Thursday, October 5, 2023

Letter from District Attorney Regarding Joseph D Hill and Debt of Purnell Houston



Singleton for use of

United States

                                                            In debt in the district court of the

       vs                                                  United States at Clarksburg, Va


Joseph D. Hill


     The suit was instituted on the 11th of September, 1838.  The proce      returned executed at 1 December of that year, but the declaration was not filed until January rules 1840.  It is an                 of debt on a sealed instrument alleged to have been executed by one Purnell Houston in his lifetime and the defendant, on the 1st of November 1834, payable to W. G. Singleton then district attorney for the use of the United States on the 1st of May 1835.  The obligation on which the action is founded is alleged to have been destroyed by fire.  At the April term 1840 the defendant appeared and set aside the office judgment against him by filing a plea of payment and obtained leave to file further please.  Subsequently, he filed six special pleas in writing and the cause was continued till the April term 1842, when upon the motion of the district attorney, the 2nd, 3d, 4th & 5th special pleas were rejected by the court and issues were made up upon the 1st and 6th.  It is apparent that there is a mistake in the numbering of the pleas, and that it was the 1st and not the 2nd plea that was rejected by the court, because the first pleas as numbered on the record being       debet, is     to debt or bond, while the 2nd plea is a substantial   plea of payment.  This is immaterial, however, as doubtless the whole defense rests upon the 6th plea.

     The 6th plea is in the nature of a plea of asset under a peculiar statute of Virginia authorizing a defendant in certain cases, to set up by plea in defense of  an action on a sealed instrument any matter of fraud, misrepresentation or deception in the manner by which the instrument was procured, and which might be cause of action on his part against the party practicing it for the recovery of damages and authorizes the damages to be recom         against the demand of the plaintiff.

      It alleges that the said obligation was obtained by fraud and misrepresentation practiced upon the said Parnell Houston by the plaintiff Singleton in alleging to him that he was not entitled to a pension and that unless he would give his bond for the amount he had received as such, he the plaintiff, would prosecute him for false swearing, and thereby obtaining the execution of said obligation by the said Houston as principal and defendant as surety.  This plea is sworn to in the usual form.  And after the making up of the issue, the cause appears to have been continued from term to term down to the present time on the motion of the district attorney.  It does not appear that the cause was ever continued on motion of the defendant excepting once which was at September term 1841.  It appears that a similar suit had been instituted on this obligation in 1835 which was continued till sometime in 1836 when the Clerk's office of the court having been burnt and with it the papers in this case, the suit was dismissed and sometime after the present suit was brought.  Houston died insolvent in 1835.

      The affidavit submitted tend to support the 6th plea and if the same testimony should be submitted to the jury on the trial of the cause and should not be overcome by countervailing testimony on the part of the United States, the result would probably be a verdict for the defendant upon that plea.  Whether such counterocisling testimony can be had, I am not advised, except it be furnished by the evidence of Mr. Singleton former district attorney.  He has been summoned as a witness in the cause but has not attended and a subpoena has been issued for him to the next term of the court.  What his evidence will be, I am not informed, but I am persuaded that in taking the obligation of those parties, or in his statements, he meditated no fraud upon them.  He may have been mistaken in his construction of the Act of Congress, and no doubt thought it his duty to require that the amount which had been received by Houston should be refunded.  But if so, and if Houston were really entitled to the pension allowed him, the effect of the mistake was               upon his rights.  It would seem that for a short time before he marched, Houston who was a saddler, was employed by order of his officer in repairing the bridles and saddles of the troops, and the doubt arose whether the time for which he was so employed could be properly rec    ed in computing the period of his service.  Yet even if it should be properly excluded and if therefore by a strict construction Houston were not entitled to a pension, the time wanting to complete the service being so short.  Houston having died utterly insolvent, the defendant being a mere surety upon whom the burden must fall, without meant of indemnity and having already been harassed by a long and fruitless attendance upon the court for the purpose of getting a trial of the cause, and in any event compelled to lose all his costs and expenses, I am inclined to think his application to be released, not unreasonable.

      It may be observed that under the circumstances of this case, the feelings of the jury would doubtless be strongly in favor of the defendant and there may naturally be expected a readiness to continue the testimony, in the sense most favorable to the pretensious of the defendant.  And after all should the United States succeed in obtaining a verdict there cannot be much doubt that congress would upon a petition to that effect, release the defendant from the judgment and forgive the debt.

      I think that it is not improper to add that I have conversed with the deputy marshal of our court, M.N. Goff, a most respectable gentleman and who formerly resided in the county of Monongalia and was acquainted with all these parties, upon the subject of this case.  He is strongly of the opinion that the claim should not be prosecuted and confirms me in the views and opinion which I have taken up.

       Upon the whole case, I am humbly of the opinion that the interest and dignity of the United States would be duly respected by abandoning this claim and discontinuing the suit now pending for its recovery.


                              Which is respectfully submitted,


                                                George H. Lee

                                                District Atty.


 Hon Solicitor

of the Treasury

 This letter is not dated; however, I am ballparking it late 1840's or early 1850's


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