Clark v. May , 2 Blume Sup. Ct. Trans. 316 ( 1810 )

Upper Canada London District. to Wit

Whereas a commission from the supreme court of the territory of Michigan bearing date the fifth day of September one thousand eight hundred and ten authorizing me or any other justice authorized by Law to administer oaths in the District of London in the Province of Upper Canada: Directing me to take the deposition of John Fowler of Burford touching the premises of a suit depending in the Sd Supreme Court—Andrew Clark Plantif James May defendent— Personally appeared before me Benajah Mallory Esquire one one of his Majestys Justices of the Peace in and for the District of London and also to hear and determine divers Felonies Trespasses and other Misdemeanors committed therein John Fowler of the Township of Burford District of London Yeoman who testifieth on oath and saith

Refering to the agreement between Mr May and Mr Clark that some time in the Month of January Mr. Andrew Clark informed him this deponent that he should return to Detroit some time in the Month of March and take possession of the farm he had rented from Mr. May—that being the time he this deponent understood he was to take possession of the place—he this deponent likewise understood there were some writings between the parties but never saw them—Sometime after this he this deponent saith he understood Mr Clarks ingagements were such that he would not come forward to take the place as he the sd Mr Clark had told him this deponent—(on the return of this deponent to Detroit it being some time in the month of april— Mr May at that time made some enquiry about Mr. Clark—he the deponent saith to Mr. May he had not seen Mr Clark since January and could give him no certain intiligence of Mr Clark. Mr. May then in answer said he should not keep the place For Mr Clark but a few days Longer acept Mr. Clark or some other person in his name come forward to take the place —the deponent then told Mr. May he could tell no more of Mr. Clark than what he had before related. Mr. May then said he should take the twenty five Barrels of Cider that belonged to Mr. Clark for the damages he should sustain by Mr. Clarks not coming forward according to agreement he this deponent then proceeded to take the Cider that belonged to him this deponent) Mr May then requested him this deponent that he would not take away to much cider till such times as he knew what quantity belonged to Mr Clark the deponent then told Mr May there was twenty five Barrels of cider belonging to Mr Clark that after shewing him the cider told Mr May there it was and if he saw fit to take the cider, that he the deponent had no demands on it—Mr May then proceeded to take the cider which he did together with nineteen lb. of Cheese and a Barrel of apple sap; Mr May said he would have it for the damages which he should sustain by Mr Clarks failing in his Contract. Mr May sold the property in presents of the deponent, the Cider he sold none for less than five dollars per Barrel and he thinks that some of it for more; this took place some time about the Last of April one thousand eight hundred and nine—the deponent further saith that Mr Clark did not come to take possession of the place till some time in the month of June Following—this Deponant further sayeth that the first information Mr Clark gave him the first information Respecting his Returning to Detroit to take Possession of the place Eluded to was In January one thousand Eight hundred and nine

By Request of James May Esquire

Question id; Mr John Fowler, was you personally present when Mr. May and Andrew Clark made an Agreement for the Rent of the late Mr Maccombs farm at Detroit.

Question 2d Did not Mr May tell Clark he would not sign the agreement, unless security was giving by him, that he would return from York by the fifteent day of Feby And for the faith full performance of his Convean ts.

Question 3d Did not Mr. Clark Inform Mr. May that he could not Procure security as he was a stranger in the Place Unless Mr May would take the Cider and Cheese Deposited in the Root House And in Mr Mal-chers Celler

Question 4d Did not Mr May Except of that Offer on the Express Condition, that If the said Clark did Not Return at the time agreed uppon, in order to make the farm, that the same was to be forfited to satisfy the said may for the damage he would sustain from the Disapointment

Question 5d Did you not on your return in the Spring to Detroit inform Mr May (when he askt you what had become of Mr. Clark, and that he had sustaind great Damages on a/c of Mr Clarks not Returning—

Question 6d Did you not Call upon Mr May and Request of him to gone with you to the Root House to Recd the Ciders

Question 7d Did you not deliver Mr Malchers part of the Cheese deposited in his Celler for Mr. May if so how many and what was the waight—

Question 8d Did you not assure Mr May that he might Rent the Farm to Mr More after the first day of May as Andrew Clark would niver Return—

Question 9d Was you not the friend & confidant of Mr Clark

Question iod Did you not Red a leattere or Some Information from A Clark—■

Question nd On your arrivil at the Detroit in the Spring did you not mention any Surcomstance of Mr. Clark to Mr. May—

Question iad Did you not Deleaver to Mr May a barrel of apples Butter out of Mr. Malchers Celler, deposited there by a Clark an in what state was it in—

London District CROSS EXAMINATION'

to wit of Mr John Fowler

Question 1, the sd deponent saith as to this Question he knows nothing of it—

Question a, the deponent saith he was not present when the Contract between Mr Clark and Mr May—Mr Clark told him this deponent Mr May required Security but Mr Clark told him this deponent he should not give any security.

Question 3, the deponent saith he knoweth nothing of it. he did not hear Mr Clark say anything respecting the Cider being left in security—

Question 4th, deponent saith he knows nothing in it.

Question 5 th, deponent told Mr May he had heard Mr Clark had undertaken a Contract of making Staves and did expect Mr Clark would not return that way—

Question 6th, the deponent went to the House and told Mr May there was Mr Clarks Cider twentyfive Barrels and told Mr May if he saw fit to take the Cider to take it as the deponent said he had no demands thereon but did not deliver the Cider as a forfeiture and did Conceive there was any forfeiture but told Mr May if he saw fit to take the Cider to take it.

Answer of John Fowler Continued

Question 7th This deponant did not Deliver any Chese to Mr May accept nineteen pounds which Mr May took being the Property of Mr Clark Qs 8th this Deponant did not tell Mr May that he might be Safe in Renting the place Mr Clark had agreed for but told him he the Said De-ponant knew nothing about it

9th Qus this Deponant was always on frindly terms with Mr Clark

11 th he did tell Mr May that he heared Mr Clark had taken a Large Contract in geting out Staves and that Mr Clarks familey was not willin to go to Detroit

He did deliver Mr May a barrel of apple juise Sweet and good the Property of Mr Clarks 11' th

10th question was omitted it being So much connected with the 11th it was about the Same Substance

Province of Upper Canada District of London to wit

Personally appeared before me Benajah Mallory Esquire one of his Majestyes Justices of the Peace in and for the District of London John Fowler of Burford of Said District and made Solomon oath that the above and aforesaid Examenation togeather with the Cross Examenation is the truth according to the best of his knowledge and that he hath well and truly answered to all questions there in contained according to the best of his knowlege in the Premises

Given under my hand and Seal at Burford in the j Said District of London and Dueley Sworn be- b fore me the 11th- day of Septemb. 1810 J John Fowler

Benajah Mallory J Peace & Commissioner