Espy, Hugh vs Hugh McCalley

Espey, Esby, Hugh vs Hugh McCally, McCalla

Description:	A precipe is filed for malicious prosecution. A summons is issued for all witnesses summoned to appeared at Clark County and direct the subpoenas accordingly. Also subpoenas of Isaac Shelby, Clerk of Clark County are to be brought to the office of D. Floyd, P. Q. on an indictment against Hugh Espy for horse stealing. The subpoenas were acted on June 19, 1815 and witnessed by R. Buntin, Clerk for Marston J. Clark who was to give evidence for Hugh Espy, plaintiff on a pea of trespass. Cost to serve is listed at $5.74. The case and all the papers ordered are to be transferred from Clark County to Knox County to be tried by jury of that county on June 30, 1815. The following papers were lodged with the Clerk of Circuit Court of said County of Knox, the original writ, the declaration, an affidavit and 4 subpoenas. A subpoena for Isaac Shelby, Esq. Clerk of Circuit Court of Clark County is to appear before the judges of Circuit Court held at Vincennes the first Monday of October next. He is to bring a certain record and proceedings and all things touching and concerning the records of his office as a certain indictment against Hugh Esby for horse stealing. On the 5th day of said term he is to testify and show all things he knows on said records concerning certain actions with Hugh Espy as plaintiff and Hugh McCalley as defendant on a pea of trespass in the case of malicious prosecution. If Isaac Shelby fails to appear the penalty will be $500. R. Buntin, signs as Clerk on July 26, 1815 with cost of execution by John Weathers, Sheriff of Clark County being $7.45. Two other copies of the same subpoena are included in the file. An agreement of parties is filed. They agree that on the trial the defendant would not object to the records for the want of proof that Isaac Shelby is Clerk of Clark County and no objections to be made to the said records and no objections on wording in the account as the words in it or dates are entered in due form and general goal delivery. Witnessed by Davis Floyd for Espy and G. W. Johnston P. D. A subpoena from Washington County is issued for Marston J. Clark to come to court on the first Monday of October to give evidence on behalf of Hugh Espy, plaintiff. A $100 penalty will be applied for nonappearance. The summons was filed June 19, 1815 by R. Buntin, Clerk of Circuit Court Knox County with $5.74 listed as cost to serve. A subpoena from Clark County is issued for John Clyne Sr. He is to appear the first Monday of October next to give evidence for Hugh McCally. A $500 penalty will be applied for nonappearance. The subpoena is dated August 7, 1815 and signed by R. Buntin, Clerk with $6.34 charged for cost to serve. The subpoena was served by John Hurst, Sheriff. A subpoena for Clark County is filed for John Cleghorn, Lucius Kibby, George Spalding, Nelson Rosewell, William Brenton, and William Prather. They are to appear the 1st Monday of October to give evidence on behalf of Hugh McCally. A $500 penalty will be applied for nonappearance. The subpoena is dated August 7, 1815 and witnessed by R. Buntin, Clerk. A $8.70 fee for service and mileage where charged per Jonathan Weathers, Sheriff of Clark County. A plea is filed in the Knox Circuit Court for malicious prosecution by the defendants attorney H. Hurst. His attorney comes and defends himself and says he is not guilty as plaintiff has complained and puts himself upon the country and plaintiff does the same. The plea is signed August 14, 1815 by H. Hurst P. D. and Buckner and Floyd P. Q. A summons is issued from Clark County for Thomas McNaught, Rezin Redman, Bazil Prather Jr., and Joseph Bartholomew. They are to appear in Circuit Court the second Monday of October on the 5th day of term to give evidence on behalf of Hugh Espy, plaintiff against Hugh McCalley, defendant on a plea of trespass. A $500 penalty will be applied for failure to appear. The subpoena is witnessed on August 17, 1815 by R. Buntin, Clerk with a charge of $8.20 for cost to serve and mileage per Jonathan Weathers, Sheriff of Clark County. A summons from Clark county is issued for Joseph Kerr, Jehu H. Baldwin, Joseph Stillwell and John Work Sr. They are to appear the second Monday of October next the 5th day of term. They are to give evidence on behalf of Hugh Espy, plaintiff against Hugh McCalley, defendant. A $500 penalty will be applied for nonappearance. The summons is witnessed August 17, 1815 by R. Buntin, Clerk with execution by Jonathan Weathers, Sheriff of Clark County. Cost to serve being $7.95. The summons was executed on all but Joseph Stillwell as he was not found in the bailiwick. A summons from Clark County is issued for Willis Goodwin, Samuel McCalley and William K. Richey. They are to appear the second Monday of October the 5th day of term to give evidence for Hugh Esby against Hugh McCalley on a plea of trespass. The summons is dated August 17, 1815 and witnessed by R. Buntin, Clerk of Circuit Court of Knox County with cost to serve per John Weathers, Sheriff being $7.95. A summons is issued from Clark County for David Spangler and Moses Wheaton. They are to come to court at Vincennes the first Monday of October to give evidence on behalf of Hugh McCauley. A $500 penalty will be applied for non appearance. The summons is dated September 18, 1815 with cost of service and mileage being $7.70 per John Weathers, Sheriff of Clark County. A plea form Knox County is filed before Isaac Blackford Esq. Presiding Judge, Daniel Sullivan and James McCall Associate Judges for Knox Count during the October 1815 Term. The case is removed from Clark County for change of venue. At the end of the adjournment of September Term, Clark County, Hugh Espy sued out of Court of Common Pleas of Clark County his certain writ of capias commonly called a capias ad respondeum against Hugh McCalley for trespass on the case for $5000 in damages. A subpoena from Knox County is filed for Benjamin Parke, Esq. to appear in court before the Court of Knox County this instant to give evidence on behalf of Hugh McCalley on suit of Hugh Espey on trespass. A $500 for non appearance will be applied. The subpoena is dated October 6, 1815 and witnessed by R. Buntin, Clerk of Knox County. A Rule of Northwest Territory Knox County for change of venue is filed for these reasons: 1. misbehavior in the plaintiff and jury, 2. misconduct in court, 3. verdict contrary to evidence, 4. verdict contrary to law, 5. excessive damages were jury acted improper in making up their verdict by calculation with additions and decisions as a verdict found in such a manner that is illegal. On a change of venue application on the case of Clark County was filed and it does not appear the case was ordered to Knox County by noted judges as law directs. The case stands on a writ of inquiry and defendant can have no control over the case until he has pleaded. The papers are not lodged in due time with the clerk of this county. The law has not been pursued in the removal of the case but the removal is in formal and erroneous. The change of venue is signed by Buckner P. Q. During the trial the cause by the plaintiff is offered in evidence to the jury and the following copy of record which was objected to by defendants council for the following reasons: A copy of the Knox County record does not appear to be such an examined and approved copy as to authorized the court in admitting evidence, the record. The evidence provided differs in the date from the plaintiffs declaration in this that the declaration states the indictment to have been found in the cases of Common Pleas for Clark County on September 1813. Where as record states it is to be found September 27, 1813. Third it does not appear that the court before which the trail was had ever granted the plaintiff a copy of the records of acquittal. After argument the court overruled the objection and admitted the said records in evidence to which opinion the council for the defendant excepts and prays that this his bill of exceptions should be figured, sealed and made a part of the record in this cause. The document is signed by Isaac Blackford and J. B. McCall. Upon motion plea was withdrawn and the suit dismissed and verdict is set aside. The plaintiff is to receive the costs and charges.
Origin:	2019-02-06
Created By:	Indiana Territory. Circuit Court (Knox County);
Contributor(s):	Blackford, Isaac; McCall, James; Park, Benjamin; Sullivan, Daniel;
Source:	http://indianamemory.contentdm.oclc.org/cdm/ref/collection/ving/id/27682
Collection:	Early Vincennes, 1732-1835
Rights:	http://rightsstatements.org/vocab/NoC-US/1.0/
Copyright:	No Copyright - United States
Subjects:	Indiana Territory Affidavits -- Indiana Territory Appeal -- Indiana Territory change of venue Circuit courts -- Indiana Territory Complaints (Administrative procedure) -- Indiana Territory Costs (Law) -- Indiana Territory Damages -- Indiana Territory Depositions -- Indiana Territory False imprisonment -- Indiana Territory Grand jury -- Indiana Territory Horses -- Indiana Territory Imprisonment -- Indiana Territory Indictments -- Indiana Territory Judgments -- Indiana Territory Judgment Execution - Indiana Territory Lawyers -- Indiana Territory Mares -- Indiana Territory Oaths -- Indiana Territory Personal property -- Indiana Territory Petitions -- Indiana Territory Pleading -- Indiana Territory Replevin -- Indiana Territory Subpoena -- Indiana Territory Summons -- Indiana Territory Trespass -- Indiana Territory Verdicts -- Indiana Territory Witnesses -- Indiana Territory Writs -- Indiana Territory Court Records

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