At a County Court held at Boston January 27th 1673

    Present

    • Iohn Leverett Esqr Govr
    • Simon Bradstreet
    • Edw: Tyng
    • Wm Stoughton
    • Tho: Clarke

    Grand jury Sworn

    • Capt Ri: Brackett
    • John Sweete
    • Edw: Morrice
    • George Lane
    • Habakkuk Glover
    • Edw: Richards
    • Thos Lincoln
    • Wm Holloway
    • Ralph Day
    • Capt Geo: Barber
    • Edwd Grant
    • Edwd Blake
    • Wm Sumner senr
    • Iohn Weld
    • George Fry
    • Isaac: Jones

    Iury of Tryalls Sworn

    • Thos Battelle
    • Nathanll Wilson
    • Thos Andrews
    • Wm Whitwell
    • Ino Dean
    • Matthew Cushing
    • Benjn Negus
    • Xtopher Webb
    • Thos Mason
    • Thos Halley
    • Simon Whitmarsh
    • Clemont Maxfeild

    Ashton agst Gibbs

    Henry Ashton plaint, agast Benjamin Gibbs Defendt in an accion of the case for that the sd Benjn Gibbs hath pursued him the sd Ashton with a warrant which hee called an hue & cry & contrary to Law & the Liberty of an English subject did in a riotous manner violently seize the person of the sd Ashton as hee was in his Lodging at the house of one Iohn Woodcock an Ordinary upon the road in the government & pattent of Plimouth & for that the sd Gibbs did there binde him the sd Ashton & carried him in a Cart out of the sd Govermt & soe brought him Like a Fellon & committed him sd Ashton to the prison in Boston to the great disparagment & damage of him the sd Ashton more then five hundred pounds & other due damages according to Attachmt Dat. the seventh day of Novembr 1673. . . . The Iury . . . founde for the plaint. for the illegall or unjust molestations of mr Henry Ashton & all those damages that come thereby ten pounds in current pay & costs of Court. The Defendt appealed from this judgmt to the next Court of Assistants & the sd Benjn Gibbs as principall in twenty pounds & lames Brading & Iohn Keen as Sureties in ten pounds apeice acknowledged themselves respectiuely bound to . . . prosecute his Appeal . . .

    [To recapitulate this protracted litigation, which now reaches its most interesting point, Ashton was a young Liverpool merchant who sailed from Liverpool for Virginia on the ketch Recovery, Captain John Bonner, in November, 1671. Ashton had with him sundry goods and a number of indented servants. In consequence of Bonner’s rascality and long delays, Ashton sued him for damages after arrival at Boston, and was awarded 70l damages by this Court (Ashton v. Bonner, above, p. 141). Subsequently the two parties agreed under bond to submit their differences to arbitration. The arbitrators made an award in favor of Ashton, which Bonner refused to honor; consequently Ashton sued him for the performance of his bond; but the jury decided in favor of Bonner (Ashton v. Bonner and Everell, above, p. 292). In order to explain subsequent proceedings which led to this suit against Gibbs, I suppose that Bonner must have instituted a new suit against Ashton, for the latter was under some bonds or judgment when, in the autumn of 1673, after endeavoring for sixteen months to recover damages, he decided to leave the Bay jurisdiction and proceed to his original destination, Virginia. During his sojourn at Boston, Ashton had become friendly with a young shipowner, named John Saffin, and arranged to leave for Virginia on one of Saffin’s vessels from Narrangansett Bay, in order to escape the Boston authorities. Gibbs, Captain Bonner’s attorney, hearing of Ashton’s intention to abscond, had himself made “Marshalls Deputy” in order to serve an attachment on Ashton, whom he found “standing in the porch in company with mrs Saffin” in Boston on Saturday afternoon, November 1, 1673, and arrested him, as he subsequently deposed (S. F. 1341.38).

    Whereupon Mrs Saffin upraided the sd. Ashton for not withdrawing himselfe when Shee winked upon hi[m] & sayde mrs Saffin seeming much disquieted about the matter this Deponant spent a considerable time to perswade her by arguments from the Equity of the proceedings after which went into that roome of sd. mr Saffins house next mr wm Tailors& there tooke a Coppie of one of the Attachments & read the other unto sd. Ashton while hee tooke a Coppy thereof or as much as hee pleased . . . after which tarrying a considerable while within & neare the sd. house; for mr Saffin comming home the Sabbath approaching this Deponant suspended proceeding any further until the Sabbath was over, onely upon the consideracion that hee might not make any disturbance upon the Sabbath. . . .

    Sabbath over, at sundown on the Lord’s day, Gibbs returned to Saffin’s house:

    But sd Saffin goeing up into his Chamber pretending to call sd Ashton, returned & sd he was walk’t forth; this Deponant replied hee expected better from him then that he should escape or words to that purpose, unto which sd Saffin answered yt hee was but gone to a house in the Town where hee used to goe (as hee supposed) this Deponant declared if hee sd Ashton did escape hee should bee forc’t to pursue him with huy and cry. mr Saffin answered that hee should bee sorry if any such thing should overtake any that had resided with him; but for his part hee would haue nothing to doe with it, resolving not to Engage against his neighbour for the sake of any stranger; this Deponant awaiting a considerable time in company with sd mr Tayler and Saffin and Aston not appearing; hee this Deponant made his address to the Worpshipfull mr Simon Bradstreet Esqr and declaring the matter unto his worship obteined the favour of a huy and cry; with which the next morning hee persued sd Ashton and further saith not.

    A copy of the warrant follows (S. F. 1341.2):

    To the Constables of Rocksbury Dedham Medfeilde and Mendham or either of theire Deputies.

    Whereas Henry Ashton of the age of about 30. yeares a tall wellset man of brownish haire and fresh complexion being under an arrest hath made an Escape: These are therefore in his Maties Name to will and require yow to make diligent search in yor severall Towns for the sd person and haveing apprehended him, let him bee conveyed safely to the Marshall of Suffolke or his Deputy & the charges thereof shalbee satisfied by mr Benjamin Gibbs of Boston mrcht. and hereof yow are not to faile. Dated 3. Novembr 73.

    Simon Bradstreet Assist . . .

    Ashton hired a horse from one Peter Egerton, who delivered it at Saffin’s house after sunset on the Lord’s Day, November 2 (depositions S. F. 1341.50), when Ashton proceeded with a “pilot” on the old road to Providence, by way of “Uncaty,” i. e., Milton (S. F. 1341.58). Benjamin Gibbs followed hard on Ashton’s heels. Not knowing the way, he hired at Dedham one Nathaniel Chickering to pilot him the way to Rehoboth (Chickering’s deposition in S. F. 1341.39). They passed along the road to Wading River, in the present town of Mansfield, and were then outside the Bay jurisdiction, in that of the Plymouth Colony. Proceeding on their way, they learned that Ashton was at the first house across the Plymouth line (S. F. 1341.48), a tavern kept by John Woodcock on the Ten Mile River, in the present town of Attleboro.668 Halting there to read the warrant, they proceeded to the village of Rehoboth in order to obtain authority to arrest Ashton in Plymouth territory. Nathaniel Paine, the constable of Rehoboth, handed over his emblem of office, a “black staffe with a brazen head” to Nathaniel Woodcock, the seventeen-year old son of the tavern keeper. The party then returned to the tavern.

    What occurred at Woodcock’s may first be told in the words of Ashton’s petition to the Governor and General Court of Massachusetts Bay, dated November 6, 1673 (S. F. 1341.13):

    That on Munday the third day of this instant Novembr yor Complainant being at the house of one Iohn Woodcock in company with Capt Tho: Willet, in order to proceed my Voiadge to Virginia in a Vessell belonging to Iohn Saffin that was ordered to stay for my comming at Road Island Mr Benjamin Gibbs came into the sd. house with another man, whome he immediatly commanded in his Majty’s Name to apprehend mee yor complainant, Saying this is the man, & that hee sd. Gibbs had a hue & cry to that purpose: upon which Capt Willet desired to see the hue & cry & asked the fellow that came with Mr Gibbs who made him a Constable, to which sd. Gibbs answered that the Constables Staffe was suffitient warrant for him, often saying that hee sd. Gibbs would beare him out in what hee did: But yor complainant often desired to his power and told him that, if hee had had power hee would goe before any person in Authority within the Goverment without any resistance: but the sd. Gibbs denied to shew any power or hue & cry & soe remained there that night; Capt Willet having told him that represented the Constable of Rehoboth that hee would pass his word that yor complainant should bee forthcomming next morning; in the meanetime (as yor complainant is informed) the sd. Gibbs sent a man away to the Constable of Kehoboth & got a deputation from him to apprehend a tellow. And the next morning being 1 uesday the sd. Gibbs commanded yor complainant to goe with him I again told him that I looked upon him to bee but as Benjamin Gibbs, & that if hee would carry mee by warrant before any person in place I would goe along with him; otherwise I would goe about my own buisness; then the sd. Gibbs kept yor complainant all that day as a prisoner at sd. Woodcocks: And after Sunset hee again commanded mee to goe with him as his prisoner to Boston; to wch yor complainant replied that I was in the Kings Dominions in another Goverment & that if hee had any thing to say against mee I was ready to answer him before Authority there to to bee convicted of what crime hee could Lay to my charge; And if hee would not doe it that seeing he had kept mee all day there, soe hee would let mee bee there still next morning it being not the manner in England to carry prisonrs though fellons but between Sun and Sun to which sd. Gibbs replied that it was his pleasure that I should goe then & that they were not to bee taught by mee and soe with all violence hee & one Chickering & some others fell upon mee & haling mee along a good way from the house hee then hired four or five Indians to assist him who also laide violent hands upon mee & bound mee hand & foote with cords & Stirup Leathers & soe tooke mee & carried mee away amongst five of them: After that before they had got mee out of Phmouth Goverment they tooke mee yor complainant & bounde mee in a chaire & then carried mee to the Line, & having sat mee beyond Plimouth bounds the sd. pretended Constable told sd. Gibbs that hee had done his Office & that hee would carry mee noe further: Yet hee came again & carried mee in the chaire a little further & soe left mee bound to the chaire, then I put my hands as they were bound down to my Leggs & unbound them and again told mr Gibbs that if he would yet shew me any power by virtue whereof hee kept mee there I would submit if he would unloose mee, the which he refused onely hee untyed my hands & left mee still tyed about the middle to the chayr then I tooke my knife out of my pocket and cut the stirrup leather that was about my middle & soe got loose & went into Plimouth Colony and so came again about 8. or. 9. a clock in the night to the sd. Woodcocks house; where I desired Entertainment for my mony & soe went to bed: The next Morning being wedensday the sd. pretended constable came into the roome where I lodged & told mee that they waited below for mee; & assoon as I was up the sd. Gibbs (before I had eat or dranck) fell upon mee & the rest with him threw mee upon the Table & in a barbarous & inhumane manner bound mee again hand & foote with great hairy ropes cords & stirrup Leathers & threw mee into a Cart, & the sd. Gibbs bound mee yor complainant by the middle in the Cart where I was joulted too & again untill they had brought mee out of the Goverment, where the fellow that draue the Cart stood still & saide that hee was now as far as theire bounds & would goe noe farther then sd. Gibbs draue the Cart himselfe a little way & the sd. Fellow came after to whome mr Gibbs saide if hee would driue the Cart along farther hee would beare him harmless to whome the sd. Carter replied that if sd. Gibbs would, hee would driue along the Cart & soe upon his promiss did: After this sd. Gibbs told mee that if I would pawn my ring, that I would goe along quietly to the next Constable I should ride upon a horse & they would untye my Leggs; which accordingly I did and soe came to the next Constable, who hath brought mee as hee saith by virtue of a fiue & cry which hee read to mee & told mee that hee was thereby Ordered to deliver mee to the Marshall or his Deputy of Boston, which mr Gibbs sd. was himselfe, who committed mee last night to the custody of the prison keeper.

    Thus may it please yor Honor yor Complainant by these intollerable abuses & almost unheard of cruell usage is wholly taken off his buisness being bound to Virginia as aforesd in a Vessell belonging to mr Saffin, where my goods are; which vessell staies at present onely upon mee to my great detriment besides the irreparable staine to my Credit & reputation in all places where it shalbee reported I was pursued like a Fellon or traitor with hue & cry occasioned by the aforesd Gibbs his illegall proceedings contrary to the Laudable customs of or Nation & deare bought Liberties of Englishmen; For all which yor Complainant in all humility Supplicates yor Honor for redress & Subscribes himselfe

    Yor Honors most humble Servant & Suppliant

    Henry Ashton

    1673

    On the other side, we have among others the depositions of Chickering and of the temporary bearer of the black staff:

    S. F. 1341.39

    Boston: 6: 9: 73.

    Nathaniell Chickring aged 25 yeares or thereabouts testifieth & saith that the 3d of this instant mr Benjamin Gibbs came to my house in Dedham desiring mee to pilot him the way to Rehoboth; upon his request I went with him; in the way hee informed mee that hee went in pursuit of one Henry Ashton who made an Escape from under an arrest; wee passed along the road to Wading River & from thence to ten mile River without any news of Ashton & passing on or way toward Swanzey were informed the sd Ashton had taken up his Lodgeing at mr Iohn Woodcocks at ten mile River. upon which wee returned unto mr Nathaniell Raines one of the Constables of Rehoboth, unto whome the sd mr Gibbs declared his buisness; having been first informed that there was noe higher Authority in that Town; the sd mr Paine deputed Nathaniell Woodcock his Deputy & Deliuered him his staffe to apprehend the sd Ashton & carry back into the Massachusetts Colony, whereupon all returned to the house of the sd Woodcock & the Constable Deputy declared that hee did apprehend the sd Ashton as his prisoner and secured his Armes. upon which the sd Ashton declared as in anger, that hee should know us again, or words to that purpose; next Morning the sd Constable Deputy required Ashton to mount a horseback, Ashton refused; where upon wee suspended untill the sd. Gibbs had dispatch’t a Messenger to goe to mr Brown of Swanzey; upon the return of the Messenger it being almost Sunset the Constable Deputy required sd Ashton to mount a horsback the which hee refused to doe daring any man that should touch him or lay hands on him; but the Constable Deputy requiring us in his Majtyes Name to Assist him wee laide hands on the sd. Ashton & according to Constable Deputy command endeavoured to mount him a horseback: Ashton by fighting and striving endeauored to resist; notwithstanding which wee constreining him along towards Wading River by command he still continuing doing mischeife or damage to seuerall persons, noe man returning him blowes or provoking words in my hearing, perswading him to yeilde himselfe and either to goe or ride on horseback; declaring that what wee did was in Obedience to his Majtyes Officer: I this Deponent hee struck on forehead with something in his hand, which I apprehend was a stone, therewith drawing blood, in which time notwithstanding his violent carriage hauing then bound him, wee did in or armes & in a chayre carry him into the Massachusetts Colony by the Constables Order the sd Gibbs to ease Ashton being striving & strugling hauing his hands bound with a stirrup did take his own neckcloth from his Neck least the band should hurt him but Ashton with his teeth did tare it, at last wee brought him on this side the Line as they declared into or Colony, where the Constable Deputy of Rehoboth deliuered him unto the sd Gibbs Marshall Deputy of Massachusetts Colony of the County of Suffolke, who accordingly received him, Ashton engaging his reputation that if hee would unbinde him hee would not stir, sd Gibbs unlooseing his hands that hee would not run from him; but his hands being unbound hee suddenly escaped back unto the other side of the Pattent Line & then saide Gentlemen now I care for none of you, saying that the Constable had done his worke & they had nothing further to doe with him more & soe returned to mr Iohn Woodcocks; where the Constable Deputy with or selves that were his assistance followed him & the Constable again apprehended him & the next morning the sd. Constable Deputy required us to lay hands on him, for the sd. Ashton saide Gentlemen I suppose you haue some plot in hand let mee see who dare lay hands on mee, by command wee closed in upon; but hee slipped out of or hands betwixt the table & a wall & tooke up a cup & a pot in his hands holding out at us saying lay hands now upon mee on yor perill then wee inclosed upon him and bound him and brought him in a Cart untill that we were in or Colony; after this sd. Ashton desired to bee unbound delivering his ring as a pledge of his demenure as a prisonr & soe mounted a horsback & came along with us to Boston Further the sd. Ashton proffered sd. Gibbs to goe with him before any Authority in that Iurisdiction of Plimouth. Sworn in Court: 6: 9: 73. as Attests

    Jsa Addington Cler.

    S. F. 1341.35

    Nathaniell Woodcock aged Seventeen Yeares or thereabout being Supœned Examined and Sworn Saith

    That on the third day of this month of Novembr being Munday in the afternoon one mr Benjamin Gibbs of Boston came with Nathaniell Chickering to this Deponents Fathers house, who keepes an Ordinary upon the road in the Colony of Plimouth about ten mile from Rehoboth & sitting on horseback at the dore, hee enquired for one Henry Ashton, whom hee sd. was run away under Arrest & that hee sd. Gibbs had a fiue & cry for him which hee read and soe hasted away towards Rehoboth aforesd. Not long after the sd. Henry Ashton came into or house & sat down, upon which my Mother sent mee this Deponent towards the sd. Town to looke after Cattle and if I could see sd mr. Gibbs to tell him that the man hee enquired after was at or house soe finding the Sd. Gibbs I told him mr Ashton was at or house then wee went together to Henry Smiths who directed him to mr Natha Paine the Constable, who upon mr Gibbs complaint made mee this Deponent his Deputy & gaue mee his Staffe from thence I this Deponant went with sd. Gibbs home to my Father Woodcocks house & mr Gibbs goeing in before mee spake to sd Ashton who was in Capt Willets Company & immediately mr Gibbs saide to mee this is the man doe yor office, I require you to apprehend him: Whereupon i this Deponent as the Constables Deputy went & clapped him sd Ashton on the Shoulder & saide i apprehend you in his Maj Isaine you are my prisoner, soe after some words the sd. Aston asked by what power I did this & Capt Willet also asked who made mee a Constable; mr Gibbs answered that the Constables staffe was suffitient warrant; soe Capt Willet promised to bee his bayle & to see him forth comming the next morning at which time there was Capt Willet & his Soon Hezekiah Roger Prosser & Tho: Roggerson; the next morning after Capt Willet and his Company were gone I this Deponent having pressed a Mare for him sd. Ashton to ride on, I asked him to goe & commanded him in his Majtyes Name to goe, but hee refused, soe wee used noe violence towards him at that time, but mr Gibbs sent away to Town & the messenger (being my brother Iohn Woodcock) comming home again saide that mr Brown the Magistrate was not at home (at which time hee brought with him a deputation from the sd Constable under his hand) which before was but before Witness. Then in the Evening mr Gibbs bid mee this Deponent command the sd. Ashton again to goe, who still refused, but saide if wee would command him to goe before any Magistrate within the sd. Colony as hee was or prisoner hee would goe quietly with us but sd. Gibbs told him sd. Ashton if hee would bee unruly hee should bee bound; Notwithstanding the sd. Ashton resisted & refused to bee carried back into the bay pattent but began to strike & kick one & then another; then I this Deponent by sd Gibbs his order (who promised to beare mee harmless) did command the Standers by to binde him the sd. Ashton soe mr Gibbs & Nathaniell Chickering with indians & others with my selfe laide hold on him sd Ashton & bound him hand & foote & laide him upon a horse to carry him out of or Colony but hee would not lye across the horse neither would hee goe but wee carried him in or Armes a good way of the house and then sent back for a chaire & set him in that & with a string about his middle bound him to the back of sd chaire & soe carried him & set him beyond the Line neere the heap of Stones, then Looking about & thinking I had done my Office being a Little within the bay Line; mr Gibbs commanded mee this Deponent to Assist him, for now hee is my prisoner hee being Marshalls Deputy then Nathaniell Chickering went to strike fire and mr Gibbs to gather fuell to kindle it, it being about an hour in the night & mr Ashton being still bound in the sd Chayre desired mr Gibbs to untye his hands because the straps hurt him, telling mr Gibbs hee need not fear his budging from him, soe mr Gibbs unbound his hands & soon after hee started up & whether hee cut the string about his middle that bound him to the back of the chaire I this Deponent know not, but hee sd. Ashton went into Plimouth Pattent again & saide my Deputation was out & that wee had nothing to doe with him with many words to that purpose & soe went along the road toward or house and then mr Gibbs called to mee this Deponent to apprehend him sd. Ashton again telling mee I had the same power haueing the Constables staffe & as we went towards the house mr Gibbs drew the rapier hee had taken from sd. Ashton who came towards him and bid him stand off upon his perill soe wee all came back to my Fathers house & when I came in I called witness to take notice that sd. Ashton was my prisoner, soe when the sd. Ashton went to his Chamber wee shut him in & mr Gibbs sat up that night: The next morning I this Deponent went up to mr Ashton and desired him to rise that wee might bee gone, who answered hee would rise when hee saw his time, mean while by mr Gibbs his Order wee had provided a Cart to carry him sd. Ashton in & soon after he came down this deponent in his Majtyes Name required him to goe who refused with many high words & tooke hold of a pint pot & a cup that was upon the table and bid us come upon or perill, soe mr Gibbs & my selfe & Na: Chickering & Iohn Woodcock laide hold on him sd. Ashton and laide him on the Table & bound him again hand & foote & laide him in the Cart Roger Prosser being there and soe wee draue the Cart out of the Colony with the sd. Ashton in it, then mr Gibbs commanded my brother Iohn in his Maties Name to driue the Cart along & hee would beare him out in it; & after hee sd. Ashton had rode bound in the Cart about a mile the sd. Ashton desired us to let him ride upon a horse & hee would bee quiet & not offer any abuse, soe hee gaue mee this Deponent his ring as a pledge thereof & soe I unbound his Leggs & the strings that pinioned his armes were slack & soe hee came out of the Cart & rode upon the beast I this Deponent had pressed for him till hee came to the Constable of Rentham, but whiles mr Gibbs went back to get a dram sd. Ashton asked mee this Deponent what hee should giue mee to bee his pilot to the other road for hee had a minde to meet with mr Saffin, to which I answered I thought as mr Gibbs told mee that I had power by virtue of the hiue and cry to deliver him sd. Ashton to the neerest Constable and when wee were come to Rendham mr Gibbs gaue the sd. Constable the sd. hiue and cry, which hee had all this time in his custody & at sd Constables house hee then gaue mee a Coppie thereof & the sd. Constable tooke the Originall & all this time wee were kept in the darke concerning the hue & cry mr Paine since told mee & I thought it had been legall: And farther I this Deponent doe testify that it was for the value of One hundred pounds that sd. Ashton made an Escape for, as sd. mr Gibbs told mee: And farther this Deponent saith that when sd. Ashton was bindeing on the table hee asked by what power wee did soe use him & this Deponents Mother Sarah Woodcock read the deputation soe far as to giue mr Ashton to understand I had a power from the Constable but did not read it throughout & for all my paines in & about the purmisses mr Gibbs gaue mee this Deponent eight shillings in mony and further saith not. Taken upon Oath before mee lames Brown Assistant the tenth day of Novembr 73.

    Apparently most of the Woodcock family, with several neighbors, joined this triumphal procession into Boston headed by Benjamin Gibbs and the constable of Wrentham; for there are on record several of their depositions, made in Boston a few days later. Ashton was let out of jail the next day, November 7, on Saffin’s filing a bond for his appearance at the next County Court (S. F. 1341.30), and Ashton promptly filed a cross suit against Gibbs for unlawful arrest, etc., which is the suit recorded in the entry to which these notes have been appended. Gibbs appealed from the judgment on behalf of the plaintiff; and at the same time Bonner appealed from the judgment against him on the same day (S. F. 1341.17):

    John Bonner his Reasons of Appeal from the Judgment of a County Court at Boston held January the 27th 1673. in an Action of Review against Henry Ashton defendant.

    Whereas the said Ashton in the beginning of his false pretences of great dammages when he commenced this Action formerly did raise through subtilty an evill and false report vpon the sd Bonner to make him out of favour with his judges & himself in Credit that wt the sd Ashton did say or pretend might goe for good proof as it seemes it did with the juries (as J conceive) in which they have grosly erred and gon contrary to Law & Evidence as J conceive, viz as in the sd Ashtons first proces at July Court 1672 in Boston he sues ye sd Bonner [torn] Ashton & his goods & servants to Virginia according to Bills of loading [which] he had fulled ag[re]ed with the sd Bonner before he sued to take all his goods & servants here in Boston & had received them to his content for well conditioned according to Bills of loading & would choose to stay here & refused to goe to Virginia & vpon the aforsd Agreement the sd Bonner had allowed ye sd Ashton eleven pounds in money besides abatements in freight in Consideration of all los & Dammages disappoyntments or others that ye sd Ashton had or might pretend ever hereafter all which sd Agreements & performance on Bonners parte appeares fully by the Evidences of George Peirson Thomas Peck John Sunderland & Jarvis Ballard & a paper vnder their hands of parte of the Essentiall matter of the Agreement that ye aforsd Depositions proves effectually the wholl Agreement with the Conditions Considerations & Circumstances thereof, & shall the paper vnder their hands be taken for all the Agreement as the juries did (as J conceive) wheras the sd Peirson & Peck were at the makeing of all the wholl Agreement & Peirson made ye written paper as parte of the sd Agreement at the sd time & is a witnes to it & noe Allteration was of the wholl Agreement in words or any intermission of time; but only the written paper had not all the words of the Agreement in it by reason the sd. Ashton & Bonner did not desire any writeing to be made at all being all things was to be done & performed between them forthwith & were careles not valueing any thing at all to be written, but the sd Peirson would doe it & wrot only the heades of the matter & is it law or reason that the minor parte the writeing shall [torn] before the evidences which are the major or full [torn]ned by Ashton long afterwards to John sunderland, as by his Evidence. And is it not Reason & Law with high Equity for a jury to take all the Evidences according to their oathes that is presented to them & consider them altogether for ye proof of ye matter & for the finding out the true merrit of the Case in what was don according to the true intent & meaning therof. & not to run vpon Criticks or Notions yt one may start to wrong or deceive a man of his iust right as for Example suppose a man should buy a horse with Bridle & saddle of another man for three or foure pounds & pay for all presently before severall witneses & the buyer leaves the horse bridle & saddle in the sellers hand vntill he send for them & only take a noate or writeing vnder hand before the sd witneses that the man is to deliver ye horse when the sd buyer sends for him & dos not mention ye bridle & saddle in the writeing. what shall the seller insist vpon ye writeing or noate & say this agreement was only for the horse & soe keep the Bridle & saddle which may be more worth then the horse & plead his writeing only for to be the wholl Agreement for the horse notwithstanding several witneses come in & witnes that he bought & was to [torn] ye bridle & saddle also is this reason Law or Equity, even soe is [torn] Case which J leave to consideration of my judges as a reason of [my] Appeal.

    2d. Reason of my appeal is for that the ju[ry brou]ght i[n the]ir verdict confirmation of a former verdict of seventy pounds money Dammages [and] Costs of Court against the now Plaintiff to which he sayeth that [the] jury herein have erred & gon contrary to Law & Evidence & plain Reason (as J conceive) & that for these Reasons first ye sd Ashton [does] not in the least sue for or mention any dammage or summe in all [hi]s Attachment & how could any jury be soe blinde or ignorant to give dammage where none is sued for nor proved. nor said wt summe [it] amounts vnto & they are to observe the Attachment & the Attach[ment] is only for not carrying him Goods & servants to Virginia & deliver them there & not one word of A penny dammage as the verdict is for; sustained by his not soe doeing; or for any other thing pretended at all in the Attachment. & as to what is in his Attachment sued for his written agreement & all the Evidences together or apart doe fully prove that he was to have & had his goods & servants delivered her[e] & it was impossible that the now plaintif Bonner could be justly s[ued] to deliver his goods in Virginia & here too, which is the summe & substance of his Attachment of wt he sued Bonner for when he had as bef[ore] agreed to take all here & had eleven pounds & other abatement[s al]lowed in full to the sd Ashtons content & satisfaction as appeares [torn] specifyed. & will or ought he now to have twice satisfaction o[torn] for one & the same th[ing] as the juries hithertoo have given him [&] had the sd Ashton de[liver]ed vp the Bills [of load]ing [accordin]g to Agreement he could not have had any such [torn]

    3d Reason of Appeal is in yt ye sd Ashton dos not at all prove any dammage sust[ain]ed to the value of the eleven pounds J did allow him nor halfe [as] much in all his Accoumpt by gues pretended soe that he neit[her] sues for dammage nor legally proves any Dammage & ye the [jurie] by gues (as J conceive) gives him seventy pounds & Costs of Court as J shall speake to it. The first post in his Accoumpt by gues is for seven servants ran away from aboard at sixty pounds of ye seve[nty] wch the jury gave which is a false post charged, for that J never tooke aboard as servants but as passengers if they went & J tooke noe charge to keep them aboard nor would give any receipt vp[on] any such Accoumpt but did declare to the sd Ashton J would not by reason the vessell lay mostly aground in all places & J could not secure them from goeing ashoar vntill J came to sea & ye sd Ashton did beate those servants of his aboard & ashoare inhumanely & made them run away The next post is for two men for Cookes when as all my seamen had little els to doe lying in harbour most parte of the time & I had Cooks of my owne men & never desired any of his for Cook nor agreed nor promised him a penny & wt little they did was of their owne accord & Ashton proves nothing otherwise: And ye next post is for his charge for Exp[ences] asho[torn]00: when as he might have stayed on board & saved it although he never payed a penny for his passage or dyet aboard to this day. & is it usuall for Masters of vessells to pay a passengers expences ashoar but this demaund is like ye rest And to ye dammage of his cloath & fustion 30s if any such was he had packed it in a sugar butt yt did it, & not the vessell. & for cheese all men know will dammage of it self at sea. And for the mault 10l its very false & none but his man Jn Jreland sweares yt it seemed to be damnyfyed not yt it was soe, & that sorry fellow was a meere theif & stool the Cargoes goods & blaspheamously forswoar it & afterwards owned it when found with him & this Miserable wretch is all his Evidence in all his wholl Accoumpt, but if he had any dammage why did he not let it be seen & gon in a legall way as vsuall to have m[e] apprized it & let me know of it which he never did by reason he had not any dammage by ye vessell or seamen he well knew. And to his last post to ballance he charges 100l for not carrying him for Virginia a summe even guessed neither more nor less like a very knowing or foreseeing merchant yt knew his market before he came there. This last post is as vnreasonable as the first of his servants yt had eaten vp the ships provision many months & then ran away by his abuseing of them & he never allowed a penny for it, & for all this last post he had satisfaction here; for his not goeing to Virginia [torn] before appear[ing] yet makes this post to have [torn] known yt he got [forre]ved rather 100l by not goeing to Virginia as he owned in saying he was glad yt he did not goe to Virginia as per ye deposition of Jarvis Ballard appeares for he sould his goods at a very great rate here & had Tobacco here cheaper then would have cost with the Charges in Virginia. & most men lost very much yt yeare by goeing to Virginia in trading there. & yet this vnreasonable man makes this false Account & vnreasonable demaunds & proves not nor sues for in the Attachment of one penny dammage of ye juries seventy pounds wh[ich] they are by their oath to have full & legall proof for all that they doe & they have not one evidence at all to the Accoumpt in Law but a forsworn theif to a seeming thing & not soe much as Ashtons own oath to one perticular that he esteemed true which is remarkable, soe that J have fully demonstrated & proved that the iury had neither Law nor Evidence for [what] they did but have erred as is not vsuall in a matter soe cleare as if theire oath did binde them to goe by vncertainety in place of Law & evidence (as J conceive) . . .

    The rest of the document is mutilated.

    Gibbs’s Reasons of Appeal can be partially reconstructed from the following Answer to them (S. F. 1341.21):

    Richard Way Attorney Appointed by the Last Honord County Courtt held Att Boston His Answr To Benjamin Gibbs His Resons of Appeale:

    Jmprs: To his First prtended Reson Js Only Grounded vpon Reflection Against the Honord County Court and therefore Contrary to Law title Appeales wch Saith thatt ye Appellant shall Enter his Resons Without Reflections vpon ye Court or party butt being Contrary to Law ye Deft Hopes this Honord Court Will see Cause and Ground sufficient to Cast his Resons (or More Like Clamerous Words) out of ye Courtt: But the Last Honord Court Went both by Law and Euidence as Will Planely Appeare Jn ye Tryall of the Case:

    2 To his ad: Wee Deny his Assertion For there Was sufficient Euidence (and still is) sufficiently to proue his Barbarous vnhumaine and vnchristian Like fact Both Jn this Jurisdiction and Also outt of this Jurisdiction To ye prson Namely Mr Ashton: And Also the prson that had the Constables staffe in Plimoth Collony was vndr Couert Bame in his Fathers tuition and therefore not Capable of Taking any office vpon him

    3. To his: 3d Wherein he prtends that ye prson Arrested was in the possession of ye officr, Wee Own he was once prtendedly in ye possession of ye plt: And had his Liberty from ye officr to goe About his Buisness and Jllegally prsued by ye plt and to his Reflect vpon ye Last Honord Court J shall Leaue to this Honrd Courts Consideration & Determination therein

    4: To his: 4: Jf an officr Doe neglect his Duty Jn his office that Doth not Justify any officer in ye Jndeauoring to Doe his Duty Jn an Jllegal way:

    5: To his: 5: There Js nothing of Reson in it neither Js it att all parralell to this Case:

    6: To his 6: whereas he saith that Jf any Damage be Done ye Marshall must suffer being ye only Gainer, To Answr though ye plt was Deputy Marshall here Jn Boston yet he prsued not mr Aston by vertue of yt Attacht but by vertue of A Warrant From ye Worshipfull mr Bradstreat and whom soeur he Jmplyed and Acted in ye Buisness After his Going outt of Boston he ye plt Jngaged to bare them Harmeless in what they Did; and Jn ye prosecution of yt Warrant he was neithr Jmpowred as marshalls Deputy nor Constables Deputy.

    7. To ye 7th & Last Jll is only a Reflection vpon ye Honord County Court whom J higly Honr and Respect and Judg they Did notthing Butt what was Just And Legall All which J shall Leaue To this Honord Courtt and Jury to Determine:

    The appeal was heard at the March session 1673/74 before the Court of Assistants, which confirmed the former judgment in favor of Ashton (Records of Court of Assistants, i. 3). And thus, some three years and a half subsequent to his sailing from Liverpool on the Recovery, Henry Ashton was allowed to depart in peace for Virginia.]

    Mosely agt Stanes

    Richard Mosely as Administrator unto the Estate sometime the Estate of Nicholas Gouldensburgh deceased plaint. agst Ioice Stanes sole Executrix to the last Will & Testamt of Richd Stanes sometime of Boston deceased Defendt in an accion of the case for the sd Stanes her refuseing to deliver unto the sd Mosely a just & true accot with the produce thereof of what goods mony or other specie Shee hath in her hands belonging to the abouesd Estate or that was at any time left by the sd Gouldensburgh in the custody of her late husband Richd Stanes or betrusted with him or the sd Ioice Stanes to dispose thereof for the sd Gouldensburghs accot & for her refusing to make just & Legall Satisfaction for the same, although [184] Lawfully demanded according to Attachmt Dat Ianuary 2d 1673. . . . The Iury . . . founde for the plaint. that the Defendt give a just & true Account of all the goods & monys delivered to her or Left by the sd Gouldensburgh in the custody of her late husband Stanes & deliver the same with the produce thereof to the plaint, within the space of twelve dayes next Ensuing or to pay the sd Mosely Forty pounds Sterling in currant New-England mony at the time aforesd & costs of Court.

    Sharp agt Rider &a

    Iohn Sharp, plaint against Iohn Rider & William Crutchlow or either of them as Administrators to the Estate of Thomas Badgard deceased Defendts in an action of the case for the nonpaiment of a debt of four hundred eighty three gilders ten Stivers Wampum value, which is thirteen pounds nine shillings & four pence mony or thereabouts, with costs, which is fourteen shillings & eight pence more due to the sd Iohn Sharp by a judgmt passed agst the sd Rider & Crutchlow at a Court held the third day of Iune 1673. in New Yorke; which debt is due in part by a specialty paiable to William Phillips bearing date the twenty fourth day of Octobr 1672 & assigned to sd Sharp & the other part by ballance of Account stated Decembr the 30th 1672 both which specialty & account aforesaide was accepted to pay & underwritten by sd Rider & Crutchlow according to contents & all other due damages according to Attachmt Dat 7th of Ianuary 1673 . . . the Iury . . . founde for the plaint. four hundred eighty three gilders ten Stivers or the just & true value thereof which is twelve pounds one shilling nine pence in currant pay & costs of Courts. The Defendt appealed from this judgmt to the next Court of Assistants & the sd Iohn Rider as principall in twenty five pounds & Wm Kent & Iohn Paine as Sureties in twelve pounds ten Shillings apeice acknowledged themselves respectiuely bound to . . . prosecute his Appeal . . .

    [The Reasons of Appeal cannot be found; but there is an interesting story of John Sharpe’s adventures in his Answer to the Reasons of Appeal (S. F. 1267.2):

    To the honnoured Court of Assistance, and the worthy Gentlemen of the Jury, John Sharpe in all humillity Sheweth his answer to the reasons of Appeale of Mr John Rider from the verdict of the Jury seruing ye Last County Court, and Judgment passed Thereupon.

    Imprs, Whereas the plt alleageth in his first reason that the testimony of Mr Mathias Nicolls cannot stand good in Law. for that hee is a party, this def answereth; that Iohn Ryder and William Cruchlow, only signed as Administrators to ye bill of 200 guilders, without once mentioning the name of said Nicolls, and as this def allwayes understood and other Creditors, to said estate was informed, said Capt Nicolls was afterward impowred or added to said Rider and Cruchlow, by the honnord Gouernor and his Councell, as Ouerseer, Controler, or Suprouizer, ouer said Administrators, to the end, That Creditors, or next heyres to said Badgards Estate, (being looked upon considerable,) might not by any sinester dealings be wronged as by Capt Nicolls testimony will Euidently appeare, who if personally before this honord Court did appeare, the Plantiffe would not shew his face before yor honrs in this accion, on his owne defence, to proue the same, said Capt Nicolls signed or underwritt not his approbation of said bill of 200. Guilders, untill 3 moneths after wch was payable as in forme of bill of Exchange, in tenn dayes after Reception, wch is neare 18 monthes since, by wch dealing, this deft is greatly damnified, the plt with ye other administrator Cruchlow then engaging without any exception or Prouisoe to pay ye said two hundred guilders in ten dayes after ye sd accepting, neither Can this Plt bee soe great a Creditor to the intestates estate, as hee pretends for that hee the deft hath seene ye intestate in his life tyme, pay the said Ryder more Beauers, wch was weighed in Mr Darualls shopp, then this def receiued in three yeares for neare twenty lodgers, (fast & loose) wch Beauers, are neuer owned by the Plt, and further Mr Delauall and Mr Daruall sent in, and paid for, all, or most part of the wyne beere and other considerable matters, relating to funerall expences as Mr Derualls accont will euidence, neither did ye plt at the making up the acconts of Badgards. by or at a Publique meeting, published, for yt purpose Euer pretend, or lay clayme to any thing of said estate, when all the Creditors made their claymes. as appeares by Capt Nicolls Testimony, (but since) the pit thinkes to defraud Creditors, and heyres, by and under, the pretence and notion, of New Yorkes being taken, (and therewith all the estate of Capt Badgard) which is plainly euidenced to the contrary of by Andrew Jansons testimony, which the plt by his fallacious retorique, endeauours to make Voyd, as alsoe Mr Mathias Nicols testimony who hath bine tenn yeares Principle Secretary of New Yorke, and soe Long a Magistrate, or Minister of Justice, of the first quallitty, (Vizt, of Coram, & Privy Councell) and of unspotted and unblemished reputation.

    2dly. And wheras the Plt alleageth Andrew Janson was a sworne subject to the Prince of Orange &c. its a very great fallacye and untruth, hee neuer hauing any oath, either proposed, or administred to him, but integretly owned in his testimony, that was the Second tyme, hee was unfortunately taken by the Duch, the first tyme of which hee was carryed Prizoner to Amsterdam, where by his hard usage, hee would come noe more there if hee could avoyd it, to wch end being taken at Virginia now, or latly A second tyme, understanding the Duch fleete were bound to his Maties territoryes hee promised to himselfe, noe greater opportunity to make his escape, then to take up Armes under the duch Command, wch he did, and proued extreamly Ciuill to this defendt, in his close imprisonment, as well as to diuers others of our English Nation, who were then, and there, under restraint, and as soone as oportunity presented the said person fledd from his Duch Masters, and hauing bine in this towne and Endeauored to make discouery of some Suspitions of Duch persons (for want of Subsistance) is gone to sea in a Ship, or vessell bellonging to this towne, but had the said Andrew Janson sworne alleagiance to the Duch, (as hee did never) his said Oath to the duch had bine of noe validity, it being of noe force longer, then hee abode under their Gouernment, as is the contents of all Oathes administred to the English since the Duch reducement, wherefore Mr Ryders bare allegation, of said Andrews Oath as a Subject to holland, wch was taken in Boston, the deft hopeth will not make it Voyd, by reason (when administred) in Boston A subject of England, as is proved,

    3ly And whereas, the Plt sayes the deft produced but one bill, and that was but for Two hundred Guilders. ye Def owneth the same, but hee produced an account of Two hundred Eighty three Guilders ten Styvers, more and besides the first bill, which Account was accepted, allowed, and approued off, by the said Administratrs and a Kind of a breife bill, indorsed on the back side thereof, wch was with the former by the hand of the deft in Presents of diuers persons deliuered into Court at New Yorke, as alsoe was in the hands of the Jury and the whole owned by this plantiff in the court of the County Otherwise the said Jury were very rash to bring in a Verdict for 483. guilders tenn styvers: upon a bare bill (: & that not Obligatory) for, or by ye Simple, or Only bill of Two hundred Guilders; as the Plt alleageth, which Account is said to bee lost, but how, or by what meanes, this deft Knoweth not, (which if really lost in Court or by Jury,) hee hopeth hee shall not loose his right, by, or for Such an unfortunate defect, the Judgment of New Yorke Court manifesting, that the plt confessed the whole debt of 483. guilders ten styvers, and promised payment of the same, Although taking advantage of the loosing said Account; Falsely asserting hee never underwritt or signed for more then the bill of 200 Guilders, as beforesaid, wch hath bine seene and read as this deft conceiues by some of the former honoble Bench as well as the Jury, and many others;

    4ly As to the Plts allegation of my taking out the Coppy of the Judgment after New Yorke was taken, it is a Very great falcehood and untruth, for yt I shall bee allwayes ready to make Oath, that I had it in my Posession, the very next day after the Court rise, wch was on the 4 or 5th June, and New Yorke not taken untill the 30th July. Neither is Bayard ye Duch Secretary, soe much my good Freind, as the Plt alleages. hee forceing mee at my banishment from Thence, to leaue in his hands, Spetialtyes, bills and accounts, ammounting to 7000. Guilders, when as I was in his debt but 2500: Guilders. neither would Said Bayard giue mee a receipt for the same, which I durst not dispute with him for, fearing the welfare of my Poore wife and Children, under the frownes of soe powerfull an enemye, left behind, under their command. In my banishment and absence, (God knowes, litle tokens of great freindshipp)

    5:ly The Plt desires your obseruacion how Cautious the Court of New Yorke was, in ordering Noe Execution to be issued forth, before next Court day, which was granted, at his importunate and solicitous motion, to the end, hee might haue a litle tyme to make up Badgards accounts, wch ye Court long debated on, and At length granted, but upon noe other Consideration, although the Plt is Pleased to make other eiuell constructions therof, vide Capt Nicolls testimony as to Effects, I shall not trouble the honod Court and Jury with more answer to that reason.

    6:ly. As litle as may bee I shall answer to his 6th reason, there being litle or noe truth therein, and as litle to the merrit of our cause, by reason I haue proued hee hath not lost his estate, vide testimony of Andrew Janson but admitt it were soe, this bill and accot for which, I sue, was due & ought to haue bine paid, long before the plt could pretend his Estate was lost, or New Yorke taken; wch I pray ye honnord Court and Jury to consider of by date

    7ly And wheras the Plt alleageth in his 7th reason that the Judgment is bill and not bills, hee contradicts himselfe and makes him guilty of a manifest fallacye as by his 4th reason in 5 lyne will appeare, wherin there is by his owne penn owned, that the Judgment inserts bills, wherefore the Plt being depriued of all his reason, I shall not answer more to this, Neither as the deft humbly conceiueth is it materiall or requisite.

    8. In breefe may it please this honourd Court and Gentlemen of the Jury, in answer the plts 8th reason, the deft humbly replyeth that ye testimony of Capt Nicolls alone is sufficient to evade it, and make it of noe Validity

    9ly & 10ly In answer to ye Plts said 2 reasons. in the first of which, hee charging the Deft, with a Duch Protection, a more notorious untruth was neuer written or Spoken, the defent being commanded first to serue in a publick affayre in which discharging his trust faithfully, for his imployer the deputy gouernor and country, without Feare of the Duch menacings and threatenings, tended more to the Defts Ruine then Any other person in New Yorke, Except Mr Delaualls family as will appeare, by their unkind dealings with him, Vizt, first they ceased and confiscated all his bedding to Number 11 Pueter, Brasse, Iron, and all or most part of his Moueables & debts to Vallue £750 not leauing him a pot to boyle his childrens victualls in, nor thing to drinke in, Neither had his wife any, untill hee, after his ariuall hither, bought one of Mr Shrimpton cost 5.s 6.d & sent it by Capt Dauenport: presently after, the Duch sent a Guard of Musqueteirs, put ye Deft prizoner on the maine Guard where hee continued & was detayned 5 nights & dayes: with his lodging on ye boards, among some of their theiues and rougues, in Irons: and after sent home Soe lowsey, and Full of Vermine, that hee durst not bed with his wife, Vntill such tyme shee had gone to the neighbours and borrowed him a Shirt, hee hauing lost 23. and not one left him in the world. neither For himsefe wife and Children: then they made an Edict that I must bee banished in 6 weekes, which tyme they gaue mee to receiue what debts I Could; and pay what I Owed to their nation, (wch amounted to £:240:) that I payd them. but notwithstanding my wife put in seuerall Petitions to Obteyne longer tyme to gett my debts or some part of them, for her & her childrens subsistance in my banishment, yet it would by noe means bee granted, but oblidged & forced mee away at ye Very 6 weekes end, and since my Departure, shee hath giuen in 7 Petitions more for my admission But for 3 or 4 moneths liberty to bee there, to settle my affayres gett in, and collect my debts, and transporting my familly from thence Which hath bine noe more prevalent. then the former, but an absolute denyall therof, In consideration of wch uncomfortable life hee thereby this 6 moneths hath liued, depriued of his wife and childrens sosciety, and litle or nothing heere to maintaine him, but ye Charitable fauours of some good Christians his acquaintance therupon hee latly tooke up a resolution with that Caution (if hee could obteyne the honnord Gouernors pass) about the tenth of Aprill hee would goe as farr as Rye; the westermost bounds of Hartford Collony, there being ariued, send for his wife, with some bookes, and papers, hee hath of debts in the Indies, and imediately after to take shipping For Barbadoes, (if an Army doe not by that tyme goe from hence thitherward), for which motion this defent hath wayted 5 moneths at a great Expence and charge, this is the trew account of my sufferings and designes; although ye Plt studyes with his Rabshaka raylings revileings, & scurruluous defamations, not only to defraud mee of my Just debt, but take away my life or good name, if posible The deft therfore humbly prayeth pardon for his prolixity, fearing to trouble your honnors with a larger reply, to the plts ten reasons: and humbly referreth the Justice of his cause to your honnors and the Jurys prudent mannagement, according to Law. Equity, and good Conscience with a due consideration, it hath passed 2 Courts & One Jurye and One Verdict and 2 Judgments had and obteyned therupon allready &c

    Your honnors humbly devoted, and poore Subject, & faithfull servant,

    John Sharpe

    The Court of Assistants found for the plaintiff in error, and reversed the former judgment and costs. Records of the Court of Assistants, i. 7.]

    Bonner agt Ashton

    John Bonner or his Attourny or Assigne plaint. agst Henry Ashton Defendt in an accion of reveiw [185] of an accion tried & judgmt granted thereupon at a County Court held in Boston the 30th day of Iuly 1672 against the sd Bonner the abouesd Ashton being plaintiffe & the sd Bonner Defendt & other due damages according to Attachmt Dat the first day of Novembr 1673. . . . The Jury . . . founde for the Defendt confirmacion of the judgment of the former Court & costs of Court. The plaint, appealed from this judgmr to the next Court of Assistants & the sd Iohn Bonner as principall in ten pounds & Benjn Gibbs & Stephen Butler as Sureties in five pounds apeice acknowledged themselves respectively bound to . . . prosecute his appeal . . .

    [See the first case this session, above, p. 347, and Index.]

    Bonner agt Ashton

    Iohn Bonner or his Attourny or Assigne plaint. agst Henry Ashton Defendt in an accion of the case for not performing an Agreemt made between the sd Bonner & the sd Ashton, relating to a voiadge in the Catch Recovery from Liverpool & intended for Virginia but here ended by an agreemt made as abouesd on or about the 28 day of May in the yeare 1672 which sd Ashton hath not performed on his part to the great damage of the sd Bonner & other due damages according to Attachmt Dat the first day of Novembr 1673. . . . The Jury . . . founde for the plaint. Forty six pounds in mony for debt & damage & costs of Court.

    [See the first case this session, above, p. 347, and Index.]

    Melyn agt Dudson

    Isaac Melyn plaint. agt Capt Ioseph Dudson pretended Master of the Ship Expectation Defendt according to Attachmt Dat Ianuary 19th 1673. The Accion being called the Court having heard the allegacions both of plaintiffe Defendt & considering that the Generall Court haue established a Court of Admiralty: The Court Looks at this case to bee most proper for the cognizance of such a Court & therefore dismiss the accion from this Court & Order the plaint. his Entry mony again.

    Darvall agt Dudson

    William Darvall plaint. agt Ioseph Dudson pretended Master of the Ship Expectation Defendt according to Attachmt Dat Ianuary 21th 1673. The Accion being called & the Court having heard the allegacions of plaint. Defendt & considering that the General Court have [186] Established a Court of Admiralty. The Court judge this case most proper for the cognizance of such a Court & therefore dismiss the accion from this Court & Order the plaint. his Entry mony again.

    [The facts in this interesting admiralty case are related in a lengthy petition of Isaac Melyen to the General Court (S. F. 162130.2):

    To the Honorable Generall Court now assembled in Boston The Peticion of Jsaack Melyen humbly sheweth

    That whereas yor peticioner is by force Vnjustly kept out of the Vse and possesion of his shipp Called the Expectation, Meerely upon the false pretence of mr Ioseph Dudson & his Complices Yor peticioner hauing a lust Right as Sole owner of said shipp, and for as much as this honored Court at last Session had some Debate Concerning the premises, and did not then fully Determine any thing or giue any decisiue Centence therein, But left the sd Dudson to his libertye to fitt the sd ship for England, as by Coppye of the Courts Record may appear a Coppye where of is heare annexed, the principall under the Secretaries hand is redy to bee produced to Compare if Required by the Honord Court, soe that the true Sence of the Courts Record is that said Dudson had his Libertye to fitt said ship, or not to fitt her, and when soe done hee is att his Libertye, whether hee will send her for England or nott, as I humbly Conceiue from the words of said Record, and the Record is all my rule to act by; from which Libertye I did Concl[ude] by necessary Consequence, I was left to my Libertye to proceed in Common Law for my Right and in persuance thereof I did intend to sue any that Should denye mee possesion of my ship and in my goeing to obtaine possesion I found not any person one Board sd shipp at all—Whereupon I did peaceably Enter the said ship, and tooke possesion wth some freinds wth mee of her, and declared it unto them, which I humbly Conceiue is all according to the Common Law and Vsuall practise of many in the like Case, and presedents may bee Cited; only one att present, in a Case Between the Executrs of the late honord Gournor and mr Richd Wharton attourney to young mr Bellingham Concerning a parcell of land aboute this towne, where possesion was taken by both partyes of said land finding none uisible in possesion, and further a Lock broke of the gate and all this was accounted Legall the Last Countye Court as I Conceiue669—But ye peticionr for takeing possesion as aboue of my ship, was by the misinformation and Stirring up the authoritye by my opposite partyes, Committed to prison, wth three more, and am wth them still prisonrs undr one thousand pound Bond wth Securitye for my selfe, all which J Conceiue is hard measure, for a poore man that has Lost all, and a Stranger,

    Now may it pleass this Honord Court to Considr my Innocency in this matter, and that it may pleass ye Lord to Moue yor Charitye to Conclude the prosedings of my opposite partyes haue byn much like it from the first Sezing and takeing of my ship from mee,

    First the grounds of my takeing possesion as aboue mentioned, was from the honorable Generall Courts Act, manifested by the Coppye of the Record, undr the Secretaryes hand that both partyes was left to theyre Libertye, and soe to proceed in Common Law, which is open to all, and the true Right according to the first law in our Law Booke of Euery Subject to haue the benefit of—Nay further the King has put forth a proclamation or Declaration since the warr w holland, that if any dutch man, or a subject of the states shall Come ouer into any of his majests Dominions, wth his goods or Estate, it shall bee accepted & protected and haue Equall priuiledge of the Laws, and benefit of safety and Releife, as his English Subjects, if they will owne themselues Subjects to his Majestye, Notwithstanding they had byn [torn] Enemies to his majestye while they liued in holland; And why my partyes should pretend mee an Enemy and an Alient, that haue my Deneziation to shew, and was borne at New hauen in this Country I Leaue to Consideration—And Secondly it was needless for mee to Sue for possesion, when I might haue it peaceably wthout opposition, and without Breach of any Law, or Contempt of any Authoritye by any prohibition or Effectuell ordr in the Generall Courts Record as aboue; for had any thing byn determined in the abouesd Record, for the shipp to bee sent for England, Securitye giuen that the ship should bee there brought for tryall, and I Liberty to goe peaceably in her, I should not haue attempted to haue taken possesion, or [done] anything to Contemne what the honord Court had done;—Now may it pleass the Lord to moue in pittye the hearts of his honorable assembly to Consider a poore strangers Condition, who is almost freindless and monyless, that Since by prouidence, nothing is [torn]tically acted by this honorble Court Vpon Record, That you will bee pleased to graunt yor poore peticionr this only fauoure, to haue a tryall heare, att Common Law or other tryall heare, as yor honors shall Iudge fittest, and my Distressed Condition Nesesitates mee to presume, to present theise Reasons to yor fauorable Considerations for a tryall heare; vizt—First, for that I haue something left mee, unbereued of att New York with my wife and Children, wch J would remoue to some of theise Collonyes for safety which if I must goe for England, will bee Lost, and my family Exposed to misery and want—Secondly, heare is my ship & heare, I haue had peaceable and Legall possesion of, and am Dispossesed againe, as to a personall possesion, But I Conceiue Equally and Legally in Right of possesion still, and here I make my Claime to it and am Redy to proue my Right to the ship Effectually—and there is most of the goods aboard of her belongs to the Inhabitants of this place, and the partyes all heare to make good theire Right, which cannot possible be done soe well Else where—Besides there is uerry great hazard, of ship and goods, wch none Iustly Concerned are willing to Runn—And if taken where shall the Case bee tryed then, or any man Come by his Dammage of these partyes who haue noe Loss by the Loss of or Estates—Except the honord Court shall bind them to a tryall, if the ship and goods bee taken and the goods heare to bee let seene for men to proue theire Right in them, by Marks Speties, and otherwise, Else how shall it bee proued in England, when possible most will bee Embazled, or wrong Disposed of, as a Considerable part is already and will bee proued upon a tryall here I make noe doubt in the least and yor peticionr shall haue nothing but my owne ship if arriue in England and Recouered, to pay my dammage, And alsoe that some particuler port may be nominated to goe to, that the major part of the partyes shall Consent to—Thus J humbly Conceiue good Securitye ought to be giuen, in Right Reason and Law to preuent all Dammages & Inconueniencies, that will fall upon the true interesters of goods and ship—And that a tyme bee sett for her sailing, Else yor peticionr may not bee able to subsist to waite theire tyme—I knowing all theire design is to doe all things to vex and distress yor peticionr, for to giue up his [torn] or sell it unto them for Little or nothing—My Third Reason for a tryall heare, being my due Right according to the cheife Law of our Magna Carta the first Law in the Booke, that noe mans person good name or Estate shall bee taken away, wthout some Express Law of the Generall Court warenting it, and suffitiently published, And here my Estate and good name is taken from mee, by the disposesing mee of my ship in this harber, or otherwise before, and they haue Raised false reports to make mee odious in the Eies of my Judges & all people in a most notorious manner, which to Imytate is to be abhard of all men, But were it all as true as its false, that giues them not the more Right to my ship, nor mee the Less, for Euery man is to suffer in the matter hee is Conuicted of Justly, and not because a man [m]ay[be] a Rouge or a theef, therefore any man may take his goods from him, or that hee may not haue a Just Case in another matter, But Such poore shifts as these are neuer used but where the Cause is uerry bad, and must bee made Seeme good wth many a Lye, soe that suffitient Causes of Action hath here Arisen, by what has byn Enacted hereupon, and from the difference grounded Concerning my ship—Therefore, I humbly Craue the merit of the Cause from the ground of the matter may bee here tryed, which is the Ship, and if J haue not a Right to her, J Desier her not,—And Lastly for that the hand of god has been against all, that haue taken my ship & kept her from mee hitherto, and is some grounds to beleiue still will bee vntill Restored, whilst the Dutch had her they did owne it in [torn] tearmes when they restored me possesion of her, and alsoe since mr Dudson [torn] her in possesion, hee has had a fall upon her, and broke his head in a [torn] Dangerous manner—and that another man has broke his thigh aboar [torn] And lately the Ship was like to bee fired to the danger of the towne, wch are Sad omens—But its possible my partys will say this is from the matter, and plead the ship is a prize—Being Dutch ship and goods, and here is noe power of admerallty Court and not tryable heare, and giue these Reasons to make her a prize—first she was taken by the Kings Commission—Secondly by uertue and power from the kings proclamation—and Thirdly, They Bought theire Right of the Gardners, these pretences are in their Declaration all J Conceiue, and one more they haue yett to plead as I am Enformed, that She was found and seized on in the Duke of Yorks persincks;—Now all theise pretenses are to keep from A Tryall, by Reason they well know, not one of them will stand good in the tryall and that one good one were worth all—To all which I Craue Leaue to answer as breife as I can possible—First I answer that she was noe Dutch ship nor goods Capable to bee made prize, by Reason she was neuer proued to bee Condemned by any admeralty Court before she was Restored to yor peticionr, and by him brought undr his Command into his Majests port in safetye and assistance promised, and fredome to come in and goe out wth her as appears undr the hand of the Cheife in power at Nantuckett—and many presedents wee haue of this to bee noe Dutch ship nor goods, by being taken and kept by the Enemy, others haue byn Seauerall dayes, and then Restored to the master and a Bill of Sale from the Capt of the man of warr, and yett the ship was here Judged when Shee came home to bee the owners; that set her out, and the Capt Bill of Sale was noe title to the master being not Condemned, and this was the mary Rose mr Abraham Gorden master from Jaimaca, and mr Bollards Ketch mr Twing master from Barbados & others—and yor peticionr was the true owner of this ship now in Controuersie when taken by the Dutch—And as to their first Reason that they tooke her by Commission, J Conceiue they waue that, being ashamed of a Scotch Coppye neuer owned, nor had any power in it at all,—and to the Second—Being the kings proclamation, I answer that they are Like preuaricators, and gone Cleare Contrary to it, and made positiue breach of it, for that the proclamation sayes that his subjects are to Seize and take any Enemies ship and goods, and not his subjects ship and goods and in his majests ports in safetye as this was long before the pretended partyes Came to her—Thirdly they pretend they Bought their Right of the Gardners—and this seems to bee the most Reasonable plea they haue, To which I answer, soe did J buy my Right of another man, a good Jssue may be Joyned to this plea, and properly Require a Tryall heare, at Common Law, and noe where Els—for what haue any Case of Bargaine & sale to doe wth any admerallty Court, Therfore I Humbly Craue the Benefit of this plea for a tryall here, and hee that has the best title by Bargaine & sale to haue the ship, and let them take all other pleas to help it, only this giues Cause suffitient for a tryall heare—and fourthly if they plead shee is A prize being found and Seized in the Duke of Yorks patten, then all the ships of his majests subjects may bee made prize that Come there by the same presedent and Lastly: that if the bare pretence of any mans pleading a ship and goods is a prize because they haue seized her and gott possesion of undr that name or notion and therfore because of the word a prize, that uessell being brought into this harbour, and the partye seized from, Desiers a tryall for his ship againe, and it shall be denyed him a tryall heare, but must bee sent for England for an admerallty Court to try the matter, before any proofe or papers bee seen and Examined of Each partye, wch Cannot well bee without some tryall to see if it bee a prize and belongs to an admerallty Court—Then by the same practice [torn] ship and goods, may, meere piratts (& not soe knowne) seize a ship at sea or in [torn] ther harbour, and bring her in heare and plead her a prize and to bee sent for England for a Tryall—and if thus granted what will become of many ships Nay of any in this harbour upon the same account, if not well knowne—and againe that theise my hard and uncharitable partyes, should bee soe partiall in their Declaration to this honored Court, and aboute this towne to uillifie mee as before, and accuse mee for betraying my ship to the Dutch, and alsoe that I Ran away wth her from holland, and yett will abide noe tryall heare to proue it, (and otherwise Calumniate mee) nor doe they say one word in theyre Declaration or Els where, how they haue acted trecherously, or gone Contrary to the kings proclamation, in seizing his Subjects ship and goods to make prize of it in his majests port when in Safety—nor doe they owne by theire soe doing they haue Brought a warr upon this Country, and giuen the Dutch a Just pretence, or Cause to take soe many uessells of this Country as they haue done, which if they had left my ship to mee, the dutch would not haue had any Such pretence, because they restored her to mee, by their owne Act and Consent and this Act of my partyes seizing her from mee, is lookt upon by the Dutch as an Act of this authoritye being liuers at Boston, and they not being Called to an account for soe doing without ordr from Authoritye, and positiuely acting against the kings proclamation, if the Case may bee tryed I doubt not to make good, And that theire pretences against mee will proue but meere falacyes and figments, wch they feare, Els why should they not peticion for a tryall heare as well as J, and others Concerned in the goods, Except they feare a tryall heare, may bring them within the Breach of the late Act made by this honored Court Concerning seizing of ships from the true owners to be piracy, and how like it, their Act done to mee is J leaue it to Consideration, and whether any Such president haue Euer byn heare and sent to England for tryall, Thus Craueing pardon for my prolixity and that the prouidence of God to mee hitherto, for my releife, may be seriously Considered, with what Else I haue heare presented in the premises, to the serious Consideration of this honorable Generall Court, for a tryall [torn] according to my Just Right by the Law of this Jurisdiction;—And yor peticionr shall as in duty Bound for yor peace & prosperity Euer pray &c

    Entred . . . Janury 6. 1673

    The General Court voted, January 6, 1673/74, “that henceforth all Cases of Admiralty shall be heard and determinated by the Court of Assistants, and to be Issued by the Bench without a Jury, unless the Court shall see cause to the contrary” (W. H. Whitmore, The Colonial Laws of Massachusetts, Reprinted From the Edition of 1672, p. 213); but at the previous session the appeal of this case had been heard and decided by the General Court. The following verdict (S. F. 162130.1) is also printed in the Massachusetts Bay Records, iv. part 2, p. 574:

    Att a spetiall Generall Court Called by the Gournor and magistrates in Boston and there held the 10th of December 1673

    [The] Court upon the hearing the petitionrs of Joseph Dudson [Is]aack Melynes John Alden and william Daruall, hauing Determined not to heare their Cases, for that the Case in which they petition hath arisen from matters Acted without the Jurisdiction of this Court at Nantuckett, and haue byn under the Cognizance of New Plymouth Gouermt alsoe, yett forasmuch as the Complaynants & petitionrs doe all profess themselues to be his Majests Subiects, and for that the goods brought in that ship by the said Joseph Dudson are proper for the markett in England, doe therfore declare that the sd Dudson hath libertye to fitt the sd ship for England [torn] som[e] of his Majesties Courts where all persons Concerned may haue A full hearing of their Case

    . . . true Coppye . . . Attests Edward Rawson, Secretary

    See also Dudson’s counter-suit against Darvall, below, pp. 385–7.]

    Gardner agst Proutt

    Peter Gardner plaint. agst Timothy Proutt junr Defendt in an accion of the case for not delivering the saide Gardner six barrells of Rumm consigned to him from mr William Dyer of the Island of Barbados & shipped on board the Ship called the Endeavor of Boston whereof the sd Prout was master as will appeare by a bill of Lading under the sd Proutts hand bearing date the 25th of August 1673 being about twenty pounds to the damage of the plaint. & all other due damages according to Attachmt Dat 15:11:73. . . . The Jury . . . founde for the Defendt costs of Court.

    Rock agst Clarke

    Ioseph Rock Administrator to the Estate sometime of Iohn Coggan & Martha Coggan of Boston deceased & guardian to Caleb Coggan the onely sonn & heire of the sd Iohn & Martha Coggan in his non age deceased plaint. against Lt Thomas Clarke Defendt in an accion of the case for that the sd Tho: Clarke have refused & not given or yeilded up possession of the house & roomes with the shop & yard wherein hee now dwelleth with all thereto belonging unto the sd Rock according as it is specified in an Indenture or lease under the hand & seal of the sd Clarke bearing date the first day of August 1663 reference thereto being had with all other due damages according to Attachmt Dat Ianuary 19th 1673. The Accion being called both plaint. & Defendt appeared & the Attachmt being read the Defendt made objection against the process for that the plaint, had noe power of Administracion; the plaint. failing in his process for want of proofe thereof The Court declared him Non Suited. The plaint. appealed from this judgmt to the next Court of Assistants & the sd Ioseph Rock as principall in ten pounds & Ephraim Turner & Wm Kent as sureties in five pounds apeice acknowledged themselves respectively bound to . . . prosecute his appeal . . .

    [See above, p. 241, from which this series of cases can be traced back. Rock’s reasons of appeal and Clarke’s answer (S. F. 1286.3, 2) follow:

    Joseph Rock Adminestor to John & Martha Coggan deceased his Reasons of Appeale from the Nonsute of ye Last Countie Court in the Case betweene Said Rock plaintiffe and Leift Thomas Clarke Defendent for denying me possession To the Honoured Court of Assistance sitting in Boston march 1673/74

    Because J humbly Conceive there was Sufficient to prove ye Plaintifes power of Adminestracion

    1 There was and is ye Letter of Adminestracion granted by ye Countie Court in Boston 29 of may 1662 wherein ye said Rock hath power of Adminestracion upon the said Estate he giveing sufficient Security to ye Court to be responsible for the same according to ye last will of the said John Coggan no 1:

    2 There is the Bond for his adminestring according to ye power granted by the said Letter of Adminestracion namely according to John Coggans Will no: 2:

    3 There is a Judgemt of Court that shews Rock as adminestor to mr John Coggan and Martha his wife: was sued by ye Gardians of the Orphants Robinson

    4 The Plainetiffe hath not pleaded his plene Adminestravi or that he hath performed his adminestracion neither indeed can he doe it wholely: untill Mr Coggans Will be performed He may have performed apart by giveing this, or that Legatee their Legasyes and so may have performed such apart of his Adminestracion relateing to such a person but the whole adminestracion is not performed untill the Adminestor can plead Nulla Bona or that he hath no Assetts left in hand.

    5 J am not acquitted and discharged from my Adminestracion and untill then the power Remaines.

    There is an ordor of a Countie Court Adjourned ye 13th of November 1673 that if I would pay so much mony namely £348: 13: 4d to the Gardians and what Rent is Due from yt Estate since the account was made up This ordor being fullfilled J am discharged from my adminestracion.

    Now this Ordor the said Administrator hath not performed nor Can performe with out greate Dammage & purjudice to himselfe For the Following Reasons.

    1 Because there is £78: 15ss taken of from the said Rocks charge notwithstanding he had given into ye Countie Court and Gardians afforesaid a true account Sworne unto according to ye Juryes Verdict which account was Exepted against by the said Gardians as a False account,

    And tryed a second time namely at Aprill Court 1673 and there the said Gardians were Cast and the said account found to be just and true,

    2ly The Second Reason why J could not accept of & performe this Courts ordor was because this summe of £348:13: 4 which is £78:15s more then was due to ye Estate) This they ordered to be paid to the Gardians afforesaid so that the Ordor crosseth and make voide that part of John Coggans Will that sayth (and to my Daughter Rock J doe give & bequeath one fifth part thereof) namely all the Legasie given to Caleb Coggan if he dyed under the age of 21 yeares Consequently ⅕ part or more of this £269: 18: 4 doth belong unto me which is besides a farther Right J have there in £53: 19: 8 and what the Order would have abated me of my accott

    £78:15:0

    132: 14: 8:

    So yt by this Order J must have beene wronged one hundred thirty two pounds foureteene shills and Eight pence

    Besides J had hereby beene necessitated to Violate my father Coggans Will which J am bound to act according unto in my Adminestracion—

    J should be very glad to be discharged from my Adminestracion so it be upon such Equall tearmes as might not be prejudicial neither to my selfe or Estate nor to any other person concerned in that Estate

    But the question now is whether J am discharged from my Adminestracion Jf J have fullfilled the Order afforesaid J am discharged otherwise not: But J have not performed that Order neither can J doe it for the Reasons afforesd and therefore J am not discharged J hope this Honoured Court and Jury will plainely see that J am not discharged from my Adminestracion and therefore my power remaines firme And J ought not to have beene Nonsuted at the Last Countie Court from which J appealed and hope that J may here find releife and that my Case may now proceede as it should have done at the Last Countie Court so Commending these things to the Consideracion of this Honoured Court & Jury J remaine

    Yor Humble servant

    Joseph Rock

    These Reasons were received from mr Joseph Rock Febry: 26th 1673

    Per Jsa Addington Cler

    Thomas Clarke his Answere to mr Rocks reasons of Apeale

    I humbly conceaue it being in pointt of a non sute ye Court or officer of ye Court is to make ye answere to them—yet I shall make bould to present this to the Consideration of this Honod Court—

    first The estate he was Administrator toa belonnged to an Heyre who died in his nonage and now yt estate falls to other Heyres foure whereof are vnder age and haue made Choyse of Gardians, he himselfe being one—soe yt as I conceaue mr Rocks power as Administrator seaseth—whereby he is as such vncapable to sue for yt estate

    2 mr Rocke is bound in 400l bond to giue acount to the County Court at all tymes when Called for and to obserue all orders of Court that concerne yt estate. An Acount he hath giuen—ye Court vpon perusall thereof haue ordered him to pay what he had receaued as administrator and remaned in his hand to ye Gardians as more particularly by there order may apeare wch order was produced and Read in ye former Court and he refuseth to fulfill—

    3 The Rent he sues for and possession demanded were Lonng since Gardianship was Granted to others and himselfe and also the order of Court—and therefore the more vnreasonable and illegall for him as administrator to sue for—other things he insist vpon as reasons wch I conceaue are not pertenent to the Nonsuit and therefore shall not conserne myselfe to answere

    Thomas Clarke

    The appeal was allowed, and the Court of Assistants found for Clarke. Records of the Court of Assistants, i. 3–4.]

    [187] Checkly agst Williams

    Anthony Checkly Attourny of Theoder Atkinson senior in the behalfe of his daughter Abigail Atkins plaint. agst Capt Iohn Williams Defendt in an accion of the case for that the sd Williams doth refuse to give possession of a Warehouse a Workehouse & all the Land belonging to the great house also the corner Shop & Sellar under it, wch houseing & Land Lyeth in Boston over against the house & land of Hudson Leverett & was recovered per judgment & Execucion from the sd Williams per the sd Theoder Atkinson Senior & since Legally conveighed unto Ebenezer Atkinson his son & Abigail Atkinson his daughter per a firme & Legall deed of gift & possession given to one in the behalfe of both. Yet notwithstanding the sd Williams hath injuriously entred upon the premises & detaineth the same illegally from the sd Abigail who is the Legall & right Owner of the same to her intollerable damage & injury with other due damages according to Attachmt Dat Janry 22th 1673. . . . The Iury brought in a speciall verdict i. e. That if by Law a Deed bee legall that doe run upon condicions in the things given or alienated to a person under age & also under that parent that is the giver & also for his Childe the receiver: if this bee Legall, wee finde for the plaint. that the Defendt give possession of the houses & Lands sued for & costs of Court; if it bee not legall wee finde for the Defendt costs of Court: The Magistrates declare for the Defendt, The plaintife appealed from this judgmt to the next Court of Assistants & the sd Anthony Checkly as principall in ten pounds and Richd Wharton & Nicholas Page as Sureties in five pounds apeice acknowledged themselves respectively bound to . . . prosecute his Appeal . . .

    [See case of Atkinson v. Williams, pp. 53–59, 95, and 247, above; also Records of the Court of Assistants, i. 4–5.]

    Patten agst Dyer

    Thomas Patten Attourny unto Iohn Patten of Severls in the parish of Crewkern in the County of Somerst in the Kingdom of England yeoman who is the Lawfull and proper heire of or to the Estate of Nathaniell Patten late of Dorchester in New-England deceased plaint, agst Gyles Dyer Defendt in an accion of the case for that the sd Dyer doth refuse to deliver possession & rent for one yeare or thereabout at fifteen pounds per yeare for a certain house & teniment which the sd Dyer now occupieth in Boston. [188] which belongeth unto the sd Iohn Patten as heire aforesaide, by reason of which refusall of possession & rent the sd heire is damnified to the value of the aforesd Summe or thereabout with other due damages according to Attachment Dat Ianuary 20 1673. . . . The Iury . . . founde for the Defendt costs of Court: The plaint. appealed from this judgmt to the next Court of Assistants & the sd Tho: Patten as principall in ten pounds & Richd Wharton & Anthony Checkly as Sureties in five pounds apeice acknowledged themselves respectively bound to . . . prosecute his Appeal. . . .

    [For the preliminaries of this case, see pp. 81, 93, 95, 107, 109–110, 215, 216. A copy of the writ, return, and bond is in S. F. 1280.1. In the following Reasons of Appeal (S. F. 1280.3), the “Law” frequently referred to by page is The General Laws and Liberties of the Massachusetts Colony, 1672.

    Thomas Patten Atturny of John Patten of Seueralls in the Parish of Crewkerne in Somersett Sheire in England his Reasons of Apeale from ye Judgment of ye County Court in Boston in January 1673. To the Honord Court of Asistance Stitting in Boston in March following Jn the Case betwixt the Said Tho Patten plantiff & Gyles Dyer defendant—Viz—

    1: Reason is because all Estates espetially Lands & Heridatements belonging to A Soluent Jntestate person Dieing without Jssue falls to ye next of kin: See: Law Wills fo: 158 Sec 2. Administration Must bee granted to ye next of Kin or to Some body to preserue for ye next of Kin—Againe Law Conueyances—Shews plainely that yr is An Heire & Estate of Jnheretance here & theirfor directs how Land & Houses in fee Simple Shall bee Conveighed—

    2 Reason is because mrs Justin Patten ye Relict of mr Nath Patten Deceased (Although Administratorix) yet is not either Heire or Asignee of mr Nath Patten Deceased but only hath A title of Dowrie to ⅓ of ye Housing & Land according to ye Law title Dowrie (which is not denied hir) dureing hir life, The deed is to Nath Patten his Heires & Assignes—Jf mrs Justin Patten bee neither of ym how Comes Shee by hir right or title Their is noe Conveighance (apearing) vndr mr Pattens hand & Seale either Deed or Will to Assigne ye premises to hir—And our Law Saith their Shall bee noe Allienation of Houses & Lands but by deed in Wrighting—or by will—Now yr is noe Will neither Written or Nuncupatiue—as apeares per Administration being granted which is neuer done but vpon Jntestate persons Estates—

    Neither is Shee Heire A woman is not Heire to hir husband but only hath A title of Dowry as our law prouides

    3 Reason is Because J Conceiue with all humble Subjecti[on] The County Court hath not power to alienate Houses or Land of an Jntestate from ye Heirs—allthough as for Mouables they may Asigne ye widow hir part & ye Children & other Heires their portions as per ye Law wills which Shews their is other heirs in law (besides Children) vnto mouables much more to Houses & Lands which are Estates reall, allso the Said Law Shews (in my Aprehension) that ye Courts power is limited in ye Disposall & Setlement of Mouables of an Jntestate they must bee disposed to [torn] Widow Children & other Heires, & not from ye Hei[res] And J thinke this law Relates only to mouables or Estates personall—Jf Soe yn ye Court hath noe power at all to dispose of Lands & hereditaments ye Law Dowries saith ye widow Shall haue A third part. See dowries fol: 42—This Law Dowries is not repealed—but is of force theirfore Jt Canot bee rationall that ye Estate mentioned in Wills 158: sect 3 which ye County Court hath power to Assigne ye widow Such A part of as they Shall Judg Just & equall—Can bee ment of houses & Land—but only of Mouables—for then The Law would Contradict it Selfe, ye Law wills would Say A widow may haue either 9/10 or but ⅒ of hir Husband Houses & Land as ye County Court Shall Judg Just & equall—& ye Law Dowries Saith Shee shall haue Just ⅓ part but J hope yr is noe Such disagreement or Jncongruitie in ye Law—Theirfore it Seemes plaine to mee yt ye County Court hath noe power at all by ye Law—Wills to Settle Lands & Heridataments of an Jntestate—but They fall to ye Heire—

    Againe J request ye honord Court to Considr ye Law Dowries proues pla[in]ly The widow of An Jntestate & ye Heire are two Distinct persons—ye widow is not ye Heire—the Heire is to Set out to ye widow of ye Jntestate the Just 3d part ye heire is y person Seting out & ye person to whom ye ⅓ part is to bee sett out is ye widow—one y Heire ye other ye Widow

    4 Reason is because Jno Patten aforesaid is Right Heire to Nath. Patten aforesaid hee is his next Brother theirfore ye next of Kin as apears by ye testimonies Theirfore hath ye Right per Law vnto the premises, and its noe wrong to ye Widow who hath not only hir title of Dowry but A very Considrable estate allso—in Mouables—as per the Jnuentory may apeare—Jf ye Estate Reall in houses & Lands bee Substracted from ye whole Jnuentory Their is Remaineing in ye Widows hand in Mony goods & good Debts—the vallue of £562–00 mony—which with ye ⅓of ye Estate Reall is A very Comfortable Estate which J hope may bee enough to find hir A Comfortable maintenance during hir Life And allso bee Suficient to Raise A portion for Benn Beale Sutable either to ye Relation yr was betwixt him & Nath Patten as A Remoate kinsman Not of ye wholl blod—And allso Sutable to all ye Jngagements yr was in m[rs] Patten to doe for him, soe as Shee as ye widow Nor hee as A Kinsman need not Seeke to disinherit ye Right & Lawfull Heire—

    Humbly requesting the honoured Court & Jury to Considr ye premises which is of Soe great Consequence Not on[ly] to Jno Patten But vnto posterity Crauing pardon for what may seeme to reflect vpon ye Honoured Court apealed from herby Solemly declaring that J Jntende noe reflection vpon ym—but only A Cleare Dem[onst]ration (Acording to Law) of ye Justness & equitye of my Case Now Comitted vnto yow whose J am Acording as in duty bounde—

    Tho Patten—Attorny as aforesaid

    These Reasons of Appeal were received from Thomas Patten Febry: 25th 1673

    per Jsa Addington Cler

    Dyer’s Answer (S. F. 28659) follows:

    Giles Dyer His Answr to Thomas Patten Attorney to his Father John Patten Resons of Appeale:

    Jmprs As to his First prtended Reson or Assertion that the whole Estate of a prson Dying Jntestate falls to ye next A kin: Wee Vtterly Deny. And for his proofe he sites ye Law title Wills sect: 2d: Which Law Wholly belongs to Merchts Seamen And other Straingrs Resorting hither Dying & Leauing there Estates vndisposed of and hauing noe Wife nor Children here but haue there Relations as Wife & Children Jn Other parts of ye Wourld as ye Law Doth Absolutely & Clearely Demonstrate and hath noe Ration at All to Nathll Patten of Dorchester that Dyed here: And before ye Law bee Altered ye Appellantts Case Can haue noe Dependance vpon itt

    2: To his 2d Assertion or prtended Reson itt hath Litle of Reson or Law in Itt as J Conceaue. For him to say that she is neithr Heire nor Assigne of mr Nathll Patten Deceased, I Answr Although shee Be neither Heire or Assigne yet she is the Relict of Nathll Patten And that part of ye Estate that she hath Allowed to her is hers of Right by vertue of Law title Wills Sect the 3d Page 158 wch saith ye County Courtt hath powr to Allow the Widdow such A part of Estate of ye Deceased as they shall Judg Just and Equall And this Estate now sued for they haue Allowed And giuen to ye Relict of ye said mr Patten As Appereth by the Courtt Record. Which Law Formrly Coated Title Wills Sect: the 3d Doth Absolutely Say That the County Court Are Jmpowred Soe to Act which J Desire the Honord Court And Jury to Considr of and peruse the same:

    3. And To his 3d Reson whereas he saith the County Courtt hath noe powr To Allienate Houses and Lands from the Heire: I Answer first the Honord Courtt Hath powr to Alienate or Giue to ye Widdow what Part of ye Estate ye Deseased Left And Jf houses and Lands be part of ye Relicts Estate then they haue Powr to giue to ye Widdow ye houses and Lands—or what part of them they please as by ye Law before Recited Appeares; but from ye heire it is nott Giuen butt A partt As they see good Js giuen to ye Widow and the Rest Js giuen to ye Right Heire in Law According to or Law: 2dly Whereas He saith it is only Ment the Meoueables: All Estates in this Country by or Law Are Chatles nott Jnheritances soe yt ye Widdow hath A Just And Legall Right to A partt in All & such A part as the Courtt shall Judg meette: And for him to say shee Must Come to him for her thirds of ye Estate, ye Defendt Humbly Conceaues that the Relict wold haue As Litle A partt of ye Estate as she had of the mony her husband Left in his Chest when he Dyed and that he was too much betrusted with ye kee of her husbands Chest, For Jf he had been true & trusty he wold haue made his Words good that it Wold after his vnkells Death Appeare yt benjamin Beale was ye sole Executor & Heire of her Husbands Estate, and 3dly to ye Law, Title Dowries Jtt hath Relation to Estates sold by ye Husband without the Consentt of ye Wife that she shall haue her thirds of ye Same During her life notwithstanding Sold by her husband before his Death which Js to pruentt men from Leauing there Wiues Destitute

    4. To his 4th Reson That John Patten Js Right Heire to Mr Nathll Patten And the nextt Brother Js yett to proue And that He is ye next Akin is nott att all Proued: Butt wee haue Sufficiently proued Benjamin Beale to bee the Next of kin And the Rightt Heire to the Estate by Will and by Gift for he had [partt] of Mr Nathll Pattens Estate giuen to him and Jn his possession before his Death as all that att Halseys wharfe and Receiued the Rentt of the same and After ye fire was & had burned Downe the Housing Mr Nathll Paten Wold not build them vp againe because he said he had giuen them to Benjamin Beale: soe yt by Will and by Gift Jtt is sufficiently proued yt Benjamin Beale is ye Rightfull Heire to ye Estate of ye Deceased Patten And for him to say that the meoueables were A sufficient Estate for mrs Justin Patten and for Benjamin Beales Portion J hope it will nott Come to yt that the Widdow and the Heire shal be Att his Disposall, the Estate being already Disposed of By the Honord County Courtt who had Sufficient powr soe to Doe & haue Done According to Law: And for the Appellantt to say yt Benjamin Beale is Nott of Blood I Wondr he will Assert such A positiue vntruth, Butt Jf an own sisters son be nott Blood J Leaue to ye Honord Courtt and Jury to Judg: soe Hauing sufficiently proued the Estate of Right By Law to belong to mrs Justin Patten J shall Leaue Jtt to ye Honord Courtt And Jury Hoping & nott questioning butt the Honord Courtt and Gentlemen of the Jury Will see Just Cause to Confirme the formr Juries Verdict:

    Giles × Dyre

    The Court of Assistants confirmed the former judgment and costs, 51s 6d. Records of the Court of Assistants, i. 4. See also the second and fourth cases below.]

    Fayreweather agst Melyn

    Iohn Fayreweather, plaint. against Isaac Melyn Defendt in an accion of the case for abusive words & blows given him by the sd Melyn & other due damages according to Attachmt Dat Decembr 30 1673. . . . The Iury . . . founde for the plaint. three shillings & four pence damage & costs of Court.

    Patten agst Woody

    Thomas Patten Attourny unto Iohn Patten of Severls in the parish of Crewkern in the County of Somerst in the Kingdom of England yeoman who is Lawfull & proper heire unto the Estate of Nathaniell Patten late of Dorchester in New-England deceased plaint. agst Isaac Woody Defendt in an action of the case for that the sd Woody doth refuse to deliver possession & rent for two yeares or thereabout at Fifteen pounds per yeare for a certain house or tenement which the sd Woody now occupieth in Boston which belongeth unto the sd Iohn Patten as heire aforesd by reason of which refusall of possession & rent the sd heire is damnified to the value of the aforesd Summe or thereabouts with other due damages according to Attachmt Dat Ianuary 20 1673. . . . The Iury . . . founde for the Defendt costs of Court. [189]

    [See the second case above, and the second case below.]

    Long agst Paul

    Ioseph Long plaint. agst Sammuell Paul Defendt according to Attachmt Dat 21: llmo 73. The plaint. withdrew his accion.

    Patten agst Winsley

    Thomas Patten Attourny unto Iohn Patten of Severells in the parish of Crewkern in the County of Sommerst in the Kingdom of England yeoman who is the Lawfull & proper heire of or to the Estate that sometimes was Nathaniell Pattens Late of Dorchestt in New-England deceased plaint, agst Iohn Winsley Defendt in an accion of the case for that the sd Iohn Winsley doth refuse to deliver possession of a certain warehouse & Land belonging & adjoining to the same lying & being upon the Land commonly called Halsey’s wharfe which warehouse & Land is between the brewhouse & Land in the possession of Robert Cox & another Warehouse in the possession & occupation of sd Iohn Winsley which belongeth unto sd Iohn Patten as heire aforesd by reason of which refusall of possession the sd heire is damnified to the value of the abouesd Summe or thereabout with other due damages according to Attachmt Dat Ianuary 20 1673. . . .

    The Iury . . . founde for the Defendt costs of Court.

    The plaint. appealed from this judgmt to the next Court of Assistants & the sd Tho: Patten as principall in ten pounds & Nicholas Page & Anthony Checkly as Sureties in five pounds apeice acknowledged themselves respectively bound to . . . prosecute his Appeal . . .

    [Another of the series of cases about the Patten property: cf. Patten v. Dyer, above, p. 373. Thomas Patten’s power of attorney from John Patten follows (S. F. 1281.6):

    To all to whome these pursents shall come, I Iohn Patten of Severell in the parish of Crewkern in the County of Somerst in the Realme of England Yeoman send greeting Know yee that I the sd. Iohn Patten being eldest brother & heire of Nathaniell Patten late of Dorchester in New-England now deceased haue constituted made & ordeined & by these pursents doe constitute make & ordeine & in my place & steed doe put my Loving sonn Thomas Patten now in New-England my true & lawfull Attourny to enter into & upon all & every such lands & tenements & hereditamts which haue or ought to haue by Law or equity or according to the usage & custom approved of in New England aforesd hapned unto mee as heire to my said brother & to sell let & dispose of the same at his discretion for my best benefit & advantage Giving & granting unto my sd Attourny full power licence & Authority to Sue arrest or implead all & euery person & persons whatsoever that shall deteine from him the possession therof before any lawfull Iudicatory whatsoever & to constitute one or Attournies under him for the better recovery thereof Ratifying confirming and allowing all & whatsoever my saide Attourny shall lawfully doe or procure to bee done in the prmisses by vertue of these pursents. In Testimony whereof I the sd. Iohn Patten haue hereunto put my hand & Seale the thirtieth day of March in the four and twentieth yeare of the Reigne of or Sovereigne Lord Charles the Second by the grace of God of England Scotland France & Ireland King Defender of the Faith &c Annoque Dom. 1672.

    John Patten (a seal)

    [Witnesses, attestations and endorsements omitted]

    There are over a dozen depositions in S. F. 1281, all to the same effect, of which the following are a fair sample:

    S. F. 1281.11

    Justin Patten aged about Eighty six Yeares deposed testifieth that Shee was present when her Sister Bale the mother of Benjamin Bale & Sister to her husband Nathaniell Patten deceased lay upon her death bed Long since in England & Shee the sd. mrs Bale at that time expressed much trouble lying upon her concerning her sonn Benjamin how hee might bee provided for after her decease? Whereupon the husband of this Deponant aforesd. applying himselfe to his sd. Sister Bale desired her not to trouble herselfe in that matter for hee would take her Sonn Benjamin to bee as his own Childe whereupon Shee was much gladded and cheered And accordingly the sd. Nathaniell Patten did forthwith take charge of the sd. Benjamin & paide for his Nursing & Education in England for many Yeares together & afterwards hee brought over the sd Benjamin into New-England & here tooke the like care of him & still expressed the same purpose towards him. And further this Deponent saith that her husbands Father when hee dyed gaue all his land to Iohn & Thomas Patten the Younger brothers of her husband Nathaniell Patten & further saith not.

    Taken upon Oath May. 5th 1673

    Before us William Stoughton

    Edward Tyng

    . . . true Coppie . . . Jsa Addington Cler

    S. F. 1281.12

    The Deposicion of Robert Cox aged about 40. yeares testifieth & saith That about three yeares past Nathaniell Patten of Dorchester now deceased did positiuely declare to him at his house at Dorchester & severall times since that hee had appointed & ordered Benjamin Beale to act in & dispose of his concerns in a house scituate or being on the land formerly belonging to George Halsy, in which house the sd. Deponant formerly lived: and that mr Patten Ordered the Keys of the sd. house to bee left by the Deponant in the hands of Benjamin Beale, the sd. Patten Saying that hee had giuen possession & giuen order unto the sd. Benjamin Beale & full power to dispose of & looke after the land neere to the sd. house & further this Deponant saith not.

    Taken upon Oath, Novembr 1: 1672: before

    Edw: Tyng Assist.

    Copia vera per Jsa Addington Cler

    The Deposicion of Iohn Carthew aged about. 33. yeares testifieth & saith.

    That about three yeares past hee was tenant in a house scituate or lying on the land formerly belonging to George Halsey & which house hee tooke & rented of Benjamin Beale in a short time after Robert Cox had left it: and the Deponant further testifieth & saith that hee did severall times make a tender & offer of the rent of the sd. house to mr Nathaniell Patten of Dorchester now deceased, the sd Patten affirming that there was noe rent due unto him refused to receive it & further this Deponant saith not.

    Taken upon Oath. Novembr 1: 1672.

    before Edw. Tyng Assist.

    Copia Vera per Jsa Addington Cler

    S. F. 1281.15

    The Testimony of Iohn Pelton aged 60. yeares or thereabout & Henry Mare aged about 38 yeares testifieth & saith that they urging mr Nathaniell Patten of Dorchester now deceased to Settle his Estate upon the Pattens; but the sd Nathaniell Pattens answer to us was that they were knaues & that they had cheated him & further saide that neither his Cousen Thomas Patten nor his brother Iohn Patten nor his Cousen Iohn Patten should ever enjoy a doite of his Estate & further saith not: Iohn Pelton further saith that hee heard mr Nathaniell Patten say that if hee should not doe well for his Cousen Benjamin Bale that hee should be a knaue, for saide hee I tooke him from his Mother when hee was young & that hee tooke him as his own & that hee would doe well for him & further saith not.

    Sworn in Court by both persons each for himselfe 29th Ianry 1673 as Attests I. A. C.

    . . . true Coppie . . . Jsa Addington Cler

    S. F. 1281.16

    The Testimony of Sammuell Pelton aged 24 yeares or thereabouts testifieth & saith that about Iuly 1671 I was goeing up to the westward & goeing to see mr Nathaniell Patten late of Dorchester before I went away, hee told mee that Henry Harwood Shoemaker was in his debt & desired mee that if I went in at Milford to see whether I could get his debt or noe; I asked him how much it was & to shew mee the writing, hee then being sick bid mee looke in his Chest for the writing & overhaling severall writings I tooke up a lardge peece of paper, opening the paper hee told mee that was not it I asked him if hee was sure of it, he told mee yes, for that was his will & then I asked him if it was a late will, hee told mee yea sure for hee had finished it but the other day; & I told him hee had a new Cousen come now & I asked him if hee had given him anything; hee told mee hee thought Iohn & hee were both knaues & hee would give never a one of them a groat, though Iohn Patten was gone away & had carried a hundred & fifty or two hundred pound from him, hee would make his Father to pay him the utmost Farthing of it, for hee did apprehend that hee was a knaue too; I also asked him what hee would giue his Cousen Benjamin Beale; hee told mee that sure hee would give Benjamin Beale more then hee did expect, hee saith also that the paper Owned by mr Patten to bee a will had a Seal to it.

    Sworn in Court Febry: 1: 1672. Attest I. A. C

    . . . true Coppie . . . Jsa Addington Cler

    Thomas Patten’s Reasons of Appeal follow (S. F. 1281.9):

    Thomas Patten Attourny to his Father John Patten of Severalls in the parish of Crewkern in the County of Sommersett in the Kingdom of England, his Reasons of Appeal to this Honoured Court of Assistants from the Iudgment of the Last County Court held in Boston in January. 1673. in the case betwixt himselfe plainti[ff] & Mr John Wensley Defendant.

    1. Reason, the Legall Right & title unto the purmises doth appertain unto the sd. John Patten—.

    2ly: Because Benjamin Bale who is the pretended Owner hath noe title unto the same.—.

    For the Explanation of these foregoing Assertions I shall Lay down & prove

    1. That all Lands & hereditaments belonging to a solvent person, the sd person dying intestate not having disposed of sd Lands in his lifetime fall to the next of Kinn—.

    2. That mr Nathaniell Patten dyed intestate.—.

    3. That hee did not by what appeares dispose of this Estate in his lifetime. 4: That John Patten aforesd is that person next of Kinn & the right heire of

    Nathaniell Patten aforesd deceased.—.

    1. For the first See Law, Wills. 2. Sect. fo: 158. where Administracion must bee granted to the next of Kinn or to such as shall keepe & secure the same for the next of Kinn: here it’s plain the next of Kinn haue the title—Again the same Law. Sect. 3d when the husband or parent dye intestate the County Court of that Iurisdiction shall have power to Settle the Estate per assigning & setting out the Widow & Children or other heires theire severall parts & portions of the sd Estate: here the Courts power [I] humbly conceive is limited—they may Settle the Estate upon the heires but not give it from them, this Law shews plainly there are heires unto whome Estates descend—Moreover the Law Conveyances. Sect. 2. directeth how to convey Jnheritances—Namely to have & to hold the houses or Lands to the Grantee his heires & assignes for ever; well then here is Estates of Inheritances & heires per or Law, from whome the County Courts have not power to give these Jnheritances—I hope I shall not bee soe mistaken as if I ment or Lands to bee such Inheritances as cannot bee alienated per will or Deed or taken per Execucion for Debt I doe not argue soe (although per intailes they may bee made soe) Yet this is true that though they may bee sold or given or taken for debt Yet when noe such thing is & the Owner dyeth intestate, then they fall to the heire—Namely to the next of Kinn or most worthy of the whole blood; by or Charter wee hold or Land in free & common Soccage, now that tenure descends to heires as other Lands doe—being in fee Simple as this house & Land in question is: See the Deed from Halsey to Nathaniell Patten is it not to him his heires & Assignes for ever; which tearmes make it fee simple—This Estate must fall to the heire or to the Assignes—now if it bee not legally Assigned it is Iohn Pattens as heire—Now concerning Assignements such as may Alienate land & houses from the Granter & his heires they must bee made either per will or by Deed; as for Wills they may bee either Nuncupative or written; but mr Nathaniell Patten dyed intestate; neither making Nuncupative or written Will, The Courts granting Administracion upon the Estate suffitiently proveth that, therefore I shall not insist upon it; Jt being cleare that here is noe Assignement of the purmisses per will Again t[here] is noe Assignement of this Estate per Deed & without it bee done either per will or Testament or per Deed in writing it’s not good in Law:—See Conveyances Deeds & writings Sect: 1:2:—fo: 32—where it’s plaine that alienations of houses & Land shall not bee good in Law except the same bee done per Deed in writing except Land given per a Town or per will—Now all the testimonies which the Defendant hath brought doe not at all prove there was any Deed of gift made to Ben: Bale per mr Nath: Patten some say hee promised to doe it & some say hee saide hee had done it, but none say soe much as that hee declared J doe doe such a thing: But if there had becê 20. Witnesses that had Sworn they heard mr Patten Say I doe give Benn Bale this or that house or Land—its’ noe title for or Law allowes of noe verball Deeds or alienations, except per will & here is noe will at all: Therefore Benn Bale is not the Assignee of mr Nathaniell Patten in the purmisses, there being noe Deed or Will to make him soe: And as for what is conteined in the testimonies concerning Mr Pattens taking Benn Bale as his heire, Some say hee brought him over as his Childe, some others say mr Patten saide hee intended to doe well for him & some say hee saide hee had given him the land at Halsy’s wharfe & others afterwards say, hee said hee intended it: But where is the act of Adoption proved or any other legall act either per Deed or Will to prove Benn Bale either heire or Assigne to the purmisses: If soe bee that Mr Nathaniell Patten had such a kindness for for him that hee intended to use him as a Sonn; why did hee not Settle [torn] of the Estate upon him whilst Living: Jts’ very likely hee though [torn] hee was none of his Childe, or else doubtless he would haue gi[torn] something considerable at his comming to age, which is long sin[torn] marriage—Soe it’s plaine that Benn Bale is neither heire n[torn] to Nathaniell Patten: The Deed is made to Nathaniell Patten [torn] & assignes for ever: Ben: Bale is neither of them: how comes [torn] his title? Jf it’s saide it is setled upon him per the County Court—J haue saide & proved per Law that the Court hath noe such power, in the Law title Wills. Sect. 3—. (which Estate relates onely to Movables—as J shall after demonstrate) There the Courts power is Limited, it cannot bee given from Children or other heires, and there the eldest Sonn must have a double portion and if no Sonns, then the Daughters shall inherit as Copartners—Now if the Courts power bee so Limited, that they cannot dispose of intestate persons Movables, but to widow, Children, or other heires; much more must it bee Limited in disposall of Lands in fee simple—My Arguments to prove the Law before quoted relates one[ly] to Movables & not to houses & Lands & other hereditaments are the Law, title Dowers—fo: 42 expressly saith, a woman shall haue a third of houses & Lands &c. but the Law title Wills gives power to the County Court to give such a part of the Estate as they judge just & equall to the Widow—Now if this bee ment of house & land the Law Dowries & Wills contradict one another; but I hope there is noe such incongruity in or Law—J hope it’s proved that the Court hath noe power to alienate houses & Lands from the right heires. Again in point of Reason it cannot bee thought they may dispose of intestate persons Estates according to theire own pleasure—Jf soe then might they Settle Estates upon Strangers as well as upon Relations; which would prove of ill consequence to posterity—.

    Again for the proofe of the last thing—Namely that John Patten is next of Kinn to Nathaniell Patten, the severall testimonies relating thereunto will & doe sufficiently prove it—

    Therefore the purmisses in controversy doe appertain unto him falling unto him per naturall descent, in regard mr Nathaniell Patten dyed intestate, & also noe other way alienated his Estate from his heire at Law, nor could it bee soe alienated per the Court—Neither was hee soe indebted as to require any of his houses & Lands to goe for Satisfaction—humbly requesting this Honored Court & Iury seriously to consider the purmisses; which doe not onely deeply concern the Appealants Father; but also is of publique concernment to the Country: Craving pardon for any thing that may bee taken amiss herein—J subscribe myselfe:

    Yor humble Servant

    Tho: Patten Attourny as aforesd

    These Reasons of Appeal were received from Thomas Patten February 25th 1673

    per Jsa Addington Cler.

    Richard Way, John Winsley’s attorney, replied thus to Patten’s Reasons of Appeal (S. F. 1281.8):

    Imprs To his First Wee possitiuely Deney And Doe Affirme he hath Rightt nor title to ye prmises sued for.

    2. To His 2d Wee Waue his Negation and Affirme yt Benjam[in] Beale Js ye True And Rightfull Owner of ye prmises sued for:

    And As to his Explanation of his forgoing Assertions yt ye Said Patten Dying Jntestate Jtt Doth of Right belong to ye nextt of Kin. 1st J Deny he dyed Jntestate for Wee haue proued he made a verball Nuncupatiue Will For he ye said Mr Nathll Patten vpon his Death bed said before Seuerall Wittnesses thatt ye Pattens should haue Nothing to Doe wth Any part of his Estate nott somuch As A Doit of it therefore ye pattens yt ptend An Jntrest Jn itt are Cutt off by Will wch Wee haue proued & Jf they Will goe to ye next of Kin Benjamin Beale who is ye sisters son is ye nextt of Kin, so yt Jf Right ye nextt of Kin must haue ye Estate then Benjamin Beale must haue it by his Own Argumentt And Also Jtt Doth belong to him being ye Adopted son of ye deceased who took him from his Mothers Breast & promised ye same to his sister vpon her Death bed to Make him his heire & so putt him Outt and paid For his Nurseing & scooling in England and Went Ouer out of New Engld to old England to fetch him & Entertained him Jn ye Cabbin of ye Ship, 2dly By Donation Wee proue by Sufficientt Wittness that said Beale should haue All his Estate After his Decease and this Estate In Controursy the Deceased gaue both befor in his Life time and vpon his Death bed Just befor he Dyed he gaue all he had to Benjamin Beale Before seuerall Wittnesses Therefore hauing proued by Donation and by A Noncupatiue Will the Estate to bee Benjamin Beales, and if it Were only by two Wittnesses, Jtt Were Sufficient by ye Law of God and or Law. For ye Law of God Saith thatt by ye Mouth of Two or: 3: Wittneses Euery thing shall be Confirmed, Especially vpon Wills wch is A sollemn thing to be Obserued And kept by ye Scripture Rules. And Also or Law saith & Confirmeth ye same and Js grounded therevpon and hath ben ye practise of or Courts Jn New England

    3. Jf this Estate belongeth to any prson by vertue of Heireship Then to Benj: Beale And not to Jno Patten, 1st that Jtt Doth belong to Ben. Beale as Heire Js Euidentt for Wee haue Sufficiently proued yt he is ye Adopted Heire of the person Deceased for he Brought him ouer from England from his Friends, and Relations For that Very End And or Lands by or Law being Chatles goe nott by Right of Jnheritance but to whom A Man pleaseth to giue them, And that he Gaue the Estate to ye Said Beale and yt he is his Heire We haue sufficiently proued, 2dly That it Doth nott att all belong to the said John Patten is Euidentt by the Resons Last Giuen Also by his possitiue Will. Vpon his Death bed From time to Time the Said patten Declared thatt the Pattens should not haue any partt of his Estate butt had Cheated him of Enough Already But the said Benjamin Beale should be Heire of all he had, & And yt he should be A knaue Jf he Did not Doe soe Well for him ye Said Beale as he had Done Jn giuing him his Estate

    3. As To ye Assertion of ye Appellt Jn Taking vpon him to Jterprit or Laws, J hope ye Honord Courtt will Take notise of. and there plea to ye Law of England Js quite besides or Byases & whatt or Jury are Sworne to, who are to goe According to or Law, & J question nott but they will mind and Attend too, Butt that yt they Assertt Jf there had ben A Will to bee seene of ye Deceaseds there had ben noe Need of Administration (We Doubt nott butt Jf ye Appellantt had ben Honest there had ben A sufficient Will seen before now to haue Cleared vp this Case Fully For he ye [Ap]lt said that after his vnkell was Dead thatt itt should appeare thatt ye said Beale was Heire & executor of all: And yt they should see itt Butt it was quicly Lost:) But Administration many times Js graunted where there is A will made: where pt of ye Estate is Left Outt, And Especially vpon Nuncupatiue Wills where a man hath an Estate graunted & giuen to him, he must haue some thing from Authority to shew by vertue of whatt Rightt he hould ye same And that the Courtt hath Acted According to Law Js plaine and Evidentt as ye Law Title Will Sect: 3d: For ye County Courtt hath Powr by Law To sett outt to the Widdow and other Heires if noe Children the Estate of ye Deceased persons, And yt Benj: Beale Is the Heire Wee haue sufficiantly proued, And As to the Law one which he Grounds his Resons of Appeale vpon, Title Wills sect: 2d: hath only Refferance To Merchts Seamen & other Straingrs Resorting hither Dying and Leauing there Estates vndisposed of Butt this prson mr Nathll Patten Was Noe such prson butt an Jnhabitantt here Att Dorchester & there Dyed and the Estate he Left is Disposed of According to Law as Wee haue before Cited, And Jf ye plt will haue yt to be Law wch he Cites Title Wills sect: 2d: he must stay while the Genrll Courtt hath Altered itt As ye Court and Jury may se by ye prface how it Runs & Whom it hath Relat: too One wch the whole Law hangs & Depends & hath Relation too: And thus Hauing Sufficiently Proued Benj. Beale The Rightfull Heire to the Estate Wee Doubt Nott butt ye Honord Courtt And Jury Will see Justt Cause To Confirme the formr Courtts Judgt

    4: To His many Other Large prtences they are nott Worth Answering, Only ye Law Title Conveyances itt hath Only Relation to Lands Sold nott to any gift by Will or otherwise as the Law. Sect: 2d. There Clearely Demonstrates, All Which Wee shall Leaue To ye Honord Courtt and Jury To Judg off

    Richard Way

    The Court of Assistants (Records, i. 4), confirmed the former judgment. But the possession of the Patten estate was not yet finally settled. In October, 1674, the General Court ordered that the portion of Nathaniel Patten’s estate, not assigned to his widow, be divided equally between Beal and Thomas Patten (Records of Massachusetts Bay, v. 23–24). In S. F. 1403.5 is a copy of articles of agreement between Beal and Patten in execution of this order. Later, the old dispute was renewed in the form of a suit between two other persons. See Salter v. Checkley, below, p. 579.]

    Vsher agst Phillips

    Iohn Vsher plaint. agst Zachariah Phillips Defendt according to Attachmt Dat: Decembr 15th 1673. The plaint. withdrew his Accion.

    Newman agst Frizell

    Frederick Newman plaint. agst Thomas Frizell Master of the ship St Katharin Defendt in an accion of the case for the non paiment of Nineteen pounds in mony or thereabouts which is due for wages of worke & service done on board & belonging to the aforesd Ship in the Emploimt of Masters Mate being shipped by the sd Master for three pounds sixteen shillings per month at London & then was bound for New-England & from thence to the Maderas but the Voyage is deserted therefore the plaint. sues for his wages & all other due damages according to Attachmt Dat. Ianuary 22th 1673. . . . The Iury . . . founde for the plaint. seventeen pounds in mony damage & costs of Court being £:1:12:2.

    Execucion issued Ianry 31o 73 for £:18:12:2 [190]

    Johnson agst Frizell

    Iohn Iohnson plaint. agst Thomas Frizell Commander of the Ship St Katharin Defendt in an accion of the case for the non paiment of eight pounds in mony or thereabouts due for wages of worke & service done on board & belonging to the aforesd Ship in the Emploiment of a Seaman being shipped by the sd Master for thirty six shillings per month at London & then was bound for New England & from thence to the Maderas &a but the voiadge is deserted therefore the plaint. sues for his wages & all other due damages according to Attachmt Dat. Janry 22th 1673. . . . The Iury . . . founde for the plaint, eight pounds in mony damage & costs of Court being 27s 2d.

    Execucion issued 31 Janry 1673 for £.9.7.2.

    Frizell agst Davy

    Thomas Frizell Commandr of the ship St Katharin plaint. agst mr Humphry Davy Defendt in behalfe of himselfe & ships Company being Attourny to the sd Company in an accion of the case for non paiment of One hundred & sixty pounds or thereabouts in mony due for wages earned by worke & Service done upon & about the sd Ship The sd Frissell being ordered or consigned by the Freightors or hirers of sd Ship in London to deliver theire goods or Cargo to sd mr Davy & attend his Orders for further proceedings in the voiadge; which hee haue accordingly done & mr Davy hath deserted any further voiadge to proceed upon & saith hee desires the Seamen or Ships Company may bee discharged from the ship but refuses to pay theire wages all which is first due to bee paide by the sd Davy who hath received the Effects as aboue & all other due damages according to Attachmt Dat: January 22th 1673. . . . The Iury . . . founde for the Defendt costs of Court.

    Smith agst Hudson

    Quartr Master Iohn Smith plaint. agst Capt William Hudson Defendt in an accion of debt to the value of sixty & three pounds & ten shillings due for malt sold unto him & delivered at severall times to have been paide in silver as by booke & other testimony will plainly appear with all other due damages according to Attachmt Dat Janry 22th 1673. . . . The Iury . . . founde for the plaint. sixty three pounds ten shillings in mony & costs of Court. £:3:13:10 [191]

    Dudson &a agst Darvall

    Ioseph Dudson Richd Wharton & Iohn Faireweather plaints against William Darvall Defendt in an accion of the case for unjust molestacion & high defamation in that the sd Darvall under colour of Law & countenance of Authority by a warrant fraudulently obteined hath caused the Constable forcably to breake open & enter into sundry Warehouses in theire occupacion & seized upon severall parcells of goods in theire possession putting the Kings marke upon the sd goods upon false pretences & affirmations that the same were stoln out of his Warehouse whereby the sd goods haue been restrained & damnified & theire names & persons highly defamed with other due damages according to Attachmt Dat. Ianry 22th 1673. . . . The Iury . . . founde for the Defendt costs of Court. The plaint. mr Richard Wharton in behalfe of himselfe & others mentioned in the process appealed from this judgmt to the next Court of Assistants & the sd Richd Wharton as principall in ten pounds & Anthony Checkly & Nicholas Page as sureties in five pounds apeice acknowledged themselves respectiuely bound to . . . prosecute his Appeal . . .

    [The only document preserved for this case, which was closely connected with Darvall v. Dudson (above, p. 364), is the following (S. F. 1279.1):

    Joseph Dudson, Richard Wharton, & John Fayreweather their Reasons of appeal from the judgemt of the County Court held at Boston—Jan. 27. 1673. Jn an action of the Case agt William Darvall Defendt——

    1. Jt hath been plentifully proved, & owned yt ye Goods yt mr Darvall pretended to be stolne from him, were taken out of his warehouse, at New Yorke, by the Dutch upon their Conquest of yt place, & yt those yt Seized them were so farr from Looking upon themselves to be theives, that they carryed them to the weigh house, The Common & publique place to Enter and Take notice of Goods Shipd of (as by Testimony produced by mr Darvall may appear). And it is a high reflexion upon his majesty who hath with all usuall Solemnity publickly Declared war agt the States of Holland & their Subjects: also it is a great affront to the Authority of this Jurisdiction who have with like due Solemnity proclaimed yt Declartion of warr: To pretend yt Goods taken on either side in such a Lawfull warr were stolne, thereby insinuating, if not Expressly declaring yt his majesty’s Declaration of warr & this Colonyes proclamation Thereof were both unlawfull, & yt all Such either English or Dutch as made any Seizure of the others Estate in prosecution of said warr, were Theives.

    2. As ye said Darvall hath herein both reflected upon his majesty & his authority here established, So hath he notoriously abused, ye magistrate from wm he obtained ye warrant; Jn declaring to him, his warehouse was broke open, & Goods Stolne out & Desiring warrant for Search, neither declaring, time when, place where, nor wt Goods were Stolne: For it cannot be Jmagined yt when a person yt is Knowne to be resident under any Govermnt, & Jmploys a warehouse & Deals in Sundry Goods shall Come with such a restrayned or false Complaint & Jnformation to the magistrate as mr Darvall did, yt ye magistrate should think or Conceive yt ye warehouse pretended to be broken open was in another Countrey & under another Governmt, & yt ye Goods pretended to be Stolne were Seized upon by an Enemy in prosecution of a proclaimed & Lawfull warr—

    3. As the sd Darvall hath herein reflected upon his Majesty & his Authority here Established & abused the Magistrate as aforesd, So hath he perverted justice & the Law in prosecution of his sd warrant so fraudulently obtained in falsely pretending robbery & Damage to molest Vex & Defame the Appellants & in Causing the Constable to breake open & rifle their warehouses, as if they had been notorious Theives & robbers, seizing upon their proper Goods & others in their Lawfull possession, & putting the King & Countrey’s marke, upon the same, causing a false & partiall Jnventory thereof to be taken & returned, & indeavring Contrary to Law Title Burglary & Theft. Sect. 3d lattr part—to gett the Same into his possession & refusing to charge or prosecute any person for the falsely pretended Theft, & prompting & putting the Constable upon the Transgression of his warrt—promising to save him harmless in all yt he directed him to, whereby the sd Darvall, & by his actuall assistance, hath made the Constables act his owne, as much as any vexatious or groundless arrest laid by the marshall is the plaintiffs: notwithstanding mr Hodges’s Learned plea to the Contrary, to make the Constable the Trespasser or person injurious herein.

    4. For yt ye Appellants have been unjustly molested & Damnifyed, there Goods Seized upon in a Scandalous manner, & restrayned & their persons & Creditts Defamed & Disparaged & yet no manner of Satisfaction or reparation adjudged to them, all wch The Appellts humbly Leave to the Judicious Consideration of the Honrd Court & Jury, not doubting but yt regard will be had to yt first & fundamentall Law in or Lawbooke wch prohibits such Jnjuryes as the Appellants Complayne of, & provides for their redress & Remedy And yt according to yt Condition they live in, & that Creditt & Correspondence they have in the world, Such Verdict & judgemt will be given as may repayr their damage & discredits & Support their reputations: & for ye future discourage, & prevent Such Jndirect, unlawfull, & pernicious practices.

    Joseph Dudson

    Richd Wharton

    John fayerweather.

    These Reasons were received February 26th 1673. per Jsa Addington Cler

    The appellants failed to appear at the Court of Assistants when the action was called, and were non-suited. Records of the Court of Assistants, i. 5.]

    Bosworth agst Gibbs

    Nathaniell Bosworth of Hull senr plaint. agst Benjn Gibbs Defendt in an accion of the case for non paiment of twenty eight pounds twelve shillings or thereabouts, due for Eighty eight quentalls of Bass Fish sold him the sd Gibbs by the sd Bosworth in the behalfe of himselfe & Company being greatly to the damage of the plaint. & all other due damages according to Attachmt Dat: 19th of January 1673. . . . The Jury . . . founde for the plaint. debt & damage Fifty six shillings in good & merchantable English goods at price current & costs of Court being 2li 12s 10d

    Hearsee agst Davenport

    John Hearsee of Hingham plaint. agst Capt Nathaniell Davenport Defendt according to Attachmt Dat 23th of Decembr 1673. The plaint. was non suited upon non appearance. [201670]

    Skinner agst Lowell

    Thomas Skinner plaint. agst Ioseph Lowell Defendt in an accion of the case for setting up a Fence in a passadge way that is under the dwelling house of the sd Lowell wch hinders the free passage of the sd Skinner to his house which free passadge the sd Lowell sold the priviledge of to Iohn Glover as will appeare by a Deed under the saide Lowells hand & seal & doth now of right belong to the sd Skinner who hath purchased it of the sd Glover being greatly & continually to the damage of the plaint. & all other due damages according to Attachmt Dat. Ianuary 22th 1673. . . . The Iury . . . founde for the plaint. that the sd Lowell within the space of three dayes remove the fence now in controversy from damnifying the sd Skinner soe far as the jet of Ioseph Lowells house extendeth & in default thereof to pay twenty pounds in mony within the space aforesd & costs of Court. The Defendt appealed from the judgmt to the next Court of Assistants & the sd Ioseph Lowell as principall in Forty pounds & Ino Lowell & Ioseph Webb as Sureties in 20li apeice acknowledged themselves respectively bound to . . . prosecute his appeal . . .

    [The deed on which Skinner’s action is grounded (S. F. 1273.6) is printed as a sample of that type of document. In S. F. 1273.7 is a copy of the deed from Lowell to Glover, dated 6 January 1672, of the same property, with a similar provision for “free Liberty of passage” under the Lowell house.

    (S. F. 1273.6)

    Know all Christian People to whome this pursent writing shall come Iohn Glover of Boston in the County of Suffolke in New-England sendeth greeting Know Ye that the sd. Iohn Glover for and in consideracion of the summe of Sixty six pounds of lawfull mony of New-England to mee in hand before the Ensealing and delivery of these pursents by Thomas Skinner of the aforesd. Boston white bread baker well & truely paide the receipt whereof I doe hereby acknowledge my selfe therewith fully Satisfied & contented & thereof & of eury part thereof doe hereby acquit & discharge the sd. Thomas Skinner his heires Executors & Administrators for ever by these pursents. Have given granted bargained sold aliened Enfeoffed & confirmed & by these pursents doe fully cleerely & absolutely give grant bargain Sell alien Enfeoffe & confirm unto the sd. Thomas Skinner all that my house & land scituate lying & being neere the Exchange in Boston aforesaide being buttled and bounded Westerly with a lane that runs from the head of the great dock in Boston to mr Sammuell Shrimptons house & extending itselfe in the front on the sd. west side thirteen foote & eleven inches Southerly & Easterly by the land of Sammuell Plummer & Northerly by the land of Ioseph Lowell being in length from the front to the reare Sixty foote or thereabouts & in breadth in the reare twelve foote & a halfe or thereabouts extending from the Southeast corner of Ioseph Lowells house to the sd. Plummers as also a free liberty of a passadge with wood or other goods through the Entry or passage that is under & belongs to the dwelling house of Ioseph Lowell Together with all profits priviledges & appurtenances to the same belonging or in any wise appertaining or thence to bee had made or raised & also all Deeds writings & Evidences whatsoever touching & concerning the same To have & to hold the sd. house & land with all and eury the rights members and appurtenances unto the sd. Thomas Skinner his heires Executors & Administrators & to his & theire owne sole & proper use & behoof for ever And I the sd. Iohn Glover doe for myselfe my heires Executors administrators & assignes Covenant promiss & grant by these pursents that at the time of the then Sealing & delivery of these pursents I am the true sole & lawfull Owner of all the aforebargained purmisses & am lawfully Seized of & in the same & eury part thereof in my own proper right & that I haue in my selfe full power good right & lawfull Authority to grant Sell & convey & assure the same unto the sd. Thomas Skinner his heires Executors & Administrators as a good perfect and absolute Estate of inheritance in fee simple without any condicion reversion or limitation whatsoever soe as to alter change defeate make voide the same And that the sd. Thomas Skinner his heires Executors Administrators & assignes shall & may by force & vertue of these pursents from time to time & at all times for ever heereafter lawfully peaceably & quietly haue hold use Occupy possess & enjoy the abouegranted purmisses with the appurtenances without any lett lawfull Suite trouble denyall interruption or disturbance of mee the sd. Iohn Glover my heires Executors & administrators or assignes or of any other person or persons whatsoever lawfully claiming by from or under us or any of us or by or or any of or meanes act consent title or procurement And I the saide Iohn Glover for mee my heires Executors Administraters & assignes & eury of us further Covenant promiss & grant that the sd. house & land with all the rights priviledges & appurtenances by these pursents mentioned to bee granted & sold on the day of the date hereof & from time to time & at all times for ever hereafter shalbee and remaine unto the onely proper use & behoofe of the sd. Thomas Skinner his heires & assignes for ever free & cleere & freely and cleerely acquitted exonerated & discharged or otherwise well and suffitiently saved & kept harmeless & indemnified by mee the saide Iohn Glover my heires Executors & Administrators of & from all & all manner of former gifts grants bargains Sales leases Mortgages jointures dowers titles of Dower judgments Extents Execucions Entailes forfitures & of & from all other titles troubles & incumbrances whatsoever And I the sd. Iohn Glover my heires Executors Administrators & assignes shall & will at all times upon the reasonable request of the sd. Thomas Skinner his heires or assignes bee ready & willing to give & will giue to the sd. Thomas Skinner his heires Executors & Administrators & assignes such farther & ample assurance of all the afore-bargained purmisses as in law or equity can bee desired or required And lastly that the aforesd bargained purmisses & eury part thereof shalbee & bee construed & Esteemed & taken to bee the onely proper use & behoofe of the sd. Thomas Skinner his heires Executors administrators & assignes for ever & to noe other use intent or purpose whatsoever. Jn Witness whereof the sd. Iohn Glover hath hereunto set his hand & Seal this eleventh day of Iuly in the yeare of or Lord thousand six hundred Seventy three Annoq ue Regni Regis Car Secundi xxv.

    John Glover & a Seal

    Signed Sealed & Delivered in pursence of

    his

    Thomas T P Peck

    Marke

    Sammuell Plummer

    Jno Williams

    . . . true Coppie . . . Jsa Addington Cler

    In the following Reasons of Appeal by Lowell (S. F. 1273.3), the references to “the law” or “our law” are to The General Laws and Liberties of the Massachusetts Colony, 1672.

    Joseph Lowle his reasons of Appeall from the judgment of the last County Court held in Boston Jan 27th 167¾ in which action He was Defendent & Thomas Skinner Plantiff

    Thomas Skinner sueth mee yor Appellant as may appear by attachment for setting up a fence in a passage way that is und[er] my now Dwelling house as the then Plantiff Sayth, which first clause J take to be the very hing of or action on which the latter hath it’s Dependance, and this as J humbly conceive the then Plantiff hath not proved, unless a bare specifying the case in attachment be a sufficient proof of the thing sued for, and if such practices may be accounted legall J see not that either mine or other mens estates can be secured to them but that litigious persons by this means may have an Dore to all manner of contention finding out such easy ways to procure their Desires & therefore J appealed

    2 J am judged to remove a fence within three Days or pay twenty pounds in mony when there is neither proof so much as there is a a fence much less that ever J sate vp any fence in a passage way under mine house either by myself or my procurement and the law title jurors requires that all Jurors impannelled & sworn shall truely try betwixt party & party and shall find the matter of fact with the Dammages & costs according to their evidence & or law title Appeal Sect. 3. sayth in all cases of appeall the Court Appealed to shall judg the case according to former Evidence and no other rectifying what is amiss therein, so that J hope this Honred Court & Jury will see cause to reverse the former Judgment

    3 As to the other part viz. Hindering free passage to his house he striveth to prove, or rather Dreamed hee had proved by the two Deeds put into the Court the only Evidences on record in this case, although there is not any such clause, or expression of passage to his house he bought of John Glover much less to any new building hee hath now lately erected, and in answer to which J yor Appellant was ready to prove by two honest witneses that said skinner had that passage sold by mee and specifyed in the Deed to John Glover always open & free, but the last Jury being so quicksighted it seemeth wanted no witness to cast mee wherefore I appealed as for his bill of costs it seemeth Strang to mee that he should have two witneses attendance allowed to him when as there is none sworn, so being Desireous to stand or fall by evidence J committ my case to this Honred Court & jury praying for yor prosperity in Truth & righteousness subscribing my self Yor honrs humble Appellant

    Joseph Lowle.

    S. F. 1273.4

    Thomas Skinner His Answr To Joseph Lowles Resons of Appeale.

    Imprs To his first wherin he saith I Sue for A passage or setting vp a fence In a Passage way that is vndr his now Dwelling house. wch he Judges I haue nott proued &ct I haue sufficiently proued ye Same by more then: 12: Wittnesses who were the Last Jury and had nott they veiwed it, two Wittnesses had sworne to ye thing butt yt was To prventt Cross Oathes, And To his prtence yt Jf such Practises should be Suffered he Knoweth nott how his and other mens Estates wold secured: he may Justly Turn that vpon himselfe. For most men yt see ye Jnjury that he Doth to me in this Action of his Cry outt. shame of him; and Jf A Legall Deed of sale be nott A Right sufficientt in Law to Defend me in My Right J know nott how my Estate wth other mens will be secured:

    2d To His: 2d: Whereas he saith he is Judged to Remoue A fence Within three Dayes. The plt Is very much Mistaken In the Judgmentt, ye Judgt is nott for to Remoue A fence but the fence for ye Word A & the in this Case is very much Different one from An Other: And whereas he saith thatt it is nott so much as any Proofe, there is A fence much Less yt he sett it vp: 1st I Answr that had there ben Noe fence, there had ben noe Trouble, 2dly had there ben Noe fence why should the plt haue putt the Country to soe Much Trouble & himselfe & ye Def to soe Much Charge To Appeale. had there ben Noe fence there had ben no Cause of Appealing from ye sentance of ye Last Honord Court 3dly wheras he saith that Jurors are To try ye Case Acording To Euidence, wch the Defendt Desires they may only try the Case by ye same Euidence ye Last Jury Att the County Courtt had which was the Sightt of the Thing sued for wch the Last Honrd County Courtt see Cause To Desire the Jury to Goe Down & Veiw the thing to prventt Cross Oaths, wch he ye Appelant would haue Brought Jn to haue blinded the Courtt and Jury and Justise wold haue ben prvented And the then plt Extreamely Wronged; And Jtt is the Desire of ye Now Deft that the Honord Courtt Wold Desire this Jury to goe Down & veiw ye same Again And then J question nott but they will see how J am Wronged by ye Appellt And Rather Augmt then Deminish the Former Juries verdict:

    3. To his 3d prtended Reson wherein he saith J Rather Dreamed then proued that he had hindred me of my free passage in ye Entry to my house by ye Deeds put into ye Courtt, now As to ye Deedes Jf ye Honrd Courtt and Jury will be pleased Well to Veiw them they Express in these Words viz: With the free Liberty of A passage wth Wood and other Goodes. throw the Entry that is vndr & belongs to ye said Lowells House to ye said Glours Land with all ye Liberties priueledges and Appurtenances To ye same belonging or Apperteining, and there in ye very Entry & passage way ye plt hath sett vp this Fence, now in Controursy so yt ye Deft Cannott Come to his Land (or House) and if he hath Free Liberty to Come to his Land then sure he hath a Liberty to Come to ye House he built vpon ye Land Except he had injoyned the prson he sould it too neur to haue built vpon it And Whereas he Saith he Was Ready To proue that the passage he Sould To John Glouer, & yt J Boughtt was open and free, and iff the Wittnesses had Sworne to Such a thing they Would haue ben Litle Better then perjured, When there would haue been two Honestt Men Would haue firstt sworne the quite Contrary and the thing is still Evidentt quite Contrary to whatt they wold haue sworne Too; Which was the Only Cause why ye Honord County Courtt Refused To take Either of them And soe Caused the Jury to goe and veiw The place. Which ye Defendt still Craues this Honrd Courtt wold Desire the Jury soe to Doe, And To The Bill of Cost itt is Justt and Legall according to Law And Custome Soe Desiring Thatt Nothing butt truth Righteousness and Justise may Take place The Defendt Doubts Nott butt this Honrd Courtt & Gentlemen of the Jury Will see Just Cause to Confirme the former Courtts Judgmentt Leauing my Honest Just and Righteous Cause with them Subscribing my Selfe As Jn Duty Bound:

    Yor Seruantt:

    Thomas Skinner

    [Endorsed:] Tho. Skinner Answr To Joseph Louell Resons of Appel

    Skinner’s bill of costs is in S. F. 1273.5. The appeal was heard by the Court of Assistants (Records, i. 3) and the former judgment confirmed.]

    Baker agst Johnson

    Nathaniell Baker of Hingham plaint. agst Humphry Iohnson of Hingham Defendt in an accion of the case to the value of twenty pounds in mony for that the saide Humphry Iohnson refuseth to signe & seal a Legall conveyance according to his promiss unto the sd Nathaniell Baker before witness referring to a certain tract of Land lying in the second division of Conahasset upland in hingham it being the forty fourth Lot of the saide division; which sd tract of land the sd Nathaniell Baker formerly bought of the sd Humphry Iohnson & also made full paimt for the sd Lot to the sd Iohnsons content with all due damages according to Attachmt Dat: Ianuary 20th 1673. . . . The Iury . . . founde for the plaint, that the sd Humphry Iohnson doe signe seal & deliver to the sd Nathanll Baker a suffitient deed according to law of the land sued for or to pay the sd Baker twenty pounds in mony within 4 dayes next Ensuing & costs of Court being 3li 19s 2d

    Execucion issued Febry 6 1673 for 20li mo & 3li 19 2d costs. [202]

    Brattle agst Knight

    Thomas Brattle Attourny to Iohn Cutt Merchant of Portsmouth plaint, agst Richard Knight Shopkeeper Defendt in an accion of the case for violent breaking open the lock of a Sellar dore belonging to the sd Brattle wherein wines of the sd Iohn Cutt his lay & going into the sd Sellar & taking from thence one pipe of Madera wine belonging to the sd Cutts & carrying it away from thence & marking seven or eight pipes more of the sd Cutt his wine with the broad arrow hindering them from being put to Sale to the great damage of the sd Cutt which is contrary to Law & an agreement made with the sd Brattle about the customes of the sd wines as by a certificate will more fully appeare & all due damages according to Attachmt Dat: Ianuary 22th 1673. . . . The Iury . . . founde for the plaint. that the sd Knight resigne up all the wines of the sd Cutts that is now sued for & under restraint or seized by the sd Knight & return the pipe of wine that the sd Knight tooke away in as good state as the sd Defendt founde it or instead of this sd pipe of wine pay eleven pounds in mony & costs of Court. The Defendt appealed from this judgmt to the next Court of Assistants & the sd Richd Knight as principall in two hundred pounds & Nicholas Page & Ioseph Dudson as Sureties in 100li apeice acknowledged themselves respectively bound to . . . prosecute his Appeal . . .

    Brattle agst Crosby

    Thomas Brattle plaint. agst Ioseph Crosby Defendt in an accion of reveiw of an accion of debt for the summe of seven pounds nine shillings being the remainder of a bill of thirty two pounds Eighteen shillings paiable to the sd Brattle for the use of mr Sammuell Bradstreet with interest & due damages according to Attachmt Dat. Ianry 17th 1673. . . . The Iury . . . founde for the plaint. seven pounds nine shillings in mony & costs of Court.

    Ioy agst Baker

    Thomas Ioy of Hingham plaint. agst Nathaniell Baker of Hingham in an accion of the case to the value of three pounds seven shillings & six pence or thereabout which the sd Baker received some yeares since of Capt lames Iohnson of Boston glover on the account of the sd Tho: Ioy as appear by the sd Iohnsons booke [203] & all due damages according to Attachmt Dat. Ianuary 22th 1673. The Accion being called both plaint. & Defendt appeared & the Attachmt being read, the plaint. was required to prosecute his cause, who produceing noe Evidence but a blotted booke which hee sd was Capt Iohnsons but had noe witness to the booke or any accot in it upon which the Magistrates refused it & the case was committed to the Iury who . . . founde for the Defendt costs of Court, being thirty one shillings ten pence.

    Execucion issued Febry 6 1673

    Joy agst Hambleton

    Thomas Ioy plaint. agst William Hambleton Defendt The plaint. in failer of his process was nonsuited, the sd Hambleton being dead before the tryall.

    Rock agst Clarke

    Ioseph Rock administrator to the Estate sometime of Iohn Coggan & Martha Coggan deceased & guardian to Caleb Coggan the onely son & heire of the sd Iohn & Martha Coggan in his non age deceased plaint. agst Lt Thomas Clarke Defendt in an accion of the case for nonpaiment of thirty pounds or thereabouts remaining due for rent of the house & roomes shop & yard where the sd Clarke now dwelleth in Boston according to a Lease or Indenture under the hand & seal of the saide Clarke bearing date the first day of August 1663 of which sd rent remaines of the mony part of the two Last yeares rent fifteen pounds mony & then the remaindr of the abouesd rent due is to bee paide the one halfe in provitions & the other halfe in shop goods: all which will agree for substance according to the abouesaide Indenture with all other due damages according to Attachmt Dat: Ianuary 19th 1673. The Accion being cald both plaint. & Defendt appeared & the Attachmt being read The Defendt made Objection agst the process for that the plaint. had noe power of Administracion: the plaint. failing in his process for want of proofe thereof the Court declared him non suited. The plaint. appealed from this judgmt to the next Court of Assistants & the sd Ioseph Rock as principall in ten pounds & Paul Batt & Iohn Wally as sureties in five pounds apeice acknowledged themselves respectively bound to . . . prosecute his Appeal . . .

    [See Index, under Joseph Rock, and Records of the Court of Assistants, i. 4.]

    Checkly agst Clarke

    Anthony Checkly Attourny of Theoder Atkinson senr in the behalfe of his daughter Abigail Atkinson plaint. [204] against Lt Thomas Clarke Defendt according to Attachmt Dat. January 22th 1673. The plaint. withdrew his accion.

    Sutton agst Iudkin

    Iohn Sutton plaint. agst Sammuell Judkin Defendt according to Attachmt Dat: 9br 29 1673. The plaint. withdrew his accion.

    Bendall Attourny to Edw: Tyng Esqr agst Wilmot

    FreeGrace Bendall Attourny unto Edward Tyng Esqr Treasuror of the County of Suffolke plaint. agst Nicholas Wilmot Defendt in an accion of the case for the forfiture of a bond of ten pounds declared forfited at the last County Court held at Boston upon his non appearance there according to bond & all other due damages according to Attachmt Dat. Xbr 31:1673. . . . The Iury . . . founde for the plaint. the forfiture of the sd Wilmots bond being ten pounds & costs of Court.

    Bendall Attourny to Edw: Tyng Esqr agst Bradly

    Free Grace Bendall Attourny unto Edward Tyng Esqr Treasuror of the County of Suffolke plaint. agst Richard Bradly Defendt in an accion of the case for the forfiture of a bond of twenty pounds declared forfited at the last County Court held at Boston upon his non appearance there according to bond with all other due damages according to Attachmt Dat: Xbr 31: 1673. . . . The Iury . . . brought in theire verdict & founde for the plaint. the forfiture of sd Bradly’s bond being twenty pounds & costs of Court. The Court respites Execucion in this & the accion aboue till next Court of this County.

    Gibbs Find 3li

    Benjamin Gibbs being formerly complained of the County Court held at Boston upon adjournmt 9br 6 1673 by Henry Ashton for his illegall & violent actings towards him the sd Ashton as by his complaint then exhibited to the Court & sd Gibbs being called to answer for the same claimed the benefit of the Law to bee tried by a Iury; which was granted him, but the Iury for that Court being then discharged The Court ordered him sd Gibbs to give in bond to answer at this Court; which hee accordingly attended & being now called & the sd Ashtons complaint & Evidences in the case by both parties produced being read committed to the Iury & remaine on file with the Records of this Court. . . . The Iury . . . founde the fact that hee the sd Gibbs did violently & illegally act towards the sd Ashton hee the sd Ashton not being undr a legall arrest. [205] The Court on consideracion of the same Sentencd him the sd Gibbs to pay three pounds in mony as a fine to the County & fees of Court standing committed untill the Sentence bee performed. The sd Benjn Gibbs appealed from the Sentence of this Court to the next Court of Assistants & hee the sd Gibbs as principall in six pounds & Sammuell Walker & Samm: Mosely as sureties in three pounds apeice acknowledged themselves respectively bound to . . . prosecute his Appeal . . . & that in the meane time hee should be of good behavior.

    Grandjury men Find

    Ioshua Atwater Iohn Weld & Edward Morrice not appearing to serve on the Grandjury when called according to Summons were fined thirteen shillings & four pence apeice in mony to the County. Iohn Weld & Edwd Morrice afterwards appearing & making theire excuse The Court remitted theire fines.

    Smith to Morse

    Thomas Smith of Charlstown personally appeared in Court Ianry 27th 1673 & acknowledged a judgmt against himselfe & Estate for three pounds one shilling and sixpence in mony to Daniell Morse senr of Medfeilde.

    Execucion issued Febry 24th 167¾

    Ino Leverett Esqr discharged from admr

    The Honord Govr John Leverett Esqr presenting an Account (to this Court) of his Administracion to the Estate of Iohn Cullick deceased. The Court accepted thereof & discharged him from the sd Administracion.

    Glovrs Guardian

    Iohn Glover sonn of Nathaniell Glover deceased appeared in Court & made choise of mr Anthony Checkly for his guardian; which hee accepted & the Court allowed of: The sd Guardian having given in Security for the faithfull performance of his trust according to Law.

    Grandjury dismist

    The Grandjury brought in theire bill of presentment Ianry 28th 1673 & were dismissed for this Court.

    Phillips to Vsher

    Zechariah Phillips personally appeared in Court January 29th 1673 & acknowledged a judgment against himselfe and Estate to Iohn Vsher for thirty pounds in mony.

    Freeman Sworn

    Nathaniell Brewer of Roxberry tooke the Oath of freedom of this Colony.

    Dorchester under a pœnalty

    The Town of Dorchester being presented for the insufficiency of a highway neere the end of the land by [206] Richard Withringtons house The Court Orders the saide Town suffitiently to repaire the sd highway by the next Court of this County undr the penalty of five pounds to bee forfited to the County

    Order about Manaticot bridge continued

    The Court continues the Order passed the Last County Court to the Town of Brantery concerning the building of the bridge over Manaticott River untill the next Court of this County & Order that it bee fulfilled by that time under the pœnalty expressed in theire former Ordr

    Milton under a pœnalty

    The Town of Milton being presented by the Grandjury for the insufficiency of a highway by Robert Redmans Orchard Anthony Gullivr appearing in the Towns behalfe made answer it was in part mended: The Court Orders the saide Town suffitiently to repaire the sd highway by the next Court of this County under the pœnalty of five pounds.

    Capt Hudson Admonish’t

    Capt William Hudson being presented by the Grandjury for suffering of severall persons to continue in his house upon the Lords days at night drincking contrary to that Law mentioned page 132 of which hee was convict by the testimony of Capt Edw: Hutchinson Commissionr & Christophr Clarke Constable: The Court Sentenced him to bee admonished & to pay fees of Court.

    Norden admonisht

    Sammuell Norden convict as abouesd The Court Sentenced him to bee admonished & to pay fees of Court.

    Phippen admonish’t

    Benjn Phippen convict as abouesd The Court Sentencd him to bee admonisht & to pay fees of Court.

    Gross admonish’t

    Clemont Gross convict as abouesd The Court Sentenced him to bee admonished & to pay fees of Court.

    Bishop admonish’t

    Nathaniell Bishop convict as abouesd The Court sentencd him to bee admonished & to pay fees of Court.

    Neale admonish’t

    Andrew Neale convict as abouesd The Court Sentenced him to bee admonished & to pay fees of Court.

    Committee about Greens Estate

    In Answer to the petition of mr Iohn Hull & Theophilus Frary administrators to the Estate of Ioseph Green Late of Boston deceased The Court Orders & appoints Capt Wm Davis & Capt Thomas Lake & Deacon William Parcke as a Committee to hear & consider of those Errors that are in the Inventory presented of that Estate by the saide administrators as also to receive the claimes of the Creditors or any who pretend aright to that Estate & to proporcion what each Creditor shall receive according to the value of the Estate if it proue insolvant & all persons soe concerned are hereby ordered from time to time to attend the meeting of the sd Committee according to theire appointment of time & place for meeting Capt Davis to [207] Appoint time & place the sd Committee to make theire return of what they doe therein to the next Court of this County the first day of sd Court.

    Freeman Sworn

    Ephraim Clarke of Medfeilde tooke the Oath of freedom of this Colony.

    Committee about Hambletons Estate

    The Administrators to the Estate of the Late William Hambleton of Boston deceased vizt mr Humphry Hodges & Thomas Dewer applying themselves to the Court & declaring that they feared the Estate would not bee solvant: The Court Orders & appoints Capt Thomas Lake mr Peter Lidgett & mr Iohn Joyliffe as a Committee to receive the claimes of the Creditors to that Estate & to pass accounts & proporcion the Estate to the Creditors & what they finde to bee difficult to refer it to the Court: And all persons concerned in that Estate are hereby Ordered from time to time to Attend the sd Committee Capt Lake to appoint both time & place of meeting And that the sd Committee receive also the claimes of the Widow of the sd Hambleton, the Committee to make return of what they doe herein to the next Court of this County & in the meane time the sd Administraters haue power to dispose of & put to sale the goods belonging to sd Estate

    Onians Guardian

    Elizabeth & Hannah Onian daughters to Robert Onion of Dedham deceased made choise of Thomas Medcalfe of Dedham as theire Guardian which hee accepted & the Court allowed of & also appointed him guardian to Grace Onion one of the daughters of the sd Onion till she come of age to choose for her selfe, hee giving security according to Law the sd Tho: Medcalfe as principall in twenty pounds & Capt Daniell Fisher & Richard Ellis as Sureties in 10li apeice acknowledged themselves bound in Court to the Treasuror of the County of Suffolke on condicion that the sd Medcalfe should faithfully discharge his trust according to Law.

    Onions Guardian

    Benjn Onion sonn to Robert Onion aforesd made choise of Richard Ellis for his guardian which hee accepted & the Court allowed of hee giving security according to Law & the sd Richard Ellis as principall in twenty pounds & Danll Fisher & Tho: Medcalfe as Sureties in 10li apeice acknowledged themselves bound in Court to the Treasuror of the County of Suffolke on condicion that the sd Richard Ellis should faithfully discharge his trust according to Law.

    Freemen Sworn

    mr William Adams John Richards Jonathan Fuller & Iohn Baker all of Dedham tooke the Oath of freedom of this Colony [208]

    Lambs Senta

    Elizabeth Lamb the wife of Iohn Lamb of Brantery being convict in Court of swearing drunkenness & rayling The Court sentenced her to bee severely whip’t with fifteen stripes & to pay charges of prosecution & fees of Court standing committed untill the Sentence bee performed.

    Du Plisses Senta

    Iohn du Plisse convict in Court of dispersing pewter counterfit mony The Court Sentenced him to give in bond with sureties of forty pounds to appeare before any Authority within this Iurisdiction to answer for his sd crime when called to it if in the Colony & in the meane time that hee shalbee of good behavior & to pay fees of Court standing committed &a

    Milton Selectmen & Vosses agreement

    Upon the hearing of the greivances of Robert Voss of Milton respecting a new highway Laide out through his Land & others in the sd Town of Milton by a Committee formerly appointed thereunto by the County Court; as also upon hearing what severall persons could say concerning the necessity of the sd way & considering the Agreement made between the Select men of the Town & the sd Voss The Court on due consideracion of the same judge meete to & doe hereby reverse theire former act passed upon & confirmation of the sd Committees return & doe allow of & confirme the abouesd Agreement.

    [In S. F. 1274 is a defective copy of the record of a meeting of the Milton selectmen, 25 February, 1672/73, the following pertinent parts of which remain:

    After this there being some oppossistion made the Select men made by way of petistion to the Honored County Court held at Boston the 29th of apreil 1673 where upon the Court Did appoint and Empower Capt Hopestill Foster Capt Richard Braket and Seargeant Thomas Gardner as a comtee to veiw the place and make Peace if they could or make there return to the next County Court which accordingly they did as followeth

    On the reverse is the following record:

    Wee whose Names are under writen Being appointed by the honered County Court April 29:1673: to repare to Milton and hear and to consider of the Deferance about a high way Layed out and make Return to the next Court of this County in abeadence to the said order we met at Milton on the time appointed where the Select men of the Town and others concerned did meet with us & haveing viewed the way Layed out and spent much time in agetation with those that seemed to apose the said way Laid out: at Last wee came to this conclution to witt: all Persons Concerned Did yeald that the Comtee appointed by the Court Should fully Determin where the way should go and whether an open way or only a driftway and all matters Concerning the same to be Left to your Decrestion where upon we met the second time and haveing futher hear and Considered of the said way and heard what each ptie had to say do give in our apprehentions Concerning the same as followeth. only with submistion to the Honored Court to act futher as they see cause: first we do Judge that to be the most meet and convenant way for all prtis which was Lately Laid out by the select men a long by Ezra Claps house & so the Easter most end of the Barn that now Increas Sumner Injoys of good man Vose or his son and so a long till it com to the corner Easterly of the field fenced in and from thence over good man Voses Land and others as Lately Laid out by the Towne men. . . . 4ly: because [the La]w doth alow Satsfaction for Land in Such Cases if the parties Requier it [we do thlerfore think meet that good man Vose shall be alowed after fourty shillings [by the] acre for so much of the way as runs thro his Field by his Barn to wards [the] meeting house and Robart Badcock and the rest the Same rate [of] 40s by the acre till it corns to the barn of Increc Sumner alius Vose aforesaid and from them to be alowed after ye rate of ten shillings by the acre only reserveing the wood and timber on the said way to Each Party whose Land it may run thro Provided they take it off in convenant time that it be not prejudisous to the Passage

    Hopestill Foster

    Richard Braket

    Thomas Gardner

    Milton the 18: of July: 1673

    there being some of the edge of the Leaf where this Record was Recorded worn off where I have Left blanks otherwise A true Coppie Atest John Daniell Town Cler]

    Order for an Attachmt agst Walsebee

    The wife of David Walsebee of Brantery not appearing to answer her presentmt according to Legall Summons. The Court Orders the Select men of Brantery to take care of & regulate the sd Walsebee till the next Court of this County & that an Attachmt bee issued out for her appearance at sd Court.

    Smith discharged

    Upon due proclamacion made Ioseph Smith was discharged from his bonds of good behavior

    Belchior Sentencd to good behavior

    Iohn Belchior of Brantery appearing this Court according to his bond, to answer for the breach of his bond of good behavior The Court on hearing what was declared against him Sentencd him to renew his bonds for the good behavior till the next Court & to pay charge of Witnesses & fees of Court.

    Cowells Senta

    Ioseph Cowell bound over to answer for his committing of Fornication with Hannah Tower daughter of Iohn Tower senr of Hingham (by whome shee hath had a childe as by her own confession in her travail) and being called to Answer for it saide hee did not own it, but did not deny it: The Court on due consideracion of the same doe Sentence the sd Cowell to give in bond with Sureties of 120li to appear the next Court of this County to answer what shalbee further alleaged against him in the case & to abide the Order of the Court therein. [209] And in the meane to bee of good behavior as also to pay two shillings sixpence per weeke in mony towards the maintenance of the Childe Lately born of the body of the sd Hanna Tower of Hingham from the time of its birth till the Court take further order as being the reputed father thereof according to Law & to pay charges of prosecution & fees of Court standing committed untill the Sentence bee performed.

    Order for a warrant to Medfield

    The Court Orders a warrant to bee issued out for Sammuell Wight & Thomas Brick of Medfeilde to appeare at the next Court of this County to Answer the sd Wight as Marshalls deputy for the serving an Execucion for Ioseph Clarke the sd Brick being an apprizer wherein the sd Clarke is greatly wronged by the Levy of the sd Execucion & apprisement thereon: & the Marshall did promiss in Court to extend the sd Execucion anew.

    Tyte Fined 20s

    Henry Tyte being convict by his own confession in Court of being drunck & it being after many convictions of the sd crime The Court Sentenced him to pay twenty shillings in mony as a fine to the County & fees of Court standing committed untill the Sentence bee performed.

    Kibby Fined 12li

    Edward Kibby convict in Court of selling six pints of sider to Indians. The Court Sentenced him to pay twelve pounds in mony as a fine to the County with charges of prosecution & fees of Court standing committed untill the Sentence bee performed.

    Peggy discharged

    Vpon due proclamation made Edward Peggy was discharged from his bonds of good behavior

    The Court adjourned from March 31 to Febry 2d

    The Court met according to Adjournmt Febry 2d [email protected]

    Committee about Widow Taylers thirds

    The Court Orders & appoints mr Anthony Stoddard Lt Thomas Clarke & mr William Bartholmew as a Committee to Order & set out to Elizabeth Tayler widow & relict of Richard Tayler of Boston late deceased her thirds of the Estate lately belonging to the sd Richard Tayler in houseing & Land & to doe it soe as may bee most accomodable to her & to make return to the next Court of this County of what they doe herein, mr Stoddard to appoint time & place of meeting.

    Eggerton dischargd

    Vpon due proclamacion made Peter Eggerton was discharged from his bonds of good behavior. [210]

    Toldevy Find 9li

    William Toldervy convict by his own confession in Court of selling two quarts & one pint of strong Liquors to an Indian The Court Sentenced the sd Toldervy to pay nine pounds in mony as a fine to the County & fees of Court standing committed untill the Sentence bee performed.

    Holt Admonish’t

    Thomas Holt bound over to the Court to answer for his concealing & conveying away Cuthberd Fowell a prisonr on board his Majties Friggot the Garland: The matter being not fully proved against him; but hee being suspitiously guilty thereof The Court Sentencd him to bee admonished & to pay fees of Court.

    Henry Indian Senta

    Henry Indian committed to prison to answer for his assailing & abetting another Indian in strikeing of Edward Kibby; hee owned in Court that hee did take up a tray of the sd Kibby’s & knockt it against his dore till hee broke it: The Court Sentencd him to pay ten shillings in mony to Edward Kibby with charges of prosecution & fees of Court & prizon standing committed untill the Sentence bee performed.

    Cornelius & Samll Indians Senta

    Cornelius & Sammuell Indians committed to prison to answer for theire killing of a Cow of Matthew Cushings which they owned in Court & pretended want of provitions: The Court Sentencd them to bee severely whip’t with twenty stripes apeice & to pay to Matthew Cushing eight pounds six shillings in mony & to pay fees of Court & prison standing committed untill the Sentence bee performed.

    Execucion issued Febry 9. 1673. for 10li 16li wth fees of Court & prison.

    Stuart & Ludden Senta

    lames Stuart & Ioseph Ludden being complained of to this Court for theire remisness & carelesness in fitting the tackling of theire Sloope whereby it’s very dangerous & some haue already been wounded by the fall of the sd Sloopes boome one whereof is since dead. Upon due hearing and considering of the same The Court Sentencd the sd Ludden & Stuart to pay unto Anne the Widdow of Thos Williams (who was killed by the fall of the sd boome) twenty pounds in mony & to Robert Pegg who was wounded by the fall of sd boome ten pounds in mony & Order Execucion to issue out against the sd parties & Vessell for the same. the sd Stuart & Ludden appealed from this Sentence to the next Court of Assistants & themselves as principalis in sixty pounds & Iohn Bicknell & Iohn Porter as Sureties in 30li apeice acknowledged themselves respectiuely bound to . . . prosecute theire appeal . . .

    [This case offers an interesting instance of the Mosaic Law being successfully invoked to reverse a judgment according to the Common Law.

    The accident is described in S. F. 1270.10:

    The Testimony of Iohn Pearce aged 41. yeares & Tho: Goodridge aged 41 yeares & Iohn Iemson aged 25. yeares testifieth & saith that on the 28th of Novembr last about eleven a clock wee were all standing together at Iohn Peirces Shop dore where wee then saw the boome of Iohn Bicknells Sloope whereof lames Stuard was Master, being topt up more then Ordinary haueing noe cleat on the boome to keepe the pennent of the topping lift on, the pennent slipt off the boome fell down to or Sight, wee forthwith ran down & found Tho: Williams & Robt Pegg lay dead [on] the wharfe the blood running out of saide Williams’s mouth

    Thomas Goodridge

    Iohn Pearce

    Iohn Iemson

    Sworn in Court by Iohn Pearce Ianry: 31. 1673. as Attests: J. A. C

    Sworn in Court by Tho: Goodridge Ianry: 31: 1673 as Attests J. A. C

    . . . true Coppie . . . Jsa Addington Cler

    The petitions of the Widow Williams and of Robert Pegg are in S. F. 1270.3, 4. The two mariners’ Reasons of Appeal follow (S. F. 1270.6). Their reference to the Mosaic law of murder (Numbers xxxv: 22–25) is this:

    But if he thrust him suddenly without enmity, or have cast upon him any thing without laying of wait, Or with any stone, wherewith a man may die, seeing him not, and cast it upon him, that he die, and was not his enemy, neither sought his harm: Then the congregation shall judge between the slayer and the revenger of blood according to these judgments: And the congregation shall deliver the slayer out of the hand of the revenger of blood, and the congregation shall restore him to the city of his refuge, whither he was fled.

    S. F. 1270.6

    Joseph Luden & James Stuart theire Reasons of Appeall From the Judgment of the Honored County Court held at Boston, Janr: 27: 1673

    first Rea: Because Wee Humbly Conceiue no Ground of Censure because the

    Jury Namely the Inquest Found vs no way guilty of the mans death wittingly or carelelesly; although they were Required in his majestys Name to make Diligent Jnquiry into the means & cause of his Death as apeares by theire sumons & Returne: & they themselues had the same Evedence to Direct them wch the Honored County Court had being one of that Jury. And Therefore wee Humbly Conceiue no Ground of Sensure

    2: Rea: Because yor poore Apealents do Humbly Conceiue that they were senttenced not,: According to Any Lawe of God or of this Iurisdiction or full Evedence that doth proue vs Guilty.: First wee Knowe no Lawe of this Jurisdiction doth make vs Guilty of the mans Death willfully or carlesly: 2:ly. Wee Humbly Conceive the Lawe of God doth no way make vs Guilty; For iff wee had thrust him through vnawares or cast a part vpon him that he had Died wee had bin Freed by the Law of God as Appeares: Numbr: 35: ver: 22: Much Less is theire Cause of punishment when or ax Fell of From the helue as Jn this Case it is Clear Jt did; But Jf Jt be Replied in this Case theire was some Remisnes: why; surely as much might haue bin said in making the ax Fast on helue: And yet Jt is The Revealed will of God that such a person shall be Cleared by his Judges as Fully Apeares: Deut: 19: Josh: 20: Thirdly: wee Humbly Conceiue no Full Evedence For the wittnes say that the boome was hoysed higher then ordinary: Jt may be: higher then themselues ordinaryly doe hoise theires but it is Evedent that the boome m[u]st be hoysed higher For some worke then others as for hay & wood &c : : But the Boome Could not be hoysed higher then the peanant wold permit:, And Jf Jt had bin as high as that it had bin not Extryordinary.: But Jt was not so high by eight or ten Foot theirefore no Fault: 2ly where as the Evedenc doth swear theire was no cleat on the End of the boome.; Neither is Jt vsuall or Customory so to haue: as did apeare to the Honored Court by many seamen when asked by the honored Governor & also by one of the Evedences although he had sworne before that there was no cleat. And also the other Evedenc Namely John Peirec Did then Affirme in the prsence of the Court that he did not Knowe whether there was any Cleat or No: Although he had sworne before that there was no cleat: Therefore this Evedence Condemne vs not,: Butt Rather Cleared vs by theire verdict when on the Jnquest Therefore not Guilty; Therefore wee Humbly Conceiue wee were to be aquited by or Judges & not to haue or Estates taken away Jf wee had any, Contrary to the Fundementall Liberty of this Jurisdictin as Apears Lawe booke. page. 1: For Jn such Cases who then Can say his Estate is his oune For Jf a vesell be vnder saile & A great wi[nd] arise & the Tack break or slip & overset the vessell And p[torn] are cast away & seamen Escape,: But afterward Judged that theire [torn] not that Care Taken to prvent as As might,: For these poore sea[torn] to be forced to maintaine the Relations surviving: surly one [torn] Would Thinke Jt very hard against Those that had bin Jn Like Danger as was Fully or Case

    3 Rea: of or Appeall is Because yor poore Apealants Could not vnderstand That they had that Comon & Legall Way of Tryall as is vsuall in such case For they being Required to apeare before the Court For misdemeanor but on Tryall Nothing of Guilt was Found Jn vs as wee conceiue against God or the King But Adjudged to pay Thirty pounds in mony to those private persons that Complained of wrong,: which [torn] it had bin more Legall For To haue sought theire Remedy if [wronged] Jn the Comon Road of Justice, where: both they & wee might haue bin Tryed by or Equalls according to the Great & Granted priviledg of Engl[ish]men,: And somtimes according to the proceeding of the County Court For houe vsuall is Jt For offenders to be punished by them for the Criminall Fact and the private Concernes Left to a Legall proces[s] by way of Civill action: as Jstances may be given in this case Jf need require,.

    4 Rea: Because wee humbly Conceiue that the vessell is not Liable to Exicution To make Satisfaction For or sentance: The Sentance being only against vs and not against the vessell: And yett Execution to be Jssued out against vs & the vessell: which wee Humbly Conceive is not according To Lawe: For two men only to be condemned as Guilty of a Crime: and three to be Exicuted; For. first Jf there were any Remisnes or Carelesnes Jt was not in the Vessell or owners and therefore not Liable to Exicution 2:ly. The vessell was out of or Jmploy & possession: being delivered to the owner, the voyage being Ended A Considarable time before the County Court The prmises Considered yor poore Appealants wee Cannot see ground for such a sentence Except it were vpon the account of mercy & pitty to the afflicted vpon theire pettition,: Jf so Then surely the Feeding of the Hungry will be the starving of the Naked: As: surely Honored Gentlemen will be the Case of yor poore Apealent: Jf his Labor be taken away to pay this Fine who haue not Else to maintaine his poore wife & children but of Nescity must be objects of Charyty to Freinds or suffer much

    Yor Humble Apealants:

    Joseph Ludden

    James Stewart

    Febr: 23: 1673

    These Reasons were received Febry 24th 1671¾ as Attests Jsa Addington Cler.

    S. F. 1270.7

    Jn Answer to Joseph Ludden & James Steward theire Reasons of Appeal from the Sentence of the last County Court in Boston----

    To theire first Reason, I Answer the inquest impanaled to inquire into the way & meanes of the sd Williams’s death, were not required to enquire after carelesness about the occasion of it but wilfullness; neither are they acquitted by the inquest as they pretend; but they doe make theire Return that the sd Williams’s death was occasioned by the fall of a sloopes boome; which the Witnesses proue was the Sloope the Appellants sailed in; neither doe they deny it

    To theire 2d Reason J answer though it bee not proved against the Appellants that they are wilfully guilty, & soe not tried capitally; yet are they carelessly guilty as the Witnesses testify; the boome being top’t up more then ordinary, noe cleat being upon it & soe both themselves & Vessell liable to censure & damages by the Laws of this Jurisdiction: See Law title.—Maritine affaires—Sect. 13. where if any Ship or Vessell shall damnify another Ship or Vessell by running onboard her, the party offending (that is the Master) shall pay the damage & such Ship or Vessell shalbee liable to arrest & soe consequently to Execucion for responding the damage & making Satisfaction: and if the law make such provision for the securing of mens goods; certainly [much] more for the safety of theire lives: And if there bee reason for the person whose goods are damnified to bee recompensed for the same how much more reasonable is it that if a womans husband who is her & her Childrens Liuelihood haue his life or the use of his limbs taken away by such carelesness, that Shee should bee considered----

    To his 2d Plea. The Law of god doth not seeme to acquit the Appealants as they would pretend; though it may acquit them from being punished capitally; Yet may they bee Amerced for the same You may see in the .21. Exodus: 33.34. vrs if a man open a pit or dig a pit & not cover it & a beast fall therein the Owner of the pit shall make it good & give mony unto the Owner of the beast; Now if the digger of the pit by his carelesness in not covering it become soe far guilty of the death of the beast as to pay for it: then certainly if the Appellants by theire carelesness or Negligence (in not cleating theire boome and topping of it higher then ordinary in such a windy season as that is saide to bee) are soe far, guilty of taking away the life of one man & maiming anothr can it bee thought equall that these poor women & theire familys should not bee in some measure considered; 20li being but a poor compensation for the life of a man & 10li for a mans limbs: And whereas the Appellants say theire boome was not topped higher then Ordinary; if the Honord Court & Jury bee pleased to consider the Evidences they Sweare positiuely the boome was extraordinarily topped, who are J suppose as much Seamen as the Appellants: Neither will the Appellants instance in a Ship or Vcssells oversetting by the breaking or slipping of a tack bee paralell to or case; Nor doe they therein argue like Marrinrs for by the slipping or breaking of a tack the sail mast & yard is in more danger of splitting or breaking then is the Vessell of oversetting

    To theire 3d Reason: The Appealants therein doe too much reflect upon the Honord Court appealed from, as in not having the common & legall way of tryall as is usuall in such cases; for theire was a complaint exhibited against them & the Appellants had legall notice thereof being bound over to answer it & there was soe much guilt proved against them as for the Court to declare such a Sentence against them; & the persons wronged haue Liberty by Law to seeke theire redress by way of complaint or action; neither were the Appellants denyed the liberty of law in being tryed by a Jury (as they unworthily insinuate) they never pleading for it upon theire tryall.

    To theire 4th Reason, J thinke there is little need of Answer haveing spoken to it already in the 2d reply; the Vessell is liable to Execucion by or Law title maritine affaires Sect: 13. & although before the tryall, the Vessell (as they pretend) was deliuered up to the Ownrs yet that doth not exempt her by or law for any dammage done by her during theire Emprouement of her; & although the Appellants (as they say) cannot see ground for such a Sentence except upon the account of mercy & pity to the Afflicted; possibly not; they not being proper judges of theire own case & most men being unwilling to acknowledge they see what is against themselves; Yet those to whome it did properly belong to judge; did in justice finde cause to declare such a Sentence against the Appellants & the Vessel; & although the Feeding of the hungry may bee the starving of the naked justice hath & ought to haue its pure streames which here in this case is mixt with mercy. as J doubt not but the Honord Court & Jury will cleerely see; to whose serious consideration & determination J commend the case & Subscribe

    Yor Honors humble Servant by Order & appointment of the County Court of Suffolke

    Jsa Addington Cler

    Other documents in this case are the inquest post mortem, “Dr.” Daniel Stone’s certificate of Pegg’s injuries, writs and warrants. The Court of Assistants (Records, i. 5) reversed the judgment of the lower court.]

    Preist Find 5li

    Margaret Preist bound over to this Court to answer for her committing of Fornication of which shee was convict in Court by her own confession & brought in her bastard childe in her armes charging Iosias Rose [211] to bee the Father of it: And the Midwife & other women pursent with her at her travell testifying that Shee did persist in soe chargeing of him. being put to it in her Extremity The Court Sentenced her to bee whip’t with fifteen stripes or to pay five pounds in mony fine to the County & fees of Court standing committed untill the Sentence bee performed.

    Roses bond forfited

    Josias Rose, not appearing upon due calling to Answer according to his bond for his committing Fornication with Margaret Preist & William Kent his Surety being called to bring in saide Rose answered that hee was escaped: The Court declares the sd Rose to bee the reputed Father of the Childe Lately born of the body of Margaret Preist & declare both principall & Sureties bond forfited & Order William Kent the Surety to pay two shillings & sixpence per weeke in mony to Margaret Preist towards the maintenance of her Childe from the time of its birth till the Court take further Order.

    Benj: Negus to pay Capt Olivr 8s per annum for discharge

    Upon a certificate from Capt Iames Oliver The Court remits four shillings of the annuity of twelve shillings formerly enjoined by the Court on Benja Negus to pay to Capt Olivers Company for his discharge from trayning and henceforward Order the sd Negus to pay but eight shillings per annum.

    Roxberry Find 5li

    The Town of Roxberry being presented by the Grand jury for theire neglect in running the Line with the Town of Dedham according to Law: theire appearing some in behalfe of the Town to answer the presentmt they did owne in Court that there was a neglect in that the Line had not been run within the time Limited by Law. The Court Sentencd the sd Town to pay five pounds in mony as a fine to the County according to Law.

    Barker bound to the good behavior

    Edward Barker being complained of for bad & irreguler carriages towards his wife neighbors & others The Court Sentenced him to give in bond with Sureties of twelve pounds for his good behavior till the next Court of this County & then to appear; the sd Edward Barker as principall in six pounds & William Hawkins & William Cluffe as Sureties in 3li apeice acknowledge themselves respectiuely bound to the Treasuror of the County of Suffolke on that condicion.

    Floode bound to the good behavior

    Henry Floode being complained of for bad carriages towards his wife abuseing her in ill words calling her whore & cursing of her: The Court Sentenced him to giue in bond with Sureties of twelve pounds for his good behavior till the next Court of this County & then to appear the sd Henry Floode as principall in six pounds and George Orris & Iohn Orris as Sureties in 3li apeice [212] acknowledged themselves respectiuely bound to the Treasuror of the County of Suffolke on that condicion.

    Bernards admr discharge & Court Order

    The Administrators to the Estate of the Late mr Sammuell Bernard deceased vizt mr Iohn Usher & William Ingram presenting to this Court an Accot of theire sd Administracion which the Court accepted The Court discharged them therefrom & doe Order & Empower mr Iohn Hayward to demand & gather in all debts from any & every person whatsoever that are yet standing out due to that Estate.

    Court Order about Geeth’s Estate

    Capt Thomas Savage Administrator to the Estate of Charles Geeth produceing an Inventory of sd Estate upon Oath The Court Orders him to pay what is remaining of that Estate in his hands to the Treasuror of the County of Suffolke & soe discharge him from his sd Administracion

    The Court Adjourned from Munday the 2d to Thursday the 5th of February at nine a clock.

    February 5th [email protected] The Court met according to Adjournment

    Present

    • Ino Leverett Esqr Gor
    • Simon Bradstreet
    • Edw: Tyng
    • Wm Stoughton
    • Majr Tho: Clarke

    Matthew Atkins & Nathaniell Peirce both of Boston tooke the Oath of freedom of this Colony.

    Mullyn Find 40s

    Isaac Mullyn being committed to prison for breach of his Maties peace in strikeing Iohn Faireweather & by himselfe & others taking possession of a Ship in this harbour of Boston The Court Sentenced the sd Mullyn (in behalfe of himselfe & acomplices to pay Forty shillings in mony as a fine to the County & fees of Court.

    Dedham Find 5li

    The Town of Dedham being presented by the Grand jury for not renewing the markes in theire Line between them & Roxbury according to Law: The Court Sentencd them for theire neglect thereof to pay five pounds in mony as a fine to the County.

    Advice to Jones

    In Answer to the petition of Iohn Iones The Court doth advise him to continue his Service with his Master George Nowell & advise the sd Nowell not to pay any mony upon his bond given to mr Penny for the saide Iones without hee bee compelled thereto by Law.

    Lambs Senta

    Iohn Lamb & Elisabeth his wife being complained of for theire bad & abusive carriages one to another The Court Sentencd them both to bee sent to the house of correction there to bee received & entertained according to the Orders of the house to bee continued there till Saturday morning next & to pay fees of Court & the Court reverses theire former Sentence declared agst ye sd Elizabeth [213]

    Green Find 40s

    William Green convict by his own confession in Court of carrying powder from Noddles Island on board of Ship to bee transported out of the Country: The Court Sentencd him to pay forty shillings in mony as a fine to the County and fees of Court standing committed untill the Sentence bee performd

    Saxton Find 5li

    Thomas Saxton senr convict by his own confession in Court of selling strong beere without Licence The Court Sentenced him to pay five pound in mony fine to the County & fees of Court. the Court respited the taking of it till further order.

    Davis Senta

    Sarah Davis (heretofore Francis) convict by her own confession in Court of committing Fornication & having had an illegitimate Childe The Court Sentencd her to bee whipt with 15 stripes or to pay five pounds in mony fine to the County & fees of Court standing committed untill the Sentence bee performed.

    Owens Senta

    Thomas Owen convict by his own confession in Court of cursing swearing & desperate & dangerous actions toward his Master John Cleere by holding out his knife at him as if hee would cut or stab him: The Court Sentenced the sd Owen to bee severely whip’t with thirty stripes & to pay fees of Court & prizon standing committed untill the Sentence bee performed.

    Daniells Senta

    Thomas Daniell convict of stealing severall goods from Charles Gosfrit Pheasant Eastwick & others The Court Sentencd him to pay unto the sd Gosfrit Seventy seven pound two shillings & six pence, unto sd Eastwick £51:8:6. & to pay unto John Alden £: 2:15:0. unto Francis Lynsford £:01:16:0. being that threefold restitution that the Law requires & to return unto the severall persons aforenam’d what goods of theires are founde with him & under the custody of the Law: & also to bee severely whip’t with twenty stripes the sd Gosprit Eastwick Alden & Lynsford to pay the charges of prosecution & fees of Court and prison before they receive theire goods.

    Leather forfited

    Whereas there was a parcell of unwrought Leather seized on board the Catch whereof Elias Roe is master bound for Jamaica part whereof was shipped by Iacob lesson & part by hope Allen contrary to Law The Court on hearing what the partys could say for themselves do declare & Order that the Seizure stand good & that the Leather bee disposed of according to Law as forfited except the next Generall Court (upon the application of the parties concerned to them) see cause to remit it.

    Order for provicion for Ship Katharin

    The Court Orders & appoints mr Humphry Davy to supply the Seamen belonging to the ship St Katharin [214] Thomas Frizell Master with necessary Sea provitions untill the Court of Admiralty shall take further Order.

    Committee about Stevens’s Estate

    The Court Orders & appoints Capt Edward Hutchinson & mr Iohn Richards as a Committee to receive the claimes of the Creditors to the Estate of Nicholas Stevens of Boston deceased & to pass the Accounts of the sd Creditors & to proporcion what each Creditor shall receive according to the value of the Estate if it prove insolvent: Capt Hutchinson to appoint time & place for meeting & all persons concerned therein are hereby Ordered from time to time to attend the meeting of the sd Committee to make return of what they doe herein to the next Court of this County.

    Order about Malliots Estate

    Mr. Sammuell Shrimpton administrator to the Estate of lames Malliott deceased presenting an Inventory of sd Estate upon Oath to this Court. The Court Orders the sd mr Shrimpton to pay unto the Treasuror of the County of Suffolke what yet remaines in his hands of that Estate & soe discharge him from his Administracion.

    This Court dissolved February 5th 1673. @

    Present

    • Iohn Leverett Esqr Govr
    • Edward Tyng Esqr Assist.

    Harwood & Naylor to Mason

    Thomas Harwood & Edward Naylor personally appearing February 7th 1673 acknowledged a judgment against themselves & theire Estates jointly & severally for one hundred & eighteen pounds in mony (according to bond bearing date May 27th 1671) being principall & interest) unto Arthur Mason one of the Executors to the Last will & Testament of Ioseph Deacon deceased.

    Execucion respited till May 27th 1674.

    as Attests. Jsa Addington Clerk.

    Execucion issued 8br 8: 1674. [215]

    Overman to French

    Thomas Overman personally appearing before Iohn Leverett Esqr Govr & Edward Tyng Esqr Assist: Aprill: 27th 1674.

    Acknowledged a judgment against himselfe & Estate for twenty four pounds nine shillings in mony unto Phillip French being due upon bond with interest.

    as Attests. Jsa Addington Clerk.

    Execucion issued June 12th 1674.