
    154.
    May 17th 1828.
    Sup: Court.
    
      Enos Cutler, plff in Error vs John Johnson Deft in Error
    
    Retd & filed in Clks office Nov. 26. 1828
    Cole & Porter attornies for plff in Error.
   Territory of Michigan Supreme Court ss: The United States of America

[SEAL]

To the Honorable the Additional Judge for the Michigan Territory & Judge of our Court commonly called the “Circuit Court of the United States for the County of Michilimackinac” in said Territory of Michigan

Greeting:

Because in the record and proceedings and also in the giving of Judgment in a plaint which was in our said Court, commonly called the “Circuit Court of the United States for the County of Michilimackinac” before you by our writ between John Johnson plaintiff and Enos Cutler defendant, Manifest Error hath intervened to the great damage of the said Enos Cutler, as by his Complaint we are informed— We being willing that the Error if any there be should in due manner be Corrected, and full and 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 said Territory of Michigan, distinctly and openly under your Seal, the record and proceedings of the plaint aforesaid, with all things Concerning the same, and this writ, so that they may have them on the first Monday of December next at the City of Detroit in the said Territory, that, the record and proceedings aforesaid being inspected, we May Cause to be further done thereupon, for Correcting that Error, what of right and according to the law of the land ought to be done—

Witness The Honorable Solomon Sibley Presiding Judge of the Supreme Court aforesaid, at the City of Detroit this seventeenth day of May in the year of our Lord One thousand Eight hundred and twenty Eight, and of the Independence of the United States of America the Fifty Second

John Winder, Clerk'—•

The service of this writ appears by the annexed Schedule J. P. King, Clk. Cir. Co. C. M. Filed July 29th 1828 J. P. King cl’k

[Attached to the foregoing

To the Supreme Court of the Territory of Michigan.

I James D. Doty, the additional Judge for the Michigan Territory in the counties of Michilimackinau, Brown and Crawford, and the Judge of the court “commonly called the circuit court of the United States for the county of Michilmakinau”— do make return to the annexed writ of Error, in form and manner following—that is to say—

The said court has in its possession the record of the pleadings and judgment in the case of John Johnston vs. Enos Cutler, which it is ready to send to the Supreme Court, if, in the opinion of the said Supreme Court upon the following points, the said circuit court is required by law to do so:

First. It is not certified by the clerk, nor in any manner made satisfactorily to appear, that the said writ of error was allowed by either of the Judges of the Supreme Court.

Second. The writ bears date the 17th. day of May 1828, and was issued during the May Term of the Supreme Court, and not in vacation: it should therefore have been allowed by the Supreme court. Revised Laws of Michigan- p. 118 sec. 2.

Third. It does not appear to the said circuit court that the said writ had been served, before the filing thereof with the clerk, upon the defendant in error. Revised Laws of Michigan, page 257 - Sec. 11.—

Fourth.— It is not certified to the said circuit court that security had been given, before the writ issued, in the Supreme Court, to prosecute the said writ as is required by the 3d. Section of the act of Congress entitled “An act to provide for the appointment of an additional Judge for the Michigan Territory, and for other purposes,” approved January 30. 1823.

If this return should be deemed to be insufficient, the said Judge prays that he may have leave to amend the same and make return during the next vacation of the said Circuit court. He begs leave to refer the Supreme Court to his return in the case of Bouthillier vs. McNair, which he has understood was accepted by the said court as sufficient.—

Signed in open court, Makinau July 26. 1828.

James D. Doty

[.Attached to the foregoing

Pleas at Michilimackinac before the Judge of the Circuit Court of the United States for the County of Michilimackinac of the Term of july one thousand eight hundred & twenty seven.

County of Michilimackinac. ss.

John Johnston puts in his place Bailey and Baird his attorneys in a plea of trespass against Enos Cutler Mackinac Ss.

Enos Cutler puts in his place Henry S. Cole, his attorney at the Suit of John Johnston in the plea aforesaid.

Circuit Court of the United States for the County of Michilimackinac

John Johnston aj Enos Cutler J

Action Trespass

Damages $5000. Am‘ Sworn to $1000.

The Clerk of the above Court will please issue a Capias ad Respondendum, returnable at the next term of this Court, and endorse. “This action is brought to recover of the defendant, five thousand dollars for divers trespasses, committed by the defendant in and upon the premises of the Plaintiff in the county aforesaid, and damages having been sworn to, to one thousand dollars; Bail is required in double that sum, according to the Statute —

Mackinac October 25. 1824 Yours &c.

(signed) Bailey & Baird— Plff’s attorneys.

Territory of Michigan 1 County of Michilimackinac]

Ss.

The United States of America,

(L.S.)

To the Sheriff of the County of Michilimackinac, Greeting:

You are hereby commanded to take Enos Cutler if he shall be found in your County, and him safely keep so that you have his body before our Judge of our Circuit Court of the United States for the County of Michili-mackinac, at the Court house in the Borough of Michilimackinac on the third Monday of July next, to answer unto John Johnston in a plea of trespass to his damage, as is said, Five thousand dollars, And have you then there this writ.

Witness the Hon. James D. Doty, Judge of our Said Court at Michilimackinac the twenty fifth day of October one thousand eight hundred and twenty four

(signed) J. P. King, Clerk.

Bailey & Baird, plffs attorneys

Territory of Michigan

Michilimackinac County Ss.

I have the Body,

May 9th 1825 Fees $6.63 (signed) For E. Biddle Sheriff

I. Blanchard Under Sheriff

Michilimackinac Ss

Be it remembered that heretofore, that is to say of the term of july in the year one thousand eight hundred and twenty five, before the Judge aforesaid comes the said John Johnston by Bailey and Baird his Attornies and brought into court his bill against Enos Cutler, being in Custody &c, in a plea of trespass, which said bill follows in these words —

Territory of Michigan, County of Michilimackinac

Ss.

Circuit Court of the United States for the County of Michilimackinac of the Term of July 1825.

Michilimackinac County towit.

John Johnston by Bailey and Baird his Attornies complains of Enos Cutler being in custody &c. For that the said defendant on or before the fourteenth day of December in the year of our Lord one thousand eight hundred and twenty three, and on divers other days and times between that day and the day of the Commencement of this suit, with force and arms &c, towit, at the Saut de Ste Marie in the County of Michilimackinac in the Territory of Michigan and within the jurisdiction of this Court, felled, cut down, prostrated and destroyed the trees towit, one thousand Oaks, one thousand ash trees, one thousand elms and five thousand other trees of the said defendant, of great value, towit of the value of five thousand dollars, then growing and being in and upon the lands belonging to and of which the said plaintiff had the possession, then and there being situate; and took and carried away the same and coverted and disposed thereof to his own use. And also for that the said defendant on the day and year aforesaid, at the place and within the jurisdiction aforesaid, with force and arms &c. the Close of him the said John Johnston, situate at the Saut de Ste Marie aforesaid broke, entered and the grass of him the said Plaintiff then in the said close growing, and utterly destroyed the same, of great value to wit, of the value of five hundred dollars with his feet trod down and consumed. And also for that the said defendant at the time and place aforesaid and within the jurisdiction aforesaid, he the said defendant being then the Commanding officer of the Military Post at the Saut de Ste Marie did order divers subordinate officers and soldiers under his command at the Saut de Ste Marie aforesaid with force and arms to enter the close of him the said plaintiff situate at the place aforesaid; and that said subordinate officers and soldiers, by the orders of him the said defendant, commanding officer as aforesaid did fell, cut down, prostrate and destroy the trees towit. one thousand oaks, one thousand ash trees, one thousand elms and five thousand other trees of the said plaintiff, of great value, to wit, of the value of five thousand dollars, then growing and being in and upon certain lands there situate, and took and carried away the same, and converted and disposed thereof to his the said defendant’s own use. And other wrongs and injuries to the said plaintiff then and there did, against the Peace and dignity of the United States of America, and to the damage of the plaintiff of Five thousand dollars. And therefore he brings suit &c.—■

(signed) Bailey & Baird, attys for Plff

And afterwards towit of the term of July in the year one thousand eight hundred and twenty six, before the Judge aforesaid comes the said Enos Cutler by Henry S. Cole his attorney and defends the force and injury when &c. and says that he is not guilty of the said supposed trespasses above laid to his charge, or any part thereof, in manner and form as the said plaintiff hath above thereof complained against him, and of this the said defendant puts himself on the Country &c.

And for a further plea in this behalf as to the said supposed trespasses in the plaintiffs declaration mentioned, the said defendant by leave of the Court for this purpose first had and obtained, according to the form of the Statute in such cases adopted and provided, says that the said plaintiff ought not to have or maintain his aforesaid action thereof against him, because he says, that at the time the said supposed trespasses, if any, were committed, the said plaintiff had no right, title or interest in or to the supposed close or land whereon the same are alledged to have been committed, but that the right, title or interest in and to the supposed close or land was in some other individual or individuals or in the government of the United States — and not in the said plaintiff. And for a further plea in this behalf with the leave of the Court and by the Statute aforesaid, the said defendant says, that at the time the said alledged trespasses, were committed if any, defendant was commandant of the Military Post at the place aforesaid, and as such was instructed by the Adjutant General of the army of the United States to cut and provide fuel for the troops at that Post from any of the woods and forests adjacent to and within the vicinity of the Post aforesaid: and was further instructed that the alledged claims of the said plaintiff to Land at the place aforesaid were not good and were not confirmed by the government of the United States- Which said several special matters this defendant is ready to verify. Wherefore he prays judgment whether the said plaintiff ought to have or maintain his aforesaid action against him &c.

(signed) H. S. Cole.-att’y for Def’t.

John Johnston os 1 Enos Cutler )

Circuit Court July Term 1826. —

And the said John Johnston plaintiff, as to the said first plea of the said Enos Cutler defendant by him above first above pleaded, wherein the said defendant hath put himself upon the Country for trial, the said plaintiff doth the like.

And as to the second plea of the said defendant by him secondly above pleaded, the said plaintiff saith that by reason of any thing in said plea alledged he ought not to be barred from having and maintaining his said action against the defendant, because protesting the said plea and the matters therein contained are insufficient in law, and that the said plaintiff is in no way bound to answer or traverse the same, for replication saith that the said close in the said declaration mentioned in which &c, now is and at the said several times &c, was the close, soil and freehold of him the said plaintiff and in his possession whereof &c, without this &c, and this the said plaintiff prays may be enquired of by the Country.

And as to the third plea of the said defendant by him thirdly above pleaded the plaintiff saith that the said third plea and the matters therein contained in manner and form as therein stated and set forth are not sufficient in law for the said defendant to have and maintain his aforesaid defence against the action aforesaid of the plaintiff, and that the said plaintiff is not bound by the Law of the land to reply to or answer the same, and this &c. Wherefore he prays judgment &c, for want of a sufficient plea in this behalf &c. And the said John Johnston in his behalf in his stead and place puts

Bailey & Baird his attornies

Enos Cutler ads ) John Johnston )

Cir. Court. Of the Term of July 1826

And the said Enos Cutler as to the said replication of the said Johnston to the said second plea of the said Enos Cutler and which the said John Johnston prays may be enquired of by the Country doth the like.

And as to the said third plea by him the said Enos Cutler thirdly above pleaded he says that the same and the matters therein contained in manner and form as they are above pleaded and set forth are sufficient in law to bar and preclude the said Johnston from having or maintaining his aforesaid action thereof against him, and that he the said Enos Cutler is ready to verify and prove the same when, where and in such manner as the said court here shall direct and award. Wherefore inasmuch as the said Johnston hath not answered the said plea nor hitherto in any manner denied the same the said Enos Cutler prays judgment, and that the said Johnston may be barred from having or maintaining his aforesaid action thereof against him &c.

(signed) H. S. Cole, his Attorney

And now at this day that is to say at this present term before the Judge aforesaid, comes the parties aforesaid, by their Attornies aforesaid; And hereupon, the premises being seen, and by the Judge here fully understood, it seems to the said Judge that the plea of the said Enos in bar by him thirdly pleaded, and the matter in the same plea contained are not sufficient in law to preclude the said John Johnston from having thereof his action aforesaid, as the said John hath above thereof alledged, and that the said declaration of the said John, and the matter in the same declaration thereof contained are sufficient in law to maintain the said John to have thereof his action aforesaid against the said Enos, as the said John hath above thereof alledged, Wherefore &c, But because &c, Therefore let there come a Jury thereof before the Judge aforesaid. By whom &c, And who neither &c, To recognize &c, Because as well &c. The same time is given here to the parties &c. And the Jurors of the Jury being summoned towit, Ambrose R. Davenport, William Lewis, John Whelen, William Sylvester, Antoine Dequindre, Thomas Guthrie, Jonas A. Stone, Jesse Muncey, Samuel Abbott, Nicholas Whitinger, William Mitchell and John Laird come, who to speak the truth of the matters aforesaid, being chosen, tried and sworn say upon their oaths that the said Enos Cutler did commit the said several Trespasses in manner and form as the said John Johnston hath above thereof complained against him. And they assess the damages of the said John Johnston by reason of the premises, over and above his costs and charges, by him about his suit in this behalf expended to Eight hundred dollars, and for those costs and Charges to One hundred and eighty jour dollars and eighty eight cents Therefore it is considered that the said John Johnston do recover against the said Enos Cutler his said damages, Costs and Charges, by the Jurors aforesaid, in form aforesaid assessed, by the Court now here adjudged to the said John Johnston, and with his assent: Which said damages, costs and charges amount in the whole to nine hundred and eighty four dollars and Eighty Eight cents. And the said Enos Cutler in mercy &c,

Examined and signed by order of the Court, July Term A.D. 1828.

(signed) J. P. King, Clerk

Territory of Michigan County of Michilimackinac

Ss.

I hereby certify that the foregoing is a true Copy from the Judgment Record of the Circuit Court of the United States for the County of Michilimackinac, in the foregoing Entitled cause—

In witness whereof I have hereunto set my hand and affixed the seal of the said Court at the Borough of Michilimackinac the 13th day of November A D, 1828

J. P. King, clerk  