RECORDS OF THE SUFFOLK COUNTY COURT

1671–1680

PART II

RECORDS OF THE SUFFOLK COUNTY COURT 1671–1680

At a County Court held at Boston Aprill. 27^th 1675 @

Present

Jn^o Leverett Esq^r Gov^r
W^m Stoughton Esq^r
Edw. Tyng Esq^r
Tho: Clarke Esq^r

Grandjury the same with the former Cour^t

Jury of Tryalls Sworn

m^r James Brading
Sam^o Williams Sen^r
William Daniel
Joseph Townsend
Robert Allin
Sam^o Pemiiman
Nathaniel Williams
Edw: Adams
John Shaw Sen^r
John Turner
Eleazer Hayes
Nathan^ll Baker

[Nelson v. Lake]

John Nelson Exec^r to the last Will & Testament of S^r Tho: Temple dec^d plaint. ag^t Cap^t Tho: Lake m^r John Richards & m^r John Hull (as adm^rs to the Estate of s^d S^r Tho: Temple in New-England) Defendants The persons being called, noe process appearing ag^t the Defendants the Accion fell.

[Thayer v. Paine]

Richard Thayer plaint. ag^t John Paine Defendant in an action of reveiw or an accion of the case for breach of Covenant for not giving a Deed of houses & Land according to Agreement which action was entred & prosecuted against the s^d John Paine at a County Court held at Boston the 27. day of Aprill in the yeare. 1669. according to Attachm^t Dat. 29:11:74. . . . The Jury . . . founde for the plaint. that the Defendant shall give a firme Deed according to Agreement asserting that hee was the right & true Owner of the s^d bargained pu^rmisses at the time of Signing the s^d Agreement; warranting the same to the s^d plaintiffe his heires & assignes, within one month, or to pay one hundred pounds in mony & costs of Court Fourty eight Shillings 8^d.

[S. F. 1885.3

J John Pajne of Boston haue sold vnto Richard Thajer of Braintry all the right title & Jnterest of Dam & houses and orchards & other lands, on the Northwest of the Riuer monottecote, which some time Did belong to the Jron workes (except only [Hunns] lott and othe^r lotts sold to John Pray & Thomas Thajer, and the pasture, barne & part of the orchard which he the sajd Richard Thayer Did formerly Clajme by virtue of an Execution served which is hereby prohibbited from sajd Contract) moreouer there is sold vnto the sajd Richard Thaye^r all y^e land adjoyning [or nigh] the sajd Dam on the southeast of the sajd Riuer now vnsold, the true value hereof, for this land last mentioned is to be at thirty shillings per acre and the rest first mentioned at the summe of forty fower pounds sterling, and twelue barrells of Good strong Cider, and for the Consideration thereof the sajd Thajer must pay safe into a boat bound for Boston fowe^r barrells of good merchantable porke, eight barrells of strong Cider, and two barrells of good sound onions presently at summe of twenty one pounds tenn shillings and the rest of the pay w^thin one yeare from the date heereof, in good beife porke & strong Cidar and what is not pajd at the yeares end he is to pay Interest for, for one yeare and then to make payment as aforesajd. And he the sajd Thayer shall haue a firme Deed vnde^r hand and seale to Confirme the sajd bargained premisses vpon the two & twentieth day of this p^resent moneth. Wittness both ou^r hands Dated as abouesayd 29 January 1668

John Pajne

Richard Thajer]

Collicot ag^t Sheafe

Richard Collicot plaint. ag^t Sampson Sheafe Defend^t in an action of the case upon a reveiw hee being assignee of Leiv^t Rich^d Cooke & the assignement confirmed by an act of the Generall Court to the assignes in the behalfe of Rebecca Hawkins wife to Thomas Hawkins & Attourny to her saide husband for witholding her just right of thirds of the houseing & Land formerly Mortgaged to m^r Thacher & m^r Sheafe upon condition that when hee had sold the houseing & land Shee should receive her third part in mony which hee refuseth to doe with other due damages according to Attachment Dat. Aprill 22^nd 1675. . . . The Jury . . . founde for the plaint. One Hundred & Fifty pounds mony & cost of Court thirty Seven Shillings & ten pence. The Defendant appealed from this Judgement unto the next Court of Assistants & himselfe principall in three hundred pounds & m^r John Richards & m^r Edward Willis as Sureties in one hundred & Fifty pounds apeice acknowledged themselves respectiuely bound to . . . prosecute his appeale . . .

[This case had been heard at the January session, 1674/75 (see above, p. 537). Sheafe appears to have argued that his expenditures on the property relieved him of his obligation to Rebecca Hawkins: the account which he presented at this time, presumably to substantiate this contention, is printed on p. 2, above. John Howlet testified (S. F. 1458.12) that he had bought from Sheafe, in May, 1673, a house and land formerly the property of Hawkins, paying 50l down and agreeing to pay 50l a year to a total of 350l — a sum considerably greater than the sales price recorded in Sheafe’s account.

A fragment of Sheafe’s Reasons of Appeal is preserved in S. F. 1458.17. The Court of Assistants (Records, i. 45) reversed the judgment of the lower court and granted the appellant costs. But Goodwife Hawkins did not give up the struggle. She had already petitioned the General Court in connection with this case, to judge from the following pronouncement made by that body in May, 1674 (Records of Massachusetts Bay, v. 8):

In ans^r to the petition of Rebeckah Hawkins, the Court declares, that the assigment annext to her peticion is good in law to the party expressed assigned vnto.

A year after the Court of Assistants had found against her, we find the indefatigable goodwife petitioning the General Court as follows (S. F. 1507):

To the Hono^ble Gover^r and Magistrates now Siting in the Genll Court in Boston Octo^ber 13: 1676

The Petition of Rebecca Hawkins

Humbly Sheweth that yo^r Poore Petition^r in May Last did profer a Petition to the Hono^ble Gen^ll Court for an heareing and determination of the difference betweene m^r Sampson Sheafe and yo^r Petition^r, and the s^d Court did then order and grant an hearing of the Said case at this Hono^rd Court Now Sitting: Now yo^r Poore petition^r humbly requests the favo^r of yo^r Hono^rs to Consid^r her poore and Low Condition and to grant her an hearing in this Court: for that she is very poore and cannot by a Course of Law obtaine her just and undoubted Right and desires also to Leave her whole concernes in this matter to yo^r Hono^rs to decree what she Shall have from that Estate and Shall finally so Submitt to yo^r Hono^rs determinacion herein: So Shall She for ever pray for yo^r Hon^re &c

Rebeckah hakins

The published records of the General Court contain no mention of Rebecca Hawkins at either the May or the October session of 1676. References to two more of her abundant petitions appear in 1678 and 1680 (Massachusetts Bay Records, v. 207, 283); but whether they are connected with her dispute with Sheafe cannot be determined.

While Rebecca was carrying on her own lawsuits with Sheafe, her husband haled him into court again, in April, 1676 (see below, p. 684).]

Gilbert ag^t Greenleafe

John Gilbert plaint. ag^t Enoch Greenleafe Defendant in an action of the case for not performeing his engagement of one hundred & thirty pounds according to agreement as by Evidence will more fully appeare & all other due damages according to Attachm^t Dat. aprill 20^th 1675. . . . [305] The Jury . . . founde for the plaintife twenty pounds in mony damage or the performance of the Agreem^t by the Defend^t & costs of Court, the agreement to bee performed in a month’s time after this day. The Defendant appealed from this judgement unto the next Court of Assistants & himselfe principall in Fourty pounds & John Sandys & John Williams as Sureties in twenty pounds apeice acknowledged themselves respectiuely bound to . . . prosecute his appeale . . .

[John Gilbert appears to have been another of the litigious tanners who abounded in Boston at this time. One of several depositions produced when the case was tried on appeal shows the nature of the contract (S. F. 1405.6):

The testimony of W^m Wright Sen^r aged about. 63 yeares saith that m^r Enoch Greenleefe the dyer together with John Gilberd & his wife being at the house of this deponant about the 27^th of March last at which time they were agitating about a bargain concerning the house ground &c. of John Gilberds, in the end it was concluded in manner following: namely that m^r Greenleife engaged himselfe to pay to John Gilberd one hundred pounds in Silver, thirty pounds in english goods at mony price as hee could buy at any warehouse & one Rugg & barrell of Molasses & to pay the same as followeth: Namely Sixteij pounds in silver to the honoured W^m Stoughton Esq^r & so to redeeme the mortgage & to pay the same in Fourteen dayes & to pay the other 40^li in Silver to pay for a purchase w^ch John Gilberd intended at Concord the remainder of the pay John was to haue upon demand & to binde this bargain m^r Greenleife borrowed Five Shillings of this deponent & gaue to John Gilberd in part of pay, on the other side so soon as the Mortgage was paide m^r Greenleefe was to haue possession but John Gilberd to liue in it & emproue it for the workeing up of his ware w^ch was agreed to bee one yeare

Milcah the wife of the abouenamd deponent doth testify to all the aboues^d bargain being present at the agitation & conclusion thereof.

Taken upon the oath of both the abouewritten deponents, aprill. 26^th 1675. before mee Edward Tyng

affirmed in Court apr^ll 27^o 1675 by Cap^t Wright upon his oath taken as Attests Js^a Addington Cler.

S. F. 1405.3

Enock Greenlef his Reasons of Apeell from the Iudgement of the County Court held in Bouston in Apprill last which Iudgment was Granted to Iohn Gilbord Against the present plaintife

1 because y^e now plaintife was then Sewed as appeareth by An Attachement for not performing of An Ingadgement according to Agreement, but nothing thear in exspressed neither for what the Ingadgement was nor when it was made & yet y^e Iurys verdyit was Against the plaintife as I Conceaue contrary to our law which saith y^t both persons & case Shall bee both thearin Expressed

2 If anny agreement was made between the plaintife and the Defdⁿ it was for house and land, or for nothing at all, if for house & land: then y^e plaintife, must bee Surely legally Interested in; or possesed of the premises, before the Defftt had anny reason to Demaund pay now the present plaintife could not if A byear be legally possesed, either w^thout Deliuery; or deed of Saile maide accknowledged and recorded w^ch neither of these wher donn or offered to bee Donne by the Defftt, now our law Saith y^t no contracts for houses or land Shall bee vallued in law except it bee vnder hand & Seale

3 If it bee Said y^t ther was A verball Agreement and that the p^ltf gaue earnest to binde the bargaine, yet they doe not Say, y^t if the Agreement wher not performed, y^t then the pressent p^ltf Should forfeit twenty pounds nor moor nor lesse, Soe I most humbly conceaue if ther had been anny Sutch agreement made, and not performed, espectialy abo^ut house and land: all the Damaiges I can or ought to Sustaine is the losse of my earnest be cause ther was no bargaine under hand & Saile forth whith:

4 because if anny agreement was made; beetween the parties concerned it was not mutch aboue A month before the Defft obtained A Iudgement gainst the pressent pltff and all the while hee had y^e use and Improument of the premisses & how the Iury could Justly adiudge mee to pay twenty pounds damages in monneys & cost of Court I wonder at it and thearfore haue reason to Appeale

5 because apon our first treaty of A bargaine, I being A treads man had mutch need to maike use of mutch water, and inquireing of the Defft how his Scituation was furnished thearw^th hee tould mee hee had A liueing Springe in his land but Soone affter I goeing whith A friend w^th mee to See whether it wher Soe or not (wee found it was not Soe) wherapon I tould him then y^t it was not for my use and would leaue it; and this was but about A week after hee y^e Said Iohn Gillbert Said y^t wee had agreed thus hopeing y^t the honesty of my case is euinced I hope this honered court will See cause to reuerse the former Judgement

Enock Grenleif

These Reasons were rec^d 2^d 7^br 1675

per Js^a Addington Cler

S. F. 1405.4

John Gilberd his Answar to M^r Enock Greeneleifs Reasons of Appeale from y^e Judgm^t of y^e County Co[urt] held in Boston in Apprill Last as Followeth

To his First wherein he seemes to Make his Cheife plea that Judgm^t was Contrarie to Law y^e person and Case both in y^e Attachm^t not Expresed & yet himself Expreseth that it was for not performing an Engage[m^t] and found for John Gilberd against him y^e Said Enock Greenleife which if it had been that some Circumstantiall Error, yet person & Cause were rightly vnderstood & intended by y^e Court Jssue Joyned and preceeded to verdict then not Contrarie to Law but Accordeing to it: Attachm^ts: page: 7: sec: 2 but his without Law or reason

To his Second where as hee would Make it doubtfull saying if any Agreem^t wee refer it to y^e Euidences both for what it was & vpon what ocasion & to y^t part where he saith if for hous and Land then to bee Legally intresed or possesed &c it is Answered hee by his owne Agreem^t had in Capassitteted him self vntill y^e sixtie pounds was paid and thereby the Mortgaige Cleared as will Euidently Appear by y^e Euidences soe that there is noe ground of pleading y^t Law of Contracts of housis and Land and deeds there for: [til] A performanc of such abeing but to his theirds

3^ly where he saith if it be sd there was A uerball bargin it is humbly Conseued that M^r Greenlif[e] is not soe Jgnorant as to put it to an if: or to plead to fast & loos when hee haith soe Agreed nor soe Esily [Cheng] when he haith ingeaged pslam y^e 15:4 and that verball Contrancts are not good when truly Euidenced as this and to say he Could but loos his Ernest and not forfet twenty pounds it will as before Appear that hee Knew it that if he satisfied not the Sixty pounds According to his Agreem^t the pooer man now defend^t Must pay twenty pounds more for intrest therefore y^e sd m^r Greelif hastened to M^r Theophilus Frerie tendering twenty pounds presant with aforther promis of y^e res[t] in y^e time these things are Euidenced by y^e Said M^r Frerie and m^r Chiuers and y^e dammag[e] by y^e Hon^rd M^r Stoten Esq^r

4^ly whear he haith his if still if Agreem^t it w[torn] not much Aboue A monnth before Judgm^t & which might Justly be performed when Agreem[^t] Considered for time &c and for haueing y^e improouem^t of y^e premisis that alsoe was Agreed too Soe that he needs not wonder at y^e Verdit of y^e Jury 20^lis money and Costs of Court & then noe tru reason to Appeale

To his 5 and last which is About wator that haith been Chared and it is wel Known to many of y^e liueing spring & what A place of water it is & that it is not Esily pasable throug y^t Narrow Lane becaue of water the most part of y^e yeare all which Considered the Now defend^t humbly hops A Confermation of former Judgm^t with Adition & Costs Humbly leueing his wrighteous Caus with y^e lord in y^e hands of y^e Hon^rd Court & Gentlemen of y^e Jury to Judg

John Gilbert

The Court of Assistants (Records, i. 48) reversed the former judgment and awarded 28s 6d costs to Greenleaf.]

Davis ag^t Dinely

Cap^t William Davis Attourny to Cornelius Stenwick plaint. ag^t the goods or Estate sometimes belonging to Jn^o Dinely deceased in the hands of Fathergone Dinely as administrato^r to the s^d John Dinely’s Estate Defend^t in an action of reveiw of a case tryed in the County Court in Aprill. 73. wherein judgement was given for s^d Steenwick, but appealed from by s^d Dinely to the Court of Assistants where s^d judgement was reversed to the great damage of the plaint. w^th due damages according to Attachm^t Dat. Aprill 22^th 1675. The Action being called both plaint. & Defend^t appeared & the Attachment being read the Defend^t pleaded for a NonSute for that none of the Defend^ts Estate was attached, which the plaint. not making appeare to the Court, they declared the action fell. The plaint. appealed from this Judgement unto the next Court of Assistants & himselfe principall in 10^li Tho: Deane & Edw: Willis Sureties in 5^li apeice acknowledged themselves respectiuely bound to . . . prosecute his Appeale . . .

[This is the last entry in the protracted litigation between Dinely and Steenwyck, for the beginning of which see pp. 167–73, above. The Court of Assistants did not allow the appeal.]

Cowley ag^t Howard

Henry Cowley plaint. ag^t Alice Howard administratrix to the Estate of her late husband W^m Howard of Boston deceas^d Defend^t in an action of the case about the bounds of a parcel of Land w^ch the s^d Alice Howard possesseth & refuseth to run the Line to devide the Land according to the Limits of Deeds granted & also granted by her saide husband in his life time, though not laide out, which is to the great damage of s^d Cowly with all other due damages according to Attachm^t Dat. Aprill: 22^o 1675. . . . The Jury . . . founde for the Defend^t costs of Court being Fourteen Shillings.

Shippen ag^t Bendall

Edward Shippen plaint. ag^t Free-Grace Bendall Defend^t in an action of debt of two & twenty pounds eight Shillings & three pence due by booke with due interest & other due damages according to Attachm^t Dat. aprill: 16^o 1675. . . . The Jury . . . founde for the plaint. two & twenty pounds eight Shillings & 3^d in mony & costs of Court twenty Fiue Shillings.

m^r Edw. Shippen appeared & acknowledged hee had rec^d full Satisfaction of this judgem^t from m^rs Bendall Feb^r 22: 1675.

J: A: C [306]

Wheeler ag^t Pears

Joseph Wheeler Adm^r to the Estate of Rebecca Pears deceased plaint. ag^t Samuel Pears Defend^t according to Attachm^t Dat. Aprill 13^th 1675. The plaint. withdrew his action.

Nicholls ag^t Spry & Clarke

John Nicholls the onely Sonn & heire of Mordecai Nicholls late of Boston dec^d plaint. ag^t John Spry & Andrew Clarke Defend^ts in an action of the case for witholding houseing & land from him which were formerly Mordecai Nicholls his, & being by order of a County Court at Boston 1664 setled on him & secured from him the saide John Nicholls untill hee comes of age as a part of his portion & also by a Covenant or agreement before marriage between his late Mother Alice Nicholls & m^r Thomas Clarke late of Plimouth therein the s^d houseing & land is reserved for the s^d John Nicholls to enjoy & possess at the age of twenty one yeares with the profits & all just damages according to Attachm^t Dat. aprill: 21^o 1675. . . . The Jury . . . founde for the plaint. the possession of the houseing & land Sued for or to pay Four hundred pounds in mony & costs of Court. Andrew Clarke appealed from this Judgem^t unto the next Court of Assistants & himselfe principall in £:800 & Anth^o Checkley & Jn^o Sandys Sureties in £:400 apeice acknowledged themselues respectiuely bound to . . . prosecute his Appeale . . .

[An outgrowth of the case of Clarke v. Nicholls, above, pp. 5–9. The Court of Assistants (Records, i. 47) heard the appeal and confirmed the former judgment, awarding Nichols 41s 6d costs.]

Kent ag^t Curveath

William Kent plaint. ag^t Ezekiel Curveath Defend^t in an action of debt of twelve pounds in mony due by bill w^th interest & other due damages according to Attachm^t Dat. March. 23. 16⁷/₇⁴/₅. . . . The Jury founde for the plaint. twelve pounds in mony damage & costs of Court twenty three Shillings & two pence.

Execucion issued pr^o June 1675.

Nelson &^a ag^t Andrews

Phillip Nelson & Jeremiah Jewitt Exec^rs to the last will of Joseph Jewitt of Rowley dec^d plaint. ag^t Jn^o Andrews of Boston Cooper Defend^t according to Attachm^t Dat. aprill 19^o 1675. The plaint^s withdrew theire Accion.

Manning ag^t Hall

Anne Manning widdow plaint. ag^t Ralph Hall Defend^t in an action of debt for nonpaiment of Eleven thousand foote of Merchantable pine boards due by bill & due interest & other due damages according to Attachm^t Dat. March 22^th 16⁷/₇⁴/₅ . . . . The Jury . . . founde for the plaint. Eleven thousand eight hundred & eighty foote of merchantable square edg’d boards to bee dd^r in two months at some convenient landing place in Exetor River or thirteen pounds in mony & costs of Court. £: 01:07:0

Execucion issued 7^o Aug^o 75. [307]

Manning ag^t Rand

Anne Manning sole Executrix of the Last will & testam^t of m^r Richard Parker late of Boston dec^d plaint. ag^t Henry Rand of Malberry Defendant in an action of debt of Seven pounds ten Shillings due by bill & all due damages according to Attachm^t Dat^d February 10^th 1674 . . . the Jury . . . founde for the plaint. Seven pounds ten Shillings in provisions at price currant & costs of Court, being twenty two Shillings & six pence.

Execucion issued pr^o June 1675.

Leverett ag^t Hudson

Hudson Leverett plaint. ag^t Cap^tn William Hudson Defend^t in an action of the case upon the account to the value of one hundred & one pounds one Shilling & two pence or thereabout due to the plaint. as appeares by his booke with due interest & all other due damages according to attachm^t Dat. aprill. 22^th 1675 . . . the Jury . . . founde for the plaint. one hundred and two pounds Seven Shillings & two pence farthing to bee p^d as followeth viz^t 75^li 11^s in provisions at price currant & £:26:16:2¼ in mony which is the ball^a of Acco^t with the interest Sued for at 5^li per Cent & costs of Court. The defend^t appeal^d from this judgement unto the next Court of assistants & himselfe principall in £:204. Daniel Turill Sen^r & Jn^o Williams as Sureties in £102. apeice acknowledged themselves respectiuely bound to . . . prosecute his appeale . . .

[Following are two of the numerous documents that Leverett brought into court to prove Hudson’s indebtedness to him (S. F. 1399.11, 8):

m^r Leveret. S^r bee pleased to help this bearer Esther Farenworth to Sixteen Shillings in goods at yo^r Shop on the Accoumpt of yo^r Loving Freind.

Will^m Hudson

this: 17:10 m^o (61)

own^d in Court. 27. 2^mo 75: Attests J: A: C

Endorsed.

p^d Easther Farnworth for yo^u

10 y^ds½. of lace. at. 3^d	0:02:07½
1. y^d ⅛ of cambrick at: 10^s y^d is	0:11:03
2. y^d ½. red ribbon. 6^d	0:01:03
½. m. large pins	0:00:10

. . . true Coppie . . . Js^a Addington Cler

Cosen Leveret J pray let my daughter Hannah Richards haue what Shee want if it bee to the Summe of Fifty Shillings or three pound on the account of him that is yo^rs

Will^m Hudson

27:10:61

Own^d in Court by Cap^t Hudson. 27. 2^mo 75. Attests J: A: C

Endorsed.

p^d yo^r daughter Hannah. 1. January. 1661.

4.¾. pennistone at. 3^s 6^d	00:16:07.½
⅜. of Flannill at .2^s 6^d y^d	00:00:10
2. y^ds Searge. 4^s 6^d	00:09:00
To. 1. y^d galoon. 3^d — 3 scanes silk	00:00:06
To. 1. y^d ½. 8^d ribbon	00:01:00
To. 1. y^d ½ manchest^r 1½. yd	00:00:02¼
To. a paire bodies	00:02: —
To. yo^r wife. 1. yd. Nayle Say. 7^s
To. 2. y^ds ¼. at. 7^s
To.2.y^d. ½. broad ferrit. 7^d y^d
To. 2. y^d Narrow. 4^d y^d
To. 4. y^d dowlas at. 22^d	00:07:04
	3:02:05½

. . . true Coppie . . . Js^a Addington Cler

A part of Hudson’s Reasons of Appeal (S. F. 1399.3), a mutilated document, follows:

First what J Receaued Any way of him was not vppon my desire of Any Credibt from him but to take vp what I Coold by degrees to satisfie his debts due to me as woold haue Apear[ed] by the date of my acc^ots which was then Redy In the Court for to show[e] which if his acc^ots & mine had bene fully Compared Jt woold Easily haue Apeared that he was greatly in my de[bt] had he attended according to his bond of Arbitration ... & takeing Aduantages Caused a prosecution att the County Court & J suppose g[iues] me [j]ust ground of Apeale . . .

He goes on to say that several of the articles which Leverett alleged to have been furnished to him were delivered to others.

The Court of Assistants (Records, i. 48) confirmed the former judgment and awarded 43s 10d costs to Leverett.]

Jay ag^t Woodmansey

Thomas Jay of Hingham Carpenter plaint. ag^t John Woodmansey of Boston Defend^t in an action of debt to the value of three hundred eighty five pounds two Shillings & eight pence or thereabouts due to the s^d Thomas Jay for severall parcells of mony, ninety one pound for a Warehouse by apprizement, timber, plancks, boards & goods as appeares by the s^d Thomas Jay’s account with all due damages according to attachm^t Dat. aprill: 21^o 1675 . . . the Jury . . . founde for the plaint. three hundred Eighty Five pounds two Shillings eight pence to bee paide as followeth. viz^t £:10:5:0: in mony, Forty Five pound in Fish at price currant & the remainder in provisions at price currant & costs of Court: the Defend^t appeal^d from this judgem^t unto the next Court of assistants & himselfe principall in £800. Cap^tn Sam^o Scarlett && Joseph Rock Sureties in £400 apeice acknowledged themselves respectiuely bound to . . . prosecute his appeale . . . [308]

[See Woodmancy v. Joy, p. 129, for the beginning of this litigation, and the audits of their accounts on pp. 145, 149. There is a long account in S. F. 1433.8, from 1659 to 1667.

S. F. 1433.3

Jn^o Woodmansey his Reasons of appeale from y^e Judgm^t of the hono^rd Countey Cou^rt held at Boston in Aprill last, to this hono^rd Court of Assistants in the case Depending betweene Tho: Jay & himselfe. vizt:

First. The action being an action of accompt (or of Debt appearing by accompt w^ch is all one) I app^rhend (w^th all humble submission) that the then plaintiffe ought to have produced a booke, or bookes, out of w^ch his ptended accompt was taken, to the end they might have beene examined, & Compared in Court, or by an audit appointed thereto, before he had sworne to it, or elce that he should have made some other equivolent proofe, to each article disowned by mee, all which was required of mee & done to effect, before I Could obteine Judgm^t against him, therfore I appeale,

2^ly: The same action (without any materiall difference hath beene Commenc[ed] against mee by the Pll^t divers times, before now, Especially att the County Cou^rt in July 1672 as may appeare by the records, & by the Summons here extant, where the then pll^t tendred his oath to his then p^rtended accompt, w^ch was somewhat different from this, the Court then demaunded his booke that it might be compared & audited, his answer was that his books were too big & too heavy to be brought into Court, meaning as he explained himselfe, the worke he had done for mee (w^ch was then mentioned as one article in the attachm^t & Summons, though not now) in Fine he owned he had noe other bookes, whereupon the hono^rd Court then saw cause to refuse his oath, to his p^rtended accompt, soe that his actions Could not proceed, which occasioned mee to make a motion in Court, that men might be chosen in Cou^rt & appointed to veiw what should be p^rsented against mee by him, I promiseing to allow whatsoever he could prove, or I Could owne, and men were accordingly appointed, & it is not my Fault that it hath not beene attended, whatsoever the Pll^t injuriously p^rtends, for I often spake to Huegh Druery, who was one of them to promote it, being earnestly desirous to attend the issue in that or any other honest way, & I writt earnestly to the Pll^t to that end, a Coppy whereof is here extant, Now may it please this hono^rd Court & jury to consider, that he being then not permitted to sweare soe dangerous an oath, to his then p^rtended accompt, & the case being the same now, I might well expect the same issue, therfore I provided noe other deffence, which I could plentifully have done if I Could have foreseene such an alteration Therfore I Appeale —

3^ly The plaintiffs p^rtended accompt to w^ch he hath sworne, consisting of twenty & eight articles, hath not any date to any perticuler charged therein Save only to an apprisem^t of one warehouse at Ninety one pound, w^ch I ever owned & gave him Creditt for, & a wharfe veiwed by Deacon Allin and Huegh Drury upon his misinformation, all the other twenty & Six articles though very considerable summes many of them, & of Fourteene years standing & more from the first, being without dates, & not taken out of any booke but his owne treacherous Memory: it may well be suspected that he hath taken an unsafe oath to my great p^rjudice, therfore I appeale,

4^ly All the perticulers in difference, are noe otherwise proved then by his owne oath, without booke or date, which if it should passe for Currant, he or any other of like conscience may sweare themselves into an estate att pleasure, & of what dangerous consequence, such p^rsident may be to others as well as to my selfe, I humbly present & leave to the Serious consideration of this hono^rd Court, As for his eight First articles, together with the thirteenth, ammounting to above two hundred & thirty pounds & part of some other articles to the vallue of Fivety or sixty pounds when Finished, these I ever owned, both in Court & elsewhere, but was never in debt to him for any of them because he was alwayes overpayd beforehand, as will appeare by my account which I gave him, which accompt he putt into the Court (though much corrupted since he had it) except his want of dates to his charge darken the case, which if it doe, it is evident that I have proved my charge First, but I could never immagine, that upon my owning the greatest part of his p^rtended accompt the juery would give him the rest, w^ch I never owned, nor he hath proved, I doe not beleive that was the Courts intention in permitting his oath, But there are in his p^rtended accompt, twelve or thirteene articles which I utterly deny, as being either not done at all, or not done for mee, (besides divers things, being vallued by himselfe only, are over-rated very much, as the bridge & belconie, w^ch are prized by him at more then three times the worth of what he did towards them, & other things charged more in quantity then were done for mee, as wharfing &c, or received by mee, as planke &c And though it is difficult to prove Negatives, I am sufficiently able to prove divers articles in his p^rtended accompt to be false, I instance in the eleventh article of twenty & Six pounds, for part of a frame of a dwelling house, besides six pounds, & other summes about the same house, whereas I never sett him aworke about it, but can Fully prove, that he hath owned to others what he hath often told mee, vizt that he was sett aworke & payd by Captⁿ Olliver for it, & his sonne Joseph Jay who soe earnestly importuned the Countey Court that his Father might take this daungerous oath, & alsoe in his owne oath doth darkely mention this part of the frame of this house, he was one of that juery who found the whole house to be Captⁿ Ollivers & not mine, therfore I am necessitated to appeale,

5^ly I Suppose it will appeare, that the plaintife hath dealt fraudolently in the management of this action, not only in introduceing papers into the Court & to the juery, not sworne, nor concerning the case, & yett the Creditt of such persons as have thereunto subscribed, may have some influence upon a Flexible juery, as viz^t Captⁿ Davis his note, in which alsoe there is a mistake of the person who sayd there was noe record of the Court order, for it was not I, And alsoe there is a note under the hands of Deacon Allin & Hugh Druery, who only declare what the then pll^t told them, But cheiflyin that accompt which I gave to Thomas Jay some yeares since, att the end of which I gave him part Creditt soe far as was then cleare, but he hath not only altered that Credit upon my sayd accompt, & soe falsifyed it as I conceive, but added many perticulers to it according to that p^rtended accompt to which he hath sworne though not in the same method, nor contenting himselfe w^th the same summe by which I feare he might somewhat delude the juery, For one of them told me, that he thought I had given him all that Creditt, though since, he hath forgotten it And to evince what I here assert to this hono^rd Court, I have by the Favour of the hono^rd Countey Court obteined the originall paper, putt in by the then plaintiffe, (haveing left a Coppy thereof upon record) in which the addition appeares to be Will^m Leatherlands hand, & by Thomas Jay his order as he the sayd Leatherland told mee, all which I humbly Crave this hono^rd Courts serious consideration of, that such irregularityes may be p^rvented for the Future

6^ly Because the juery hath given the then pll^t his whole p^rtended accompt in w^ch there are divers articles that are not exprest, nor can any way be intended or included in the attatchm^t, which I humbly conceive is contrary to law, & to the Custome of our hono^rd Courts, as for instance, they have given him Fourty & Five pounds to be payd in Fish at price Currant, whereas the attachm^t mentions noe Fish, neither was I ever engaged to pay him any Fish, Jts true I received of m^r Nicholis Davison of charlestowne, about thirteene or Fourte[en] yeares since, Fourty & Five pounds in Fish, att two payments upon the accompt of Thomas Jay, & by his order, which was in pt of payment, for the great wharfe which he built at Charlstowne for the sayd Davison, and for which I then gave him Creditt, it being in part of what he then owed mee, and he requesting mee to take it in payment for goods, because he Could not otherwise dispose of it to his content And alsoe there are divers articles for worke which are noe way Comp^rhended in the attachm^t, nor yett true in themselves one of which is Fiveteene shillings for helpe in the Cellar, when my wines were oversett, I had noe wines there, but the Cellar was hired by m^r Rob^t Gibbs, & the wines were his, Now the Cooper haveing let the water into the Cellar, through his forgetfulnese there was dammage & Tho: Jay & his sonnes, being thereabout at worke, were called, & did helpe them a while, & had their Fill of good Mallego wine for their reward, but I sett them not aworke, neither was I any way Concerned in the matter, Further then to know, how this dammage came because the Cellar was hired of mee, This & many other more considerable articles for worke, are in that p^rtended accompt, & given to him by the juery, which I humbly conceive is illegall, & a great errour in the juery, And they had alsoe at First given him three or foure pounds more then the summe mentioned in the attatchm^t, which I simply Complaining of, the hono^rd Governo^r was pleased to say that was a sufficient reason of appeale, whereupon they were sent out againe, & they rectifyed only that one errour, leaving the rest to their issue, All which I humbly p^rsent to this hono^rd Court & juery as the grounds of my appeale from the Judgm^t of the hono^rd Countey Court, which gives him more, then I recovered of him, although I can make it appeare he is indebted to mee, to ballance our accompts the best part of a hundred pounds.

yo^r humble Appeallant

Jn^o Woodmansey

These reasons of Appeale were delivered by John Woodmansey into the office this Second of 7^br att about 3 of the Clock & received per Js^a Addington: Cler.

Vera: Copia Attes^tr per Edwd: Rawson Secret

S. F. 1433.4

Joseph Joy Attorney of his father Thomas Joy [torn] answer to John Wood-monsies reasons of Appeal soe cal[d]

first J doe humbly conceive that all the reason contained in his pape[r] called Reasons might have bin comprized in a very small volume the which he hath made to be a wholl sheet of paper full written & therby (as J humbly conceive) hath not prosicuted his appeal according to Law, which sayeth title Appeals he shall breifly vnder his hand give in his reasons & if his be breif J know not what is long & therfore doe intreate it to be determined by the Bench whither he hath not forfeited his bonds for prosicution of his appeal before the cause goe on. but if J must answer J say.

To his first Jt being an Action of Accoumpt or debt vpon Accoumpt &c. he taketh the boldnes to declare his Apprehentions thervpon & thought the Court & Jury would have bin regulated therby but he was mistaken in his apprehentions & there J leave him

To his second J say he is therin soe long on purpose to puzle both Court & Jury (as J Conceive) & is all a new plea not made in the other Court & therfore ought not to come here & that is my answer.

To his third J answer that every Article of my charge is yet obvious to wit my severall workes done & if J have sworn any thing false he may take A remedy legally & God forbid it should prove soe

To his fourth that by the same practice of swearing any may swear themselves into an Estate J answer he may & that very honestly too the works appearing & J hope J might set a price theron & y^t lawfully & swear thervnto as the now plaintif might vpon any of his Goods sold & delivered & if J have wronged him by setting a price too high as he may have done to others there is a Law to punish vs therfore. & after conviction therby he may have a just cause of Review of the Case. And w^t he sayeth of A dwelling house is falatious it doth consist of two double houses built at two severall times.

To his fift tedious story J say if it were true w^t he sayeth what J did with a paper he sayeth he gave mee & calleth it an Accoumpt sure it was my owne & J might doe with it what J listed & it was nothing materiall to my Action for w^t J had Judgment for is evident to all seeing eyes to wit any buildings & his busines was to have proved payment & nothing els as J thinke

To his sixt J say the jury gave noe more then was proved & which J now expect to have. & the now plaintif did not then disprove any thing & he is willfully mistaken in saying the Attachment mentioneth noe fish, it doth mention other Goods as in Accoumpt & the Acc^t mentioneth fish. & he now owneth the receipt of fish of mine. & why should it not be given mee since J am not in his debt And if he had found himself agreived at any thing or proceeding in the former Court he might have had his Action or Actions against mee at July Court last but he was conscious that he had noe just ground therefore, soe leaveing it to your wise Consideration as God shall direct you to doe & rest your humble

servant Joseph | | Joy

his markes

The Court of Assistants confirmed the former judgment and awarded costs to Joy. Thereupon Woodmancy “in open Court declared that he Attainted the Jury & declared he doubted not but he would proove error” and filed bonds to the amount of 500l to “prosecute his Attaindure at the next Court of Assistants.” There is no record extant of this prosecution. Records of the Court of Assistants, i. 45–6.]

Jay ag^t Wharton

Joseph Jay as Assignee to his Father Thomas Jay of Hingham Carpenter plaint. ag^t Richard Wharton of Boston Merchant Defend^t for witholding a debt to the value of twenty five pounds in money or thereabout due for land in Boston according to the apprizement of m^r John Saffin m^r John Sunderland & Deacon Henry Allen as by a writeing bearing date the .12^th day of July. 1673. Subscribed by them doth more fully & largely appeare with all other due damages according to Attachm^t Dat. Aprill: 21^o 1675 . . . the Jury . . . founde a speciall verdict viz^t that if the mony in m^r Rich^d Whartons hand extended upon by the Marshall bee legally s^d to bee m^r Jayes though not deliver^d to him then wee finde for the Defend^t costs of Court; but if not wee finde for the plaint. twenty two pounds ten Shillings in money damage & costs of Court. The Magistrates on consideracion of this verdict declare for the plaint. the Defend^t appealed from this judgem^t unto the next Court of Assistants & himselfe principall in £.44. Sampson Sheafe & Tho: Bendish Sureties in £22. apeice acknowledged themselves respectiuely bound to . . . prosecute his appeale . . .

[Attachments, appraisals, assignments and bill of costs are in S. F. 1376.1, 3, 5, 6. Wharton’s Reasons of Appeal have not been preserved. Joy’s answer (S. F. 1376.4) follows:

Joseph Joy assignee to his Father his answer to m^r Richard Whartons Reason of Apple from the Judgm^t of the County Court held in Boston Aprill 27^th 1675

First whereas he alleadgeth that it was not made Evident that Joy or any authorized by him did legally alienate the land mentioned in the Attachm^t

Answ: m^r Wharton owned in Court the apprizm^t of the land giuen in vnder the hand[es] of Deacon Allin And m^r Jn^o Saffin and m^r John Sunderland w^ch was a sufficient Evidence and needed noe further proofe And the said Allin Saffin & Sunderland awarded the present plantiffe to pay the money mentioned in the attachm^t And if any man haue land or other estate deliuered vnto him by Execution such deliuery makes him suffiently capable to giue a legall Conveyance as the land in question was And therfore not to trouble the Court w^th a long preamble the defend^t doth humbly conceue this hon^rd Court & Jury will see noe cause to reverse the Judgm^t of the former Court but rather to Confirme the same The Issue whereof hee leaues to the wisdome & prudence of that hon^d Court and subscribes himselfe y^r humble Ser^t

Joseph Joy

At the Court of Assistants (Records, i. 48) the Jury reversed the former judgment and awarded Wharton 52s 1d costs.]

Balston ag^t Atwater

Jonathan Balston Senio^r plaint. ag^t Joshua Atwater sen^r Defendant in an action of the case for nonpaiment of thirty pounds one Shilling & nine pence in mony due for three hogs h^ds of Sugar sold the s^d Atwater in the yeare. 1671. & all due damages according to attachm^t Dat. aprill 22^o 1675 . . . the Jury . . . founde for the plaint. thirty pounds one Shilling & nine pence in mony damage & costs of Court. the Defend^t appealed from this judgem^t unto the next Court of Assistants & himselfe principall in £60. Benjⁿ Gibbs & Jeremia Dummer Sureties in £30. apeice acknowledged themselves respectiuely bound to . . . prosecute his appeale . . .

[Atwater’s Reasons of Appeal (S. F. 1411.2) offer little of interest, and he withdrew the action when the appeal went before the Court of Assistants (Records, i. 44); but the following document (S. F. 1411.3) seems worth preserving, if only for its spelling:

To the Honered Corte of Assist^s Sitting in Boston sept: [75]

Johnathun Bolstons his Answer to M^r Joshoway Atwaters Reasons of Appeale

[Torn] whare the nou plantiue Sayth that the then plantiue [torn] no Just Ground of Axtion: the then plantiue did euedent Ley ma[ke re]por to the Corte and Juery that he had Just Grounds of Axtion and dusnot question but this Honered Cort and Jurey will find the same: if th[ey] du but sere[yo]sley Considur the then plantiues Acompt and oth which the nou plantiue Cols a Contridixion: for the a Compt y^e then plantiue gaue in wos tru: for In his forst A compt he did omit the shuger be Cos: he: Rekine[d] he had bin payd forit but after wards M^r Atwater Recouers that mon[i] which the nou defendant had Reseued for the shuger: sothat thou y^e nou defendant had no grounds of Axtion be fore M^r Atwater had [torn]d his moni bak again: y^t nou he hath Just Grounds: for noue [torn] not payd for his shuger nor: nauer shud if he had not sued for it [torn] I hope thare is no man but will say that it is Reson that if M^r Atwater Hes his moni bak a gain which moni he payd for the shuger, but that I shud be payd sum way for my shuger: if y^u mind his a Compt you will find that he Charges all the moni that Eauer the nou defend^nt Had of Him but y^u will not find a word of the shuger thare soe that I think It would be a hard Case If I must a loue for all the moni I had of him and he haue 3^hh of shuger of me and a loue me not on pene as per his a Count will a per. he oned he had the shuger in priuit as is proued: and All a Long in Cort he oned he had the shuger yet he giues in his A Compt and swares to It: and nauer taks ani notis of the shuger and yet he Cols my a Compt fols: but His not giuein me Credit for the shuger and y^t swares it is a tru a Compt which as I Humbley Con seues maks his A compt and oth to of Litill walle if not all to Gather fols: be sids all this M^r Atwoter and my selfe wonc Came to a rekening quickley after this shuger wos dele[uer]d and then we set this moni which M^r Atwotter hes senc Recouered bak of for the shuger and thar for when we Rekined we brot nither to a Compt and them he oned he oued me 11^li odmoni as will aper by my Accompt: and I wonder that M^r Atwoter shud when we Rekined [worn] be willing that this moni shud go for the shuger and [after] wards su for it a gaine and nou is not willing to a loue me anithing for it but I hope the Cort and Jurey dus Ritley undestand the Case as the former Cort did thar for I shall say no more but subscribe myselfe as I [am] y^r honers Humbill Saruant

Jonath[an] B[als]ton]

Salter ag^t Checkley

Jabez Salter plaint. ag^t Anthony Checkley Defend^t in an action of the case for interrupting the s^d Salter in improuem^t of his Land & trespassing upon it & incumbring of it & claiming propriety in it in so doing defameing the s^d Salters honest title of inheritance which hee hath honestly bought & paide for which is to the s^d Salter great damages with other due damages according to attachm^t Dat. aprill 15^th 1675 . . . [309] the Jury . . . founde for the plaint. one Shilling damage & costs of Court, the Defend^t appealed from this Judgement unto the next Court of Assistants & himselfe principall in £5: Benjⁿ Gibbs & Jn^o Sandys Sureties in Fifty Shillings apeice acknowledged themselves respectiuely bound to . . . prosecute his appeale. . . .

[One of the most important and progressive laws passed by the Massachusetts Colony was the “Act for the avoyding all Fraudulent Conveyances,” which required the acknowledgment before a magistrate and registry with a clerk of court, of deeds, mortgages, and other conveyances of real estate. It is to this act of 1641, as printed in the General Laws and Liberties (1672), pp. 32–3, that Checkley refers in his Reasons of Appeal (S. F. 1403.2).

These lengthy Reasons set out two main defenses: — first, Salter has no title to the land in question; secondly, if he has title, then he and Checkley are tenants in common, and Salter has no cause of action for trespass against his co-tenant.

On the first ground, Checkley declares that the General Court ordered part of Nathaniel Patten’s estate divided between Benjamin Bale and Thomas Patten, and that Bale and Patten entered into articles of agreement accomplishing this partition, each granting to the other his respective part. (This agreement, in S. F. 1403.5, executed 14 December, 1674, shows that part of Bale’s share embraces land leased by Nathaniel Patten to Salter.) Checkley claims title under a deed by Thomas Patten including the land in question, which was made under an irrevocable power of attorney from his father, John Patten, the real owner of the land set off to Thomas Patten in the partition. (See Patten v. Dyer and Patten v. Winsley, above, pp. 373, 377.) As for Salter’s title, Checkley begins by insisting that the deed to Salter from Bale includes only the premises leased to Salter by Nathaniel Patten before his death, and continues:

The Land in controversy is not in that lease nor was it in the tenure & occupation of Salter therefore hee hath no title to it, let him shew his lease & there it is not contained — & for possession I had it before Salter — my Deed was acknowledged & Recorded the 4^th of January 1674. & hee had livery of Seizin the 9^th of the same Jan. which is full. 5. dayes after & his Deed not acknowledged untill the 25^th of Jan. which is 20. dayes after mine, Now per o^r Law a title is not good untill either possession is given or the Deed acknowledged & Recorded. See Law. title Convayances Deeds and writings Sect. 4. hee hath no title at all for bee it more or Less then 17½. foote broad or Less then 134. foote in length; yet it is neither more or less then what is contained amply in the Lease & what was in the tenure & occupation of Salter — heres nothing at all appeares by the Lease & the possession & title of the land in controversy is in Anthony Checkly’s hand yet hee cast, which J conceive is a fundamentall Error in the former Jury & a Sufficient ground for the revertion of the Judgement.

However, if the land in question is included in the boundaries stated in his deed from Bale, “it is more then hee could doe, it was none of his to Sell,” because this land was not set off to Bale in the partition agreement, the measurements determinable in accordance with which Checkley discusses in detail. He appeals to legal principles still much used in 1932:

Jt is a principall in Law & Reason that all Covenants Deeds & obligations shall bee taken in the best Sence for the granto^r or obliged — Thomas Patten is granto^r to Benⁿ Bale of this Strip of land — Jf Benⁿ Bale should Say the articles must bee interpreted in the best Sence for mee J am the Grantee relating to this Strip of land, therefore J will haue as much land as can bee called a Strip running upon a direct line &c. as is expres’t in the articles taking them in the largest Sence for mee then might hee take away my 22. foote & Leaue mee but 4. inches in the reare — this would bee thought by all men irrationall; Jf J promiss a man a peice of bread will hee haue the Major part of a Loafe is not my promiss performed; although J giue him but ¼. of a loafe So is the case here Benⁿ Bale is not denied his Strip of land but hath it — avoiding all extreams hee hath as much & more in the reare proportionable to his front as J haue — As for Jn^o Holbrookes Testimony J shall onely Say this that hee Sweares onely according to his best judgement & understanding w^ch in my judgement and understanding is no testimony & of no value; testimonys must bee positiue; again words are determined by writing there was another agreement in writing betwixt the verball agreement & these articles w^ch m^r Addington had for direction to draw these articles by — & Jn^o Holbrooke was in company when the articles was firmed — J can call that oath no bettar then a vaine & unsafe oath — J hope it appeares the land in controversy is not Jabish Salters but Anthony Checkley’s — Benⁿ Bale never sold it him nor could hee Sell it him, it was not his to Sell, the articles never gaue him 17½ foote in the reare.

The second and alternative ground apparently rests on the assumption that the partition agreement between Bale and Thomas Patten failed to dispose of a strip between the portions set off to each other. Hence Salter and Checkley, as their respective grantees, became like them co-tenants of the undivided strip.

Jf so then wee was tenants in common how then could J trespass upon him by Setting a few boards upon the land in common especially considering how little the corners of them stood in the land hee claimeth & how much they stood within the bounds of my own Deed & was movable things & not set up for boundaries, there being no devision as hee pleaded & indeauoured to proue — hee should haue Sued for a devision & could not in my apprehention Sue as hee doth for interrupting the s^d Salter in the improuement of his Land for hee might haue improved mine & his own too if hee had any there & how could J trespass upon his ground & incumber it when J neither hindred him from Setting anything in my ground nor exceeded my ground that J had a Deed for, but my boards was within it; or, how is his title defamed — So that not one term of his attachment is true.

J hope the Honoured Court & Jury haue a right understanding of the case & will plainly See how injuriously Salter hath acted by commencing such a vexatious and chargable Sute against mee for an in considerable bit of land w^ch is not worth the fourth part of the charges expended in law about it & might haue bin issued by Bale & Patten without this trouble & charge as J tendred him the s^d Salter & intreated him to Stay till they came from Sea — Not to trouble the Court & Jury with impertinencies J leaue my case to you & Rest

Yo^r humble Servant

Anthony Checkley

These Reasons were rec^d 2^d Septemb^r 1675.

per Js^a Addington cler

Salter, in his Answer to Checkley’s Reasons of Appeal (S. F. 1403.4), replies to the first ground in part as follows:

. . . to proove his first reason he gives three arguments that Salter had noe title. 1^st because Salters title gives him noe more then he had by Lease before, and that the appealant harps much upon, as if the title of the land lay grounded upon the Lease, but surely the appealant understands better, therfore the defendant can not understand why he should lay soe much weight on the Lease seeing the defendant never sued the Lease as a tenent nor made any use of his Lease in the Court, but only got and proued his title by his deed, his buts and bounds being clearly and firmly expressed in his deed: but if the Lease would any way helpe the appealant as it can not, yet it is too late to bring it in this action because it was not made use of in the former Court as the plaintiffe very well knows. 2^dly. That himselfe had possession before Salter: but of what? not of Salters title: if he had possession of his owne who doth hinder him. and whereas he lays soe much weight on the antiquity of acknowledgment of a Deed, its true the first acknowledgment with record must take place: but in what case? not in such a case as this: if Salter had derived his title from Patten his argument might have had some weight in it, but Salter derived his title from Bale’s which is an other man, and the appealant had noe deed from Patten before the division therefore the law about the first recording can take noe place here. 3^dly. from possession. the appealant saith he had possession of this land in contraversie before Salter: if he had it seemes by the virdict of the Iury and Iudgment of the former Court that he possessed that which was not his owne and farther the appealant is very much mistaken in soe saying for Salter had possession of said land a long tyme before. 4^thly. The appealant is pleased to say that Salter’s title was not legall, because his deed was not acknowledged before the appealants, but what is that to this action? but if he meanes as he seems to say (or else he speaks not to the case) it was not acknowledged nor possession given before the sute in law herein he is very much mistaken for Salter had his before as will appeare by his deed:

He comments thus on Checkley’s argument that a deed should be construed against the grantee:

Againe the appealant saith that if the line be arbitrary, how it should take it of in law, and by good reason be interpreted in the best sense for the Granter and that Patten was the Granter. Answere. But if the appealant consider yet againe he will have reason to thinke that Bales was (if any one) a granter for Bales was possessor of all and that by a County Court act, but after, it pleased the Generall Court to settle Patten in the halfe of it, and themselves agreed on division, therefore Patten noe granter: but for the promis[e] of a peece of bread the argument were good if all the loafe had bin his owne, but the appealant may consider that this instance doth not reach this case for Bales had as much right unto the loafe as Patten.

Salter then replies to the second ground, that of co-tenancy:

2^d Reason. If the land had bin Iabez Salters as to the title, yet he had noe ground to sue me, because it was not divided, therfor[e] tenents at will and then noe trespasse. Ans: The appealant is much mistaken in soe affirming, for Salter denyed it in Court, 2^dly. whereas the appealant saith that Salter should have sued for division and not for trespasse. Ans: Salter did not see reason to goe to the appealant for advice how to state his action. 2^dly. as for sueing for division Salter nether did nor doth know that he ether hath or had any land in partnership with Checkley, for the land was divided before by articles, and where as the appealant doth blame Salter soe much for puting him to soe greate a charge in law and that the land was not worth neere soe much as is spent in law, Surely the appealant may as much blame himselfe as Salter for if he had let Salter enjoy his title the action had not proceeded for Salter used all faire meanes and tendered to leave it to the Townesmen to avoide trouble and had rather bin a looser then to goe to law, the appealant might have let his board stood till this day if he had yeilded the title but he denyed it as plainely appeares all alonge, by which it appears that Salter did not sue for trespasse only but to keepe and maintaine his title. . . . The premises considered I leave the it to the wisdome of the Court and Iury to determine whither the reasons of Appeale or my answere to them carry in them most weight and remaine

yours and the truth servant

Jabez Salter

There are depositions respecting the dimensions of the disputed land, in S. F. 1403.5–9.

The Court of Assistants (Records, i. 47) confirmed the former judgment.]

Edsell ag^t Travis

Thomas Edsell plaint. ag^t Richard Travis Defend^t in an action of the case for witholding a debt of Nineteen pounds or thereabouts due for two yeares & three quarters rent of a house hee had of the s^d Edsell, the which rent hee s^d Edsell paide m^rs Hanniford for at Seven pounds a yeare, which rent hath been due since the yeare 1666. with due interest & all other due damages according to Attachm^t Dat. Aprill: 22^d 1675 . . . the Jury . . . founde for the Defend^t costs of Court being Fourteen Shillings

Execucion issued aug^o 21^o 1675

[There had already, in 1672, been a suit between Edsell and Travis over the rent of this house. Papers for the earlier case are in S. F. 1143.]

May ag^t Sutton

George May plaint. ag^t Richard Sutton of Reding Defend^t in an action of debt of three pounds ten Shillings in mony due by bill & all due damages according to attachm^t Dat. February 6^o 1674 . . . the Jury . . . founde for the plaint. three pounds ten Shillings in mony & costs of Court being 27^s 2^d

Execucion issued pr^o June. 1675.

Atwater ag^t Pearson

Joshua Atwater plaint. ag^t George Pearson Defend^t in an action of the case upon a reveiw of a judgem^t granted ag^t the s^d Atwater plaint. at a County Court held at Boston the 28^th of Aprill. 1668. for costs of Court to bee paide unto the Defendant in the s^d case which was then the aboues^d Pearson & the s^d costs of Court being three Shillings & ten pence & other due damages according to Attachm^t Dat. the 17^th of Feb^ry 1674 . . . the Jury . . . founde for the plaint. Fifteen pounds one Shilling ten pence in mony damage & costs of Court being 27^s 4^d

Execucion issued May: 31^o 1675.

Scarlett ag^t Long

Cap^t Samuel Scarlet plaint. ag^t Joseph Long of Dorchester Defend^t in an action of the case for witholding a small boate of his that was taken or went adrift from his wharfe about the Latter end of Septemb^r 1673. & ever since or at Least since May last hath kept her in his Service although Shee hath been demanded by the aboues^d Scarlett both in May last & upon the 25^th day of January Last yet notwithstanding hee hath detained her & hath no way acted according to Law & all due damages according to attachm^t Dat. March 5^o 16⁷/₇⁴/₅ [310] . . . the Jury . . . founde for the Defend^t costs of Court being twenty Five Shillings Six pence, the plaint. appeal^d from this judgem^t unto the next Court of Assistants & himselfe principall in £:5 m^r Jn^o Richards & FreeGrace Bendall Sureties in Fifty Shillings apeice acknowledged themselves respectiuely bound to . . . prosecute his appeale . . .

Salter ag^t Manning

Jabez Salter plaint. ag^t Nicholas Manning of Salem Gun Smith Defend^t in an action of the case for witholding or detaining an anvill of the plaint. after legall demand, the s^d Manning pretending it is his own which is to the pl^ts great damage according to Attachm^t Dat. 10:12^mo 1674 . . . the Jury . . . founde for the plaint. that the Defend^t deliver to the plaint. his anvill at Boston within a monthes time with three pounds in mony or ten pounds in mony & costs of Court three pounds two Shillings.

Execucion issued May 31^o 1675.

Edwards ag^t Stone

Thomas Edwards plaint. ag^t Daniel Stone Chyrurgion Defendant in an action of debt for witholding the Summe of One hundred Sixty & two pounds Five Shillings due by bond bearing date the 28^th of March. 1672. in which bond the saide Stone is bound with & for Caleb Tayler in the Summe abouesaide as in the saide bond appears & the bond is forfited by non payment with all other due damages according to Attachm^t Dat. 21: Aprill. 1675 . . . the Jury . . . founde for the plaintiffe One hundred Sixty two pounds five Shillings in mony being the Forfiture of the bond & costs of Court, Vpon the request of both partys the Court chancered this bond to Eighty one pounds twelue Shillings six pence in mony the principall debt & costs of Court being twenty eight Shillings & two pence.

m^r Tho: Edwards appeared in the office aug^o 25^o 75: & acknowledged hee had received full Satisfaction for the within written judgem^t from m^r Dan^ll Stone.

as Attests. Js^a Addington Cler

Edmonds ag^t Robinson

Robert Edmonds Executo^r to the Last will & testam^t of George Foxwell deceased plaint. ag^t James Robbinson alias Robertson of blew point alias Scarborough Defend^t in an action of the case for non payment of Fifty pounds in Fish & wheate according to the s^d James his Specialty or ingagement under his hand bearing date the .24^th of august. 1671. as may appeare; which s^d debt or payment was due or to bee paide the 24^th day of June next after the date of the saide Specialty for twenty five pounds of it & the other twenty five pounds was due or paiable the 15^th of October. 1672. as appeare by s^d Specialty & due interest of the afores^d Summe for not being paide in due time is here [311] claimed & other due damages according to attachm^t Dat. March. 9^th 16⁷/₇⁴/₅ . . . the Jury . . . founde for the plaintiffe twenty five pounds Sixteen Shillings six pence damage according to bill & costs of Court Forty Shillings & eight pence.

Execucion issued May: 14^o 1675.

Edmonds ag^t Robbinson

Robert Edmonds Executo^r to the last will & testament of George Foxwell deceased plaint. ag^t James Robbinson alias Robertson of blew point alias Scarborough Defend^t in an action of the case for non paiment of Fifty pounds in fish & wheate according to the saide James his specialty or ingagem^t under his hand bearing date the .24^th day of August in the yeare. 1671. W^ch s^d debt or paiment was due or to bee paide the .24^th day of June in the yeare 1673. as may appeare, which is to say twenty five pounds of it at the aforesaide time & the other twenty five pounds the 15^th day of October. 1673. as per the s^d specialty appeares & due interest of the aforesaide Summe for not being paide in due time is hereby claimed & other due damages according to attachm^t Dat. March. 9^th 16⁷/₇⁴/₅. . . . The Jury brought in theire Verdict they for the plaint. Fifty pounds to bee paide according to bill & costs of Court Forty Shillings & eight pence.

Execucion issued May: 14^o 1675.

Edmonds against Robbinson

Robert Edmonds Exec^r to the last will & testament of George Foxwell deceased plaint. ag^t James Robbinson alias Robertson of blew point alias Scarborough Defend^t in an action of the case for non payment of Fifty pounds in Fish wheate & beefe according to the s^d James his specialty or ingagement under his hand bearing date the 24^th day of august in the yeare. 1671. as may appeare; which s^d payment was due or to bee paide (to say) twenty five pounds the .24^th day of June. 1674. the other twenty five pounds to bee paide the .15^th day of October 1674. as per saide Specialty appeares & due interest of the afores^d Summes for not being paide in due time is here claimed & other due damages according to attachm^t Dat. March: 8^th 16⁷/₇⁴/₅ . . . the Jury . . . founde for the plaint. Fifty pounds to bee paide according to bill & costs of Court. Forty two Shillings 2^d

Execucion issued May 14^o 1675.

Edmonds against Foxwell

Robert Edmonds Exec^r to the last will & testament of George Foxwell dec^d plaint. ag^t Richard Foxwell of blew point alias Scarborough Defend^t in an action of the case for non payment of Six pounds being the remainder of Eight pounds & for non performance of severall Articles mentioned in writing according to Engagem^t Covenant or Specialty [312] under the hand of s^d Richard Foxwell bearing date the .20^th day of August. 1669. as may or will appeare for the proofe of all aboueSued for as due & to bee performed & due interest for non performance of which according to the afores^d Covenant agreement ingagement or Specialty is to the plaint^s damage to the Summe abouesaide with other due damages according to attachm^t Dat. March 9^th 1674. . . . The Jury . . . founde for the plaint. Six pounds according to specialty & costs of Court twenty Seven Shillings & two pence.

Execucion issued May. 14^o 1675.

Brattle ag^t Hudson

Tho: Brattle plaint. ag^t Cap^t William Hudson Defend^t according to attachm^t Dat. Aprill. 19^o 1675.

The plaint. withdrew his action.

Davie ag^t Hudson

Humphry Davie plaint. ag^t Cap^t William Hudson Defend^t according to attachm^t Dat. Aprill: 22^o 1675.

The plaint. withdrew his action.

Davie ag^t Hudson

Humphry Davie plaint. ag^t Cap^t William Hudson Defend^t according to attachm^t Dat. Aprill. 2^d: 1675.

The plaint. withdrew his action.

Clarke ag^t Grant

Thomas Clarke of Boston Merchant plaint. ag^t James Grant Defend^t for not paying him a debt of thirty three pounds eighteen Shillings with forbearance & other just damage according to Attachm^t Dat. aprill. 14^o 1675. . . . The Jury . . . founde for the plaint. twenty eight pounds thirteen Shillings ten pence being the ballance of accompt & costs of Court two & twenty Shillings & six pence.

Execution issued 6^o Aug^o 1679.

Gibbs ag^t Whetcomb

Benjamin Gibbs plaint. ags^t Josiah Whetcomb assignee of Joseph Walters Defend^t in an action of reveiw of an action of the case commenced by s^d Whetcomb as Assignee afores^d against s^d Gibbs (for witholding a horse with bridle & saddle) at a County Court holden at Boston Octob^r 27^th 1674 & there tryed & judgem^t granted with other due damages according to Attachm^t Dat. January. 25^o 1674. . . . The Jury . . . founde for the Defend^t costs of Court, allowed twenty Shillings. The plaint. appeal^d from this judgement unto the next Court of Assistants & himselfe principall in £.5. & Anth^o Checkley & Jn^o Sandys Sureties in 50^s apeice acknowledged themselves respectiuely bound to . . . prosecute his appeale . . . [313]

[For earlier developments in this case, see above, pp. 486, 490, 493, 512. S. F. 1424.9 is a “declaration” by Gibbs; Whetcombe’s answer is in S. F. 1424.12. Gibbs’s Reasons of Appeal from this second judgment against him follow (S. F. 1427.7):

Benj^a Gibbs his Reasons of Apeall from the Judgment of y^e Countie Court Sitting in Boston y^e 27^th Aprill 1675 to y^e honord. Court of Assistants

Imprim^s Because y^e apellant humbly Conceiueth y^t by y^e s^d Iudgment he is made uncapable to acompt any thing (Even y^t which he hath y^e Best right unto) to be his Own but if any person hath y^e Impudence to comence an action against him for it he must imediately resigne it Least it be recovered from him w^th far more Cost & Charges; for y^e horse w^th bridle & sadle in controversy; was made y^e appellants By y^e Exact observation of a court order from w^ch order there was noe desire of An apeale by Ioseph waters Assigner of s^d horse: & thereby y^e apellant Humbly conceiues: made his Propper estate without being responsable to any man therefore; else y^e aprisement would proue a cheat to y^e receuer w^ch is not to bee Imagined y^e act of an honest man; much Less of an hono^rd court of pious Christian Majestrates upon w^ch aprisement y^e receiuer Improues and provides for y^e Creature As his own & charges noe man for y^e keeping thereof under w^ch consideration y^e apellant did soe; for y^e horse in controversy untill he had bin at more Cost without any Profitt yⁿ y^e said horse was worth Including what he paid y^e counstable for y^e same

Secondly y^e Iuries oath binds them to giue a lust verdict acording to law & evidence but he humbly conceiueth there is noe evidence in this case y^t Proues y^e then plantif to haue any right to y^e horse in Controversy, neither doth the apellant know any law y^t giues y^e assigne any right unto y^t which y^e Assigner hath not any for a man can deriue to another [noe] more right yⁿ he himself hath but y^e Assigner of y^e horse in controversy had noe legall right unto y^e horse for before y^e Assignement as per y^e date apeareth: y^e horse was made y^e appellants And y^e vallew thereof [w^ch] remained secured in his hands at y^e comand of y^e honored court (As he suposed towards y^e Satisfaction of his fine to y^e country) soe y^t when y^e apellant Saw y^e first atachment demanding y^e horse in behalf of Iosia whettcomb assigne Vnto Ioseph waters; he Expected y^t both y^e assigne & assigner would haue had a severe Check from y^e honord Court for y^e high contempt of their athority & not himself to be cast for not obeying s^d demands to pay Eight pounds or there abouts in Money as pr. y^e Courts order [n^o] 6: & Iosia whettcombs bill costs n^o: 11: Altho the Plantiue Was informed y^t s^d whettcomb boasted in y^e Country y^t he had y^e advice of three majestrates to sue y^e apellant for y^e horse but as y^e apellant then Did soe as in dutie bound he now doth beleiue it a false & Slanderous [Report] of s^d Whettcomb Corespondent to y^e rest of his actions in this case and y^t the court & Iury acted acording to their then understanding of y^e case well Knowing And beleiueing y^t Antient & devine maxime tho: may Seeke y^e Rulers favour Every Mans sentence is from y^e lord; upon whose Pleasure in this concludeing Sentence he hopeth with quietness to awaite haueing bin at nere twenty pounds charge In and concerning y^e procecuteing of a runaway theif & y^e apendencies thereof Humbly requesting y^e Iury to veiw & consider y^e Evidences & concludes they will find noe Ground of Action for y^e theif nor his Assigne but lust cause to Returne y^e apellant his money w^th costs. all w^ch he humbly comends to y^e hono^rd Court & Gentlmen of y^e Iury as y^e Reasons of his apeall

And Subscribes

Your Honou^rs Humble Serv^t

Benj^a Gibbs

These Reasons were received 2^d Septemb^r 1675.

per Is^a Addington Cler

The gist of Whetcombe’s Answer to the Reasons (S. F. 1424.8) was that, Gibbs

hauing Resaiued the mony to the full extent of the Law the now defendant doth humbly conseaiue that hee cannot haue any Just Right to the hors in controuersye: and for the greatnes of his charg it may esily apere that hee had the hors but a Litell tim before the mony was payd him. . . .

it is euident enugh that m^r gibs hauig Resaud satesfactyon acording to Law without the hors hee had then no Right to the hors and that the sentens of the honerd County court hath ben performed is euident by the Resaight for y^e mony vnder m^r gibs his owne hand. . . .

The appeal was heard in September, 1675, by the Court of Assistants, at which one Jacob Jesson was an unwilling member of the jury. Disgusted by the want of logical and consistent principle in the regulation of this affair by the Courts hitherto, he repeatedly refused to concur with the rest of the jury in sustaining the verdict of the lower court. The result is indicated in the following order of the Court of Assistants (S. F. 1424.4):

It is ordered that Jacob Jesson giue Bond in the some of 20^l for his Apperance before the Generall Court held the 13^th of October next, then & there to Answ^r for his non concuranc vnto the Judgment of the Bench & eleuen of y^e Jury in a Case depending, And the Jury is dismist at p^rsent and after the Generall Court; haue giuen there Judgment concerning the said Jesson, the sayd Jury are to Attend the Court of Assistants when they are called therevnto.

Such an infringement of a juror’s freedom of judgment required a protest, and Jesson made it, in the following document (S. F. 1424.10):

Boston October 13^th 1675

Jacob Jesson his Reasons why he Could not Concur with the Rest of the Jury in this following Case

It Being my vnhappiness to bee at the Court of Assistants heareing of Actions tryed [the] one of the Jury did Craue to be Releast which I perceiueing did hasten out of Court but was Called back Contrary to my Desire to Supply his Place; by the then: honored Gouernour & soe was Sworne one of the Jury: to whose more hard happ it fell: to haue a Case Commited to be Concerning a horse; the Occasion of which Suite was this: [statement of facts omitted] . . . but for my own part: I could not then nor now see any Reason for it [the judgment of the lower court] for here is A Court order for Benj^a Gibbs possessing of the Horse: but noe Court order to disposses him Soe that If gibbs should haue deliuered the Horse to Whitcomb: he is still obliged to deliuer the Horse or the value to the Court: when they shall call for [it] & how vnreasonable is it that gibbs should pay for one thing twice y^or Hono[rs] will Easily Judg: now that gibbs is Accountable to the court & none other is Euident: because he is only Betrusted By sd Court with sd Horse & the Horse not deliuered to him as part or whole Sattisfaction & this must nessesarily be owned: to bee the only intent of the Court in putting him into [his] Hands: or Elce it must Be sayd that the Court Intended own thing & ordered another: but [that] I Dare not say: but affirm that the whole purport of the order is tending [torn] this thing; Saying that the Constable of Lancaster: being at great Charge w[torn] sd Horse wee doe order he be deliuered at an apprisement vntill further order should be taken about him: forbeareing to declare that gibbs should ha[ue] the horse as A Compensation for Wrong Sustained & indeed How Could the Court grant a Judgment against sd Waters: before he had his tryall & if soe: then gibbs Could not haue the horse any other way but as A trustee Responding the Appri[se]ment when Required from the Court now Gibbs Being only A trustee he is not Responsible to any other person but those who betrusted him Waters neuer betrusted him With a horse: & therefore noe Reason to giue him such a horse The sd Waters takeing a Wrong Course: for Instead of Sueing gibbs he ought to haue made his address to [y]^e Court; who tooke his horse from him: & got there order to gibbs to deliuer him & then his Way had been Clear Either gibbs Would haue been as good as his Word: in saying vpon Sight of Such an ord^r he would deliuer the Horse: or Elce with far less trouble he would haue been made doe it; the Premises being Well Considered I Cannot Consent to find against gibbs & am Soe throughly Setled in my Judgment: that I should be absolutely forsworn: if I should find other Wise; without haueing more light aforded to mee then I Could euer see yett; & therefore wherein I am soe Culpable as to be soe Highly threatened by the Honored Gouernour & Maj^r Clark: either with a fine of neare a thousand pounds per Annum: or Imprisonment I cant see any Reason or law for it: without there be a Law: that he that will not be forsworn shall pay more then he hath or Elce be Imprisoned: but forsworne I must bee If I find against gibbs: according to the best Judgment I haue: but it may be my dissenting from the Rest of the Jury was not Soe hainously taken as dissenting from the Court: to which I answer: that whether the Court was not of my mind I will not say: but this I can say that Seuerall Honored Magistrates did declare themselues to be of the same apprehention I am of but Suppose neuer A Magistrate: had been of the same minde with my self; what Crime is it; that: that conuicts mee of: I know noe Law that Requireth Jury men to be of the same mind with the Maggistrates: nor noe oath that is giuen to vs to oblige vs soe; but this I know that: Jury men doe take oathes to giue in A Just Verdict According to Law & Euidence: which can bee vnderstood noe otherwise then According to their Best Judgment: & not According to the Judgment the bench is off; for if that should bee the mean[ing] of [the] oath then the Jury are not Judges but the bench which is in Effect to [torn] vs of all our Libertie: & to take the power out of our Hands: which the [torn] giuen vs: for it: for the Law Sayth a Jury of twelue men shall try Cases & their [torn] shall stand: although the bench doth not Agree to it: & the Reason is A Jury [torn] the plantifes & defendants peers: But the bench are not their peers: & therefore to make a Jury Say as y^e bench sayth is to mock the Law & to make Jury men but noses of Wax: which thing is soe vnreasonable that none will plead for it: Soe that Seeing as A Jury man I am not Required to be of the same minde with a Court but according to my own Judgment to act & doe (the Law haueing prouided A Remedy in Case any Jury Should goe Contrary to Law) I Cant Judg what Reason there can Bee giuen: why I Should Be thus highly punnished in being bound ouer to A generall Court which Causeth my Reputation to Come in Question for sayth vox populi if he had Not Commited some hainous transgression he would not haue been bound ouer to this Court & besides A great Losse to me & if the Court would but Consider the great vexation of spirit: this Business hath Caused mee in soe much that the Loss of some hundreds of pounds: hath not occasioned; and all because I cant make my Concience Buckele Like a twig & Say the sun shins when I know its only moon light soe Desireing the Honored Court to Remember that there is noe breach of Law pleaded against mee nor non haue I Broke: & therefore indeed ought not [in] my Judgment to haue been Bound ouer: if I vnderstand what the first Law in the Lawbooke sayth: that noe mans good name shall Be taken away nor his estate: nor bee anyways punished: but by vertue of Some Express Law of this Co[unt]ry Legally published: now if any such Law I haue Broke: the Court doubtlese would haue cited it & Conuicted mee: but noe such Law Being transgrest I hope I may thinke without offence: I haue harder Measure meeted to mee then the Law doth allow; & therefore to this Honoured Court I would Humbly make my Request that you would vindicate my Creditt: which hath Been stained: & Aquit me from this Jury & Consider the needles trouble I haue been put to

& Soe I shall remaine your

honors humble serv^t

Jacob Jesson

By this means the case of the horse and porringer had come to involve the liberty of the subject and the right of jurors to dissent. No reference to the case of Jesson will be found in the official Records of the General Court; the intention of the authorities to keep it out of the public records is evident. But in the docket of this case is a copy of the following judgment of the General Court (the highest Court in the Colony) on 18 November 1675 (S. F.1424.16):

This Court haueing considered the case of m^r Jacob Jesson bound over to this court from the Court of Assistants for his wilfull & pertinacious opposeing, & vnreasonable refuseing to Concurr w^th the Bench & Eleven of the Jury in the Case between m^r Benj^a Gibbs & Josiah Whetcom together w^th those high refections, & abusive Exp^rssions in his declaracion given in to this Court tending to the debaseing Authority amongst us, doe Adjudge the Said Jacob Jesson to be publiquely admonished & to pay the Summe of tenn pounds in money as a fine to the Country, & to stand Committed till this Sentence be performed, the Deputyes haue past this o^r Hono^rd Magists Consenting hereto

William Torrey Cleric

18.9: 1675

Consented to by y^e magists Edw: Rawson Secret

This case is an interesting parallel to Bushell’s case, in England, which established the juror’s right to independent judgment almost contemporaneously. Bushell’s case grew out of the trial of William Mead and William Penn. See Thayer, Preliminary Treatise on Evidence, p. 166, and a recent reprint of the trial,1 in which expressions at times strikingly similar to those of Jesson were employed to greater effect.]

Hudson ag^t Smith

Cap^t W^m Hudson plaint. ag^t Elizabeth Smith widdow & relict of Francis Smith sometime of Boston dec^d Defend^t in an action of debt of twenty four pounds or thereabouts due by booke; which debt was contracted by her saide husband & the s^d Elizabeth having made herselfe Liable to pay the s^d debt as having entred upon alienated or imbezelled the goods or Estate of the deceased without proving any will of the deceaseds taking of Administracion or bringing in an Jnventory of his lands goods & debts with all due damages according to attachm^t Dat. Janur^o 19^th 1674. This accion was by order continued from the Last Court untill this & being now called. . . . The Jury . . . founde for the plaint. two & twenty pounds & seven pence in mony & costs of Court. The Defend^t appealed from this judgem^t unto the next Court of Assistants & herselfe principall in £.44. & Experience Willis & Rich^d Travis Sureties in £.22. apeice acknowledged themselves respectiuely bound to . . . prosecute her appeale . . . .

[This undated petition from Elizabeth Smith (S. F. 1398.5) explains why she objected to being held liable for her husband’s debts:

To this Honored County Court Sitting in Boston Elizabeth Smith sometime the wife of Francis Smith of Boston Cardmaker & not yet knowing him to bee dead, yet having received a Summons hereunto annexed & not being able nor hath been to rise out of her bed or walke from the same this severall monthes; by virtue of the law title (Liberties Common) humbly offereth this unto yo^r wise consideration.

That Shee is not liable legally to pay the debts of her s^d husband if hee bee either living or dead: though the s^d Summons saith I am liable to pay the plaintife his demands therein; Because (as hee saith) having entred upon alienated or imbezled the goods ec. without proving any will, taking out Administration or bringing in an Inventory of my s^d husbands Estate; which I humbly conceive had been improper to doe untill I could prove my husband dead; nor doe I beleive any Court will grant Administration upon any mans Estate untill hee bee dead & soe proved. Wherefore if Captⁿ Hudson can prove my s^d husband dead, it is my desire (if it may soe please the Court) that hee may haue Administration of his Estate and untill hee proves him dead his cause of action is groundless as in the Summons mentioned.

Another thing for him to prove as (I humbly conceive before his action can bee committed) that I haue entred upon ec. for there is a difference between entring upon & being left in possession; and in truth I haue not nor ever had since my husbands departure from this Town for England aboue Six yeares past any of his Estate excepting a little poore bedding & some (& that a few of) other old household stuffe, which hee left mee possessed of & therefore did not enter upon & possess my Selfe thereof.

Lastly, this I say that I did never thinke my husband to bee in Captⁿ Hudsons debt; but this I doe know that my husband did about Sixteen yeares agon send mee to Captⁿ Hudsons with five pounds in mony to lend him & I did then deliver it to him. & since that I know that my husband did Lend him twenty Shillings when our wharfe was laide at the dockhead unto which I can bee deposed & intreate of this Court I may so doe if you are pleased to judge the same needfull & yet I find no mention of neither of these saide Summes in the plaintifes acco^t nor any other but two articles on the Credit side without date in his old Acc^t begining neere upon 24. yeares past & ending neere upon 12. yeares since & never that I know any of it demanded till now: all which I leaue with yo^r wise consideration praying god to direct you in all truth.

Elizabeth × Smith

her marke

. . . true Coppie . . . Is^a Addington Cler.

The following evidence of Smith’s death (S. F. 1398.6) was produced:

Hudson Leverett aged thirty Six yeares or thereabouts testifieth & saith that being in company with S^r W^m Bartlet, Colonel Kendall & Captⁿ Jn^o Custes at a place called greene Spring,2 the aforesaide Custes told mee that there was one Francis Smith a Cardmaker that belonged to New-England was a Servant to S^r W^m Bartlett & that hee lay dying of the Scurvey & dropsey, upon which s^d Capⁿ Custes went with mee and shewed mee the s^d Smith & I saide Captⁿ Custes I never saw a man so altered in my life, for I hardly knew him untill hee spake, & the next morning when Captⁿ Custes & I arose one of S^r W^m Bartlets men told us that the abouesaide Francis Smith was dead & then saide Custice & I went down & saw the s^d Smith lye dead in a Coffin whome when sick I knew to bee the same Francis Smith that sometime lived in Boston & was a Cardmaker here: this was when I this deponent was last in Virginia

Sworn in Court. 27^o Aprill 1675. as Attests Is^a Addington Cler

. . . true Coppie . . . Is^a Addington Cler

Copy of attachment in S. F. 1398.1; deposition of Richard Wharton in S. F. 1398.8; Elizabeth Smith’s Reasons of Appeal in S. F. 1398.3. These Reasons refer to the title “Wills” (General Laws and Liberties of Massachusetts, 1672, p. 157), and argue that knowledge that the owner is dead must be a prerequisite to liability for intermeddling with a decedent’s property under that statute.

The Court of Assistants (Records, i. 44) reversed the judgment of the County Court and awarded 26s to the widow (?) Smith.]

Hudson to Brattle

Cap^t William Hudson personally appeared before the Court & acknowledged a judgem^t ag^t himselfe & Estate unto m^r Thomas Brattle for Sixty three pounds Eighteen Shillings & ten pence in mony according to bill bearing date Nov^r 2^d. 1672. in full of s^d bill.

Execucion issued Octo: 5: 1676.

Peacock to Hutchinson

Samuel Peacock personally appeared before Jn^o Leverett Esq^r Gov^r & W^m Stoughton Esq^r Assist. Aprill: 27^o 1675. and acknowledged a judgem^t ag^t himselfe & Estate for twenty five pounds Seven Shillings & Six pence in mony according to bill date. 6. 8^br 1673. unto Eliakim Hutchinson.

Execucion issued June. 21^o 1675.

Crispe to Gibbs

Jonathan Crispe of Dunstable personally appeared in Court & acknowledged a judgem^t ag^t himselfe & Estate unto m^r Benjⁿ Gibbs of Boston for ten pounds ten Shillings in mony being the full ballance of all Acco^ts to this day

Execucion issued July 12: 1675.

Selectmens Caution

The Selectmen of Boston enter caution ag^t Baker Riders resideing in this Town.

Woods guardian

Bethiah Wood daughter of Nicholas Wood late of Boggleston dec^d appeared in Court & made choise of Robert Badcock of Milton for her guardian which hee accepted & the Court approved of, hee giving in Security according to Law. [314]

Chamberlain and Northy admonish’t

William Chamberlain jun^r of Hull & John Northy of the same place being presented by the Grandjury for absenting themselves from the publique worship upon the Sabbath, the presentment being called Chamberlain owned that hee had not attended on the publique ministery of the word at Hull this. 4. or. 5. yeares & John Northy owned that hee had not attended upon the publique ministry this yeare & halfe, it being the first time of theire conviction. The Court admonished them & Order them to pay all charges of prosecution & Fees of Court & prison & that Execucion issue for the same if they refuse payment.

Execucion issued. 24^o June. 75: to Benjⁿ Bosworth for 6^s

Order ab^t Peirce’s bond

The Court Orders that upon Mihel Peirce his payment of Five pounds in mony forthwith to the Treasuro^r of the County the Forfiture of his bond upon the disappearance of Jonathan Sprague bee remitted & the former Orders respecting it reversed.

Sprague Fin^d 10^s

William Sprague Sen^r of Hingham not appearing according to Summons to Serve on the Jury of tryalls The Court Fined him ten Shillings in mony to the County.

Daws his discharge

John Dawes of Boston was discharged from attending upon ordinary traynings in majo^r Thomas Clarke his company.

The Grandjury brought in theire bill of presentments aprill. 28. & were discharged.

Order for a Fence at the Prison

The Court Orders that forthwith there bee a strong & substantiall Fence made up about the prison yard towards the Streete that Stuffe & workemen bee impressed for that Service & that the Treasure^r of the County defray the charge thereof untill farther order bee taken about it.

Ellice his Estate Setled

For the Setlem^t of the Estate of the Late Joseph Ellice of Dedham dec^d The Court assignes one third part of the houseing & land now unsold, unto the late widdow of the s^d Ellice during her natural life, the other two thirds thereof are confirmed upon the s^d Ellice his Children to bee set out to them as they come of age, the eldest Sonn to haue a double portion thereof & in case any of the Children dye before they come of age, the portion of the Childe so dying to bee devided amongst the Survivo^rs the s^d widdow to haue the use of the whole for the bringing up of the Children untill they come of age, the remainder of the Estate is confirmed upon her & her heires forever, & that John Bracket who married with the s^d Widdow give Security for the performance of this order to the Children & upon the s^d Bracket his doing of the same, the bond for her true administracion is to bee delivered up. [315]

Order to Jn^o Levit ab^t Hanna Lobdell

The Court Orders Deacon John Levit of Hingham to take care of & make provision for his grand childe Hanna Lobdell who is at present at Hull & that hee haue the Estate left her by her Fathers will delivered to him according to will for her Education; which hee accepted of upon this Order.

Porters Estate Setled

The Court confirmes the whole Estate Left by Tho: Porter of Waymouth dec^d according to Inventory upon his widdow to bring up her Childe withall & that Shee pay twenty Shillings out of the same unto the Childe when it comes of age.

Weekes Clerke of the Writts

W^m Weekes of Dorchester being chosen by the Freemen and approved of by the Court as Clerke of the Writts for s^d Town was Sworn to the faithfull discharge of his Office.

Adams admonish’t

Nathaniel Adams jun^r being presented by the Grandjury for his misdemeano^rs in words & carriage towards Cap^t Scarlet & Deacon Phillips & his disorderly carriage in the meeting house as will appeare by the testimonies given in The presentm^t being called, the s^d Adams owned it & acknowledged his Error therein & his sorrow for it & Cap^t Scarlet & Deacon Phillips appearing & acknowledging that they were Satisfied by s^d Adams: The Court admonished him ordered him to pay Fees of Court & discharged him.

Treasuro^rs Order to pay Clifford

The Treasuro^r of the County is ordered to pay unto Jn^o Clifford Constable of Salem twenty Five Shillings & Six pence for his charges in apprehending & bringing Ric^d Francis to Boston.

Bracket Sworn a Freeman

James Bracket of Brantery tooke the Oath of Freedom of this Colony.

Marsh discharg^d from trayning

Upon Certificate from Cap^t Joshua Hobart Onesiphirus Marsh was discharged from attending upon ordinary traynings in the Military company at Hingham or wherever hee may remove, so long as his Family are under theire present affliction.

Audit of Dinely’s administracion

The Court appoints Cap^t Edw: Hutchinson & m^r W^m Tayler to audit the accompt of Fathergon Dinely’s administracion to the Estate of his brother Jn^o Dinely & to make return to this Court.

Fayrebancks presentm^t

George Fayrebanck of Medfeilde being presented by the Grandjury for absenting himselfe from the publique worship of god upon the Lords day the presentm^t not being proved fell.

Arnall admonish’t

William Arnall of Milton being present^d by the Grandjury for night walking & neglecting his calling The Court having well weighed & duely considered the Evidences produced ag^t him doe Sentence him to bee admonished to pay charges of [316] prosecution & fees of Court standing committed untill the Sentence bee performed.

Bazely presented

Thomas Bazely of Brantery presented by the Grandjury for mispending his time & wasting his Estate in excessive drincking The presentm^t not being proved fell.

Brantery under a poenalty

The Town of Brantery being presented for the want of a bridge both for horse & foote at the brooke called Smelts brooke neere Waymouth: The Court Orders that the Selectmen of Brantery do make a good substantiall foote bridge over the s^d brooke by the next Court of this County under the poenalty of Forty Shillings.

Place his Estate Setled

For the Setlement of the Estate of the late Peter Place of Boston dec^d the Children Left by him being grown up & having received something already from the Estate: The Court confirmes what is now remaining of the Estate upon Alice his widdow during her naturall life, & Order that at her decease it bee devided among the Children left by the s^d Peter Place according to law; the s^d widdow paying what just debts are demanded from the Estate; & upon condition of her making over the house as Security for the use of the Children Shee is discharged from her bond for true Administracion.

Angola’s Estate Setled

For the Setlement of the Estate of the Late Angola Negro dec^d The Court confirmes the whole Estate upon Elizabeth his widdow during her naturall life & at her decease the house & land is confirmed upon the s^d Angola’s Children the movables to bee to her & her heires forever.

Harbour present^d

John Harbour of Brantery presented for neglecting the publique worship of god in Brantery & frequent travelling upon the Lords day as far as Boston: The presentment not being proved fell.

Boston under pœnalty

The highway at the tide mill at Boston being present^d by the Grand jury for want of sufficient defence from the water of both sides the bridge whereby one man was drown^d The presentm^t being called m^r Tho: Brattle appeared in behalfe of the Town. The Court upon consideration of what was alleaged in the case doe order the Selectmen of Boston to make it up sufficiently for defence of passengers by the next Court of this County und^r the poenalty of Five pounds.

Order ab^t Scants Children

W^m Scant of Brantery being bound over to this Court to answer for his not ordering & disposeing of his Children as may bee for theire good education & for refuseing to consent to the Selectmen of Brantery in the putting of them forth to Service as the law directs. [317] The Court having duely weighed & considered what was alleaged by him & the State of his Family doe leaue it to the prudence of the Selectmen of Brantery to dispose of his Children to Service so far forth as the necessity of his Family will give leaue.

Toldervay Fin^d 5^li

W^m Toldervay being presented by the Grand jury for selling strong liquo^rs without licence; which himselfe owned & many witnesses testified it ag^t him The Court Sentenc^d him to pay Five pounds in mony as a fine to the County & to give in bond of twenty pounds with Sureties for the good behavio^r untill the next Court of this County (especially that hee doe not transgress the law by selling liquo^rs) & then to appeare; & to pay Fees of Court standing committ^d &^a

Moulder Fin^d 4^li

Nicholas Moulder & his wife present^d by the Grandjury for neglecting the publique worship of god in o^r publique meeting houses allowed by Law upon the Lords day; And being called to answer for the same, owned the presentm^t The Court Sentenc^d them to pay Forty Shillings in mony apeice as a fine to the County & fees of Court & order Execucion to issue out for the levying thereof in case they do not make paym^t

Execution issued 15^o July. 1675.

Stretton & Amee Fin^d 4^li

Eliphal Stretton & Martha Amee present^d by the Grandjury for neglecting the publique worship of god in o^r publique meeting houses allowed by Law upon the Lords day, & being called they owned the presentm^t The Court Sentenc^d them to pay Forty Shillings apeice in mony as a fine to the County & Fees of Court & order execution to issue out for the Levying of the same in case they do not make payment.

Synderland Sentenc^d

John Synderland Senio^r being complained of to this Court for falsifying his trust as hee was Clerke of the band under the command of Majo^r Thomas Clarke & endeavouring to defraud the Company of a considerable Summe of mony being under Oath for the faithfull discharge of his Office; hee appearing acknowledged what hee was charged with: Upon consideration of his offence therein The Court disabled him for bearing any office for the space of three yeares; disfranchized him & Sentenc^d him to pay Five pounds in mony as a fine to the County & Fees of Court. Vpon consideracion of his poverty the Court respit^d the taking of his Fine till farther order.

Floode admonish’t

Henry Floode being presented by the Grandjury for neglecting his calling, mispending his time & Estate in excessive drincking to the wronging of his Family: The presentm^t being called hee appeared & owned it, manifesting his sorrow for it: The Court Sentenc^d him to bee admonished & to pay fees of Court. [318]

Littlefeild Sentenc^d

Rebecca Littlefeild presented by the Grandjury & convict by her own confession in Court of having a bastard Childe, which was begotten by Fornication, onely saide the act was committed in Plymouth jurisdiction & had been under the cognisance of theire Court & Shee there Sentenced; but no proofe made thereof The Court Sentenced her to bee whip’t severely with twenty Stripes in case Shee depart not this jurisdiction by the next Court of this County & to pay Fees of Court.

Hardingham Sent^a

Michael Hardingham convict by his own confession in Court of stealing a Suite of cloathes from Tho: Carr; which are returned the s^d Carr again being first valued at thirty five shillings The Court Sentenc^d s^d Hardingham to bee whip’t w^th Fifteen Stripes or to pay Forty Shillings in mony as a fine to the County & to pay unto Tho: Carr three pounds ten Shillings in mony being that threefold restitution the Law requires, with Fees of Court & prison standing committ^d &^a

Thayres bond

Richard Thayre bound himselfe in Court in the Summe of Five pounds mony to the Treasuro^r, to answer all such charges as the Court shall adjudge him to pay, upon the hearing of his complaint ag^t Tho: Thayre & John Pray.

Hord Sentenc^d

John Hord Sen^r committed to prison for being a common drunckard The Court having duely weighed & considered what Evidences & pleas were produced in the case doe disfranchize him & Sentence him to give in bond with Sureties or other good Security to value of 40^li till the next Court of this County & then to appeare & to pay Fees of Court & prison standing committed &^a

Gross’s Estate Setled

For the Setlement of the Estate of the late Isaac Gross of Boston dec^d The Court Orders that Elizabeth his relict since Eliz^a Gridley enjoy the whole Estate untill Eliz^a the onely Childe of s^d Gross come of age or bee married w^th the consent of her mother, then the widdow to enjoy onely one third part thereof during her life, the remainder is confirmed upon the Childe & her heires.

Gridleys Estate Setled

And in relation to the Estate of the late Tremble Gridley of Boston dec^d The Court Orders for the Setlement thereof that Elizabeth his relict & widdow enjoy the whole Estate untill Hanna the onely Childe left by s^d Gridley attaine the age of twenty one yeares or bee married with her mothers consent towards her & Childes maintenance & then that the saide Eliz^a Gridley pay out thereof unto the Childe the Summe of Fifteen pounds if it Hue to that time

Williams admonish’t

John Williams being bound over to this Court to answer for his killing a bitch of m^r Humphry Warrens & threatning his Negro boy other dogg; the charge not being legally proved against him fell, but hee behaving himselfe very [319] rudely & unmannerly in the Court upon his tryall The Court Sentenc^d him to bee admonished & to pay Fees of Court.

Richards Sentenc^d

Humphry Richards being committed for his theft in stealing a paire of Stilliards from Cap^t W^m Hudson valued at thirty Shillings & a paire of Screws from m^r John Saffin valued at three pounds. Upon hearing of the case the s^d Richards confessed in Court that hee had the Stilliards & Screws & carried them to Newyorke; but that now they were returned to Boston again. The Court Sentenced the s^d Richards to pay unto Cap^t Hudson Four pounds ten Shillings in mony & m^r Jn^o Saffin nine pounds in mony being that threefold restitution which the Law requires, returning the Stilliards & Screws in part of s^d Summe paying Fees of Court & prison standing committed untill the Sentence bee perform^d

Holmes admonish’t

Nathaniel Holmes bound over to this Court to answer for his injurious detaining the armes & apparrell of Joseph Twichell The partys appearing in Court & declaring they had agreed between themselves; The Court upon hearing what was owned & alleaged in the case doe Sentence the s^d Holmes to bee admonished & to pay Fees of Court.

Roberts, Browne &^a Sentenc^d

John Roberts, Sam^o Browne, Sam^o Addams, Robert Seares, Nathan^ll Greenwood jun^r Josiah Baker, Sam^o Woody, James updick & William Partman being bound over to this Court to answer for theire forceible taking John Langworthy upon a pole & by violence carrying of him from the North end of Boston as far as the Town dock; which occasioned a great tumult of people; meeting there with the Constable who did rescue him; The partys appearing in Court acknowledged the charge & declared theire ground of so acting towards him was for that hee was an interloper & had never served his time to the trade of a Ship carpenter & now came to worke in theire yard & they understood such things were usuall in England: The Court on consideration of the case doe Sentence each of the abouenamed persons to pay Five Shillings in mony as a fine to the County & Five Shillings in mony to Jn^o langworthy & to pay Fees of Court standing committ^d &^a

Smith Sentenc^d

Dorcas Smith being presented to this Court as being a common drunkard The Court upon hearing of what was Evidenced against her as to that & also of her curseing & other wicked expressions, it being after former convictions. The Court Sentenc^d her to bee whip’t with Fifteen Stripes or to pay twenty Shillings in mony fine to the County & to pay Fees of Court, standing committ^d &^a & Order the Selectmen of Boston to take care to dispose of her & her Childe.

respit^d upon her good behavio^r

The Court adjourned from Saturday pr^o to Wedensday the 5^o of May at. 9. a clock in the morning. [320]

May 5^o 1675 @

The Court met according to Adjournm^t

Present

Jn^o Leverett Esq^r Gov^r
Edw: Tyng Esq^r
Simon Bradstreet Esq^r
W^m Stoughton Esq^r

Feildes Estate Setled

For the Setlement of the Estate of the Late Robert Feilde dec^d The Court confirmes the whole Estate Left by the s^d Robert Feilde upon Mary his widdow & Relict during her naturall life for the payment of debts & maintenance of herselfe & Children & after her decease the remainder of the land is confirmed upon the Children left by the s^d Feilde to bee equally devided amongst them according to Law.

Carveath Fin^d 5^l

Mercy Carveath being bound over to this Court to answer for selling of liquo^rs without licence & presenting a petition to the Court wherein Shee humbly acknowledgeth her offence therein & beggs the Courts Favour; The Court Sentenc^d her to pay Five pound in mony as a fine to the County & Fees of Court & respit the Execucion thereof till farther order.

Pond’s Guardian

Mary Pond daughter of Robert Pond late of Milton appear^d in Court & made choise of Samuel Wadsworth of Milton as her guardian which hee accepted & the Court approved thereof hee giving Security according to Law.

[Copy of a promissory note from Daniel Henshaw to Wadsworth, for 20s, to be paid to Mary Pond at her majority, is in S. F. 1386.2.]

Ponds Guardian

Martha Pond daughter of aboues^d Pond appeared in Court & made choise of John Gill of Milton as her Guardian which hee accepted & the Court approved thereof hee giving Security according to Law.

Ponds Guardian

Daniel Pond of Dedham is appoint^d guardian to Mercy Pond the other daughter till Shee come of age to choose for herselfe.

Frankes discharg^d from trayning

John Frankes upon certificate from Majo^r Tho: Clarke was discharged from attending upon ordinary traynings in the military company of Boston under the command of majo^r Clarke upon his payment of six Shillings in mony yearely to the use of the company.

Cannon Fin^d 5^l

Robert Cannon being called before the Court to answer for his falsifying his trust as hee was a Sworn Clerke of the military company under the command of Majo^r Tho: Clarke & going about to deceive the company of a considerable Summe of mony; The Court having well weighed & considered of the papers & Evidences in the case produced doe Sentence the s^d Cannon to pay Five pounds in mony as a Fine to the County & to bee uncapable of giving Evidence or testimony in any civill action or bearing any office & to pay Fees of Court standing committ^d &^a

Ockerby Sentenc^d

Thomas Ockerby being committed to prison for his drunckenness & wanton carriages to the wife of John [321] Langberry, hee being under bonds of good behavio^r The Court having heard & well weighed what himselfe owned & the severall Evidences produced against him doe declare his bond for the good behavio^r to bee forfited & Sentence him to pay three pounds thereof forth with & to bee whip’t w^th twenty Stripes & to pay Fees of Court & prison standing committed untill the Sentence bee performed.

Langberry Fin^d 10^s

Elizabeth Langberry being committed to prison for her drunkenness & other misdemeano^rs & appearing before the Court to answer for the same She owned that shee had dranck too much & that Thomas Ockerby pulled her into his lap against her will The Court Sentenc^d her to pay ten Shillings in mony as a fine to the County & Fees of Court standing committ^d untill the Sentence bee perform^d

Punnell Sentenc^d

Mary Punnell being imprisoned for her committing of Fornication & called before the Court to answer for the same, Shee appeared & confessed the Fact & brought her Childe into the Court with her chargeing one James Jarret to bee the Father thereof The Court having considered of her offence doe Sentence her to bee whip’t with Fifteen stripes & to pay Fees of Court & prison And doe Order that Shee bee returned to Milton from whence Shee came & if Shee bee not able to pay her charges nor can procure any Freind to doe it, that then the Town of Milton pay the same & entertain her according to law.

Prison Keeper Fin^d: 5 ^li

Jsaac Gross being committed to prison for his begetting of Esther Nicholls with Childe unlawfully & convaying her away from her Father And being called for by the Court to answer for the same, the Keeper made answer hee was escaped; the Court considering his answer adjudge him to pay Five pounds in mony fine to the County.

Page ordered to pay Rose 3 ^li

William Hilton sent to prison by warrant from majo^r Tho: Clarke for absenting himselfe from the service of Roger Rose & strikeing the s^d Rose & being called for by the Court Edward Page appeared & declared that hee became security to the Constable for his appearance & stood in his place The Court having heard & considered the severall pleas & Evidences in the case doe ajudge the s^d Page to pay three pounds in mony to Roger Rose in behalfe of s^d Hilton & to pay Fees of Court.

Execucion issued July: 27^o 1675. [322]

Licences & Bonds

Vialls Licence

m^r John Viall upon certificate from the Selectmen of Boston had his licence renewed to keepe a house of publique Entertainment & to Sell wine, beere & Sider by retaile for the yeare ensuing & himselfe principall in 10^li & Dan^ll Stone & Jn^o Woodmansey as Sureties in 5^li apeice acknowledged themselves respectiuely bound to the Treasuro^r of the County of Suffolke on condicion the s^d John Viall should observe the Laws title Jnkeepers with all theire additions & that if hee sell Sider hee shall not Sell it for more then two pence per quart.

Wrights Licence

Cap^t W^m Wright upon like certificate had his licence renewed to keepe a house of publique Entertainm^t & to sell wine beere & sider by retaile for the yeare ensuing & himselfe principall in 10^li & Sam^o Norden & W^m Norton as Sureties in 5^li apeice acknowledged themselves respectiuely bound to the Treasuro^r of the County on condicion that Cap^t Wright should observe as aboues^d

Kents Licence

W^m Kent upon like certificate had his Licence renewed to keepe a house of publique Entertainm^t & to sell wine beere & Sider by retaile for the yeare ensuing & gave in bond w^th Sureties of twenty pounds for observance of his licence as aboue.

Turners Licence

John Turner upon like certificate had his licence renew^d to keepe a house of publique Entertainm^t & to sell wine beere & Sider by retaile for the yeare ensuing & gave in bond of twenty pounds with Sureties for observance of his Licence as aboue. [328]3

At a meeting of John Leverett Esq^r Gov^r & Simon Bradstreet & Edward Tyng Esq^r Assist^s May: 10^th 1675.

Order for delivery of goods founde w^th Nich^o Curle

m^r Thomas Doxey appearing & produceing a procuration or letter of Attourny under the hands & Seales of W^m Corbee, W^m Turner, Henry Tanner & John Savage for the prosecution of Nicholas Curie, empowring him the s^d Doxey to take & receive into his custody all such goods or merchandizes as belong unto them or either of them fraudulently taken from them by the s^d Curie which may bee founde The Magistrates order that Js^a Addington in whose custody the s^d goods are by order of Court doe deliver what belongs unto the s^d persons or either of them unto the s^d m^r Tho: Doxey.

Bradish her guardian

Mary Bradish daughter of James Bradish sometime of Newyorke dec^d appeared with her mother Katharin Symons late Katharin Bradish before John Leverett Esq^r Gov^r & Simon Bradstreet Esq^r Assist. May 10^th 1675. & made choise of m^r Peter Bracket to bee her guardian which hee accepted & the Magistrates allowed of, hee giving in security according to Law.

as Attests. Js^a Addington Cler

Edmonds to Shippen

Robert Edmonds personally appeared before John Leverett Esq^r Gov^r & Simon Bradstreet Esq^r Assist. May. 15^o 1675. and acknowledged a judgem^t against himselfe & Estate unto Edward Shippen of Boston for two hundred pounds in mony being for so much due unto him partly upon mony borrow^d & partly upon a marriage consideration with his daughter

Execucion issued May: 17^o. 1675

Jngolls to Belknap

Mary Ingolls widdow & Executrix of the last will & testam^t of her late husband Francis Jngolls dec^d personally appear^d before the Worpp^ll Simon Bradstreete & Edw: Tyng Esq^r assit^s & confessed judgem^t ag^t herselfe & Estate for twenty Four pounds ten Shillings in mony unto Joseph Belknap being for so much due to him for her maintenance for Seventy weekes time, this done June. 5^o 1675.

as Attests. Js^a Addington Cler

Bowey to Lynde

Jacob Bowry Ship Carpenter personally appeared before Jn^o Leverett Esq^r Gov^r & Edw: Tyng Esq^r Assist. June. 23^o 1675. & confessed judgment against himselfe & Estate for Seven pounds one Shilling in mony to m^r Simon Lynde due for house rent.

as Attests. Js^a Addington Cler

Lancast^r to Shippen

W^m Lancaster personally appeared July. 21^o 1675. before John Leverett Esq^r Gov^r Simon Bradstreet & Tho: Clarke Esq^rs Assist^s & confessed judgem^t ag^t himselfe & Estate unto Edward Shippen for thirty three pounds six Shillings & eight pence in mony due by booke in full of all acco^ts to this day.

as Attests. Js^a Addington Cler [329]

Curle to Addington

Nicholas Curie Late of Bristoll Carrier personally appeared before Simon Bradstreet & Edw: Tyng Esq^r Assit^s July: 23^o 1675 & confessed judgem^t ag^t himselfe & Estate unto Jsaac Addington Attourny of John Gore of Bristoll Jnholder for twenty Five pounds four Shillings in mony & is in full of a bond left on file bearing date. 27^o Aprill: 1674 for twenty pounds mony of England with all damages.

Curle to Addington

Nicholas Curie late of Bristoll Carrier personally appeared before Simon Bradstreet Esq^r & Edw: Tyng Esq^r Assist^s July. 23^o 1675. & confessed judgement ag^t himselfe & Estate unto Jsaac Addington Attourny of Robert Powell of Bristoll Jnholder for three pounds Sixteen Shillings three pence in mony; which is for three pounds one Shilling three pence mony of England due by acco^t left on file w^th all damages.

Curle to Doxey

Nicholas Curie Late of Bristoll Carrier personally appeared before Simon Bradstreet Esq^r & Edw: Tyng Esq^r Assist^s July 23^o 1675. & confessed judgem^t ag^t himselfe & Estate unto Thomas Doxey Attourny to W^m Read of Tanton in England Searge maker for ten pounds Four Shillings in mony, which is for Eight pounds two Shillings mony of England due by bill left on file bearing date. May 8^th 74. w^th all damages.

Curle to Doxey

Nicholas Curie late of Bristoll Carrier personally appeared before Simon Bradstreet Esq^r & Edw: Tyng Esq^r Assist^s July 23^o 1675. & confessed judgem^t ag^t himselfe & Estate unto Thomas Doxey Attourny to Samuel Talbot of Tanton Searge maker for Six pounds one Shilling three pence in mony which is in full of a bill for Five pounds mony of England left on file bearing date May. 8^th 1674. w^th all damages.

as Attests. Js^a Addington Cler [330]

1 Don C. Seitz, editor, The Tryal of William Penn and William Mead for Causing a Tumult. Boston, 1919. Cf. New England Quarterly, v. 812–818.

2 Green Spring, the seat of Governor Sir William Berkeley, of Virginia.

3 Pages 323–327 are blank.

4 Ingermann Helgison, obviously of Scandinavian origin.

5 Supplementary law of 1675, p. 220 of the 1887 reprint.

6 Supplementary law, October, 1675. See Whitmore’s Laws (1672–86), p. 234.

7 Supplementary Law, May, 1672, p. 201 of the 1887 reprint.

8 The clerk (not Addington) who appears to have drawn up and signed this document gave evidence of being in a playful mood, in that the ornate flourish on the “J” of “Jsaac” in the signature takes the unmistakable form of a human head in profile.

9 The General Laws of the Massachusetts Colony (1672), pp. 97–8.

10 In the English Court of Chancery this contract would have given Payton an equitable interest in the land which would have descended to the Payton children, and have enabled them to obtain legal title on completing the payment of the purchase price. Bullis does not discuss this possibility, and perhaps this equitable doctrine was ignored in the Colony.

11 The existence of fraud on creditors was a strong motive for the introduction of the recording system; see the preamble to title “Conveyances, Deeds and Writings” in the General Laws and Liberties of 1672.

12 Rupture, hernia.

13 See Records of Massachusetts Bay, v. 191–194.

14 Page 545 is blank

15 Probably the place which appears elsewhere in these records as Treice, i. e., Tres Puntas, in the Bay of Campeachy.

16 Cf. Fayerweather, Tyng, & Co. v. Barker, below, p. 1107.

17 Marginal note opposite these four reasons: “Testes Adam Dunkin: and Judah Nuby.”

18 Records of Massachusetts Bay, v. 121.

19 There had been litigation between Clarke as administrator and Goodwife Garfield in 1671. The latter had the use of part of her son’s estate till her death. See the numerous papers bearing on this point in S. F. 2997 and S. F. 162105.

20 A reference to S. F. 2997.30, twice quoted above, which is signed by John Grosvenor and Uriah Clarke.

21 This case should follow Rose v. Young, p. 270, above.

RECORDS OF THE SUFFOLK COUNTY COURT

1671–1680

PART II

RECORDS OF THE SUFFOLK COUNTY COURT 1671–1680

At a County Court held at Boston Aprill. 27th 1675 @

Present

Jury of Tryalls Sworn

[Nelson v. Lake]

[Thayer v. Paine]

Collicot agt Sheafe

Gilbert agt Greenleafe

Davis agt Dinely

Cowley agt Howard

Shippen agt Bendall

Wheeler agt Pears

Nicholls agt Spry & Clarke

Kent agt Curveath

Nelson &a agt Andrews

Manning agt Hall

Manning agt Rand

Leverett agt Hudson

Jay agt Woodmansey

Jay agt Wharton

Balston agt Atwater

Salter agt Checkley

Edsell agt Travis

May agt Sutton

Atwater agt Pearson

Scarlett agt Long

Salter agt Manning

Edwards agt Stone

Edmonds agt Robinson

Edmonds agt Robbinson

Edmonds against Robbinson

Edmonds against Foxwell

Brattle agt Hudson

Davie agt Hudson

Davie agt Hudson

Clarke agt Grant

Gibbs agt Whetcomb

Hudson agt Smith

Hudson to Brattle

Peacock to Hutchinson

Crispe to Gibbs

Selectmens Caution

Woods guardian

Chamberlain and Northy admonish’t

Order abt Peirce’s bond

Sprague Find 10s

Daws his discharge

Order for a Fence at the Prison

Ellice his Estate Setled

Order to Jno Levit abt Hanna Lobdell

Porters Estate Setled

Weekes Clerke of the Writts

Adams admonish’t

Treasurors Order to pay Clifford

Bracket Sworn a Freeman

Marsh dischargd from trayning

Audit of Dinely’s administracion

Fayrebancks presentmt

Arnall admonish’t

Bazely presented

Brantery under a poenalty

Place his Estate Setled

Angola’s Estate Setled

Harbour presentd

Boston under pœnalty

Order abt Scants Children

Toldervay Find 5li

Moulder Find 4li

Stretton & Amee Find 4li

Synderland Sentencd

Floode admonish’t

Littlefeild Sentencd

Hardingham Senta

Thayres bond

Hord Sentencd

Gross’s Estate Setled

Gridleys Estate Setled

At a County Court held at Boston Aprill. 27^th 1675 @

Collicot ag^t Sheafe

Gilbert ag^t Greenleafe

Davis ag^t Dinely

Cowley ag^t Howard

Shippen ag^t Bendall

Wheeler ag^t Pears

Nicholls ag^t Spry & Clarke

Kent ag^t Curveath

Nelson &^a ag^t Andrews

Manning ag^t Hall

Manning ag^t Rand

Leverett ag^t Hudson

Jay ag^t Woodmansey

Jay ag^t Wharton

Balston ag^t Atwater

Salter ag^t Checkley

Edsell ag^t Travis

May ag^t Sutton

Atwater ag^t Pearson

Scarlett ag^t Long

Salter ag^t Manning

Edwards ag^t Stone

Edmonds ag^t Robinson

Edmonds ag^t Robbinson

Brattle ag^t Hudson

Davie ag^t Hudson

Davie ag^t Hudson

Clarke ag^t Grant

Gibbs ag^t Whetcomb

Hudson ag^t Smith

Order ab^t Peirce’s bond

Sprague Fin^d 10^s

Order to Jn^o Levit ab^t Hanna Lobdell

Treasuro^rs Order to pay Clifford

Marsh discharg^d from trayning

Fayrebancks presentm^t

Harbour present^d

Order ab^t Scants Children

Toldervay Fin^d 5^li

Moulder Fin^d 4^li

Stretton & Amee Fin^d 4^li

Synderland Sentenc^d

Littlefeild Sentenc^d

Hardingham Sent^a

Hord Sentenc^d

Richards Sentenc^d

Roberts, Browne &^a Sentenc^d

Smith Sentenc^d

Carveath Fin^d 5^l

Frankes discharg^d from trayning

Cannon Fin^d 5^l

Ockerby Sentenc^d

Langberry Fin^d 10^s

Punnell Sentenc^d

Prison Keeper Fin^d: 5 ^li

Page ordered to pay Rose 3 ^li

Order for delivery of goods founde w^th Nich^o Curle

Lancast^r to Shippen