Askin v. Elliot ( 1807 )

Jno. Askin vs Mattw Elliot—

And the said John Askin as to the second plea of the said Matthew Elliot above pleaded, says that the plea aforesaid in manner and form as the same is pleaded and the matters therin contained, are not sufficient in law for the said Mathew to Bar the said John from having or maintaining his aforesd action thereof against him the said Mathew, and that the said John is not under any necessity nor is he bound by the law of the land in any manner to make answer thereto, and this the said John is ready to verify—wherefore for want of a sufficient plea in this behalf the said John prays Judgm1 & his damages by reason of the premisses to be adjudged to him &c And for causes of Demurrer, and in conformity to the statute in this behalf made, the said John sets down and shews to the court here, the causes following to wit

Ist Because the said Mathew in his said second plea above pleaded, hath set forth and aledged matter in bar of the action of the said John, contrary to the provisions of the Constitution of the United States of America, and particularly the iotb Sec1 of the Ist Article thereof—■

ad Because the said Matthew Elliot, in his said second plea above pleaded, hath set forth and aledged matters in Bar of sd Action of sd John, contrary to the express provision of Second article of Compact contained in the ordinance of Congress passed the 13th of July 1787—

3d Because the said Matthew in his said plea, hath set forth and aledged matter in Bar of the action of the said John, wholly unconstitutional, illegal, irrelevant, idle & wholly insufficient to bar the said John in having & maintaining said action— Sol Sibley Atty

John Askin Snr vs Mattw Elliot

Plea statute of limitations To which Pltff demurs—on the ground that the statute of Indiana is unconstitutional and the plea Bad—as having an ex post facto operation in the present instance—

2 Article of ordinance of this Territory full and in point—

Constitution of U. States expressly prohibits any state passing a law framed as this is—1 vol. pa. 11. Sec1 10—

One of the first laws adopted by N. W. Territory was an act of limitation of actions. This law was disapproved by Congress— A second law of a similar import was adopted in the N. Western Territory and repealed the first session of Territorial Legislature, and declared unconstitutional (See 1 vol. T. Laws page 241. Sec1 2—) Notwithstanding, the constitutionality of a limitation act had been repeatedly & pointedly called in question, The legislature of the indiana, formerly a part of the N. W. Territory adopt a third limitation lame and unguarded, much more oppressive than either of its predecessors— And what is more surprising we find Judge Vander Burgh, a conspicuous character, in declaring a similar law unconstitutional, giving support to the adoption of this act An act, which with one fell sweep, blasts the hopes of the fond mother and her infant child—

Can this Court by their Solemn decission, tolerate and sanction such an act thus fraught with mischief, and thus deprive the Honest, humane and indulgent man of his hard Earnings? What just reason can be alledged for upholding a law, the principles of which are so compleatly subversive of honest dealings and substantial justice?—

Is a fair debt bone fide contracted, less obligatory, because it has been due 5 years? Nothing but payment can or ought to discharge a man from a debt— No length of time is or ought to be a Bar to a recovery—

Let the Gentleman meet us on the merits—let him shew our demand fairly paid of and discharged & we rest satisfied— If he cannot meet us on the merits I trust he never will be permitted within the Territory of Michigan to shield himself under the detestable cover of a limitation law— When a clerk who makes entries in Books is dead, his hand writing may be proved—

3 Blac 368 —• Bul. N. P. 282 Salkeld 285—

Cap1 Elliot virtually admitted the charges rightly due Mr Duffs evidence admission of a debt is strong evidence Bui. 236—

Witness may use papers to refresh his memory—Esps 729 — or 730 — cites 3d Term 749—

Second plea, Statute not referred to—■ Note when plea double is pleaded in usury &c the statute is referred to—

If issue had been joined on the plea and verdict thereon Judg£ could not be entered—it being immaterial. If the statute & ordinance are both to stand as it is evident upon mathematical calculation that the time of five years has not expired

Heaths Maxims—p. 125

2 of Modern 139 & 140—1 Bur. 301

At a Session of the Supreme Court of the territory of Michigan continued & held at Detroit on the twenty eighth day of September one thousand eight hundred Seven, was present Augustus B. Woodward Chief Judge,

On the application of the defendant’s Counsel, and having Shewn Sufficient reason, it is ordered that a writ of habeas Corpus issue returnable immediately.

Extract from the record of the Supreme Court of the territory of Michigan.

Peter Audrain clerk

[Case 73, Paper i]

Territory of Michigan, to wit

The United States tó the Marshall of the territory of Michigan Greeting: You are hereby Commanded to bring before the Supreme Court of the Said territory of Michigan to be holden, at Detroit, on tuesday the twenty ninth day of September instant, the body of Totaggnee—an indian, detained by you in the Common Goal of the district of Detroit, as it is Said, by whatsoever name he may be called, together with the cause of his detention; to do, Submit to, and receive whatsoever Shall be considered in this behalf; and have then there this writ. Witness Augustus B. Woodward, chief judge of our Said Supreme Court at Detroit, the twenty eighth day of September one thousand eight hundred Seven. Peter Audrain clerk

[Attached to the foregoing\

Territory of Michigan ss

In obedience of the within Writ, to me directed, I have the body of Totaganee, the Indian, within named, here present in Court. And for his cause of caption & detention in prison, I do Return the following cause viz, that on the Twenty fourth day of Septr Ins1 Robert Abbott a Justice of the peace &c issued his Warrant against the said Totaganee in the name of the United States of America, under a charge exhibited to the said Justice, by an Inquisition held on the said day, on the body of Nantamee an Indian found dead, by which Inquisition the said Totaganee is implicated as the murderer of the said Nantamee, and thereby was committed to close confinement— And further it is stated & believed by the Marshal that the said Totaganee was not present at the murder of the said Nantamee.

Detroit 29th WM Scott

Septr AD 1807 Marshal

[In the handwriting of Solomon Sibley]

[In the handwriting of Solomon Sibley]

[Sibley Papers, Vol. 16A (935), mss. 67, Burton Historical Collection, Public Library, Detroit]

[In the handwriting of William McDowell Scott]