Hugh Pattinson & Co vs Joseph Bailly, 2 Blume Sup. Ct. Trans. 65

Territory of Michigan, in the supreme court of the territory of THE TERM OF SEPTEMBER IN THE YEAR OF OUR LORD l8o6 Joseph Bailly was attached to answer unto Hugh Pattinson & Richard Pattinson merchants & C° at St Josephs towit at Detroit in the Territory aforesaid and within the Jurisdiction of this Court under the firm of Hugh Pattinson & C° in a plea of trespass on the Case whereupon the said Hugh Pattinson & C° by E Brush their attorney complain for that whereas the said Joseph on the twelfth day of June in the year of our Lord one thousand eight hundred and six at St Josephs towit at Detroit aforesaid made his certain note in writing commonly called a promisory note his own proper hand writing being thereunto subscribed having date the same day & year aforesaid and then and there delivered said note to the said Hugh Pattinson & C° and thereby promised in the course of July next (meaning July next ensuing the date of said note) to pay to the order of Messrs Hugh Pattinson & C° the sum of two hundred pounds New York currency equal in value to five hundred dollars currency of the United States for value recd by him the said Joseph by reason whereof the said Joseph became liable to pay the said Hugh Pattinson & C° the sd sum of money contained in said note according to the tenor and effect of said note and being so liable he the said Joseph in consideration thereof afterwards towit on the same day and year aforesaid at St Josephs towit at Detroit aforesaid undertook undertook and faithfully promised the said Hugh Pattinson & C° to pay them the said sum of money contained in said note according to the tenor and effect of said note.

And whereas the said Joseph on the same day and year aforesaid at St Josephs towit at Detroit aforesaid was indebted to the said Hugh Pattinson and Compy in other sum of six hundred dollars lawful money of the United States for money by the said Joseph before that time had and recd to and for the use of the said Hugh Pattinson & C° and being so indebted he the said Joseph in consideration thereof then and there undertook and faithfully promised the said Hugh Pattinson & C° to pay them the said last mentioned sum of money when he the said Joseph should be thereto afterwards requested.

Yet the said Joseph not regarding his aforesaid several promises and undertakings so by him made in his behalf as aforesaid but contriving and fraudulently intending craftily and subtally to deceive and defraud the said Hugh Pattinson & C° in this behalf hath not as yet paid the said Hugh Pattinson & C° the said several sums of money or any part thereof altho so to do he the said Joseph was requested by the said Hugh Pattinson & C° afterwards towit on the same day and year aforesaid at St Josephs towit at Detroit aforesaid but he to pay the same hath hitherto entirely refused and still doth refuse to the damag of the said Hugh Pattinson & C° as they say one thousand dollars and thereof to recover the same with costs &c they Bring suit &c and have pledges towit E Brush Atty Jn° Doe & Richd Roe Territory of Michigan ss Hugh Pattinson & C° put in their place E Brush their atty agfc Joseph Bailly in the Plea aforesaid Pierre Rosseau affidavit filed in Court Peter Audrain elk [Case 17, Paper 4] Hugh Pattinson & Co vs Joseph Bailly in case In the Supreme Court for Michigan Territory Be it remembered that personally appeared before me Stanley Griswold Esqr one of the Justices of the territory of Michigan Pierre Rosseau who being duly sworn deposeth and saith, that on or about the 24th of July AD 1807, he did make service of a subpoena, upon Jean Germain at a place upon the St.

Josephs’ River in the Territory of Michigan, which subpoena required the said Jean Germain to appear in the Supreme Court for said Territory of Michigan at Detroit on the third Monday of September AD Í807, to testify and give evidence, in a cause pending in said Court which Hugh Pattinson & Co were Plaintiffs and Joseph Bailly defendant The Deponent further saith that at the time he served the said Jean Germain, with such writ of subpoena, the said Jean Germain observed to the deponent that he would attend the said court in obedience of said writ and the deponent further saith, that about the tenth day of Instant September he again saw the said Jean Germain at the said St.

Josephs River at the same place, when the said Jean Germain observed to the deponent, that he would leave said place for Detroit in the course of five or six days, if he should be able observing to the deponent that he plainly saw that it would be impossible for him the said Jean Germain in his then present situation to go to Detroit, with his sore foot, which the Deponent there saw & which appeared to the Deponent to be very bad, and such as would prevent the said Jean Germain from attending on said trial unless he recovered of such sore or lameness.

And the deponent further saith that he has heard the said Jean Germain say that some time in February 1806, he the said Jean, was with Mr Joseph Bailly defendant aforesaid, upon said St. Josephs river at the house or stand of one Pierre Prejean & Antoine Laforune, traders in partnership and supplied with goods by sd Joseph Bailly.

That at that time the said Joseph Bailly and the said Lafortune & Prejean came to a settlement when they were found much indebted to the said Joseph Bailly—and further that said Lafortune & Prejean did in his presence deliver over and pay said Bailly, all the peltries and furs they had on hand in part satisfaction of said Debt, and that said Bailly after receiving said peltries & furs, left them in the house or stand of said Lafortune & Prejean until such time as he should have an opportunity to send for and bring them away.

The sd Prejean & Lafortune agreeing that the sd Peltries & furs might remain in their house till an opportunity offered to send for them.

And further the deponent saith that he has heard the said Jean Germain say, that he well knew that the peltries which Lafortune delivered to Mr Lamote one of Mr Hugh Pattinson & Co clerks or Engagees, & which came into Mr Ducharmes possession & which M* Bailly afterwards gave a note to Messrs Hugh Pattinson & Co to redeem were the same peltries & furs which Messrs Lafortune & Prejean sold and delivered to Mr Bailly as above stated—and further saith not— P Rousseau Sworn and subscribed before me at Detroit this 23d day of Sepr AD. 1807— Stanley Griswold J. P. T.

M. affidavit of Sol Sibley. filed. [Case 17, Paper 5] IN THE SUPREME COURT FOR THE TERRITORY OF MICHIGAN Hugh Pattinson £5? Co os Joseph Bailly in Case— Be it remembered that personally appeared in open Court this 24th day of September AD. 1807—Sol.

Sibley Atty at Law and Attorney for the DeP Joseph Bailly, in the above action, who being duly sworn saith, that by the instructions and advice, disclosed to the Deponent by the Defendant, of the merits of the defense, which the Defendant will set up on trial of this cause, & which defense if supported by evidence the deponent verily believes, will defeat a recovery of damages by the Pltffs, against the Defendant —that the Defendant, cannot with safety go on to trial in the above cause, without the Testimony of Jean Germain, whom the said Deponent hath been informed & verily believes is a material Witness for the sd Defendant and now absent—And the Deponent further saith, that he verily believes, the DeP has used due diligence to procure the attendance of sd Germain in Court at this time by causing him to be subpoenad for that purpose and further that the only reason of the non-attendance of said Jean Germain, in Court according to the command of such subpoena served on him at the present term of this Court, was & is an inability arising from a sore foot lameness, or some other unavoidable accident of the same nature—And further the Deponent saith that from information he has received, he has reason to believe and doth verily believe that the Defendant will be able at the next term of this Court to procure the attendance of the said Jean Germain, sickness or other disabling accident excepted.

And further the deponent saith not. Sol. Sibley Jos. Baillys Note to H Pattenson & C [Case 17, Paper 8] Dans Le Cours de juilliets prochains je payeray a L’ordre de Messieurs Hugh Pattenson & Co. La Somme de deux Cents ponte Courrent de La Nouvelle York pour valleur Recu au pau [?] a vach Le iad juin 1806 pour Antoine Lafortune Jos Bailly Joachim Lamotte temoins Francis Ducharme as a witness [In the handwriting of Joseph Bailly] Translation Mr Sol. Sibley River S6 Joseph 5th march 1807 Sir In order to give you an idea of the proceedings of Mrs H.

Pattinson & C° against me which I have requested you to defend—I will begin by informing you that from the 20th may 1805 to the 3d april last, I have advanced goods to the amount of 15. thousand livres ancient Shillings of Quebec to the named Antoine Lafortune, and Pierre Prejan, who formed a copartnership to winter on the head waters of River S* Joseph. In the Course of the Summer Pierre Prejan left his partners and went to river Raisins where he married the Widow of the late Joseph May, and afterwards returned to his partner, and they Spent together the remainder of the Winter.

In the Course of March Antoine Lafortune came to me with Jean Germain his clerk, and made great Complaints of his partner, observing to me that there was already a great defiency in their affairs, and that he had come to fetch me to deliver me what remained, as everything was going to the devil; this linguage was held to me in the presence of Francois Monts, my clerk, upon this information of Lafortune I went to their house, and after a little quarrell betwen them and me respecting the deficiency in their affairs, which was one half, they at last of their own accord delivered me what pdteries they had; this was done in the presence of their clerk Jean Germain and of Joseph Cornoilliez their engage.

As to the goods remaining on hand the quantity was So trifling that I did not think necessary to take an inventory.

I left them with them that they might try to dispose of them—I caused the pelteries to be made in packs by Cornoilliez and S* Germain, and had the packs placed in their Storehouse observing that I Supposed they would Consider those packs as my property, as they had just now delivered them to me, I at the Same time told them that my affairs did not permit me to Send for them before a certain time, and besides that I did not believe Capable of disposing of pelteries which did belong to them no longer; and we parted good friends; I returned home from whence I went to the Illinois where my business called me.

By the information which A. Lafortune had given me of his affairs the year before, that he was indebted to Messrs H. Pattinson & C° for a ballance of accounts of £68—newyk Cy agreable to the accf presented by those Gentlemen and his own accounts against them; but the late circumstances Shew that those Gentlemen exacted the whole amount of their account which amounted to £123—newyk Cy and that they refused to pay the account of Lafortune.

During my Stay at the Illinois the Said lafortune came to my house upon a visit, and went afterwards to pay a visit to Monsr Ducharme as the Representative of Messrs Pattinson, and according to what Lafortune has told me Since, he was arrested in the house of the Said Descharmes by the named Lamotte who in all appearance acted as a Constable, by virtue of a bad writ or a good one; I do not know whether the Said Lamotte was authorized to Serve, as a constable; there is no magistrate in the place before whom he might have been Sworn, for I must observe that this Lamotte was but a Simple Engagée of Ducharme; Seeing himself arrested, not Knowing for what, fear overcome him, and he asked them for what Sum he was arrested to which Mr Ducharme answered that it was for £123 newyk Cy and that with the costs of the writ, it might amount to £200: that if he could pay that Sum, he would let him go, if not, he would have him conducted to Detroit and have him imprisoned for Seven years, and that the Costs would be So high that he never would be able to pay; that it would be more to his interest to try to make payment immediately, because if he Suffered himself to be taken to Detroit, he would be Sued there for a fine of one thousand dollars because he could prove that he had infringed the laws of the indian trade.

In Short they Said So much to him that this man being Simple and ignorant felt half dead; he told Ducharme and Lamote that he had nothing and Knew of no means to pay them, but that if they would wait untill I returned that he would endeavour to make Some arrangements with me to Satisfy them, whereupon they told him that they would admit of no delay, that all he could do for him was that if he would give him ten of the best packs which he had in his Storehouse untill I returned, he would let him go free, if not, he was going to Send him immediately to Detroit; on this demand Lafortune represented his Situation, but at last their threats Compelled him to Consent; he give his word that he would deliver the ten packs; it was agreed that no person in my family Should Know it; that Lafortune Should go back by land, quick, and Lamotte, with others of Ducharme’s men would go up up in a pyrogue by water, as quick as possible; that at this time his partner Prejan as well as his two men were on a voyage and that Mrs Prejan was Keeping house alone, and that it would not be difficult to take the ten packs; It was also agreed that Lamotte Should arrest again Lafortune in the presence of Mrs Prejan with a view to frighten her and to facilitate the delivery of the ten packs; and that was exactly executed; but when they came to the delivery of the packs, Mrs Prejan attempted to prevent it, and being obliged to yield to the Strength of the men She fell a crying, She Represented to Lamotte and his followers that the packs were not more the property of Lafortune than of her husband as they were partners, but they were my property as having been given me in payment, and that he was only the guardian of them, but notwithstanding all this they carried them away.

Few days after Prejan arrived, was Surprised and Chagrined with this affair, went to Ducharme and represented the Case in its true light; but Ducharme made no other answer than this, to wit that on the payment of £200 the packs would be restored and not otherwise. Monsr Boucherville, one of my Clerks, Returning from the Wabash, being informed of this affair, called on Mr Ducharme to whom he represented that the packs delivered by Lafortune were my property he received the Same answer as Prejan had Received few days before.

Sometimes after I arrived from the Illinois and was informed of all this, but I did not Speak of it to Mr Ducharme being well persuaded that he would not return me the packs. Few days after Prejan & Lafortune arrived; Lafortune informed me how they had frightened him to make him deliver the packs in question, but that he had delivered them as Security that he would Setle with them on my arrival. I told Lafortune to go to Ducharme’s and demand his account in detail, he went, and the account was refused by Ducharme who Said that no account was necessary, and that on receiving £200—he would deliver the packs.

I Send Lafortune back again to tell him (Ducharme) that a merchant was obliged to furnish an account, and that he insisted on one; he was again refused.

After all these Steps taken in vain, I called Lafortune into my chamber and in the presence of Pierre Boucherville, Pierre Rousseau, Pierre Prejan, Francois Monts, and Benoit Bender, I told him that I, reason to believe that he was an impostor in telling me that he had given my packs as Security that he would Setle with them on my arrival, but on the Contrary it appeared that he had Sold them to pay his debts; I then asked him what he intended to do, if he was to abandon them there, or redeem them, and whether he was of opinion to give £200—to Mr Ducharme to redeem my packs, to which he answered me that if I was of opinion that the ten packs were of a greater value, he would give them; I answered him that I Supposed they were; I then told him, “y°u must pass your note to him and I will write it for you and in your name, if you think proper”, he answered me that I would do him pleasure if I would arrange that for him.

I wrote the note, Signed it for him, and in the presence of all the witnesses mentioned, and he found it right. I wrote it to the order of Lamotte, as he appeared to have the packs in his hands; I believe I wrote it in a good form, excepting that I haved Signed it thus—viz for Antoine Lafortune Jos. Bailly And afterwards I told him to go to Mr Ducharme, what he did; but the latter told him that the note was very good, but that he wished it to have been made to the order of Mr Pattinson, and would have been glad to have Seen me Sign.

Lafortune Came back and told me all these particulars, after having consulted on this affair, I went with Lafortune, Pierre Boucherville, and Pierre Prejan, I took the two last as Witnesses of what I was going to do. I went to Ducharme and Lamotte; after few moments Conversation, I told Ducharme to give me paper and ink, as Lafortune had told me that he (Ducharme) required that his note be to the order of Messrs Pattinson, and wished to See me Sign, and that I was going to write another, he answered yes.

I took the pen, wrote another note agreable to his wishes, but I Signed it as the first; I read it in a loud voice, and asked Lafortune if he consented to it, to which he answered yes; I afterwards delivered the note to Ducharme & Lamotte who found it Right; I believe Lamotte Signed it as a Witness; I immediately left the house without waiting for any further questions, and in going I told Lafortune to have my packs out.

I have to observe that if Mr Brush establishes his declaration upon the principle that having been accused to have been Security for Lafortune to Ducharme & Lamotte I have fraudulently written the note in taking advantage of their ignorance, all this is false as I have had no conversation whatever on this Subject with the Said Ducharme and Lamotte, even when I was at their house, this affair never was in question.

On my Return to my house I observed to Lafortune in presence of the Same Witnesses that it would be proper that he Should give me a paper to prove that he had authorised me to write the note for him and in his name to Ducharme & Lamotte to the order of Messrs Pattinson that I demand this for my Safety; he made no objection t it was drawn by Mr Boucherville who read it to him a or 3 times, and had it Signed in presence of Witnesses. It is the full power I Send you by Mr Bender. I do not know what witnesses necessary in this affair nor the manner to oblige them to attend the Court.

You see that Jean Germain may testify that Lafortune came for me to go and take possession of what he had in his hands, he may also together with Cornoilliez prove that Lafortune & Prejan with their mutual Consent have delivered me the packs, that'they themselves have made up the packs by my order and have afterwards placed them in their Storehouse, and that it was well understood that the packs were my property.

As to what passed betwen Ducharme & Lamotte, and Lafortune, all has been reported to me by Lafortune I want to know if Lafortune can be admitted as a Witness, as well as Ducharme—Lamotte is out of the Country what passed when the packs were delivered by Lafortune to Lamotte Mrs Prejean may testify. As to the different things which have passed betwen Lafortune and me for the recovery of my packs the Witnesses are Pierre Boucherville—Pierre Prejan—Pierre Rousseau, Francois Monts, and Benoit Bender.

As to the note I have written, I have considered myself responsible for payment, because in that business I have acted only as an agent for the Said Antoine Lafortune, further Boucherville and Prejan may testify that when I wrote it in presence of Ducharme & Lamotte, there was no question whatever that I was making myself responsible for payment. Those are, Sir, the Witnesses I have to produce—Germain, Cournoilliez— Boucherville Rousseau—Prejean & his wife, Francois Monts—Francois Tetro dit Ducharme—Lafortune Bender and Lamotte are out of the Country. Ducharme, Lafortune & Jean Germain are here.

Rousseau, Boucherville—Monts, Prejan & Wife, will be in June & July at McKinac and I will take them with me to Detroit in the beginning of September. if you Send me Subpoenas for river S1 Josh or for McKinac, I will See them Served Your &c Jos. B. March 5 1807 *Note: Original from which translation was made reads: “Pour le BilÜet que Jay passé je nay Jamais Cons-sidéré me Rendu Coupable de le payer....” [In the handwriting of Elijah Brush] {In the handwriting of Solomon Sibley] [In the handwriting of Solomon Sibley] [In the handwriting of Peter Audrain] [Sibley Papers, Vol. 24 (932), mss.

Burton Historical Collection, Public Library, Detroit]