Territory of Michigan DISTRICT OF HURON & DETROIT

Pleas at Detroit before James Abbott & Jacob Visger associate judges of the court of the district of Huron & Detroit, of the term of august one thousand eight hundred eight

John Watson vs William B. Torrence

Sur appeal from the judgrn1 of Justice McDougall

On the Second day of may one thousand eight hundred eight the record of the Justice of peace, George McDougall, were filed, and are in the following words—to wit—

John Watson vs William B. Torrence

In case damages twenty dollars.

This action is brought against the defendant for failing to perform his undertaking, or assumpsit, to pay the plaintiff twenty dollars for furnishing a Substitute for defendant who was regularly drafted into the Service of the United States.

*2301808 - Jany 20 issued Summons for defendant to answer on Saturday next.

26 Subpoena on the part of the defendant for Samuel Graham & David Cooper.

feby 4 Subpoena on the part of the plaintiff for Robert Smart and Major John Whipple

The parties appeared on this day—Defendant pleads that he did not promise and undertake in manner & form as the Said John hath above complained against him.

Rob1 Smartt—William Watson—David Cooper and Major John Whipple were Sworn—Samuel Graham affirmed.

In this case the parties having been heard by their evidence, and all & Singular the premisses being Seen, and by the court fully understood, it is considered by the court that the plaintiff recover against the defendant the Sum of twenty dollars damages, and also two dollars & fifty cents for his costs and charges by him laid out & expended in this behalf; whereupon the defendant prays an appeal to the district court, which is granted to him on his complying with the requisite of the law.

1808 - feby 5. James Henry filed his and the defendant’s bond to prosecute the appeal agreable to law.

I certify the above and foregoing to be a true transcript from my docket. Geo: McDougall J.P.D.D.

To Peter Audrain Esqr Clerk of the Court of the district of Huron & Detroit

In the district court of Huron & Detroit continued & held at Detroit, the plaintiff was ruled to declare; and on the eighteenth day of july the plaintiff filed his declaration in the following words—to wit—

Territory of Michigan in the district court of the territory of THE TERM OF MAY IN THE YEAR OF OUR LORD 1808-

District of Huron & Detroit ss—

William B. Torrence was attached to answer unto Captain John Watson in a plea of the case for this, towit, that whereas the Said William B. Torrence heretofore towit, on the eighteenth day of January in the year of our Lord 1808, towit, at Detroit in the District and Territory aforesaid was drafted from the Militia of this Territory in obedience to an order from the President of the United States to Serve a tour of three months duty in the Service of the United States in the Said Captain John Watson’s Company of infantry, and having been therein duly and regularly inrolled and mustered, and being desirous of being freed and exonerated from the Said Service before the expiration of the Said term of three months, did on the eighteenth day of January in the year of our Lord 1808, towit, at Detroit aforesaid, propose & *231declare to the Said John that in consideration he the Said John would furnish and procure another Suitable person to take the place and stead of him the Said William B. in the Said detachment of Militia So in Service, as aforesaid, and that Should well & truly Serve out the term, and perform all the duties of a Soldier, that he the Said William B. was then held and bound to do, and in consideration that he the Said John would then & there exonerate and acquit him the Said William, and procure him tobe exonerated & acquitted from any further service as a Soldier in the aforesaid detachment of Militia as aforesaid, the Said William B. did then & there undertake and faithfully promise the Said John that he would wéll & truly pay and Satisfy the Said John the Sum of twenty dollars, money of the United States, when the Said William B. Should be thereto afterwards requested. And the Said John avers that trusting to the promises and undertakings So made by the Said William B. in his behalf, and in form aforesaid, he did afterwards towit on the Same day & year aforesaid, at Detroit aforesaid, at great expence & trouble procure and hire a certain other person by the name of William Primrose to enroll & muster himself in his Said Company of Militia in the place & Stead of the Said William B. Torrence, and therein to do duty as a Soldier, untill the thirty first day of March then next ensuing and in the year last aforesaid, when the Said detachment of militia (the Said John Watson’s Company being part thereof) was disbanded and released from further duties in the Service of the Said United States, as aforesaid, during all which time the Said John avers that the Said William-B. Torrence was exonerated, freed & discharged from all manner of Service in the Said detachment by reason of the Said John So having caused & procured the Said William Primrose to take the place and stead of him the Said William B. as aforesaid, by reason whereof the Said William B. became liable to pay & Satisfy the Said John the aforesaid Sum of twenty dollars, when he the Said William Should be thereto afterwards requested; and being So liable, he the Said William, in consideration thereof afterwards, towit, on the Same day & year aforesaid, at Detroit, undertook & faithfully promised the Said John to pay him the Said last mentioned Sum of money, when he the Said William Should be thereto afterwards requested. Yet the Said William not regarding his aforesaid Several promises & undertakings So by him made in his behalf, as aforesaid, but contriving & fraudulently intending craftly and subtilly to deceive and defraud the Said John in this behalf, hath not yet paid the Said John the aforesaid Sum of money, or any part thereof, altho So to do he the Said William was requested by the Said John afterwards towit on the Same day & year aforesaid, and often afterwards, towit, at Detroit aforesaid; but he to do this has hitherto entirely refused, and Still doth refuse to the Said John his damage thirty dollars, and therefore he brings Suit; &c and hath pledges fn° Doe & Richd Roe

E Brush AtN

*232John Watson puts in his place E Brush his atty against William Torrence in the plea aforesaid—

To the above declaration the defendant by Sol. Sibley pleads the general issue non assumpsit. And thereupon issue is joined betwen the parties. Therefore let a jury come who to the Said William and the Said John, are in no wise related, because as well the Said William as the Said John put themselves upon that Jury.

And on the Nineteenth day of august one thousand eight hundred eight the parties come into court by their attornies, and thereupon come a jury for that purpose empannelled and returned by the Marshall, who were elected, tried, and Sworn the truth to Speak upon the issue joined, to wit, James Mitchell, Senior,—Conrad Seek—Robert Kaine—Jacob Smith— Louis Bouree—John Burnett—Abraham Cook—Louis Peltier—Jacob Tuckar—Maurice Moran—Elijah Harrington— and Christopher Hart-sough; who after having heard the evidence & arguments retired from the bar to consult of their verdict, afterwards returned into Court, and upon their oath do Say that they find for the plaintiff to recover of the defendant twenty dollars in damages. Signed John Burnet—foreman.

Whereupon the defendant’s attorney gave notice that he will find his reasons in arrest of verdict and the Court granted Judgment Nisi.

On the twenty Second day of august one thousand eight hundred eight, Solomon Sibley, attorney for the defendant, comes into court and filed the following reasons in arrest of verdict, to wit—

HURON & DETROIT DISTRICT COURT FOR AUGUST TERM 1808.

John Watson vs William B. Torrence

In case on appeal

Be it Known that the Said William Comes into Court on this aad day of august 1808, and files these his reasons for and in arrest of Verdict given in the above case, towit—

Ist Because the plaintiff hath alledged & averred in his declaration that the said William B. Torrence was on the 18th day of January 1808 at Detroit in the territory of Michigan drafted from the militia of the Said territory in obedience to an order from the President of the United States to Serve a tour of duty for three months in the Service of the United States in the infantry Company of Capt John Watson, and that the Said William was duly & regularly inrolled, and mustered in Said Company; all which facts & averments So Set forth by the Said John are material facts and Substance, and ought to have been proved before the court and jury in Support of Said action and issue, which was not done, nor any evidence introduced by Said *233John upon Said trial in Support of Said facts & averments, therefore for as much as Said facts & averments were not proven by the Said John the verdict of the Jury ought to be Set aside and arrested.

2dly—Because the Said John Sets forth in his declaration the consideration upon which the promise of the Said William was made, which consideration So Set forth by the Said John is wholly insuficient in law for the Said John to have and Support his action of assumpsit thereon against the Said William the Same by the Shewing of the Said John being illegal and contrary to the Sound policy of the laws in Such case made & provided, the Said William prays that the verdict given may be Set aside & arrested &c

3d—Because it was not proven before the Jury that the Said John did procure & furnish a legal Substitute to Serve in the place & stead of the Said William in the detachment of Said militia, as alledged by Said John, but Said fact was negatived by the evidence.

4thly Because it was proven that the Said John, after making the promise, as Set forth did revoke & rescind Such promise So made on his part, and thereof did notify the Said William

5thly Because it was not proved that the Said William was ever regularly in-rolled, or mustered in the company of Cap1 John Watson, or that there was at that time or at any other time any Such company in the Service of the Said United States in the territory of Michigan all which ought to have been proven before the court & jury to enable Said John to recover of the Said William.

And lastly—Because Said verdict is against law, and the Sound policy of the law.

Wherefore the Said William for the reasons & causes aforesaid and others appearing prays that the Said verdict by the Jury given in this cause may be arrested, Set aside, and held for nought &c— Sol° Sibley atty August n 1808 for William B Torrence

On the twenty fourth day of august one thousand eight hundred eight— The reasons filed in arrest of Verdict were examined by the court, and considered insufficient; to which opinion of the court the defendant by his attorney excepted, and prayed Such exceptions be recorded; which exceptions were Signed by the Court, and were in the following words, to wit—

Watson v Torrence— The evidence and facts of the case as appeared before the court of the District on trial of this action—

That the Said Torrence was drafted out of the Militia to Serve a tour of duty in the detachment of Militia the last winter, called into actual service Said-to be under the order of the President of the United States. The Said Torrence upon being So drafted applied to Major John Whipple commandant of Said Corps, and offered a young man by the name of Hugh McMahan, as a Substitute to Serve for him Said Torrence the Said tour of duty for *234which he was drafted; Major Whipple refused to accept the Said McMahan as a Substitute for sd Torrence alledging that he was too Small. The Said Torrence then by advice of Robert Smart applied to Lieu1 John Watson, when it was agreed that the Said John Should furnish his apprentice boy William Primrose as a Substitute of Said Torrence to Serve his tour of duty, and that Said Torrence Should give Watson 20 dollars. The sd Torrence upon Such agreement being made went home. Two or three days after Said Watson Sent information to Said Torrence that Major Whipple had refused his boy as a Substitute for Said Torrence, and required Said Torrence to come up join the detachment and draw his rations. The Said Torrence Sent word in reply that he had made a Contract, and that they might Setle amongst themselves, and did not go up in pursuance of Such notification. The Said Watson Sent word a Second time to Said Torrence that the Major would not accept his boy as a Substitute for Said Torrence, and requested him to come to town observing that probably he could arrange with Said Torrence Some other way. The next morning after the agreement was made, Watson Sent his boy to Torrence for the 20 dollars; Torrence observed that he had not then the money, but would Shortly pay it; he Sent again to Tor-rence on the evening of the 18th of January Six days after for the Said twenty dollars; Torrence then told the boy to call on the Morning. No evidence was given that Said Torrence ever was inrolled, or mustered in Said detachment after Watson notified Said Torrence of the Major’s refusal to accept Said Boy as Substitute for Torrence, the Major agreed to the boy being received as a Substitute, upon Watson agreeing to take the boy, as a waiter, and the boy was accordingly mustered and drew the pay which he laid out in purchasing clothing; Watson drew his rations. It was further Sworn that the boy continued to work for Said John Watson at the trade of Taylor as usual during the whole time to the exception of the time his being mustered, which was once in each month, and which was done to enable the boy to draw his pay & rations. It was proved that the boy was raising of 18 years old at this time. The agreement was entered into but was Small[*]. No evidence was introduced before the jury of the existence of the alledged order of the President of the United States ordering the Militia into Service, nor was there any evidence offered to Shew that there was any Company of infantry under the command of Cap£ John Watson in the Said detatchment, but this fact was disproved by the evidence introduced by the plaintiff. The sd Hugh McMahan being questioned Said he believed he was not 18 years old on the 18 of January 1808. Signed in open court (Signed) James Abbott

26th august 1808— Jacob Visger

Peter Audrain elk

*235 John Watson vs William B. Torrence

Judgment

It is considered by the Court that the Said John recover of the Said William twenty dollars for his damages, with Costs of Suit. From which Said judgment the defendant, by Solomon Sibley, his attorney, prays appeal to the Supreme Court, and to him it is allowed on his complying with the law.

I Peter Audrain, clerk of the court of the district of Huron & Detroit, do hereby certify the foregoing to be a true copy from the files in my office. In testimony whereof I have hereunto Set my hand and affixed the Seal of the Said district court, at Detroit the 6th day of September 1808. Peter Audrain clerk.

I certify that a bond is filed with Security for the prosecution of this appeal.

Peter Audrain Clk