At a County Court held at Boston. 27o January Ao [email protected]

    Present

    • S: Bradstreet Esqr Govr
    • Wm Stoughton Esqr Assist
    • Edwd Tyng Esqr Assist
    • Joseph Dudley Esqr Assist
    • Humpr Davie Esqr Assist

    Grandjury Sworn

    • Ltt Nath Sterns
    • John Weld
    • Jno French
    • Moses Paine
    • Richd Mead
    • Jno Pratt
    • Tho: Dewer
    • Richd Leads
    • Jno Levit
    • Edw: Cowell
    • Danll Preston
    • Tho: Medcalfe
    • John Moore
    • Edwd Blake
    • Eleazr Addams

    Jury of Tryals Sworn

    • mr Sampson Sheafe
    • Nicho Lawrence
    • Jno Fareing
    • William White
    • Jno Baxter
    • Samll Guild
    • Jno Craft
    • Tho: Drake
    • Daniel Fisher
    • David Jones
    • Jno Jacob
    • Ephraim Wight

    mr Sheafe taken off and Jabez Salter put in his roome in mrs Thachers Accion.

    [Fayerweather et. al. v. Barker]

    John Fayerweather Edwd Tyng and Compa Merchts plaints conta Benjamin Barker of Treece Defendt in an action of the case upon Accott for refuseing payment of thirty Six pounds three Shillings or thereabout due unto them from the sd Barker as per Accott appeares with all other due damages. . . . The Iury brought in their Verdict. Vizt that if mr Fayerweather or Edwd Tyng or either of them do Sweare to their Accompt and that they have received no part of the Summe Sued for, they finde for the plaints thirty Six pounds three Shillings money and costs of Court. Otherwise they finde for the Defendt costs of Court mr Fayerweather and mr Wharton made Oath accordingly. This Accion was tryed at the last County Court but Judgemt not entred untill now according to law the Defendt being out of the Colony.

    [Copy of attachment and return in S. F. 1785. See p. 1080, above.]

    [Bolt v. Wilkinson and Greenough]

    John Bolt plaint. conta William Wilkinson & William Greenough Senior or either of them Defendts in an action of the case for not paying the Summe of Eighty pounds money due upon the forfiture of a bond according to Attachmt. . . . The Jury . . . found for the plaint. the Forfiture of the Bond Eighty pounds money and costs of Court. This Accion was tryed at the last Court but Judgemt not entred till now the Defend ts being out of the Colony.

    John Bolt personally appearing in the Office 21o Januro 1679. acknowledged the receipt of Forty five pounds Fifteen Shillings money from mrs Elizabeth Greenough in full Satisfaction of this Judgemt.

    Jsa Addington Cler.

    Scottow conta Shapleigh &ca

    Captn Joshua Scottow of Boston plaint. conta mr Nicholas Shapleigh of Kittery, mr Edwd Rishworth of yorke, mr Samuel Wheelewright of Wells or any of them Defendts in an accion of the case of defamation for Slaundering the plaint. by divers false charges of falsifying his trust drawn up against him under pretence of reasons Signed by them all contained in a writing and exhibited to the Honrd Genll Court upon the. 9th of august 1676. and managed against the sd plaint. by the sd Rishworth before the sd Court at their Session on the. 11th of Octobr 1676. as by the sd writings more fully doth appeare wch hath been to the plaints very great damage with all other due damages; mr Samuel Wheelewright appeared as Defendt. . . . The Jury . . . found for the Defendt costs of Court. The plaint. appealed from this Judgemt unto the next Court of Assistants and put in security for prosecution thereof to Effect.   [623]

    [Captain Joshua Scottow was commander of the garrison and fort at Blackpoint on the Maine coast during King Philip’s War. In consequence of complaints against him by prominent settlers, of which the following depositions are evidence, he was summoned to Boston in October, 1676, to answer to the General Court for neglecting his service, and for using the soldiers for his own behoof.

    S. F. 1828.15

    Richard Foxwell declareth

    That whereas our honnored Governor and Councell were pleased to Send into these parts, a Company of Souldiers for defence against the Common enimy, the Jndians, and under the Command of Capt Scottow which were imployed vpon his owne occasions, rather then the Countrys good, for that when the Jndians were faceing us, killing vs, and burning our houses, wee Could have no helpes from the Said Scottow, notwithstanding the Souldiers were willing, J applyed my Selfe to Capt Winckol being here at my house, and Seeing the Jndians above my house and abiding here a fortnight or thereabouts, desiring him to goe out with his Company, his answer was he had [no power] without [mr] Scottow doe graunt him a Commission, which with my vrging did goe downe to the Said Capt Scottow, with an intent, to Come vp againe Speedily but did not returne in one or two dayes, Sometimes, as for my perticuler garrison, J often went to Captaine Scottow for men and amunition, but Could gett none, although J had little powder in the garrison and the townes Store was spent, but hearing of the Challenge of the Jndians, to fight Capt Winckoll, being at Andrew Browns with his Company, and the Jndians on the other Side of the river faceing of them J urged Capt Scottow about them, telling him what a Scandall it would be to our nation, for us to neglect to answer our enemy vpon their Challenge, with Such like words, wherevpon he Said he would graunt a Commission, and if J would Carry it vp to Capt Wincoll, whereupon J told him J would goe to the Stage, advising him to gett it Speedily ready against J Came back, but when J Came back J found him vpon his owne occasions and no Commission writt, My request is to this Worpll Committee that they do Send out your Summons, for Nicholas Frost and Edward Small, to give in their testimonies, of what they know Concerning the Jndians Challenge, and what they know about it and whether mr Scottow was acquainted with it or no, for he did Seemingly deny the knowlidg thereof, when J went for a Commission J haue delivered my papers, to mr Gendall concerning my accounts and what they have done about them, J know not, but if J had Charged to the full it would appeare that what J have charged is not the third part of what Jam out,

    Your Servant

    Richard Foxwell

    Mr Rishworth. J pray faile me not, to doe your endeavor, to putt an issue to my business, for J have taken a hurt of late, which J doubt will shorten my time.

    That this is a true Coppie taken and Compared word for word with its origina[ll] left in the Generall Courts file October 1676 Attests

    Edward Rawson Secret

    Vera Copia attestr Jsa Addington Cler

    S. F. 1828.18

    The Deposition of John Purrington, aged about 44 year[es] maketh Oath, that being at Saco, about 3 weeks after Capt Winckoll had a fight with the Jndians, neere black pointe, where there was nine English men killed, vpon the Sands this deponent heard Severall men that were Souldiers, belonging to mr Joshua Scottows garrison, declare and affirme that they and a Conciderable Company of men, with them, would have Sallied out for the releife of Capt Winckoll, and them men which were Slaine, Seeing them engaged with the enimie, but they Said Mr Scottow would not Suffer them, but Charge them vpon their perrill to keepe the garrison, and further Saith not

    Taken vpon Oath, the 16th January 1679 before mee

    Samll Wheelwright Associat

    Vera Copia Attestr Jsa Addington Cler

    The deposition of Thomas Cousens, aged about 30 yeares, maketh Oath, that being with Capt Winckoll, when he was ingaged with the Jndians neere Blackpointe, and faire within Sight of the garrison, Capt Winckoll Sent two men to mr Scottow, for Some releife, being then likely to have bene overthrowne, by the enimy; but the Said Scottow would not Send any help to vs, he had at that time vpward of forty men, in his garrison, but from Mr Foxwels garrison, which was as farr from us as mr Scottows garrison was, we had five men which did us a great pleasure and they left but two men in the garrison, which if we had had releife from mr Scottows garrison, in an ordinary way with gods blessing, we might haue given the enimye a great overthrow, and after the fight was over, this deponent went to mr Scottows garrison, and heard the Souldiers generally Say, that they See Capt Winckoll ingaged with the enimy, and would haue gone to have releived them, but mr Scottow would not Suffer them, but Charged them to keepe the garrison, and further this deponent Saith that it was generally reported at Blackpoint, that in theire great distress they Could have no help, from mr Scotto[ws] garrison, he being the Commander thereof, and further Saith not,

    Taken vpon Oath the 16th January 1679

    before me Samll Wheelwright Commissr

    Vera Copia attestr Jsa Addington Cler.

    S. F. 1828.10

    The deposition of John Edgcom, aged 26. yeares or there abouts, Saith, that having occasion, to goe to Blackpointe to mr Scottows garrison, when that he had the Country Souldiers from Boston, there he Saw Some of the Souldiers imployed about Cutting of pallisadoes for the Said Scottows garrison, one a paving of his yard others of them imployed in picking vp of Stones, for the pavement of the yard, At another time the Said Scottow Jmployed the Country Souldiers in in removing of his barne, this deponent having occasion Severall times to goe by mr Scottows garrison, Saw the Said Scottow traine his Souldiers vpon the hill where his barne now Standeth but never did See nor heare that he did goe out with them, vpon any publick Service, any further then to the Said hill, and So to returne with them to the garrison againe and further Saith not

    Taken vpon Oath this 20th of Jan. 1679 before mee

    Samll Wheelwright Associat.

    Vera Copia Attestr Jsa Addington Cler

    S. F. 1828.17

    Henry Williams, aged fourty three yeares or thereabout Sworne Saith That he this deponent was wounded by the heathen, on the 10th of (8ber): 1675, and was brought for Cure to Blackpoint by water vpon the 13th ditto, and Coming did See the Smoake and heare noyse of guns, vpon Saco Sands, which was the day that Saco men, nine of them were killed, vpon the Sands and also Some of Capt Winckols men, at which time Capt Scottow had not one Souldier Come from Boston, it being a weeke after, before any Boston Souldier came to Blackpointe, and also at the Same time, there were men Sent over to releive them which were Sent from Blackpointe, and to the best of his vnderStanding, Said Scottow Sent them, he being a wounded man, was not out of doores, to See the motions there, also that he: who was Sent to Command that party, being named, Ralph Allanson, informed him, vpon his returne, that they having two rivers to passe and the tide, being about three parts in, they Could not Come to their timely releife, and further Saith not,

    Sworn in Court 28o Januro 79

    Attests J: Addington: C

    Vera Copia Attestr Jsa Addington Cler

    S. F. 1828.14

    These may Certifye whome it may Concerne that my Selfe being appointed and impowered by the generall Court, to to looke after & inspect the affaires of Yorkeshire in refference to the Militia there and in the time of the warr, with the Jndians, had Severall orders, Sent for the Governor & Councill and Sometimes from the Major Generall, to Jmpresse Souldiers, for the Strengthening of the Severall garrisons, as the necessity of the places did Call for, and in perticuler to Blackpointe, and Sometimes when Souldiers were ready to march, they Said they had as willingly bee hanged, as goe to be under Capt Scottow, and Severall rann away, and would not goe, which was after he had bene Complained of at the generall Court, likewise in the County Court in Yorkshire mr Stoughton being there, Severall Complaints were brought in, and J there did vindicate him what was Just, and nothing Could be charged vpon him legally, but as rumors and reproaches, Witness my hand, this 15th September 1679

    Richard Waldron Sergt major

    Vera Copia Attestr Jsa Addington Cler.

    The General Court cleared Captain Scottow, but voted somewhat ambiguously that one of the complainants, Mr. Rishworth, “doe pay Captn Scottow his costs & damage” (Records of Mass. Bay, v. 121). Meantime, during the Captain’s absence, the garrison of Blackpoint surrendered that place, with most of the stores, to the Indians.

    S. F. 1828.20

    Anthony Row aged 40 yeares, or thereabouts, Sworne Saith That he often told mr Scottow, that if he left Blackpointe the place would be vndone, for want of Command and Rule Jn case that it should be Sett vpon, & also as farr as he Can Judge had mr Scottow bene there, the place had not bene So vnworthily deliuered vp, but that Scottow would have had men enough Stand by him to haue defended the place & further Saith not

    Taken vpon Oath by the abouenamed Anthony Row 2d Novr 1676

    Before me John Leverett Govor

    S. F. 1828.21

    Edward Hownsell aged 26 yeares or thereabouts Sworne Saith.

    That he was at Black pointe garrison, being mr Scottows house when Mog the Jndian Came to demaund it, mr Josslin & Mog had a treaty togeather, the result of it he doth not know, but he heard Mog & the other Jndians Say, that they would do no hurt to the English, but that they had all of them liberty to Carry offe what they had that day untill next morning Sunrise, and they made good their word for they did no hurt, to the English there, nor hindered any from Carrying away what they had that he Saw, the time when this was done was Soone after, Said Scottows going from Blackpointe to Boston to answer what was laid to his charge by Some of the County, at the Same time Said Scottow had a Shallop, and two Servants of his own at Blackpointe, and might haue Carried offe his goods there as well as any other of the towne, had he bene there, to haue managed the Same and he doth also in his Conscience beleiue, had Scottow bene there the house would not haue bene deliuered vp, being Soe fortifyed, and having Eleven Country Souldiers, and forty or fifty inhabitants there at Same time, there was neer a barrel of powder deliuered vp to the Jndians, & further Saith, that the Same Summer, there was Carried off great quantity of living & dead Cattle, Shipt Some for Piscataque & for other parts, Some vessels Coming divers [times torn] lade with provisions, & Cattle, & further Saith not, Taken vpon Oath: 1o December 1679 in Boston

    Before me Humphry Davie assist

    . . . true Coppie . . . Hum: Davie assist

    John Vicars testifieth to the truth of what is aboue, except what relateth to Mog & the other Jndians, that they Said that they would do no hurt to the English, nor did he See the powder deliuered vp to the Jndians, but heard it was deliuered to them

    John Vicars made Oath to the foure last lines in the [torn] before me

    Anthony Stoddard Comissr

    S. F. 1828.11

    1676

      s d

    July 26: Stock at Blackpointe Dr To divers perticulers of goods Left in the Shop July 26. as by an Jnvoice drawne vp, appeareth under Nathanael Willets hand and my owne, and others stolen, when the English delivered, or deserted the Garrison to the Jndians

    £96:00:8

    (8)ber

     

    To 1. Lawbooke 4s Doctor Burgiss folio 12s

    £00:16:0

    To. 1. french booke 1 bible divers books in Quarto

    £02:00:0

    To 2 pr of Small Seales and weights

    £ 0:10:0

    To. 1. gt pr of Seales & beam & 4c & ½c of Jron weights

    £2:10:0

    To [69l] Chaine of Jron at 6d per lb

    £ 1:14:6

    To l:gt Jron Log Chaine 30s: a drawing knife 18d

    £1:11:6

    To a hand Saw 2s 6d To 2 yoaks Staples Crooks & rings 12s

    £0:14:6

    To. a hammer & file 3s a Chizzell 12d

    £0:04:0

    To. a Steele wedge 18d 2 Spades 8s

    £0:09:6

    To 2. howes .4s: 4 Sythes: 12s. 4 Axes 14s

    £1:10:0

    To a Staple & pr of Crooks 4s .2 bill hooks 5s

    £0:09:0

    To 2. Stub Sythes: 8s :1 Steele picker 5s

    £0:13:0

    To. 3 Coulters & 2 plowshares

    £2:05:0

    To. a New Steele mill to grinde Corne

    £ 3:10:0

    To a forme 5s:2 flockbeds:308:2pr of blanckets 40s

    £3:15:0

    To a Sitt Saw 20s: a brass skillet 4s 6d

    £ 1:04:6

    To 2 Rugs 35s 3 Jron Trammels 9s

    £ 2:04:0

    To 1. pr Andirons 4s 2 pr Tongs 6s

    £0:10:0

    To a fire Shovell 3s, a long Croscutt Saw 12s

    £0:15:0

    To. an Jron pott & Crooks 10s: 11 bush wheate 2l 4s 0d

    £2:14:0

    To 26 bush Jndian Corne 2l: 12s od 2 bbs beefe 3l

    £5:12:0

    To to howes 8s 32l Sheepswoole. 24s

    £ 1:12:0

    To Severall dairy vessels, 30s: 1pr bellows:2s 6d: Candlesticks 1s

    £ 1:14:0

    To a lanthorne 2s 6d a Iron Spitt 2s

    £0:04:6

    To 2 pr Curtains Rods and vallence

    £3:00:0

    To a leather Stoole: 3s 6d an houre glass 1s

    £0:04:6

    To a Chest 5s Jron pott 5s 2 Seaves. 3s

    £0:13:0

    To a pewter quart, pinte & halfe pint pott 5s

    £0:05:0

    To a bungborer 3s, gimblets 12d

    £ 0:04:0

    To 2. funnels 2s Juggs: 12d: 3 glass bottles 18d: bell 3s 6d

    £0:08:0

    To a drum 40s one drumhead 18d

    £2:01:6

    To 4 pr bandoleers 9s: 2 Swords & belts 20s

    £1:09:0

    To 2 Skaines of match 5s 2 yds black bayes 5s

    £ 0:10:0

    To a fire Extinguisher 3s 6d 2 Match lock muskets 1l 8s

    £1:11:6

    To 1 pr Shott mould, 4s. flints. 5s: Stock fowler .2l :5s

    £2:11:0

    To 11. fire armes 111: wolfe trap 1l

    £12:00:0

    To 1 pr Sheepshearers, 1 pr Shott moulds. 2. pr sheers

    £0:06:0

    To 22. hhds Salt 22l: fishing Craft from Peter Hinxen Genll 9l

    £31:00:0

    To fishing Craft from Tho Westgat generall 20s

    £1:00:0

    To Craft from Anth: Row. Genll 6l 17s od Jo slades lines 15

    £7:12:0

    To John Starts netts: 3l: 5s 0d

    £3:05:0

    To a shallop & appurtenances, bought of Tho: Bigford Anto Row

    £30:03:0

    To 25 yds haire Cloth at 2l 6d per yd

    £3:02:6

    To divers goods of mr Foxall vpon execution whereof 1 pot receaved

    £ 1:10:0

    To 1 pr stilliards 15s 1 Jron square 2s 6d

    £ 0:17:6

    To 6 Stocklocks & keys 158. a horse Coller 3s

    £0:18:0

    To a pr of horse traces 2s 6d a Chaine 3. 6d

    £0:06:0

    To a drawer & twilted Coate

    £ 0:15:0

    To a box of brimston, & box of Cod hooks

    £ 1:15:0

    To a marking Jron. 18d a Croop 12d Tobacco lc

    £ 2:18:6

    To 2 pr pincers. 2s 6d: 1 pr beetle rings & 2 wedges 5s

    £0:07:6

    To 7 hides: wt 270l: at 3d

    £ 3:07:6

    To a mortising axe 3s an Jron Chaine 19s

    £ 1:02:0

     

    250:05:8

    The Perticulers abouementioned, J doe attest for the Substance of them to be left by my master Scottow in the Garrison, at Blackpointe, & warehouse & were lost, and the account of the goods left in this Shop & delivered to me in the yeare 1676 J wrote it with my own hand, the hides abovementioned, & Some Small perticulers of household goods in his house, J am not So fully Sattisfyed about, Witness my hand, Blackpointe March 28: 1678

    Nathaniel Willet

    Nathaniel Willett owned this attest, and made Oath unto it the 28 March 1678 Before mee

    Josh: Scottow Commissr for York

    Per Contra Cr

    s   d

    Per 18:¾ ⅛ yds red Cotton at 3s per yd

    £2:16 [     ]

    Per 3½ yds white Cotton

    £0:09 [     ]

    Per 2 prmens Stockings 5s: 3pr wornn Stockens 6s

    £0:11:00

    Per Needles 2d Comb 12d Thread 6s 8d

    £0:07:10

    Per Tape 7s 6d Buttons 1s 4d galloone 2s

    £0:10:11

    Per Silke 12d Sugar 2s knives 18d Twine 10d

    £0:04:06

    Per Sarge: 3¾ ⅛ yds 19s Silke 1.8d

    £1:00:08

    Per 27½ ⅛:kersy at 3.6d

    £4:16:08¼

    Per powder 11¼l 1l 2s 6d Codlines 32 at 2s 6d: 4l

    £5:02:06

    Per Small lines 4s: 6 Codhooks Is 8d Salt 8s 3d

    £0:14:05

    Per Ind: Come 10½ bush. 22s: Shoos 6 pr 30s

    £2:12:00

     

    19:06:01¼

    Per 24 knotts Twine 20s Squidlines 19. 19s

    £1:19:00

    Per 2. netts Sold. 5l a bate mending 33s

    £3:07:00

    Per 11. bush. Charged wheat to the Countrys account

    £2:04:00

    Per a Croscutt Saw, found 11s: Steele picker 5s

    £0:16:00

    Per Andirons 4s

    £0:04:00

    Per 2 Trammels returned

    £0:06:00

    Per Salt Spent in garrison.3.½hhds

    £0:06:00

    Per a Small percell not vallued being 3½ hhds

    £3:10:00

    Per Salt to fisherman 3l

    £3:00:00

    Per a Triangular boarer 2s

    £0:02:00

    Per 11½ yds haire Cloth at 2.6d

    £1:08:09

    Per Netts vallued 5l

    £5:00:00

     

    44:12:10

    Per Ballance of accot & due to proffitt and Losse

    205:12:09

     

    250:05:08

    To be abated out of this ballance Supposing the 7 hides might be Sent to Boston

    3l 7s 6d

    Josh: Scottow:

    Errore Excepted.

    Sworn in Court pro May 1678 by Capt Joshua Scottow, to be a Just and true account, being Compared with his booke

    as attests Jsa Addington Cler

    . . . true Coppie . . . Jsa Addington Cler

    After returning to that region for another term of duty to restore order, Captain Scottow endeavored to have his revenge of his defamers.

    S. F. 1828.3

    The declaration of Joshua Scottow Plaintiffe against Nicholas Shapleigh, Edward Rishworth, and Samuel Wheelwright, or against any or all of them To the honorable County Court & Jury Sitting in Boston, this 27th of January 1679

    Gentlemen to give you as little trouble as J Can breifly, that which my Case calls me to declare, and requests your attention to Concider of and determine is

    first not whether any dammages shall bee paid me or no, Nor 2d whether the parties Sued at present, be the propper debtors for that which J now Sue them, for, for the generall Courts Judgment in this Case [hath] resolued both those questions, first that dammages Shall be allowed to mee, and that also by the Defendts now Sued, what the Generall Court hath putt out of question, Cannot therefore be the question, for me to Speake to or the Court to Concider,

    2dly affirmatiuely, That my worke to declare, and the Court & Jurys to Concider of is, only what the defendants ought to pay me, as Just dammages Sustained by me from them, That they haue damnifyed me the generall Court hath Judged already, what they haue damnified me is presented to the present Court & Jury to determine.

    for manifesting what my dammages are, J request the reccord of what the defendants Lay to my Charge at the Generall Court may be read, which J here present, and 2dly, that the Courts Judgments, in the Same Case, after all parties heard may be read also, the reccord of which also, J present to the Court & Jurys Concideration, first they Charge me with Jmproving the Countrys Souldiers, on my owne perticuler occasions, and neglecting the Service of the County thereby endeavoring to putt the Charge of those Souldiers vpon my Selfe, yet though the generall Court hath acquitted me from those Charges,18 as vnjustly laid vpon me, and have declared my faithfulnesse in the trust Committed to me, and haue ordered the County to pay me my disbursments, and my accusers and now defendants to pay my Costs of Court, which they vallued at 9l: 13s: 8d, which Costs the complainers haue Jointly paid, and the Said generall Court Judging my accusers, and now defendants, to pay my dammages also Sustained but not determining how much dammages Should be allowed mee because it was not then determinable, my great dammage arrising from my being drawne from my garrison, to answer their Complaints against me at the generall Court, at which time tidings Came of the rendring of my garrison, to the Jndians upon articles, and So Could not then know what dammages to plead, but the Generall Court having already Judged, that my accusers, and now defendants Should pay my dammage[s] as being the Causes of them, and time having now brought truth to light J declare as followeth,

    first, J might and doe Justly Charge them, with dammage done to my reputation, as the reccord of their Charge against me to the [Gener]all Court with the reccord of the Courts Judgment, proues, togeather with Major Waldons testimony

    And 2dly Though J might Charge them with dammages Sustained by the heathen in Common with others, by meanes of my absence from Black point, and also all that my Charge of about 40l to regaine my house, which J purposely decline, as not willing to aggrivate their Charge, But 3dly, This J must also Charge them with, that when my garrison was rendred vp to the Jndians vpon articles, at that time when J was forced thence to Boston, to answer their Complaints if my presence at Blackpoint, Could not haue repulsed the Jndians as they did that kept the forte afterwards, and So haue Saued my Selfe and others from the dammage that was Sustained by the Surrender, yet this is out of peradventure, that J having two Shallops and Some men of my owne at the fort J might haue Carried away my houshold goods, and merchandizes from my warehouse, which J wholy lost, to the vallue of 205l as my accounts attested unto prove, which J here present to the Court & Jury, all men there having a liberty by articles, with the Jndians, for a Certaine time agreed vpon, for their Carrying away their goods, which the owners there did improve and Carried their goods away, as Sundry witnesses of them, that did Carry away their goods are here presented, to prove which like freedome to Carry away those goods, which here J plead dammage for, J might haue had, had J bene present, to improve it, but Could not, being then drawne to Boston, to answer their vnjust Complaints, therefore J doubt not but that the honnored Court & Jury, will See Just Cause to allow me the full dammages pleaded and proved, that by their meanes J did Sustaine

    4ly This also J must Charge them with, that by their Stopping about hundred pounds which the Courts Judgment declared, was the Countys right to pay me, and were at that time able So to doe, which they did to putt the Charge of those Souldiers vpon my Selfe, and now through delays they putt off that payment, the County is So impoverished that J Cannot gett any thinge of it to this day, wherefore J hope the Court will See Just Cause, to allow me that dammage also from them Jt being So evident, that this dammage also was procured by their means Soe as the whole aboue being Concidered, the law of god, our native Land, and this Country, Law .6. fo (1) provide[d] for the indemnifying of every mans life, name, & Estate, all which the Defendts Struck at, Leaving the whole to the honord Bench & Juries determination he humbly Subscribeth himselfe.

    Josh: Scottow Plaint.

    Vera Copia Attestr Jsa Addington Cler.

    Samuel Wheelwright’s principal argument in answer to Scottow’s declaration (S. F. 1828.5) was that he had had no damages expressly assessed on him by the General Court. Scottow issued prolix Reasons of Appeal (S. F. 1828.4), citing Deuteronomy xix: 15, and “or Mattachusetts Magna Carta in or Law booke folio 1. . . . No mans Honour nor good name shall be stayned (much less bloodily) &c.” Wheelwright returned a brief answer (S. F. 1828.6), asserting that they did not exhibit any complaint against Scottow to the General Court, but “only gaue an accott of what came to or hands, as wee ware betrusted by the Honrd Genr Court, as in duty wee ware bound.” The Court of Assistants (Records, i. 152) sustained the lower court.]

    Dudley &ca conta Paige &ca

    Paul Dudley and Edwd Tyng Junr plaints conta Nicholas Paige and John Poole in behalfe of themselves and Compa Defendts in an accion of the case for the Forfiture of a bond of two hundred pounds money under their hands and Seales by the non performance of certain covenants mentioned in a Charter party bearing date the first day of January. 1677. in wch sd bond is included with all other due damages; . . . The Jury . . . found for the plaint. two hundred pounds money being the Forfiture of ye bond and costs of Court: Upon Request of the Defendt & hearing of both partys The Court chancered this Forfiture to one hundred and Sixty pounds mony (not including any disburstmts made the Hirors upon the vessell before the expiration of the uncertain time) & costs of Court: The Defendts appealed from this Judgemt unto the next Court of Assistants & put in Security for prosecution thereof to effect.

    [S. F. 1837.7

    This Charter party of fraightment, Jndented, made, and Concluded the first day of January in the yeare of our Lord, One thousand Six hundred, Seventy & Seven By and Betweene Edward Tyng Junr and Paul Dudley of Boston in New England Merchts Owners of the good Catch called Mary of Boston, of the burthen of Twenty five Tons or thereabouts, now lying in the port of Boston, on the one part, and Nicholas Paige and John Poole of Boston aforesaid, merchants in the behalfe of themselves and Company, on the other part Witnesseth That the Sd Edward Tyng and Paul Dudley have and hereby do lett to fraight the hull or body of the Sd Catch with all her tackle apparrell and appurtenances vnto the Sd Nicholas Paige, John Poole and Company merchts and the sd Nicholas Paige Jno Poole and Company have hired her for five months Certaine and five months more vncertaine for a voyage to be made with her, by gods assistance, from Boston aforesaid to Ronoake, and from thence to Berbadoes Nevis and Jamaica, or either of them, or any other of the Careebe Jslands, and So to the bay of Campeachy, and from thence to Boston aforesaid, the port of her right discharge, And the Sd Owners of the Sd Catch do hereby Covenant that the Sd Catch is, and So during the aforesaid voyage Shall bee kept Strong and Stanch, well and Sufficiently tackled & apparrilld with masts, Sailes, Saileyards anckors, Cables, boate Oares, and all othr Jnstruments and furniture necessary, for Such a Catch in Such a voyage Jn Concideration whereof the Sd Nicholas Paige & John Poole in the behalfe of themselues and Company, do hereby Covenant promise and graunt, to and with the Sd Owners of the Sd Catch, to pay or Cause to be paid vnto the Sd Owners, their Execrs, admrs or assignes, the full and Just Summe of Tenn pounds of Lawfull money of New England per month reckoning the month according to the Callender, and So proportionably for the odd dayes vnder the month, for the full fraight or hire of the Sd Catch, for So long time as She Shall have bene in the Sd Merchants Service, in Manner and forme following that is to Say the full fraight or hire that Shall be due at her arrivall, at her first delivering port in the Jndies, whether it be Berbadoes, Nevis Jamaica, or any other of the Careebe Jslands, is to be pd and shall be paid within Thirty days next after Certaine Jnformation, given in Said Boston of the sd Catches arrivall there as aforesaid, and the full remainder of the Sd fraight or hire within Twenty days next after the arrivall and discharge of the Sd Catch at Boston aforesaid the port of her right discharge, And the Said months pay is to beginne, and Shall be accounted from the Seccond day of this Jnstant January, and end when the last goods Shall be deliuered, out of the Said Catch at Boston aforesaid, the port of her right discharge, And the Said Merchants fraightors, do hereby further Covenant, well and Sufficiently to victuall and man the Sd Catch, for to performe the voyage aforementioned, and to provide a Sufficient pilott for the Sd Catch in her voyage from Boston to Ronoake, And further, that in Case the Said Catch, Shall Stand in neede of any repaire during the Sd voyage, that then the Sd Merchants fraightrs shall and will disburse for the necessary repaire of the Sd Catch, So that She may be able to performe the voyage aforementioned, which Sd disbursments shall be Subducted out of the fraight or hire of the sd Catch at the port of her right discharge, Summe for Summe, without allowance, And it is mutually agreed by and betwene the Sd parties to these presents, that the Sd Merchants fraightors, Shall and will pay or Cause to be paid Two third parts of all the port Charges, and the Sd Owners one Third part thereof, that Shall arrise and accrue for the Sd Catch, in the Sd voyage, And lastly for the true & reall performance and accomplishment of all and Singular the Covenants grants articles, payments and agreements, and all other things above rehearsed the sd parties have bound, and hereby do binde, and oblige themselues their heires Execrs and admra, each vnto the other in the penall Summe of Two hundred pounds of lawfull money of New England, well & truly to be paid, by virtue of these presents. Jn Witness whereof the partys abouenamed, to these present Charter partys, Jnterchangeably have Sett their hands and Seales, the day and yeare first abouewritten

    Nicho Paige & a Seale

    John Pole & a Seale

    Signed Sealed and delivered in the presence of vs (well and Sufficiently) first interlined

    Edward Lilly

    Jsaac Walker

    John Hayward Scr

    Ownd in Court 27o Januro 79 by mr Paige and mr Pole

    as attests Jsa Addington Cler

    Endorsed,

    Jt is Concluded and agreed vpon, betwixt Edward Tyng and Paul Dudley, owners on the one party, & mr Nicholas Paige, mr John Poole and Paul Dudley hirers on the other party, that the Ketch proceede to Jamaica, from this place, and from thence to the bay of Campeachy and from thence to Boston directly, foure months hire being due, to be paid at Boston, Thirty dayes after news of her arrivall at Jamaica, refference to the Charter party in other things being had, Witness hereunto our hands and Seales, this fourth of Aprill 1678 the vessel entring into pay the Seventh of January 1677

    Nicho Paige & a Seale

    John Pole & a Seale

    Paul Dudley & a Seale

    Witness

    Thomas Skinner

    James Butler

    Ownd in Court, 27o Januro 79: by the three parties: Subscribing attests

    J: Addington: C

    Instead of setting sail on the appointed voyage, the ketch Mary appears to have tarried in the Governor’s dock in Boston. Judge Tyng (the plaintiff’s father) had her surveyed by four shipbuilders, who reported (S. F. 1837.1) that she was “Sound and Stronge and Sufficient to performe any voyage that a vessell of that burden is Capable to performe”; four other experts reported (S. F. 1837.11) that she was “Strong and Substantiall, fitt for the Sea, and her decks thite and Sufficient . . . as also that she is thite and well Caulked both below and in her vpper works.” Paige and Poole later asserted (S. F. 1837.9) that the Mary was only

    . . . worth, fifty pounds: being and old vessell Bult vpon an old Shallop, and very Dangerous for men to venture there Liues in, allthough, shee had a suruay, it was in the winter time soe that the Suruayors could not Judge soe well as they might haue done had it bin a Couenient time of the year, But when others had taken notis what shee was, noe mastor or men Could bee procured to sayle in her for seuerall months, After shee was Hyred: as will appeare by there owne protest.

    On 2 February 1677/78, Tyng and Dudley entered an instrument of protest (S. F. 1837.5) against Paige and Poole for neglecting the ketch so that she was subject to damage and detriment. This appears to have had the effect of getting the Mary under way, and a rough passage she had. One stage of the homeward voyage is described in a letter of her master from St. Kitts (S. F. 1837.10):

    Srs

    My Service presented to you, this is to Certifye you of my troublesome voyage, J were in the gulfe nineteene days, in the most Cruell weather, that ever man was in, but blessed be god J am escaped cleare, but J have splitt all my Sailes, and J beate Twenty one days afterward, J gott cleare before my men forced me to beare away for my water well Spent, and for feare yt wee should not gett in, they would not beate no longer, a tedious voyage J haue had as ever had man, now J do intend for Nevis and if J Can gett a price for my wood J would dispose it, Jf J Cannot J will away for Corrisoe, and So for Jamaica and the bay, and So home, nothing else at present but rest

    Yours to Command

    Ro: Lisly

    Christopher Novembr ye 11:78.

    Superscribed: These for mr John Poole and mr Paul Dudley, Boston.

    Vera Copia Attestr Jsa Addington Cler

    S. F. 1837.15

    The Deposition of James Allison, aged Twenty Eight yeares or thereabouts, Testifyeth and Saith, that he being in the Jsle of Nevis in the yeare 78 that there did See Robert Lisly, and did heare him and Company Say, that all the Sailes that they had were not worth any thinge, and that they were forced for to take their bed Sacks for to mend them, and that if they had good Sailes they might have gott home, and not gone for any of the Careebe Jslands, and further I did heare the Said Lisly Say, that he was forced for to sell his Cargo for to fitt the vessell, and that it Cost him more more the hull of the vessel was worth.

    Taken vpon oath, Janry 27o 16⅞9/0 before

    Peter Bulkly assistt

    Vera Copia Attestr Jsa Addington Cler

    Others deposed to much the same effect; Robert Pelton said that in Nevis, in 1678, he had heard Lisly and his mate, Stephen Butler, both blame the sails for their having been blown off the coast of New England, “for they had not a Saile that would Stand in the boltrope.”

    The following document (S. F. 1837.4) is probably the basis of the plea in this case:

    Plea for penalty of Charter party

    That it is neere Twenty five months, Since our ketch entred vpon their Jmployment, her pretended voyage, being from Boston to Jamaica, from thence, to the bay of Campeachy, and from thence directly for Boston according to Charter party Dated primo January 1677

    That neere two months after, the letters of Said ketch drew a protest against the hirers, for all dammages, that might happen to Said vessell for their not putting men on board to Secure Sd Catch and furniture from all dammages, that might happen, but letting her lye in the Govornors dock at Boston, with none to looke after her, their not fitting out sd vessell in time, being wee doubt not the Occasion of her being blowne offe the Coast, when She attempted it, as hath bene the Case of other vessels,

    That the ketch was every way Substantiall to performe the voyage of 5. months Certaine and 10. vncertaine appeares, by the Survayes, and other Evidences presented,

    That in this time of the vessels absence, she hath made many voyages Since her vncertaine time was out, vizt from St Christophers to Saltitudus, from thence to Jamaica, from thence to the Camanus, and from thence to St Christophers againe, wee being kept out of our money and vessell, which may rationally be accounted greater dammage, then the penalty of the Charter party, the hire of Said Katch, the time they have had her amounting to about Two hundred and fifty pounds at 10l per month, and hath bene formerly lett at 12l per month.

    That the hirors of Sd katch Cannot make appeare, any disbursment vpon her, before the vncertaine time was out, and if they pleade for further time to discover anythinge, wee answer, Jt is about fifteen months, Since the vncertaine time was out, for the returne of our vessel which is time too much to be informed in, we are Sure to long for vs to be kept out of our due

    Vera Copia attestr J. Addington Cler

    Paige and Poole not only appealed, with reasons (S. F. 1837.9), but sent up the following petition (S. F. 1837.6):

    To the Honbl Court of Assistants, in Boston March 5. 16⅞9/0.

    The Petition of Nicholas Paige & Iohn Pole.

    Humbly Sheweth

    Wheras mr Paul Dudly & Edward Ting Iunir Commenced a suit against yor Petrs and obtained Judgment at the last County Court held at Boston, to the value of Two hundred pounds, being for the forfeiture of a Bond of Charterpartie for ye Same Summe; yor Petrs at Same Court Entreated for a Chancery of sd Bond, wherupon The sd County Court did give Judgment, that yor Petrs pay ye said Dudly & Ting One hundred and Sixty pounds, wherin your Petitionrs humbly conceive no Chancery was granted, for, yor Petrs haveing already paid the sd Dudly & Ting Forty pounds as may appeare endorsed on ye Charterparty, and the whole bond being but Two hundred pounds, & yor Petrs being adjudged to pay one hundred & sixty pounds more, wch maketh up the full bond

    And Wheras the sd Dudly & Ting did at ye sd County Court exhibit a certain paper therin rendering their pleas & reasons against a Chancery of sd bond, yor Petrs declare they never had a coppy therof, or time for an answer therto, wch paper yet remaines although yor Petrs words in their lust defence are forgotten

    Your Petrs humbly conseive that the sd Dudly & Ting are the reall causes of our Breach of Charterparty, by the great defects in the Sailes & fitting out sd Vessel, for such a voyage as hath been fully proved, for the Vessell was blown off thes Coasts for want of Sailes & Suffitient Rigging, long before the time was out, they being then incapacitated to Supply her, but were forced, (to preserve lives and vessell) to bear up to the first port they could make wch was Nevis and ther fitt the vessell out of yor Petrs Cargo; And yor Petrs Judge yt that Clause wherin wee were bound to supply her with Necessaries out of our Cargo, the sd Dudly & Ting allowing our disbursts out of the hyre, was that wch Cast us; they makeing it their plea, that her time was out before She came to Nevis, and Say wee shall never recover our disbursts wch as yet wee are uncapable to prove. And wheras wee give bond in our Charterparty for Two hundred pounds for a Vessell not then worth Fifty pounds by any rationall mens value being so old & badly fitted woh was our great weaknesse. And the vessells being blowne off is to the great advantage of the sd Dudly & Ting, wch had shee not been blown off Ther had been litle due to them, Considering our great expence in our Continuall keeping sd Vessell in needfull repaire, And yor Petrs are by them threatned to bee farther troubled about her, so that wee know not when wee shall have an end of our troubles. And wheras yor Petrs gave so much hyre per mo for such a vessell, the reasons were because the voyage then was to bee made to Roanoak, & might have been made in a short time, & then vessells were scarce, and also then yor Petrs were but fifth parts, but by Collaterall agreement was Altered.

    Therfore yor Petrs humbly pray yor Honrs that Yee please to Consider our Cace as it is Circumstanced & attended wth All losses, And that yee please to grant yor Chancery upon sd Bond, wch wee hope your Honrs will See good to grant it being ye grand reason of our appeale to yor Honrs for Relif in this Cace and yor Petrs shall ever bee obliged to pray &c

    Nicho: Paige

    John Pole

    Dudley and Tyng’s Answer to the Reasons of Appeal is in S. F. 1837.12. The Court of Assistants (Records, i. 155) confirmed the former judgment and assessed 43s costs on the appellants.]

    Maryon &ca conta Wright

    John Maryon and John Williams Feoffees in trust for Ezekiel and Mary Brisco Children of the late Ezekiel & Rebecca Brisco plaints conta Captn William Wright who married wth the sd Rebecca Defendt in an action of debt of Four hundred pounds money according to Attachmt. This case was submitted by consent of partys to the Bench without a Jury who upon a full hearing and consideration of the severall pleas and evidences in the case produced gave Judgemt for the plaints that the Defendt do deliver up unto the plaints upon his Oath all the movable Estate in his hands which hee received with his late wife Rebecca (that so they may cleer the house and Land for the Orphants so far as it will reach) and pay costs of Court.

    Williams conta Townsend

    John Williams plaint. conta James Townsend Defendt for breach of Covenant to the plaints damage Fifty pounds money &ca according to Attachmt. . . . The Jury . . . found for the Defendt costs of Court granted Sixteen Shillings eight pence.

    Execution issued 6o march. 1679.

    [For the background of this case, see Townsend v. Williams, below, p. 1125. The following petition does not appear to have been granted, at least in so far as permission for an appeal is concerned, since there is no mention of such an appeal in the Records of the Court of Assistants.

    S. F. 1833.4

    To the honored County Court sitting in boston this 26t: of feb: 1679 by adiornment

    John Williams Craus fauor of this honnored Court to Grant him the liberty of the law to appeall from the verdict of the Jury, finding for the defendant in the action whearin I was plaintiue against James Townsend for not performing of Couenant because the other action I appeald from the euidences were intermixt with this and made vse of in both actions and Cannot soe leggally bee manadged [?] which I vnderstood not tell I Came to take them out

    or that I may haue liberty to haue all the euidences to bring them in: in the former appeall soe waiting for your answer I shall still pray for honnors welfar

    John Williams]

    Gridley conta Wright

    Joseph Gridley plaint. conta Edward Wright and Mary Wright his wife Defendts in an action of the case for defamation and Slaunder according to attachmt. . . . The Jury . . . found for the plaint. Five pounds money Or that Mary Wright do make a publique acknowledgemt to the Satisfaction of ye Court and costs of Court granted nineteen Shillings.

    Execution issued 3d march. 1679.

    Rawlins conta Elliott

    Joshua Rawlins plaint. conta Henry Elliot Defendt in an action of the case for witholding an Jndian Squaw named Jane to the plaints damage Fifteen pounds money &ca according to Attachmt. . . . [624] The Jury . . . found for the plaint. The Jndian Squaw Sued for Or Six pounds one Shilling money damage and costs of Court.

    [See case of Danson v. Elliot, above, p. 1086.]

    Danson conta Ellitt

    George Danson plaint. conta Henry Ellit Defendt in an action of defamation according to attachmt. . . . The Jury . . . found for the plaint. one hundred pounds money Or that the Defendt do make such a publique acknowledgemt in this Court of the wrong and Jnjury done by him to the plaint. as shalbee to the Satisfaction of this Court; and do deliver the same in writing under his hand: Also that hee do make the like acknowledgemt at Stoningtown and do deliver a Certificate under the hands of mr Tho: Minor and Samuel Mason or any other of the Commissionrs there of the performance thereof within two months from this time unto the plaint. and costs of Court.

    [See case of Danson v. Elliot, above, p. 1086.]

    Keen agt. Dafforn

    John Keen plaint. conta John Dafforn Defendt in an action of reveiw of a case tryed at the County Court in Boston held by Adjournmt of the Genll Court 4o novembr ulto wherein sd Keen was plaint. agt Jno Dafforn Defendt in an action of debt of £.14:15s mony being so much sd Keen paid unto mr Simon Lynde for Accot of sd Dafforn but Judgemt was then granted against him for costs of Court whereby hee is damnified above Fifteen pounds in money, and all other due damages &ca. . . . The Jury . . . found for the plaint. Fourteen pounds Fifteen Shillings money and costs of Court. The Defendt appealed from this Judgemt unto the next Court of Assistants & put in security for prosecution thereof to effect.

    [A review of a case tried at the November session, 1679, above, p. 1078.

    From an account between Keene and Matthews in S. F. 1827.9 it appears that “1051:10 Wampum” was equivalent to 26l 5s 9d “Boston money.” The following documents throw what little light on this case we can obtain:

    S. F. 1827.14

    The testimony of John Williams aged about :33. yeares testify that being at New: Yorke in company with mr Darvall and mr Keene at James Matthew’s house (commonly called Long Marys’) and mr Jno Keene made up his Accot with the sd Matthews and his wife, and they tooke mr Darvall as paymaster for what mr Jno Keen owed at that time; and J also further testify that their Genrll Accott they kep’t was chalkes upon the wall for J had two Vessells there, and the whole Accott that the Masters and men had was chalked upon the wall and J never see any other to the best of my knowledge

    Sworn before .J: D: A.

    . . . true Coppie . . . Jsa Addington Clre

    S. F. 1827.11

    Boston ye 31th Octobr 1672

    Mr James Matthews

    Sr: J am not forgetfull of yor Love or my engagements to you so as to breake covenant with either of them, therefore have underwritt a noate to mr Darvall that hee may pay you what hee hath of mine in his hands & desire you to send me word what will then remain due to you and J will Satisfy it here to yor order that must bee understood so far as will Satisfy the bill J gave you for my men, but what you write to me about my own Accott J know is a mistake for J have paid it all, but what J had after my hand was hurt, which was some small matter Sr in hast with respects to yor wife J rest

    your Lo Freind John Keen

    Mr William Darvall

    Sr after you have satisfied the noate J charged on you for Phillip Johns, pray pay to James Matthews or his wife the remainder of what you have in yor hands belonging to.

    Sr Freind and Servant

    John Keen

    Boston .ye 31: Octobr 1672.

    Ownd in Court. 31o July .1679. by Jno Keen attests Jsa Addington C

    S. F. 1827.8

    New-yorke. April. 10th 1679.

    These are to Certifie all whome it may concern that J underwritten Wm Dervall have not paid or Satisfied unto James Matthews of the sd place on acct of mr John Cane of Boston any Summe or Summes of money or other pay in Value thereof, nor will pay or Satisfy anything on sd acct. But that wt the sd John Cane was indebted unto the sd James Matthews is still due for ought as J know; and that J never did accept promiss or engage to pay any thing on sd accompt nor is the sd Jno Cane made debtor to me for any money as paid to the said James Matthews or Order on his acct As witness my hand the day and yeare first above-written

    Wm Darvall

    Diffuse Reasons of Appeal and Answer thereto are filed in S. F. 1827.6, 7.

    The Court of Assistants (Records, i. 156) confirmed the former judgment with 39s 8d costs. But the dispute was to flourish for some time longer. See note to Earle Acquitted, below, p. 1160.]

    Cowell conta Stanifoed

    Edward Cowell of Boston plaint. conta John Staniford of Jpswich Defendt in an action of debt of three hundred Sixty four pounds due to the plaint. upon the Forfiture of a bond, according to Attachmt. . . . The Jury . . . found for the plaint. three hundred Sixty four pounds money being the Forfiture of the bond and costs of Court.

    Edward Cowell afterwards appearing in Court. 31o Januro 1679. acknowledged that hee was Satisfied this Judgemt by fresh Security.

    Townsend conta Williams

    James Townsend Housewright plaint. conta John Williams Boatman Defendt in an action of the case upon the Forfiture of a bond of two hundred pounds in not paying the Summe of one hundred and thirty pounds money as by the sd bond may appeare bearing date the. 23d of January. 1678. with all other due damages &ca . . . The Jury . . . found for the plaint. two hundred pounds money being the Forfiture of the bond & costs of Court: On request of the Defendt and hearing both partys The Court chancered this Forfiture to Fifty one pound ten Shillings money debt and damage and costs of Court: The Defendt appealed from this Judgemt unto the next Court of Assistants and put in Security for prosecutn thereof to effect.

    But as by Certificate appeares failed in the prosecution and was nonsutd so Execution issued forth upon the abovewritten Judgemt according to order. 6o march: 1679.

    Execution issued 6o march. 1679.   [625]

    [This case grew out of the same disagreement as that of Williams v. Townsend, above, p. 1122. The covenant over which the dispute arose (S. F. 1833.8) is interesting because of its detailed specifications for the construction of a house:

    This Agreement made Between Iames Townsend of Boston in New-England Housewright of the one part: And Iohn Williams of sd Boston Boatman on the other part Witnesseth that the sd Iames Townsend doth hereby covenant promiss and agree (in consideration of the payments and other the Covenants hereafter in these pursents expressed) to Frame erect Set up and finish for him the sd Williams upon his Land in Boston in the place where his now dwelling house standeth (which is to bee taken down by the sd Townsend) A Tenement or dwelling house according to the dimentions following. Vizt to contain in Length thirty four foote more or less as the Land will beare and in breadth twenty foote and Fifteen foote Stud with two jetts in the front next the Street, and a Leanto of ten foote wide joyning to the backside to reach throughout the Length of sd house, to Stone a Cellar underneath the sd main house throughout the whole length and breadth thereof, to build a Stack of good brick Chimnys to the sd house to contain six fires one in the Cellar, three upon the first Floore and two in the Chambers to inclose and cover the sides and Roofe with clapboards and Shingles, to make and place Four great casernt frames in the front of sd building, two cleer storey windows in the gables and two in the Cellar wall and to make outside dores and Staires into the Cellar, to fill lath & plaister the walls of sd house throughout, to lay a Floor of boards upon Sleepers in the Cellar, to make up all partitions, to make and hang all dores, Staires and to lay all the Floors of sd house with good merchantable well Seasoned pine boards, to make & put up pyramides and flewboards at the gables and generally to do all Carpentry and masons worke whatsoever necessary to the compleating and finishing of the sd Tenement or building to make it tenantable, although not herein perticularly expres’t (Ceiling of the Roomes excepted) all the timber used in about the frame of sd house to bee of good sound well seasoned Sizable white & black oake; all which workes and materials for the same (Clapboards Shingles hinges and Locks excepted) are to bee found made and done strong substantiall & worke-manlike at the proper cost and charge of the sd Iames Townsend, the Frame to bee raysed at or before the first day of May and the whole worke to bee fully done and finished on or before the last day of Iuly next insuing the day of the date of these pursents. Jn Consideration of which workes to bee done and finished in all respects as is above expres’t and materials for the same the abovenamed Iohn Williams doth hereby covenant promiss and agree to allow unto the sd Iames Townsend his pursent dwelling house, all the timber boards & bricks belonging thereunto (hee takeing down the same) and to pay or cause to bee paid unto him his heires Execre Admrs or Assignes the full Summe of One hundred and thirty pounds currant mony of New-England in manner following Vizt thirty pounds at the Ensealing of these pursents, Fifty pounds at the rayseing of the frame, and Fifty pounds more when the whole worke is done and finished as abovesd. Also to digg the Cellar and to finde and provide all Shingles clapboards hinges and locks for the sd building at his own cost & charge For the true performance of which abovewritten covenants Agreements and payments the partys to these pursents each one for his respective part doth binde himselfe his heires Execrs and Admrs unto the other his heires Execra Admrs & Assignes in the penall Summe of two hundred pounds lawfull money of New-England to be well and truly paid by the defective party. Jn Witness whereof they have interchangably Set to their hands and Seales this twenty third day of Ianuary Anno Domi 1678. And in the .30th year of his Majesties Reign

    Memorandm It’s agreed that the foreside and end of the house is to bee boarded underneath the Clapboards up to the first jette

    Iames Townsend a Seale

    Signed Sealed & Deliurd in the pursence of us.

    Jsa Addington

    John Casey

    Ownd in Court. 27o Ianuro 79. by Iames Towsend Attests

    Js Addington C

    Boston 23 Ianuary .1678.

    Then Rsd of Iohn Williams the Summe of thirty pounds money according to the within written Covenant in full of the first payment I say Rsd

    pr me Iames Townsend

    Witness

    Jsa Addington

    Boston 26o Iune 1679

    bqmentioned paymt covenanted to bee paid at the Rayseing of the Frame. I say Rsd

    per me James Townsend

    Testis

    Jsa Addington

    Vera Copia . . . Jsa Addington Cler

    Williams’ Reasons of Appeal have not been preserved; but the grounds of his refusal to pay the last installment of the sum agreed on in the covenant are set forth in his “Declaration to the Honored Courte of Assistants” (S. F. 1833.6):

    In the Reson of Appeale we haue Declared we haue not forfited Said Bond & thatt we Owed not 130£ when this Attacht was Serued Nor 51£ 10s Debt & Dammages:

    Jn this we shew yt by sd Couenantt We are to pay 130l: at thre seuerall times vizt

    30£: when ye Couenant was Signed

    50£ at Rearing sd House

    wch is done as appeares vndr the plantiffs hand therefore ye 50£ is not due vntill said House be finished which is not done — therefore Not due & 200£ not forfited there fore not 51: 10s due mony Debt & damage

    All which Appeares by ye seuerall Euidences putt Jnto this Action both by ye plt & Defendt as Will at Large appeare. both by time when it aught to haue ben don manner how & what is wanting as to prticulars of many materialls assentionally, (requisit to fulfil sd Couenant:

    Wee shall doe all Right to ye plt In Giuing in ye Euidences as he shall Desire most Conducing to his Cause Either first or Last to the End truth may Appeare and Justise may be Done Impartially:

    Yor Honore Seruant and the Jurys Friends

    John Williams Appellant:

    John hoare attorny to said Williams

    There follows “A Scedule of ye seuerall papers in this Case.” A few of these papers suffice to indicate the contentions of each party:

    S. F. 1833.7

    Wee whose names are underwritten being desired by John Williams of Boston to veiw and examine what his new dwelling house doth want to bee finished do finde these perticulers following not done according to Covenant.

    Jnprimis The mantle tree in the Cellar not faced.

    2ly. The mantle tree in the Leanto Chimly not faced.

    3ly. One Partition in the Cellar and a dore left undone

    4ly. Two Partitions in the Garret not done, and never a dore to them.

    5. Three pair of Staires and but one dore to them all

    6. Seventeen dores in the house, and not one latch, katch or bolt to any one of them.

    71y. Five gable ends to the house and not one of them fil’d.

    8ly. Two Jetties not close in the foreside: the one end and the foreside should have been boarded underneath the clapboards wch is not done.

    9ly. One Pyramid and one gutter on the backside of the house not done

    10. One guttar on the foreside of sd house not done, so that the house is much damnified for want of it.

    11 One end of the main house and Leanto from the bottom to the top, which hath no filling at all in it:

    12 And the Cheekes of the Cellar dore, which should have been done up with brick and Lime, is not done, which should have been done.

    13. One Partition upon the wing of the Leanto Chimney not done

    14. Some of the Windows in the house open between the Window frames and the posts.

    15. The Partition in the Leanto is not done as it should bee by a workeman

    16. The Cellar Staires that go out to the Street are neither fastned with Spikes nor with trunnels.

    Obadiah Stout

    Francis Dodson

    Thomas Adkins

    Sworn in Court .27o Januro 79 by the three Deponents

    attests J: Addington C.

    Vera Copia . . . Jsa Addington Cler

    S. F. 1833.10

    Cornelius White aged about .30. yeares testifieth and Saith that that end of John Williams his house joining to mrs Puglisss could not bee filled because there could not bee boards put up to fill against by reason it stood so neer it. And that the middle wall in sd Williams house between the main house and the Leantoo is boarded with plaine boards on one side, and filled lathed and plaistered on the other side which is not usuall and further Saith not: This Deponent adds that it is not usuall to fill gable ends, where a house jetts

    John Pearse aged about .70. yeares testifieth to all abovewritten

    White adds that Wms did motion to have that end of the house filled, but J shewed unto him the inconvenience and improbability of doing it, wherwith Wms seemed to bee Satisfied.

    Sworn in Court by both witnesses .28o Januro 79

    Attests J: Addington C

    Vera Copia . . . Jsa Addington Cler

    S. F. 1833.11

    The Deposition of William Dawes Mason aged .62. yeares or thereabout testifieth and Saith that being desired by James Townsend to go with Deacon Allen to pass their Judgement upon a house built by the sd Townsend for John Williams and J do Judge it to bee done workemanlike according to covenant and that hee has done rather more then less hee was obliged by covenant, as the plaistering the walls of the Cellar and the pointing the garret and that it is not usual to Seel the jetties when the Rooms are not Seeled.

    Boston Janur .26. 16⅞9/0

    Taken upon Oath before Elisha Hutchinson Commissr

    Vera Copia . . . Jsa Addington Cler

    Deacon Henry Allen also deposed (S. F. 1833.12) that he judged the house to be built “workemanlike and made tenantable according to his [Townsend’s] covenant”; and a similar opinion was given by John Pearse (S. F. 1833.16).

    S. F. 1833.13

    The Deposition of Gamaliel Rogers aged .22. yeares or thereabouts testifies and Saith that sometime in July last past J was at worke at Goodman Williams house, and hee would not let me go forward with my worke, because hee would have it boarded under the Clapboards and the same day James Townsend came down and they had some discourse about it, and the sd Williams was as J thought very well Satisfied about the boarding, and J went forwards with my worke and afterwards J heard the sd Williams Say that hee the sd Townsend should allow him boards for the fence.

    Benoni Gridly aged .15. yeares doth testify to what is abovewritten

    Sworn in Court per Gamaliel Rogers and Benoni Gridley Janury .27: 1679 attests J: Addington C.

    Vera Copia . . . Jsa Addington Cler.

    S. F. 1833.17

    The Deposition of Peter Weare aged twenty and nine yeares or thereabout testifieth and Saith that hee being Emploied by James Townsend about the framing & finishing of the house of John Williams from the first to the last and that it was done Substantiall and workemanlike by the middle of October and further that the sd Williams did say severall times in my hearing that hee could not finde any fault in the worke, Farther after the sd Townsend had framed the house in wideness and Length according to his Covenant, hee was forced to cutt of Six or Seven inches of the Length of it which was no small hinderance to the sd Townsend and farther Saith not.

    Sworn in Court per Peter Weare Janur 27: 1679 attests Jsa Addington C.

    Vera Copia . . . J: Addington Cler

    And as for the defendant’s objection that the work had not been finished on schedule:

    S. F. 1833.15

    The Deposition of Thomas Ghent aged about 37. yeares testifieth.

    That sometime last Spring John Williams the Boatman imployed me to digg a Cellar for him, where his dwelling house now standeth wch house was buil’t by James Townsend and this deponent testifieth that the sd Cellar was not digged and finished untill the last Election day in the morning being the .28. of may. 1679. my Selfe and one more man being imployed about it. Taken upon Oath ye .26th of .11th mo 1679.

    Before me Anthony Stoddard Commissr

    Owned in Court Janury .27th 1679. on his former Oath by Tho: Ghent attests J: Addington C.

    Vera Copia . . . Jsa Addington Cler.

    S. F. 1833.3

    To the Honred County Court assembled at Boston .27 of January .1679.

    John Williams craves the liberty of the law to appeale from the Jury’s Verdict to the next Court of Assistants in the action between James Townsend plaintife and my Selfe Defendant. As witness my hand this 12: of February .1679.

    of

    the marke | W Williams

    John

    A true Coppie . . . Jsa Addington Cler

    The magnanimous tribute to impartiality with which Williams concluded his declaration did not impress the higher court sufficiently to counterbalance the appellant’s failure to conform to legal practice. In the Records of the Court of Assistants, i. 155, we find the following entry:

    John Willjams plaintiff in an Accion of Appeale agt James Townsend deffendt from the Judgment of the County Court at Boston this Accion was Called no Reasons Appeard signed by a legall Atturney nor vnder ye plaintiffs hand the plaintiff was declard to be non suited & the deffendant to haue his Costs seven shillings.

    Williams’ letter of attorney to John Hoare is in S. F. 1833.9; Townsend’s bills of costs are in S. F. 1833.18, 19.]

    Pattishall conta Dyer

    Richard Pattishall plaint. conta Giles Dyer Defendt in an action of the case for refuseing to deliver unto the plaint. or his Order two Sutes of Armour or Corslets according to attachmt. . . . The Jury . . . found for the Defendant costs of Court allowd ten Shillings and ten pence.

    Execution issued. 24o april. 1680.

    Clement conta Mather

    Elisabeth Clement Executrix of the last will of Augustin Clement plaint. conta Timothy Mather Defendt The plaint. withdrew her Accion.

    Griggs conta Chock

    William Griggs plaint. conta Peter Chock Defendt in an action of debt of thirty five pounds mony or thereabouts according to Attachment. . . . The Jury . . . found for the Defendt costs of Court.

    Clarke conta Lamb

    Hugh Clarke Administrator to the Estate of Joseph Buckmaster of Muddy River deced plaint. conta Abiel Lamb Defendt in an action of trespass for comming upon the sd Buckmasters Land & cutting and carrying away wood off the sd Land according to attachmt. . . . The Jury . . . found for the Defendt costs of Court granted nine Shillings two pence.

    [This case, involving questions of administrators’ powers, precipitates us into the middle of the litigation over the Buckminster (or Buckmaster) properties. In S. F. 2997 are fifty-two papers relating to the controversies which arose not only over the estate of Joseph Buckminster, but over that of his father, Thomas Buckminster, as well.

    Administration of the estate of Joseph Buckminster appears to have been granted in 1668 to Elizabeth, his widow, and to her father, Hugh Clarke; a mutilated copy of their bond for administration is in S. F. 2997.19. In his capacity as administrator, Clarke let to his son John, in 1669, the whole estate “vntill,” as two witnesses later testified (S. F. 2997.30), “the heire Joseph Buckminster cum to the Age of twenty one yeares . . . for tenn pounds per Annum in the behalfe of Elizabeth Buckminster Widdow of the sayd Joseph deceased and her Children and this was done by the sayd widdows Aprobation and consent as shee did declare & Manifest to vs.” The arrangement was confirmed in 1671; a copy of the agreement, undated and in fragmentary form, is in S. F. 2997.18.

    In September, 1671, the Court of Assistants ordered as follows (S. F. 2997.8):

    Jn Answer to the peticion of Hugh Clarke and Elisabeth Buckmstr Jt is ordered that Thomas Gardiner & mr John Peirpoint shall & hereby are are Appointed a Comittee to lay out the peticonr hir Just thirds as the law Directs.

    The committee performed its function, and estimated “eight pounds a yeare in [Country pay to] bee a competent Rent” for the widow’s portion (S. F. 2997.43).

    The next January (1671/72), Elizabeth and her father made an agreement, the only surviving copy of which is badly damaged, but the general provisions of which can be deduced from the following extract (S. F. 2997.23):

    . . . Whereas the sd Elizabeth Buckminster [wid]dow hath in hand received of the sd Hugh Clarke administrator] to the Estate of the sd Joseph decd [Sixty pounds] of the sd Estate, the sd Elizabeth Widdow doth [hereby] acknowledge the same and Shee being [therewth fully] Satisfied as her whole due from the sd Estate during the life of Joanna the wife of Edward Garfeild of Watertown (mother of the sd Joseph decd)19 [Shee the said] Elizabeth Widdow doth hereby absolutely and [for ever acquit] and discharge her sd Father Hugh Clarke Administrator his heires Execrs Admrs & Assignes of for and from the [said] Summe and every part thereof and Shee the sd [Elizabeth] Widdow doth hereby covenant promiss & grant to and [with] the sd Hugh Clarke her sd Father as Administrator [abovesd] and to & with his heires Execrs Admrs and [assignes till] the death of the sd Joannah if it happen before [the] Children abovenamed Joseph Buckminster shalbee [one and] twenty yeares of age and his Sister Elizabeth shalbee Eighteen yeares of age that then her sd Children shall enjoy two full third parts of the cleere income of her sd husbands Estate, and that Shee shall and will bee content with one third part onely of the income of the same after all charges and payments due from [the sd Estate] is deducted; but upon the death of the sd [Joannah] Garfeild and when the sd Joseph & Elizabeth [the two] Children of the sd Elizabeth Widdow shalbee [at age] aforesd the sd Elizabeth widdow doth then [expect] (after all debts and dues are abated & paid) [to enjoy] one full third of her sd Late husbands [whole and] cleer Estate, that the sd Joseph and Elizabeth [her] Children shalbee securely in legall [possession of and] the sd Elizabeth Buckminster widdow [doth hereby] also covenant promiss and grant to & [with her said] Father Hugh Clarke Administrator [abovesaid his heires Executors] admrs and assignes and all & every of them [that the] Sixty pounds which Shee hath now received [from him shal] bee deducted out of her third part of the [whole and] cleere Estate which then (& not till then) [she shall] receive: And for the full confirmation of the . . . abovewritten, both . . . Hugh Clarke and Elizabeth Buckminster widdow hath hereunto Set their hands & Seales this three and twentieth of January One thousand and Six hundred Seventy and one. . . .

    Witnesses later testified (S. F. 2997.30) “that for the Covenant Between Elizabeth Buckminster And Hugh Clarke made the twenty third of January; That word Expressed Incum in the Covenant, it was then at the sealing manifested and declared by both parties to be the Income of the Rent only.”

    In the course of the next few years, the widow Buckminster married Abiel Lamb, who was apparently not satisfied with the existing state of affairs. In S. F. 2997.34 is recorded a vote of the Court of Assistants:

    Upon the Motion of Abiell Lamb in behalf of his wife late widow of Joseph Buckmaster referring to her thirds of sd Josephs Estate, Mr Thomas Weld & Thomas Garner senr are appoynted a committee to repayre to sd Lands & set out her thirds according to law.

    J Dudley, per order

    8.7.77.

    S. F. 2997.26

    mr Thomas Weld and mr Thomas Gardiner appointed by the Honorable Court of Assistants Sepr 4. 1677. to lay out the thirds of the Estate of the late Joseph Buckmaster of muddy River to Abiel Lamb and Elizabeth his wife Relict of sd Joseph as by sd Order will appeare; make Oath that they did performe sd Order and have given Account thereof to the Court, And that it was part pasture and part plow Land to Satisfaction of said Lamb, and that the fence now in controversy stood upon sd Lambs third part dividing his pasture from his plow Land.

    Thomas Gardiner further adds that hee was of the first Committee of Survay of the abovesd thirds and that they are now ye very same Lands not more nor less that was assigned by the first Committee.

    Thomas Weld & Tho: Gardiner made Oath of what is above, before. J: D.

    Vera Copia. J. Dudley A.

    The next development of which we have any record is the present suit. Apparently it was part of an energetic campaign begun by Clarke at this time to retain entire control of the estate, as a petition of Abiel Lamb indicates:

    S. F. 2997.10

    To the Honoured Court of Assistance sitting in Boston the 2nd of March 16⅞9/0

    The petition of Abiel Lamb and Elizabeth his wife formerly the wife of Joseph Buckminster humbly sheweth that whereas our Honoured father Hugh Clark hath exhibited his petition before this Honoured Court in referance to the estate left by the said Buckminster to which estate your petitioners haue a Just right of thirds but could never yet Jnjoy it but haue been Very much wronged by our father Clark and his tennant our brother John Clark under pretence that the estate is indebted to them they making themselues Judges both of debt and Creddit your petitioners cannot well bear such wrong having need of their own and yet loath to Complain but not receiueing any rent for severall yeares nor like to doe for the future petitioned this Honoured Court not long since for a Comittie to lay out our thirds which accordingly was done but our father Clark and our brother John Clark his tennant upon the estate will not let us Jnjoy it peaceablely but haue petitioned this Honoured Court to call in their order for the laying of it out Jnsinuating as though your petitioners had obtained the saide order fallatiously which will apear to the Contrary if your petitioners may haue liberty to speak for themselues and produce such evidence in the case as will demonstrate to this Honoured Court what our Just right is and that we haue been unjustly kept from it by our father Clark which favour your petitioners humbly begs and that the Case may be Jssued without any farther trouble or suits of Law if possible and your petitioners and the Children of Joseph Buckminster secured from farther loss and dammage so your petitioners shall ever pray as in duty bound for your Honours peace.

    Abiel Lamb

    Clarke’s petition, referred to in this document, has not been preserved. The Court of Assistants (Records, i. 158) replied to the petitions:

    In the Case of Hugh Clarke & Abjel Lambe the Court sees no cause to abate of the last Court of Assistants Judgment.

    Since the last previous reference to the Buckminster estate in the printed Records of the Court of Assistants is the order of September, 1677, to lay out the widow’s thirds, this decision seems to constitute a victory for Lamb. In any case we find him at the session of the County Court in July, 1680, suing John Clarke for four years’ rent of one-third of the Buckminster estate, at 4l per year. (Attachment, return, and bond in S. F. 2997.2.) Lamb was cast, and appealed on the following grounds (S. F. 2997.13):

    1. For that it doth Cartainly appear that there is mony due from the farm to your appelant the law of the land giuing her that right to thirds of her husbands lands & the Court hauing set out the same to her & the Jury vpon the late triall confesing the same

    2 that John Clarke defendant is occupant of said land and the plantiffe hath no other par[torn] for rent but vnto him it is cartaine he is [torn] for my thirds if not for the whole as Administratrix: to what was pleaded that J had Jmpowred my Father to let it to the now Tenant & therfor i was to seek rent of him, J Answer J haue Just reason to except

    1. against the wittneses being sons swearing for there father20

    2. against the euidence that say accordingly by lease he did let it which lease appears not to be vnder my wifes hand neither doth that lease appear when dated nor euidence sworne to it

    3. against the discretion of the old man in Ieting of it for tenn pound Countrey pay, when by the wisest neighbours it is Judged worth Twelue pounds mony, who will also giue the same yearly for it

    The Case is breifely this your appelant hath right by law to one third of land of her dead Husbands & to third of promt during it being out of her hand she sueth John Clark occupant for about 4 years profit the said thirds worth 4ll mony per Annm & common Law nor Justice directs her to no other way for payment, but what she hath taken.

    Clarke answered (S. F. 2997.15):

    1st Whereas your apellant saith that he hath right to one third pt of the farme therfor to the rent

    answr if that be granted yet no damage to the defendt nor to his case, nor indeed is it the case in controversy whether the apellant hath a right to a third pt of the farme: but the case is whether it be the defendants duty to pay rent to the apellant that nevr made any bargaine with him: but only with the administrator & ingaged to pay rent to him: & so hath done: as: apeares by evidence in Court & to pay to both seems to be uniust

    2ly Whereas the apellant saith: that I am his tenant & he hath no other to goe to for for his rent I answr: how I came to be his tenant I doe not yet know: I nevr rented any thinge of him: but of the administrator: therfor no reason to pay rent to the apeallant but if law say I must pay rent to the apealant: the Defendt hopes he shall be salued vpon the administrator wth whom he covenanted & whom he paid & not forced to pay both.

    But 2ly whereas the apellant doth Implicitly say that his wife did impower her father to lett the estate as far as there is truth in the evidence: & so himselfe doth imply cleerly that ye administrators act is good in lettinge it to ye Defendt. But obiects against the evidence as illegall beinge sons for their father

    answr To which we say 1st that if the gentleman that writt these reasons were not deeply ingaged in the case the Defendt would leaue it to him to Judge whether that a son & a son in law be not legall evidenc for or in a case concerninge their father but that is beyoind dispute we leave it to ye Court to Judge: if that were ye case: but the apellant is much mistaken when he saith the son is wittnesse for the father for the father was not defendt in the case: but the the controversy is betweene brother & sister & the evidence as neere related to the one as ye other therfor no reason to obiect against the evidence exept it be to cast dirt

    2ly whereas the apellant obiects against the Lease as not beinge valid: not beinge dated as they say nor evidence sworne to it We answr that the Leaser hath acknowledged his act in Court therfor no need of oaths neither any nessessity of his wifes hand to it she havinge impowred her father by covenant before & also consented to the lettinge of it to the Defendt as apeares by the covenant & evidence in Court nor no law required it: it beinge no conveiance of title

    3ly wheras the apellant obiects against the discrettion of the old man: if he had sd: his father he had shewed more maners. we answr the old man as he is pleasd to call him: my aged father was not indiscreet in lettinge the land to cheap: for what evr some may say that it will yeild more now yet at the time when it was let there were some of the neighbours as wise as the wisest spoken of in the reasons of apeall did Judge it [a] hard bargaine for the defendt which were the comittee apointed [by] the Honrd Court of assistants to lay out the widdows thirds And indeed any mans reason will g[worn] that there may be great changes in so longe a time as the Lease expresseth & Indeed if the change of time had held ocasioned by the late wa[r] it would haue yeilded little or nothinge & the poore defendt paid all his rent then & therfor hath reason to haue the benefitt now if any be to be had.

    The apeallant his last plea is that he hath a right to rent wch we have answered in the answr to the first reason: & for the second part of his plea, that he hath no other to goe to for rent but Jno Clarke the apellant doth much forgett himselfe in so sayinge: for he hath receiued pt of his rent of his father the administrator & might haue had the rest if he had pleased wch makes the defendt doubt that be would have had rent from both: or else why should he sue the defendt when he had received pt of his rent before & might have had the remainer if he would haue come to an account with the administrater as apeares by evidence in Court.

    The Court of Assistants (Records, i. 165) reversed the former judgment and found 13l 6s 8d for Lamb. In order to remove cause of further friction, the County Court, in March 1680/81, replaced Hugh Clarke as administrator by Abiel Lamb, who was to pay fifty pounds to his father-in-law at the rate of eight pounds a year (S. F. 2997.11).

    The habit of litigation seems to have become too deeply ingrained in the family, however, to be so easily eradicated: in July, 1682, Clarke sued his son-in-law unsuccessfully for one instalment of his compensation which he alleged had not been paid (S. F. 2997.12); and as late as 1691 we find John Clarke appointed attorney to the Suffolk County Treasurer to sue Lamb as administrator to the Buckminster estate (S. F. 2997.25).]

    Dafforn conta Earle

    John Dafforn Attourny of James Matthews plaint. conta Robert Earle prison keeper in Boston Defendt The plaint. was nonsutd in failure of power and costs allowd the Defendt Fourteen Shillings eight pence.

    Execution issued. 19o July. 1681.

    [See Earle Acquitted, below, p. 1160.]

    Weld conta Hall

    Thomas Weld plaint. conta Richard Hall & Elizabeth his wife Executrix of John Holbrooke deced Defendt The plaint. was nonsutd in failure of process.

    Burden conta Leverett

    Stephen Burden plaint. conta Hudson Leverett Defendt The plaint. withdrew his accion upon a judgemt acknowledged.

    Feno conta Atherton

    John Feno plaint. conta Watching Atherton Defendt in an action of debt due upon bill according to Attachment. . . . The Jury . . . found for the plaint. Five pounds six Shillings money and one pound in English goods according to bill and costs of Court granted twenty four Shillings two pence.

    Execution issued. 17o april. 1680.

    Shaw conta Norton

    Joseph Shaw plaint. conta William Norton Defendt in an accion of the case for witholding a Servant from this plaint. named John Norton according to attachmt. . . . The Jury . . . found for the Defendt costs of Court.   [626]

    Brentnall conta Gatchell

    Thomas Brentnall plaint. conta Joseph Gatchell Defendt in an accion of debt of three pounds ten Shillings or thereabouts due upon account and otherwise according to attachmt. . . . The Jury . . . found for the plaint. three pounds ten Shillings money and costs of Court allowd thirty Six Shillings two pence.

    Execution issued 2o Febr 1679.

    Porter conta Appleton

    Abel Porter plaint. conta John Appleton Defendt in an action of the case for witholding the full and just Summe of one hundred pounds of lawfull money of New-England due to this plaint. upon the Forfiture of a bond of Arbitration given under the hand and Seale of sd Appleton dated. 6: Novr 1678. as shall appear with all other due damages. . . . The Jury . . . found for the plaint. One hundred pounds in money being the Forfiture of the bond & costs of Court The Defendt appealed from this Judgemt unto the next Court of Assistants and put in Security for prosecution thereof to effect.

    [The bond of arbitration in this case has not been preserved; but the award of the arbitrators is in S. F. 1878.6. In S. F. 1878.2 is a summons to Henry Deering, John Walley, Penn Townsend, Paul Dudley, Benjamin Davis, and John Pynchon (of whom the second and third had been the arbitrators) to testify at the County Court. The account over which the disagreement arose (S. F. 1878.5) follows:

    Accompt of Sales Sundry goods Ship’t aboard the Katch Dilligence Thom. Palmer Comma for Accompt of mr Abel Porter is Drto Sundry Actt of charges, vizt:

    Virginia

       

    1677

     

    £ tobac

    Novembr 26

    To. ⅛ part of Victualling the Katch in Virga 62li ½

    0062½

     

    To :⅛ part of Entring & Cleering the Katch Collrs

    0105

     

    To. Storehouse Roome for goods

    0250

     

    To Sloope hire to Ship’t Tobacco in Holland

    0100

     

    To. Commission for Sales at 5 per ctt

    0535

       

    1052½

     

    To. his Accot currt below for Balla of his Accompt Sales being

    9653

       

    10750

     

    Pr Contra . . . Cr

     

    Virginia

       

    1677

     

    li tobacco

    Septembr 22

    By. Sales of. 835li Sugr at 3li perli

    02505

    Ditto 5

    By. Sales of .4. barrs Molasses to Severll men

    01014

     

    By. Sales of .8. barrs Salt Sold to Severll

    01040

    Octobr 5

    By. Sales of. 12. qutr caske wine to sundry pers

    03600

     

    By. Sales of a parcell of Ginger to sundry pers

    00200

     

    By. Sales of .1. barrll Lime juice. 300li

    00300

     

    By. Sales of .34. pr Shoes Sould to severll

    01000

     

    By. Sales of .6li½. powder .65li 1 Chest: 90li

    00155

    Novembr 4

    By. Sales of .40½. gallo Rum at .22li per gallo

    00891

       

    10705

    Mr Abel Porter his Accompt Currt Dr

    Virginia

       

    Ianuary 18

    To. Tobacco Shipt onboard Ino Holland to Ordr

    02500

     

    To. Commission of. 2500li Ship’t aboard

    00125

     

    To. Debts left in Major Allerton’s hands

    07028

       

    09653

         
     

    pr Contra . . . Cr

     

    Virginia

       

    Febr 27

    By thent produce of Acctt Sales above

    09653

    Errors Excepted this tenth day March. 1677.

    John Appleton

    mr Iohn Appleton appeared before me and made Oath that the abovewritten Account is a true & just Account as hee hath Subscribed .this. 17. of Decembr 1678.

    Daniel Denison

    Ownd in Court by mr Appleton 28o Januro. 79.

    attests J. Addington Cler.

    Vera Copia . . . Jsa Addington Cler

    The dispute appears to have turned chiefly upon an uninteresting technicality concerning Appleton’s carrying out of the award. Appleton’s Reasons of Appeal are in S. F. 1878.4. The Court of Assistants in March 1679/80 (Records, i. 154)

    . . . found for the deffendant Confirmation of the former Judgment & Costs of Courts. After ye Court had heard ye partjes pleas [for?] a chancery of ye bond they Judged it meet i e the bench to chancery the bond to forty flue pounds mony & Costs of Courts the plaintiff taking the debts & Goods in virginea to himself ye Costs allowed being fower pound sixteene shillings and two pence.

    Later in the same session the Court gave the following order (S. F. 1878.3):

    Whereas in the Case betweene mr Porter & mr Appleton depending in the Court of assistants about the chancering of a bond of arbitration it appeares (through inadvertency) that Judgment is entred contrary to the intention and order of the Court for a respit untill a further hearing, Jt is heereby ordered & declared that the sd Judgment be null & voyd in law & all acts since Done by either partie in prosecution of the sd Judgment be in like manner null & voyd, untill the Sd Appleton have opportunity of further plea whereunto he shal be admitted before the end of the next Court of Assistants in September or the Court take further order heereon. Past by ye magists as their Act at the Court off assistants on Adjournmt this 4 of June 1680.

    Edwd Rawson Secret

    At the September Court of Assistants the case was finally settled (Records, i. 167):

    The Court on Consideration of their late Act in June last Reasuming the Chanceryng of mr Apletons bond declare they haue chancerjed the sd bond to thirty fiue pounds mony & mr Apleton to haue the tobaccos himselfe.]

    Homes conta Henshaw

    Joseph Homes Attourny to William Pond plaint. conta Daniel Henshaw Defendt The plaint. was nonsuted upon non-appearance

    Tidd conta Smith

    Rhoda Tidd Executrix to the Estate of Edward Porter late of Boston deced plaint. conta Thomas Smith of Charlestown Defendt in an accion of debt of Four pounds Seven Shillings in money due by booke according to attachmt. . . . The Jury . . . found for the Defendt costs of Court.

    Simpson conta Salter &ca

    Loammi Simpson who married with Elizabeth Relict widdow of Richard Critchley deced or John Cleesby his Lawfull Attourny plaint. conta Jabez Salter and Nathanll Addams Junior Defendt in an action of debt of Seven pounds ten Shillings in money or thereabouts remaining due to bee paid of the annuity ordered the sd Elizabeth by the County Court sitting by Adjournmt 23. novr 1675. according to attachmt. . . . The Jury . . . found for the Defendts costs of Court.

    [See case of the same name at the July session, 1679, above, p. 1040.]

    Ellis conta Mitchel &ca

    Henry Ellis plaint. conta Thomas Mitchel & John Lux or either of them Defendts in an action of trespass upon the case for that the sd Thomas Mitchel and John Lux did about the middle of April last past unlawfully Seize & take away the goods appertaining to the sd Henry Ellis from onboard his Vessell to the value of Five hundred pounds or thereabout and the sd goods do still wrongfully detain with all other due damages. [627] . . . The Jury . . . found for the plaint. the goods Sued for and One hundred and Fifty pounds damage Or three hundred Forty three pounds eight Shillings eight pence money & costs of Court Fifty Six Shillings four pence. Execution issued 4o Febr 1679.

    Willet conta Hunt

    James Willet plaint. conta Peter Hunt Defendt The plaint. withdrew his Accion.

    Savage conta Thayer

    Major Thomas Savage plaint. conta Richard Thayer Deft The plaint. withdrew his Accion.

    Jndicott conta Kent &ca

    John Jndicott plaint. conta William Kent & Richard Knight Attournys to Samuel Hawford Defendt in an accion of debt of twenty pounds or there about in money, due to the said Jndicott from the Estate of sd Hawford, they having promised to pay sd Jndicott what shall appeare to bee due from sd Estate unto him according to Attachmt This case was Submitted by consent of partys to the Bench without a Jury who upon a full hearing of the case and consideration of the Evidence presented, gave Judgemt for the plaint. twenty pounds Fourteen Shillings six pence money and costs of Court three pounds four Shillings.

    Floyd conta Baker

    John Floyd Assigne of James Bill Senr plaint. conta Thomas Baker, who married the Relict and Admx of John Smith Junr deced Defendt in an accion of debt of Fifty pounds money being the Forfiture of a bond bearing date. 26o Septembr 1674. under sd Smith’s hand and Seale according to attachmt. . . . The Jury . . . found for the Defendt costs of Court.

    Brown conta Martin

    Samuel Browne plaint. conta Richard Martin Defendt The plaint. was nonsuted in failure of process, having commenced the same Accion at a former Court and not comming now in way of Reveiw.

    Rose conta Ellis

    Roger Rose plaint. conta Henry Ellis Defendt for the Summe of Forty Six pounds money due upon the Forfiture of a bond according to attachmt. . . . The Jury . . . found for the plaint. Forty Six pounds money being the Forfiture of the bond & costs of Court: At request of the Defendt and hearing both partys the Court chancered this Forfiture to Fourteen pounds nineteen Shillings money & costs of Court. And it is since satisfied and a discharge given by Rose of my writing to Ellis

    Jsa Addington Clre [628]

    Greenough conta Bartho

    Elizabeth Greenough Attourny to William Greenough plaint. conta William Bartholmew Defendt in an accion of debt of twenty pounds money due by bill according to attachmt. . . . The Jury . . . found for the plaint. twenty pounds money and costs of Court granted twenty three Shillings eight pence.

    Execution issued 13o febr 1679.

    Hayward conta Daniel

    John Hayward plaint. conta Samuel Daniel of Yorke Defendt for the Forfiture of a bond of One hundred and ten pounds datd 15. April. 1679. under the hands and Seales of sd Daniel and Samuel Bankes according to attachmt. . . . The Jury . . . found for the plaint. One hundred and ten pounds being the Forfiture of the bond & costs of Court: On Request of the Defendt having heard both partys the Court chancered this forfiture to Forty Seven pounds money & costs of Court granted three pounds Seventeen Shillings eight pence.

    Execution issued 24th febr 1679.

    Green conta White

    Nathanael Green plaint. conta Magnis White Defendt for not delivering a parcel of boards of Fifteen thousand foote wch the plaint. bought of sd White and paid him five pounds money in part for the same; which is very much to his damage. . . . The Jury . . . found for the Defendt costs of Court.

    Hall conta Waldron

    Andrew Hall plaint. upon replevin conta Major Richard Waldron Administrator of the Estate of Nathll Elkin deced Defendt The Replevin and evidences in the case produced being read & committed to the Jury which are on file, The Jury . . . found for the plaint. the Barque Ann & costs of Court.

    Waldron conta Hall

    Major Richard Waldron admr of the Estate of Nathanael Elkin deced plaint. conta Andrew Hall as Mar of the Barque Ann Defendt The Barque being attached in this accion it was dismissed as issuing in the Replevin.

    Waldron conta Hall

    Major Richd Waldron Admr of the Estate of Nathaniel Elkin deced plaint. conta Andrew Hall Defendt for witholding a just and true accot of the Sales together with the neat produce of a parcel of goods Ship’t onboard the Barque Anne and consigned to sd Hall to value of £.63.15.9. first cost in mony in Boston as may appeare by sd Elkins Bookes and bill of Loading under the hand of sd Hall, dated. 29. October. 1678. according to attachmt. . . . The Jury . . . found for the plaint. three hundred Seventy one hundred of Logwood. Or one hundred eighty five pounds ten Shillings money & costs of Court.

    Rawson conta Lilley

    mr Edwd Rawson plaint. conta Edwd Lilley Defendt for Jmprisoning Robert Cooke his Servant being deliurd him by Execution levied on sd Cookes person for Eighteen pounds [629] Eight Shillings four pence money &ca according to attachmt. . . . The Jury . . . found for the plaint. that the Defendt do deliver him his Servant Robert Cooke, or pay him Eighteen pounds eight Shillings four pence money and costs of Court granted twenty Seven Shillings six pence.

    Execution issued for costs. 7o febr 1679.

    French conta Rose

    Stephen French plaint. conta Roger Rose Defendt The plaint. withdrew his accion.

    Phillips conta Lowle

    Eleazer Phillips plaint. conta John Lowle and Joseph Lowle Defendts according to attachmt The plaint. withdrew his Accion.

    Hallit conta Atherton

    George Hallit plaint. conta Watching Atherton & Timothy Mather Defendts The plaint. withdrew his accion upon the Defendts confessing Judgemt

    Greenwood conta Pinke Jndustry

    Nathaniel Greenwood Shipwright plaint. conta the Pinke Jndustry whereof William Harris now is or late was mar Defendt for non payment of the Summe of thirty eight pounds one Shilling five pence money due to the plaint. for worke done & money expended and engaged for the necessary repaire of the sd Pinke whils’t Shee lay at the plaints yard as shall appeare by accompt with all damages &ca. . . . The Jury . . . found for the plaint. thirty eight pounds five pence money and costs of Court.

    Heath conta Homes

    Thomas Heath plaint. conta Henry Homes Defendt according to attachmt The plaint. was nonsutd in failure of giving Summons.

    Smallage conta Williams

    William Smallage plaint. conta Richd Williams Defendt for witholding the Summe of ten pounds fourteen Shillings money due to this plaint. for worke done for sd Williams as shall appeare according to attachmt. . . . The Jury . . . found for the Defendt costs of Court.

    Bumsteed conta Hewson

    Jeremiah Bumsteed plaint. conta Thomas Hewson Defendt The plaint. withdrew his Accion.

    Kent &ca conta Jndicott

    William Kent and Richard Knight plaints conta John Jndicott Defendt in an action of debt of Ten pounds eighteen Shillings and Sixpence money due by bill according to attachmt This Accion was by consent of partys submitted to the bench without a Jury who upon a hearing and due consideration of the case gave Judgemt for the plaints Ten pounds Eighteen Shillings sixpence money according to bill & costs of Court granted Forty Seven Shillings.

    Cooke conta Oliver

    Elizabeth Cooke Execx and Elisha Cooke Executor to the last Will & testamt of the late Lt Richd Cooke deced or either of them plaint. conta Captn James Oliver Defendt for witholding the Summe of two hundred and Four pounds ten Shillings & nine pence in money due upon the ballance of an accott under his hand datd 23th July. 1679. with due damages. . . . [630] The Jury . . . found for the plaint. two hundred and Four pounds ten Shillings nine pence in money & costs of Court grantd thirty Shillings and twopence.

    Execution issued 27o Febro 1679.

    [The account on which this action is based (copy in S. F. 1910.11) goes back to the year 1660. It includes charges for goods advanced from Cooke’s store on a rather wholesale scale, such as “100 hhds Salt at 12s 6d per hhd — 62l 10s”; money lent or advanced, as “paid Ltt Remington for a Cowe — 4l 10s”; and the following item:

     

    £ s d

    To 62li per bill of Exchange wch should have been pd in London in ye yeare .1653. wth the allowance for the Exchange at .25li perc is .

    77:10:—

    To the Jnterest of Ditto from ye 1o June 1654. to ye 1o June 1679. being 25 yeares at 6li perc amounts to

    116:05:—

    Following the account is Oliver’s attested acknowledgment of it:

    Accountd with Elisha Cooke this. 23o day of July. 1679 and there rests due to his Mother mrs Elizabeth Cooke Executrix of the late Richard Cooke deced the Summe of two hundred & four pounds ten Shillings & nine pence in money. As witness my hand the day & year abovesd

    Errors Excepted per James Oliver

    Jn pursence of us.

    Sarah Leverett

    Ann Hubbard

    Sarah Leverett made Oath that Shee was pursent and did see James Oliver Subscribe his hand to this Accot & that Shee set her hand thereto as a witness & that Ann Hubbard did also as a witness Subscribe the same on the day of the date thereof, this was done the .26o day of Janry. 1679

    Before me Anthony Stoddard Commissr

    mrs Ann Hubbard tooke Oathe to Captn Olivers Subscribing this Acco in as full manner as mrs Leverett is Sworn 30.2:80.

    attests J. Addington Cler.

    Oliver’s attorneys obtained a review of the case at the next County Court; but between the two actions an attempt was made to reach a settlement:

    S. F. 1910.16

    James Allen aged 47. yeares or thereabout testifieth & Saith. — That Capt James Oliver did sometime in February last past come to the Deponent and desire him to heare the grounds of the difference between him & Dr Cooke about a debt oweing to Dr Cookes Father in order to the issuing of sd difference of which they had a tryall the last County Court here at Boston, having severall times discoursed each of them about it and perswaded sd mr Cooke and his Mother to accept of a Summe which Capt Oliver did assure the Deponent hee would willingly pay to them; the sd Oliver did afterwards desire that mr Nowell & his Kinsman mr John Oliver might meete at the Deponents house to debate what was the true principle debt, who did there accordingly meete and after much discourse of a debt of Sixty two pounds due by bill of Exchange in London, the Deponent seriously urgeing Capt Oliver to act the part of an honest man and say whither this was a debt yet unpaid or not hee answered to this effect, that hee durs’t not wrong his conscience, but did acknowledge it was yet unpaid and therefore due from him either to mre Cooke as the Relict and Executrix to Ltt Cooke deced or mr Daniel Hoare, it being originally a debt due to them in partnership, and if mr Cooke and his mother would discharge him from the sd Hoare as his Father had done hee would pay it to him, wch Dr Cooke told him hee would do: This Depont further Saith that sd Captn Oliver did twice with him agree upon a Summe that hee would presently pay if sd Cooke would accept it wch this Deponent did perswade sd mrs Cooke & her Son Dr Cooke for peace sake to accept; Which Agreement (as afterwards J understood) was not performed by Captn Oliver, and that sd Oliver did at severall other times of his own accord acknowledge that it was a true debt, and that hee was agreived only at the Jnterest. The acknowledgement of the debt in the house of the deponet was in pursence of mr John Oliver and Ltt Reynolds & further Saith not.

    Taken upon Oath the .29th of .2th mo: 1680 before me Anthony Stoddard Commissr

    Ownd in Court upon former Oath .30th April 1680.

    attests Jsa Addington Cler

    Copia Vera. per Jsa Addington Cler

    S. F. 1910.13

    John Walley aged about thirty five yeares testifies that severall times discourseing with Doctor Cooke about the Action and Accott that was depending between Captn Oliver and him, hee hath heard sd Cooke owne that the Summe that had been due upon the bill of Exchange on the partable Account Hoare suing Captn Oliver for the money, yt upon Capt Oliver Request to cleare him of Hoare, his Father gave him a receipt on the partable Accott & made Captn Oliver Dr to his proper Accott which in Captn Oliver behalfe wee urged hee would shew his Bookes to make yt appeare, but hee refused.

    John Oliver testifieth to the truth of the abovewritten

    Sworn in Court by both Deponts 30th april. 1680.

    Jsa Addington Cler

    Vera Copia attestr Jsa Addington Cler.

    John Hubbard and Major William Phillips testified (S. F. 1910.15) that Oliver had asserted “he objected against nothing in the Accompt but the Jnterest.”

    In S. F. 1910.1 is a copy of the attachment against Oliver in the original action. The return, with a later note by the clerk, is worded as follows:

    Novembr 25th 1679.

    J attached the ground of Capt James Oliver on which his house did stand before the last fire in Boston with all the rest of his Land thereunto adjoining.

    Return Waite Marshall

    mr Cooke made Oath in Court 30th Januro 1679. that hee deliurd a Summons to Captn Oliver

    attests J. Addington C.

    This document furnished one of the arguments for the following Declaration (S. F. 1910.6), presented to the County Court by Oliver’s attorneys at the review in April, 1680:

    Wee humbly Offer that the sd Captn Olivers not so well minding or understanding his own concern nor seeing the snare that Doctor Cooke had laid to get his Estate from him & his secret manageing this matter as much as might bee that the sd Capt Olivers Freinds might not appeare to defend his cause and discover sd Cookes unfaire if not unjust dealing therein was the Reason that no Defendt appeared in the last County Court, therefore a Reveiw being of the nature of a writt of Error, wee hope that if wee make it appear now, that there was no ground for the proceeding of the case at that Court, then wee shall obtain Judgemt for or full damages now.

    1o Wee Say that there was no Defendt appeared to owne nor any testimony that the Summons was served or given to sd Oliver Six dayes before the Court (as the Law provides) & had Doctor Cooke Sworne as to the time, which hee did not or that the Summons hee deliurd related to this, yet wee leave it with the Honord Court to consider whither a party Swearing in that case bee legall proofe where the Defendt is not there to owne or deny.

    2o Wee Say the Officer in his Return Saith that hee attached ye ground of Captn Oliver but doth not Say to respond that Action therefore conceive that the case should not have proceeded unless there had been something attached to answer that action, for the attachmt the very words of it are to attach ye goods or Estate of &ca to answer the complt &ca but it did not appeare that this Estate was attached to answer the Action according to the tenour of that attachmt. See the marshalls Return.

    3o Wee say the partys are not understood if they are joint Executers then they should jointly Sue and then what is due to the Estate is due to them jointly & so not at their Liberty to Sue severally, now by will they are joint Executors for it saith J appoint Eliz: Cooke Executrix and Elisha Cooke Executor but not Eliza: Cooke or Elisha Cooke Executrix or Executor &ca. But as to the Action they or either of them by Attachmt Sue for £.204:10:9d due upon ballance of Accott under Captn Olivers hand but say not whither it is for so much due to one of them or whither due to both of them or if but to one to which of them, hee Saith for £.204:10:9d due but not to whome, and in the attachmt hee refers to a writing datd 23d July. 1679. now that writing if it hath Capt Olivers hand to it, it is with an exception or reservation, all hee Saith is no more then that it is true, that there is so much due if the Accott bee not false, which we Suppose will amount to as much as comes to nothing, for let the Errors bee discounted which are excepted and there will appeare very little if anything due to the now Defendt or Defendts. That writing saith so much due to Eliz: Cooke, now the action and that writing do not agree, for if it were due to her then not to her or him or either of them, they Say in the Attachmt for so much upon ballance now there is not one such word in that writing, and it argues that they were not agreed nor come to any conclusion or ballance by his setting his hand to it with that Reservation Errors Excepted which was never seen to a writing of that nature, the testimony in Court was single, and onely sworn that Shee saw Capt Oliver Set his hand to an Accott but not that hee set his hand to a writing containing such a Summe as the ballance neither was the Deponent present in Court to owne the Deposition as ye Law requires: As for the Accott it will prove itselfe Erronious Jf the Honord Court & Jury will please to take notice that the first Article of it Js for ballance then made up (wch was ye 4th of 8ber 1660). 23li 00:07d then due to Ltt Richd Cooke, and this pretended bill of Exchange was to bee paid in Anno 1653 and therefore must needs bee included in the ballance of 23li 00:07½ due in anno: 1660: being Seven yeares before. . . .

    4. Error. And as for .194li of the Summe recovered it is not onely included in the ballance of .23:00:07½ (as wee Say before) but hee makes it rise from a pretended bill of Exchange which should have been paid in England but never Saith who it was drawn by who it was drawn upon or who payable to, now wee desire that hee should shew some probability or appearance that there ever was such a bill of Exchange for 62li To produce such an one wee know hee cannot wee have often urged him to shew his Bookes but judge hee dares not; but supposeing Captn Oliver had given such or any other bills of Excha they are to bee accounted pd unless hee produce a protest under a publique Notary’s hand according to the custom of Merchants, and if hee saith hee hath any bill of Excha from Capt Oliver let him produce it and make it appeare what the Summe was and wee Judge wee are capable to prove it pd As for severall other Articles in the Accott Captn Oliver knows nothing of them vizt in perticular for Jnterest for mr Snelling and Rent for mr Dexter but wee desire that the Honrd Court would cause mr Cooke to produce his Bookes to compare with the Accott and then wee doubt not but his Bookes will prove more Errors in the Accott then wee are able to doe. And to conclude supposeing the .62li per bill of Exchange had been due upon which hee charges one hundred & odde pounds for interest yet or Law title usury Saith that no usury shalbee allowed contrary to the law of God, and how well mr Cooke hath attended the law of God wee leave to the Honord Court & Country to consider wch Saith in .25. Leviticus. 35. 36. and if thy Brother bee waxen poore and fal’n in decay with thee then thou shal’t releive him yea though hee bee a Stranger or a Sojourner that hee may live wth thee take thou no usury of him or Jncrease but feare thy God that thy Brother may live with thee: wee shall adde no more at pursent untill wee see further occasion but Rest.

    yor Honors humble Servants

    John Oliver   Nathll Oliver

    Nathll williams

    Boston Apll ye 28th 1680.

    Vera Copia attestr J. Addington Cler.

    S. F. 1910.9

    An Answer to Captn Olivers Attournys’ Declaration

    Jn their preface they do very unworthily charge the Defendt with laying a Snare &ca and with unfaire & unjust dealing in this matter but mention no perticular for demonstration thereof; in which they shew their Machivilian policy to reproach & cast aspertions at any rate, to which J shall rather speake something then write if the honord Court please to give me leave.

    1. And as to their pleas J Answer. 1. To the first that ye Defendt made Oath that hee deliurd a Summons to Captn Oliver according to the tenor of the attachmt upon the wedensday before the Court wch was judged legall proofe.

    2. To the Second. That the Officer made a Return of what hee attached and the process declares for what.

    3. To the third. The Executor appeared in Court personally and the Executrix by her Letter attorny to the Executor which Letter the Bench allowed and deliurd again to the Executor and said it need not bee kept in Court and that either had sufficient power to Sue. . . .

    And to their pretended Errors in the Accot J Answer

    1. That the .62li due in London was upon bill Exchange & not charged to Capt Olivers perticular Accott in the Booke untill the yeare .1662. and therefore could not bee included in the ballance of an Accott made up the :4: October .1660. and therefore no Error. . . .

    3. What need is there of declaring by whome these bills were drawn upon whome or to whom payable & of produceing protests &ca wn Capt Oliver hath from time to time for so many yeers owned the debt and doth still as appeares per his Subscribing the Accot & ye many other testimonys in the case.

    Jn their conclusion they do as at the begining take to themselves liberty to revile and reproach, as if so solemn an Assembly as a Court of Judicature were a place licensed for men to vilify scandalize & calumniate at their pleasure as they do not onely the Defendant but his deceased Father and that without the least shadow of reason in speaking of his Bookes so reproachfully as they do, wch neither of them have ever seen though Capt Oliver hath often and alwaies said the Accot was right & just the law they quote (wch the Generall Court therein saith is agreeable to the word of God) allows .8. perc per annum & for bills of Exchange more, and it is the practice of our Courts to allow for money due in England by bills of Exchange or otherwayes 25 perc for the Exchange of money wch is but the bare difference between our money & theirs, and also .8. perc per annum upon the whole, but Captn Oliver is charged with no interest at all for the first yeare and afterwards but 6. Perc wch hee was then freely willing to allow; The Defendts were so far from oppressing Capt Oliver as that they were willing (as full Satisfaction of the debt) to accept of what Capt Oliver was freely willing to give & would have abated considerably of that too, wch issue these Gentn his pretended Freinds with great endeavors prevented which concessions not being complyed with ought not now to abate of the just & legall right of the Defendts the Attournys’ whole designe in this matter hath been to calumniate the Defendt & darken & perplex the case with impertinent pleas and papers to mislead the Jury & keepe Capt Oliver out of Court least hee should speake truth there as hee hath done elsewhere: But the debt for which the Judgemt was granted the last Court being sufficiently proved and by Capt Oliver owned, though its said hee Signed the Accot with the reservation of Errors excepted wch is a thing most frequent in Signing of Accotts which was ever hitherto understood to bee meant Errors onely in casting: The Defendts hope this Honord Court & Jury will see sufficient reason to grant them their costs & Subscribe

    Yor Honors humble Servant

    Elisha Cooke in behalfe of his mother

    Elizabeth Cooke & himselfe

    Vera Copia attestr Jsa Addington Cler.

    Despite the obvious sophistry of most of Oliver’s attorneys’ arguments, the jury found for him 193l 15s money and costs of court, in partial restoration of what had been taken from him by execution after the original action. Cooke appealed; his Reasons are no longer to be found, but a lengthy answer by Oliver’s attorneys is in S. F. 1910.7, reproducing to a considerable degree the contents of the previous “Declaration.” A few sections of this document are of some interest:

    21y Their Second is a false Assertion: for Capt. Oliver never acknowledged Soe much Due to the Appellts & whereas it is Said, that Capt Olivers Subscription is as a Specialty, wee Beleive that, neither Dr Cooke, nor any man else, Ever Saw Such a Specialty as that is, & if any man give a Bill under his hand, wch that reservation (Errors Excepted) though it be Jmprudence, yet Such a Specialty (though Sollemnly Signed before two wittnesses) bindes the Signer to pay no more then what shall appeare to be due, when the Errors are discounted, against wch he excepted: & if men in a Secret & Clandestine way shall be drawne in & perswaded to sett their hands to a paper, wch is deliberatly & designedly made to get away their Estates from them, & Such Actions shall passe for bindeing Conclusions, how shall Any man keep his just right? . . . . Jf the Accot had bin Signed by Capt. Oliver, where mr Cooke had bin ye Debtor, then it had bin propper for Capt Oliver to have signed his Accot wth (Errors Excepted) & then Jt is Contest it might have bin taken only for Errors in casting but this is just the Contrary & Capt Oliver, when he was drawne in & none of his freinds present to Jnforme him better, if he must Signe to Satisfye mr Cookes Mother, as he pretended he had good reason to Except against mr Cookes Errors, wch now appeare to be many & great: And when he Saw that, that Stratagem would not doe, because of those words (Errors Excepted) he tenders to Sware that Capt. Oliver owned the Jnterest & was willing to allowe itt; & as mr Cooke said that Courts of Judicature were not places for men to vilify one another in, neither are they Places for men to Sware other men into their debts: & the Hond County Court saw Just Reason to deny Dr Cooke the takeing of Such an Oath, the Contrary Oath being tendered by Capt. Oliver at the same time.

    At the hearing of the appeal at the Court of Assistants (Records, i. 165–166)

    . . . the Jury Brought in their virdict they found for the Deffendants Confirmation of the former Judgment & Costs of Courts. The plaintif declard he Attainted the Jury for errors or mistakes & in open Court Elisha Cooke in behalfe of his mother & for himself wth Isaack Addington his suerty Acknowledged Jointly & seuerally themselues &c bound in tenn pounds to the Tresurer of the Country on Condition that the sajd Elisha Cooke should prosecute his Attaint of the Jury as to matter of Error at the next Court of Assistants to effect. E R S

    The new hearing took place on 1 March, 1680/81 (Records, i. 179):

    mrs Elizabeth Cooke executrix & mr Elisha Cooke execcutor plaintiffes in an Action of Appeale on Attaint of the Jury whereof mr Holliok was foreman. Aagainst Capt James olliuer deffendant: from the virdict of the Jury at the last Court of Assistants After the Attachment the Courts Judgment & euidences in the Case produced were read Comitted to the Jury & are remaynng on file The Jury brought in their virdict i e in the sajd Case depending between the sd mrs Eliza: Cook & mr Elisha Cooke plaintiff and the Atturneys of Captn James olliuer deffendants the Jury finds for the plaintiff seventy two pounds fiueteene shillings and nine pence money & Costs of Courts seuen pounds fowerteen shillings & 4d Reuersing the former Judgment.]

    Salter conta Calley

    Captn Richard Salter plaint. conta Joseph Calley Defendt for not paying the Summe of Forty Six pounds fourteen Shillings eight pence Sterling due upon the Forfiture of a bond according to attachmt. . . . The Jury . . . found for the plaint. Forty Six pounds fourteen Shillings eight pence money being the Forfiture of the bond and costs of Court granted thirty two Shillings eightpence

    Execution issued. 4o Febr 1679.

    Hudson acquittd

    John Hudson upon due proclamation made was acquitted from his bond for appearance at this Court respecting the charge of Mary Mitchelson.

    Order to the Treasuror

    Ordered that the County Treasuror pay to Captn Daniel Fisher ten Shillings money for his disburs’t on a County Bridge.

    Tailer &ca to Davie

    mr William Tailer Captn Elisha Hutchinson and John Scarlett Admrs to the Estate of Free Grace Bendall deced appearing in Court, confessed Judgemt against the sd Estate in their hands unto Humphry Davie Esqr for Five and twenty pounds six Shillings. 7d money due upon balla of Accot

    Execution issued. 17o Januro 1680.

    Clerke of ye Writts for Sherborne

    Edward West of Sherborne being nominated by the Town is approved of and confirmed by the Court to bee Clerke of the Writts for sd place.

    Freemen Sworn

    Samuel Guild, Tho: Fisher Joseph Wight & John Battelle of Dedham, Eleazer Addams of Medfeild, mr Tho: Weld Junior & Joseph Lyon of Roxbury, Benjamin Lincoln, & John Fering of Hingham, Jabez Totman of Roxbury; Jonas Clarke Junior Tho: Baker, Tho: Walter Obadiah Gill, and John Mary on junior of Boston tooke the Oath of Freedom.

    Leverett to Burden

    Hudson Leverett appearing in Court confessed Judgemt against his Estate or person unto Stephen Burden for Five pounds Seventeen Shillings in money according to bond on file, and eleven Shillings six pence money charges of Sute in all Six pounds eight shillings sixpence.

    Execution issued. 2d Febr 1679.

    Dedham Commissionrs

    Captn Daniel Fisher, Ensigne Thomas Fuller and Serjt Richard Ellice of Dedham are approved of as Commissionrs to end small causes in the Town of Dedham for the year insuing.

    Townsend to Porter

    Peter Townsend appearing before Simon Bradstreet Esqr Govr and Joseph Dudley Esqr Assist. 27o January. 1679. confessed Judgemt against his Estate and person unto Joseph Porter for five pounds three Shillings money, by so much remaining due upon his bill on file for £.5:13.0.

    Jsa Addington C.

    Execution issued. 9o June. 1680.

    Atherton to Hallitt

    Watching Atherton and Timothy Mather appearing in Court confes’t Judgemt against their Estates and persons jointly [631] and severally unto George Hallet for Forty Six pounds to bee paid in money, in full of a bond on file with charges.

    Execution issued. 30th Januro 1679.

    Gardners discharge

    Peter Gardner of Roxbury is discharged from attending upon ordinary traynings upon his keeping of two fire armes well fix’t alwaies liable to the Clerk’s veiw, and in readiness for the Country’s Service.

    Fering find 10s

    John Fering of Hingham for neglect of his duty in not attending the Service of the Jury of tryals but occasioning the Court to waite through his meanes, was find twenty Shillings in money to the County, afterwards upon his petition one halfe thereof was remittd

    Committee to set out Wadsworth’s thirds

    Lt Edmond Quinsey, Quarter master Tho: Swift & Thomas Holman are appointed a Committee to set out unto Abigail Relict Widdow of Captn Samuel Wadsworth sometime of milton deced of the Estate left by sd Wadsworth in Lands such a proportion as to make up, what Shee hath already received from sd Estate in movables and Salt Marish (amounting by her own accot to One hundred and thirteen pounds two Shillings and six pence) the full Summe assigned unto her by the County Court upon the division of sd Estate, to do it so as may least prejudice the Estate, and to make Return to the Court.

    Hollis Find 20s

    John Hollis convicted by his own confession in Court of affronting and strikeing of Thomas Drake Constable in the Execution of his Office, Sentencd to pay twenty Shillings money fine to the County, twenty Shillings money to Thomas Drake, with charges of prosecution and fees of Court standing committed &ca

    Richardsn Find £.4.

    John Richardson of Meadfeild convicted by his own confession in Court of his committing Fornication with Rebecca Clarke now his wife, Sentencd to pay for himselfe and wife Forty Shillings apeice in money fine to the County and fees of Court standing committd &ca

    Davis to Sheafe

    Joseph Davis of Boston Feltmaker appearing before Wm Stoughton Esqr and Joseph Dudley Esqr Assists 31o Januro 1679. confessed Judgemt agamst his Estate and person unto Sampson Sheafe Assigne of mr Thomas Thacher for Fourteen pounds in money due according to bond on file.

    Jss Addington Cler.

    Leverett Find 40s

    Hudson Leverett bound over to this Court to answer the complaint of Thomas Heath and Mary his wife for unduely taking out of mr Paiges yard certain parcels of Linning belonging unto her; claimed the benefit of a Jury; which was granted, and the case committed unto them, who brought in their Verdict they found him guilty: The Court Sentenced him to pay Forty Shillings money fine to the County, ten pounds money to Tho: Heath being the remainder of treble damages (the goods in Court to bee returnd) and charges of prosecution and fees of Court standing committd &ca [632]

    Hannah Negro Senta

    Hannah a negro woman being prosecuted by mr Daniel Stone for Stealing a box of Chyrurgions Jnstrumts from him which hee affirmeth cost Seven pounds in England, part of which Jnstrumts challenged by him, Shee owneth Shee had Saying they were given to her by a man at mr Lakes gate, which Shee disposed of to Mary Pittum: The Court upon hearing and consideration of the case Sentance the sd Hannah to bee whip’t with ten Stripes and to pay unto mr Stone ten pounds in money, and to pay fees of Court standing committd &ca 12o Febr The sd Hannah appealed from this Sentence unto the next Court of Assists and John Somes in behalfe of said Hannah as principall in twenty pounds and Joseph Williams and Peter Odlin Sureties in ten pounds aps acknowledged themselves respectiuely bound . . . for prosecution of sd Appeale to effect, and that in the meane time sd Hannah shalbee of good behaviour.

    [See also the next case below.

    S. F. 1832.2

    To the Keeper of the Prison at Boston.

    J have sent you herewith the body of Hannah a Negr womn convict for stealing a Chyrurgions box and Instrumts to a considerable value Requiring you in his Majties name to receive her into yor prison and her safely keepe till Shee bee thence deliurd by order of Law, and hereof yow are not to faile Dated .13. Decemr .79.

    S. Bradstreet Govr

    Vera Copia Attestr Jsa Addington Cler

    Things not yet found wch belong to the Box.

    A large pair of Silver Forceps

    A Silver Fleme

    A Silver Spatula

    A Speculum Oris broken & lost.

    A Probe

    An Incision Knife

    Vera Copia .J. Addington Cler

    S. F. 1832.1

    To the Honored County Court now sitting by Adjournmt in Boston.

    The humble Petition of Hannah Negro Sheweth that whereas a matter of Complaint hath been brought and my Selfe impleaded upon it before yor Honors So that a Sentance was procured against me to bee whip’t with ten Stripes and to pay unto mr Stone £:10: in mo and to pay fees of Court standing committed &ca Jn obedience to which Sentance your Honors poor Petitioner has received the corporall punishment, but being disatisfied in the other part of the Sentance do hereby humbly Petition for the purviledge of an Appeale from it, legall caution by Security being given, which J trust wilbee beneficiall to yor poor Orator, and give me cause to pray for yor Honors

    the marke of

    Hannah // Negro

    This petition granted. J: Addington C

    Vera Copia Attestr Jsa Addington Cler.

    S. F. 1832.3

    Hannah Negro womans Reasons of appeall to the Honoured Court of assistenc from the Last County Court held in boston and by the same sentensed to be whipt with ten strips & to pay unto mr stone ten pounds in mony: & to pay fees of Court standing Commited: &c: shee appealed from ye Latar part of this sentenc to this Court for thes Reasons foloing: the Honoured Court & Jury may pleas to take notis: of ye Honourd Gouernors warent for my Commitment which hath two parts: 1st J haue heer with sent you: the body of hannah a negro woman: Conuict for stealing a Chyrurgions box, & instruments: to a Considarabel ualue: itt is neithar sayd whose box itt was: when: stolen nor party Complayning: nor in ordar to farthar tryall, but Conuict 2dly: har safely to keep tell shee bee thence deliurd by ordar of Law: how far mr Stone is Concarned in this Cau[se or] ye fact Legely proued: J Leaue to this honoured Court & Jury to Judge as not willing to [wade to far being a negro] woman & undarstanding yt a: word to the wise is sofish[ent]:

    1st Daniel stone doth but say the plaster box stoln: from him Cost 7[l] in London which is but his owne asarshon with out any proof there: fore ye worth of it is not: Euident though hee had lost such a box.

    2d thar was noe such box found with mee: nor Euar had J anny such thing: but Joseph Colloe owned that hee had the box: of whome sayd stone Receu’d satesfaction: thar fore ought not to Chaleng itt of mee who did niuar see itt:

    3d all the things that J had J gaue mr stone and ye Court an acompt how J Came by them and hee had them again & twenty shilings in mony of Mary Pittum: which [is] a sofishent Compensation in that matar: if thay [were his as] J humbly Conceue:

    the sentence of the strips J Receued in full tale: and imprisonment from the .13th of desember tel the 13th of febrewary being two months in a Could prison seprated from: my husband: & my m[rs] busnes to which J am obliged and ought to sarue a Cording to ye Law of God & ye King & this Juresdition as ye Law titell buglery theft page :13: section 2d in thes wo[rds] if thay bee saruants or Children thus tra[nsgress]ing & [thar] mr or parence will not pay thar fines thay shall be openly punished, to which J Refer: J nethar owe mr stone ten pound in mony nor haue J itt to pay Jf J did: and by Law my husband ought to pay itt but hee hath itt not: : and my mastar doth deny to pay itt (hee not being in the [obliterated] & Jf hee should itt might: in Correg Euell minded & Couetous parsons: to seduce and by Law [obliterated] to: them selfs: the best mans slaues in newengland, by secretly giuing them sum thing of [obliterated]hen prosecuting them for theft: in which snare of Receuing J haue bin Caught (whethar of [obliterated]nnar or othar J know not:) but J hope that my all Redy Receued punishment J hauing noth[obliterated]o pay [off] the things J had being all Retorned may sofise: & that J may Return to my own mr a gayn: [obliterated]tt shall ingaydg mee to be more Carfull how J doe any thing to displeas your honours:

    the marke of

    the mark of hannah // negro

    These Reasons Recd 26 febr [1679]

    per J: Addington cler

    S. F. 1832.7

    Daniell Stone his answer to Hannah Negro her Reasons of Appeale from the Sentence of the honord Countey Court &c As concerning what she saith relateing to the honord Governors Warrant as she Calls it, I accompt not my selfe concerned to make any answer,

    1. As to her First reason vizt that it is only my assertion that the plaister box Cost Seven pounds in London, I Answer, I proved that it was my box, and that it was stolne by her, is most evident, in that the vtensills therein, were found with her, or disposed of by her, as she her selfe owned, and I proferd my oath to the Cost of it

    2d That there is noe such box Found with her &c I answer, That a considerable part of the appurtenances, belonging to the sayd box were found with Mary Pittam where she had disposed of them, and although Joseph Calloe tooke up the box in the water, where it is supposed she threw it from the wharfe neere her masters house, that it might not discover her theft, yet part of the lock of the sayd box was found amongst those things aforesd wch she disposed of as she owned, which evidently showes that she stole the box & broke it open

    3d That sayd Stone receivd twenty shillings of mary Pittam &c I answer That Could not be judged to be a full compensation For goods stoln from mee of Seven pounds, vallue in England,

    4. Lastly. That the Law page 13 saith servants or Children, thus transgressing &c shall be whipped if their masters refuse to pay their Fines &c I answer, that her whipping Can only be meant to be in satisfaction to the Countrey for the Crime, but not in satisfaction to the party damnifyed by the theft, For then how soone may any man be undone by the unfaithfulnesse of his Neighbours servants, stealing never soe great a vallue, But it hath beene the practisse in this Countrey, & approved by Authority to sell servants to satisfy Judgments of this nature, when their Masters have refused to satisfy the same the looser being utterly incapacitated to have his losse repaired otherwise, the prmises Considered I hope this honord Court will see just Cause to Confirme the Former sentence, wth just Costs.

    J subscrib myselfe yor worships humble sarvant Daniell Stone

    The references to Joseph Calloe in the foregoing documents become more intelligible in the light of two items from among those copied in S. F. 1832.6:

    Joseph Calloe belonging to the Ship Daniel & Robert Abraham Knop Commander hath likewise bound himselfe in the Some of 5li for his personall appearance at the sd Court to answer the complaint of sd Stone for breaking the sd box and takeing off the Silver &c. 13.10.79.

    S: Bradstreet Gor

    Calloe Being called Owned that hee tooke up the box between the Wharfes floating upon the water and broke it & tooke off the Silver, being ask’t the reason why hee had not cryed it, made answer it was not usuall in their Country to cry any thing taken up floating on the water or cast up on the Shoare, the Silver being returned, hee was acquitted.

    J: Addington C

    Vera Copia . . . Jsa Addington Cler

    In S. F. 1832.4 is the verdict of the jury on the appeal heard at the Court of Assistants:

    Jn the Case of Hannah Negro, Plantife on appeal from the Sentance of the last County Cort held att Boston, the Jury finds the sd Hannah Negro Gilty of matter of fact then charged upon her and cost of corts

    march: 2d 16⅞9/0]

    Pittum Find 20s

    Mary Pittum prosecuted by mr Daniel Stone for receiving severall Silver Jnstrumts of Hannah a Negro wch were stol’n from him, the sd Jnstrumts being found with her, Shee owned Shee recd them of the Negro: Sentencd to pay twenty shillings money fine to the County, twenty Shillings money to mr Daniel Stone and fees of Court Standing committd &ca

    [See the case above. In S. F. 1832.6 are copies of a bond by John Pittam for his appearance and that of his wife at the County Court to answer Daniel Stone’s complaint, and of a bond by Stone for his appearance to prosecute the complaint.]

    Hull Senta

    James Hull complained of by mr Thomas Martin marrinr for Stealing from him &ca sundry goods, changing of his name & giving out many threatning speeches against the Town of Boston, and that hee came privately onboard his Vessell at Barbados, and came off sd Jsland without a ticket: upon a full hearing, of the case: The Court Sentenced sd Hull to bee whip’t with twenty Stripes, and to pay unto the sd Martin or his order &ca Five pounds money damage, and to pay fees of Court standing committd &ca And grant liberty unto the sd Martin or his order any time within two months to take him out of prison, paying his fees, and to Ship him off to Barbados.

    Edgerton Senta

    John Edgerton prosecuted by Nicholas Wilmot for Stealing money from him to value of thirty Five Shillings: Upon hearing of the case, The Court Sentence him to pay unto Nicholas Wilmot Five pounds five Shillings money, being treble damages according to Law (Wilmot defalkeing what part thereof hee hath received again) and fees of Court standing committd &ca

    [See note to Davis Sentenced, above, p. 1098, and below, Order about Edgerton and Davis, p. 1161.]

    Martin Senta

    Jane Martin convicted by her own confession in Court of Stealing Four Shillings money from her mar Nichols Wilmot, Sentencd to pay unto her sd Mar twelve Shillings money being. 3ble damages according to Law, and fees of Court standing committd &ca [633]

    Smith Find £.10.

    John Smith of Medfeild convicted by his own acknowledgement of going away from his wife, and accompanying with Patience Rawlins, and declaring that Shee was his wife, Sentenced to bee whip’t with thirty Stripes, and to pay ten pounds money fine to the County and fees of Court standing committd &ca

    Rawlins Find 50s

    Patience Rawlins convicted by her own confession in Court of going away with Jno Smith and committing uncleanness with him, Sentanced to bee whip’t with Fifteen Stripes and to pay Fifty Shillings money fine to the County and fees of Court standing committd &ca

    Smith Senta

    Nicholas Smith Servant to Roger Billing prosecutd by his mar for stealing sundry goods and money from him & counselling his fellow Servants to run away: Sentencd to bee whip’t with ten Stripes, and to pay unto Roger Billing ten pounds money and fees of Court standing committed &ca

    The Court Adjourned to. 12o Febr 1679.

    12o Febr [email protected]

    The Court met by Adjournmt

    Present

    • S: Bradstreet Esqr Govr
    • Wm Stoughton Esqr Asst
    • Edwd Tyng Esqr Asst
    • Jos: Dudley Esqr Asst
    • Humpr Davie Esqr Asst

    [Cleesby’s Discharge]

    John Cleesby of Boston Taylor by reason of Lameness is freely discharged from Traynings and military Watches, hee keeping Armes according to Law.

    Weymouth Commissionrs

    Captn William Torrey, Lt John Holbrooke and Serjt Samuel White are appointed Commissionrs to end small causes in the Town of Waymouth for the year insuing.

    Freemen

    The Honble George Russell Esqr and mr Joseph Pynchon tooke the Oath of Freedom of this Colony.

    Preston his Licence

    Daniel Preston Senr of Dorchester is Licensed to retaile Cider for one year next comming and himselfe and Serjt Enoch Wiswall were respectiuely bound to the Treasuror in the Summe of ten pounds, not to transgress the Laws or his Licence.

    Dorchester Select men under a penalty

    Jt’s ordered that the Select men of Dorchester do nominate and present some fit person unto the next County Court for their approbation to keepe a house for publique entertainmt in their Town under the penalty of five pounds money to bee forfitd by the Select men in case of neglect of this order.   [634]

    Harris his License

    William Harris of Boston Mercht is Licensed to retaile wines out of dores for one year next comming, and himselfe and John Winslow were respectiuely bound in the Summe of twenty pounds to the Treasuror that hee should not transgress the Laws or Licence

    Curtis Senta

    Henry Curtis prosecuted by Thomas Heath for that the sd Curtis being entrusted by him as master of his Boate, sold severall of his goods without his knowledge or order without rendring the pay to him but converting of it to his own use, Also stole from him a parcel of boards and Sold them for thirteen Shillings six pence, Sentenced to pay unto sd Heath treble damages according to Law for the boards, and the value of such other goods as hee acknowledgeth to have Sold according to the Accot given in, and fees of Court and prison standing committd &ca

    George Acquittd

    Elizabeth George presented for keeping a publique house contrary to Law: The presentmt fell for want of proofe.

    Earle Acquittd

    Robert Earle prison keeper being complained of by John Dafforne Attourny of James Matthews of New-yorke for dismissing of John Keene his prisoner upon Execution, without Satisfaction made: Upon a full hearing of both partys The Court acquit the sd Earle from being criminall in ye case

    [See Keen v. Matthews, above, p. 1078, and Dafforn v. Earle, above, p. 1136. After a summer’s rest from the vicissitudes of his litigation with Keen, Dafforn resumed activities at the October session of the County Court, when as attorney to Matthews he sued Earle for releasing “his prisoner John Keen committed by Execution before the plaint. was Satisfied according to the contents of sd Execution.” (Copy of record in S. F. 1930.) The jury found for the plaintiff 27l 18s 9d damages and 32s 6d costs. Thereupon “Joseph Homes Attourny or Substitute of John Dafforn engaged in open Court that upon the Defendts Satisfying him the above Judgement that hee would stand in roome of James Matthews upon a reveiw of the Original merit of the case with John Keen at the next County Court in Boston and bound himselfe to sd Keen in a bond of thirty pounds money to bee liable to arrest and to abide the order of sd Court therein.”

    Papers for the review of the case, with which the Court must by this time have been tolerably familiar in all its details, are in S. F. 2052. The judgment, given at the January session, 1680/81, of the County Court, allowed Keen, the plaintiff, 26l 5s 9d and costs. Homes appealed; the Court of Assistants (Records, i. 181) confirmed the judgment of the lower court, but required Keen to pay the appellant 35s in money and costs of courts.]

    Willistone Senta

    John Willistone convictd by his own confession in Court of Stealing a horse from Robt Pease of Salem which was found with him and returnd again, being valued at £.3.10:0: Sentenced to bee whip’t with twenty Stripes, and to pay unto Robert Pease Seven pounds money being the remainder of treble damages and fees of Court standing committd &ca

    Willistone Senta

    John Willistone convictd by his own confession in Court of Stealing a Silver cup from mr Eliakim Hutchinson valued at Fourteen Shillings, which is returned again: Sentanced to bee whip’t with ten stripes, and to pay unto mr Hutchinson twenty eight Shillings money being the remainder of treble damages and fees of Court standing committd &ca

    Knight Senta

    Julian Knight convictd by her own confession in Court of being drunke, and entertaining of Archuball Forrest in the absence of her husband. Sentencd to bee whip’t with ten Stripes or to pay ten Shillings money fine to the County and fees of Court standing committd &ca and is forbidden giving any further entertainmt to sd Forrest.

    Forrest Senta

    Archuball Forrest complained of for disorderly company keeping with Julian Knight in the absence of her husband for which hee hath been formerly punished Sentenced to bee whip’t with ten Stripes or to pay Forty Shillings money fine to the County and fees of Court standing committd &ca and is strictly forbidden accompanying with sd Knight.

    The Court Adjournd to Thursday. 19. instant, at 8. a clock.   [635]

    The Court met by Adjournmt 19o Febro [email protected]

    Present

    • S: Bradstreet Govr
    • Joseph Dudley Esqr Assist
    • Edwd Tyng Esqr Assist
    • Humpr Davie Esqr Assist

    [Order about Edgerton and Davis]

    The Court grant Liberty to Nicholas Wilmot to make Sale of John Edgerton for the Satisfying of what is due to him according to the Courts Sentence not exceeding four yeares. It’s also ordered that Thomas Davis now a prisonr bee Sold for the like time for fulfilling of the Sentance of the last Court, declared agt him in case hee do not make payment thereof.

    [See Davis Sentenced, above, p. 1098, and Edgerton Sentenced, p. 1157. The further criminal career of the two may be followed in Records of the Court of Assistants, i. 189, and S. F. 1974.]

    Respit of mrs Batts Jnvento

    It’s Ordered that the Jnventory and division of the Estate of mrs Anne Batt bee respited untill April Court next And forasmuch as a considerable part of the Estate consists of a bond due from the Estate of Timothy Batt, the Admr of that Estate then also appeare to shew wt is paid of that.

    Jno Smith’s fine in part remittd

    Jn Answer to the petition of John Smith. The Court remit one halfe of his fine imposed on him by this Court and order that mr Nowell paying his charges of apprehention and fees have liberty to take him out of prison & imploy him and to pay the five pounds to the County, the other halfe of his fine as it is earned.

    Committee for Carvers Estate

    Deacon Henry Alline and Captn Elisha Hutchinson are joined with mr Nath. Barnes the Admr as a Committee to examin & take the probate of debts claimed from the Estate of Robert Carver deced and to make Return to the County Court.

    Munnings Find £.4

    Phillip Munnings Servant to Edward Budd convicted of gameing and abetting to value of three pounds eight Shillings money, Sentenced to pay Eight pounds money according to Law one halfe to the Jnformer, and the other halfe to the County and fees of Court standing committd &ca

    Everenden dismis’t

    William Everenden bound over for the like offence, but it not being fully proved, hee was dismissed upon paying of his fees.

    Usher Find 40s

    Robt Usher convicted by his own confession in Court of entring the house of Richd Loft and there Stealing five Shillings in money. Sentanced to pay Forty Shillings money fine to the County, Fifteen Shillings money to Richd Loft being treble damages according to Law and fees of Court standing committd &ca and order that upon his Release from prison hee depart the Town of Boston, and his mar Greenough is permittd to give him entertainmt untill there bee a conveniency of sending him away.

    Pollard Senta

    Joseph Pollard convicted of breaking open the dwelling house of Samuel Bill in the night and stealing from him Seventeen pounds Fifteen Shillings money. Sentanced to bee branded in the forehead with the Letter B and to pay unto Samll [636] Bill thirty five pounds ten Shillings money being ye remaindr of treble damages according to Law (the sd £.17:15:0.) being returnd) and fees of Court standing committd &ca

    Committee for Saxtons Estate

    Jt being represented unto this Court as doubtfull whither the Estate left by Thomas Saxton late of Boston marrinr deced intestate (now under the Admcon of mr Henry Dering) will prove Solvant; That there may bee an equitable proportioning the same among the Creditors The Court have ordered and stated mr John Joyliffe Captn Thomas Brattle and mr Nico Paige a Committee to take in and examin the claims made to the sd Estate and all the Creditors are ordered to bring in their claims unto the sd Committee within twelve months next comming at time and place appointed by them to that end, and they to make their Return to the Court.

    The Court Adjourned to Thursday next 26o febr at. eight a clock.

    The Court met by Adjournmt 26o Febr Ao 1679

    Mosely’s Licence

    mrs Anne Moseley Widdow had Licence granted her to retaile wine and Liquors out of dores for one yeare next comming and her Selfe and Jsaac Addington became bound to the Treasuror in ten pounds apeice for her abservance of the Laws and her Licence.

    Bumsteed find £.5.

    Jeremiah Bumsteed convicted by his own confession in Court of retailing Cider without Licence Sentencd to pay five pounds in money as a fine to the County according to Law and fees of Court: The Court respited the taking of this fine untill after the next Generall Court upon his good behaviour

    Loney dismis’t

    Loftlan Loney being accused by Kathalina Negro Servt of Thomas Dewer to bee the Father of a Bastard Childe born of her body about a month agone, which is since dead, hee denying of it The Court dismis’t him upon paying of his fees

    Kathalina Negro find 20s

    Kathalina Negro convicted by her own confession in Court of committing Fornication and having a bastard Childe. Sentencd to bee whip’t with Fifteen stripes or to pay forty Shillings money fine to the County and fees of Court standing committd &ca Afterwards the Court remittd her fine to twenty Shillings.

    Whaley & Ranger find

    mr Hugh Campbell making complaint to this Court of great injustice done him in the extention of an execution by Marshall Richd Waite upon a Judgemt obtained by mr James Brading and by Edmund Ranger and John Whaley apprizers in the apprizemt of a parcel of Bookes & a trunke for Satisfaction of sd Execution: Upon a hearing of the case The Court Sentanced sd Marshall Richard Waite Edmd Ranger & John Whaley to pay twenty Shillings in money apeice as a fine to [637] The County, and sd Ranger to pay unto mr Campbell Forty Shillings money and sd Whaley to pay unto mr Campbell six pounds money towards Satisfaction of his damages & fees of Court: And refer mr Campbell to take his course in law agt Marshall Waite for what of his Bookes left of the sd Apprizemt in his hands are found wanting.

    Execution issued. 19o march. 79/80.

    Lilley’s Licence

    Edward Lilley had licence granted him to retaile wine and Liquors out of dores for one yeare next comming and himselfe principall in £.10. and John Keen and Samll minot Sureties in five pounds apeice became respectiuely bound to the Treasuror for his observance of the laws and Licence.

    The Court Adjournd to Wedensday 10th march: 1679. at one a clock.

    The Court met by Adjournmt 10th March: [email protected]

    Ruggles her Estate Ordered

    For Setlement of the Estate left by the late Elizabeth Ruggles of Boston widdow deced amounting to One hundred & twelve pounds cleer Estate (debts and charges having been deducted) The Court Orders that the sd Estate bee thus aportioned (that is to Say) twenty eight pounds to the eldest Son as his part thereof, and Fourteen pounds apeice to the other six Children of sd Ruggles, and the Admrs are ordered to pay out accordingly.

    Blackmans Estate Ordered

    For Setlemt of the Estate of John Blackman late of Dorchester deced intestate, amounting to two hundred Seventy five pounds Jt is thus aportioned, between Sarah his Widdow and his nine Children, John the eldest Son to bee paid twenty pounds thereout as a debt due to him for his care and paines about the Estate, and also thirty pounds more as his double portion to bee paid unto him in Lands if hee choose it, and Fifteen pounds apeice unto the other eight Children as their portions to bee paid unto them as they come of age The Remainder of the Estate is Setled upon the sd Sarah if Shee remain a Widdow; But in case Shee marry again then Shee is to pay ten pounds more to her eldest Son and five pounds apeice more unto her other eight Children, the Lands and houseing to stand Security for payment of the Childrens portions.

    Minot his Licence

    Samuel Minot had Licence granted him to retaile wine and Liquors out of dores for one yeare next comming, and himselfe principall in ten pounds and Jno Keen & Edwd Lilly Sureties in £.5. apeice became bound to the Tr for his observance of the laws & licence.

    Order abt Sheer’s thirds

    The Court Orders the last Committee consisting of mr John Peirpoint John Weld Serjt Richard Ellice Jon White Senr and Edwd Morris to lay out unto Mary Sheers one third part of ye land in Roxbury now in ye possession of Samuel Pason sometime belonging to her former husband Peacock, according to law

    The Court adjournd to Thursday. 18o march: 1679/80.   [638]

    The Court met by Adjournmt 18o March. 1679/80.

    Committee about Weekes her thirds

    The Court appoints Deacon James Blake, Serjt Samll Clap and Jsaac Jones a Committee to Set out unto Elizabeth Mather wife of mr Timothy Mather of Dorchester late Relict of William Weekes of Dorchester, her one third part of the Estate of her former husband Wm Weekes according to will: And sd Blake and Clap are appointed Guardians to Sarah and Submit Weekes two of the Children left by sd Wm untill they come of age to choose for themselves.

    Setlemt of Snellings Estate reveiwd

    Upon the Reveiw of the case of the Setlemt of the Estate of William Snelling and Margaret his wife deced intestate. The Court do finally assigne, the three Quarter parts of the Estate to Ann Davenport Sister of sd Snelling in right of her Brother, and one Quarter part to William Rogers Son of the sd margaret in right of his mother: Francis Davenport husband of the abovenamed Anne appealed from this order or Setlemt unto the next Court of Assistants and put in Security for prosecution of his Appeale to effect.

    Appeald

    F: Davenport principll £.50 Anto Checkley & Jno Man Sureties. £.25. ps bound respectiuely to ye Tr for ye County & party concernd for prosecutn to effect.

    [See above, p. 1103, and Records of Court of Assistants, i. 166–7.]

    Cowell dischargd

    Edward Cowell of Boston is discharged from attending upon ordinary Traynings watchings & wardings.

    Harris her Licence

    Elizabeth Harris Widdow had Licence granted her to retaile wine and Liquors out of dores for one year next comming and her Selfe principall in ten pounds, and Moses Paine Senr Surety in ten pounds became bound to the Tr for the County on condicion that Shee should not transgress her licence but should observe the Laws.

    The Court Adjournd to Thursday. 25o march 1680.

    The Court met by Adjournmt 25o March: [email protected]

    Lewis her Guardian

    John Lewis of Dorchester is appointed Guardian to his daughter Bethiah (being under age) to receive and improve a Legacy of five pounds given her by Widdow Burge, and to give discharge to the Executor for the same.

    Clap his Estate Setled

    For Setlement of the Estate of Nicholas Clap late of Dorchester deced intestate adding two hundred pounds to the Summe of the Inventory, which the sd Nico engaged by Deed under hand and Seale to pay unto his two Sons Nathanael and Ebenezar and his daughter Hannah, the greatest part whereof hee had paid before his decease (provision being already made by agreemt for paymt to bee made to Anna his widdow for her thirds) The Court orders that the cleer Estate (debts having been taken out) amounting to Five hundred Fifty eight pounds four Shillings four pence bee thus proportioned among his five Children, namely to Nathaniel his eldest Son — one hundred Eighty six pounds [639] as his double portion, and to the other four Children ninety three pounds apeice as their portion: and mr Wm sumner of Dorchester mr Thomas Weld of Roxbury, and Deacon Jacob Eliot of Boston are appointed a Committee to divide and set out the sd Estate according to the abovewritten order, and to do it with what speed may bee, making their Return to the Court, and what Estate more hereafter may appeare to bee divided in like proportion, and each party to beare a proportionable part in payment of further debts that may appeare due.

    [An inventory of the estate is in S. F. 1847.]

    Clap’s Guardian

    Anna Clap Widdow of Nicholas Clap late of Dorchester deced is allowed Guardian to the two youngest Children of sd Clap Shee giving bond according to Law.

    The Court adjournd to Thursday. pro april: 1680.

    The Court met by Adjournmt pro april. [email protected]

    Order to Rootes his Admrs

    Ordered that Bozoun Allen and Lydia his wife Admrs of the Estate of Josia Rootes deced render an acco of their sd Admcon Dr and Cr unto the next Court of this County that there may bee a Setlemt made of sd Estate.

    This Court dissolved.

    May to Lynde

    Hugh May of Boston Seaman personally appearing before Joseph Dudley Esqr and Humphry Davie Esqr Assists 8o march: 1679. confessed Judgemt against his Estate and person unto mr Simon Lynde for ten pounds two Shillings six pence due for house Rent to bee paid in money.

    as attests. Jsa Addington Cler

    Execution issued. 4o augo 1680.

    White to Mountfort

    John White and Mary his wife late widdow & Admx of the Estate of Joseph Farnum of Boston deced intestate personally appearing before Edward Tyng Esqr & Humpro Davie Esqr Assists 23. march. 1679/80. confessed judgemt against the sd Estate in their hands unto Henry Mountfort Attourny unto Henry Tickner and Matthew Johnson of London for thirty four pounds in money according to bill on file

    as attests. Jsa Addington Cler

    Execution issued 24o march. 1679/80.

    White to Taylor

    At the same time the abovenamed John White & Mary his wife Admx of the Estate of Joseph Farnum deced confessed Judgement before the abovenamed Assistants against the sd Estate unto James Taylor for twelve pounds Eighteen Shillings five pence money due upon balla of acco

    as attests. Jsa Addington Cler

    Execution issued. 24o march. 1679/80.

    White to Jnglis

    At the same time the abovenamed John White & Mary his wife Admx of the Estate of Joseph Farnum deced confessed Judgemt before the same Assistants, against the sd Estate unto James Jnglis for twenty one pounds money due upon balla of acco

    as attests. Jsa Addington Cler

    Execution issued. 24o march: 1679/80.   [640]

    Holloway to Jacklen

    Henry Holloway of Boston Marrinr personally appearing before Edward Tyng Esqr and Humphry Davie Esqr Assists 26o april 1680. confessed Judgement against his Estate & person unto Edmond Jacklen of sd Boston Glazier for the Summe of Fifty pounds money; being for so much borrowed of sd Jacklen.

    attests. Jsa Addington Cler.

    Execution issued 27th april: 1680.

    Thacher conta Thacher

    Margaret Thacher Admx to the Estate of mr Thomas Thacher late of Boston deced plaint. conta Ralph Thacher and Peter Thacher or either of them Defendts in an action of the case for witholding sundry goods the perticulars whereof shall appeare by Accompt to the value of about Fifty pounds, with all other due damages, objection being made in behalfe of the Defendts that two persons on distinct Accots were prosecuted in one Action. On the Question put by the Court, The plaint. declared Shee held to the Action against Peter Thacher: . . . The Jury . . . found for the plaint. That the Defendt return the Cloake Sued for, or pay the plaint. three pounds money & costs of Court passed Nineteen Shillings and eight pence.

    Hunt conta Warren

    Thomas Hunt or his lawfull Attourny plaint. conta Nicholas Warren Defendt for non paymt of a bill of Excha of. 600. crowns at. 56d ¼ starling in England drawn or charged by Humphry Wilkins in Roven. 14o Febr 1676. at two usance there taken and receivd of John DeGrave and by him charged on sd Nico Warren in London, who accepted to pay the same accordingly, but is not paid; this with interest & damages. . . . The Jury . . . found for the plaint. one hundred ninety Seven pounds two Shillings seven pence mony & costs of Court.

    These two Actions were heard and tried at the County Court in Januro 1679. but Judgement not entred till now according to Law: The Defendts being out of ye Colony.   [641]

    Leverett to Wincoll

    Whereas the Honrble John Leverett Esqr late of Boston in New-England deced at A County Court held in Boston ye 29th Ianuary. 1677 recovered a Iudgement against Iohn Wincoll for Eighty Eight pounds five Shillings and eight pence (including costs) and whereas Captn John Hull late of Boston aforesd deced in his life time paid unto mrs Sarah Leverett Executrix of the last will & Testament of sd John Leverett on behalfe and for accompt of sd Wincoll the Sume of Sixty nine pounds & ten Shillings money, which sd Summe was in consideration and full satisfaction of the aforesd Judgement recovered as abovesaid: Therefore be it knowne unto all men by these pursents that J the sd Sarah Leverett Executrix as abovesd have & hereby do for me my heires Execrs & Admrs fully & absolutly remise release discharge & for ever quit claim unto him the sd John Wincoll his heires Execrs & Admrs of and from the aforesd Judgement & Sume of money thereby recovered as above specifyed. Witness my hand & Seale the. 21st day of April Ano Domi 1684.

    Sarah Leverett & a Seale

    • Witness Elisha Cooke Samuel Sewall.
    • Entred. 22ond April. 1684.
    • per Jsa Addington Clre
    • mrs Sarah Leverett personally appearing on the day of the date hereof acknowledged this Jnstrumt to be her act and deed.
    • Before me Samuel Nowell Assist.

    [Hawkins v. Sheafe21]

    Thomas Hawkins plaint. against Sampson Sheafe Defendt in an accion of the case for not performing his promiss which hee the sd Sheafe made to the sd Hawkins upon the sealing of a Mortgage, which hee gaue to him of his houses & lands, which was that hee should bee noe looser by him the sd Sheafe, wch the sd Sheafe hath not performed but hath damnified the sd Hawkins one hundred & eighty pounds by selling his the sd Hawkins housing for soe much more then what was his due & due interest & all other due damages according to Attachmt Dated July: 23th 1673. . . . The Jury . . . founde for ye Defendt costs of Court.