
    1822
    27.
    
      John S. Robey vs John L. Leib.
    
    filed in the Clerks office May 25th 1822
    M Dorr Clk
   John S. Robey vs John L. Leib:

Action the Case for goods wares & Merchandise & Money lent & advanced & laid out & Expended. Before Justice Abbott in the City of Detroit & County of Wayne. — PlfFs demand $>84.46^2

John S. Robey being duly Sworn, deposeth & saith that on the twenty seventh day of February last he commenced An Action by summons against John L Leib Defendant named in the Above entitled Suit — to which the DeP appeared — & which was adjourned & continued by Justice Abbott & by Consent, several times, till the second day of April last, when both this deponent and the Sd DeP appeared before the Sd Justice aforesaid, and this deponent exhibited An AcP for Sundry goods — wares & Merchandise sold sd DeP & also for Money lent — amounting to Eighty four Dollars forty six & Cents which Am1 he claimed to recover of the said DeP — that the sd DeP to this demand plead the Gen1 issue of Non assumpsit — & claimed & filed an offset Amounting to One hundred dollars — & demanded Jud1 of the Court in his favor for the ballance. Whereupon the sd parties went to trial — And on the trial, the whole of this Deponents Account was proved and admitted, except an Error of two Shillings — That the said DeP then stated that his sett-off of One hundred dollars was the Amount of a fee to that Amount, which he said this deponent Contracted & promised to give him On condition he would Engage as a Counsellor & attorney to assist the Atty Gen1 of this Territory in the prosecution of Henry Hudson then expected to be indicted before the County Court of the County of Wayne, that in support of this set off the Defendant produced to the Court a Small Memorandum Book — in which was an Entry of a Memorandum by the Def* of his being on a certain day employed by this Deponent in the case of an indictment against Henry Hudson as aforesaid and the sum of one hundred dollars put opposite the Same as the amount of his fee in sd Case. — Which Book was allowed to be shown & Read in Evidence, by Consent of this Deponent he agreeing that it might go for what it was worth, but at the same time contending that it was not sufficent Evidence to prove a contract made by him. — And further that in Support of the sd Deft’s Sett off, he produced John McDonnell — Rob* Smart — H. P. Brevoort — Richd Smith — and Mary Hudson as witnesses who were all sworn on his behalf. — And this deponent further saith that to the best of his Reccollection & belief — the Amount of the testimony of Mary Hudson went to show that she called on Judge Leib the Def* on the Same day that he told her he had been employed by a certain gentleman to assist in prosecuting Henry Hudson — for the purpose of retaining him to assist in the defence of the Sd Hudson, And that she would have given him a much larger sum than One hundred dollars — but that the sd Leib told her, he had been employed by some gentleman to assist in the prosecution & therefore could not be retained by her on behalf of her husband. — And further that the Amount of the testimony of all the other witnesses above named went generally to show, by certain Conversations had by this Deponent — in their presence principally in the grand jury Room —• (when they were members of the Grand jury that found indictments against the Sd Henry Hudson) and Els-where, that they had understood from such conversations that this deponent was — to give —- (as some of the sd witnesses thought) or to procure (as others understood) the Sum of fifty dollars to the Sd Leib, as a fee for assisting in drawing the indictments against the Sd Hudson & assisting in the prosecution thereof before the sd County Court — and that some of the sd witnesses also had understood in said Conversations that the sd Deponent was also to procure by subscribtion other fifty dollars for the Sd Leib — on the Condition aforesaid ■—■ but that not one of the sd witnesses stated on Sd trial that —• this deponent was to give, himself, more than fifty dollars. And further that this deponent, not Knowing the Nature and extent of the Sd Sett off Nor the testimony that was to be produced in support of it — was not prepared to Rebut the same — But being Confident from the testimony given on the trial, that No more than fifty dollars of the sd Sett off would be allowed by the sd Justice, he intended to appeal the case to the county Court where he believed he should be able to produce such testimony as would entirely set asside the Sett off claimed by Sd Defendant.

But further this Deponent States that the sd Justice Abbott after the Examination of the Said witnesses, informed the parties that he should hold the case under advisement for two days untill the fourth day of April present — when he would give judgment — And that before the Sd time for giving Jud1 at the request of the Sd Defendant, the said Justice did send for One of the Sd witnesses, Ricd Smith, — and examined him again without the Knowledge or consent of this Deponant and without his or his counsel’s being present on such examination. —And that on the evidence given on Sd Second examination — the sd Justice, (as this deponent has been informed by the sd Justice himself & verily believes) was induced to change his opinion, as before made up from the Evidence given on the trial, — And to Allow the Defts offset at One hundred dollars instead of fifty dollars — And that the sd Justice did accordingly give judg* against this Deponent And in favor of the Sd Defendant for the sum of fifteen dollars and fifty three & one half cents

And this Deponant further States that on the sd trial he did contend that the Sd Defendant had never given any assistance in drawing the Sd Indictments against the Sd Henry Hudson or in prosecuting the said Henry Hudson on the sd indictments when drawn — All which was admitted by the Sd Defendant on the Sd trial.

And this deponent further States that after the Rendition of Sd Jud1 and within the time limited by the Statute, he did claim an appeal to the county court from Sd Jud1 which at that time was granted and allowed by Sd Justice and Security for the appeal was produced and entered on the Docket of the sd Justice but on the next day after, the sd Justice, considering that the appeal was not Allowable by law — inasmuch as the sd Jud1 was rendered for a less sum than twenty dollars — altho’ the amount in contest between the parties was One hundred dollars. — And further that this deponent did contend before the sd Justice that he was entitled to an appeal from the Sd Justice — and that the question whether the Law would sanction the appeal ought to be left by the sd Justice to be decided by the County Court on the sd appeal’s being brought before them — that the sd Justice, nevertheless did peremptorily refuse to grant the Appeal — thinking himself bound so to do by the Statute. — And further this Deponent saith not Sworn and subscribed John S Roby

before me this 25th April 1822.

Thomas Rowland

Justice of the peace

[.Attached to the foregoing(]

John S. Robey, being duly sworn, deposeth and saith, that, in the Affidavit made by this deponent in a case between this Deponent and John L. Leib — & to which Affidavit this is supplementary and attached, the word “last” — as written after the word “April,” — on the first page of Sd Affidavit was an error in writing — that the Sd month of April mentioned in Sd Affidavit, and the time intended to be Reffered to thereby, was the Month of April of this present year, to wit, the year of our Lord One thousand Eight hundred and twenty two. And was the same month as is mentioned in the second page of Sd affidavit by the words “April present.” — And further this deponent Saith that the time at which the claim for an appeal was made, as mentioned on the third page of said affidavit was on the fourth of the Sd Month of April then present & now past, and that the time when the security was presented & entered on the docket of the Sd Justice was the fifth day of the Sd month of April — And that the time mentioned in Sd affidavit as being the “next day after” — the Entering of the Sd Security on the Docket of the Sd Justice for the appeal he had granted was on the sixth day of the month of April — on which sd sixth day of April it was that the said Justice decided that he could not allow the Appeal — And further that it was on the same sixth day of April immediately after Sd Justice had decided that he could not allow the appeal that this deponent gave notice that he should apply for a certiorari

And further this Deponent saith not

John S Roby

Sworn to and subscribed before me this 9th day of May A.D. 1822.

Thomas Rowland Justice of the peace

Michigan, to wit;

The supplemental affidavit, which I deem perfectly admissible, having identified the day, on which the appeal was claimed, granted, and allowed, to have been the fourth day of April, one thousand eight hundred twenty two, and the security having been taken on the fifth day of the same month, the judgment, thereby, became, for the time being, vacated; and if reinstated on the sixth, as the original affidavit, perhaps, means to state, or whether on the fifth, or, by relation back, on the fourth, still leaves the appellant virtually and fairly within the twenty days allowed by the law for making the affidavit; and, being satisfied that there is reasonable cause therefor, a certiorari is allowed as prayed for.

Woodward, Judge.

Mon. May 13. 1822. 
      [The allocatur is in the handwriting of Augustus B. Woodward]
     