, in the year one thousand eight hundred and seventeen, in which said writing is mentioned and supposed in substance (among other things) that he the said George Price did appoint and ordain one Thomas Sargent to be the true and lawful attorney of him the said George Price, to ask, demand, receive and receipt to the United States for a certain claim of him the said George Price against the said United States for a certain quantity of oats which, under oath, had been appraised at one hundred and fifty dollars - he the said John Sargent SELECTED PAPERS 729 at the said time that he the said John Sargent uttered and published the said last mentioned false and forged writing, in form aforesaid as a true writ- ing well knowing the said writing to be falsely forged - to the great damage of the said George Price, against the statute in such case made and provided, to the evil example of all others in like cases offending and against the peace of the United States and their dignity. CHAs LARNED AttyGen' [Case Iioo, Paper I] [Indorsement] 43 Sup Court 1824 Sup. Court. Robert A Forsyth Adm' &c vs William Gilkinson et alii Precipe for writ of Right Filed in Clerk's office 8th Sept. 1824. JER. V R TEN EYCK Depy Clerk [Case 1100, Paper I] SUPREME COURT. Robert A. Forsyth, Administrator on the Estate of Robert A. Forsyth deceased. vs. William Gilkinson Robert Gillespie & Executors of the will of Richard Pattinson deceased George Moffatt George 7acobs & Agents to said executors. lames Gordon ) Stephen Mack, Claimant. James Williams lbraham C Canniff & tenants Voltaire Spalding The Clerk of Supreme Court will please issue a Writ of Right, in the above entitled cause, returnable to next Term, and endorse 73o SUPREME COURT OF MICHIGAN "This action is brought to recover those certain tracts or parcels of ground, lying in the City of Detroit, and designated on the recorded plan of said City, as Lot number Eighteen, and part of Lot number Seventeen, in Section Three, Containing seven thousand, two hundred square feet more or less; and also part of Lots number Thirty seven, & Thirty eight in Section Three aforesaid, as designated on the plan aforesaid, containing Five thou- sand and Fifty two feet, & eight tenths of a foot, more or less; - being the Same premises which are, or have been lately in the possession of said De- fendants, or some of them; And also to recover damages for the entry & pos- session thereof by said Defendants, for their use occupation, & for all the intervening profits of said premises, received by said Defendants, one or more of them" CHA: LARNED: Att' Sepr 7. I824 & to H. S. COLE plff [Case IxIoo, Paper 2] [Indorsement] 43 Supreme Court. 1824 Robert A Forsyth Aldm' &c vs: William Gilkinson et alii Summons. "This action is brought to recover those certain tracts or parcels of ground, lying in the City of Detroit, and designated on the recorded plan of said City, as Lot number eighteen, and part of Lot number seventeen, in Section Three containing seven thousand two hundred square feet more or less; And also part of Lots number Thirty seven & Thirty eight in Section three aforesaid, as designated on the plan aforesaid, containing Five thousand and fifty two feet, and eight tenths of a foot, more or less; - being the same premises, which are, or have been lately, in the possession of said defendants, or some of them; And also to recover damages for the entry and possession thereof by said defendants, for their use, occupation, & for all the interven- ing profits of said premises, received by said defendants, one or more of them." Retd & filed in Clerk's office I6 Sept I824 JER. V R TEN EvYCK Dept Clerk Ch' Lamed & H. S. Cole. Att' for Plff. SELECTED PAPERS 731 [Case I100oo, Paper 2] TERRITORY OF MICHIGAN THE UNITED STATES OF AMERICA, SUPREME COURT SS: J To the Sheriff of the County of Wayne. GREETING: You are hereby commanded to summon William Gilkinson, Robert Gillespie, George Moffatt, George [SEAL] Jacobs, James Gordon, Stephen Mack, James Williams, Abraham C Canniff, Voltaire Spalding, to appear before the Supreme Court of the Territory, of Michigan, at the City of Detroit, in the County of Wayne on the third Monday of September present, to answer, Robert a Forsyth Administrator, on the Estate of Robert A Forsyth de- ceased, in an Action of right, for certain Land, with the appurtenances in said County of Wayne which the said Robert A Forsyth Administrator as aforesaid, claims to be his right, and of which he complains, that the said William Gilkinson, Robert Gillespie, George Moffatt, George Jacobs, James Gordon, Stephen Mack, James Williams, Abraham C. Canniff and Voltaire Spalding, withhold the possession, and have you then there this Writ. WITNESS James Witherell Presiding Judge of our said Supreme Court, at the City of Detroit, in the County of Wayne, in the said Territory, this eighth day of September in the year of our Lord one thousand eight hundred and twenty four. J. KEARSLEY. Clerk. [Indorsement] Summoned S. Mack, by reading &c Detroit. Sep. 9th 1824. Service $1.oo00 Mileage 614 $I.06 A. E. WING Sheriff I have summoned Voltaire Spalding by reading &c. Sep. 10. 1824 Service $1.oo Mileage 614 A. E. WING 1.06Y Shff I have summoned A C. Caniff by reading &c. Sep. 10. 1824 Service $1.oo00 Mileage 64 A. E. WING $i.o6;/, Shff 732 SUPREME COURT OF MICHIGAN I have summoned James Williams by reading &c. Sep I. 1824 A. E. WING Shff. William Gilkinson, Robert Gillispie, George Moffatt, George Jacobs, and James Gordon not to be found, (being non residents) Sep. 18. 1824 A. E. WING Shff 5. non ests $ .31Y Service on 4 Defts 4.00 Mileage on do 25 $ 4.564 A. E. WING Shff [Case IIoo, Paper 3] [Indorsement] 43 1824 Sup. Court. Forsyth vs. narr. Gilkinson et al. Filed in open Court Oct. Ist. 1824. J. KEARSLEY. Clerk. [Case I I o100, Paper 3] SUPREME COURT OF THE TERM OF SEPTEMBER IN THE YEAR, ONE THOU- SAND, EIGHT HUNDRED & TWENTY FOUR. MICHIGAN TOWIT: Robert A. Forsyth, administrator on the estate of Robert A. Forsyth de- ceased, claims & demands against William Gilkinson, Robert Gillespie & George Moffatt, Executors of the will of Richard Pattinson deceased, George Jacobs and James Gordon, agents to said executors, Stephen Mack, claimant, James Williams, Abraham C. Canniff & Voltaire Spalding Ten- ants, a certain Tract or parcel of Land with the appurtenances lying and SELECTED PAPERS 733 being in the City of Detroit, & County of Wayne in Said Territory, and meted & bounded as follows, to wit; Situated as aforesaid, and known and designated on the map or plan of Said City of Detroit as Lot number eighteen, and part of Lot number seventeen, in Section number Three, and bounded & described as follows, towit; - Beginning at the North western Corner of Lot number eighteen, in Section number three, according to the map or plan of the aforesaid City, thence along Jefferson Avenue north, sixty degrees East, seventy six feet, & five tenths of a foot; - thence South, twenty four degrees, thirty minutes East, to the Southern boundary of Lot number seventeen; - thence South, sixty degrees West, to the South west- ern Corner of Lot number eighteen; thence north, thirty degrees west, to Jefferson Avenue, Containing by estimation, seven thousand, two hundred feet, be the Same more or less; - ALSO, those Certain tracts or parcels of ground, lying and being in the aforesaid City, and known & designated on the map or plan thereof, as part of Lots numbered thirty seven & thirty eight, in Section number Three aforesaid, and bounded and described as follows towit; - Beginning at the north westerly Corner of Lot number thirty seven, in Section number three, according to the plan Aforesaid; - thence north sixty degrees East, sixty five feet and five tenths of a foot: - thence South, twenty four degrees twenty minutes East, twenty feet & two tenths of a foot; thence South, thirty degrees East, sixty feet to Wood- bridge Street; thence South, sixty degrees west, along said Street, sixty three feet to the South western Corner of Lot number thirty eight; - thence North, thirty degrees west, to the place of beginning, Containing by estimation, five thousand & fifty two feet, & eight tenths of a foot, be the Same more or less: - And hereupon the Said Robert A. Forsyth says that he has right to have the Said tracts & parcels of Land, with the appur- tenances, & offers proof that such is his right. - The said plaintiff further claims of said Defendants One thousand dollars damages, for that the Said Defendants unlawfully entered on the Same, have possessed used & occu- pied the Same, and have received the intervening profits thereof LARNED & COLE for plff WAYNE SS. The above named plaintiff puts in his place Charles Lamrned and Henry S. Cole his Attorneys against the above-named Defendants, in an action of Right. 734 SUPREME COURT OF MICHIGAN [Case I o00, Paper 4] [Indorsement] 43 Supreme Court. 1824 Robt.4 A Forsyth vs: W"h Gilkinson et alii Reasons Filed in open Court 9' Oct: 1824 JER. V R TEN EYCK D' Clerk [Case Ioo, Paper 4] SUPREME COURT TOWIT SEPTEMBER TERM IN THE YEAR OF OUR LORD ONE THOUSAND EIGHT HUNDRED AND TWENTY FOUR Robert A. Forsyth adm"' vs Action of right William Gilkinson & alii In this case William Woodbridge for deft's moves the Court here that the writ in this case issued be set aside & quashed for the causes following towit Ist that the said writ is irregular & the same was irregularly issued 2 that it does not appear that the same was regularly served & 3d that the same was irregularly returned & 4. that the same is not according to the law of the Land. WM WOODBRIDGE [In the handwriting of William Woodbridge] SELECTED PAPERS 735 [Case IwoO, Paper 6] [Indorsement] 43 1824 Sup Court Robert A Forsyth VS. h"m Gilkinson et al Pleas Filed in Clerks office 7' March 1825 condi- tionally see agreement on File JER. V R TEN EYCK Dep' Clerk [Case o1100, Paper 6] TERRITORY OF MICHIGAN TOWIT Robert A. Forsyth Administrator on the estate of Robert A Forsyth deceased vs Abraham C Canniff &c & alii SUPREME COURT SEPTEMBER TERM IN THE YEAR OF OUR LORD ONE THOUSAND EIGHT HUN- DRED AND TWENTY FOUR Rule day First Monday of March one thousand eight hundred twenty five And now the said Abraham Comes & defends &c when &c and saith that the plaintiff ought not to have or maintain his action aforesaid for the cer- tain tract or parcel of land with its appurtenances as the same are set forth and described in the said declaration of said plaintiff: because he saith that at the time of the sueing out of the writ in this case issued, he the said Abraham was not & has not since been tenant, as of the freehold of said premises nor of any part thereof, & that he hath nothing therein, nor claims any title thereto nor therein, nor in nor to any part thereof But the said Abraham wholly disclaims all right title & estate in & to the same: and all these things he is ready to verify: wherefore he prays judgment if the plain- tiff his action aforesaid thereof against him the said Abraham ought to have or maintain & for his costs W" WOODBRIDGE Att' for A C. Caniff. 736 SUPREME COURT OF MICHIGAN Robert A Forsyth Administrator on the Estate SUPREME COURT of Robert A Forsyth deceased SEPTEMBER TERM IN THE YEAR OF OUR LORD vs Voltaire Spalding &c & alii ONE THOUSAND EIGHT HUNDRED & TWENTY FOUR. And now the said Voltaire comes &c & says that he is not tenant as of the freehold of the certain tract or parcel of land with its appurtenances in the said declaration of said plaintiff set forth & described nor of any part thereof - but as to the north east end of the dwelling house which is part & parcel of said premises & also as to the north east half part of the garden lot part also & parcel of said premises, the said Voltaire says that he said Voltaire was sole tenant in possession for the term of one year, on the day of the suing out of said writ in this case issued & thence hitherto has been & still is sole tenant thereof without this that the said Abraham C Caniff & the said Williams on the day of sueing forth the said writ or at any time since had anything in said north east end of said dwelling house & said north east half of said garden lot parcel of said premises claimed by said plaintiff or were in any wise possessed thereof - And as to the rest & residue of said premises as in said writ & decla- ration claimed this defendant saith as aforesaid that he is not tenant thereof as of freehold nor otherwise in any manner possessed thereof nor hath he been since nor at the time of nor before the commencement of the suit and this he is ready to verify wherefore he prays judgment of the writ aforesaid and that the same may be quashed & for costs &c. WM WOODBRIDGE Atty for Deft And now also at the same times comes the said James Williams one of said defendants in said declaration mentioned when &c & says that he is not tenant as of the freehold of the certain tract or parcel of land with its appur- tenances in the said declaration set forth & described, nor of any part thereof - but as to the south west half of the dwelling house which is part and parcel of the premises described in said declaration & claimed & as to the south west half of the garden lot part also & parcel thereof the said James saith that at the time of the commencement of this suit & since he was & still is, sole & only possessor thereof by short lease, for years for a term not yet expired &c. with- out this that the said Abraham C Canniff & said Voltaire Spalding, on the said day of the commencement of this suit or any time since had any thing whatsoever in said South west moiety or half of said dwelling house & said South west moiety or half of said garden lot or any right title estate or claim therein - or in any wise possessed or occupied the same All which this de- fendant is ready to verify, wherefore he prays judgment of the writ aforesaid & that the same may be quashed W" WOODBRIDGE Att for deft. SELECTED PAPERS 737 And now also comes at the same time the said Stephen Mack when &c. & says he the said Stephen is not tenant as of the freehold of the certain tract or parcel of land with its appurtenances in said declaration set forth & de- scribed but that the same was heretofore legally & in due form acquired by & vested in one Richard Pattinson, now deceased his heirs & assigns as an estate of inheritance in fee simple with whom in his lifetime this defend- ant entered into certain stipulations for the purchase thereof upon certain conditions, but that the whole of the freehold & inheritable estate & interest in the same at law remained vested in the said Richard until the time of his decease; whereupon the said Richard dying seized thereof the title estate & interest therein passed by the legal devise of said Richard to his certain devisees & Executors, the said William Gilkison Robert Gillaspie & George Moffatt, in said declaration named without whom this defendant the said Stephen cannot bring the said tenements & premises claimed with the ap- purtenances into plea nor answer the said Robert thereof - And forasmuch as the said Robert hath charged the said William Robert & George defend- ants in this cause jointly with this defendant & others - yet hath he in no wise caused them the said William Robert & George defendants aforesaid to be summoned or otherwise notified to appear in said case nor have they in any wise appeared in this case as by the writ record & proceedings in the premises & this the said Stephen is ready to verify by the record &c where- fore this defendant prays judgment of the writ & proceedings in the premises & that the same may be quashed &c & for costs. W" WOODBRIDGE Att for Stephen Mack TERRITORY OF MICHIGAN COUNTY OF WAYNE TOWIT March 7th 1825 This day personally appeared the abovenamed William Woodbridge who made oath that according to the best of his knowledge & belief the four foregoing several pleas of Abrahim C Caniff - James Wil- liams Voltaire Spalding & Stephen Mack & the matters & things therein stated & averred are true J McDONELL J. P. 738 SUPREME COURT OF MICHIGAN [Case A-31, Paper i] [Indorsement] N° 3 United States vs. Louis Campeau filed in court 17. oct"Ir 1814. Jury Room 17th Oct'r 1814 a true Bill ROBERT ABBOTT Foreman [Case A-3I, Paper '] TERRITORY OF MICHIGAN SEPR TERM 1814. UNITED STATES OF AMERICA ) The Jurors for the United States of America in the Territory of Michigan upon their Oath present That Louis Campeau late of the District of Erie in the Territory of Michigan Yeoman, little regarding the Laws and Statutes of the United States of America and not fearing the pains and penalties therein Contained on the 22d day of January one thousand Eight hundred twelve with force and arms at the district aforesaid in the Territory afore- said feloniously and traiterously did join and adhere to the British army under Gen Proctor, and with Guns Swords and pistols did levy War on the day aforesaid and Year aforesaid in the district aforesaid and Territory aforesaid against the United States aforesaid Against the form and Effect of the Laws and Statutes of the United States of America and against the peace of the United States aforesaid and the Territory of Michigan. CHAs LARNED Atty Gen' M Ty [In the handwriting of Charles Larned] INDEX TO CALENDAR OF CASES  Index to Calendar of Cases Reference figures are case numbers Abbott, James; Robert Abbott, exr., v. 945, 951 Abbott, James, v. Brush, exrx., and Brush's Heirs. ... .... .... 599 Abbott, James, v. Hands . . 1io69, A-10o7 Abbott, James, v. Richard . . . .852 Abbott, James; Smith v. . . . . 507 Abbott, James, admr., v. Garratt . 918 Abbott, James, admr.; Meldrum, admr., v. 952 Abbott, James, et al. v. Bryson . . .A-33 Abbott, James, Jr.; Abbott's Heirs v. 905 Abbott, Mary-See Robert Abbott, exr. Abbott, Robert, v. Beaubien, May and Woodbridge . . . . . . . . 848 Abbott, Robert, v. Beaubien's Heirs, May and Woodbridge . . . . . . . 1021 Abbott, Robert, v. Campau . . . . .o1074 Abbott, Robert, v. Hoffman, and Sibley, exr. . . . . . . . . . 546 Abbott, Robert, v. Stickney . . . . . 585 Abbott, Robert; Wilkins v. . . . . . 563 Abbott, Robert, exr., v. James Abbott . 945, 951 Abbott, Robert and James, v. Rivard . . 840o Abbott, Samuel; Roby v. . . . . . 785 Abbott's Heirs v. James Abbott, Jr. . . 905 Adams v. Killogg . . .. .. . 462 Agnew; Solomons v. . . . . . . . 927 Allen, Clairette, In the matter of . 483 Allen, Clairette; Williams & Co. v. . 492 Allen, James, v. Fisher . . . . . . 646 Allen, James, v. Jones . . . . . io88 Allen, John, et al.; Smith v.. . . . . 761 Allen, William; Smart v. . . . . . . 420 Aloire, Jean Baptiste-See Desj ardins, admr. American Fur Co. v. Isaac Burnett . . A-8i American Fur Co.; John W. Burnett v. .858 American Fur Co. v. Johnson . 760 American Fur Co. v. Johnston . . . 969 Ames v. Puthuff.. . . . . . . 435 Amidon et al.; United States v. . 718 Anderson v. Brown and Downing v. 650o Anderson; Cory and Hubbell v.. . . . 648 Anderson; Devotion v. . . . .. 799, 883 Anderson v. Diver . . . . . . . 803 Anderson; Eastman v . . . . . . 744 Anderson v. Hickman . . . . . . 437 Anderson v. Lewis . . . . . . . A-45 Anderson v. Loranger . . . . . . . 605 Anderson; Phelps v.. . .... ... 746 Anderson v. Scott...... . ... 862 Anderson v. Scott, admrx. . . . . 812, 86I Anderson; Scott, admrx. v ... . 742, 743 Anderson; Spencer v. ... ........ 745 Anderson; Ten Eyck v..... 1o32 Anderson; Yale v . . .. . . A- 117 Anderson et al.; Egnew v. . .. . 7oo Anderson et al.; Maxwell v. . oi8, o1019 Andre; Brandemore v . . 784 Andre; Lcuyer v . 693 Andr6 v. McKinstry . . to73 Andr6v. TenEyck . 911 Astor et al. v. Burnett . . 843 Astor et al. v. Campau .jof56 Audrain, Francis; Ten Eyck v. . 1083 Audrain, Lasselle and May, admrs.; Sutherland, curator v. . . 482 Austin, Eliphalet, v. Wing . . . . 710o Austin, William, et al. v. Johnson, exrx. 9S4 Austin, William, et al.; Westbrook v. . 771 Baby v. May . . . .. 778 Badger et al.; Bentley v. 83o Bain et al. v. Byrne . . . . . . 1102 Baldwin, Ezra, v. Campau and McNiff . 1027 Baldwin, Ezra; Campau v. . 783, 826 Baldwin, Ezra; Morris v. . oi0, A-io3 Baldwin, Ezra, v. Root . 8i5 Baldwin, Ezra, v. Wing . . 986 Baldwin, Jairus, In the matter of B-31 Bank of Michigan v. Brush et al . 6oo Bank of Michigan v. Knaggs . oo1020 Bank of Michigan v. Macomb . 1076 Barnard, James; United States v. 891 Barnard, Joshua; Loring v. . . A-69 Barnard, Joshua, v. Puthuff . . . . 687 Barney v. Schooner Commodore Decatur . A-87 Baron et ux. v. Forsyth, Labadie's Heirs and Patterson . ... . . . o1101 Barrow et al.; Hanna, admr., v. . 845 Bartlet; Taylor v . . . . . . . oo6 Bartlet et al.; Taylor v. . o1011 Beattie v. Hanscom . . . . . . to82 Beaubien, Jean Baptiste; Emerson v. 8o1 Beaubien, Genevieve, v. Knapp . . 944 Beaubien, Joseph, et al.; Abbott v.. . . 848 Beaubien's Heirs et al.; Abbott v. . . o2t Beaugrand; United States v.. . . . . 427 Beaulieu v. Burn.. . . . . .A-72 Beaulieu; United States v . . . . . 65 Beckley v. Mack, McKinstry, Roby and Smyth . . . . . . . . . . 974 Beckley v. Mack, McKinstry and Smyth . 1o47 Beelin et al. v. Edwards.. .. . . 878 Beelin et al. v. Edwards and Hunt . . 877 Beelin & Bosler v. Rowland . . . . 955 Bell v. Camp . . . . . . . . . 682 Bellinger, Frederick; Clark v. . . . . 96 Bellinger, William L., v. Knapp. . . . 1oof 741 742 SUPREME COUR Bellinger & Harter v. Clark . . . . . 9x16 Bellows et al. v. Berthelet . . . . . 634 Bellows et al. v. Burnett . . . . . . 582 Bellows et al. v. Smith . . . . . . 587 Bellows et al. v. Williams. . . . . . 863 Bentley, James; v. Badger and Dorriel . . 830 Bentley, John; Smyth v. . . . . . . 418 Benton v. Gallagher and Taylor . . . o38 Bernard; Loveland v.. . . . . . . A-36 Berthelet; Bellows and Stone v . . . . 634 Berthelet; Campau v.. . . . . . . o63 Berthelet; Lasselle, admr., v. . . . 576 Berthelet; James and Francis Lasselle v. . 450 Berthelet; Ten Eyck v. . . . . . . 616 Berthelet, Henry and Josette, et al.; Jones v. 908 Berthelot v. McGulpin ...... 555 Berthelot v. Mahnot . . . . . . . A-62 Beufait et al.; Pattinson v. ....... 455 Beverly, Jesse; United States v. . . . . 1059 Beverly, Saunders; United States v. . . io6o Biddle, Edward; Parshall v. . . . . . 573 Biddle, James W.; Bronson v . .. . 558 Biddle, James W.; Dousman v. .... 553 Biddle, James W.; James v . ... . 560o Biddle, James W.; Thurman v . .. . A-66 Biddle, Jesse, In the matter of . . . . B-24 Bird; Fitch v. . . . . . . ... . 1034 Birdsall et al.; Campau v. . . . . . oo3 Birdsall et al.; Eldred v. . . . . . . 991 Birdsall et al.; Smart v. . . . . . . 1o3o0 Blair v. Taylor . . . . . . . . o1037 Blinn; Long v . . . . . . . . 894 Bond, admr.; Mack v . . . . . . 6o2 Bonney v. Bunce and Dow . . . . 691, 819 Booke; United States v. . . . . . .539 Booton v. Miller . . . . . . . . 436 Booton, John-See Tupper and Booton, admrs . .... . Bosler et al. v. Edwards.. . . . . 878 Bosler et al. v. Edwards and Hunt . . . 877 Bosler & Co. v. Edwards . . lo53, 1057 Boston v. Lacroix . . . . . . . . 557 Boston v. Lasselle ... . . . . . .56x Boston v. Lasselle, admr., and Lasselle's Heirs . . . . . . . . . . . A-53 Boudoin; Territory of Michigan v . . . 838 Bouthillier et al.; Lockwood v . .. . I o1103 Boyd, George; United States v . .. . A-ioi Boyd, James Jr., v. Bunce . . . . . A-io5 Boyd, James Jr., v. Godfroy. . . . . o1052 Boyd, James Jr., v. Loranger . . . . A-lo4 Boyd, James Jr., v. McCombs . . . . lo58 Boyd, James Jr., et al.; Craft and Walker v. 904 Boyd & Suydam v. Maher . . . . . 550 Bradford; Doyle v. . . . . . . . A-46 Bradford et al.; King v. . . . . . . A-47 Brandemore v. Andr6 . . . . . . . 784 Brandemore; Godfroy v. ......... 55 Brevoort v. Durocher ......... 64o Brevoort v. Eastman . 613, 756, 879 Brevoort; Eastman v. ... ...... 603 ZT OF MICHIGAN Brevoort v. Hull .... Brewster; Petit v. . . .46 Brigham et al. v. Roby . . .179 Brisbois et al.; Lockwood v. . 766 Bronson, David C., v. Biddle . 3 Bronson, Henry 0.; Lamed v. . . 5 Bronson, William, v. Roberts 57 Brooke v. Cook, McKinstry and Wright . 7904 Brooks, Edward, v. James W. and JaneI King, admrs.. .. ..... . 967 Brooks, Edward, et al.; Fisk v. . . 907 Brooks, William, et al. v. Fulton, McKinstry, Roby and Smith . . o1024 Brown, George, et al. v. Cleland 635 Brown, George, et al.; Dousman v. . 637 Brown, Heman Jr., v. Chapman, Conant, Lewis, Marsh and Wilson . . .. o44 Brown, Heman Jr., v. Marsh . . 813, 1043 Brown, Heman Jr., et al.; Anderson v.. . 650 Brown, Heman Jr., et al. v. Davis . 735, 736, 737 Brown, Heman Jr., et al.; Davis v. 738, 1039 Brown, Heman Jr., et al.; Fifield v. . 88 Brown, Heman Jr., et al.; Fifield and Frary v . ... 673 Brown, Heman Jr., et al.; Larned and Watson v. . . . . . . .662 Brown, Henry-See Ten Eyck, admr. Brown, William; Merritt and Willard v.. 717 Brown, William et al.; Howard v. . . 667, 716 Brown, William et al.; Westbrook v. . . 1o66 Brush, Adelaide, et al.; Bank of Michigan v. 6oo Brush, Adelaide, exrx.; Hartsough v. . . 961 Brush, Adelaide, exrx.; Lafoy v. . 957 Brush, Adelaide, exrx.; United States v. . 837 Brush, Adelaide, exrx., et al.; Abbott v. . 599 Brush, Adelaide, exrx., et al.; Jones v.. . 908 Brush, Adelaide, exrx., et al.; Mack v. . . 6oo Brush, Elijah-See Adelaide Brush, exrx.. Brush's Heirs et al.; Abbott v. . .. 599 Brush's Heirs et al.; Mack v ... 600 Bryson; Abbott and Smart v. . A-33 Bull v. Spencer, Willcox and Beach . . o1105 Bunce; Boyd v......... .A-o5 Bunce; DeForest and Mills v.. . • 630 Bunce; Knower v. .. .... . 683 Bunce; Sargent v ..... ..9.. 684 Bunce et al.; Bonney v ... ....691, 819 Burbank v. Campau, exr . .. ". . 964 Burn; Beaulieu v. . .. . . A-72 Burnett, Isaac; American Fur Co. v.. A-81 Burnett, Isaac-See Hanna, admr . Burnett, John W., v. American Fur Co. . 858 Burnett, John W.; Astor, Crooks and Stuart v . ....... . . 843 Burnett, John W.; Bellows and Stone v. . 582 Burnett, John W.; Pothier v. . . . . 831 Burnett, John W., v. Ten Eyck & Co. . . 762 Burnett, John W., exr.; May v. . .... 51 Burnett, William-See John W. Burnett, exr. Burnham; Hill v. . . . . . Butler, Anthony; Smart v. . . . . . INDEX TO CAIILENDAR OF CASES 743 Butler, Paul D., v. Whipple . . Byrne; Bain and Gregory v. . . Byrne; Hepburn and Prince v. . . . 833 11. I02 S1042 Byrne; United Stares v. . ....... 1051 Caldwell v. Lasselle . . . . . . . 594 Caldwell; Lasselle v . . . . . . . 946 Caldwell v. Lasselle, admr. ....... . 593 Caldwell, admr.; Durocher, exr., v. .. 726, 727, 948, 950 Caldwell, admr.; Antoine Lasselle v. . 725, 949 Caldwell, admr., v. Francis Lasselle . . 1029 Caldwell, admr., v. Francis Lasselle, admr. o1036 Caldwell, admr., et al.; Antoine Lasselle v. 655 Caldwell, admr., et al.; Marie B. Lasselle v. 656 Calhoon, Andrew; Godfroy v . . . . 994 Calhoon, Andrew Jr., v. Dorriel . . 997 Camp; Bell v. . . . . . . . . 682 Campau, Alexis, v. Jean Baptiste Campau 504 Campau, Barnab6, et al.; Sutherland, curator, v . . . . . . . . . 467 Campau, Denis-See Joseph Campau, admr. Campau, Jacques, v. Moras . . . . . 578 Campau, Jean Baptiste; Alexis Campau v. 504 Campau, Jean Baptiste, v. Chene . . . 592 Campau, Joseph; Abbott v. . . . . . o1074 Campau, Joseph, v. Baldwin . . . 783, 826 Campau, Joseph, v. Berthelet . . . . xo63 Campau, Joseph, v. Birdsall and Dousman Ioo3 Campau, Joseph, v. Desnoyer . .. . 530 Campau, Joseph, v. Fulton . . . . . 923 Campau, Joseph; Ryan v... .. . .1062 Campau, Joseph, admr., v. Smith . . 702, 827 Campau, Joseph, et al.; Baldwin v. . . 10xo27 Campau, Joseph, et al.; Provencal v. . . 1023 Campau, Joseph, exr.; Burbank v. . . . 964 Campau, Louis, v. Keith . . . . . . 992 Campau, Louis; United States v. . .. A-31 Campau, Louis Jr.; Astor, Crooks and Stuart v. . . . . . . . . . .o1056 Campbell, Edward R., v. Mack . . . . 971 Campbell, John, In the matter of . . . 697 Canniff et al.; Forsyth, admr., v . . i ioo Carey et al.; Parshall v . . . . . . 595 Carleton, Guy, et al., In the matter of . . 536 Carpenter, John, In the matter of. . . . 622 Carrel v. McManus.. . . . . . 872 Carter, John F., In the matter of . . . B-29 Cartright v. Hamilton . . . . . . zo1072 Cass; Dodemead v. . . . . . . . 669 Cass et al.; Smith v. . . . . . . 761, 791 Cebra & Cuming v. Ten Eyck & Co. . . A-i13 Cecil; Smyth v . . . . . . . . 416 Cecire v. Lagrave . . . . . . . . 422 Cerait; Fraser v . . . . . . . . 460 Chapman et al.; Brown v . . . . . o1044 Chapoton; Smyth v. . . . . . . . 413 Chartier v. Tremble . . . . . . . 740 Chene, Gabriel; Campau v . . . . . 592 Chene, Pierre, v. Meldrum . . . . . A-89 Chittenden; Dousman v. . . . . . . 551 Chittenden, Benjamin, In the matter of . 658 Chittenden; Lcuyer and Watson v. . . 828 Chittenden; Mack v. . . . . . . . 829 Chittenden et al.; Jones and Reed v. . . 638 Choate; McManus v. . . . . . . . 588 Choate, admr., et al.; Conant and Mack v. 60o1 Chovin et al.; Jackson ex dem. Abbott v. . 632 Church; United States v. . . . . .A-79 Churchill; Motte and Williams v . .. A-76 Cicot, Agatha-See Godfroy, admr.. Cicot, Joseph, et al. v. Godfroy, admr. . 589 Cicott, Jean Baptiste; Downing v . .. 612 Cicott, Jean Baptiste, v. Godfroy . . . 757 Cicott, Jean Baptiste Jr., et al.; Lamrned v. 705 Clark, Nathaniel, et al.; United States v. . 718 Clark, Winans, v. Bellinger . . . . . 960 Clark, Winans; Bellinger & Harter v. . . 916 Clayton, John, v. Smart . . . . . . 689 Clayton, William, v. Smart . . . . . 688 Cleland; Brown and Hamill v. .... . 635 Clemens; Dousman v . . . . . . 768 Clemens; Smyth v . . . . . . . 412 Clemens; United States v. . . . . . 517 Cochois et al.; United States v .... . A-49 Colburn; Phelps and Robinson v. . . 859 Colburn et al.; Fulton v . . . . . . 721 Combs et al.; United States v. .... . 718 Conant, Harry, et al.; Brown v.. . . . 1044 Conant, Shubael, v. Meldrum . . . . 909 Conant, Shubael, v. Woodward . . . . 714 Conant, Shubael, et al. v. Choate, Emerson, Glass, McManus and Riddall . . . 6oi Conant, Shubael, et al.; Disbrow and Tay-. lor v. . . . . . . . . . . .100oo4 Conant, Shubael, et al.; Emerson v. . . 983 Conant, Shubael, et al. v. Grosvenor & Heacock . . . . . .. . . 633 Conant, Shubael, et al.; Jackson ex dem. McManus v.. . . . . . . . A-77 Connelly v. Dousman. . . . . . . 628 Connelly; Pentland, Higgins & Steele v. . 58o Connor, Henry and James; Pattinson v. . 531 Cook, Asher F., v. Wilds . . . . . . A-39 Cook, John B.; Messenger v. . . . . 733 Cook, John B. and Sarah, v. McKinstry . 993 Cook, John B. and Sarah, et al.; Brooke v. 11 0o4 Cook, Levi, et al.; Disbrow v . . . . 1071 Corporation of St. Anne's Church-See St. Anne's Church .. ....... Cory et al. v. Anderson . . . . . . 648 Cosmor et al.; United States v .... . 921 Couture; Loveland & Co. v. . . . . 487 Cowles et al.; United States v . .... 718 Cox; Jones and Reed v. . . . . . . 463 Craft et al. v. Boyd, Dubois, Hill, Jones, Smith and Ten Eyck . . . . . . 904 Crooks et al. v. Burnett . . . . . . 843 Crooks et al. v. Campau . . . . . . xo56 Crow; Woodworth v. . . . . . . . 458 David, Charlotte, admrx., v. Meldrum, admr. 814 David, Charlotte, exrx.; Smyth v. . . . 1o94 David, David, et al.; Watson, admr., v. . 65! 744 SUPREME COURT OF MICHIGAN David, Moses-See Charlotte David, admrx. David, Moses-See Charlotte David, exrx. Davis v. Brown, Lawrence, Marsh and Taylor . . . . . . . . 738, 1039 Davis; Brown, Lawrence, Marsh and Taylor v. . . . . . . 735, 736, 737 Davis; Lamrned v . . . . . . . . 676 Davis v. Taylor . . . . . . . 893 Davis; Taylor v . . . . . . xo33, 1040 Davis v. Town . . . . . . . . A-xI8 Davis et al.; Fifield v. . . . . . . 818 Davis et al.; Larned v. . . . 666, 705, 734 Day, Isaac W., v. McCloskey . . . 404 Day, James, v. Lockwood & Co. . 753, 834 Dean v. Gwynne and Phillips . .. 930 DeForest et al. v. Bunce ... . . . . 630 DeGraff, Santvoord & Co. v. Harmon . . 739 DeGraff, Santvoord & Co. v. McDonell . 86o Delavan; United States v. . . . . . 685 Delavan v. Woodbridge . . . . . . 999 Delavan & Co. v. Edwards . . . . . 978 Delisle; Visger v . . . . . . . . 440 Denton & Smith v. Hunt . . . . .O1089 Dequindre, Antoine; United States v. . . 439 Dequindre, Louis, v. Poupard . . 668 Deschamps v. Gleason . . . . . . A-78 Descompte; Tuotte v. . . . . . .Io12 Desjardins, admr.; McDougall and Poupard v . . . . . . . . 575 Desnoyer, Francois, v. Godfroy . . 5o6 Desnoyer, Francois; Godfroy v. .... . .459 Desnoyer, Joseph; Campau v. . . . . 530 Desnoyers v. Emerson & Co. . . 754 Desnoyers v. Fulton . . . . . . . 770 Desnoyers v. Knaggs . . . . . . . 972 Desnoyers; Lognon, admrx., v.. . . I I IO Desnoyers v. Roby • . . 748, 749, 750 Desnoyers; Roby v. . . . . . . 835 Desnoyers v. Williams . . . . .751, 896 Devotion v. Anderson . . . . .799, 883 Devotion v. Henry . . . . . . 794 Devotion; United States v. . . 618, 619, 625 DeWitt et al.; United States v. . . .. 718 Dezing, Elizabeth, v. George S. Dezing . 653 Dezing, Henry St. John, v. Edwards, Hunt, Stead and Whipple . . . . . . . 855 Dimick et al.; Rowland v. . . . . . Iio8 Disbrow v. Cook, Garratt and Smyth . . o1071 Disbrow et al. v. Conant and Mack . 1004 Diver; Anderson v . . . . . . . 803 Dodemead v. Cass . . . ... . . 669 Dole et al.; McQueen and McMuir v. . . A-82 Dorr v. Johnson.. . . . . .782, 886 Dorr v. Keith . . . . . 780, 781, 919, 920 Dorriel; Calhoon v . . . . . . . 997 Dorriel et al.; Bentley v. . . . . . . 830 Doughts, George, In the matter of . . . B-3o Doughts, George; United States v. 724, 892, oo1007 Dousman, John; Jones v. . . ... . 675 Dousman, John; Jones and Reedv. . . 678 Dousman, John, et al.; Stone v. ....... 882 Dousman, Michael, v. Biddle . 553 Dousman, Michael, v. Brown, Hanmill, Hopkins and Puthuff . . . . 637 Dousman, Michael, v. Chittenden . . 1 Dousman, Michael, v. Clemens . 768 Dousman, Michael; Connelly v. . ... 628 Dousman, Michael; Grosvenor & Heacock v. 7o9 Dousman, Michael; McAlister v . . .oo9 Dousman, Michael, v. Puthuff . . . 579, 652 Dousman, Michael, et al.; Campau v. . . 1003 Dousman, Michael, et al.; Eldred v.. 991 Dousman, Michael, et al. v. Grosvenor & Heacock . ...633 Dow, Benjamin, et al.; Bonney v. .. 691, 819 Dow, Josiah, v. Roby . . . . . . A-92 Downing v. Cicott . . . . . . . 61 2 Downing v. Lacroix . . . . . . . 611 Downing v. Peirce and Rice . . . . . 61o Downing et al.; Anderson v .... . 650 Doyle v. Bradford . ... . A-46 Dubois et al.; Craft and Walker v.. . 904 Ducharme; Godfroy v . . . . . .577 Ducharme; Pattinson v.. ...... . 545 Dufour v. Thorn ..... . . . 486 Dunks et al.; Fullerton and Langham v. . 461 Dunks et al.; Kingsbury v. . . . . . A-48 Durell; United States v. . . . . . A-8o Durocher; Brevoort v. . ....... .640 Durocher et al.; Jacob v. . . . . .A-63 Durocher et al.; Shand and Sharp, exrx., v. 1099 Durocher, exr., v. Caldwell, admr. . . . . . . . . . 726, 727, 948, 950 Durocher, exr., v. Lasselle . . ... . 1041 Duryee & Elliott v. McDonell . . . 67o Eastman v. Anderson . . . . . . . 744 Eastman v. Brevoort . . . . . . . 603 Eastman; Brevoort v.. . . . 613, 756, 879 Edam v. Proux . . . . . . . . 554 Edwards; Beelin and Bosler v. . . . . 878 Edwards; Bosler & Co. v. . . . 1053, o1057 Edwards; Delavan & Co. v. . . . . . 978 Edwards; Grosvenor and Varnum v. . . 977 Edwards et al.; Beelin and Bosler v. . . 877 Edwards et al.; Dezing v ..... . 855 Edwards et al.; Howard v . . . . 667, 716 Edwards & Co. v. Hudson . . . . . 741 Egnew v. Anderson and Maxwell . . . 700 Egnew et al.; Lacroix v . . . . . 720, 940 Eldred v. Birdsall and Dousman . . . 991 Eldred; Fisk v... . . . . . . 10o93 Emerson v. Beaubien . . . . . . . 8or Emerson v. Conant, Gagnier, IArig6 and Mack .. .. 983 Emerson v. Gabriel Godfroy . 1048, A-s15, A-i 16 Emerson v. Jean Baptiste and Peter Godfroy o1049 Emerson v. Knaggs ........ . A-1o8 Emerson v. Lacroix ..... . 804, 876 Emerson v. Lamrned, McAlister, Mack and Ten Eyck. ........... . 1095 Emerson v. Mouton . ....... o84 Emerson v. Trembl6 ........ 800 INDEX TO CALE Emerson v. Woodworth . . . . . . 875 Emerson et al.; Conant and Mack v. 6. 0 ox Emerson & Co.; Desnoyers v. .... 754 Eno v. Harmon. .. ..... 729 Falley v. Gabriel Godfroy.... . 544 Falley v. Gabriel and Gabriel Godfroy, Jr. .SS9 Falley v. Selby. .. ........ A-35 Farley; United States v . .... . 912 Farrar et al.; Prichard v. ..... . 1087 Farrington; Godfroy v ...... 998 Felix v. Godfroy ... ..... . 583, 672 Fenton v. Westbrook . . 434 Ferguson, Daniel, In the matter of . . . 663 Fifield v. Brown, Davis and Marsh. . 818 Fifield et al. v. Brown, Lawrence, Marsh and Taylor ......... .. 673 Fig, James, In the matter of ... . B-22 Finch; Fullerton and Langham v. . A-61i Finch; Langham, admr. v...... . 451 Fisher; Allen v . . . . . . . . 646 Fisher; Gilman v. . . . . . . . . 644 Fisher et al. v. Rouse and Smith . . . 647 Fisher et al.; Rouse and Smith v . . . 645 Fisk v. Brooks and Woodworth . ... 907 Fisk v. Eldred . . . . . . . . . o1093 Fisk v. Lacroix . . . . . . . . 982 Fitch v. Bird . . . . . . . . . 1034 Flagler v. Parker . . . . . . . . 874 Flanagan, William-See Sibley, admr.. . Forman et al.; McQueen and McMuir v. . A-82 Forsyth, Robert A.-See Robert A. Forsyth, admr . . . . . . . . Forsyth, Robert A., admr., v. Canniff, Gilkinson, Gillespie, Moffat, Mack, Spalding and Williams . . . . . . 1oo100 Forsyth, Robert A., et al.; Baron et ux. v. 1101 Forsyth, Thomas, et al.; Smyth v . .. 790 Foster v. Gordon . . . . . . . . 542 Fowler et al. v. Macomb . . . . . . 509 Fox v. Jolette . . . . . . . . . 671 Francis v. Roby . . . . . . . . 674 Frary et aL v. Brown, Lawrence, Marsh and Taylor . . . . . . . . . 673 Fraser v. Cerait . . . . . . . . 460 Fraser v. Lognon . . . . . . . . 452 Freeland et al.; Smart v.. . . . . . 1030 Friend, United States v. . . . . . . 571 Fulford; Worthington v. . . . . . . A-I o10 Fullerton et al. v. Dunks and Hawkins . 461 Fullerton et al. v. Finch . . . . . . A-61 Fulton; Campau v .. ... . 923 Fulton v. Colburn and Phelps . . . 721 Fulton; Desnoyers v . . . . . . . 770 Fulton v. Hudson . . . . . . . 636 Fulton, James, In the matter of. .. . B-32 Fulton v. Lashley . . . . . . . 59i, 626 Fulton; Madison v. . . . . . . . 703 Fulton; Meldrum v.. . ....... 787 Fulton; Williams & Garratt v. . .. . 792 Fulton et al.; Brooks, Palmer and Ten Eyck v. ...... ......... 1024 NDAR OF CASES 745 Fulton et al.; Hudson v. ......x Io9 Fulton et al.; Jacob v. . . .. . . 731 Gage, George A., et al.; Sherwood v. . . 1o65 Gage, Moses F. J., et al., v. Corp. of St. Anne's Church . . . . . . . 707, 865 Gagnier, Jacques-See Pierre Gagnier, admr. Gagnier, Pierre, admr., et al.; Shand and Sharp, exrs., v . . . . . . . . 899 Gagnier, Pierre, et al.; Emerson v. . . . 983 Gagnier's Heirs et al.; Shand and Sharp, exrs., v . . . . . . . . 899, o1099 Gallagher v. Merritt . . . . . . .oi6 Gallagher et al.; Benton v. . . . . . o1038 Gardner; McKinstry v. . . . . . . 642 Garland; United States v...... . 1045 Garratt; Abbott, admr., v. . . . . . 918 Garratt; Williams v. . . . . . . . 797 Garratt et al.; Disbrow v. . . . . . o1071 Gilbert, Algernon S., v. Lasselle .. . . 806 Gilbert, Thomas; Miller, Smart and Ten Eyck v.... ...... . A-75 Gilbert, William L.; United States v. . . A-99 Gilkinson, Gillespie and Moffat, exrs., v. Lasselle . . . . . . . . . . 873 Gilkinson, Gillespie and Moffat, exrs., v. Smart . . . . . . . . .805, 836 Gilkinson, Gillespie and Moffat, exrs., et al.; Forsyth, admr., v. . . . . . . . 1100 Gilkinson, Gillespie and Moffat, exrs., et al.; Sutherland v . . . . . . . . 984 Gilman v. Fisher . . . . . . . . 644 Glass, Jane and Lucinda, et al.; Conant and Mack v. . . . . . . . . . . 6oi Glass, Robert-See Choate, admr . . Gleason; Deschamps v. . . . . . . A-78 Glenn et al. v. Macomb . . . . . . 5o9 Goddard; United States v. .... . 868, 869 Godfroy, Gabriel; Cicott v. . . ..... 757 Godfroy, Gabriel, v. Desnoyer .... 459 Godfroy, Gabriel; Desnoyer v. .... . 5o6 Godfroy, Gabriel, v. Ducharme . . . . 577 Godfroy, Gabriel; Emerson v. . 1048, A-1 15, A-i16 Godfroy, Gabriel; Falley v . . . . . 544 Godfroy, Gabriel; Felix v. . . . . 583, 672 Godfroy, Gabriel, v. Navarre . . . . 816 Godfroy, Gabriel, v. Brandemore . . . 515 Godfroy, Gabriel; Sutherland, curator, v. . 548 Godfroy, Gabriel; United States v. . . . 493 Godfroy, Gabriel, admr.; Cicot, et al., v. . 589 Godfroy, Gabriel, et al.; Reed v . . . 988 Godfroy, Gabriel, exr., v. Visger . 976, A-too Godfroy, Gabriel Jr.; Boyd v . .... o1052 Godfroy, Gabriel Jr., v. Calhoon . . . 994 Godfroy, Gabriel Jr.; Jones & Co. v. . . A-52 Godfroy, Gabriel Jr., et al.; Watson, admr., v .... . ..... . 651 Godfroy, Gabriel and Gabriel Jr.; Falley v. 559 Godfroy, Gabriel and Gabriel Jr.; Roby v. o7 Godfroy, Gabriel and Gabriel Jr., et al.; Sutherland v. . ......... . 654 746 SUPREME COUR Godfroy, Gabriel and Peter; Ten Eyck v. . io86 Godfroy, Jean Baptiste and Peter; Emer.- sony v. . ............ o. 1049 Godfroy, Peter, v. Farrington . . . 998 Godfroy, Peter, v. Howard, McKinstry and Smith.. . ....... . 1001 Gordon; Foster v. . . . . . . . . 542 Goes, Elizabeth, In the matter of . . . B-25 Goss, Levi, v. Smith . . . . . . . 713 Gouie, Robert-See John G. Watson, admr. Grant v. Selkirk .. ........ 58x Gregory et al. v. Byrne . . . . . . 1102 Grignon v. Johnston . . . . . .. 695 Grosvenor et al. v. Edwards . . . . . 977 Grosvenor & Heacock; Conant, Dousman and Mack v. . . . . . . . . 633 Grosvenor & Heacock v. Dousman . . 709 Gwynne; United States v. . . .. 715 Gwynne et al.; Dean v. . . . . . . .930 Haggerty et al. v. Johnson, exrx. 954 Hahn; Selby v. . . . . . . 433 Hall, Henry F., In the matter of . 88o Hall, James, v. McKinstry . .. .. 795 Halsey; Washburn v. . . . . . . ..o91 Hamill et al. v. Cleland. . . •.. . 635 Hamill et al.; Dousman v. . . . . . 637 Hamilton; Cartright v. . . . . . .1072 Hands; Abbott v. . . . . . . 1o69, A-io7 Hanna, admr., v. Barrow, Hedges and Suttenfield . . . . . . . . 845 Hanscom; Beattie v. . . . . . . .o1082 Hanson, Henry, In the matter of . . .B-27 Hanson, Henry, et al.; Smart v. . . . 1030 Harmon; DeGraff, Santvoord & Co. v. . 739 Harmon; Eno v. . . . . . . . .729 Harrington; Ten Eyck & Co. v.. . . . 1061 Hartsough v. Brush, exrx. . . . . 961 Hastings, Daniel and George, v. Roby . . 763 Hatch; Knapp v......... 774, 775 Hatch et al.; United States v. . o. . 1025 Hatch et al.; Westbrook v. . . . . . 771 Hawkins; Woodworth v . . .. 448 Hawkins et al.; Fullerton and Langham v.. 461 Hazlip v. Taylor ... ...... 924 Hedges et al.; Hanna, admr., v. . 845 Henry, James-See Sibley, admr. Henry, Stephen C.; Devotion v. 794 Hepburn et al. v. Byrne. . . . . o1042 Hickman; Anderson v.. . . .. 437 Hill, Eliza Jane, et al.; Mack v. . . . 6o2 Hill, James, John and William, et al.; Craft and Walker v. . . . . . . 904 Hill, Robert, v. Burnham . . . . . A-112 Hoffman, George-See Sibley, exr.. Hoffman, John, v. Knaggs . 4 85 Hoffman, John, and Sibley, exr.; Abbott v. 546 Holly v. Reed ......... . 1077 Holton, Timothy, In the matter of. . 521 Holton, Timothy; United States v. . . 43! Homer; United States v. . ...... 929 Hopkins et al.; Dousman v. . ...... 637 T OF MICHIGAN Howard v. Brown, Edwards and McCloskey 667 Howard v. Brown and Edwards . . 716 Howard et al.; Godfroy v. . . . tool Howell v. Irwin .. . . 925 Hubbard; Smith v... ...... 82o Hubbell et al. v. Anderson . . . . .648 Hudson, Henry; Edwards & Co. v. . . 741 Hudson, Henry, v. Fulton, Miller, Smart, Ten Eyck and Wing ...... i9 Hudson, Henry; Fulton v. .... . 636 Hudson, Henry; Hunt v. . 817 Hudson, Henry, In the matter of 566 Hudson, Henry; Jones v. . . . 850o Hudson, Henry; McDonell v. . 562, 728 Hudson, Henry, v. Smart . . . . . 777 Hudson, Henry; Smyth v. . . . . . 410 Hudson, Henry; United States v. .u . .y . 465, 505, 564, 569, 935, 979 Hudson, Henry; Wing v.. . . . . .793 Hudson, Henry, Mary and William; United States v . . . . . . .841 Hull; Brevoort v. . . . . . . . 456 Hull; Williams v.. . . . . . . . 457 Hungerford v. Woodbridge . . . . . A-1 Hunt, Henry J.; Denton & Smith v. . . 1089 Hunt, Henry J., v. Macomb . . . . 466 Hunt, Henry J., et al.; Beelin and Bosler v. 877 Hunt, Henry J., et al.; Dezing v. . . . 855 Hunt, Timothy, v. Hudson . . . . . 817 Hunter v. Corp. of St. Anne's Church . . . . 815, 851, 866 Huntly v. Stead . . . . . ... . 788 Hurd v. Whiting.. . . . . . . 989 Hurd; Wing v. . . . . . . . 962, 963 Innis & Grant v. Visger ..516, 897, 898 Irwin, Mathew, v. L6cuyer . . . . ..goo Irwin, Robert; Howell v.. . . . . . 925 Isaac, In the matter of . . . . . . 519 Israel et al.; Smith v. . . . . . . . 791 Jackson, James, ex dem. Abbott, v. Chovin and Rivard . . . . . . . . .632 Jackson, James, ex dem. McManus, v. Conant and Mack . . . . . . .A-77 Jackson, James, ex dem. Navarre, v. Poulin 823 Jackson, John; United States v . . . io6 Jacob v. Durocher and McDougall . . A-63 Jacob v. Fulton and Ten Eyck . . 731 Jacob; Smart v . . . . . . . . 1098 Jacob et al.; Sutherland v. .... . 654 James, Reginald; McDonell v. . . . . 532 James, Singleton, et al.; United States v. . 921 James, Thomas P., v. Biddle . . . . 560 Jerome v. Peirce and Rice . . . . . 939 Jobin; McDonell v. . . . 606 Johnson, Daniel D., v. Stead . . . . 722 Johnson, Deborah, exrx.; Austin and Haggerty v . . . . . . . . 954 Johnson, Frederick; King v.. . 540 Johnson, Harpin and William, v. Taylor . 867 Johnson, John; Williams v. . . A68 Johnson, John W.; American Fur Co. v. . 760 INDEX TO CALE Johnson, Moses, v. Smyth . 773 Johnson, Royal-See Deborah Johnson, exrx. Johnson, Thomas S.; et al; Smart v. . 1030 Johnson, William C.; Dorr v. . 782, 886 Johnston, George; Grignon v. . . 695 Johnston, George; Ten Eyck & Co. v. .659 Johnston, John; American Fur Co. v. . . 969 Johnston, Oliver; United States v. Tea and spirits, property of . . . . . . A-43 Jolette; Fox v .. .. . 67I1 Jones, DeGarmo; Allen v. ..... . 10o88 Jones, DeGarmo, v. Berthelet, Brush and McKee ... . . ..... 908 Jones, DeGarmo, v. Dousman. 675 Jones, DeGarmo, v. Hudson . .... 850 Jones, DeGarmo, v. Richard A-9o, A-9, Jones, DeGarmo, v. Smith ... . 534 Jones, DeGarmo, v. Woodworth . . .A-Io2 Jones, DeGarmo, et al. v. Chittenden and Potter. ... . ...... . 638 Jones, DeGarmo, et al. v. Cox . . . 463 Jones, DeGarmo, et al.; Craft and Walker v. 904 Jones, DeGarmo, et al. v. Selby . . . 556 Jones, DeGarmo, et al.; Sherwood v. . 1o65 Jones, DeGarmo, et al.; United States v. . ...... . io055, A-I II Jones, Thomas S., v. Kinzie .. . . . 752 Jones, William, In the matter of . . B-28 Jones & Co. v. Godfroy . . . A-52 Jourdan; United States v. . . . . . 932 Keith; Campau v. . . . . . . . 992 Keith; Dorr v.. . . . . 780, 781, 919, 920 Keith v. Thomas . . . .. . . 968 Kelly, John v. McKinstry... . . 824 Kelly, William C., v. Mountfort . . 947 Kelly, William C.; United States v . 914, 931 Kelsey v. Smith & Co. . . . . A-51 Kelsey et al.; Morris v. . . . . . •755 Kennedy v. Smart . . . . . . .853 Kepner v. Parshall.. .. .. . 570 Kepner v. Smyth . ...... . 844 Ke-wa-bish-kim; United States v. . . 706 Killogg; Adams v .. .462 Killogg et al.; Kingsbury v. . . . A-48 King, Elizabeth, v. Joseph King . . . A-88 King, James W. and Jane, admrs.; Brooks v. 967 King, Joseph and Betsy, v. Johnson . . 540 King, Samuel, v. Bradford and Rogers . . A-47 Kingsbury v. Dunks and Killogg . . A-48 Kinzie; Jones v . ... . . . . 752 Kinzie; Miller v . . . . . . . . 953 Kinzie; Tupper and Booton, admrs., v. . 842 Kinzie et al.; Smyth v. . . . . . . 790 Kinzie & Forsyth; Pattinson & Co. v. . 454, 528 Kirby et al.; Maxwell v . . . . ioi8, o1019 Kitty v. Lasselle.. . . . . . . oo002 Knaggs, James; Lacroix v... . . . . 1014 Knaggs, Whitmore; Bank of Michigan v. . 1020 Knaggs, Whitmore; Desnoyers v. . . . 972 Knaggs, Whitmore; Hoffman v. . . . . 485 Knaggs, Whitmore; Reid, exrx., v. . . . 857 NDdR OF CASES 747 Knaggs, Whitmore; United States v. . . 490 Knaggs, Whitmore and William G.; Emerson v.... . . . . . .A-io8 Knapp, Gilbert, v. Rolette . . . . . 759 Knapp, James; Bellinger v . . . . . 100oo5 Knapp, John, et al.; United States v. . 718 Knapp, Smith; Beaubien v. . . . . . 944 Knapp, Smith; McDonell v.. . . . . 922 Knapp, Thomas S., v. Hatch. . . . 774, 775 Knower v. Bunce... . . . . . . 683 Labadie's Heirs et al.; Baron et ux. v. . . o1101 Labady, Francois, v. Appolline Labady . 537 Labady, Francois, v. Richard . . 643 Lacock; Sill, Thompson & Co. v. . 1035, 1097 Lacroix; Boston v. . . . . . 557 Lacroix; Downing v. . . . . . . . 6 x Lacroix v. Egnew, Lee and Skinner . 7o20, 94o Lacroix; Emerson v. . . . . . . 804, 876 Lacroix; Fisk v . . . . . . 982 Lacroix v. Knaggs . . . . . . .o1014 Laderoute; Smyth v. . . . . . . 415 Laforest et al. v. May . . . . . . 513 Lafoy v. Brush, exrx.. . . . . . . 957 Lagrave; Cecire v. . . . . . . . 422 Lagrave; United States v. Coffee, tea and muskrat skins claimed by . . . . . 488 Lagrave et al.; United States v . . . . A-4o Langham, admr., v. Finch . . . . . 4I Langham et al. v. Dunks and Hawkins . 461 Langham et al. v. Finch.. . . . .A-61 Lanman, Charles James, v. Mary Ann Lanman ... ... 629 Lariviere, Joseph, In the matter of . . . 527 Lamrned, Benjamin F., v. Cicott, Davis, Lasselle, Lawrence and Taylor . . . 705 Lamrned, Benjamin F., v. Davis . . . . 676 Lamrned, Benjamin F., v. Davis, Lawrence and Taylor . . . . . . . . 666, 734 Larned, Benjamin F., v. Taylor . . . . 677 Lamrned, Charles; Richardson v. . . . . 747 Larned, Charles, et al.; Emerson v.. . 1095 Lamrned, Charles, et al.; Miller v. . . . 885 Larned, George B., v. Bronson . . . . 572 Lamrned, George B., v. Lawrence . . . 604 Lamrned, George B., et al. v. Brown, Marsh and Taylor. . . . . . . 662 Lashley; Fulton v. . . . . . . 591, 626 Lashley; United States v. . . . . . 503 Lasselle, Antoine, v. Caldwell, admr. . 725, 949 Lasselle, Antoine, v. Caldwell, admr., and James Lasselle's Heirs .... .. 655 Lasselle, Antoine; Gilkinson, Gillespie and Moffat, exrs., v. . . . . . . . 873 Lasselle, Antoine, In the matter of . . . 915 Lasselle, Antoine; Kitty v. . . . . ..10oo2 Lasselle, Antoine; Jean Baptiste Lasselle, admr., v.. . . . . . . . . . 730 Lasselle, Antoine; Palmer v. ...... . 990 Lasselle, Antoine; Pattinson v. .. .. 549 Lasselle, Antoine, et al.; Lamed v. . . 7o5 Lasselle, Antoine, et al.; Sutherland v. . . 984 SUPREME COURT OF MICHIGAN Lasselle, Antoine, Jr.; Sutherland, curator, v . . . . . . 469, 470, 471, 472, A-57 Lasselle, Francis; Boston v . ..... 56I1 Lasselle, Francis, v. Caldwell . . 946 Lasselle, Francis; Caldwell v . . . . 594 Lasselle, Francis; Caldwell, admr., v. . . o1029 Lasselle, Francis; Durocher, exr., v. . . 1o4x Lasselle, Francis; Gilbert v.... .. . 806 Lasselle, Francis; Jacques Lasselle et al. v 701o Lasselle, Francis; McDougall v.. . . . 631 Lasselle, Francis, v. Navarre . 444, 445, 446 Lasselle, Francis; Sutherland, curator, v. .... ..... . A-55, A-g6 Lasselle, Francis; Ten Eyck v. . . . . 822 Lasselle, Francis, admr., v. Berthelet . . 576 Lasselle, Francis, admr.; Caldwell v. . . 593 Lasselle, Francis, admr.; Caldwell, admr., v. o1036 Lasselle, Francis, admr., In the matter of . 943 Lasselle, Francis, admr., et al.; Boston v. . A-53 Lasselle, Francis, admr., et al.; Sutherland, curator, v . . . . . . . .. A-54 Lasselle, Francis, et al., admrs.; Sutherland, curator, v. . . . . . . . . . 482 Lasselle, Jacques, et al. v. Francis Lasselle 701 Lasselle, James-See Caldwell, admr. . . Lasselle, James-See Francis Lasselle, admr. Lasselle, James and Francis, v. Berthelet . 450 Lasselle, James and Francis; Murney v. . 491 Lasselle, James and Francis; Sutherland, curator, v. . . 473, 474, 475, 476, 477, 478 Lasselle, James and Francis, et al.; Sutherland, curator, v. . . . 443, 467, 468 Lasselle, Jean Baptiste-See Jean Baptiste Lasselle, admr. . . . . . . . . Lasselle, Jean Baptiste, admr., v. Antoine Lasselle . . . . . . .. . . 730 Lasselle, Marie B.-See Durocher, exr.. . Lasselle, Marie B., v. Caldwell, admr., and James Lasselle's Heirs . . . . . . 656 Lasselle's Heirs et al.; Boston v. . . . A-53 Lasselle's Heirs et al.; Antoine Lasselle v. . 655 Lasselle's Heirs et al.; Marie B. Lasselle v. 656 Lasselle's Heirs et al.; Sutherland, curator, v. A-54 Lauzon, Angelique, Esther and Jacques, et al. v. Williams.. . . . . . 902 Lauzon, Esther and Jacques, et al. v. Williams . . . . . . . . . .900oo Lawrance & Co. v. McKinstry .. . 692 Lawrence; Lamrned v. . . . . . . . 604 Lawrence et al. v. Davis . . . 735, 736, 737 Lawrence et al.; Davis v. . . . 738, o1039 Lawrence et al.; Fifield and Frary v. . . 673 Lawrence et al.; Lamrned v. . . 666, 705, 734 Lawrence et al.; Rathbone v . . . . 6o8 Lawrence et al.; Wendell v. . . . . . 609 Lawrence et al.; Williams v.. . . . . 607 L6cuyer v. Andr6... . . . . . . 693 L6cuyer; Irwin v. . . . . . . . . 1io9o L6cuyer; Reed v . . . . . . . . 987 Lcuyer et al. v. Chittenden ...... . 828 L6cuyer et al.; Reed v. . ....... ..988 LeDuc et al.; LeRoy v... 6 Lee et al.; Lacroix v . ...... 720, 940 Leebe; United States v... .... . A-58 Leet; Macomb v. ..... .. 71 Leet et al.; Miller v ........ 885 Leib v. Moran ........ Io85 Leib; Roby v ...... 895 Lerig6 et al.; Emerson v . ... . 983 LeRoy v. LeDuc and Rouleau . o96 Lewis, Reuben; Anderson v. ... . . A"45 Lewis, Silas, et al.; Brown v . . . 1044 Little, James W., v. Rathbone . . 72 Little, Robert, v. William Little . . 965 Little, Robert; United States v.. ...933 Little, William; Robert Little v. . 965 Little, William; Roby v. . ...... 958 Little, William; United States v. . . . 864 Lockmore, In the matter of .. ... 526 Lockwood v. Bouthillier, Brisbois and Musick ........... . 10o3 Lockwood & Co.; Day v..... . 753, 834 Lockwood & Co.; Sill, Thompson & Co. V. ....... .... 764, 1064 Lognon, Louis-See Mary Lognon, admrx.. Lognon, Louis; Fraser v. . . . . . . 452 Lognon, Louis, v. Willcox . ..... . 881 Lognon, Mary, admrx., v. Desnoyers . . IIo Long v. Blinn.. . . . . . . 894 Long v. Wing ... .... ... . 1013 Loranger; Anderson v. . . . . . . 6o5 Loranger; Boyd v. . . . . . . .A-o4 Loranger et al.; Pattinson v. . . . . 455 Loring v. Barnard . . . . . . . . A-69 Loson, Basile and Jean Baptiste, et at. v. May . . . . . . . . 513 Loveland v. Bernard . . . .. . .A-36 Loveland; McCoy and McCracken v... 568 Loveland v. Rogers . . . . . . . 405 Loveland v. Taylor . . . . . . . 441 Loveland & Co. v. Couture . . . . . 487 Lynn, David, In the matter of . . . . B-23 Lyon et al.; Stone v. . . . . . . . 882 McAlister, Call, v. Dousman . ... 100oo9 McAlister, Call; United States v. . 928 McAlister, Call and Catharine, et al.; Emerson v. . . . . . . . . .1095 McCloskey; Day v. . . . . . . 404 McCloskey; May v. . . . .. . 453 McCloskey; Merit et al. v. . . . . . 596 McCloskey v. Smart ... . ... . A-io6 McCloskey; United States v. . A-30 McCloskey et al.; Howard v.. .. . .667 McCombs, John; Boyd v . . . . .Io58 McCoskry v. McDonell, admr. . . . 956 McCoy et al. v. Loveland . . . . . 568 McCracken et al. v. Loveland . . . 568 McDonald; Pentland, Higgins & Steele v. . 442 McDonell, John; DeGraff, Santvoord & Co. v. ............... ....... . 860 McDonell, John; Duryee & Elliott v. . 670 McDonell, John, v. Hudson . . . . 562, 728 INDEX TO CALENDAR OF CA SES 749 McDonell, John, v. James .... . 532 McDonell, John, v. Jobin ...... . 606 McDonell, John, v. Knapp . . . . . 922 McDonell, John, v. Pattinson . . . 541 McDonell, John, v. Porter, Barton & Co. . 732 McDonell, John, v. Scott . . . 758, 1028 McDonell, John; Sill, Thompson & Co. v. . 664 McDonell, John, v. Smart . . o1046, A-I14 McDonell, John; Smith v . . . . . 849 McDonell, John; Whitney v. . . .. 679 McDonell, John, admr.; McCoskry v. . . 956 McDonell, John, et al.; United States v. . A-1i19 McDonell, John and Ann; Vermet's Heirs v. 90 McDougall, George, In the matter of . 547, 661 McDougall, George, v. Lasselle . . . . 631 McDougall, George; Pattinson v. . . . 538 McDougall, George; United States v. . . 499 McDougall, George; Williams & Co. v. . 497 McDougall, George, et al. v. Desjardins, admr............ 575 McDougall, George, et al.; Jacob v. . . A-63 McDougall, George, et al.; Sutherland, curator, v. . . . . . . . . 479 McGaw v. Ten Eyck & Co. . . . . . 699 McGee, William J.-See James W. and Jane King, admrs . . . . . . . McGee, William J., In the matter of the estate of . . . . . . . . . . 890 McGregor v. Smyth . . . . . . . 447 McGregor; Westbrook v.. . . . . . 484 McGulpin; Berthelot v . . . ..... 55 Mack, Daniel, In the matter of the estate of 888 Mack, Stephen, v. Bond, admr .... . 602 Mack, Stephen, v. Brush, exrx., and Brush's Heirs. . . . . . . . . . . 6oo Mack, Stephen; Campbell v..... . 971 Mack, Stephen, v. Chittenden . .. .829 Mack, Stephen, v. Hill, Parker and Ruland 602 Mack, Stephen, et al.; Beckley v. . 974, 1047 Mack, Stephen, et al. v. Choate, Emerson, Glass, McManus and Riddall . . . . 6oi Mack, Stephen, et al.; Disbrow and Taylor v. 100oo4 Mack, Stephen, et al.; Emerson v. . 983, o1095 Mack, Stephen, et al.; Forsyth, admr., v. . oo1100 Mack, Stephen, et al. v. Grosvenor & Heacock.. . . . . . . . . 633 Mack, Stephen, et al.; Jackson ex dem. McManus v. . . . . . . . .A-77 Mack, Stephen, et al. v. Rouse et al. . . 647 Mack, Stephen, et al.; Rouse et al. v. . . 645 Mack, Stephen, et al. v. Smith et al. . . 647 Mack, Stephen, et al.; Smith et al. v. . . 645 Mack, Stephen, et al.; United States v. . o1025 Mack & Conant v. Wing . . . . . 598, 847 McKee et al.; Jones v . . . . . . 908 McKinstry, David C.; Andr6 v.. . . . 1073 McKinstry, David C.; Cook v. .... . 993 McKinstry, David C., v. Gardner . . . 642 McKinstry, David C.; Hall v. .... . 795 McKinstry, David C.; Kelly v... . . 824 McKinstry, David C.; Lawrance & Co. v. 692 McKinstry, David C., v. McLaughlin . . 802 McKinstry, David C.; Marin v. . . . to 1015 McKinstry, David C.; Meldrum v.. . 807, 809 McKinstry, David C.; Meldrum, admr., v. 808 McKinstry, David C.; Moulton v. . . . 1000 McKinstry, David C.; United States v. Merchandise claimed by . . . . . A-65 McKinstry, David C., et al.; Beckley v. 974, 1047 McKinstry, David C., et al.; Brooke v. . 110o4 McKinstry, David C., et al.; Godfroy v. . 100oo1 McKinstry, David C., et al.; Provencal v.. 1023 McKinstry, David C., et al.; United States v. . ..... ...... . 1025 McKinstry, David C. and Nancy, et al.; Brooks, Palmer and Ten Eyck v. . . o1024 McLaughlin; McKinstry v.... . . . 802 McLean's Heirs and Widow v. Murphy, Smart and Willett . . . . . . . 1022 McManus; Carrel v . . . . . . . 872 McManus v. Choate........588 McManus v. Marsh . . . . . . . 846 McManus et al.; Conant and Mack v. . . 6o McMuir et al. v. Dole, Forman, Taylor, and Wilson . . . . . . . . . . A-82 McNiff; United States v.. . . . . . A-34 McNiff et al.; Baldwin v. . . . . . 1027 Macomb, Alexander; Bank of Michigan v. 1076 Macomb, Alexander, et al.; Rucker v. . . 535 Macomb, Alexander and Sarah, and Angus Mackintosh, exrs., v. May . . . . 423 Macomb, Alexander and Sarah, and Angus Mackintosh, exrs.; May v. . . . 81 I, 966 Macomb, John W., v. May . . . . . 406 Macomb, Sarah, v. May . . . . . . 796 Macomb, Sarah, exrx., et al.; May v. . . 1092 Macomb, William-See Alexander and Sarah Macomb, and Angus Mackintosh, exrs.. Macomb, William; Fowler, Piatt and Glenn v. . . . . . . . . . . . . 509 Macomb, William; Hunt v. . . . . . 466 Macomb, William, v. Leet . . . . ..711 Macomb's Heirs and Widow et al.; Rucker v. 535 McQueen et al. v. Dole, Forman, Taylor and Wilson . . . . . . . . . A-82 Madison v. Fulton . . . . . . . 703 Maher, James and John; Boyd & Suydam v. 550 Mahnot; Berthelot v.. . . . . . . A-62 Malcher, Francois Paul-See Audrain, Lasselle and May, admrs......... Marin v. McKinstry . . . . . . . 1015 Marsac, Jacques and Joseph Francois; Trembl6 v. . . . . . . . . . 903 Marsac, Jacques and Joseph Francois; Trembl6, admr., v. . . . . . . . 901 Marsh; Brown v . . . . . . 813, 1043 Marsh; McManus v. . . . . . . . 846 Marsh et al.; Brown v. . . . . . . 1044 Marsh et al. v. Davis . . . . 735, 736, 737 Marsh et al.; Davis v . .. . 738, 1039 Marsh et al.; Fifield v... .... . 8t18 Marsh et al.; Fifield and Frary v. . . . 673 750 SUPREME COURT OF MICHIGAN Marsh et al.; Larned and Watson v. . . 662 Mason; Pentland, Higgins & Steele v. A-4i, A-5o Maxwell, James; United States v. . . .82x Maxwell, Thompson, v. Anderson, Kirby and Plympton . . . . . . iox8, 101ox9 Maxwell, Thompson, et al.; Egnew v. .. 700 May; Baby v. . . . . . . . . 778 May v. Burnett, exr. . . . . . 512 May; Laforest, Loson and Theodore v. . 513 May v. McCloskey . . . .. . . 453 May v. Alexander and Sarah Macomb, and Angus Mackintosh, exrs. . . . . 81I, 966 May; Alexander and Sarah Macomb, and Angus Mackintosh, exrs., v. .... . 423 May; John W. Macomb v. . . . . . 406 May; Sarah Macomb v. . . . . . . 796 May v. Sarah Macomb, exrx., et al. . . o1092 May; Sibley, admr., v. . . . . . . 50o8 May v. Sterns . . . ..... .o1080 May; Sterns v. . .. . . . 1081 May v. Stevens. . . . . . . . 429 May; Thibault v. . . . . . .421 May; United States v. . 430, 464 May v. Woodward. . . . . . . 5o10 May; Woodward v. . . . . . . 514 May et al.; Abbott v.. . . . . .848, 10o2x1 May et al.; Sutherland, curator, v. . . . 468 May et al.; United States v.. . . . . A-4o Meldrum, George-See John Meldrum, admr. . . . . . . . . . Meldrum, George, et al.; Sutherland, curator, v . . . . . . . . . 443 Meldrum, John; Chene v. . . . . . A-89 Meldrum, John, v. Fulton . . . . . 787 Meldrum, John, v. McKinstry . . . 8o7, 809 Meldrum, John, v. Pearkey . . . . . . 1078 Meldrum, John, admr., v. Abbott, admr. 952 Meldrum, John, admr.; David, admrx. v. 814 Meldrum, John, admr., v. McKinstry . 8o8 Meldrum, John, admr.; Sibley, admr., v. . 525 Meldrum, William; Conant v . .... 909 Merit et al. v. McCloskey . . . . . 596 Merriam et al. v. Roby . . . . . . 766 Merritt; Gallagher v. . .. . . Ioi6 Merritt v. Palmer and Rowley .o67, o1068 Merritt v. Rowley . . . . . . . 981 Merritt et al. v. Brown . . . . . ..717 Messenger v. Cook . . . . . . . 733 Metcalf, Harvey et al., In the matter of . B-27 Miller, Edward W.; Booton v. . . . . 436 Miller, Oliver W., v. Corp. of St. Anne's Church ....... 779 Miller, Oliver W., v. Larned and Leet . . 885 Miller, Oliver W., v. Monroe & Corbett . 1054 Miller, Oliver W., v. Ryan . . . . . 884 Miller, Oliver W.; Thomas v.. . . . 786 Miller, Oliver W.; United States v. . . 615 Miller, Oliver W., v. Warner . . . . 627 Miller, Oliver W., et al. v. Gilbert . . . A-7g Miller, Oliver W., et al.; Hudson v. . . Ilo9 Miller, Oliver W., et al. v. Wing 641, 906, 973 Miller, William, v. Kinzie Miller, William, v. Palmer . . . 953 Mills et al. v. Bunce . 6o Minanchi, In the matter of . " 523 Monique; United States v. . 432 Monroe & Corbett; Miller v. .13 Moore; United States v. . .. A.32 Moors; Smart v. .... Moran; Leib v. rT. Moras, Antoine; United States v. . 438 Moras, Ignace; United States v. . 1, Moras, Victor; Campau v. .578 Morris v. Baldwin .. . 11xo0, A-io3 Morris v. Kelsey and Taylor . 755 Morris et al.; Parshall v. . .59 Morrison, Alexander-See James Abbott, admr. ....... . . Morrosse, John, In the matter of . 6S7 Motte et al. v. Churchill .... A-76 Moulton v. McKinstry.. . . 10oo Mountfort; Kelly v.. ... .... 947 Mountfort et al.; United States v. .. 921 Mouton; Emerson v . . . 10 o84 Munday; United States v.... . . 980 Murney v. James and Francis Lasselle. . 491 Murphy et al.; McLean's Heirs and Widow v. o1022 Musick, admr., et al.; Lockwood v. . . 10o3 Navarre, Francois; Godfroy v. . . . . 816 Navarre, Robert; Lasselle v. . . 444, 44S, 446 Navarre, Robert; United States v. . . . Sot Nelson, Henry, In the matter of . . . 68o Noyes, Abraham, In the matter of . . .694 Ogden, Annanias, In the matter of . . 522 Owens, Wilfred-See Musick, admr. Page et al.; Taylor v.... .... . 10xo11 Palmer, F., J., and T., v. Lasselle . . 990 Palmer, F., J., and T., et al. v. Fulton, McKinstry, Roby and Smith . . . . 1024 Palmer, John; Miller v. . . . . . . 81o Palmer, John; United States v. . .7 425 Palmer, Thomas, et al.; Merritt v. . o1067, o68 Palmer, Thomas, et al.; Sherwood v. . •o1065 Park, William-See James Abbott, admr. Parker, Lowin; United States v. . . .A-59 Parker, Luther; Flagler v . . . . 874 Parker, Luther; Sarah Parker, admrx., v. . 723 Parker, Luther; Taylor v. .. ..... 938 Parker, Samuel S.-See Sarah Parker, admrx.............. Parker, Sarah, admrx., v. Luther Parker . 723 Parker, Sarah, et al.; Mack v. . . . 602 Parshall v. Biddle .. . . . . 573 Parshall v. Carey and Morris . . . 595 Parshall; Kepner v .... 57° Patterson et al.; Baron et ux. v . . o1101 Pattinson, Richard-See Gilkinson, Gillespie and Moffat, exrs . .. Pattinson, Richard, v. Beufait and Loranger 455 Pattinson, Richard, v. Connor . . .. 531 Pattinson, Richard, v. Ducharme . . . 545 Pattinson, Richard, v. Lasselle . . . . 549 INDEX TO CALENDAR OF CASES 75' Pattinson, Richard; McDonell v. . . . 541 Pattinson, Richard, v. McDougall . . . 538 Pattinson & Co. v. Kinzie & Forsyth . 454, 528 Pearkey; Meldrum v.. . . . . . . 1078 Peirce et al.; Downing v.. . . . . . 6io Peirce et al.; Jerome v . . . . . . 939 Peirce et al.; Rathbone v. . . . . . 608 Peirce et al.; Wendell v . . . . . . 609o Peirce et al.; Williams v. . . . . . ..607 Peirce & Co.; Ten Eyck & Co. v. . . 708 Peltier, Felix; Smyth v. . . . . . . 417 Peltier, Mary, In the matter of . . . . 428 Pentland, Higgins & Steele v. Connelly . 580o Pentland, Higgins & Steele v. McDonald . 442 Pentland, Higgins & Steele v. Mason A-41, A-So Pepin, Bazil, In the matter of the estate of 719 Perrin, Jonathan, In the matter of . . . 68I Petit v. Brewster . . . . . . . .o1079 Phelps v. Anderson . . . . . . . 746 Phelps v. Rouse . . . . . . . . 639 Phelps et al. v. Colburn . . . . . . 859 Phelps et al.; Fulton v. . . . . . . 721 Phillips, Arnold, In the matter of . . . 621 Phillips, Asher, et al.; Dean v. .... . 930 Phillips, Horatio G., v. Woodworth . 910o Piatt et al. v. Macomb . . . . . . 509 Plympton et al.; Maxwell v. . . . io8, 1019 Porter, Barton & Co.; McDonell v. . . 732 Pothier v. Burnett . . . . . . . 831 Potter et al.; Jones and Reed v. . . .638 Potter & Co.; Woodworth v. . . . . 584 Poulin; Jackson ex dem. Navarre v. . . 823 Poulin; United States v . . . . . . 913 Poupard, Agatha-See Gabriel Godfroy, exr. Poupard, Charles; Dequindre v. . . . 668 Poupard, Charles, et al. v. Desjardins, admr. . . . . . . . . . . 575 Prichard v. Farrar and Sanderson . . . io87 Prince et al. v. Byrne... . . . . . 1042 Probert, William E., et al., In the matter of B-27 Proux; Edam v. . . .... ". 554 Provencal v. Campau and McKinstry . . 1023 Puthuff; Ames v .. . ....... 435 Puthuff; Barnard v. .......... 687 Puthuff; Dousman v ...... 579, 652 Puthuff et al.; Dousman v . . . . . 637 Ramsay v. Smart...... . . 649, 776 Rathbone v. Lawrence and Peirce . 608 Rathbone; Little v. ......... . 712 Rathbone; Taylor v . .. . . 704 R6aume, Alexis, In the matter of . . 409 Rdaume, Alexis Luc; Roby v.. .....533 Rdaume, Alexis Luc, v. Rolette ....597 R6aume, Charles; Younglove v . 574 Reed, John S.; Roby v .. ..... . 917 Reed, John S.; Wilkeson v.. ... . 887 Reed, Rufus Seth, v. Godfroy and Lcuyer 988 Reed, Rufus Seth; Holly v...... . 1077 Reed, Rufus Seth, v. L6cuyer . . . . 987 Reed, Rufus Seth, et al. v. Chittenden and Potter ............ 638 Reed, Rufus Seth, et al. v. Cox . . . . 463 Reed, Rufus Seth, et al. v. Selby . . . 556 Reed, Rufus Seth, et al.; Younglove v. . 926 Reed & Jones v. Dousman . . . . . 678 Reid, Charles, In the matter of . . . . 624 Reid, Duncan-See Eleanor Reid, exrx. . Reid, Eleanor, exrx., v. Knaggs. . . . 857 Remo v. Smart . . . . . . . 690, 854 Rice et al.; Downing v . . . . . . 6io Rice et al.; Jerome v.. . . . . . . 939 Richard; Abbott v. . . . . . . . 852 Richard; Jones v. . . . . . . A-90, A.91 Richard; Labady v. ..... . . 643 Richardson, Edward-See John McDonell, admr..... . . ...... Richardson, Esther, v. Lamrned . . . . 747 Riddall et al.; Conant and Mack v. . . 6ox Rivard, Francois; Smyth v . . . . . 414 Rivard, Jean Baptiste; Abbott v. . . . 84o Rivard, Jean Baptiste, et al.; Jackson ex dem. Abbott v. . . . . . . . . 632 Rivard, Simon; Ten Eyck v. . . . . 449 Robertjean et al.; United States v. .. . A-49 Roberts; Bronson v. . . . . . . . 798 Robertson, James, et al. v. Williams . 9o0o, 902 Robertson, Marianne, et al. v. Williams . 902 Robertson, Patrick-See Sutherland, curator Robinson, Monique-See Monique . Robinson, Rix, et al. v. Colburn . . . 859 Roby v. Abbott . . . . . . . . 785 Roby; Brigham and Merriam v. . . . 766 Roby v. Desnoyers . . . . . . . 835 Roby; Desnoyers v. .... . 748, 749, 750 Roby; Dow v. . . . . . . . . . A-92 Roby; Francis v . . . . . . . . 674 Roby v. Godfroy . . . . . . . . o1017 Roby; Hastings v. . . . . . . . 763 Roby v. Leib . . . . . . . . . 895 Roby v. Little . . . . . . . . . 958 Roby v. Reaume . . . . . . . . 533 Roby v. Reed . . . . . . . . . 917 Roby; Tuckerman v . . . . . . . 765 Roby; Watertown Cotton Factory Co. v. . 767 Roby et al.; Beckley v . . . . . . 974 Roby et al.; Brooks, Palmer and Ten Eyck v. 1024 Roby et al.; United States v. . . . . 1025 Rogers, Harrison G., et al.; King v. . . A-47 Rogers, John; Loveland v . . . . . 405 Roi; Selby v. . . . . . . . . . 419 Rolette, Joseph; Raume v . . . . . 597 Rolette, Laurent, In the matter of . . . B-26 Rolette, Laurent; Knapp v. . . . . . 759 Root; Baldwin v . . . . . . . . 825 Rose v. Taylor . . . . . . . . 660 Rouleau; Younglove v . . . . . . 586 Rouleau et al.; LeRoy v.. . . . . .1096 Rouse, G. W., et al., v. Fisher and Mack . 645 Rouse, G. W., et al.; Fisher and Mack v. 647 Rouse, Lewis; Phelps v. . ...... . 639 Rowland; Beelin & Bosler v. ..... . 955 Rowland v. Dimick and Van Cleef . . . Ixo8 SUPREME COURT OF MICHIGAN Rowley; Merritt v. . . . . . . 981x Rowley et al.; Merritt v.. . . . 1o67, 1o68 Rucker v. Alexander Macomb, and Macomb's Heirs and Widow . . . . 535 Ruland, Israel--See Bond, admr. . . Ruland's Heirs et al.; Mack v. . . . . 602o Russell, Elias C. and Otis, et al., In the matter of . . . . . . . . . 536 Russell, William, v. Sibley, admr . .. 567 Ryan v. Campau . . . . . . . . 10o62 Ryan; Miller v. . . . . . . . . 884 St. Anne's Church, corp. of; Gage, Warren and Young v. ... ..... . 707, 865 St. Anne's Church, corp. of; Hunter v. . . . . . . . . . 815, 851, 866 St. Anne's Church, corp. of; Miller v. . . 779 St. Anne's Church, corp. of; Williams v . . . . . . . . . 789, 941, 942 Sandars v. Westbrook . . . . . 995, 996 Sandars et al.; Westbrook v .... . xo66 Sanderson et al.; Prichard v. . . . . 1087 Sanford et al.; Younglove v. ... .. 926 Sargent, John; United States v. . "936, 10o3x1 Sargent, John and George, v. Bunce . . 684 Sargent, Thomas; United States v . . . 426 Schomah; United States v . . . . . 1107 Scott, John; McDonell v. . . . 758, o1028 Scott, Mary Ann; Anderson v. .... . 862 Scott, Mary Ann, admrx., v. Anderson . 742, 743 Scott, Mary Ann, admrx.; Anderson v. 812, 861 Scott, William McDowell-See Mary Ann Scott, admrx. . . . . . . . . Scott, William McDowell, In the matter of A-29 Selby; Falley v . . . . . . . . A-35 Selby v. Hahn... . . . . . . . 433 Selby; Jones and Reed v. . . . . . 556 Selby v. Roi . . . . . . . . . 419 Selkirk; Grant v . . . . . . . . 58i Shand and Sharp, exrs., v. Durocher and Gagnier's Heirs . . . . . . . . o1099 Shand and Sharp, exrs., v. Gagnier, admr., and Gagnier's Heirs . . . . . . 899 Sharp, George-See Shand and Sharp, exrs. Shepherd, James, In the matter of . . . 62o Sherwood v. Gage, Jones and Palmer . . io65 Shoven; United States v....... .934, 937 Sibley, admr., v. May . . . . . . 5o8 Sibley, admr., v. Meldrum, admr .. 525 Sibley, admr.; Russell v. .. ...... 567 Sibley, exr., et al.; Abbott v. . . . . 546 Sill, Thompson & Co. v. Lacock . 10o35, o1097 Sill, Thompson & Co. v. Lockwood & Co. 764, 1o64 Sill, Thompson & Co. v. McDonell . . 664 Sill, Thompson & Co. v. Smyth . . .. 665 Sill, Thompson & Co. v. Wing . . .. 975 Skinner et al.; Lacroix v.. . . . . 720, 940 Smart, George and Robert; McCloskey v. A-io6 Smart, George and Robert; McDonell v. ..... .. ....... o46, A- Smart, Robert, v. Allen .... ...... 420 Smart, Robert, v. Birdsall, Freeland, Hanson and Johnson . ..... 1o3o Smart, Robert, v. Butler ...... 481 Smart, Robert; John Clayton v .... . 689 Smart, Robert; William Clayton v. . . 688 Smart, Robert; Gilkinson, Gillespie and Moffat, exrs., v. .. ..... . 805, 836 Smart, Robert; Hudson v . ..... 777 Smart, Robert, v. Jacob . .... . 1098 Smart, Robert; Kennedy v. .... . 853 Smart, Robert, v. Moors ..... . 1075 Smart, Robert; Ramsay v .... . 649, 776 Smart, Robert; Remo v . . . . . 690, 854 Smart, Robert; Thomas v ..... 769 Smart, Robert; United States v. . 408, A-96 Smart, Robert, et al. v. Bryson . . . A-33 Smart, Robert, et al. v. Gilbert . . . A-75 Smart, Robert, et al.; Hudson v . . .i10o9 Smart, Robert, et al.; McLean's Heirs and Widow v . . . . . . . . . 1022 Smart, Robert, et al.; United States v. . A-67 Smart, Robert, et al. v. Wing . 641, 906, 973 Smith, Benjamin, v. Allen, Cass and Timberlake . . . . . . . . . 761 Smith, Benjamin, v. Cass and Israel . . 791 Smith, Hall, v. Hubbard . . . . . . 82o Smith, Jacob, v. Abbott . . . . . 507 Smith, Jacob; Bellows and Stone v. . . 587 Smith, Jacob; Campau, admr., v. . . 702, 827 Smith, Jacob; Jones v. . . . . . . 534 Smith, Jacob, et al.; Craft and Walker v.. 9o4 Smith, Jacob, et al.; Godfroy v.. . . . 100oo1 Smith, Jesse, et al.; Brooks, Palmer and Ten Eyck v . . . . . . . . . .1024 Smith, Joseph L.; Goss v . . . . . 713 Smith, Luther; Taylor v.. . . . . . 889 Smith, Silas, et al. v. Fisher and Mack . 645 Smith, Silas, et al.; Fisher and Mack v. . 647 Smith, Thomas, v. McDonell . . .. 849 Smith, Thomas, v. Willetts . . . . . A-37 Smith & Co.; Kelsey v. . . . . . . A-51 Smyth v. Bentley . . . . . . . . 418 Smyth v. Cecil . . . . . . . . 416 Smyth v. Chapoton . . . . . . . 413 Smyth v. Clemens . . . . . . . 412 Smyth v. David, exrx. . . . . . 1094 Smyth v. Forsyth and Kinzie . . 790 Smyth v. Hudson . . . . . . . . 410 Smyth; Johnson v . . . . . . . 773 Smyth; Kepner v .. . . . . . . 844 Smyth v. Laderoute . . . . . . . 415 Smyth; McGregor v. . . . . . . 447 Smyth v. Peltier . . . . . . . . 417 Smyth v. Rivard . . . . . . . . 414 Smyth; Sill, Thompson & Co. v .. 665 Smyth v. Taylor . . . . . . . . 411 Smyth; United States v. . . 424, 494, 498, 500 Smyth v. Woodward . . . . . . . 772 Smyth et al.; Beckley v. .... . 974, 0o47 Smyth et al.; Disbrow v. ... ..... . o7 Smyth et al.; United States v. 1025, A-iii, A-119 INDEX TO CALENDAR OF CASES 753 Solomons v. Agnew . . . . . . . 927 Spalding et al.; Forsyth, admr., v.. . i oo Spencer v. Anderson ........ . 745 Spencer et al.; Bull v. ....... ....1105 Squire; United States v ....... 50o2 Stead, Benjamin; Johnson v. . . . . 722 Stead, Benjamin; Ten Eyck, admr., v. . . 871 Stead, Benjamin; Watson, admr., v. . 614, 832 Stead, Benjamin; Willard v.. . . . . A-7o Stead, Benjamin, et al.; Dezing v . . . 855 Stead, Joseph; Huntly v.. . . . . . 788 Sterns v. May . . . . . . . . . io81 Sterns; May v. . . . . . . . . o1080o Stevens; May v . . . . . . . . 429 Stickney; Abbott v . . . . . . . 585 Stone v. Dousman and Lyon . . . . 882 Stone v. Woodworth . . . . . . . 959 Stone et al. v. Berthelet . . . . . . 634 Stone et al. v. Burnett . . . . . . 582 Stone et al. v. Smith . . . . . . . 587 Stone et al. v. Williams . . . . . . 863 Storrow, Thomas-See Langham, admr. Strong, Horatio N., In the matter of . . B-33 Stuart et al. v. Burnett . . . . . . 843 Stuart et al. v. Campau . . . . . .io56 Surplus, Thomas, In the matter of . . . 686 Sutherland v. Gilkinson, Gillespie, Moffat, and Lasselle, exrs. . . . .. . . 984 Sutherland v. Godfroy and Jacob . . .654 Sutherland, curator, v. Audrain, Lasselle, and May, admrs. . . . . . . . 482 Sutherland, curator, v. Campau et al. . . 467 Sutherland, curator, v. Godfroy . . . . 548 Sutherland, curator, v. Antoine Lasselle, Jr. . . . . . 469, 470, 471, 472, A-57 Sutherland, curator, v. Francis Lasselle .....A-55, A-56 Sutherland, curator, v. Francis Lasselle, admr., and James Lasselle's Heirs . . A-54 Sutherland, curator, v. James and Francis Lasselle . . . 473, 474, 475, 476, 477, 478 Sutherland, curator, v. James and Francis Lasselle, et al . .. . 443, 467, 468, 479 Sutherland, curator, v. McDougall et al. . 479 Sutherland, curator, v. May et al. . . . 468 Sutherland, curator, v. Meldrum et al.. . 443 Suttenfield et al.; Hanna, admr., v. . . 845 Taft et al.; Westbrook v. . . . . . 10o66 Taylor, Daniel; Loveland v. . . . . . 441 Taylor, Daniel; Smyth v. . . . . . 411 Taylor, Elisha, v. Rathbone . . . . . 7o4 Taylor, Mahlon C., et al.; McQueen and McMuir v . . . . . . . . .A-82 Taylor, Philo; Hazlip v . . . . . . 924 Taylor, Philo; Johnson v . . . . . 867 Taylor, William G., v. Bartlet . . . . 1Oo6 Taylor, William G., v. Bartlet and Page . loll Taylor, William G.; Blair v.. . . . . o1037 Taylor, William G., v. Davis . . 1033, o1040 Taylor, William G.; Davis v. ..... 893 Taylor, William G.; Larned v. ..... ..677 Taylor, William G., v. Parker . . . . 938 Taylor, William G.; Rose v. . ... . 66o Taylor, William G., v. Smith . . . . 889 Taylor, William G., et al.; Benton v. . . o1038 Taylor, William G., et al. v. Conant and Mack . . . . . . . . . .100zoo4 Taylor, William G., et al. v. Davis 735, 736, 737 Taylor, William G., et al.; Davis v.. .738, 1o39 Taylor, William G., et al.; Fifield and Frary v . . . . . . . . . . 673 Taylor, William G., et al.; Larned v. 666, 705, 734 Taylor, William G., et al.; Larned and Watson v.. . . . . . . . . 662 Taylor, William G., et al.; Morris v. . . 755 Ten Eyck, Conrad, v. Audrain . . . . o1083 Ten Eyck, Conrad, v. Berthelet. . . . 6x6 Ten Eyck, Conrad, v. Lasselle . . . . 822 Ten Eyck, Conrad, v. Rivard . . . . 449 Ten Eyck, Conrad; United States v. . . 10o50o Ten Eyck, Conrad, v. Whelen . . . . 970 Ten Eyck, Conrad, v. Wing . . . . . 839 Ten Eyck, Conrad, v. Woodward . . . o070o Ten Eyck, Conrad, admr., v. Stead . . 871 Ten Eyck, Conrad, et al.; Emerson v. . . zo95 Ten Eyck, Conrad, et al. v. Fulton, McKinstry, Roby and Smith . . . 1024 Ten Eyck, Conrad, et al. v. Gilbert . . A-75 Ten Eyck, Conrad, et al.; Hudson v. . . 1109 Ten Eyck, Conrad, et al.; Jacob v. . . . 731 Ten Eyck, Conrad, et al.; United States v. . . . . .. . .o055, A-119 Ten Eyck, Conrad, et al. v. Wing 641, 906, 973 Ten Eyck, Conrad and J. V. R., v. Anderson . . . . . . . . .o1032 Ten Eyck, Conrad and J. V. R.; Andr6 v. . 911 Ten Eyck, Conrad and J. V. R., v. Godfroy zo86 Ten Eyck, Conrad and J. V. R., et al.; Craft and Walker v. . . . . . . 904 Ten Eyck & Co.; Burnett v.. . . . . 762 Ten Eyck & Co.; Cebra & Cuming v. .A-xx3 Ten Eyck & Co. v. Harrington . .. i. o6i Ten Eyck & Co. v. Johnston . ... 659 Ten Eyck & Co.; McGaw v.. . . . . 699 Ten Eyck & Co. v. Peirce & Co . . 708 Territory of Michigan v. Boudoin . . . 838 Theodore et al. v. May . . . . . . 513 Thibault v. May . . . . . . . . 421 Thomas, Aaron, Jr., v. Smart . . . . 769 Thomas, James; Keith v. . . . . . 968 Thomas, Joel, v. Miller . . . . . . 786 Thomas, Joel, Jr., v. Weaver . . 543 Thompson, William, et al., In the matter of 536 Thorn, John; Westbrook v. . . . . . 856 Thorn, William; Dufour v. . . . . . 486 Thurman v. Biddle . . . . . . . A-66 Tilcot, Samuel, In the matter of . . . 623 Timberlake et al.; Smith v. . . . . . 761 Tompkins; United States v. . . . . . A-97 Town; Davis v. ...........A-z8 Trembl6, Benoit, v. Marsac .. ..... 903 SUPREME COURT OF MICHIGAN Tremble, Benoit, admr., v. Marsac . . . 901 Tremble, Francois-See Benoit Tremble, admr .. . ........ Trembl6, Leander, v. Van Every . . . 870 Trembl6, Michel; Chartier v . .. . 740 Trembl6, Michel; Emerson v. . . 8oo Tuckerman, Gustavus and William, v. Roby 765 Tuotte v. Descompte ....... o12 Tupper and Booton, admrs., v. Kinzie .. 842 United States v. Amidon, Clark, Combs, Cowles, DeWitt and Knapp . ... 718 United States v. Barnard . . . . . 891 United States v. Bateau, flour and whiskey A-86 United States v. Beaugrand . . . . . 427 United States v. Beaulieu . . . . 565 United States v. Jesse Beverly . . . o59 United States v. Saunders Beverly . . o60o United States v. Blankets and pantaloons . A-64 United States v. Booke . . . . . . 539 United States v. Boyd . . . . . . A-o United States v. Brandy claimed by Fobes A-6o United States v. Brush, exrx. ..... . 837 United States v. Byrne . . . . . . 1051 United States v. Campau . . . . .A-31 United States v. Church . . . . . .A-79 United States v. Cider . .. A-94, A-9g United States v. Clemens . . . . . 517 United States v. Cloth . . . . . . A-71I United States v. Cochois and Robertjean . A-49 United States v. Coffee, tea and muskrat skins claimed by Augustin Lagrave . . 488 United States v. Cosmor, James, Mountfort and Woods. . . . . . . . .921 United States v. Delavan . . . . . 685 United States v. Dequindre . . ... 439 United States v. Devotion . 618, 619, 625 United States v. Doughts . 724, 892, 100oo7 United States v. Durell . . . . . .A-8o United States v. Farley . . .... 912 United States v. Flannel . . A-93 United States v. Friend . 571 United States v. Garland . .. 1o45 United States v. Gilbert . . . . . . A-99 United States v. Goddard . 868, 869 United States v. Godfroy. . .. . 493 United States v. Gwynne . . . . . 715 5 United States v. Hatch, Mack, McKinstry, Roby, and Smyth . o25 United States v. Holton ... ... . 43x1 United States v. Homer . . . . . . 929 United States v. Henry Hudson .... . . 465, 505, 564, 569, 935, 979 United States v. Henry, Mary, and William Hudson . . . . . . . 841 United States v. Indian goods . . . . A-83 United States v. Jackson . .. . xo6 United States v. Jones and Smyth . . A-11 United States v. Jones and Ten Eyck . . xo55 United States v. Jourdan... . . . . 932 United States v. Kelly . 914, 931 United States v. Ke-wa-bish-kim . . . 706 United States v. Knaggs.. 490 United States v. Lagrave and May . A-40 United States v. Lashley ....... 50o3 United States v. Leebe . . . A58 United States v. Liquor and ship's boat . 489 United States v. Robert Little . . . 933 United States v. William Little . . 864 United States v. McAlister . . . 928 United States v. McCloskey. . . A-3o United States v. McDonell, Smyth, and Ten Eyck ......A-I 19 United States v. McDougall .... . 499 United States v. McNiff .... .. . A-34 United States v. Maxwell. . .. . 821 United States v. May . . . . . .430, 464 United States v. Merchandise claimed by McKinstry ....... A-65 United States v. Miller . ... . 615 United States v. Monique, alias Monique Robinson . . . . . . . . . 432 United States v. Moore . . . . . .A-32 United States v. Antoine Moras . . . . 438 United States v. Ignace Moras . . . 51x United States v. Munday . . . . . 980 United States v. Navarre . . . . . o501 United States v. Palmer . . . . . . 425 United States v. Parker . . . . . . A-59 United States v. Poulin . . . . . . 913 United States v. John Sargent. . 936, 1o31 United States v. Thomas Sargent . . . 426 United States v. Schomah . . . . . o107 United States v. Schooner Hornet . . . A-84 United States v. Shoven . . . . .934, 937 United States v. Smart . . . . 408, A-96 United States v. Smart and Welch . . . A-67 United States v. Smyth . . 424, 494, 498, 500 United States v. Spirits . . . . . .A-42 United States v. Spirits claimed by John Whipple .. . . . . . . A-44 United States v. Spirits and apples . . . A-74 United States v. Squire . . . . . . 502 United States v. Strouds and blankets . . A-85 United States v. Tea and spirits, property of Oliver Johnston.. . . . . .A-43 United States v. Ten Eyck . . . . . oo1050 United States v. Tompkins. . . A-97 United States v. Vernier . . A-38 United States v. Vessel Night Hawk .. A-73 United States v. Vidal . ..... .495, 496 United States v. Warren . . . . . .A-98 United States v. Waters . . . . . . 617 United States v. Welch . ... . 480 United States v. Westbrook . 407, 1oo8 United States v. Woodworth . .. . 985 Vance, John W. and Samuel; Wilson v. . 552S Van Cleef et al.; Rowland v. . 110oS Van Every; Trembl6 v . . . . . . 870 Varnum et al. v. Edwards . . . . . 977 Vermet's Heirs v. McDonell . . . . . 590 Vernier, Jean Baptiste, In the matter of . 524 Vernier, Jean Baptiste; United States v. . A-38 INDEX TO CALENDAR OF CASES 755 Vernier, Jean Baptiste Jr., et al. v. Williams ... . 9.00, 902 Vernier, Monique, et al. v. Williams . . 902 Vidal; United States v. . . . . .495, 496 Visger v. Delisle . . . . . . . 440 Visger; Godfroy, exr., v. . . . . 976, A-ioo Visger; Innis & Grant v. .. . 516, 897, 898 Wabouse, In the matter of . . . . . 518 Walker et al. v. Boyd, Dubois, Hill, Jones, Smith, and Ten Eyck . . . . . . 904 Warner; Miller v. . .. . . . 627 Warren; United States v. . ..... .A-98 Warren et al. v. Corp. of St. Anne's Church ... . . . . . . 707, 865 Washburn v. Halsey. . . . . . . 1091 Waters; United States v.. . . . . ..617 Watertown Cotton Factory Co. v. Roby . 767 Watson, George E., et al. v. Brown, Marsh, and Taylor . . . . . . . 662 Watson, George E., et al. v. Chittenden . 828 Watson, John G., admr., v. David . . . 651 Watson, John G., admr., v. Godfroy et al. 651 Watson, John G., admr., v. Stead . . 614, 832 Weaver, Joseph-See Joseph Campau, exr. Weaver, Joseph; Thomas v. . . . . . 543 Welch; United States v... . . . . . 480 Welch et al.; United States v. . . . . A-67 Wendell, Abraham and Josiah, v. Lawrence and Peirce . . . . . . 609 Westbrook v. Austin and Hatch .. . 771 Westbrook v. Brown, Sandars, and Taft . 1o66 Westbrook; Fenton v. . . . . . 434 Westbrook v. McGregor . . . . . . 484 Westbrook; Sandars v. . . . . .995, 996 Westbrook v. Thorn. . . . . . . 856 Westbrook; United States v. . . .407, Ioo8 Whelen; Ten Eyck v. . . . . . . . 970 Whipple; Butler v. . . . . . . . 833 Whipple; United States v. Spirits claimed by. ...... . .. .A-44 Whipple et al.; Dezing v. . . . . 855 Whiting; Hurd v. . . . . . . 989 Whitney, A. and G., v. McDonell . . . 679 Wilds; Cook v. . . . . . . . . A-39 Wilkeson v. Reed. . . . . . . . 887 Wilkins, William, v. Abbott.. . . . 563 Willard v. Stead. . . . . . . .A-7o Willard et al. v. Brown . . . . . . 717 Willcox; Lognon v. . . . . . . . 88x Willcox & Beach et al.; Bull v . . . 1o5 Willett et al.; McLean v. . . . . .1022 Willetts; Smith v.. . . . . . . .A-37 Williams, Alpheus, In the matter of . . 696 Williams, Alpheus and Harvey; Desnoyers v. . . . . . . . 751,896 Williams, Charles C., et al. v. Churchill . A-76 Williams, Harvey, v. Corp. of St. Anne's Church . . . . . . . 789, 941, 942 Williams, James, et al.; Forsyth, admr., v. z zoo Williams, John R.; Lauzon, Robertson and Vernier v. . . . . . . . . 9o00, 902 Williams, Oliver; Bellows and Stone v. . 863 Williams, Oliver, v. Hull . . . . . . 457 Williams, Oliver, v. Johnson . . . . .A-68 Williams, Silas, v. Garratt . . . . . 797 Williams, Silas, v. Lawrence and Peirce . 607 Williams & Co. v. Allen . . . . . . 492 Williams & Co. v. McDougall . . . . 497 Williams & Garratt v. Fulton . . . . 792 Wilson, David, v. Vance . . . . . . .55 Wilson, Ebenezer Jr., et al.; McQueen and McMuir v. . . . . . . . A-8Sa Wilson, Thomas, et al.; Brown v . . zo44 Wing, Austin E.; Austin v.. . . . .710O Wing, Austin E.; Baldwin v. 986 Wing, Austin E., v. Hudson . . . . . 793 Wing, Austin E., v. Hurd . . . . 962, 963 Wing, Austin E.; Mack & Conant v. . 598, 847 Wing, Austin E.; Miller, Smart, and Ten Eyck v. . . . . . . . 641, 906, 973 Wing, Austin E.; Sill, Thompson & Co. v.. 975 Wing, Austin E.; Ten Eyck v. .... . 839 Wing, Austin E., et al; Hudson v. . . .z o9 Wing, Samuel; Long v. . . .. . .o1013 Woodbridge; Delavan v.. . . . . . 999 Woodbridge; Hungerford v. . . . . .A-xo9 Woodbridge et al.; Abbott v. 848, o1021 Woods et al.; United States v . . 921 Woodward; Conant v. . . . . . . 714 Woodward v. May. . . . . . . 514 Woodward; May v. . . . . . 510o Woodward; Smyth v. . . . 772 Woodward; Ten Eyck v. . . . . . . o1070 Woodworth, Benjamin, v. Crow . . . 458 Woodworth, Benjamin; Emerson v. . 875 Woodworth, Benjamin, v. Hawkins 448 Woodworth, Benjamin; Jones v.. . . A-o2 Woodworth, Benjamin; Phillips v.. . . 910xo Woodworth, Benjamin, v. Potter & Co. . 584 Woodworth, Benjamin; Stone v. .. . 959 Woodworth, Benjamin; United States v. . 985 Woodworth, Benjamin and Rachael, et al.; Fisk v. . . . . . . . . 907 Worthington v. Fulford . . . . . A-I to Wright et al.; Brooke v. . . . . . . 10o4 Yale, Samuel H. and William W., v. Anderson . . . . . . . . . .A-1i17 Yax, Mary J., v. Peter Yax . . . . . 529 Young, Abner, et al. v. Corp. of St. Anne's Church . . . . . . . 707, 865 Young, Timothy; Younglove v . . . . zo26 Younglove, Ezra, In the matter of . . 520, 698 Younglove, Ezra, v. Reaume . . . 574 Younglove, Ezra, v. Reed and Sanford . . 926 Younglove, Ezra, v. Rouleau . . . 586 Younglove, Ezra, v. Young . . . . . o1026 OF THIS BOOK ONE THOUSAND COPIES HAVE BEEN PRINTED AT THE LAKESIDE PRESS R. R. DONNELLEY & SONS COMPANY CHICAGO, ILLINOIS    BENTLEY HISTORICAL LIBRARY II III II 11l 1 11111i 11 II I ll l 3 9015 07117 6419  ~ V V I V *k~4 w ~Vfr~k~VV V i~V~#<~V> 1wW~ ~ 'V~~<~' ~ V ~ I ~ ~ I 11;; w.~(jV4wVw~ ;kV4~vr~ ~