St Bernard v. Martin , 2 Blume Sup. Ct. Trans. 105 ( 1806 )

IN THE SUPREME COURT OF MICHIGAN TERRITORY-

Hugh Robison Martin vs Louis Sl Bernard of a plea of Trespass on the case—

Michigan Territory—to wit—

And the said Louis S4 Bernard by Sol. Sibley his Attorney comes and prays Judgment, of the original writ of capias by the said Hugh above sued out against him the said Louis and that the same may be quashed. Because the said Louis saith that long before the said Hugh sued out said writ against him the said Louis, he the said Hugh did sue out his certain other writ of capias against him the said Louis, from the office of the Clerk of the District Court for the district of Huron and Detroit in said Territory of Michigan, To wit, on the first day of October in the year of our Lord one Thousand Eight hundred and Six, which said writ last mentioned is tested by the Honorable Augustus B Woodward, in and over said Territory of Michigan, at Detroit on the said first day of October last mentioned and made returnable into said District Court for the District of Huron & Detroit on the first Monday in May next, which said writ last mentioned is in the words following Towit—“Territory of Michigan To wit—The United States to the Marshal of the Territory of Michigan Greeting—You are hereby commanded to take Louis Sl Bernard if he may be found within the district of Huron & Detroit and him safely keep, so that you may have his Body before the judges of our district court to be holden at Detroit on the first Monday of May next then and there in our said Court, to answer Hugh Robison Martin in a plea of Trespass on the case, to the damage of the said Hugh, as is said Two Thousand five hundred dollars which shall then and there be made to appear with other damages and of this writ make due return— Witness Augustus B. Woodward Chief Judge of our said Court at Detroit the first day of October one Thousand Eight hundred and six. Peter Audrain clerk” Upon the back of said recited writ, the said Hugh did then and there indorse and cause to be indorsed as cause of bringing said action, the words & figures following Towit— “This action is brought on a certain promissory note of hand made by the defendant to one Charles Curry and by him indorsed to the Plaintiff for £665.. 10. .2^ New Yk Currency Equal to $1663-78. - good bail required—Which said writ last mentioned and recited with the indorsement thereon made, the said Hugh afterwards, Towit on the same first day of October aforesaid, at Detroit aforesaid, did deliver to James May then marshal of said Territory of Michigan, to be by him served and Executed upon the said Louis in due form of Law— And the said Louis in fact saith, that the said James May, then being Marshal as aforesaid, and in possession of said last mentioned writ as aforesaid, afterwards, towit on the third day of the same October aforesaid, in pursuance to the command in said writ contained, did arrest him the said Louis upon said writ, and him the said Louis by his body did detain and imprison at Detroit aforesaid, under said writ last mentioned for a long time afterward, and until afterwards— Towit on the same day and year last mentioned at Detroit aforesaid he the said Louis did enter into Bond with sureties conditioned to appear at the return of said writ, in said District Court for said District of Huron & Detroit, at the suit of the said Hugh, according to the Exigency of said writ—Which said Bond so entered into by the said Louis, did and still doth remain in the possession of the said late Marshal, for the benefit of the said Hugh, in full force and virtue, Towit at Detroit aforesd, and the said Louis further saith that the suit of the said Hugh against him the said Louis, instituted on the said first day of October last mentioned is still pending against him the said Louis, and the said Louis doth aver that Hugh Robison Martin, Plaintiff and Louis St. Bernard defendant, named in said last mentioned and recited writ, and Hugh Robison Martin Plaintiff and Louis S4 Bernard defendant, named in the aforesaid writ of Capias are one and the same persons —and the said Louis doth aver that the cause of action, of the said Hugh against him the said Louis, indorsed upon the back of said writ by the said Hugh sued out on the first day of October above recited, and the cause of action as set forth and indorsed upon the aforesaid writ, sued out of this honourable court by the said Hugh against the said Louis as aforesaid, are one and the same cause of action, and not different causes of action—Wherefore the said Louis prays Judgment of the writ aforesaid, and that the same for the causes aforesaid may be quashed, with his costs &c by Sol. Sibley his atty

Michigan—

to wit—

Louis S4 Bernard puts in his place Sol. Sibley his Atty against Hugh Robison Martin in the plea above pleaded &c

Michigan to wit—

Be it remembered that personally appeared before me the subscriber one of the Justices of the peace in said Territory Louis S4 Bernard who being sworn deposeth and saith that the above plea is in substance true as pleaded, to the best of his knowledge and belief & further saith not—

Subscribed and sworn before me at my chambers in Detroit this

Sixteenth day of Decb 1806— Louis ST Bernard

Peter Audrain his + mark

Demurrer

filed 29th December 1806

Peter Audrain elk

[Case 40, Paper 4]

And the said Hugh Robison Martin as to the plea of the said Louis St. Bernard by him above pleaded says that the plea aforesaid in manner and form as the same is above pleaded and the matters therein contained are not sufficient in Law for the said Louis to bar the said Hugh from having or maintaining his aforesaid action thereof against him the said Louis and that the said Hugh is not under any necessity nor is he bound by the Law of the Land in any manner to answer thereto and this he is ready to verify wherefore for want of a sufficient plea in this behalf the said Hugh prays Judgment and his damages by reason of the premises to be adjudged unto him— And for causes of demurrer in this particular the said Hugh R. Martin here sets down and shows to the court the following towit—

First—Because the said plea is plead in abatement to the writ original without showing the writ itself—

Secondly—Because it is plead after a Gen1 imparlance—

Thirdly—Because the action supposed to be pending for the same cause is shown to be an action pending in another court and fourthly—Because in the said action supposed to be pending in the said District Court of the District of Huron & Detroit no certainty is contained, in as much as there is no plaint or Declaration made up on the Record of the said Court which reduces the generality of the said supposed action to any kind of Certainty by which it may appear to this honle Court to be the same cause—-and also for other matters appearing in the body of the plea aforesaid which are wholly and altogether insufficient— E Brush Atty

[In the handwriting of Solomon Sibley]

fin the handwriting of Elijah Brush]