Joseph Cunningham, Administrator for the Estate of David Cunningham v. William Sublette
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I went into the lodge of the defendant & SmithSmith & began to inquire into the affairs of DavidDavid Cunning-
ham
who from the statements of the company had been killed about two years before by the
Mackhaba Indians. I had taken up a letter for him but finding that he was dead I was Induced
to inquire into his affairs- SmithSmith answered me in these words as near as I can recollect- "He had
been doing very well before he was killed we owe him eleven hundred dollarsâ I understood that
at the time of his death he was in the employ of Smith, JacksonJackson & Sublette- Question by defendant-
do you know if CunninghamCunningham was in the employ of Smith, JacksonJackson & Sublette? Answer- I do not- I only
understood it from Mr Robert Evans and several other men in the employ of Smith, JacksonJackson &
Sublette- Question- do you know who did business in the RockyRocky mountains in Eighteen hundred
and twenty seven- whether it was Smith, JacksonJackson & Sublette or Ashley & Smith? Answer, I do not-
Question- is not Joseph CunninghamJoseph Cunningham Administrator of David CunninghamDavid Cunningham deceased your
brother in law?- Answer he was married to my sister- She is now dead and he has since
married again- Question- did you ever hear Joseph CunninghamJoseph Cunningham say that he had received
money from Smith, JacksonJackson & Sublette on account of the services of his deceased brother DavidDavid ?
Answer yes- I have heard him say that he had received two hundred and fifty dollars, it was
last fall a year ago that I heard him say so, and he said that he received it since the death of his
brother- and further this deponent saith not Orville D Shanks-" And the testimony of WilliamWilliam HH Ashley
AshleyH Ashley of the following purport-" Jedediah S Smith- David EDavid E JacksonJackson and WilliamWilliam S Sublette composed
the firm of Smith, JacksonJackson & Sublette who were engaged in the fur trade in the extreme West- The
partnership begun in July or August in 1826 and ended as witness has understood in the fall of 1830
or Spring of 1831. Witness attended to the pecuniary interests of the firm at St LouisSt Louis- received the return
furs- sold them- paid over money &C Witness does not personally know that David CunninghamDavid Cunningham
was in the service of the firm but understood that he was- heard it from various persons & thinks
from some of the members of the firm- that he went with Mr SmithSmith to CaliforniaCalifornia or in that direction
& was engaged in that expedition when he was killed- that he was employed as a hired man-
that in october 1830, at the house of Witness in St LouisSt Louis a Settlement was made between JosephJoseph Cunningham
CunninghamJoseph Cunningham admr of David CunninghamDavid Cunningham and the firm- thinks both Smith, & Sublette were
present but is not sure as to SubletteSublette - did not pay particular attention to the settlement as he
had nothing to do with it except that he paid the money when the balance was struck & receipt
given. He identifies the receipt in the following words" St LouisSt Louis Received the nineteenth day of âOctober AD 1830 from Smith JacksonJackson & Sublette the sum of two hundred and fifty dollars in
"full of all demands of David CunninghamDavid Cunningham deceased settlement-" Joseph CunninghamJoseph Cunningham
âAdministratorâ & proves the body of it to he in the hand writing of JedediahSmithSmith -
the witness does not believe that any regular books of accounts were produced at the settlement-
Had understood that most of the papers of the firm had been destroyed by the Indians in the moun-
-tains- He states that D CunninghamD Cunningham was at one time in his employ in the fur trade in the
mountains in 1824 understood that he afterwards did business as a freeman that is on his own
account- Persons dealing in that way usually get their outfits from the larger regular traders
consisting of horses traps & goods amounting commonly to about $ 500.... the defendant gave
in evidence the receipt above mentioned and the deposition of Robert Evans as follows-
"Robert Evans being produced sworn and examined on the part of the defendant deposes and says- In
"the year Eighteen hundred and twenty five I started to the RockyRocky mountains in the employ of
"Ashley and SmithSmith - In the year following SmithSmith and I went away to the South to CaliforniaCalifornia and
âreturned on the fourth of July eighteen hundred and twenty seven- From the time of my arrival at
"the RockyRocky mountains until I returned from CaliforniaCalifornia David CunninghamDavid Cunningham was a free man
"working hunting and trapping for himself- on my Return from CaliforniaCalifornia Bruffee &

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of the said Circuit CourtCircuit Court in the year eighteen hundred and thirty five previous whereto
to wit on the sixth day of November in the year Eighteen hundred and thirty three the
said plaintiff by his attorney filed his replications to the pleas aforesaid in the words follow-
ing
viz;Joseph CunninghamJoseph Cunningham admr of D CunninghamD Cunningham vsWilliam SubletteWilliam Sublette and the said
plaintiff for replication to the pleas of the said defendant by him firstly & secondly above pleaded
& whereof he has put himself upon the country does the like (and the third plea of the defendant
being withdrawn the replication thereto is omitted) and afterwards to wit at the said march
term of the said Circuit CourtCircuit Court on the Ninth day of April one thousand eight Hundred and thirty five the following proceedings were had in said court in the cause aforesaid to wit,JosephJoseph Cunningham
CunninghamJoseph Cunningham Admr of David CunninghamDavid Cunningham vsWilliam SubletteWilliam Sublette . Now at this day come the parties aforesaid
by their respective attorneys aforesaid and thereupon the said defendant withdraw His third plea filed
in this case and neither of the parties requiring a Jury the court refer the matter to HughHugh Richards
Thomas Gambiland Robert N Moore three indifferent and competent persons who being duly sworn
well and truly to try the issues within joined between the parties aforesaid on their oath aforesaid
report to the court that as to the first issue within joined between the parties aforesaid they do find
that the said JosephJoseph is now and hath been administrator of the goods and chattels rights and credits
which were of the said David CunninghamDavid Cunningham deceased in manner and form as the plaintiff hath above
thereof alleged and that as to the second issue within joined between the parties aforesaid they do find
that he the said defendant did not undertake and promise in manner and form as the said
plaintiff hath above thereof in his said declaration alliged which report is approved of by the court
therefore it is considered that the said plaintiff take nothing by his said suit and that the said
defendant go thereof without day and it is further considered that the said William SubletteWilliam Sublette recover
against the said Joseph CunninghamJoseph Cunningham Administrator of David CunninghamDavid Cunningham his costs and charges
by him about his defence in this behalf expended"- and at the same term of the said Circuit CourtCircuit Court
on the eleventh day of April in the year last aforesaid the following further proceedings were had
in said cause to wit Joseph CunninghamJoseph Cunningham Administrator of David CunninghamDavid Cunningham decdvsWilliamWilliam Sublette
SubletteWilliam Sublette - the plaintiff by his attorney moves the court to grant him a new trial in this case
for N T
overuled
for reasons filed by him which motion upon mature deliberation is by the court overruled- and
the reasons aforesaid which were filed on the tenth day of April in the year and at the term aforesaid reasons for N J
are as follows to wit; "Jos Cunningham Admr of David Cunningham decdvsWilliam SubletteWilliam Sublette - the
plaintiff moves the court to set aside the report of the auditors & grant him a new trial because 1- the
auditors decided against the evidence in the cause 2- the auditiors decided against law. 3. the
Court misdirected the auditors in this that âthere is no evidence in the cause of an account stated
except the receipt" Edwd BatesEdward Bates pq = and afterwards at the same term of the said Circuit CourtCircuit Court
on the sixteenth day of April in the year aforesaid the said plaintiff filed his bill of exceptions
in the case aforesaid which is as follows to wit, "Joseph CunninghamJoseph Cunningham admr of David CunninghamDavid Cunningham
Bill of Except
decd vsWilliam SubletteWilliam Sublette - Be it Remembered that at the trial of this cause the plaintiff to prove the
issues on his part gave in evidence the letters of Administration of Joseph CunninghamJoseph Cunningham on the
Estate of David CunninghamDavid Cunningham (which being regular & sufficient to prove the issue for the plaintiff it is agreed
shall not be inserted) also the deposition of Orville Shanks as follows "Orville D Shanks being produceed
sworn and examined on the part of the plaintiff deposes and says- In the fore part of the winter of
Eighteen hundred and twenty nine I was in the employ of Smith JacksonJackson & Sublette of which
firm the present defendant William SubletteWilliam Sublette was one, at that time the party under the command
of Smith JacksonJackson & Sublette were encamped on Big horn River among the RockyRocky montains