RECORDS OF THE SUFFOLK COUNTY COURT

1671–1680

PART I

RECORDS OF THE SUFFOLK COUNTY COURT 1671–1680

Att a County Court held at Boston 31^th of y^e 8^th m^o 1671

Present

Ri: Bellingham esq^r Gou^r	Major Eli: Lusher
Jn^o Leverett esq^r Dep^t Gou^r	Edward Tyng
	William Stoughton

Grand Jurie was the Same of Julie Court

Jurie of Tryalls

Cap^t Sam: Scarlett	Joseph Joy	Jacob Newell
Benj^a Negus	James Blake	Nath: Fisher
Hopestill Foster Ju^r	Joseph Weeks	Jn^o Baker
Jn^o Crofts	Sam^ll Belchior	Jn^o Thurston

[Sheafe v. Hawkins]

Sampson Sheafe plantiff against Thomas Hawkins Defend^t in an Action of the case for not giueing possession of certaine howses & Land lieing in Boston due to said Sheafe vpon or by a Deed or Mortgage for the same forfeited bearing Date the fiueteenth of June One Thousand six hundred seauenty & one refference thereto beeing had with other Due Damages according to Attachm^t Dated the 6^th of October 1671 After the Attachm^t & Euidences in the case produced were read comitted to the Jurie & are on file with the Records of this Court the Jurie brought in their Verdict they found for the plantiff that the Defendant giue him possession according to Attachm^t & costs of Court w^ch is twenty fiue shillings & eight pence.

Execucion Issued 5^th of y^e 11 m^o 1671

[Attested copies from the Suffolk registry of deeds (S. F. 1458.9) show that in 1667 Hawkins mortgaged the property in question to Mr. Thacher for 200l at six per cent interest, payable in 1671, in which year he mortgaged the same property to “Mr. Sampson Scheafe” for 177l 15s 8d at six per cent, payable “within the said yeere.” Sheafe’s account, presented during a later development of the case, follows (S. F. 1458.11):

Thomas Hawkins of Boston. Inholder. D^r

1671 June 15^th	To ballance due to mee for w^ch hee gaue mee a writing for his house & Land	177:15:08
	To Cash. p^d m^r Thomas Thacher Sen^r w^ch s^d Hawkins owed him for 200^h principall hee rec^d at interest due to the last of May	218:15:00
Octob^r 19^th	To Cash p^d charges in Suing him for possession & Levying the Execution	001:07:08
	To ditto p^d Recording the severall mortgages & writings I disbursed on the house & Land viz:	000:17:00
Aug^o	2000. boards. 3^li Locks. 5^a	003:05:00
Sept.	Carpenter & Bricklayer	013:07:03
Decemb^r	Goo: Drury for Shingling the house	005:05:00
	Goo: Cooper for whiting the house	002:10:00
May. 7^th	Joshua Atwater for Nayles	001:18:01
	Interest of 218^li 15^s l^d May 71 to 20^th March 1671 being a yeare 3m^o 3 dayes	024:12:00
	Interest of 186^li from 15^th of June to March 20^th being nine monthes	018:18:00
	Interest of 24^li 5^s disburst on the house till it was sold	000:13:00
	So the house & Land cost mee	467:05:04
		49:14:08
	And the charge of two actions commenced ag^t mee since for which I tooke out no Execution I calculate about 15^s besides writings between m^r Howlett m^r Stoughton & my Selfe.

P^r Contra is C^r

		li s d
1671 Octob^r 19^th	per Land & house bought of s^d Hawkins	398:15:00
	I sold one part to m^r Howlett if hee paide mee ready mony	287:00:00
	The rest to m^r Stoughton	280:00:00
		567:00:00

Hawkins’s comments on the account follow (S. F. 1485. 10):

Thomas Hawkins his Objection ag^t M^r Sampson Sheafes Account In p^rs To the 2^d article wherein hee charges p^d m^r Thacher 218^li 15^s hee desires to see a discharge & the Mortgage delivd^d up w^ch hee made to m^r Thacher for 218^li:15^s:

2^ly Whereas hee charges 1^ll:7^s 8. for Suing & Levying the Execution, hee desires to see a particuler account thereof.

3^ly Whereas hee charges for Recording mortgages & other writings 00:17 hee knowes no reason why hee should beare the charge of Recording his papers besides hee was at his own Liberty whether hee would doe or not & if done it was for his own Security.

4^ly Whereas hee charges 24^li 5^s 4^d for disburstments &^c hee knowes no reason why hee should pay anything for hee puld down better covering then hee put on, besides hee charges for Locks & hee knowes not that the house had need of Locks nor of seuerall other things as whiting &c which was altogether unnecessary charges & all without his order & after hee had s^d house in his hands.

5^ly Whereas hee charges for interest of 218:15—24^li 13^s 10^d hee doth not see any ground or reason why hee should allow any more then the 218^li 15^s that being the full w^th interest of what hee owed m^r Thacher for which his house was sold from him & in m^r Sheafes own Acc^o hee saith hee bought it in October. 1671. & yet chargeth interest till May 1672 therefore objects ag^t the 24:13:10.

6^ly Whereas hee charges for interest of 180^li—18^li 18^s he cannot understand what hee intends by it, besides before hee had the house in his hands w^ch he tooke for his satisfaction; and that hee should turn mee out of my house contrary to his promiss & yet afterwards demand interest hee leaves to any indiffirent men to judge the equity of.

7^ly Hee Sued mee & recovered a judgmt agt mee before the mortgage was forfited yet afterwards charges as in the two Last Articles no less for interest then 43^li 11:10, contrary to all law or Reason.

8^ly Whereas hee charges interest for mony Laide out on the houseing; what hee Laide out was after hee had them in his own possession & without any order of mine; besides hee pulls down spoiles & giues away w^t hee pleases & giues no acc^o thereof & yet charges for his disburstm^ts interest at his own pleasure.

9^ly Further by his own account hee sold the houseing for 567^li and by the same Acc^o when hee tooke the house from me I owed him but 396:11^s 8^d if m^r Thachers debt were 218^li 15^s but I can proue hee sold the houseing & land for 580^h So I am wronged in the Sale thereof no less 194^h whereas I can prove upon Oath, hee saide hee would not take a penny more then his first principall.

Boston 22^th Aprill. 1675

Thomas Hawkings

Sheafe and Hawkins indulged in much subsequent litigation over this property. See below, pp. 275–7, 416, 564, 684, 705.]

Milton v. Eliott

Thomas Milton Attourney of m^r John Nethway m^rch^t plantiff against Joseph Elliott Seaman Defend^t in an Acion of the case for Damage don him the said Milton by carelesenese of him the said Elliott & the rest of the company in keeping no wach abord the Katch Elizabeth & Mary whereof the said Milton was then Comander, when the said Milton was on Shoare & could not get on board by which carelesenesse of the said Elliott & company the said vessell was set on Fire & burned with the goods that were in her to the vallue of six hundred pounds or thereabouts & due damages according to Attachm^t Da^t the 26^th of Octob^r 1671 . . . the Jurie . . . found for the Defend^t Costs of Court

Parker v. Champeroone & Comp^a

Richard Parker of Boston plantiff ags^t Cap^t Francis Champeroone Abraham Corbett & Cap^t Walter Barefoot Defend^ts in an Action of Debt due by bond to the sume of one hundred & fowre score pounds & due Damages for non payment according to Attachm^t Dat the 30^th of Sep^r 1671 . . . the Jurie . . . found for the pl^t the forfeiture of the bond & costs of Court & on y^e Request of the defend^t y^e Court chancired632 it to one hundred pounds in spetie according to bond y^e Debt beeing ninety pounds

Execucion Issued 15^th of 9^br 1671

Leuerett v. Ely

John Leuerett esq^r one of the Ouerseers of the Last will & testament of Cap^t John Cullick deceased plantiff ags^t Richard Ely Defend^t in an Action of the case for his not performing his Obligacion vnder his hand & seale bearing date in the Month of January 1663 by the makeing payment of one hundred & fiuety pounds to John Cullick & one hundred & fiuety pounds to Elizabeth Cullick Sonn & Daughter to the [2] said Cap^t John Cullick according to his obligacion & all due Damages according to Attachm^t Dat the fiue & twentieth Day of October 1671 . . . the Jurie . . . found for the pl^t the forfeiture of the bond & Costs of Court. The Court vpon mocion of the pl^t chancired the bond to three hundred & eighteen pounds in Money & Costs of Court twenty seauen Shillings

Execucion Issued y^e 15^th of 1^st m^o 16⁷¹/₇₂

Wilkins v. Webb

John Wilkins plantiff against Joseph Web Defend^t in an Action of the case for withholding either by himselfe or his Assignes or by both himselfe & his Assignes a part of that howseing in Boston which is the propper right of the said Wilkins & all other Due Damages according to Attachm^t Dated the twenty fifth Day of October 1671. . . . the Jurie . . . found for the Defend^t costs of Court w^ch was seauen shillings & one penny.

Addams v. Hudson

Nathaniell Addams of Boston Turner y^e Elder Attourney to & for Robert Owen now or late of s^d Boston Vintn^r plantiff against Cap^t William Hudson Defend^t in an Acion of the case for withholding & unjustly deteyning the sum of sixty fiue pounds seauen shillings & eleven pence of Currant Money of New England from the said Robert Owen which appears to be due to the said Robert Owen from the said William Hudson vppon an Accoumpt made vp betwene them by M^r Anthony Stoddard Cap^t William Dauis and M^r Brattle who were appoynted by the Court to Auditt the Acomp^ts betwene the s^d Owen & the s^d Hudson with other due Damages according to Attachm^t Dat y^e 28^th of Septemb^r 1671 . . . the Jurie . . . found for the Defend^t Costs of Court twenty sixe shillings.

Man v. Whitcomb

John Man pl^t against James Whitcomb Defend^t & the pl^t not appearing after due calling was declared nonsuited.

Clarke v. Nicholls

Thomas Clarke late of Plymouth plantiff against the Goods or Estate of John Nicholls sonn to Mordecay Nicolls late of Boston deceased in the possession of John Wiswall Sn^r Guardian to the said John Nicholls Def^t in an Action of the case for non payment for disburstments which the s^d Clarke hath laid out in building a new howse upon the Ground & repayring the old howseing of the said John Nicholls at the request of his Mother late wife to the said Thomas Clarke & vpon her promise that the said Clarke should be [3] paid for the same out of her Estate which Disburstments haue beene apprized at seauenty fiue pounds with interest & other due Damages according to Attachm^t Dat the 26^th of 8^br 1671 . . . the Jury. . . brought in a spetiall verdict Viz^t If man & wife haue power to make bargains one with another y^t will stand good in Law then wee finde for the plantiffe seauenty fiue pounds & Costs of Court if not wee finde for the Defend^t costs of Court. The Magistrates on perusall of this case & Verdict Judg^d for the Defend^t costs of Court the plantiff appealed from this Judgment to the next Court of Assistants & the said Thomas Clarke as prinsipall in seaventy fiue pounds & John Saffin & Anthony Chickley in thirty fiue pounds apeice acknowledged themselues bound to the Tresurer of the County of Suffolke & parties conserned on condicion that the s^d Clarke shall prosecute his Appeale from the Judgment of this Court to the next Court of Assistance to efect.

[On June 28, 1660, James Balston of Boston, ship-carpenter, deeded to Mordecai Nicholls a house and land in Boston “on highway next to Mr. Clarke” (S. F. 1404.5). The house was a modest one of two stories, with two rooms to a floor. Mordecai appears to have been a seafaring man turned shopkeeper; he dealt in canvas, cottons and woolens. His estate, valued on April 25, 1664, after his death, included the housing and grounds, 150l, a barque and her cargo, 159l 18s 6d; “sow & piggs in the yard,” 1l; furniture “in the parlor,” including one standing bedstead and a trundle bed, 8l; the stock of cloth was kept “in the Chamber over the parlor”; the total valuation was 532l 17s 3d (S. F. 1404.7). Shortly after this, the widow Nicholls made an agreement with Thomas Clarke who was to be her next husband. In S. F. 1179.4 is the following copy of this “bargain”:

This writing witnesseth. Between Thomas Clarke late of Plymouth, yeoman, and Alice Nicholls of Boston, widdow That whereas there is an intent of marriage between the s^d partys the Lord succeeding theire intentions in convenient time: The Agreement therefore is that the houseing & Land now in the possession of the s^d Alice Nicholls shalbee reserved as a Stock for her Son, John Nicholls for him to enjoy & posses at the age of twenty and one years in the meanetime to bee improved by the parents towards his Education: Also that what Estate of hers the s^d Alice shalbee found & comitted to the s^d m^r Clarke—if it should so please the Lord to take the s^d Alice out of this Life before the s^d Thomas Clarke Shee shall then have then power to dispose of all the s^d Estate sometimes hers so as it seemes good unto her:—moreover—if it shall please the Lord to take away the s^d Thomas Clarke by death, before the s^d Alice She Surviving, then the s^d Alice shall have and enjoy her own Estate Shee brought with her or the value thereof and two hundred pounds added thereto of the Estate Left by the s^d Thomas Clarke all which the s^d Thomas Clarke doth hereby promise and binde himselfe to allow of and performe as a Covenant upon theire marriage—In Witness of all which, the s^d Thomas Clarke hath Signed and Sealed this present writing unto Peter Oliver and William Bartholmew of Boston for the use and behoofe of the s^d Alice Nicholls. Dated this twentieth day of January, 1664.

per me Thomas Clarke & a Seale

After this agreement a somewhat different arrangement to safeguard the stepson’s rights in his mother’s property was concluded by the Court on February 3, 1664/5 (S. F. 1404.7):

At a County Court held at Boston 3^d Feb^o 1664

This Court being informed that since the Inventory of Mordecai Nicholls was produced in Court, the providence of god by the loss of the vessall & seu^rall debts due to the s^d Estate thereby falling short to the value of two hundred pounds & odde & the widdow being ready to dispose of herselfe: The Court judged it meete to order that the house & Land mentioned in the Inventory at one hundred & Fifty pounds shalbee & is hereby secured to bee part of John Nicholls hir Sonnes portion; And that the s^d widdow Alice Nicholls his mother shall Satisfy & pay unto her s^d Sonn—at the age of Fourteen yeares the Sume of Fifty pound more besides the s^d house & Land to his Guardian to bee improved for his use till hee come to age, & the mother to haue the use of the Sonnes portion—till that time hee come of age to choose his Guardian; for his Education—, & in the meane time the mother & Cap^t Clapp are appointed his guardians & that the mother the widdow haue all the rest of the Estate as her portion—& in case the Childe dye before hee attaine his age, the mother to haue the whole.

Allowed & approved of by the Court

Having married the widow Nicholls, Thomas Clarke moved into her house, which proved to be somewhat cramped. The neighbors reported their conversation (S. F. 1179.9):

Judith Snowsell aged about Seaven & Thirty yeares deposeth upon oath . . . m^r Clark & his wife being at o^r house, they began a discourse about the house they lived in: Shee saying it was old and that hee would doe well to build her a new house But m^r Clarke made answer that he would never doe any such thing as to build upon anoth[er] mans ground Then shee replyed y^t hee needed not to feare his satisfaction againe in case hee did build for her for shee said the rent of her house would in time pay him: But m^r Clarke made answer that such paym^t would not doe, For hee said y^t would bee a long time in paying indeed And further this depon^t saith that shee told hir husband that what estate hee had was hers: and what was hers was her owne And further saith that her husband demanded to see her Inventory But shee tould him hee should never see it while shee lived And further this depon^t Saith that m^rs Lake being at o^r house told this deponent that shee was going to see m^s Clarke, for shee was informed as shee said that her husband would not allowe her things that were fitting for her, but was very Churlish and dogged to her. But this depon^t tould m^rs Lake that m^s Clarke wronged her husband in the same very much for hee would allowe things y^t were Sufficient for her but shee would not allowe thereof her selfe And thereupon this depon^t went along w^th m^s Lake to m^r Clarkes house at that time when m^s Lake did aske m^s Clarke if her husband would not allowe her things y^t were Covenient for her: For shee tould her y^t shee heard hee would not. But shee did then disowne to m^s Lake and my selfe what was reported concerning her husband as to that particular And further this deponent Saith that shee being at m^s Clarkes house one day the said m^r Clarke came in and brought w^th him a small leg of mutton and a peece of fresh beefe and shee found fault with him for bringing in soo much meate and tould him y^t a pound of beefe at a tyme was enough for to bring in: But hee made answer that if shee did not like it shee might let it alone for hee said hee would not make him selfe a laughing stocke to bring in soe little meate at a tyme And further this deponent Saith not

Taken upon oath this 30^th octob^r 1671

Before mee Humphry Dauie633 Comiss^r

William, John and Andrew Clarke, aged respectively 37, 30, and 25 years, deposed (S.F. 1179.11–12) that their father, upon their stepmother’s continued request, and her promise to pay for it, built the new house, leanto, and shop in Boston, and repaired the old one; the improvements were apprized at 75l but cost above 100l. Also (S. F. 1179.7):

The testemony of Rodger Clap Aged sixty two years or thereabouts. Saith that m^r Thomas Clarke hauing taken Downe one end of the howse which was Mordecay Nicolls & built a new Roome in the place did shew me the new roome & said that it had cost him a great deale of money but hee did keepe an Accoumpt of itt & did intend that it should bee in part of that two hundred pounds which his wife was to have out of his Estate after his death this deponent asked him how if his wife should dye before him he Answered then hee would freely giue it to John and would have noething for itt.

Taken upon Oath the 31st of 8th m^o 1671 before mee Anthony Stoddard Comiss^r

Owned in Court by Cap^t Clap . . . as Attests Free Grace Bendall Cler.

Alice Clarke died before her second husband. Her son John Nicholls, then aged seventeen, chose as guardian Elder John Wiswall (S. F.1179.8), who was obliged to seek the aid of the court to obtain possession of his ward’s house, land, and 50l, as appears by the following record (S. F. 1179.3):

At a County Court held at Boston 25^th of 5 m^o 1671

Elder John Wiswall guardian to John Nicholls pl^t against Thomas Clarke Defend^t in an Action of the Case for with holding an Estate left by his mother Alice Clarke by will which will was made according to contract before her marriage with the said Thomas Clarke beeing formerly the Estate of Mordecay Nicolls his father Deceased being an Estate for the most part of moveables & Debts & all Due Damages according to Attachm^t & at the 20^th of the fifth month 1671 After the Attachm^t & Evidences in the case produced were read comitted to the Jurie & are on file with the record of this Court the Jurie brought in their verdict they found for the plantiff, that the Defend^t deliver all y^e Estate now in his Custody or that he hath any wayes disposed of or did belong to his Late wife Alice that was hers before marriage with him except what was disposed of by a former verdict this is to be deliuered to the plantiff for the use of John Nicholls or two hundred pound damage in money & costs of Court.

Thomas Clarke then sued his stepson, as appears from the entry, in order to recover the cost of repairing the old house and building the new one. In his “Reasons of Appeale” from this judgment, dated February 28, 1671/2 (S. F. 1179.8), Thomas Clarke rehearses the fact of his contract with the widow Nicholls and declares that the court order of February 3, 1665, had never been made known to him, nor had her first husband’s inventory. He argues that if his wife had had the right to devise property by will, she had the right to make a “bargain” with her future husband, and that this pre-nuptial agreement was a valid contract of which the court should have taken cognizance. “The Jurys verdict being as it is, I am doubtfull whether the Honorable Court Considered my Case as it is Circumstanced per the S^d Contract.” He concludes (S. F. 1179.8):

My Wife & I although as man & Wife one, in personall relation yet Considering our Relation to y^e Contract two in Estates . . . & Soe Shee noe femm Couert nor under Couert Barron—And might as well make bargaines with mee in hir Life as make a will at hir Death, and If Shee hath power to giue mee a legacy, much more hath Shee power to pay hir debts, debts being allways to bee paid before Legacys. . . .

Instead of admitting an appeal, the Court of Assistants apparently ordered a review of the case by the same court. This was done at the Spring session of 1672—see pp. 98–9, below.]

Atwater v. Ely

Joshua Atwater plantiff against Richard Ely Defend^t according to Attachm^t Dat y^e 21^th of 7m^o 1671, the pl^t withdrew his Acion.

Patten v. Naylor

Thomas Patten Attourney of Nathaniell Patten plantiff against Edward Naylor & Richard Walker Defend^ts according to Attachm^t Dat y^e 9^th of Octob^r: 1671, the Acion beeing cal^d Edward Naylor appeared in open Court & acknowledged a Judgment against himselfe & Estate of eighty pounds vnto Thomas Patten aboues^d which the Court Chancired to fiuety pounds & one shillinge.

Execucion Issued for 51^li l^s 00^d y^e 4^th of x^br 1671

Greenough v. Hazelden

Elizabeth Greenough Attourney of her husband William Greenough pl^t against John Hazelden Defend^t in an Acion of the case for better security of a bond of forty three pounds with condicion to pay the sume of twenty one pounds tenn shillings in money & other due damages according to Attachment Dated the 17 Day of Octob^r 1671 . . . the Jurie . . . found for the Defend^t Costs of Court

Hallett v. Mansfeild

George Hallett plantiff against Paul Mansfeid Defend^t in an Action of the case for withholding a Debt of sixteene pounds due to the s^d Hallett per Bill for a servant he sould the said Mansfeild with Due Damages according to Attachm^t Dated the twelveth Day of the sixth Month 1671 . . . the Jurie . . . [4] found for the plantiff seauenteene pounds Damage according to bill & Costs of Court twenty eight shillings & two pence.

Execucion Issued 15^th of 9^br 1671

Norden v. Auis

Samuell Norden plantiff against William Auis Defend^t in an Action of Debt of Eleuen pounds or thereabouts due by Booke & due Damages according to Attachm^t Dated the 20^th of October 1671 . . . the Jurie . . . found for the plantiff thirteene pounds eighteene shill & six pence Damage & Costs of Court twenty fowre Shillings & tenn pence.

Smith v. Cartwright

John Smith Sen^r of Dorchester plantiff against Arthur Cartwright of s^d Dorchester Defend^t in an Action of the case for slandering his Sonn John Smith in sayeing hee broke into his howse & tooke away nine pounds & tenn shillings in money; & positiuely chargeing him to be the person that did it, & no other & this to the great reproach of the said John Smith & his freinds & heereby takeing away his good name both at home & abroad, with all due damages according to Attachm^t Dated 18 7m^o 1671 . . . the Jurie . . . found for the plantiff twenty pounds or an Acknowledgm^t to the Courts Satisfaction & also the same acknowledgem^t at Dorchester at a publique Towne Meeting & costs of Court forty one shillings & tenn pence.

Atkinson v. Trumble

Theodore Atkinson senior plantiff against John Trumball defend^t according to Attachm^t Dated y^e 26^th of October 1671 y^e pl^t not appearing after due calling was nonsuited.

Whitcomb v. Burnam

James Whitcomb plantiff against the Goods Debts or Estate of Thomas Burnam of Barbados Defend^t according to Attachm^t Dated the 25^th of 8^br 1671 The pl^t not appearing was declared nonsuited.

Newcomb v. Naylor

Andrew Newcomb plantiff against Edward Naylor Defend^t in an Action of Debt of Nine pounds three shillings in money due by bill & due Damages according to Attachm^t Dated the fourth of the sixth m^o 1671 . . . the Jurie . . . found for the plantiff nine pounds eight shillings money Damage & costs of Court twenty seauen shillings & eight pence.

Gefford v. Atherton

John Jefford

Huchinson v. Douty

Eliakim Huchinson assigne of Edward Rushworth or whomeeuer else conserned plantiff against Thomas Doughty as prinsipall, & James Grant of Yorke Peter Grant & John Taylor as seuerty or either of them Defend^ts in an Action of the Case for forfeiture or breach of Bond or obligacion of twelue hundred [5] pounds vnder there hands & seales bearing date the first Day of June 1665 for non performance of a Couenant or Agreement of the Date abouesaid vnder the hand & seale of the s^d Tho: Doughty with other due Damages according to Attachm^t Dated 19^th of Sept^br 1671 . . . the Jury . . . found for the plantiff the forfeiture of the bond & costs of Court which was thirty six shillings.

Execucion Issued for 1201^li 16^s 00 y^e 5^th of 11 m^o 1671

Patten v. Wise & Belchior

Thomas Patten Attourney of Nathaniell Patten of Dorchest^r plantiff against Andrew Belchior of Cambridge & Joseph Wise of Roxbury senior in an Action of the case for the forfeiture of a bond of twenty pounds for non payment of a Debt of tenn pounds eight shillings with the alowance for forbearance as more fully appeares by the condicion of the said bond & due Damages according to Attachm^t Dat the 25^th of Octob^r 1671 . . . the Jurie . . . found for the plantiff the forfeiture of the bond & Costs of Court thirty six shillings.

Execucion Issued for 21^li 16^s 00^d y^e 26^th of x^br 1671

Thair v. Parsons

Richard Thaire of Brantry pl^t ags^t William Parsons of Boston Joyner Defend^t in an Action of review of an Action of y^e case comenced by the said William Parsons against the said Richard Thaire at a County Court held at Boston in Ap^r last & also obtayned a Judgment from the said Court to the vallue of seauenty six pounds fiue shillings & costs of Court forty fiue shillings & eight pence (which complaint) was for disburstm^ts laid out & payd by the said William Parsons about the building of a Katch & due Damages according to Attachm^t Dat the 24^th Day of Octob^r 1671 . . . the Jurie . . . found for the plantiff seauenty eight pounds tenn shillings & eight pence Damage & Costs of Court The Defend^t appealed from this Judgment to the next Court of Assistants & William Parsons as prinsipall in one hundred & fiuety pounds & James Euerell & John Williams as suerties in seauenty fiue pounds apiece acknowledged themselves bound to . . . prosecute his appeale . . .

Bacon v. Gold

Samuell Bacon eldest sonn of George Bacon pl^t against Edward Gold of Hingham Defend^t in an Action of the case to the vallue of forty & fiue pounds for withholding one third part of a Dwelling howse & seuerall parcells of land lyeing & beeing in hingham belonging to the said Samuell Bacon which were the lands of his said father deceased [6] & also for improueing the said lands aboue fowre & twenty years with all due Damages according to Attachm^t Dated the three & twentieth Day of October 1671 . . . the Jurie . . . found for the plantiff one third part of the howseing land & meadow according to Attachm^t & twenty pounds for improuem^t & Costs of Court twenty two shillings & fowre pence.

Idem v^rsus Eund^m

Samuell Bacon plantiff against Edward Gold Defend^t in an Action of the case to the vallue of forty pounds for the said Edward Gold withholding & refusing to make satisfaction vnto the said Samuell Bacon vpon demand for a Cow & all her increase about fiue & twenty years with all due damages according to Attachm^t Dated the twelft Day of September 1671 . . . the Jurie . . . found for the plantiff sixteene pounds & costs of Court forty three shillings & two pence.

Couch v. Barefoot

Robert Couch pl^t against Walter Barefoot Defend^t according to Attachm^t Dat y^e 25^th of July 1671 the case beeing called the plantiff not appearing was declared non suited

Kelly v. Blower

Rodger Kelly plantiff against John Blower Defend^t in an action of vnjust molestacion in attaching & captiuating his person & also his fishing shallop in the cheefe634 of fishing for a considerable tyme by which his men broke ofe from him which were much indebted to him to his great & vnsufferable Damage in a vexatiose manner & without any grounds according to Attachm^t Dated the 10^th of Octob^r 1671 . . . the Jurie brought in their verdict they found for y^e defend^t Costs of Court

The Court considering Rodger Kelly^s vexatiose suite ags^t John Blower sentanc^d him to pay forty shillings fine in money to the County according to Law & treble Damages to the John Blower the Defend^t.

Golden v. Clements

Peter Golden Attourney of Walter Barefoot pl^t against Edward Clements Defend^t in an Action of the case for not payeing a debt of twenty one pounds & od money owned by the said Clements due by bill or soe much as shall appeare by bill or witnes & due interest & all others due Damages according to Attachm^t Dated the 24^th of July 1671 . . . the Jurie . . . found for y^e Defend^t Costs of Court the plantiff appealed from this Judgm^t [7] to the next Court of Assistants & Cap^t Walter Barefoot in twenty pounds & Isaac Woodie & George Broughton in tenn pounds apeice acknowledged themselves bound to . . . prosecute his appeale . . .

[“Captain Walter Barefoot chirurgeon” was a well-known planter of Dover, N. H., which at this time was included in the Massachusetts jurisdiction. The facts of this case are explained by the following documents and depositions, together with Barefoot’s reasons of appeal and Clements’ answer. The Commissioner’s Court mentioned in the deposition of Elias Stileman is one of the few references we have at this period to a special court instituted in 1651 in order to relieve the County Court. It consisted of seven freemen annually chosen by the freemen of Boston, and authorized by the Court of Assistants to hear and determine all civil actions not exceeding the sum of 10l; the commissioners had a clerk and kept records (The Book of the General Lawes and Libertyes 1660, p. 13; Whitmore ed., p. 133). In S. F. 1077 will also be found copy of writ dated July 24, 1671, with return dated August 3; record of bond given by Isaac Woody and Broughton to appeal the case; testimony of Isaac Woodey, similar to Stileman’s. Barefoot lost the case on appeal; his bill of costs is here given as a sample of that sort of document.

S. F. 1077.6

I under written doe promise to pay unto Cap^t Walter Barefoot of Boston Twenty one pounds nine shillings in goods.

Boston 29: 3. m^o 64:

per Edward Clements

Vera Coppia as Richard Steleman Cleric paid of this bill five pounds fifteene shillings & 2^d

per Edward Clements

Sworne per Cap^t Walter Barefoot y^t y^e above written was the hand writing of m^r Edw: Clements in Commission Court. 3^d 7: m^o 1669

The Deposition of Elias Stileman.

This Deponent Saith y^t some time in August now last past I heard Cap^t Barefoot saye uppon some discourse passing about a difference y^t was betweene him selfe & M^r Edw: Clements y^t he y^e sd: Barefoot had as much Silk as came to five pounds w^ch was made reci^td upon y^e back side of a bill or bond under y^e said Clements hand, these words was Spoken y^t day y^t Martin Hall was one board Said Clements ship when Cap^t Barefoot & said Clements had words or discourse about y^e Said Silke & further Saith not.

Sworne in Commision Court y^e 3^d 7: m^o 1669 Rich: Steleman Cleric

Vera Coppia as attests Rich: Stileman Cleric

This is a true Coppie as Attests Free Grace Bendall Cler.

Barefoot’s power of attorney to Peter Goulding (S. F. 1077.3) follows:

Know all men that I Walter Barefoot of Dover Chyrurgeon have made ordained constituted & appoynted & doe hereby made ordaine constitute & appoynt my trusty freind Peter Goulding of Boston my true & lawfull Attoumey for mee & in my place & stead to aske require & receive of & from Richard Cooper or his heires Execut^re Administ^rs or Assignes ten pounds due to mee by bill and a certaine summe in goods due from Edward Clements due by bill & also eight poimds Sterling due from William Wright of Dorchester, by bill or from their or either of their heires Executors Administ^rs or Assignes And I herby give my sd Attourney full power (if he see cause) the sd debts or any of them & all other due dammages thereon or therby ariseing to sue for At Law by Action or Actions vnto judgment or Judgments & therupon Execution or Executions to take out & y^e same to cause to be satisfyed & such satisfaction to receive & to doe & execute or cause to be done & executed all & every other Act & Acts divice & divices in y^e law whatsoever that I might or could doe if I were persona[ly] present. And I doe & will at all times rattefy & confirme whatsoever my sd Attourney shall lawfully doe or cause to be done in & about y^e premesies In witnes whereof I have hervnto put my hand & seale this eighth day of June 1669 & in y^e xxi yeare of y^e reigne of King Charles y^e second &c

Walter Barefoote

[seal]

Signed sealed & delivered in the presence of vs.

James Gundry William Smith John Mesinger

S. F. 1077.8

Edward Clements Aged thirty years or there abouts Testifieth uppon Oath that he oweth M^r Walter Barefoot nothing neither Directly nor Indirectly & that to his knowledge he never gave the Said Barefoot Any bill for the payment of any thing

Taken upon Oath this 23^d of August 1671 before me.

. . . Richard Parker Commis[sioner]

S. F. 1077.4

Walter Barefoot Or Peter Goulding his Attorneys Reasons of Appeale from a Judgment of A County Court held in Boston on the 31^t of October 1671. in which Action he was plaintif ag^t Edward Clements def

First for that his Cause of Action mentioned in the Attachment (to wit) A debt of Twenty one pounds due by Bill owned by the sd Edward Clements due by Bill or soe much as shall appeare due by Bill or Witnes & due interest &c. is sufficiently proved. That there was such A Bill by the testimonie of Isaack Woodey his first oath that five or six pounds was written on A Bill which he then thought was an obligation from the sd Clements: But when he had better bethought himself being lawfully required did farther testefy that Edward Clements did owne he had given Walter Barefoot A Bill for the payment of Twenty one pounds odd money & that he did see this bill which he the sd Clements owned to be his &c. And secondly Martin Hall his Additionall oath sayeth that Walter Barefoot demaunded the abovesd debt of Edward Clements due by Bill which Edward Clements owned was due. All which is enough to prove there was such A Bill & debt, as by Refference to them Testimonies had doth more at large appeare though thervpon the plaintif could not have the Judgment of that Court for him wherfore he appealed.

Secondly, Edward Clements his owneing of the wholl sd debt to be due is clearly proved by his paying parte therof, proved by Isaack Woody his first oath, & by Martin Hall his Additionall oath both which doe mention some silke pd in parte. Soe that though the plaintif was negligent in causeing witneses to subscribe to the Bill when Edward Clements did subscribe it, that Defect is salved & made vp by cleare proofes that there was such a Bill & is yet unpayed. But because he had not a judgment of that Court for his soe just debt therfore he appealed.

Thirdly As it was in the sd honored Court pleaded that Edward Clements never dealt with the plaintif much les gave A Bill to him for payment, which plea was weakly grounded on Edward Clement’s owne oath (as I suppose) the contrary to which is evinced by Samuel Warkman’s bond assigned vnto him p^d sd Clements by the plaintif And that there is noe truth in his sd oath appeareth plainely by his owne acknowledging otherwise at other times, sworne too by Isaack Woodey & Martin Hall.

fourthly Though some peradventure not well advised would boldly say it was an oversight for Courts to accept off parties owne oathes against one another the plaintif dares not say soe much. But humbly offereth to the wise Consideration of this Honorable Court & Gentlemen of the Jurey the plaintif his owne oath that Edward Clements did write the whole Bill as testimony equivalent unto Edward Clements owne oath that he never gave such a Bill. Wherfore leaveing them the plaintif doubteth not from what is abovesd to wit cleare proofes of A Bill & debt due & parte therof payed but to have the Judgment of this Honorable Court for the same wherfore he appealed.

Pe: Goulding Attorney of Walter Barefoott.

Receaued y^e 27^th of 12 m^o 1671 per Free Grace Bendall Cler

S. F. 1077.5

Answers to the Reasons of Appeale Given in by Peter Goulding Attorney for Walter Barefoote as p^lt ag^t Edward Clements defend^t at a county court held in boston 31 Ocktober 1671

To the first I answer that wheras he speaketh of A Debt of Twenty one pounds due by Bill and owned by the defend^t the Defendent utterly denyeth any such bill given by him and for the testimonyes there spoken off: with their Additionall Oathes: the Defendent hopeth they will be by this honoured Court, and Jury so considered off that they will be accounted of no validity

To the second the Answer is the Defendent neuer owned paying of any such Bill only five pounds Captaine Barefoot bought of him in Silke and paid him for it; but if he set downe that; or what else he pleased upon any peice of paper; and say it is receiued upon the within written let him make use of it; only the Defendent hopeth he being not oblidged to what is within shall not suffer for what is without

To the third the Answer is that the plaintiffe therin seemeth himselfe to owne that what was: was only the Bond due to the plaintiffe from Samuel Warkman: which was Assigned to: to y^e Defendent but being by the defend^t neuer receiued he haue as he conceiuethe no reason to pay it

To the fourth I answer that I humbly conceiue the honoured Court more meet to answer it then any other; and therfore shall forbeare to make any reply to it

per Richard Way Attor

to M^r Edward Clements

S.F. 1077.12

Walter Barefoot plaintif his bill of Costs ag^t Edward Clements Def^t

At the County Court in Boston Octob^r 31: 1671		l s d
for two dayes goeing to M^r Elias Styleman for coppies of Evidences		0:02:00
pd to him for coppies		0:03:00
pd M^r Rawson for coppies		0:03:00
the Attachment & serveing it		0:01:06
Entering the Action		0:10:00
his owne comeing from Pascataqua to bring coppies of Martin Halls Evidence & other things & in goeing hoame to puscataqua againe six dayes		0:12:00
his owne Attendance 5 dayes at Court		0:10:00
writeing y^e first evidences & sumoning witneses		0:00:00
Isaack Woody’s attendance 4 dayes			0:06:00
pd the Witneses for the first swearing so all twice & Woodys first oath & sumons			0:02:00
fyleing ten papers			0:01:08
ferryage outwards & hoamward			0:00:00
			2:11:02
At the Court of Assistants for Entering the Action			0:15:00
pd for County Courts records			0:09:00
his Attorneyes Attendance 5 dayes			0:07:06
writeing reasons of Appeal			0:01:06
more to be pd for the judgment because above 10¹¹			0:00:00
fyleing 13 papers			0:02:02
			5:06:10
Allowed E R S	1:15:2
	2:11:2
	4:6:04

Oliver v. Woodmancy

Cap^t James Oliuer pl^t against John Woodmancy Defend^t in an Action of the case for not deliuering possession of a howse & Land in Boston built by the said Oliver on his owne Land & all due Damages according to Attachm^t Dat the 26^th of October 1671 . . . the Jurie . . . found for the plantiff possession of the howse & Land in controversy & costs of Court the Defend^t appealed from this Judgment to the next Court of Assistants & y^e s^d John Woodmancy in three hundred & fiuety pounds as prinsipall & Richard Wharton & James Whitcomb in one hundred & seauenty fiue pounds apeice as suerties acknowledged themselves bound to . . . prosecute his appeale . . .

Bucher v. Bastar

Mary Butcher plantiff against Joseph Bastar defend^t in an Action of trespasse vpon the case for his building & intrenching vpon her Land before the Dore of her Dwelling howse to her great Damage with other due damages according to Attachm^t Dat y^e 26^th of 8^br 1671 . . . the Jurie brought in a spetiall verdict viz^t if it be soe that the Deeds of the Defend^t be according to law we find for the Defendant costs of Court if not wee finde for the plantiff according to Attachm^t & costs of Court the Magistrates declared for the defend^t & y^e Costs of Court were thirty two shillings & six pence.

Wilkins v. Web

John Wilkins pl^t ags^t Nehemiah Webb defend^t in an Action of the case for suffitient security that the said Nehemiah Webb doth & shall make good vnto the said John Wilkins all that right which he hath sould him of howse & Land as by Deede will more fully appeare & due damages according to Attachm^t Dat the 27^th day of July 1671 . . . the Jurie . . . found for the Defend^t costs of Court which was twenty two shillings & six pence. [8]

Hoppin v. Downes

Stephen Hoppin plantiff against Mehitabell Downes the relict of Edmond Downes Marchant deceased Defend^t according to Attachm^t Dat y^e 3 of October 1671 there not appearing that any goods of the Defend^t was Attached the pl^t was nonsuited.

Sprague v. Collins

Richard Sprauge Master of the shipp Arabella in the behalfe of M^r Thomas Knights owner of said Shipp plantiff against Robert Collins defend^t in an Action of the case for absenting himselfe from the service of the said Knights or his Order & disowening his service whereas he came over a servant to y^e said Knights which is to his great Damage with other due damages according to Attachm^t dated the 4^th of 7^br 1671 . . . the Jurie . . . found for the defend^t Costs of Court w^ch is thirty fiue shillings & two pence.

[A case of kidnapping, the facts of which are explained in Collins’s Answer to Sprague’s Reasons of Appeal from this Judgment, dated March 4, 1671 (S. F. 1081.3):

Robert Collings being At three severall Courts heild at Boston xceeuted Against by m^r Richard Spreague & m^r Peter Ledged [spelled Lidgett in S. F. 1081.4] in his behalf, And they in every of the sayd Courts Cast: vpon Cleere & just evidence, And yett still they rest vnsatisffied witnes their present appeale: & this we humbly present as an answer to his reasons (Soe Caled) viz; first: he begin his reasons with a false Assertion in affirming that the sd Collings Came one bord the Ship Arrabella, Rich: Sprague master as servant to m^r Knights owner of the sayd ship, which sayd m^r Knights he never did see nor At that time heard off by name, And therfore Could never become his Servant; But the grounds of his Coming one borde the sayd ship: was by meanes of a suttle Fellow which mett with him in london who sayd he was Botswaine of the ship Arrabella, & he the sayd pretended Botswaine (taken notice of the sayd defendants weaknes & infirmity; he then did improue his oppertunity to gaine his purpose saying that he was Botswaine of the ship Arrabella as aforesayd; And he then Asked the sayd defendant if he would goe to sea: telling him that he the sayd defended should haue 18^s in money as soune as he Came one bord the sayd ship & also 18^s a moneth otherwise vntill he Came to new England, & sayd otherwise that he would be a friend to him all the sayd voyage, the wch made the sayd defendant through ignorence Condecend: But this pretended Botswaine would not leue the sayd defendant but provoked him by his fraudulent to goe one borde, & haled y^e Ships boat for that end; and promised emediently to Follow himself vpon which this sayd defendant went one bord; expected the sd pretended Boatswaine would sodenly follow (at which time it is possible he might say he was willing to be a servant to new England for his 18^s per moneth answerable to this sayd pretended boatswaines agreement; And then this sayd defendant waited severall days for this sayd pretended Boatswaine to Come one borde, but he not Coming of many dayes (for he Came not at all) he then inquired of the seamen for this sayd pretended Boatswaine: that Came not a bord; then the seamen one bord laughed at this sayd defendant, & tould him that he was catched by the kidnapper; But they tould him also that when the serchers Came one borde he might gaine a release, And wheras they Glose the matter to manifest the defendant Consent in receiveing Cloaths, his answer is, that he received none that he know off but that that might be to the first 18^s vallue promised by the pretended Boatswaine; And further, that he received meat and drink one borde: his answer is that he must eate & drink or starue, & did not nor Could not goe ashore; And wheras they doe instance his goeing one shore at Gravesend, the defendants Answer positively is that he Could haue no opportunity to goe one shore but once, & that was with 3- or 4- to looke after him & that in such blind Corners, & uncoth places, y^t he knew not which way to goe if he had binn at liberty; & besides the sayd defendant had some hopes of freedom by the serchers as the seamen tould him he might; & did in their presents refuse to give them his name & tould positiuely that he was not willing to goe the voyage; the wch is Cleerely proued And the sayd defendant doth positively affirme that he did even dislike and manifest his dislike in Coming the sayd voyage except it ware at the very first when he waited for the pretended boatswaine to Come one borde; but when the defendant did vnderstand that he was deluded spirited: or ketcht by the kidnaper: or manstealer: he was ever after vtterly unwilling; And wheras they doe say in their resons, that the defendants evidences are negatives; our answer is that we suppose they give that as a reason, becase they haue noe better reason; but true reason may inliten them that the defendants evidences may be as positive as the plantives

And for thier third particuler wher as they instance the testimony of the Clark of the passinges to verifie the defendents willingness the defendant doth disowne that ever knew him or see him, And therfore much less to manifest his Concent to proceed one the voyage before him; but the defendant therin shall say little, but he beleue that the honored Court of assistance will not over redily give Credit to the returne of that sd offesser (if any such retume):

And wheras m^r Sprague charged about 3^li expended about the sayd Defendant, It is supposed, that is irrationall for generalls to proue the particullers but particulers ought to proue the generall, but only m^r Sprague himself did party reconsile the busineses for that he did possitively affirme that he payd 40^s to the kidnaper for send the sayd man abord this also is Cleerly proued: therfor ther is noe need to speake of the kidnapers honesty: least we should Call light Darkness or dark[n]ess light; & it is doubtfull ther might be a Confederation in it And wheras they affirm that ther was tenn pounds offered in behalf of the defendant, we answer that if it should be true, that argueth not that ther is one penny Due, but men may bye peace at a deere rate, but non can say that ever Collings the defendant ever offered tenn pence; For it is supposed that for a fellow to be trapp and surcumvented by fraude & sent one borde & much meanes used to gitt one shore; not only at Graues end; but by the serchers, And also at tarbay ther stripping off all his Cloase for that end to goe one shore as is Cleerly proved, & yett to be brought away & to be brought as a Captive; In such a Case It is apprended that noe Charge ought to be layd upon such a person; & therfor we doubt not but the sayd three Courts did rigteously Cast the plantive and therfor we hope the honered Court of will Confirme their sayd judgments vnto whose determinations we humbly submit Dated March: 4^th 1671.

Depositions of three seamen on the Arabella support Collins’ statements (S. F. 1081.5, 6). Richard Sprague, master of the Arabella, deposed that he had disbursed 3l 7s for Robert Collins, who “was kept on board with meat drink & lodgen in the ship . . . five weeks before the ship sayled from Gravesend” (S. F. 1081.7). William Hearsy deposed (S. F. 1081.9):

The deposition of W^m Hearsy aged about 21 years. This deponent witnesseth that the serchers coming abord the ship of which m^r Sprage was Comander at Graues End to take notice of the Names of the passengers that then the said Robert Collings did then declare himselfe to the Said serchers that he would not goe in that said Shipp to New England to be a Servant to M^r Sprague or to be disposed of, then hee y^e Said M^r Spreag tould him the Said Collins that he would strip him naked & turne him ashore & he the Said Collins did then expresse him selfe willing to goe ashore though stript but the said Master then would not suffer him, and when the Said Shipp came to Tar-bay he the said Collins would haue gon ashore there, vpon the manifestations thereof he the said Spreag made him strip himselfe naked, & when his cloaths was ofe he the said m^r Spreag would not suffer him to goe on shore, notwithstanding all the seamen tould the said Collins with the passengers that if they were not willing to goe the said voyage when they came to Graues End they might be cleered & further this deponent sayth not

Sworne in Court this 3 of 9^br 1671 as Attests FreeGrace Bendall Cler.

Having failed to recover Collins’ service, Sprague sued him for his passage money at the next session of the court. See p. 43, below.]

Wiswall v. Hambleton

Elder John Wiswall & L^t Richard Cooke guardians to Hannah Hanniford plantiffs against William Hambleton Defend^t according to Attachm^t Dat y^e 25^th of Octob^r 1671 This case was by desire of pl^t & defend^t w^th leaue of y^e Court continued till next Court

Cooke v. Price

Leu^t Richard Cooke pl^t against the goods debts or Estate that was formerly belonging vnto M^r Thomas Broughton & this case was also continued (after seuerall debates about its proceeding) vntill the next Court w^th the Auditts returne.

[See Cooke v. Broughton, session of 30 January 1671/72, pp. 65–78.]

Whitcomb v. Burnham

James Whitcomb pl^t against Thomas Burnam of Barbados defend^t in an Action of the case for not passing or giuing bills of Exchange for the paying of fiuety & fiue pounds in London according to his Ingagem^t as per a Letter of Creditt vnder the hand of said Burnham & James Coats bearing date the 13^th of Oct^o 1670 & also a receipt of Benjamin Cotman relating therevnto bearing Date the Second day of December 1670 & for all Damage susteyned for want thereof with other due damages according to Attachm^t Dat the 3^d of 9^br 1671 This Acion was by agreem^t of y^e pl^t & William Goose (Master of y^e Katch Susanna whereof three Eight parts were attached as y^e estate of y^e Defend^t) & Leaue from the Court now tryed & . . . the Jurie . . . found for the plantiffe sixty eight pounds fiueteene shillings in siluer & costs of Court forty fowre shillings & tenn pence.

Bucknell acknowl^d a Judgm^t

Samuell Bucknell of Boston Cooper appeared in Court & acknowledged a Judgment against himselfe & Estate of Eleuen pounds twelue Shillings in English goods according to bill To Thomas Wiborne assigne of John Brian of Cittuate

Execucion Issued forth y^e 10^th of 9^br 1671.

Barth^o v. Turill

William Bartholameu Attourney to Major Nehemiah Bourne pl^t ags^t Dan: Turill defend^t according to Attachm^t Dat y^e 26^th of Octo^br 1671 [9] the plantiff not producing any procuracion or power from s^d major Bourne was declared nonsuited.

Administration to y^e Rev^d Jn^o Allens Estate

Power of Administration to the Estate late m^r John Allens pastor of the Church of Christ at Dedham & of M^rs Katharine Allen his late wife both deceased is granted to Major Eliazer Lusher M^r Joseph Dudley & Samuell Hunting who are Ordered to dispose of the said Estates according to the Last will of the said M^r Allen & the Order giuen by the said M^rs Allen after the death of M^r Allen aforesaid soe far as the said order agree w^th M^r Allens will which is proued in Court

Eliz^a Smith Presented

Elizabeth Smith presented for selling strong liquors without Licence the Court orders that she put in bond of good behauior according to Law or bee comitted to prison.

Ri: Burnum Presented

Richard Barnum presented for disorders in his howse & reflectiue speeches to the constable that made inquiry about it, y^e said Barnum appeared & owned & acknowledged his Euill & presented a humble peticion to the Court all which beeing considered the Court Sentanc^d him to be Admonis^d & pay fees of Court.

Peter Egertonn & His Wiues Presentm^t

Peter Egerton & Clemence his wife presented for comitting Fornication before Marriage they appeared & acknowledged their Euill in a humble peticion. The Court Sentenc^d them to pay fiue pounds in Money fine to the County & fees of Court standing comitted till the Sentence be perform^d.

Jn^o Chandl^r Presented

John Chandler of Roxbury presented for selling beere & Cidar (vpon publique fame) without Licence espetially vpon & about y^e Last Court Day of Elextion & the Last Generall Trayning dayes at Boston the presentmen^t not beeing fully prou^d the Court sentenc^d him to be Admonish^d & pay fees of Court.

Brantry Presented

Brantry Towne beeing presented for insufitiency of the Bridge ouer Manaticott Riuer Deacon Bass appeared for the Towne & declared publiquely in Court that it was mended.

Ri: & Martha Hall Presented

Richard Hall & Martha his wife presented for fornicacion. The Court was informed they were gon to hauarell & Ordered a spetiall warr^t to be Issued out for their appearance at the next Court.

Christopher & Martha Wheaton Presented

Christopher Wheaton & Martha his wife presented for fornicacion. The Court beeing Inform^d that the man was at sea respited his presentment till the next Court.

Mary Huchins Sentenced

Mary Huchins complained of for disorderly cariages in her howse The Court Orders that she put in suerties for her good behauior.

Paul Hall Presented

Paul Hall presented for liueing from his wife who is in England, hee appeared in Court & declared that hee was inform^d that his wife is dead the Court Ordered him to repaire to the Last place of her aboade or bring Certificate that she is dead & pay fees of Court

Jeffery Richardson bound to good behauior

Jeffery Richardson bound ouer to this Court on suspicion of breaking open the warehouse of John Pincheon Ju^r w^ch not beeing prou^d but only beeing a night walker the Court Sentenc^d him to be bound to the good behauior & pay fees of Court & [10] accordingly the said Jeffery Richardson in tenn pounds of prinsipall & John Cowell & William Read in fiue pounds apiece as suerties acknowledged themselues bound to the tresurer of the County of Suffolke on condicion that the said Jeffery Richardson shall bee of good behauior & appeare at the next Court of this County.

W^m Read bound to good behauior

William Read Jun^r bound ouer to this Court for Suspicion of breaking open Jn^o Pincheon Jun^r his warehowse the Court not finding suffitient Euidence against him yet beeing Jellouse of him by reason of his night walking & seuerall other suspitiose carriages the Court sentanc^d him to be bound to the good behauior & accordingly the said william Read in tenn pounds as prinsipall & William Read sen^r in fiue pounds & John Cowell in fiue pounds acknowledged themselues joyntly & seuerally bound to the tresurer of the County of Suffolke on condicion that the abouesaid William Read shall be of good behauior & appeare at the next Court of this County.

Hanna Stewards Sent^a

Hannah Steward convicted for stealing seuerall goods from M^rs Sarah Pickering her Mistris she confest the fact The Court sentanc^d her to pay threefold according to Law the goods to be return^d & be part thereof, & pay fees of Court & prison standing comitted till the sentance be perform^d.

Nestfield whipt

Joseph Nestfeild marriner convicted for violently offering abuse to Abigaile Johnson in a Laciuiose manner the Court findeing itt fully prou^d sentanc^d him to be whipt with thirty-nine stripes seuerely laid on payeing fees of Court & prison Standing comitted till the sentance be perform^d.

[Philip Harris]

Phillip Harris marriner convicted for stealing forty nine shillings & six pence from Mathew Gross out of his briches pocketts on board his Lighter for w^ch he fled & by vertue of a fiue & cry overtooke & return^t the Court sentanc^d him y^e s^d Renew (sic) to pay threefold according to Law, w^th fees of Court & prizon standing comitted till the Sentance be perform^d.

Renew sent^a

Peter Renew convicted for stealing money as by Euidence appears the Court sentanc^t him to pay threefold according to Law & fees of Court & prizon standing comitted till the sentance be perform^d.

Ord^r about Phil: Edwards Estate

Vpon the request of William Holliway Attornney to Abiah Edwards the right heir to y^e Estate of Phillip Edwards late of Dorchester, deceased, the Court orders William Trescott (who Administred on aforesaid Estate) deliuer it up to the abouesaid Holloway, he the said Holloway giueing security to this Court for the vallue that it may be to the vse of the right heir aboues^d.

[Mary Wilmore]

Mary Wilmore was by Order of this Court discharg^d from Prison [11]

Order about Chandler

The Court orders that the Marshall instate Samuell Chandler (who married the late widdow Wormall) into the thirds of the Estate sued for according to the returne of the Comitte (that was appoynted to view the howses & ground) bearing date y^e 4^th of y^e 12 m^o 1670.

Ord^r about a Comitte for M^rs Lorin

Upon the Peticion of M^rs Lorin of Hull & her sonns to this Court for the setling of the Estate of her late husband the Court desires & appoynts Jn^o Leuerett esq^r Dep^t Gou^r W^m Stoughton esq^r & Cap^t W^m Dauis to be a comitte to repair thither & Examine all matters relating to the Diuicion of abouesaid estate & call all persons before them conserned & endeauor a settlement thereof making returne heereof to the next County Court & the Dep^t Gou^r to Appoynt tyme & place & the Clerke to furnishe them with all papers that are vpon Record relating to said Estate.

Casy discharg^d

John Casy Taylor was by order of this Court discharg^d from his Administracion on y^e Estate of Doct^r Ralph Howser late of Jamaica Deceased.

Reasons shoos return^d

The Court Orders that Samuell Reason have his shoos return^d that was taken from him by Obadiah Emins & y^e rest of the sealers of Leather in Boston

Tuder comitted

Upon complaint made against John Tuder of seuerall incoradgeing speeches he gaue to y^e persons in Charlestowne Ferry boat by w^ch he indeauored to forward y^e Escape of one Wheeler who violently (with sword Drawne & pistoll cockt) ran from ye Constable the Court sentanc^d him y^e s^d Tuder to be comitted to prizon till he finde bonds for his good behauior.

Hill sentanc^d

Thomas Hill convicted for abuseing Constable Brading who vpon notice of disorder at a publique howse repayred thither to the cognisance of itt who carrid s^d hill before the Govern^r where he also behaued himselfe rudely the Court Sentanc^d him to be whipt with tenn stripes or pay fiue pounds fine in Money to y^e County paying fees of Court & prison standing comitted till the sent^a be perform^d.

Pratt, pardon^d 40^s

Vpon the humble Peticion of Tymothy Pratt the Court remitts him forty shillings of his late fine.

The Court Adjour^d till y^e 9^th of 9^m

The Court mett according to Adjournm^t y^e 9^th of 9m^o 1671.

Present

RI: Bellingham esq^r Gou^r	Edw: Tyng
Jn^o Leuerett esq^r Dep^t Gou^r	W^m: Stoughton

The Court sees meete to continue John Jacob of Hingham to keepe a howse of publique Entertaynem^t vntill Aprill Court next he giueing security according to Law & not to entertayne y^e young people of the Towne.

Administracion to Deerings estate

Administracion to the Estate of Samuell Deering late of Brantry deceased is granted to Mary Deering his relict shee bringing in an Inventory of said Estate & giue Security to Administer according to Law.

Brantry constables sworne

Martin Sanders & Caleb Hubbard beeing chosen Constables for Brantry were sworne in Court

Jn^o Wiswall Jun^r sent^a

John Wiswall Jun^r complained of for forwarding the Escape of Cap^t wheeler he appeared in Court where shew^d a contemptuouse cariage & ground of suspicion of y^e fact aboues^d the Court sentanc^d him to be bound to good behauior Standing comitted [12] vntill the Sentance be perform^d & accordingly the said John Wiswall Jun^r in forty pounds as prinsipall & John Woodmancy & Nathaniell Dauenport as suerties in twenty pounds apeice acknowledged themselues bound to the tresurer of the County of Suffolke on condicion that the said Wiswall shall bee of good behauior & appeare at the next Court of this County.

Hanna Hull dismis^d of Administracion

The Court Dismisseth the Widdow Hannah Hull from y^e Administracion granted her upon the Estate of her Late Husband Thomas Hull of Boston Cooper she haueing compounded with the Creditors thereof

The Court Adjourned to the 23^th Instant

The Court met according to Adjournm^t y^e 23^th of 9m^o 1671.

Present

Ri: Bellingham esq^r Gou^r	Major Eli: Lusher
Jn^o Leuerett esqr D^p Gou^r	Edward Tyng
	W^m Stoughton

Administracion to the estate of John Addams Late of London, deceased is granted to Aphra his relict she bringing in an Inventory of said estate & giues security to Administer according to Law.

A warr^t for Cap^t Price

The Court Orders that a warr^t be Issued out by the Clerke of this Court to Cap^t Walter Price of Salem to sumon him to the next Court of this County to Answere the complaint of L^t Richard Cooke according to Attachm^t

[Copies of writ and return are in S. F. 1068.1. See case of Cooke v. Broughton, in session of 30 January 1671 /72, below, p. 65.]

Webb sentanc^d

Christopher Webb beeing convicted that he hath beene a disturber of the peace of the Church of Brantry seuerall years Last past & by his acting an abettor of the Inhabitants in Invading the rights & priuiledges of the Church contrary to Law the Court sentances him to pay fiue pounds fine to the County & to stand henceforward disfranchised during the pleasure of this Court & to be bound to his good behauior in fiuety pounds himselfe & twenty fiue pounds apeice two suerties & pay fees of Court standing comitted till the sentance be perform^d & accordingly Christopher Web as prinsipall in fiuety pounds & William Needeham & Stephen Paine as suerties in twenty fiue pounds apeice acknowledged themselues joyntly & seuerally bound to the Tresurer of the County of Suffolk on condicion that Christopher Webb shall bee of good behauior & appeare at the next Court of this County.

M^r Fisks ord^r to preach at Brantry

The Court haueing taken into consideracion the many means y^t haue beene vsed with the Church of Brantry & hitherto nothing done to efect as to the obtayning the Ordinances of Christ amongst them, The Court Orders & desiries M^r Moses Fiske to improue his Labours in preaching the word at Brantry vntill the Church there agree & obtayne suply for the worke of the Ministry or this Court take further Order.

Norden Licenc^d

Vpon Certificate from the Selectmen of Boston Licence is granted to Samuell Norden to sell Beere & keepe a howse of publique entertaynement till aprill Court next & said Samuell Norden in tenn pounds as prinsipall & Edmond Jaxson & William Smith as suerties in fiue pounds apeice acknowledged themselues bound to the tresurer of the County of Suffolke on condicion that the said Samuell Norden shall observe the Law title Inkeepers with its Addicions. [13]

[The title “In-keepers,” in fifteen articles with four additions, covers seven pages (79–85) in The General Laws and Liberties of 1672. One addition, in 1664, directed toward “the great increase of prophaness . . . especially of the younger sort” imposed a fine of 5s for “singing rudely or making a noise to the disturbance of the Family, or any other Guests in any place of Publick Entertainment.” The latest addition, of 1670, required selectmen to warn innkeepers against entertaining noted drunkards and tipplers, under penalty of 20s.]

Ord^r about Faulkner & Huchins

The Court orders that if Dauid Faulkner & Mary Huchins come not to the Clerke of this Court (to giue in their bonds for the good behavior) when sent for that vpon such default they shall be sent to prizon.

Webs fine respited

Vpon the humble mocion of Christoper Webb to this Court y^e Court was pleased to respit his Fine till next Court.

Ord^r about Deacons estate in Arthur Masons hands & y^e Orphant

Vpon the humble peticion of Hope Allen & John Saffin Attourneys to & for William Shute & Rachell his wife the Late relict of Joseph Deacons now resident in Jamaica relating to some Estate & an Orphant named Mary Burroughs that said Deacons left in y^e hands & to the Care of Arthur Mason at his last departure from hence to Jamaica before he dyed, both parties beeing heard who left themselues to the Courts determinacion who heard the Ecception to abouesaid Masons acc^t together with his reply, read & spoken to & haueing Examin^d the will & the Orphant before y^m

The Court appoynts Arthur Mason to be guardian to s^d Orphant Mary Burroughs Daughter in Law to the abouesaid Joseph Deacons who left her in trust with him as aboue said vntill shee come to Age to choose for herselfe & that this Court take further Order, & for that there is an Estate of said Deacons in Arthur Masons hands, hee the said Mason is Ordered to giue security to this Court of six hundred pounds to bring up the Child & to pay the sume of three hundred pound in money to her at age or Day of Marriage which shall first happen according to will & in case she Dye before that tyme the said three hundred pounds are to be deliuered to Rachell the relict of said Deacons or her Order & what now there is more of the Estate of said Deacons in the hands of said Mason then the three hundred pounds abouesaid hee is to deliuer it to William Shute that Married the relict of said Deacons or his order.

Oxman acknowledgeth a Judgm^t to C^p Curwin

William Oxman appeared before Richard Bellingham esq^r Gou^r & Edward Tyng esq^r the 8^th of January 1671 & acknowledged a Judgment against himselfe & Estate to Cap^t George Curwin of Salem for fiuety two pounds eighteene shillings & one penny in good marchantable Dry Fish & refuge fish & oyle at price currant according to bill Dated the 1^st of January 1671 this was thus acknowledged as abouesaid as Attests

Freegrace Bendall Cler.

Execucion Issued y^e 2 of y^e 1^st m^o 16⁷¹/₇₂

At the Session of y^e County Court afores^d

Vpon due proclamacion made the persons heereafter Named were free^d from their bonds of good Behauior, viz^t James Steward of Weymouth, Joshua Nash, John Vering, George Burrill, Widdow Alice Thomas, William Evans, Rebecca Thomas

The Returne of the Committee about setling John Kingsbury’s Estate allowed by the Court is lodged in the file of October Actions in y^e yeare 1671. [14]

1 It will be understood that all matter in this type is quoted.

2 Massachusetts Bay Records, ii. 38.

3 Which then included Muddy River (Brookline), Winnisimet (Chelsea), Rumney Marsh (Revere), and what is now Winthrop.

4 The Suffolk County of 1680 included the following towns and cities which were incorporated later than 1680: Bellingham, Medway, Franklin, Wrentham, Foxborough, Walpole, Sharon, Stoughton, Randolph, Canton, Quincy, Cohasset, Dover, Holbrook, Millis, Avon, Plainville, Norwood, Westwood, Wellesley, Norfolk, and Needham. The Hingham of 1680 may have included parts of present-day Abington, Norwell, and Scituate; while the Braintree of that day may have included parts of modern Brockton and Abington. (I am indebted to Albert H. Hall, Esq., for much of this information.)

5 But Cambridge, in Middlesex County, included the land on the right bank of the Charles that later became Brighton and Newton.

6 A Century of Population Growth (Bureau of the Census, 1909), p. 11.

7 Massachusetts Bay Records, i. 169.

8 See our Publications, xviii. 56 n¹.

9 William H. Whitmore, Ed., The Colonial Laws of Massachusetts, Reprinted from the Edition of 1660, with the Supplements to 1672, p. 132 (cited hereafter as Whitmore, Colonial Laws, 1660–1672); Whitmore, Ed., The Colonial Laws of Massachusetts, Reprinted from the Edition of 1672, with the Supplements through 1086, p. 21 (cited hereafter as Whitmore, Colonial Laws, 1672–1686).

10 H. L. Osgood, American Colonies in the Seventeenth Century, i. 190.

11 Norfolk County was entirely distinct from the present Massachusetts county of that name. It was organized in 1643 for the benefit of the recently annexed towns in New Hampshire, and also included Salisbury and Haverhill (Mass. Bay Records, n. 38); Pascataqua County apparently was carved out of Norfolk when the laws were revised (Whitmore, Colonial Laws, 1660–1672, p. 144). New Hampshire was organized as a separate Royal Province in January, 1679/80; and on February 4, the General Court of Massachusetts Bay recognized this unwelcome fact by relinquishing the Counties of Norfolk and Pascataqua, and declaring the towns of Salisbury, Amesbury, and Haverhill annexed to Essex County (Mass. Bay Records, v. 264).

12 Whitmore, Colonial Laws, 1672–1686, pp. 218, 221.

13 Osgood, i. 190–191.

14 Osgood, r., pp. 191–192; Whitmore, Colonial Laws, 1660–1672, pp. 132–133; Whitmore, Colonial Laws, 1672–1686, pp. 20–21. Several cases involving proceedings in the Cominissioners’ Court are indexed in this book under Cominissioners’ Court, e.g., Golden v. Clements, pp. 13–17.

15 Whitmore, Colonial Laws, 1672–1686, pp. 37–38. See this introduction, Conflict of Laws.

16 Whitmore, Colonial Laws, 1672–1686, pp. 28–29.

17 Possibly the petition of Mrs. Naylor against her notorious husband, referred by the County Court to the Court of Assistants (below, p. 96; and see Michelson v. Browne, p. 103) asked for a divorce. The divorced Whartons appear on p. 914.

18 Whitmore, Colonial Laws, 1672–1686, p. 36. The “Capital Lawes” in this compilation were still those of the Body of Liberties: idolatry, witchcraft, blasphemy, murder, manslaughter, bestiality, sodomy, adultery, man stealing, false witness, and conspiracy, with the addition of rape, cursing or smiting parents, or being a stubborn or rebellious son. The last two never seem to have been enforced, and there were no laws on the statute book for which loss of a “member” or banishment were prescribed. (Banishment was, however, imposed in some cases.) The inclusion of blasphemy among the capital laws makes it difficult to explain why the Suffolk County Court took cognizance of a case of that nature (below, pp. 114–115).

19 Whitmore, Colonial Laws, 1672–1686, p. 34.

20 Whitmore, Colonial Laws, 1672–1686, p. 3.

21 Id., pp. 34, 152.

22 Id., p. 38.

23 Whitmore, Colonial Laws, 1660–1672, p. 232; W^rhitmore, Colonial Laws, 1672–1686, pp. 206, 212, 272, 288, 294, 313.

24 Woody v. Harrison, pp. 654–655.

25 Patten v. Dyer, p. 215; Patten v. Woody, p. 215; Belcher v. Braintree Selectmen, p. 776.

26 Whitmore, Colonial Laws, 1672–1686, p. 152.

27 See Holowells v. Butler, at p. 1036; Simpson v. Salter, pp. 1040–1041.

28 Patten v. Winsley, at p. 384.

29 Bridgham Estate, pp. 848–849; Holowells v. Butler, at pp. 1033–1034.

30 Below, pp. 788–791.

31 Lechford, Plaine Dealing.

32 Winthrop’s Journal (1908 ed.) ii. 37.

33 The Laws and Liberties of Massachusetts, Reprinted from the 1648 Edition (1929).

34 Whitmore, Colonial Laws, 1660–1672, p. 141, title Counsel, Advice.

35 Id., p. 224.

36 Whitmore, Colonial Laws, 1672–1686, p. 211. See also title Attachments, Summons, sec. 3, id., pp. 7–8.

37 Introduction to Proceedings of the Court of Appeals of Maryland, 1695–1729.

38 See Patten’s power of attorney from England, pp. 377–378; Addington v. Timberlak, p. 242, where Addington was attorney for a Rhode Islander.

39 Batt v. Harris, pp. 539–542. Judge Bond’s introduction mentions a feminine attorney in Maryland, who has been heralded as the first woman attorney at law in America.

40 Below, pp. 1153–1157. For other illustrations of lawyerlike arguments, see Patten v. Dyer, at pp. 373–375; Purkis v. Winder, at p. 1004; Danson v. Eliott, at p. 1090

41 Below, pp. 761, 766.

42 Order about Cornish, pp. 560–561.

43 Hutchinson, Atty, p. 95.

44 Below, pp. 14–15.

45 Below, pp. 295–296.

46 Below, pp. 388–390.

47 Below, pp. 550–554.

48 Below, pp. 563–564.

49 Below, pp. 451–453.

50 Below, pp. 1042–1044.

51 Below, pp. 899–900, 1047.

52 Below, pp. 1170–1171.

53 Below, p. 71. A few years after these volumes terminate, the Boston press began to issue printed forms and blanks for bonds and other legal documents. Broadsides, Ballads, &c., printed in Massachusetts (Coll. Mass. Hist. Soc., LXXV), pp. vii, 16. The earliest known copy of a printed bond is dated 1685, and is found in the Massachusetts Archives, XL. 529; the earliest found in the Suffolk Files is dated 1688.

54 History of Massachusetts Bay, i. 323 n.

55 Leverett, p. 312; Palmer, p. 1069; Leverett, p. 1153; Dowden, pp. 890–894.

56 See Ashton v. Gibbs, pp. 347–358; Whetcomb v. Gibbs, p. 512; Gibbs v. Whetcomb, pp. 587–592.

57 Below, p. 186.

58 Bellingham v. Smith, p. 248; Wharton v. Walley, pp. 745–746.

59 In 1686, Andros obliged attorneys to take oath upon admission to the bar. In 1701, a statute required such an oath. Warren, History of the American Bar (1911), pp. 72, 77–78.

60 History of Massachusetts Bay, i. 269–270 n. See also Dictionary of American Biography, ii. 166.

61 Legal Development in Colonial Massachusetts, 1630–1686, p. 144; see also pp. 5, 66 ff.

62 “The English Common Law in the Early American Colonies,” in Select Essays in Anglo-American Legal History, i. 367 ff. See also R. B. Morris, “Massachusetts and the Common Law: the Declaration of 1646,” American Historical Review, xxxi. 443.

63 Review of “Laws and Liberties of 1648,” in New England Quarterly, iii. 157–158.

64 Hilkey, pp. 66–67.

65 Poore, Federal and State Constitutions, Colonial Charters, etc., i. 940.

66 Below, pp. 373–376.

67 Darvall v. Dudson, at p. 366. See also Cooke v. Broughton, at p. 71.

68 Stuart and Ludden, at p. 406; Newcomb at p. 696. Title Man-slaughter in the revisions of 1660 and 1672 covered only killing in self-defense, etc.

69 Introduction to Proceedings of the Court of Appeals of Maryland, 1695–1729.

70 Scottow v. Shapleigh, at p. 1112.

71 Massachusetts Bay Records, II. 212

72 Below, p. 1105.

73 Mead v. Turner, pp. 36–43. An order of 1650 by the General Court as to this book is quoted by Warren, History of the American Bar, p. 71.

74 See this introduction, Attorneys and Magistrates.

75 Mittimus, pp. 191, 487; supersedeas, pp. 788–791.

76 Below, p. 298; see also for Latin phrases, pp. 533, 534, 536, 769.

77 Below, p. 163.

78 Ashton v. Gibbs, at pp. 347, 350, 351.

79 Patten v. Winsley, pp. 377–384.

80 Douglas Estate, pp. 1104–1105.

81 “King’s Law and Local Custom in Seventeenth-Century New England,” Columbia Law Review, XXXI. 416.

82 Hilkey, p. 68.

83 Earl of Oxford’s Case, 1 Chancery Rep. 1. This reference was suggested by Dean Pound as was also King v. University of Cambridge, 1 Strange 557, 567, where Chief Justice Pratt uses a Biblical illustration as late as 1736: “The objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man upon such an occasion, that even God himself did not pass sentence upon Adam, before he was called upon to make his defence, Adam (says God) where art thou? Hast thou not eaten of the tree, whereof I commanded thee that thou shouldest not eat? And the same question was put to Eve also.” For other English examples, see Warren, History of the American Bar, p. 65 n; Ratcliff’s Case, 3 Coke Rep. 40a, b; Winfield, Chief Sources of English Legal History, p. 146.

84 Below, pp. 203, 309, 535, 892–893, 1116.

85 Below, p. 52.

86 Below, p. 568

87 Below, p. 624.

88 Below, p. 1155

89 Below, pp. 303–304.

90 Below, p. 615

91 Below, pp. 404–408.

92 Below, pp. 1147–1148.

93 Below, at pp. 1034, 1037. The same Biblical passage is unsuccessfully cited in Douglas Est., at 1105, as binding, in accordance with the preamble, in order to fill the gap in title Wills, which gave a decedent’s property to his heirs without defining who they were.

94 On the distinction between this principle of judicial consistency and the modern principle of the binding force of judicial decisions, see Winfield, Chief Sources of English Legal History, pp. 149 f. Some of the passages he cites from the Year-Books, of oral court-room discussion mentioning past cases, resemble the Massachusetts material described below. See also Lewis, “The History of Judicial Precedent,” Law Quarterly Review, xlvi. 341.

95 Below, at pp. 70–71.

96 Below, at pp. 365, 367.

97 Hutchinson v. Blake, pp. 271–274.

98 Below, at p. 714.

99 Below, pp. 797–799.

100 Below, at pp. 654–655.

101 Whitmore, Colonial Laws, 1672–1686, p. 38. See this introduction, Appellate Courts.

102 Peck v. Bonner, pp. 31–36.

103 Ashton v. Gibbs, pp. 347–358.

104 Below, pp. 99–100, 131–133, 201.

105 Clarke v. Nicholls, pp. 5–9, 98–99

106 Dinely v. Steenwick, pp. 167–173, 246–247, 292–293; Dinely, p. 234; Davis v. Dinely, pp. 568–569.

107 Clarke v. Lamb, pp. 1131–1136.

108 Below, pp. 1029–1037.

109 Pincheon v. Collecot, pp. 319–322.

110 Whitmore, Colonial Laws, 1672–1686, p. 9. See Kelly v. Blower, p. 13; Atkinson v. Williams, pp. 53–54; and other entries indexed under Barratry.

111 See this introduction, Attorneys and Magistrates.

112 Cooke v. Broughton, at pp. 70–71. The court nevertheless nullified the deed.

113 Hodges, at p. 190.

114 The same conclusion is stated by Washburn, Sketches of the Judicial History of Massachusetts (1840), p. 48. Goebel observes the same fact in Plymouth Colony and attributes it to the influence of the English county courts. “King’s Law and Local Custom,” Columbia Law Review xxxi 437–438

115 Three different English reporters have been examined for cases in the year 1670–1671. Out of twenty-four cases in 1 T. Raymond 189–218, only three are case; four are assumpsit, one general assumpsit, seven debt, three trespass, four replevin, one covenant, one words (slander). Out of twenty-four cases in 1 Levinz 285–301, only four are case; eight are debt, four assumpsit, two general assumpsit, and there is one each for trespass, ejectment, words (slander), account, trover, and covenant. Out of twenty-four cases beginning 2 Saunders 73, nine are case, a somewhat larger proportion; nine are debt, two ejectment, three assumpsit, and one trover.

116 For example, Leverett v. Ely, p. 4; Greenough v. Hazelden, p. 9; Hutchinson v. Douty, p. 11; Thayre v. Rose, pp. 322–325; Hudson v. George, p. 514.

117 Parker v. Champeroone and Leverett v. Ely.

118 Examples are Bacon v. Gold, p. 12; Oliver v. Woodmancy, p. 17; Cutler v. Hersy, pp. 44–45; Parker v. Corbyn, p. 316; Leverett v. Dowden, p. 882.

119 Sheafe v. Hawkins, pp. 1–3.

120 Anderson v. Cox, pp. 204–205; 287, Gross v. Pearce, p. 275; Clarke v. Clement, p. 636.

121 For example, Bucher v. Bastar, p. 17; Hastings v. Parks, pp. 97–98; Hudson v. Skinner, p. 290; Raynsfords v. Green, p. 853; Leverett v. Fox, p. 935.

122 Hudson v. Hunt, pp. 289–290.

123 Sanders v. Harris, p. 640.

124 Woodcock v. Sutton, p. 773.

125 Brackett v. Clarke, pp. 45–52.

126 Leeds v. Richards, p. 100; Bill v. Wayte, p. 271.

127 Goodman v. Cocke, pp. 200–201.

128 Mosely v. Mason, p. 65.

129 Lidgett v. Collins, pp. 43–44; Smith v. Carrington, p. 155.

130 Sandys v. Locke, pp. 205–209, Hutchinson v. Blake, pp. 271–274, are examples, and others will be found in the Index. See the form of the writ in Wbitmore, Colonial Laws, 1672–1686, p. 162.

131 Marsh v. Machee, p. 43; Baker v. Joy, p. 134.

132 Smith v. Cartwright, p. 10.

133 Dudson v. Darvall, pp. 385–387. Actions of defamation: MackDaniel v. Hale, p. 818, and Legg v. Flood, p. 880. Case upon defamation: Barnes v. Harwood, p. 984.

134 MackDaniel v. Hale, p. 818.

135 Below, p. 13.

136 Francks v. Ely, p. 135; Dudson v. Darvall, pp. 385–387.

137 Wbitmore, Colonial Laws, 1672–1686, p.

138 Id, P. 7.

139 See Jones v. Crispe, at p. 458.

140 Mass. Perpetual Laws, 1780–1800 (1801), i. 199.

141 No. 27. Reprinted in Whitmore’s Bibliographical Sketch of the Laws of the Massachusetts Colony (1630–1686), p. 39.

142 Massachusetts Bay Records, ii. 219.

143 Sheafe v. Palmer at pp. 829–830; Scottow v. Shapleigh, at pp. 1114–1116; Dudley v. Paige, at p. 1120, called “plea”; Townsend v. Williams, at p. 1127, in Court of Assistants; Cooke v. Oliver, at pp. 1146–1148. A declaration is mentioned in Gibbs v. Whetcomb, at p. 588.

144 Cooke v. Broughton, at p. 68; Cooke v. Oliver, at pp. 1148–1149.

145 Mead v. Turner, at p. 39; Dudley v. Paige, at p. 1120.

146 Whitmore, Colonial Laws, 1672–1686, p. 211.

147 Id., p. 7.

148 Robinson, “Anticipations under the Commonwealth of Changes in the Law,” Select Essays in Anglo-American Legal History, i. 480.

149 Plumb v. Parke, p. 146.

150 Henchman v. Rock, at p. 197; Giffard v. Leverett, p. 747; Saffin v. Jesson, pp. 774–775; Lynde v. Haughton, p. 1009.

151 Below, pp. 417–420.

152 Porter v. Appleton, pp. 1137–1139.

153 Below, p. 69.

154 Below, pp. 173, 760.

155 Cooke v. Oliver, pp. 1144–1150

156 Parmiter v. Perry, p. 294.

157 Cooke v. Broughton, at p. 73; Clarke v. Nicholls, at p. 79; Willys v. Baker, pp. 1073–1074.

158 Blackstone, Commentaries, iii. 418.

159 Oxenbridge Complaint, p. 437.

160 Sands v. Hutchinson, pp. 460–461.

161 Whaley, p. 1164.

162 Harris v. Edsall, p. 102; Scottow v. Felton, pp. 317–318; Lytherland v. Brown, pp. 500–504; Lytherland v. Veren, p. 529; Fogg v. Williams, pp. 656–660; Hukely to Rawson, pp. 677–678.

163 Select Essays in Anglo-American Legal History, i. 375.

164 Whitmore, Colonial Laws, 1672–1686, p. 6.

165 Walley v. Waite, pp. 802–803.

166 Below, pp. 139, 657.

167 Richardson and Read, p. 117.

168 Man v. Hews, p. 1058.

169 Bleaze v. Edwards, p. 925.

170 Title Tryals, Whitmore, Colonial Laws, 1672–1686, p. 152.

171 Mead v. Turner, at p. 39.

172 More v. Jones, pp. 156–158.

173 Dudley v. Paige, at pp. 1120–1121; Townsend v. Williams, at p. 1127. See also Sands v. Hutchinson, pp. 460–461, petition for respite of execution.

174 Hutchinson v. Paine, at p. 635.

175 Title Appeal, sec. 2; Snelling, pp. 1103–1104; Townsend v. Williams, at p. 1130.

176 Title Appeal, sec. 2; Jones v. Crispe, at p. 459; Flood v. Legg, at p. 859; Lidgett v. Smith, pp. 876–879; Hill v. Obbinson, at p. 1095; Cooke v. Oliver, at p. 1148.

177 Brattle v. Knight, at p. 799.

178 Hodges, pp. 190–193; Stuart and Ludden, pp. 404–408.

179 Hutchinson, p. 95.

180 Dowden, pp. 890–894.

181 Clarke v. Nicholls, pp. 5–9.

182 Sands v. Hutchinson, pp. 460–461.

183 Starkey, p. 258—abduction; Dobleday, p. 626—lasciviousness; Rigby, p. 940—drinking and wife-beating.

184 Stuart and Ludden, at p. 408—manslaughter. On early Massachusetts criminal trials without right to a jury, see Frankfurter and Corcoran, “Petty Federal Offences etc.,” Harvard Law Review xxxrx. 938–942.

185 In the Court of Assistants; Brattle v. Knight, at p. 799.

186 Kent v. Phillips, pp. 929–930; Savage v. Hutchinson, p. 1039; Maryon v. Wright, pp. 1121–1122; Indicott v. Kent, pp. 1140, 1144.

187 Hutchinson v. Sands, p. 470.

188 Cutler v. Jacob, p. 530.

189 Indicott, p. 1101.

190 Thayer, Preliminary Treatise on Evidence, pp. 130–132.

191 Skinner v. Lowell, at p. 391.

192 Legg v. Flood, pp. 1054–1055.

193 Title Jurors, Juries, sec. 5; Middlecott v. Scotto, pp. 821–822.

194 Batt v. Harris, at p. 540; see the form of the juror’s oath in Whitmore, Colonial Laws, 1672–1686, p. 167.

195 Clarke v. Nicholls, pp. 5–9, 98–99.

196 Bucher v. Bastar, p. 17; Checkly v. Williams, p. 372.

197 Lidgett v. Collins, pp. 43–44.

198 Bellingham Executors v. Smith, pp. 240–241; Middlecott v. Scotto, pp. 821–822.

199 Jones v. Crispe, at p. 459.

200. Hill v. Obbinson, at p. 1095.

201 Jay v. Wharton, pp. 577–578; Winslow v. Bendall, pp. 611–612; Norman v. Skinnar, pp. 803–806; Man v. Wing, p. 1039; Paige v. West, pp. 1080–1083.

202 Hutchinson v. Paine, at p. 536; see title Jurors, Juries, sec. 1, and this introduction, Equity.

203 Gibbs v. Whetcomb, pp. 587–592. The preceding cases leading up to the dispute are Edmunds, p. 486; Waters, pp. 490, 493; Whetcomb v. Gibbs, p. 512.

204 New England Quarterly, v. 812–818.

205 Lawton and Bonner’s Bond, at pp. 180–181, see also Lawton, at p. 304; Jay v. Woodmansey, at p. 577; Cooke v. Oliver, at p. 1150. The statute of May 15, 1672 (Whitmore, Colonial Laws, 1672–1686, p. 201) is not absolutely clear that only a jury in the Court of Assistants could be attainted whereas the verdict of a County Court jury had to be accepted by the bench. Such is the interpretation of Hilkey (Legal Development in Colonial Massachusetts, pp. 79–80), but neither Thayer (Preliminary Treatise on Evidence, p. 173 n) nor Reinsch (in Select Essays in Anglo-American Legal History, I. 379) speaks of such a limitation. It seems possible that the “unless” clause in the statute of 1672 modifies the whole preceding portion of the sentence and not merely the preceding clause. The statute of September 10, 1684, modifying attaints (Whitmore, Colonial Laws, 1672–1686, p. 319), throws no light on the problem. The three attaints in this book, cited above, were against juries in the Court of Assistants. Unquestionably, the attaint was always tried by a jury of twenty-four in the Court of Assistants.

206 J. H. Wigmore, Treatise on Evidence (2d ed. 1923) i. 108.

207 Title Witnesses, sec. 1, enacted in 1641.

208 Waldren v. Smith, at p. 203; Stoughton v. Bishops, at p. 297; Noakes, pp. 308–310; Hutchinson v. Paine, pp. 530–536; Dowden, pp. 890–894. On the history of the numerical system of counting witnesses, which England was already abandoning, see Wigmore, iv. 300.

209 Golden v. Clements, at p. 15.

210 Title Indians, sec. 10; Prince, p. 181; Penniman, p. 328; Eaton, p. 491.

211 Mason, p. 1013.

212 Newcomb pp. 695–697; Clarke v. Lamb, pp. 1134–1135.

213 Massachusetts Bay Records, iv (1). 27.

214 Below, p. 480.

215 Below, pp. 1030–1031.

216 Waldren v. Smith, pp. 202–204; Joy v. Baker, pp. 393–394; Jay v. Woodmancy, pp. 572–577; Batt v. Welds, pp. 614–617; Lidgett v. Smith, pp. 876–879; Cooke v. Oliver, pp. 1144–1150.

217 Below, p. 169.

218 Clarke v. Holmes, pp. 1079–1080; Cooke v. Oliver, at pp. 1144–1145.

219 Purkis v. Winder, pp. 1002–1005.

220 Stoughton v. Bishops, at p. 299; Waldron v. Marshall, at p. 763.

221 Patten v. Winsley, pp. 377–384; Waldron v. Marshall, pp. 759–764; Proutt v. Scarlett, pp. 792–793; Drurey Fined, pp. 837–841; Holowells v. Butler, pp. 1029–1037; Dudley v. Paige, at pp. 1119–1120

222 Woody v. Harrison, at p. 653; Williams v. Fogg, pp. 685–687.

223 Below, pp. 1145–1146.

224 Wigmore, iii. 330 ff.; Woody v. Harrison, pp. 651–656.

225 Wigmore, ii. 662, citing Massachusetts statute of 1882; Cowell, p. 402; Preist, p. 409; Hemaway and Peggy, p. 555; Cox, p. 643; Boulter, p. 719; Butler, pp. 915–916; Childe, p. 939.

226 Trott, p. 222.

227 Cooke v. Oliver, at pp. 1147–1148.

228 Bennett, p. 786; see Waldron v. Marshall, at p. 763.

229 Roscoe Pound, “Puritanism and the Common Law,” American Law Review, XLV. 825, reprinted in his Spirit of the Common Law. Attacks on Chancery under Cromwell are described by Robinson, “Anticipations under the Commonwealth of Changes in the Law,” Select Essays in Anglo-American Legal History, i. 470–472.

230 Hutchinson v. Paine, at p. 536, subsequently discussed.

231 Ashton v. Gibbs, at p. 356; Sharp v. Rider, at p. 363; Patten v. Dyer, at p. 375; Jones v. Crispe, at p. 459.

232 Below, p. 71

233 Below, pp. 530–536, especially, p. 534.

234 See below, p. 4 n. The common term today is “chancerizing.”

235 Parker v. Champeroone, p. 4.

236 Below, pp. 882–883.

237 Below, pp. 1079–1080.

238 Frankes v. Rock, at p. 1049; Dudley v. Paige, at pp. 1120–1121.

239 Below, pp 1137–1139.

240 See Ames, “Specialty Contracts and Equitable Defences,” Harvard Law Review, IX. 49.

241 Below, pp. 530–536. See Williams v. Woodbridge, pp. 767–770, where the defendant unsuccessfully asserted that he was compelled by duress to sign the bond; this defense was probably available in an English common-law court. The same case discusses the assignability of bonds, under a statute, title Bills.

242 Stoughton v. Bishops, pp. 294–299.

243 Below, pp. 788–791

244 Below, p. 885.

245 Dowden, at p. 892. Compare Quincy’s Reports, p. 537 and note.

246 Below, p. 629.

247 Hickson and Bedwell, pp. 442–443; Forrest and Julian Knight, p. 1161.

248 Ex parte Warfield, 40 Texas Criminal Reports 413 (1899); Pound, Cases on Equitable Relief against Defamation (2d ed., 1930) 79 n.

249 Belcher’s Bond, p. 809; Spur, p. 810.

250 Michelson v. Browne, p. 103. See also p. 442.

251 Naylor’s Petition, p. 96. See the discussion of Appellate Courts in this introduction.

252 Baker v. Johnson, p. 392.

253 Thayer v. Paine, pp. 563–564; see also Billing v. Rawson, p. 819.

254 Atherton v. Lockwood, pp. 512–513.

255 Davie v. Hall, pp. 875–876.

256 Skinner v. Lowell, pp. 388–392.

257 Greely v. Hall, pp. 988–989.

258 Bromage v. Genning, 1 Roll. R. 368 (1616).

259 Baildon, Select Cases in Chancery, p. xiv.

260 Cokayn v. Hurst (1458), in Baildon, Select Cases in Chancery, No. 143.

261 Below, pp. 65–78.

262 Cutler v. Cutler, p. 881.

263 Aspinwall v. Evans, p. 981.

264 Parke v. Morrise, pp. 463–464. On the affairs of this charitable trust, see Massachusetts Bay Records, iv (ii). 434, 441, 455–458; v. 5, 22

265 Alford v. Endicott, pp. 726–735.

266 Lamb v. Williams, p. 1051.

267 Fowle v. Stevens, p. 854; Aldredge v. Stevens, p. 854; Wilcocks v. Viall, p. 855.

268 Note by Gray in Quincy’s Reports, p. 537; Woodruff, “Chancery in Massachusetts,” Law Quarterly Review, v. 370, reprinted, with additional material, in Boston University Law Review, ix. 168.

269 Massachusetts Bay Records, v. 477–478.

270 Baker v. Joy, p. 134; Bennet v. Gridley, p. 744; Sedgwick v. Rock, pp. 770–771; Burnes v. Harwood, p. 984; Smith v. Cartwright, p. 10; Tay v. Hawkins, p. 688; Griggs v. Chock, p. 1042; Fogg v. Leverett, p. 689.

271 Marsh v. Machee, p. 43; MackDaniel v. Hale, p. 818.

272 Keen v. Wiswall, p. 1039.

273 Legg v. Flood, p. 880.

274 Clarke v. Kent, pp. 908–909.

275 Scottow v. Shapleigh, pp. 1108–1116

276 Smith v. Cartwright, p. 10. Retractions were ordered in the cases cited in notes 1–4, except Bennet v. Gridley, Tay v. Hawkins, and Fogg v. Leverett.

277 Danson v. Ellitt, p. 1123.

278 See the Hindoo’s comment on the English remedy of damages quoted from Kipling by Pound, “Interests of Personality,” Harvard Law Review, xxviii. 446 n.

279 Id., pp. 364, 449.

280 Burn, Ecclesiastical Law (9th ed., 1842) n. 137–138. This reference was supplied by Dean Pound.

281 Finnish Temperance Society v. Raivaaja, 219 Mass. Reports 28 (1914).

282 Rex v. Penny, 1 Lord Raymond 153 (1697).

283 Holdsworth, History of English Law, v. 211.

284 Below, pp. 992–993.

285 See below, p. 228 n.

286 Below, p. 231; see also Sprague, p. 424.

287 Below, pp. 228–229.

288 Below, p. 232.

289 Below, pp. 237–238; see Bellingham v. Smith, p. 248.

290 Commonwealth v. Canter, 269 Mass. Reports 359 (1929), discussed in Harvard Law Review, xliii. 663–664.

291 Pound, Cases on Equitable Relief against Defamation (2d ed., 1930), p. 13 n.

292 Wainwright, p. 225.

293 Below, p. 235.

294 Below, p. 753.

295 Holdsworth, History of English Law, viii. 449–459.

296 Countess of Shrewsbury’s Case, 5 Coke Reports 13. On the purchase of law books, see Sources of Law in this introduction.

297 Milton v. Eliott, p. 3.

298 Clarke v. Harbour, pp. 736–737.

299 Yardley v. Boden, p. 775.

300 Sheafe v. Palmer, pp. 829–830.

301 Woode v. Chantrell, pp. 159–163.

302 Snelling v. Chantrel, p. 166.

303 See Hay, “Death as a Civil Cause of Action in Massachusetts,” Harvard Law Review, vn. 170.

304 Admiralty Commrs. v. The Amerika, 1917 A. C. 38—marine accident; Panama Railroad v. Rock, 266 United States Reports 209 (1924)—accident in the Canal Zone. See the adverse criticism of these decisions in Harvard Law Review, xxx. 742; xxxviii. 499. Negligent death at sea is discussed by Whitelock, “Extra-territorial Marine Torts,” id., xxii. 403.

305 Title Bridges, Whitmore, Colonial Laws, 1672–1686, p. 12, enacted in 1648.

306 Below, p. 160.

307 Below, pp. 404–408.

308 Below, p. 149.

309 Below, p. 644

310 Below, pp. 695–697.

311 Newcomb v. Wardell, p. 800.

312 Lorin, pp. 332–333; Dare, p. 333.

313 Whitwell, p. 258; Gatch, p. 259; Wakefeild, p. 785.

314 See Forms of Action, in this introduction.

315 Crowne v. Sprague, p. 156; Sandford v. Orchard, pp. 669–671; see also Toy v. Howard, p. 130.

316 Harris v. Bridgeham, p. 277.

317 Gilbert v. Obison, pp. 738–742.

318 Scarlett v. Long, Salter v. Manning, p. 584.

319 Below, pp. 759–766.

320 Norman v. Skinnar, pp. 803–806.

321 Acorman v. Valentine, pp. 982–983. For cases involving chattels in New York, see pp. 385–387, 856–857.

322 Skinner v. Lowell, pp. 388–392.

323 Phillips v. Wharton, p. 420.

324 Salter v. Rose, p. 984.

325 Bartholmew v. Ashton, p. 318. See Litigiousness, in this introduction.

326 Norman v. Salter, p. 131; Scottow v. Felton, pp. 317–318.

327 MackDaniel v. Hale, p. 818.

328 Ashton v. Gibbs, pp. 347–358; Edsall v. Johnson, p. 639.

329 Kelly v. Blower, p. 13; Francks v. Ely, p. 135; Dudson v. Darvall, pp. 385–387. Several instances of the same tort are given in Maine Province and Court Records, indexed under Crimes and Torts.

330 Jones v. Neylor, 471.

331 Stanton v. Trott, 242.

332 Keen v.

333 Sweete v. Gibbs, pp. 742–743; Danson v. Eliott, pp. 1086–1092.

334 Title Conveyances, Deeds and Writings, sec. 1, emphasized in Patten v. Winsley, at p. 381.

335 Cooke v. Broughton, at p. 66 (transaction in 1659); Clarke v. Nicholls, p. 99 (in 1673); Mead and Alcock, p. 456 (in 1673/4); Salter v. Checkley, at p. 580 (in 1674/5).

336 Title Conveyances, etc., sec. 2; Clarke v. Nicholls, at p. 99; Rawson v. Billings, at p. 546.

337 Bundy v. Tomlin, pp. 210–211; Glover Estate, at pp. 428–429.

338 J. H. Beale, “The Origin of the System of Recording Deeds in America,” Green Bag, xix. 335.

339 Cutler v. Cutler, p. 881.

340 Below, pp. 860–862.

341 Boseworth v. Morse, pp. 100–101.

342 Hiskett v. Paine, p. 318.

343 Below, p. 567.

344 29 Charles II c. 3, sec. 4 (1677). This did not apply in a colony unless expressly received there by act of assembly or usage. See 25 Geo. II c. 6, sec. 10 (1752).

345 Title Conveyances, Deeds and Writings, sec. 1. “Sale” as used here does not include a contract to sell.

346 Woody v. Harrison, pp. 651–656; Leverett v. Bullis, pp. 860–862.

347 Tower v. Hobart, pp. 507–508; Harrison v. Woddee, p. 528.

348 Cutler v. Jacob, p. 530.

349 Sheffield v. Harrison, p. 529.

350 Order to Joyliffe, p. 755.

351 Walker v. Ellis, p. 823; Addams v. Jay, p. 1052.

352 Sheafe v. Hawkins, pp. 1–3, continued on pp. 275–277, 564–565, 684, 705–706; Deane v. Gibbs, p. 725; Allen v. Emmons, p. 772; Stoughton v. Gilbert, p. 772; Tompson v. Simons, p. 909; Sheafe v. Salter, p. 1085.

353 Smith to Jones, p. 1026.

354 Hudson v. Daniel, p. 776.

355 Hill v. Obbinson, pp. 1094–1095.

356 Below, pp. 579–583.

357 Below, pp. 426–429.

358 Widow Bridgham, pp. 132–133; Governor Bellingham, pp. 230–231; Glover, pp. 428–429; widow Ward, pp. 1032–1033.

359 Patten v. Dyer, at p. 374; Patten v. Winsley, pp. 381–383; Holowells v. Butler, pp. 1029–1037.

360 Phippen Estate, p. 996.

361 Whitmore, Colonial Laws, 1672–1686, pp. 32, 157–158.

362 Statute of Frauds, 29 Charles II c. 3 sec. 5. This did not apply to the colonies, except as they accepted it.

363 Wills Act, 7 William IV & 1 Victoria, c. 26.

364 Title Wills, sec. 3, Whitmore, Colonial Laws, 1672–1686, p. 158. The statute was apparently enacted in this form in 1649, for the intestacy statute of 1641 (see Liberties 81, 82), incorporated in the Laws and Liberties of 1648, pp. 53–54, lacks these provisions, and merely specifies the rule for division among children which also appears in the revisions of 1660 and 1672 and is explained in the text. In England the distribution of personal property was not regulated by statute until 1670.

365 Examples are: Lorine Est., p. 119; George Est., p. 223; Marshall Est., pp. 225–226; Phippen Est., p. 996; Gallop Est., pp. 1015–1016; Clement Est., p. 1017; Winslow Est., p. 1067; Ward Est., pp. 1069–1070; Blackman Est., p. 1165; Clap Est., pp. 1167–1168.

366 It is arguable that the statutory clause, “where there are no Sons, the daughters shall inherit as Copartners,” gave the daughters nothing when there were sons. This would correspond to the division of land only among sons under the English custom of gavellcind, discussed below. But the cases in this book indicate no such discrimination against daughters. Every case cited in the preceding note gives equal portions to all children except the eldest son. To explain this result on the ground that there were only boys in ten families, several of them numerous, would outrage the law of probabilities. Indeed, Clap’s Estate, pp. 1167–1168, expressly mentions a daughter as well as sons. In the Probate Records of Essex County during our period, cases have been noted of daughters sharing with sons (ii. 258, 271, 279, 284–285, 307–308).

367 Andrews, “The Influence of Colonial Conditions as Illustrated in the Connecticut Intestacy Law,” Select Essays in Anglo-American Legal History, L 431 ff.; Morris, “Massachusetts and the Common Law,” American Historical Review, xxxi. 447–448, referring to Deuteronomy, xxi: 15–17, and questioning some statements of Andrews.

368 Blackstone, Commentaries, n. 79–89, 216.

369 Robinson, “Anticipations under the Commonwealth of Changes in the Law,” Select Essays in Anglo-American Legal History, i. 488–490.

370 St. 12 Charles II c. 24 (1660).

371 Poore, Federal and State Constitutions, Colonial Charters, etc., i. 933. See also, the Plymouth Charter of 1620, id., i. 926; the Provincial Charter of 1691, id., i. 947; E. P. Cheyney, “The Manor of East Greenwich in the County of Kent,” American Historical Review, xi. 29; V. F. Barnes, “Land Tenure in English Colonial Charters of the Seventeenth Century,” in Essays in Colonial History Presented to Charles M. Andrews, p. 4; Morris, Studies in the History of American Law (1930), pp. 103–120; and the report of the 1695 survey of theroyal manor of East Greenwich in Kimbell, An Account of the Legacies, etc., of the Parish of St. Alphege Greenwich (1816), pp. 183 ff.

372 Macdonald, Select Charters, 1606–1775, p. 10.

373 No. 10 (1641), Whitmore’s Bibliographical Sketch, p. 35; title Lands, free Lands, Colonial Laws, 1672–1786, p. 88.

374 Patten v. Winsley, at p. 381.

375 George Estate, p. 223.

376 Pratt Estate, p. 716.

377 Clarke v. Nicholls, pp. 5–9, 98–99; Clarke v. Lamb, pp. 1131–1136.

378 Simpson v. Salter, pp. 1040–1041.

379 Below, pp. 1064, 1096–1097.

380 Patten v. Dyer, pp. 373–376; Patten v. Winsley, pp. 377–384; Salter v. Checkley, pp. 579–583. See Index for other references.

381 Below, pp. 1029–1037.

382 Below, pp. 1104–1105.

383 Below, pp. 860–862

384 Below, pp. 1131–1136.

385 Below, pp. 821–822.

386 Glover Estate, pp. 426–433; Rawson v. Glover, pp. 472–473, 508–511; Rawson v. Billing, pp. 543–546.

387 Below, pp. 81, 109.

388 Below, p. 95.

389 Hudson v. Smith, pp. 592–594, 833

390 Whipple Estate, p. 939.

391. Chamberlayne Estate, p. 992.

392 Examples are: Bernard Est., p. 267; Curtice Est., p. 960; Smith Est., pp. 991–992; Tay Est., p. 994; Elkins Est., p. 1010.

393 Below, pp. 797–799

394 Rogers v. Rowste, p. 689.

395 Kent v. Smith, p. 128. Frankes v. Smith, p. 690.

396 Deane v. Perry, pp. 724–725

397 Keen v. Oxe, pp. 906–908.

398 A bond to pay a debt is reprinted on p. 171. Other examples are cited in this introduction, Sources of Law. Compare a bond executed in London, partly in Latin, on pp. 1003–1004.

399 Townsend v. Williams, pp. 1125–1126.

400 Examples are: Kellond v. Hudson, pp. 106–107; Richards v. Brackett, p. 107; Ashton v. Bonner, p. 167. On colonial resort to arbitration, see Morris, Studies in the History of American Law, p. 60.

401 Below, pp. 195–200.

402 Our Publications, vm. 150–185.

403 Whitmore, Colonial Laws, 1672–1686, pp. 93–100.

404 Our Publications, viii. 156; Charles M. Hough, Records of Cases in the Vice-Admiralty and Admiralty Courts of New York (1925); F. B. Wiener, “Notes on the Rhode Island Admiralty, 1727–1790,” Harvard Law Review, xlvi. 44; Marguerite Appleton, “Rhode Island’s First Court of Admiralty,” New England Quarterly, v. 148.

405 Below, pp. 250–252.

406 Whitmore, Colonial Laws, 1672–1686, p. 213.

407 Melyn v. Dudson, p. 364; Darvall v. Dudson, pp. 364–369.

408 Below, p. 369

409 See in this introduction, Attorneys and Magistrates, and Litigiousness.

410 Dudson v. Darvall, pp. 385–387.

411 Below, p. 413. Notice the Puritan uncertainty about the “Saint” in the records.

412 White v. Lemoigne, p. 988. Another prize-money suit by a “Griffin” seaman is Jackson v. White, p. 982.

413 White, pp. 994–995.

414 Sheafe v. Palmer, pp. 829–830; Smith v. Rand, pp. 621–624.

415 Flood v. Legg, pp. 858–860; Legg v. Flood, pp. 1054–1055.

416 Sprague v. Collins, pp. 18–20; Lidgett v. Collins, pp. 43–44.

417 Hollett v. Pelton, p. 1077.

418 Warren v. More, p. 824.

419 The William and Thomas, pp. 1068–1069.

420 Woode v. Chantrell, at p. 162.

421 Stuart and Ludden, pp. 407–408.

422 See Litigiousness, in this introduction.

423 Miller v. Risco, pp. 277–285.

424 Waldren v. Smith, pp. 135–139.

425 Davis v. Legg, pp. 504–507.

426 Wharton v. Elson, pp. 661–669

427 Alford v. Endicott, at p. 727

428 The Providence, pp. 250–252.

429 Below, pp. 31–36.

430 Below, pp. 901–903, 1119.

431 Below, pp. 279–280, 1119.

432 Below, pp. 471, 661–669.

433 Below, pp. 134, 858–860.

434 Below, pp. 277–278, 1117–1118.

435 Below, pp. 141–142, 157, 505, 622, 663–664.

436 Waldron v. Henderson, at p. 901.

437 Title Bills, enacted in 1647.

438 See Williams v. Woodbridge, pp. 767–770. However, judgments were not assignable, by title Judgments in the revisions of 1660 and 1672.

439 Examples are Mead v. Turner, pp. 36–43; Sharp v. Rider, pp. 359–363. It is not stated that these instruments were under seal.

440 Mead v. Turner, pp. 36–43.

441 Sharp v. Rider, pp. 359–363; Hunt v. Warren, p. 1170.

442 Rawson v. Cooke, p. 475; Paige v. West, pp. 1080–1083.

443 Wharton v. Elson, pp. 661–669.

444 Briggs v. Giffard, pp. 691–692.

445 Briggs v. Leverett, pp. 617–619.

446 Yeale v. Shoare, p. 326. 8

447 Lidgett v. Foote, p. 774.

448 Deane v. Hubbard, pp. 788–791.

449 Below, pp. 1080–1083.

450 An example is reprinted on p. 14. See Index under Bills and Notes.

451 Whitcomb v. Burnham, p. 21.

452 Jesson v. Bushell, p. 672; see in this introduction, Juries.

453 Whitmore, Colonial Laws, 1672–1686, pp. 120–121; see in this introduction, Equity.

454 Below, pp. 30, 295, 317–318.

455 Below, pp. 79, 1072.

456 See in this introduction, Negotiable Instruments.

457 Examples are found on pp. 47–48, 1137–1138.

458 Title Money, Whitmore, Colonial Laws, 1672–1686, pp. 117–119. See the discussion of money and payment in Maine Province and Court Records, ii. xi.

459 Below, pp. 60–62, 156–158.

460 Below, pp. 359–363, 1052.

461 Below, pp. 1123–1124.

462 Below, pp. 661–669.

463 Below, p. 910.

464 Below, p. 927.

465 See E. G. Baird, “Business Regulation in Colonial Massachusetts (1620–1780),” Dakota Law Review, m. 227.

466 Russell v. Barefoot, pp. 299–300; Snelling’s License, 559–560.

467 Lidgett, p. 117; Marsh, p. 339; Gilbert v. Matson, 796–797; other cases involving this industry are on pp. 313, 413.

468 Jenners Fined, Parkman Fined, p. 311.

469 Waldron v. Marshall, at p. 763.

470 Below, p. 126.

471 Below, p. 412.

472 Stanberry, p. 559.

473 Batt, p. 632.

474 Roberts, p. 602.

475 Whitmore, Colonial Laws, 1672–1686, p. 36.

476 Marshall, p. 86; Barefoote, pp. 86–87.

477 Reade, pp. 114–115.

478 Hannah, pp. 1153–1157.

479 Francis, pp. 555–556.

480 Holleday, p. 782.

481 Synderland, p. 600; Cannon, p. 604.

482 Phips, p. 887.

483 Noakes, pp. 308–310.

484 Knight v. Moulder, p. 274

485 Cittern, p. 189.

486 Baker, p. 939.

487 Langle, p. 959.

488 Gross, pp. 112–113; Robbinson, p. 302.

489 Norman v. Salter, p. 131.

490 Richardson, p. 23; Read, p. 24; Wainwright, p. 265; Butcher, pp. 896–897.

491 Gold, p. 184.

492 Chandler, p. 232

493 Gibbs, p. 304.

494 Meadore, p. 753.

495 Dove, Admonished, p. 785.

496 Title Tobacco, Whitmore, Colonial Laws, 1672–1686. p. 146

497 Below, pp. 937, 995.

498 Whitmore, Colonial Laws, 1672–1686, p. 233.

499 Hemenway Presented, p. 698; Roberts Admonished, p. 751.

500 Whitmore, p. 206.

501 Below, pp. 90, 92.

502 Below, p. 255

503 Below, pp. 116, 1101; Title Ballast, Whitmore, Colonial Laws, 1672–1686, p. 9.

504 Pray, p. 188; Hutchinson’s Presentment, p. 227.

505 Below, pp. 629, 675.

506 Our Publications, iii. 51 ff.

507 Hoppin, p. 89; Wainwright, p. 265; Chamberlin, p. 266; Wharton, p. 674; Marnel, p. 894. Read (p. 84) was imprisoned at hard labor at the court’s pleasure, but the place of confinement is not mentioned.

508 Smith, pp. 1101–1102.

509 The provisions for sale are too numerous to cite (see Index) and seem to become more frequent toward the end of our period.

510 Atherton, p. 956; Marshcroft, p. 995.

511 Examples are: Chandler Sentenced, p. 112; Decro, p. 938; White, pp. 994–995; Willistone, pp. 1160–1161.

512 Colcord to Thornton, p. 945.

513 Atherton, p. 151; Pitman, p. 890.

514 Mason Admonished, p. 150; Waldron v. Marshall, at p. 763; Waldron v. Bassett, at pp. 764–765; Marshall v. Waldron, at pp. 783–784; Whaley and Ranger, p. 1164; see also this introduction, Negligence.

515 Lincoln Fined, pp. 329–330; Gulliver Sentenced, p. 482; Tappin Fined, pp. 780–781. See Dudson v. Darvall, at p. 387; and the controversy about Waters’s horse and the obstinate Jesson, this introduction, Juries.

516 Tailor Sentenced, p. 88; Keyn’s Sentence, p. 235; Pollard, p. 1163.

517 Carr Sentenced, pp. 556–557.

518 Lawton, pp. 302–304, Curie, pp. 628–629; Barker, p. 886.

519 Hickson, pp. 442–443; Bed well, p. 443; Colcord, p. 943.

520 Below, pp. 84–85.

521 Below, pp. 231, 697, 302.

522 Brewster, etc., p. 843. See also Hawkins, p. 558; Wharton, p. 674; Gibbs, p. 677.

523 Below, p. 151.

524 Below, p. 674.

525 Below, p. 302.

526 For instance, Morton, pp. 521–522; Jinkins and Whitmarsh, p. 1068; Davis, pp. 1098–1099.

527 Below, p. 1157.

528 Below, p. 1100.

529 See topic Indians in index to Whitmore’s Colonial Laws, 1672–1686.

530 James Indian, pp. 112, 119.

531 Coweset Indian, pp. 147–148. John Indian, p. 148, also had a hair-cut.

532 Wickersham Commission’s Report on Lawlessness in Law Enforcement (1931), pp. 108–109.

533 Below, p. 23.

534 Sprague, p. 442; see Robbinson, p. 1101.

535 Whitmore, Colonial Laws, 1672–1686, p. 31; Harris, p. 24; Mason Admonished, p. 150; Ashton V. Gibbs, pp. 347–358; Stevens, p. 913; Toleman, p. 956.

536 Tuder, p. 26; Wiswall, p. 27.

537 Fairebanks, p. 257.

538 Whitmore, Colonial Laws, 1672–1686, pp. 31, 221.

539 Below, p. 350.

540 For instance, Read, p. 88.

541 Below, p. 89.

542 Below, p. 90

543 Below, p. 300.

544 Whitmore, Colonial Laws, 1672–1686, pp. 101–102, 130. See C. L. Powell, “Marriage in Early New England,” New England Quarterly, i. 323.

545 Whitmore, Colonial Laws, 1672–1686, pp. 101, 28.

546 Below, pp. 82, 107–108.

547 Below, p. 221.

548 Below, p. 258.

549 Below, p. 265.

550 Hall, p. 23; Pascoa, p. 108; Bragg, p. 119; Blake and Burrell, pp. 518–519; Cresey, pp. 779–780; Welden, p. 942; Whitmore, Colonial Laws, 1672–1686, pp. 101–102.

551 Below, pp. 720, 811

552 Below, p. 943.

553 Below, p. 943.

554 Below, p. 232.

555 Below, p. 150.

556 Below, p. 1158.

557 Below, pp. 754–755, 837–841.

558 Below, pp. 442–443. See Wharton and Gridley, p. 914; Knight and Forrest, pp. 1023–1024, 1161.

559 Below, pp. 809–810. See under Equity, in this introduction, for modern Parallels.

560 Examples of this frequent offense are: Egerton, p. 22; Wheaton, pp. 23, 80; Middleton, pp. 90–91. Sometimes the public acknowledgment was omitted: Collicott, p. 114; Hall, pp. 23, 119.

On this topic and its relation to common-law marriages, see Powell, in New England Quarterly, i. 323, giving similar cases in Plymouth Colony: H. B. Parkes, “Morals and Law Enforcement in Colonial New England,” id., v. 431; Parkes, “Sexual Morals and the Great Awakening,” id., iii. 133; Maine Province and Court Records, ii. xliii.

561 Below, pp. 82–84, 126, 266.

562 Kent v. Smith, p. 128; Smith, pp. 149–150; Smith v. Kent, pp. 164–165; Smith, pp. 185–186; Blacklock, pp. 189, 237.

563 Below, pp. 185–186, 189. See Carpenter, p. 91.

564 Below, p. 914. See Wharton, p. 674.

565 Wheeler and Peirce, p. 443.

566 Below, p. 941. For other instances of misconduct by wives, see Moxon, p. 94; Veering and Smith, p. 233; Hickson and Bedwell, pp. 442–443; Blake and Burrell, pp. 518–519; Morton, pp. 521–522; Ockerly and Langberry, pp. 604–605; Wharton, p. 674; Gill, p. 941; Forrest and Knight, pp. 113–114, 237, 1023–1024, 1161.

567 Plumm, pp. 125, 185; Sprague, p. 424; Dobleday, p. 626; Jay, p. 697; Messenger and Hews, pp. 912–913; Jinkins and Whitmarsh, p. 1068.

568 Hawkins and Fogg, p. 558

569 Man, p. 807.

570 See under Evidence, in this introduction.

571 Below, pp. 91, 254, 939, 1012.

572 Warro, p. 113; Judkin, pp. 183–184; Mason, p. 185; Rock’s Negro, p. 232; Jasper and Joan, p. 233; Miriam, Morea, p. 809; John Negro, p. 1067.

573 Bradford, History of Plymouth Plantation, (ed. 1912) ii. 309.

574 Fiske, p. 28.

575 Gillam, p. 118; Chamberlin, pp. 253, 594–595; Shippin, p. 917.

576 Below, pp. 256–257; see p. 597.

577 Below, p. 257; see p. 182.

578 Below, pp. 438–439, 441, 487–489, 599, 630, 677, 753, 997.

579 Below, pp. 438–439, 599. See Index for his other cases.

580 Below, p. 487.

581 Title Provoking Evils, Whitmore, Colonial Laws, 1672–1686, p. 234.

582 Matson, p. 753.

583 Below, pp. 677, 997.

584 Below, p. 519.

585 Lopez v. Howe, 259 Federal Reporter, 401 (1919).

586 Below, pp. 86–87; 144–145; Whitmore, Colonial, 1672–1686, p. 14.

587 Chafee, The Inquiring Mind, pp. 110–116. Both prosecutions failed.

588 Platts, p. 645; Evered, p. 868.

589 Order, p. 646

590 Stretton, p. 867; Newcomb, p. 307. See also pp. 307, 598, and Index.

591 Below, pp. 120, 867, 942.

592 Webb, p. 28

593 Below, pp. 305–306.

594 Below, p. 843. Another South Church case is Hill, p. 940. See also Adams, p. 596.

595 Newcombe, pp. 695–697.

596 Carteret v. Petty, 2 Swanston 323 (1675).

597 Title Courts, sec. 8, in Whitmore, Colonial Laws, 1672–1686, p. 37.

598 Id., p. 207.

599 Below, pp. 153, 178–180.

600 Below, p. 624.

601 Whitcomb v. Burnam, p. 10. On the history of foreign attachment, which was derived from the custom of London, see Beale, “The Exercise of Jurisdiction in rem to Compel Payment of a Debt,” Harvard Law Review, xxvii. 107.

602 Warner v. Franklyn, pp. 1055–1056.

603 Below, pp. 27–28.

604 Harding and Tillinghast, p. 519; Hyde, p. 677.

605 Simmons, pp. 808–809.

606 Evered, p. 868.

607 Usher v. Timberlack, pp. 154–155.

608 Usher v. Timberlack, pp. 154–155.

609 Dinely v. Steenwick, pp. 166–173; Keen v. Dafforn, pp. 1123–1124.

610 Hutchinson v. Paine, pp. 530–536; Purkis v. Winder, pp. 1002–1005.

611 Hunt v. Warren, p. 1170.

612 Lamb v. Williams, p. 1051.

613 For instance: More v. Jones, pp. 156–158; Miller v. Risco, pp. 277–285; Snith v. Rand, pp. 621–624; Darvall v. Dudson, pp. 364–369; White v. Lemoigne, p. 988; Davis v. Legg, pp. 504–507.

614 Sweete v. Gibbs, pp. 742–743.

615 Dudson v. Darvall, pp. 385–387. See also Wensley v. Davis, pp. 856–857.

616 Danson v. Ellitt, p. 1123.

617 Below, p. 600.

618 Below, pp. 628–629.

619 Matthews, p. 436; Combes, pp. 436, 440–441; Cann, p. 439.

620 Sharp v. Rider, pp. 359–363.

621 Below, pp. 680–682.

622 Below, p. 1106.

623 Temple Est., pp. 476–477; Price Est., pp. 479–480; Howlet Est., p. 871; Elkins Est., p. 1010.

624 Whitmore, Colonial Laws, 1672–1686, p. 158; Deacon Est., pp. 29–30; Biggleston Est., p. 188.

625 Below, pp. 726–735.

626 Macdonald, Select Charters, 1606–1775, p. 99.

627 Below, pp. 193, 219, 225, 524.

628 Below, pp. 560–561.

629 Danson v. Eliott, pp. 1086–1092.

630 Below, pp. 347–358.

631 Below, pp. 680–682.

632 The earliest example of the verb “chancer” in the New English Dictionary is dated 1798. See earlier examples in the Nation, lxxiv. 12 (N. Y., 1901).

633 Son of Sir John Davie, Bt., and father of John Davie, Harvard, A.B. 1681, who was informed of his succession to the baronetcy when working on his farm in Groton, Connecticut.

634 Height. See New English Dictionary, “Chief,” sb.9.

635 Father of the Captain John Bonner who made the first engraved map of Boston. 5 Mass. Hist. Soc. Coll., VI. 134, 318; VII. 370.

636 Lawton, in the case to which this belongs.

637 The frequent mention in this case of Lex Mercatoria refers to a well-known English legal treatise, Consuetudo vel Lex Mercatoria, or The Ancient Law-Merchant, by Gerard Malynes. First published in 1622, this book went through several editions during the seventeenth century. A comparison of Turner’s references in the text shows that he used the latest edition, that of 1656. A popular legal tract, Advice Concerning Bills of Exchange by John Marius, was bound in with this edition. Several of Turner’s references in the text are to the Advice of Marius, and not to the treatise of Malynes.

638 This refers to the common practice of giving bills of exchange in sets of three, only one of which was to be paid; this was to allow for possible losses of one or two bills in transmission.

639 This would have been true of a regular bill of exchange payable at a specified date, but the law required a bill payable “after sight” to be accepted in writing because only thus would the date for payment be made definite on the instrument.

640 On 20 July, 1662, Lord Windsor, Governor of Jamaica, appeared at Barbados in command of a fleet, seeking recruits to settle his own colony. Owing to his royal backing the Barbadian authorities were unable to prevent him from carrying off sundry indented servants and debtors. V. T. Harlow, History of Barbados, p. 139.

641 “If any man be proved, and judged a common barrater, vexing others with unjust, frequent & endles suites, it shall be in the power of the Court, both to reject his cause, and to punish him for his Barratry.” Act of 1641, in The Book of the General Lawes and Libertyes (1660), p. 5.

642 An ancient English form of conveyance, which did not require a deed or a record. The two parties went to the actual piece of land that was to be conveyed, in company with whatever freemen they could collect, and the grantor, after describing the bounds in presence of the witnesses, gave livery and seizen by handing to the grantee a bit of turf from the land, or a stone, twig, or some such symbol.

643 This Checkley (1609–1685) was not the father nor any relation to the Anglican controversialist of the same name—see New England Historical and Genealogical Register, n. 350.

644 Copyist’s error for Sedal, i. e., Schedule; also printed Cedal in this same document. The soft pronunciation of the sch in Schedule still prevails in England.

645 Pages 29 and 30 are wanting.

646 The list of judges is wanting for this session.

647 A corruption of “portage,” which originally meant a seaman’s privilege or space allowed him for goods on his own account. When this mode of recompensing a sailor became obsolete, the word “portage” was used for seamen’s wages. A portage bill means “the register or account of the names and claims for wages, allowances, etc., of the crew of a ship.” A blank “Portage Bill” issued by a Boston stationer about the year 1901 is before me as I write. See New English Dictionary under “Port, sb.¹ 4,” and “Portledge”; the examples there given were furnished by our associate, Albert Matthews.

648 Winscal Point, probably identical with Schoodic Peninsula at the eastward side of Frenchmans Bay, Maine, is shown on the eighteenth-century editions of the English Coast Pilot for that region. See illustrations in our Publications, xxvii. There is a Wonsqueak Harbor on the modem government charts of Schoodic Peninsula.

649 Moosepeak or Moosabec Reach, in eastern Maine.

650 The son of Governor Leverett and father of President Leverett.

651 Beginning at this point the records are in the handwriting of Isaac Addington, Freegrace Bendall having taken his departure for Madeira according to the permission granted by the Court, above, p. 121.

652 “Due for primage 5^s 7^d” in margin.

653 John-a-nokes and John-a-stiles were fictitious names for parties in a legal action.

654 Nominy Creek or River, on the Virginia side of the Potomac. A place at the mouth was made a market town by act of the General Assembly in 1691. Nominy Hall on the Creek was the seat of “King” Carter.

655 Possibly a copyist’s error for “January ye 23th.”

656 The reference is to The Generall Laws and Liberties, 1672, p. 152.

657 See note to Lawton v. Bonner at the special court of August, 1672, above, p. 153.

658 A quotation of the Body of Liberties, incorporated in the Book of the General Laws and Libertyes, 1660 and 1672 editions. It is true that the law of October 8, 1672, changing the rules about strangers’ suits, was not published within a year of its enactment. Colonial Laws of Massachusetts, Reprinted from Edition of 1672, p. 207.

659 The reference is to The Book of the General Lawes and Libertyes, 1660. “For as much as the bounds of townes, and of the lands of particular persons, are carefully to be maintained, & not without great danger to be removed by any, which notwithstanding by deficiency & decay of marks, may at unawares be done, wherby great jealousies of persons, trouble in townes, & incumbrances in Courts doe often arise, which by ane care & meanes might be prevented. It is therefore Ordered by this Court & Authority thereof; That every towne shall sett out their bounds, within twelve months after their bounds are graunted. And that when their bounds are once sett out; once in three yeares three or more persons of a towne, appointed by the Select men, shall appoint with the adjacent townes, to goe the bounds, betwixt their said townes, & renew their marks; which marks shall be a great heape of stone, or a trench of six foot long & two-foot broad, the most ancient towne to give notice, of the time & place of meeting for this perambulation; Which time shall be in the first or second month, upon paine of five pound for every towne that shall neglect the same; provided that the three men appointed for perambulation shall goe in their several quarters, by order of the select men, and at the charge of the several townes.”

660 Deputy-Governor Leverett.

661 Deputy-Governor Leverett.

662 Probably a copyist’s error for Angels. “Having treated of Gold at large, I am now obliged to say something concerning the Gold Weights; which are either Pounds, Marks, Ounces, or Angels. In Europe twenty Angels make one Ounce, though here but sixteen go to an Ounce.” William Bosman, A New and Accurate Description of the Coast of Guinea, London, 1721 (2nd ed.), p. 75. We are indebted to Professor Leo Wiener for this reference.

663 “7. And every person or persons whatsoever, that shall revile the Office or person of Magistrates or Ministers, as is usual with the Quakers, such person or persons shall be severely whipt, or pay the sum of five pounds.” The General Laws and Liberties, 1672, p. 61.

664 The case of Hawkins v. Sheafe, which should follow at this point, will be found on p. 1171, below.

665 Probably “actions,” as in the third line below where “accounts” was corrected to the present reading.

666 The term “father-in-law” here means step-father.

667 Perhaps quoted from Coke, who often uses the maxim, e. g., 4 Reports 47a.

668 Then a part of the “Rehoboth North Purchase” which Thomas Willet and associates purchased of Massassoit’s son Alexander in 1661. A traveller in 1704 “Got to y^e House of old Woodcocks, now Inhabited by one Slack, at Attleberry, w^r we stopt y^e Heat of y^e Day.” 1 Proceedings Massachusetts Historical Society xiii. 250. It was half a day’s journey from Billings’s tavern in Dedham.

669 See Hutchinson v. Blake, above, p. 271.

670 Gap in pagination here, although no pages of the manuscript are missing.

671 Cape Newagen, Maine?

672 New Orange (Albany), or New York.

RECORDS OF THE SUFFOLK COUNTY COURT

1671–1680

PART I

RECORDS OF THE SUFFOLK COUNTY COURT 1671–1680

Att a County Court held at Boston 31th of ye 8th mo 1671

Present

Jurie of Tryalls

[Sheafe v. Hawkins]

Milton v. Eliott

Parker v. Champeroone & Compa

Leuerett v. Ely

Wilkins v. Webb

Addams v. Hudson

Man v. Whitcomb

Clarke v. Nicholls

Atwater v. Ely

Patten v. Naylor

Greenough v. Hazelden

Hallett v. Mansfeild

Norden v. Auis

Smith v. Cartwright

Atkinson v. Trumble

Whitcomb v. Burnam

Newcomb v. Naylor

Gefford v. Atherton

Huchinson v. Douty

Patten v. Wise & Belchior

Thair v. Parsons

Bacon v. Gold

Idem vrsus Eundm

Couch v. Barefoot

Kelly v. Blower

Golden v. Clements

Oliver v. Woodmancy

Bucher v. Bastar

Wilkins v. Web

Hoppin v. Downes

Sprague v. Collins

Wiswall v. Hambleton

Cooke v. Price

Whitcomb v. Burnham

Bucknell acknowld a Judgmt

Bartho v. Turill

Administration to ye Revd Jno Allens Estate

Eliza Smith Presented

Ri: Burnum Presented

Peter Egertonn & His Wiues Presentmt

Jno Chandlr Presented

Brantry Presented

Ri: & Martha Hall Presented

Christopher & Martha Wheaton Presented

Mary Huchins Sentenced

Paul Hall Presented

Jeffery Richardson bound to good behauior

Wm Read bound to good behauior

Hanna Stewards Senta

Nestfield whipt

[Philip Harris]

Renew senta

Ordr about Phil: Edwards Estate

[Mary Wilmore]

Order about Chandler

Ordr about a Comitte for Mrs Lorin

Casy dischargd

Reasons shoos returnd

Tuder comitted

Hill sentancd

Pratt, pardond 40s

Present

Administracion to Deerings estate

Brantry constables sworne

Jno Wiswall Junr senta

Hanna Hull dismisd of Administracion

Present

A warrt for Capt Price

Webb sentancd

Mr Fisks ordr to preach at Brantry

Norden Licencd

Ordr about Faulkner & Huchins

Webs fine respited

Att a County Court held at Boston 31^th of y^e 8^th m^o 1671

Parker v. Champeroone & Comp^a

Idem v^rsus Eund^m

Bucknell acknowl^d a Judgm^t

Barth^o v. Turill

Administration to y^e Rev^d Jn^o Allens Estate

Eliz^a Smith Presented

Peter Egertonn & His Wiues Presentm^t

Jn^o Chandl^r Presented

W^m Read bound to good behauior

Hanna Stewards Sent^a

Renew sent^a

Ord^r about Phil: Edwards Estate

Ord^r about a Comitte for M^rs Lorin

Casy discharg^d

Reasons shoos return^d

Hill sentanc^d

Pratt, pardon^d 40^s

Jn^o Wiswall Jun^r sent^a

Hanna Hull dismis^d of Administracion

A warr^t for Cap^t Price

Webb sentanc^d

M^r Fisks ord^r to preach at Brantry

Norden Licenc^d

Ord^r about Faulkner & Huchins

Ord^r about Deacons estate in Arthur Masons hands & y^e Orphant

Oxman acknowledgeth a Judgm^t to C^p Curwin

At the Session of y^e County Court afores^d