[Several hundred documents in the Suffolk Files (1221, 1341, and 162121) relating to this case, and the subsequent litigation between Lawton, Bonner, and Ashton, enable one to reconstruct the story of the ketch Recovery’s voyage. John Bonner635 was master and originally owner of three quarter-parts of this little trader of 45 tons burthen. He sold one quarter-part of her to Henry Lawton, an Englishman, and one quarterpart to Ralph Fletcher in August, 1670 (bills of sale in S. F. 1221.36, 73). Thomas Peck, builder of the vessel and original owner of the fourth quarter, chartered, on August 3, 1670, one-half of his share to Henry Lawton, Ralph Fletcher, and Captain Bonner

. . . For a voyage with her to bee made from Boston aforesaid vnto Virginia or Mariland or Both of them and from thence vnto the Kingdome of Ireland and from thence to England and from thence to Boston againe as her Last port of Discharge for 6 monthes certaine and Nyne monthes vncertaine Begining on the sd 23^d Day of August, One Thousand Sixe hundred and Seaventy the sd Peck with Livetenant Richard Cooke themselues fraighting the said Peckes other Eighth parte thereof for the same voyage . . .

The charterers were to pay Peck 1l 15s per month charter money until she returned to Boston (Peck’s protest, 12 July 1671, S. F. 1221.34).

The Recovery sailed for Virginia under the command of John Bonner, with Henry Lawton supercargo, laden with the following cargo (S. F. 1221.48):

Invoyce of Goods Shipped on board the Ketch Recovery, Mr Jn^o Bonner Command^r

The Cargoe above expressed goeth consigned unto M^r Henry Lawton to dispose of in Virginia or Maryland & soe for England or Ireland or both according to agrement & is for y^e account & adventure of y^e severall persons after named Viz. M^r Ralph Fletcher for one quarter part. M^r Henry Lawton for one quarter part. M^r Jn^o Bonner for one quarter part, & one eight more between the thre above s^d Persons. One sixteenth for y^e account of Thomas Peck one sixteenth for y^e account of Richard Cooke

Owned by the plaintiffe in Court y^e 26^th 6. 72 as attests

Isaac Addington Cler

Instead of leaving Virginia for Ireland, as the charter-party required, the Recovery made a voyage to Barbados and back to Virginia. In S. F. 1221.78 is her

Invoyce of Goods Shiped Aboard the Ketch Recovery bound for Barbadoes on Acc^t of Ralph Fletcher And Comp^y And Consigned to s^d M^r Bonner viz

For aught shown by the record, the voyage was a harmonious one until the Recovery reached Liverpool, at the end of her second voyage from Virginia. There, apparently, the rascality began. According to supercargo Lawton, Captain Bonner left the vessel “with none to take care of her” in order to make a visit to London; and after he had returned and the cargo was on board and the vessel sufficiently provisioned for an ocean voyage, he delayed sailing for three or four weeks under various pretenses. Five packs of goods, five hogsheads and five casks of cheese, “five creats of Pipes, & five or ten barrels” were taken aboard for the owners (deposition of mate Goodridge, S. F. 1221.88), but a part of the homeward cargo, received on board at Liverpool, November 24, 1671, was contracted for by Henry Ashton of Liverpool, merchant, who engaged for his own passage as well (Ashton’s protest, S. F. 1221.33). It consisted of six tons of goods and twelve servants to be transported to Virginia.

The indenture of one of the servants, Robert Scofield follows (S. F. 1221.40):

This Indenture witnesseth that I Robert Scofeild doe freely binde myselfe & Couenant w^th Henry Ashton of Liuerpoole in the County of Lancaster Merchant with him to goe hence to Virginia in America in good Shipp called the Recouery of Boston there to dwell & serve him the Said Henry Ashton or his assignes mencioned on the backside of this present Indenture the full end & terme of fowre years from the Day of the Ariuall at the Said place to be fully compleat & ended during which terme the s^d Henry Ashton or his Assignes is to finde his Said Seruant with meate drinke Lodging washing Apparrell meete & convenient & at the Expiracion thereof to haue two suits of Apparrell prouition for one yeare & fiuety Acres of Land to be Established on him for an Euer Lasting Inheritance according to the Custome of the Country In Testemony whereof the parties abouesaid to these presents haue Interchangeably Set their hands & Seales this 22^th Decemb^r 1671

Robert Scofeild & a Seale

Signed Sealed & Deliuered in p^rsence of

Francis Siddell

Hen: Lawton

After further delay at Liverpool, at which Ashton protested (S. F. 1221.91), Bonner made, on 19 December 1671, the first of several attempts to leave Lawton behind, apparently with the idea of making off with the cargo and selling it for his own behoof. John Ireland, one of the Recovery’s seamen, deposed (S. F. 1221.85) that when the Recovery was sailing to and fro waiting for a fair tide to clear the flats

. . . in Liverpoole River, wee Saw two men on horse backe comeing along the Sands, and this Depon^t thought it might be m^r Henry Lawton, and Spake to the master that they might go fetch him on board, and the said John Bonner replyed that if the said Lawghton would come on board he might hire a boate (there being none neere, for he would not send the boate for him, and said if he had Israel Milboroughs chest aboard he would go to Sea, & leave the said Henry Lawton behind, & neither stay for him nor the ship Dimond.

Whereas Severall times this depon^t hath heard the said Bonner pretend before that, he durst not go out with out a Pilot, or some other ship or vessell in company, And further the said Bonner said to the Seamen, that if they would go to Sea, he would put m^r Browne & his wife (that were passeng^rs) on shoare and all said Lawtons Serv^ts, that were then on board, but two of Said Laughtons Serv^ts were gone or rune away before, after they had been Shipped on board at Liverpoole: And further this Depon^t Saith, that the said Bonner did send the boate on Shoare for m^r Ashton, and this Depon^t being in the Boate, the said Bonner bid him if he could meet with m^r Ashton bring him aboard, & leave the said Lawton behind, for the said Bonner said if the said Lawton was left behind, they should not pay for a boate that was lost in Liverpoole. . .

Ashton corroborated the main details of this story (S.F. 1221.9). Lawton obtained a small boat and managed to get on board the Recovery before she left port. On December 21, 1671 (S.F. 1221.91), she put in at Douglas in the Isle of Man, “whereat,” according to Lawton (S. F. 1221.5), Captain Bonner

spent 9 weeks more as unnecessarily as the former, with nigh thirty people on board in w^ch time he pretended to waite the motion of A Ship that lay in the Harbor but when the s^d Ship was ready to sayle & that pretence fayled, well knowing that the plaintiffe waited his motion he so far degenerated from his duty that he instigates the company to complaine to Authority for want of a Cable & pump & provisions, w^ch was not there to be gotten upon any termes as he well knew in w^ch time both himselfe & Company deserted y^e Catch leaving the Haches open, the Ketch on ground, thereby exposing the Merchants Goods to be stolne & imbeasled as per Gooderidges Evidence n^o 3. & others, the plaintiff636 having to the great detriment to the voyage supplyed him with 5 barrells of biefe, 4 barrells of Herrings & one tunn of beare, the 3^d or 4^th day after his arrivall there as per Henry Ashtons Evidence N^o 8. & having combined with the men, in the neglect of their duty, now pretends the men will not sayle except the plaintiffe give bonds to secure them from Dammage, vpon w^ch the plaintiffe to save the voyage from vtter ruine, hired some fisher men to sayle the Ketch for some port in Ireland there being no seemen to be gott in the Ile of man, which the Defend^t und^r standing the next night being a dark night, with out the Plaintiffs privity, gott himselfe & company on board, & sett sayle with the Cetch, sending his boate on shoare for M^r Henry Ashton, with expresse order to leave the plaintiffe behind, but the plaintiffe being informed of his departure, hired a boate and followed him, as appears per Jn^o Irelands Evidence n^o 4 that the Defend^t might the better deceive the Owners of a boate, by himselfe & company carelessly lost in Liverpoole after all w^ch s^d Bonner still falsly pretending want of provision sayled for Dublin in Ireland, where the plaintiffe at s^d Bonners Demand did again refurnish him with 15 barrells of biefe, 8 bushells pease 18^ll¾ bread to the vallue of 30^l money of England, as appears per account of victualling owned in Court & secretly after all this the Defendant draws a protest against the plaintiffe as supra cargo & then setts sayle with a contrary wind & leaves the plaintiffe behind in Dublin, not so much as leaving him any sustenance, thereby indeavouring to disparrage his credit & bring away not only his other Estate but chest & wearing apparrell & other necessaryes, intending his vtter ruine at once, & that he might leave nothing unattempted that might serve him in this unheard off iniquity, after he had sayled thence back to the Ile of man, from thence to fyall & there signed bills of loading for Virginia, but comes hither for Boston, breaks open the Plaintiffs Chest & Case, disposing of his writings, sundry of which were of concernment about some of the forementioned transactions, disposing of all according to his owne will & pleasure, improveing the plaintiffs Estate to purshase his peace with others more remotely concerned in this his unrighteous Actions,

Most of these details are corroborated by Ashton (S. F. 1221.91), to whom Bonner admitted that his intention was to leave Lawton behind, “saying the voyage would neuer doe well if he did not leaue him,” which he did upon sailing from Dublin on March 14, 1672.

The Recovery finally “cast anchor at Boston” on May 25, 1672 (S. F. 1221.51) after an absence of over twenty months—the original agreement having been for a voyage of nine months at the outside. Upon arrival, Captain Bonner was confronted with the judgment of court against himself, Lawton, and Fletcher for 14l 17s 6d, as recorded in the text. This was only the beginning of a long course of litigation between Ashton, Lawton, and Bonner; for which see Ashton v. Bonner on p. 141 below, and subsequent entries.]

[A copy of the bill for the goods in question is in S. F. 1104.14, on the same sheet as the power of attorney from Mead and Ingram to Richards:

London 21^th March 1664

Bought by Ephraim Tumor of New England Merchant of William Mead and Ralph Ingram of London the goods following made vp in one pack marked & Nombered & per margent & delivered to the Said Ephraim Turnor.

The 28^th Decem^r Ann^o 1667 Rec^ed in parte: li 10^li

William Mead

Ralph Ingram

. . . true Coppie as Attests FreeGrace Bendall Cler.

A copy of the Bill of Exchange (or, as Turner claimed, Obligatory Bill), is in S. F. 1104.8:

Boston in New England 16^th November 1665

Thirty Dayes after sight of this my first Bill my Second & third of the Same termor & Date not being paid I engage to pay or Cause to bee paid To Cap^t William Mead or his order in London the full & Just Summe of Twenty pounds Sixteene shillings sterling: being for the like vallue here Receed of Ephraim Turnor, for the punctuall performance hereof I bind my Selfe heirs & assignes as witness my hand

Rich^d Thurston

Witness

Richd: Wayte

Ben: Phillips

This is a True Coppie as Attests FreeGrace Bendall Cler

The following correspondence is also on record (S. F. 1104.9–12):

In 1104.12 is the copy of a deposition made under oath by Eusebius Sheppherd before the Mayor and Aldermen in the Guildhall, London, to the effect that he witnessed “Henry Taylo of Boston in New England Chirurgeon” seal and deliver two bonds to Mead and Ingram, now shown in court and dated April 11, 1668; and that he saw “Thomas Norman Junior of Boston in New England Merchant” seal and deliver a bond to the same; and that Ephraim Turner bought a certain pack of merchandise from Mead and Ingram, on which 10l 16s ½d were still due.

John Richards’ reasons for appeal of the case from this court have not been preserved, but John Turner’s answer is in S. F. 1104.5:

John Turner as Suerty for Ephraim Turner his Answer to y^e reasons of Appeale p^rsented by John Richards as Atturney to Cap^t william meade and m^r Ralph Ingram in y^e caise depending betwixt s^d John Richards Atturney &c and Ephraim Turner.

To y^e first

The Defend^t hath proued by Cap^t meads owne letter bereing date 26 febr. 1665 y^t y^e Bill was a bill of exchange, & so owned by him. 2^ly though not named in y^e bill a bil of exchange yet it carrys y^e forme of a bill of exchange w^ch a man draws vpon him selfe; for it is as much as an accepted bil, drawn vpon another, 3^ly his hairs &c he sath are bound. I answer when a man hath once accepted a bill of exchange his hairs are bound, Lex mec. 266.637 4^ly all bills drawne vpon an other & p^rsented by a publique notary when they are accepted he is a witnes to y^e acceptance, if not accepted he protests them, w^th in this caise was not done as it shold haue bene, & y^t w^thin 3 dajs at furthest acording to y^e natuer of bils of exchange as apears in Lex Merc^t in y^e aduise about bills of exchange fo, 16, 24, but it is no losse to m^r meade nor weakening to y^e bills of exchange y^t they were witnesed. 4^ly y^t al y^e 3 bills ought to be deliuered to y^e Cr. is a mistake & Contrary to y^e law of merchants one should be kept by y^e receiuer of y^e bill of exch. to sho he hath discharged his trust. y^rfore y^e bills Legally proued to be by Exchange.

To y^e 2^d

Great neede of a protest if not paid because w^thout it Turner was left w^thout recouery & must recouer if euer by power from meade, w^ch now he is for euer made vncapable of, if y^e drawer were neuer so able, for want of a protest in time, 2^ly for y^e man going out of y^e Country w^th y^e bill he drew vpon him selfe, it stoode Cap^t meade more in hand to prosecute him by protest, and also attaichm^t for he might haue donne it by attaiching y^e money in his owne hands, for Turner Knew Cap^t meade had suffitient in his owne hands of Thirstons to pay him selfe w^th, w^ch was y^e ocation of Turner receiueing Thirstons bill, & m^r Richards could not denie in Court but he sent goods by Thirston y^t voyage, w^ch might be suffitient to pay this bil, y^t was consignd to Cap^t Meade, and though Turner promis by letter paym^t of this 10l on Condition, yet it wil not bear y^t inferans m^r Richards maks but y^e Contrary, for if Turner might haue had such a parsel of goods sent him then, w^ch he might haue gained much more by, then he would pay him else not. for Turner knew wel y^t Cap^t meade had made Thirston his debtor & not Turner by receiueing part of y^e bill to witt ten pounds as by leter 2 Ap. 1668, & yet had not protested his bill in time nor indeede not at al, so y^t it neuer was recouerable by Turner as apears by Lex Mer^ct fol. 264. and also as before fo, 16.24. it is conuenient a protest be drawne w^thin 24 howers but must not exceed 3 dajs. y^rfore now Turner is not capable to be put in power to receiue it though y^e drawer were here p^rsent & neuer so able; for want of a protest according to Law.

To y^e 3^d

for y^t y^e p^l saith y^t y^e def^d alledgeth y^r is one of y^e bills yet in y^e hand of Meade & y^t it is but A bare affermation w^th out profe, I would know whether y^e p^l use to take witnes what bills of exchange he incloses in his letters, but we know y^t y^e end of 3 bills of exchange is that too may be sent away and one kept, & y^rfore it is vncharitable to say he beleues Turner kept 2 of them, for y^e gentlemens repute we blemish them not.

To y^e 4^th

Sending a bill of exchange drawne upon a mans selfe and y^e party y^t it is sent vnto owes y^e drawer a greater some for fright, I thinke it is not onely a fine way of returnes, but y^e fineest way I can devise.

To y^e last

That there once was such a debt & y^t y^e debt is not onely legally but honestly paid I hope hath bene proued, and if it be lost it is not Turners but meads neglect and losse, and y^e Court gaue iudgm^t according to Law & witnes, in this caise w^ch I doubt but this hon^rd Court wil confirme

5. 1^mo 1671/2

John Turnor

The Court of Assistants, on March 5, 1671/72, reversed the former judgment and awarded 10l 16s and costs to Meade and Ingram (Records of the Court of Assistants, iii. 212). Turner then pled for a review of the case (S. F. 1104.6):

Ephraim Turnor his pleas for Reueiew of a Case tryed att the Court off asistants in march Last wherein m^r John Richards atturny to Cap^t Wm Mead & m^r Ralph Ingorum of London was plaintiff and I the said Ephraim Turnor Defendant:

1^st If I was Cast by mr Richards his plea that the Bill was not a Bill of Exchang but an obligatory bill therein he ownes It to be a Bill & Lex mercatoria In Aduice Concerning Bills of Exchang proous it to be a bill of Exchg: title whatt Exchange Is folio 1: where he saith Reall Exchange is nothing els but to giue or take vp mony in one Citty or town to the End to haue againe or Restore the Just vallue thereof in another town according to the price shall be agreed vppon Betwene the taker and deliuerer to allow or pay for the Exchange of mony and the Loss of time which will be from the time the mony Is taceen up or deliuered vntill it be Restored:

2^ly that I paid mony heer testefieth Daniell Turrell Senior that mr Thurston was to pay It In England testefieth his Bill which makes it by the Law aboue Recitted a Bill of exchange wherein he is obliged to pay by agrement the same vallue possitiuely in England that he took vp of mee heer

3^ly For Daniell Turrells Euidence It is New Euidence neuer in Court Before: to Answer a plea of mr Richards to mee that though Cap^t mead was to pay Thurston freight yet that was vppon the Shipps acc^ott But that this was a partiquler debt thurston owed mee I Answer by that Euidence as written: It was vppon the Shipps ace^ott and were It Alowable for me to Sware in this Case I Coold Safely that the Shipp Coold not haue gone away If I or Sum other had not paid that mony and aboue as much more which I did pay

4^ly If still the Bill be denied to be a bill of Exchange the word Exchange not mentioned I Answer as aboue in Lex mercatoria folio 1 whatt Exchange is

5^ly If said it is noe bill of Exchange Beccaus heirs and assighnes bound in it to that I say matter & forme makes euery thing in Ciuills or other wais In this heer is matter its mony paid heer (for mony to be paid In England as in Lex mercatorea folio 1 title bills of exchang) as by the testemony of daniell Turrell for soe much paid him heer for the Shipps acco^tt by Thurstons order and by Thurstons Bill for the Like vallue to be paid in England for Soe much Recceaued of me heer: which prooues it I hope a bill of Exchange

6^ly If it be said bills of Exchg are the greatest things Bindeing and Nothing Can be more strong: yet Adding heirs and assighnes takes not from Butt adds to If Any thing be so be Added and alters not the power of a bill of Exchange especialy a person drawing vppon him selfe: and for forme it is drawn att or after soe many dais sight of this my first Bill my Second and third of Same Teanor638 and date not paid: or of this my Second my first and third or of this my third now in Court my first and Second of the same Tenor and date not paid soe that heer is the forme as in the Bill and the matter mony paid heer for mony to be paid In England which makes it Exchange as Lex mercatorea folio 1 title aduice It being soe it is accepted by the drawer as by Capt Meads Letter in Court 26 of 12^mo: 65: wherein he ownes it to be a Bill of Exchange and Richard Thurston being drawer and accepter is bound to Capt mead and not my selfe as saith Lex mercatorea folio 13 Title Aduice: A Bill of Exchange which Is accepted and att the time not punc[k]tualy paid: sum think If they Caus a protest to be made on such a Bill for non payment that by protesting the party accepting is freed and that they Reserue theire Right onely against the drawer (heer drawer and acceptor are one person) but the party accepting is soe far from Being freed by protesting as that he is more Liable which Is Richard Thurston not Ephraim Turnor

7^ly Besides this bill was accepted and the accepter therefore Ingaged as in folio 16 Title 24 houers for acceptance: and if it was verball acceptance (onely) which this Can not but bee as appears by Capt meads Letter yet that Bindeing title verball acceptance folio 17639

9^ly It Being drawn by the acceptor vppon him selfe and protest not made for non paiment of the whole or for part as Lex mercatoria folio 17 title accept for part Saith it ought to bee: you must take such his acceptance for part but Caus the Bill to be protested and send the protest away to the party that sent you the Bill: But Capt mead neuer sent mee nor I neuer saw the bills sent nor heard of It being Come to New England vntill 1671 which was many years after it was drawn (and accepted by the drawer as per Capt meads Letters in Court) who ought presently to haue protested the bill as Lex mercatorea folio 22: you must presently protest for non paiment of the Remaining Sum and the Receauing part of the mony vppon the Bill doeth not weaken the bill or protest for not payment or any Legall Coures against the drawer or acceptor (Both which Is Richard Thurston ∴ Not Ephraim Turner) but Rather strengthens the same, and the protest is to be made in three dais after the mony due that was soe many days after sight of the bill ∴ which was shown to Richard Thurston by Cap^t mead or his order as per his Letter and yet not protested nor Retturned Back to mee as he ought to haue done which If he had done with an assighnment on the back side to mee for what Left vnpaid I coold haue heer Recouered as John Turnor and Elizabeth Alden Can testefie ∴ thurston whoos wife went away about two year after him and Left heer more then Enuf to pay that which was after wards sent to her Besides aboue thirtene pound I paid for her to m^r Simon Lynde and good wife Farnum who Can testefie the same soe that if the bill had Bene protested And againe Assighned to mee It being made positiuely to Cap^t Mead I Coold then haue Recouered it of his Estate and If I had not then might I haue Bene Blamed as Justly as Cap^t Mead now Suffers

10^ly further the acceptor of this bill which is Richard Thurston is Bound to the party to whom payable Saith Lex mercatorea, folio 27

These things Considered I hope the Honored Court and Jury will finde not with standing all pleas of the Now deffendant and the word Exchange in the Bill omitted that it is a Reall Bill of Exchange Comeparing my first and second pleas together And noe protest being made in time according to that Law Lex Mercatorea folio 24 nor for non payment of part as folio 22 (which I desire may be perused by Court and Jury and Seriously Considered off) nor Retturned with Assighnment in time: for the Reasons mentioned that Richard Thurston Is the proper Debtor to Capt mead and not the Now plaintiff ∴

And if he the proper Debtor then my Letter Noe owning of the debt as due from mee ∴ for that Is But Conditionall noe more then If Ephraim shoold say to William he will pay him soe much mony for Richard If John will Lett him haue such or such a percell of goods such or such a peice of Land which Condition If performed By William then Ephraim Is obliged But this Condition was Neuer performed By William Mead therefore Ephraim Turnor not obliged the promis Being onely made vppon Conditions and as an Incouragement to him to send mee ouer the said goods then writt for which If att that time I had Recceaued shoold haue gained by them more then that ten pound

More ouer I sent two Bills home to England and Neither as yet I know off Retturned and though one be w^ch m^r Richards vnwillingly produst ∴ yet the other may be deliuered vp to the drawer and acceptor viz: Richard Thurston vppon the Reseipt of the mony and If I forst to pay It againe then Cap^t Mead doubly paid which I doubt not woold bee

The legal problems raised by this case are complicated by the unusual form of the instrument involved. It appears from the facts that Turner in New England, being indebted to Mead in London for goods as itemized, sent him an instrument for the amount due, payable to Mead’s order and signed by Thurston, a sort of agent of Turner’s who had received from him money or some other equivalent. Thurston was probably in Boston when the instrument was signed in November, but evidently it was expected that Thurston would be in London the following spring and pay the amount due.

The normal course of business would have been for Turner to sign a bill of exchange ordering his agent Thurston to pay the amount of the debt to his creditor Mead. If such a regular bill of exchange had been drawn, payable thirty days after sight, then the law of merchants (which Turner’s answer has in mind) required the holder to present the bill as soon as practicable to the drawee (Thurston) for acceptance, viz., his promise to pay the bill, which he ought to write across its face. This presentation for acceptance would constitute “sight,” and the bill would then become due for payment thirty-three days later, three days of grace being added to the thirty days specified in the bill. When the day of payment arrived the holder must again present the bill to the drawee (Thurston) for payment. After either acceptance or payment was refused, then the holder had to give notice of the dishonor within a reasonable time to the drawer (signer) of the bill. Failure to make these two presentments to the drawee (Thurston) or to notify the drawer (Turner, it is assumed) of any dishonor would release the drawer from further liability on the bill or the original debt.

But the instrument did not take the regular form of a bill of exchange discussed in the preceding paragraph. Although it describes itself as a bill, it seems to be really a promissory note, for it contains no order addressed to any third person as drawee, but only the promise of the signer to pay the specified amount to Mead or his order. Instead of drawing his own bill of exchange upon Thurston, Turner really gave a note signed by Thurston. In the first paragraph of his answer Turner interprets this instrument as a bill drawn by Thurston upon himself, but this construction would make no difference even if it accorded with the facts, because the English courts have treated such an instrument as a note. Promissory notes were in actual use in England in 1665, but there was considerable doubt whether they were negotiable instruments like bills of exchange, and the point was not finally settled until they were declared negotiable by Act of Parliament in 1704. This uncertainty may explain Turner’s attempt to treat this instrument as if it were a bill of exchange.

The law of merchants did not require a note to be presented to the maker in order to make him liable. Consequently, Mead’s inactivity did not release Thurston. Turner was in a somewhat different position. He could not, as he tried to do, claim the benefit of a discharge under the law of merchants, since he was in no way a party to the instrument. His whole claim that he was entitled to the formalities of presentment and notice of dishonor, as if he had been the drawer of a regular bill of exchange, was unfounded. At the same time Turner may have had a real grievance. If he is to be believed, he supposed that he had paid his debt by this note and was kept ignorant for some years that Thurston had not taken care of it. He says that if he had known of the dishonor he could have reimbursed himself out of property belonging to Thurston, which remained in New England for more than two years after the note was given but was no longer available at the time of the suit. Probably this story of hardship impressed the jury sufficiently to get a verdict for Turner. However, it is uncertain whether there was a legal defense on the facts. Possibly the Court of Assistants thought that Turner should have communicated with Thurston in order to find out whether the instrument had been paid and not relied on the absence of information.]

[See Sprague v. Collins, above, p. 18. There is no record of an appeal to the Court of Assistants.]

[The following documents, from S. F. 1090, explain the Barbadian transactions which were involved in this case, and throw light on the close commercial and personal relations between Boston and Barbados, Virginia, and “Manadoes” (New York). John Stoughton is perhaps the younger brother of William Stoughton, mentioned in the will of their father, Israel Stoughton, 1644, and according to Savage “never heard of after.”

S. F. 1090.4

The following unflattering inventory is in S. F. 1090.2.

An Inventory of all such Goods M^r John Stoughton died possest of, or had, or had at y^e time of his Decease In his Charge & Cust[ody]

• 1 Stone horse, 1 Gelding Lame & Sickly
• one man Negro named John & one Negro boy named Peter
• One beam Scales & 882^ll of Leaden waights
• Three bb^s flower, 2 firkins of butter, bad
• 1 Iron pott, 1 pewter bason; 6 butts w^th Sug^r almost full y^e Contents not knowne. 1 hh^d & 1: bar^ll of Rum & 1 hh w^th a Small quantity in it.
• bb^e of Stinking beife, 1 empty butt: 1 empty hhd, a parcell of Deals Contents not knowne,
• a dozen of new hamocks, 3 old ones a Small parcell of Cotten about 200^lb
• a Case of Pistolls & holsters a pockett pistoll & rapier a Sett of bandaleirs 3 pair of breches one Dublett & Loose Coat, 2 old hatts, 1 pair of Silver buttons for breches one Sett of Silver Ditto for Neck & Coller a sett of Silver shoo buckles a Silver ginie hatt band, a Small gold Ring, a Small hoope gold ring, a Silver Seale, a pair of Silk Stockins
• shirts, 5 Striped Neccloths, 4 white Jackitts, 9 Napkins 2 table Cloths,
• pair of Linen Drawers, 1 pair old Riding stockins, 1 p^r old Silk Stockins a holland neckcloth, 2 handchercheifs, 3 bands,
• a purple Cotton morning gowne one Rugg,
• 1 English Case w^th 9 bottles, 9 books written in Concerning Acco^ts Severall piles of writings, Seaverall Small papers Loose, Seaverall Noats & ribles in Small boxes & bundells a Looking glasse, a Ceder Deske a[bout] a Reame of paper.

This Came enclosed in a letter from Daniell Bur Dated y^e 22^th January 1661 In w^ch he writes I have sent also an Inventory taken per me Richards & me Cook of y^e Goods m^r Stoughton died possessed of & had in his Custody &c^a

The following account (S. F. 1090.6) is reckoned in pounds of sugar:

S. F. 1090.5

. . . true Coppie as Attests FreeGrace Bendall Cler.

S. F. 1090.7

This is a True Coppie as Attests FreeGrace Bendall Cler.

Since I left the Island John Stoughton had a trade of Shooting at the hole 500 or 1000^li sug^r a shoot which I feare wasted much the Estate, The Lord Winsor was heere w^th fiue shipps (per ord^r from the Kyng) & haue carried away many passeng^rs with him to Jamaico & what of o^r Debt^rs are gon640 I Know not, for the firkin of Butter I receaued of M^rs Stoughton haue deliuered to Daniell Bur he hath deliuered the produce to you pray deliuer it her

. . . True Coppie as Attests FreeGrace Bendall Cler.

S. F. 1090.8

The Testimony of John Winslow Aged 75 years or there abouts

Testifieth & saith that about the year 1661 when Marke Hands whent last from this place & Leaving w^th me Some trust about his buisness & Especially about his poore Children y^t were motherless for whome he did take more then ordnary Care & Especially y^t now he was Like to Leave them fatherless too at present he desired me to bee Care full over them in his abcesnce & to see y^t thay did not want for nothing y^t might bee for their good & Comfort and he did promise that he would take Care to send means for their Comfortable maintenance & y^t he had or would send 5 butt^s of Sug^r unto M^r John Doggett of London y^e Effects of w^ch Sug^r should bee ordred unto me here in New-England for y^e use of his children, and to pay Some Small Debts he did here owe, as also he did tell me y^t he had or would order Joseph Grafton who was bound from Virginia unto holland in a vessell wherein y^t Said Hands was Interested to deliver y^o Effects of what Intrest was his in y^e vessell for y^e vse aforesd: as also after his departure hence he did advise me by Seaverall Letters y^t Daniell Burr had by his order shipped y^e Said 5 butts of Sug^r for y^e propper Acc^t of Marke Hands and Consigned them unto M^r Doggett now y^e year Mowing Cap^t Pearce coming here I did aske him if m^r Doggett had shipped any Goods aboard for y^e Acc^t of Marke Hands, but he Said no, but he had shipped Some & Sent them unto Cap^t Clarke, now I Supposing these Goods might bee the goods Marke Hands had given me advise of I went unto Cap^t Clarke to Demmand them as Marke Hands his Goods he did owne them to bee Such a parcell of goods & y^r returns of y^e 5 butts of Sug^er but would not owne them as Marke Hands and asked me how marke Hands should come by such an Estate of his owne I replyed & asked him how he & other men Came by their Estates, and that, y^t was very hard if an Industerous man in so many years as he had been in Barbados & Soe good a time of trading Could gett Soe much of his owne y^t was very hard, but at Last he did tell me y^t if I would take y^e one halfe I might have y^t for he Supposed y^t Came out of y^e joynt Stock, I did reply I would have all or none and so parted but upon Second Considrations haveing occation to pay Some Small debts for y^e Said Hands I went unto Cap^t: Clarke & was content at present to take y^e one halfe but did never See y^e Invoyce of y^e Goods nor what there was come but he did tell me there was ten bar^lls of Pouder & as I remember Some Ruggs & other Goods the halfe of w^ch he said I might have I did at present take one bb: of pouder & presantly after Cap^t Clarke fell Sick at m^r: Treeks and there I went unto him for another w^ch m^r Treek did Deliver me & before I went for any more here Came News of m^r Hands his Death & then Cap^t Clarke would lett me have noe more, though I did make y^t app^r by a bill of Loading that Mark Hands did send me and did shew y^t unto Cap^t Clarke wherein was Expressed y^e 5 butts of Sug^r Shipped by Daniell Bur for y^e proper Acc^t of Marke Hands and Signed by Amos foard who did Carry y^e 5 butts from Barbados to London but this bill of Lading I cannot Since finde and know not wether I Left y^t w^th Cap^t Clarke in his Counting House or not, also there is Severall Letters y^t I did make y^t appeare to Cap^t Clarke y^t he had nothing to doe w^th y^e Goods y^t he hath Kept all but y^e 2 bb^s of powder Neither did there ever Come y^s worth of one peny to me of y^e Goods shipped in Joseph Grafton or any acc^t: of y^t and further Saith not.

John Winslow

Sworne in Court y^e 31^th 11m^o 1671 as Attests FreeGrace Bendall Cleric.

Clarke’s reasons of appeal have not been found; Brackett’s and Brattle’s answer thereto (S. F. 1090.3) alleged that there was no effect in the summons, and reviewed the facts in the case, with a good many references to “widdows” and “orphants.” “His pretence of producing an account in company to y^c last court is a meer collusion . . .”; and in conclusion:

. . . it is humbly hoped that it will be evident y^t y^e orphants Interest is unjustly detained or interrupted by y^e now [plan]tiff under colour and pretenc of partnership, & that upon that single con[sidera]tion the judgment now appealed from is just and legall, and that the cours of commerce and faith that is given in trade, reason, reputation, religion, & definitive law y^t is established by y^e most high & just judg. Exodus. 22. 11^th determineth y^t an oath of y^e land ought to be between us, or if y^e goods be by any dividable Interest torn in peices, let him bring it for a witnesse. And in y^t judgment y^t y^e only wise judg shall direct this honoured court to give we shall acquiesce in y^e orphants behalf, & pray y^t in this & in all other your determinations y^u may have divine assistanc and direction,

Your honours Suppliants and servants.

Tho: Brattle

Peter Brackett

Boston the 5^th of March 1671/2

See also the next two entries in the text, and below p. 79.]

[John Williams was a merchant “of Southwark near London,” and Theodore Atkinson a feltmaker of Boston. This case had been dragged from one court to another for a space of ten years or more. It is adequately dealt with up to this point in the printed Records of the Court of Assistants, iii. 137–8, 147, 203–7, and the unfavorable result of an appeal from this judgment to the Court of Assistants, March 12, 1671/72, is on p. 215. See also below, pp. 95, 247. In the meantime, owing to a disagreement of bench and jury in the Court of Assistants on September 5, 1671, (on the occasion of an earlier appeal), the General Court heard the case, October 8, 1672. It judged that Williams should recover 217l 16s 3d from Atkinson, and issued a writ of execution (return of writ December 3, 1673 is in S. F. 1276.18; cf. Records of Massachusetts Bay, iv², p. 539, 571). Atkinson appealed again to the General Court, October 19, 1672 (original signed in S. F. 1276.26), and apparently in vain. Not discouraged by these successive rebuffs, Anthony Checkley, attorney for Atkinson, attempted a new action against Williams in the County Court on January 27, 1673/74 (S.F. 1276.35), on the ground that the premises seized under the previous writ of execution really belonged to his daughter Abigail Atkinson. At its January session in 1673/74 this Court again decided against Atkinson (see below, p. 372). Checkley’s reasons of appeal from that judgment are in S. F. 1276.36; Williams’s answer, in S. F. 1276.37.

Some of the earlier papers in the case are here reproduced for the light they may throw on Boston commerce and the fur trade between 1650 and 1660. Many others may be found in S. F. 1276 and S. F. 669. The first is a copy “owned” by Williams October 27, 1670, as attests John Pyncheon (S.F. 1276.44):

The 11^th of Aprill:1659

m^r Atkinson I thought good to Answer youre letter that you sent to mee Concerning our agreement, when you was with mee it was this, that what Goods I sent you & stood to the Aduenture of, them you were to allow mee 22^l in the 100: & you were to make mee Returnes the same yeare, if not you were to allow mee 8^li in the 100: for Interest & I haue sent you none but what was on my Owne Aduenture, both to you & back to mee againe, Except these Goods that I sent to you the last yeare, 171^l pounds 19^s, & 6^d, And the produce of them I shall Expect that you stand to the Aduenture of them to mee, & because that most of them were goods, that you did not write to mee for, & you Complaine that the hatts came to a bad market therefore I shall desire but uery reasonable profitt, which will bee but fourteene pounds, if soe you send mee returnes this yeare, w^ch will bee in all for them, 188^l 19^s And Concerning the goods that were in m^r Garret, you say they were on my Account, I suppose the Bill of Lading doth not proue it soe to bee, but howeuer, you did ouer rate youre goods Iron was sold for 16^l per Tunn, & likewise youre beauer was Ouer rated, I suppose if God should bring you heere againe, you & I should agree about it I hope; the Beauer you sent the last yeare I sold for the best aduantage for you; but not for my selfe, for I haue not receiued all the money for it yet, And that beauer you sent this yeare by m^r Lock, I did proffer it to seuerall men & could get but 8^s per^l for it, & haue giuen till about August next to pay for it, there is loss in it, & more in that that came in Parker & Pearse ships but I could not helpe it. I beleiue if you had benn heere you^r selfe, you would not haue made soe much of it as I did, I wrote to you seuerall times, that I sent you a hogshead of hatts, about October, the same yeare you were at London, the which ship had a long passage, it was about February following before Shee Ariued at new England, there was in the Hogshead, 27^l 11^s worth of hatts, but you would neuer since write to mee of the receiuing of them, & I wonder at it, if you had not receiued them I might haue receiued them of the master, you write to mee that the goods in Garrets ship was on my account, but I pray Consider that you were to send to mee on youre Owne aduenture, the spring following after you were heere, the sume of Two hundred & seauenty pounds & I haue receiued noe more since on youre aduenture but: 198^l beside what you haue ordered mee to pay to others & that was in Bills of Exchange

I haue heere sent you an Account, what I haue receiued & what I haue pajd since this time Twelue month

M^r Coales bill I haue sent you by the 3 Freinds & goods with an Inuoyce, the bill of 80^l oft charged on Cap^t Hunt hee say that hee haue nothing in his hand of his that Charges it on him, but when hee haue hee will pay it. you write to me that you would send on my Account 200^l pray send it in the Prudent Mary, if it please God to bring it to you, & what more you send on my Account Send it by m^r Pearse, or whome you will if any other come, musquash skins will not yeald aboue 7^d mincks & Fox will yeald 2^s: there is less loss in the best beauer but for that which is meane will sell but for little & Rackoones must bee good to yeald 12^d Easterne moose was sould for 30^d & some for 8 groates a pound, I sould youre fine Southerne skins for 4^l: soe hauing noe more to trouble you with, I rest hoping to see you heere the next spring if God permitt:

Youre Freind

John Williams:

And when I receiue the other bill of 80^l I shall pay the rest that you appoint mee to pay

S.F. 1276.54

The 27:00:00. By Scarlet & the 157:13:4 vnsold, are after they are marketted to be made Good to—and by either partje notwithstanding the Summs heere accounted for w^th what other Goods shall be shipt this yeare and the Beavar vnsold and othe^r Peltry, and in Case of theise Goods lost at Sea there is then thirty five pounds on the adventure of Theoder Atkinson

This is a true Copie of the Acco^t made vp at Leivt william Hudsons the 17^th day of Sep^t 1662 as taken from both parties onely Some Summes are misplaced in this Columne right aboue Examined by vs, Joseph Hills Richard Cooke This is a true Copie Compard w^th that presented to & left w^th y^e Comitte of the Gen^l Court octob^r last 1670 & is on file as Attests Edw: Rawson Seer . . .

S.F. 1276.59

March: 22^th 1659

Black Poloney Woole I could get none as yet, but I hope to get some before the Prudent Mary goe, m^r Pearse Boat-swaine hath Ouer rated the woole, you must pay 50^s per Tunn:

youre Freind

John Williams

The Originall of this whereof this is the Copie was Owned by Cap^t: John Williams before the Committe this 27^th October 1670 As Attests John Pynchon

vera Copia Attest^d per Edw. Rawson Secret

S.F. 1276.61

There is in the Hogshead 2 doz: of bowstrings for John Clough, I pray deliuer them to him:

There is 2 doz: of bow-strings for my Brother Williams & 2 Peckers & a knife for him. I pray deliuer them to him & there is Two pound of Flocks among youre flockes more then youre 20^l I pray deliuer them also to my Brother they are in the three Freinds:

Goodman Truck hath benn with mee for 4^l seuerall times but I had noe Order to pay it, but out of the goods that was in Garret, soe hauing noe more to trouble you I rest wishing youre prosperity.

Youre Freind

John Williams:

May 3^d 1659 . . . vera copia . . .]

[Several depositions on this case are on file, together with the appeal, which apparently was not allowed.

S. F. 1140.4

Know all men by these p^rsents That on the tenth Day of y^e month of May in the year of our Lord God One thousand Six hundred Seaventy one, at the Instance & request of Thomas Edwards marrine^r I John Pecke Notary publick Dwelling in P^o Royall in the Island of Jamaica addmitted & Sworne by his Excelency S^r Thomas Mudyford cheife Governor of the Said Island, went to the house of Samuel Bach m^rchant Dwelling on P^o Ryall & Speaking there to himselfe told him y^t Thomas Edwards did protest against him for not receiving of Eleven Tunn of goods Consigned To him by M^r Samson Sheafe of Boston merchant, and asked him if he would receive the afores^d Goods, and the Said Samuel Bach answered me that hee would not receive them, and did thinck he not could be Compelled thereunto, And y^t he did really think the fraight of the Said Goods would Come to more money then the Cargo was worth. Therefore I the Said Notary at that Instance of the aforesaid M^r Thomas Edwards have protested as I doe protest by these p^rsents against the said Samuel Bach Merchant for not receiving of the Said Goods, & for all Costs Damages & Intrests already Suffered & yet to bee suffered for or by reason of non acceptance of the Same, And further I John Peake Notary at the Instance and request of the Said Thomas Edwards doe protest against y^e Said Samson Sheafe of Boston merchant for Sending over Such goods as would not bee accepted being to the Damage of the Said Edwards, all w^ch Damages Sustained by each party herein Conseyned to be recovered in time & place Convenient as of right shall appertaine This Done & protested in y^e Said Towne of P^o Royall the day & year afores^d:

Quod abestator rogatus et requisitus

Jo: Pecke Not^r Pub. 1671

. . . True Coppie . . . Attests Freegrace Bendall Cler.

S. F. 1140.1

Jameica 12^th May 1671

This day Thomas Edwards appeared before me w^th an information, that he had Consigned to M^r Samuel Bach on y^e Ketch Society, 4 Tunns of Fish 4: Tunns of Tarr, & 3 tonns of beare, and y^t as master of y^e Said Ketch gave out bills of Lading for y^e Same, & y^t he tendred y^e Said goods to y^e s^d M^r Bach And y^e s^d Bach absolutly refused to receive y^e same: and thereon he Demanded my advice w^t to doe w^th y^e s^d goods, on w^ch matter I have thought it reasonable & doe accordingly advice y^e s^d Edwards to protest against y^e s^d M^r Bach for non Receiving the s^d goods and after, (in regard y^e s^d goods are perishing) to put the Said goods in good hands, to bee Sold for the acc^t of y^e interseed, Given under my hand y^e Day above

Tho: Mudy ford

S. F. 1140.5

The Deposition of Roger Prosser Aged 40 yeares or there about Testifieth that Thomas Edwards master of y^e ketch Society Committed to my Custody & left in my hands at Jamaca for the use of m^r Sheafe Certaine goods w^ch I understood were Consign’d to mr Sam^ll Bach & by him Refused to wit, thirty two Bar^ll of tar Sixeteen hh of hake-fish Containeing four hundred of neat fish in Euery hogshh: & twenty foure barrells of Beere all w^ch goods were left with me to dispose of for y^e use of sd. Sheafe or any other person Concerned w^ch goods were by me Reed: some time in May last deposed in Court the 5^th of march 1671/2 Per Edw Rawson Secrety

S. F. 1140.6

Jamaica

Know all men by these p^rsents that I Joel White of Port Royall Royall & Iseland abouesaid Cooper doe acknowledge to haue receiued of Roger Prosser of Boston in New England Marchant vpon y^e accompt & for y^e vse of m^r Sheafe of Boston aforesaid Marchant, thirty barrells of Tarr, foureteene hogsheads of hacky fish containing foure hundred of neate fish in euery hogshead w^th twelue beere barrells, all w^ch goodes as abouesaid I doe promise & ingage to render a juste accompt thereof vnto y^e said m^r Sheafe or his order when I am therevnto lawfully required: As witnesse my hand & Seale y^e sixth day of July Annoque Domi: 1671.

Arthur Lloyd

Samuell Mather

S. F. 1140.3

To the Hon^rable Court of Assistance now Assembled in Boston Thomas Edwards Mast^r of the Pink Society Most humbly p^rsenteth

That whereas there hath beene in former Courts a sute of Law Commenced betweene the said Thomas Edwards & Sampson Sheafe Merchant Concerning the fraight of Certaine goods Shiped on the s^d Vessall by the s^d Sheaf from N. England to Jamaca where being Ariued the said goods were tendered unto the person to whome it was Consigned; but Hee Refuseing to Receiue them; the said goods were by aduice of The Hon^rable Gouern^r S^r Tho: Mudiford Left in the hands of another for the acco^tt of said Sampson Sheafe That Shiped them; The sd Sheaf denys paym^t of the said fraight the party with whom The said goods were Left saith that he hath Nothing to doe w^th The said Edwards but Is to be accomptable to the sd Sheafe and Absolutly denys to pay the said fraight so That (the Caus being thus stated) Except yo^r Hon^rs vouchsafe Reliefe to the sd Edwards Either by ord^ring the sd Sheafe to pay the sd fraight according to bills of Loading Or at Least that the said Sheafe giue ord^r so the person that hath Re[c]eiued the sd Goods in Jamaco to pay the fraight Afores^d: the sd Edwards is Like to be Dismist of His due and Loose His fraight Contrary to that Knowne truth that the Labo^rer is worthy of His hier all w^ch he humbly Refers to yo^r Hon^r as the fathers of the Country to Judge &c. According to yo^r prudence to grant Reliefe to him who subcribes him selfe;

Yo^r Hon^rs Most humble Seruant & Suppliant Tho: Edwards]

[See note to Cooke v. Broughton below, p. 65.]

[See above, p. 45 and below, p. 101.]

[This is a small incident in a protracted series of suits about the estate of Thomas Broughton, a merchant who removed from Virginia to Boston in 1650 and engaged in real estate operations which got him into serious difficulties. An outline of these suits is given in the printed Records of the Court of Assistants, iii. 133–34. By a deed of trust dated April 20, 1659 (S.F. 314.2), Thomas Broughton of Boston merchant and Mary his wife conveyed (1) his moiety of a parcel of land about Windmill Hill in Boston, also called Centre Haven, including several dwelling houses, a brewhouse, bakehouse, malt mill, warehouse, and wharf, and (2) Noddles Island (East Boston, which he had purchased for £1378 of John Burch of Barbados in 1656 through the intermediary of Richard Leader the ironmaster, but only half the purchase money had been paid), being one thousand acres or more of meadow and upland with a house, barns, and garden, to Henry Shrimpton and Lieut. Richard Cooke of Boston, merchants, and Walter Price of Salem, merchant, his creditors to the amount of 4000l, to the end that they might satisfy themselves of his debts, and also satisfy his other creditors, of whom Anthony Stoddard and John Checkley or Chickly of Boston are especially named. Broughton’s own schedule of his debts is in S.F. 314.1:

The Shedule of the names of those to whome I Thomas Broughton am indebted:

A List of the names & sumes I Thomas Broughton haue tooke order and sent effects to pay but not yet heering what is discharged of them doe enter into the List of debts for their security if they appeare still due:

Mr. Simon Broadstreet forty thousand foote of boards a yeare for three yeares—successiuely: Cap^t Tho: Clark: 0600:00:00

Entered and Reecorded the 20^th Aprill: 1659 per Edw. Rawson Record^r . . . vera Copia: Attest Edw Rawson Record^r

On the same date William Osborne, attorney of Thomas and Mary Broughton, “gaue full and peacable possession & liuery of seizen”642 of the Centre Haven and Noddles Island estates (S.F. 314.2, 3). On April 20, 1659, Thomas Broughton conveyed to Hezekiah Usher, Henry Shrimpton, Richard Cooke and Walter Price, “his moiety of two Saw Mills at Newiehewanik River on Quampegon (Salmon) Falls together with his three fourth parts of the ship Hope” of 170 tons burthen, “then riding in Piscataqua River”; also toward satisfying the said debts; this deed is cited in a deed of trust dated June 23, 1659 (S.F. 320) from the Broughtons to Cooke and Price, after Usher and Shrimpton had disassociated themselves from the transaction.

At a general meeting of Broughton’s creditors in Boston on December 24, 1662, they agreed that these estates should be managed for the advantage of all during the space of one year, Captain Thomas Clarke and Ensign John Hull, the goldsmith, to assist in the managing thereof (S. F. 596.4). One of the principal creditors to Thomas Broughton was John Checkley,643 who refused to come in with the other creditors, obtained a judgment and execution “uppon part of the said Broughtons estate as pewter and bras a clock and other things” (S. F. 596.5), and then summoned Cooke and Price to answer according to a deed and schedule from Broughton to the value of 900l In Cooke’s plea (S. F. 596.5), printed below, he alleges that a part of what Broughton conveyed, notably the ship Hope, was not his to convey, and that the creditors had to purchase it from the rightful owner to gain possession; if Checkley would contribute toward these expenses, he could have his proportion of the dividend. The County Court, on January 27, 1662/63, gave a “speciall verdict” for Checkley against the Centre Haven estate for 470l 17s 6d (the text is in S. F. 962.10; see also S. F. 596.6 and the Court orders of Oct. 28, 1662, and January 26, 1663, printed below). Cooke et al. appealed, February 25, and their reasons (S. F. 596.7), including an interesting appeal to the Magna Carta provisions of the Body of Liberties, are printed below, as are Checkley’s highly truculent “answers to their reasons of appeale (S. F. 596.6).

Checkley’s “Objections against the validity of Mr. Broughtons deed of Center Haven and Nodles Island to Mr. Shrimpton, Price and Cooke” (S. F. 596.8) are also printed below, as are the “Answer to the objections.”

In S. F. 596.10 is a deposition, dated January 3, 1662, of Anthony Stoddard, aged 56 years, witness to the original deed, supporting some of Checkley’s contentions; bills of costs are in S. F. 596. 11, 12. It further appears from the notes in Records of the Court of Assistants, iii. 133–34, that Checkley managed to get Broughton imprisoned from 1664 to 1668, when he was released upon taking oath that he had not disposed of or concealed any part of his estate to the defrauding of Checkley. It seems that the original deeds to Cooke, Price, et al. were voided by the Court. This left every man to himself; and the present case represents an effort of Cooke to recover from that part of the Broughton estate of which Price was in possession. It began by suing out a warrant for Captain Price at the November session, 1671 (above, pp. 21, 27). The pleas by Cooke follow (S. F. 596.5):

Richard Cooke in the behalfe of him self and walter price humbly desireth that the pleas hee hath made in the case betwene John Chickley and them selues may bee Leaft vppon record in wrighting where by to prevent futer truble for words may bee forgotten the pleas weare as followeth

first that thay were summoned to answere the Complaint of John Chickley according to a deede and sedwell to the vallue of Nine hundred pounds as appeareth by the summans in Court but noe such deede was produced by the plaintif

2ly it was pleaded by the defendant that hee had endeavored to proue and boath now and at former Courts did alleage that John Chickley did accept of his debt with the rest of m^r Broughtons Credditors; but this the said Chickley denied and would not Com in with them, and this was owned in Court by by his Atturney Captaine hutchenson as allso m^r stodder

3^ly that John Chickley Arested the Estate of m^r Thomas Broughton and obtained a Judgment and Execution vppon part of the said broughtons estate as pewter and bras a Clock and other things which is for the same debt hee now sueth for as appeareth by the records in Court which is alltogether Illegall

4^ly that the deede presented by the plaintife in the Court doth not oblige them vnto John Chickley so as to bee sued by him the defendants there in hath not made any Contract with the plaintif nor doe stand obliged to him but with m^r Broughton from home thay receaued the deede

5^ly the deede presented sayth that thay shall together with paying them selues pay such and such but thay haue not payd them selues one penney nor to the vaillue of it vnto this day allthough thay haue payd m^r Chickley a Considderable sum if hee doth accept it vppon the Conditions thay paydit, and therfore thay haue not violated thayer trust with m^r Broughton vnto whom only thay are accoumptable by that deede

6^ly the said Broughton hath not performed with the defendants according to the said deede nor doe thay posses and Injoy what is there in Convayed as in portion for Nodles Island &c nor hath hee given vnto us any deeds or Convayences to manyfest any leagall right hee hath to it from the former and true owners of it as by this deede hee is obliged to: but wee find the Contrary by experianc allso wee had vppon the same accoumpt sould vs three fourths of the shipp hope but wee Could not Injoy any part of it but were forced to purchas the same and pay for it our selues vnto the right owner and therfore wee haue noe reson to pay for that wee Cannot Injoy besids there are other things of the same Nature in which m^r broughton hath not performed if the deed presented by m^r Chickly giues him a legall power to receaue by the same rule it obligeth him to make good what m^r Broughton hath therein sould vs and vppon that accoumpt wee will Comply with him

Richard Cooke

[Endorsed:] M^r Cooks pleas, order to be kept on file & y^e plaintiff to haue it to Ans^r & returne it & Ans^r

S. F. 596.2

Att a County Court held at Boston 28^th of October 1662

The Court considering of the Generall Courts order on M^r John Chickleys petition Judge Meete to Respite the Determinations thereof till the County Court in January Next when the Jury on the Euidences produced by all partyes Concerned M^r Checkley giueing M^r Cooke M^r Prise M^r Bratle M^r Bartholmew & M^r Boyes Due summons then to Attend it, it shall then be assisted by Court & Jury. This is A true Coppy of the Courts order as Attests

Edw: Rawson Recorder

[Endorsed:] Gen: Court Ord^r 20^th of 8^br 62

S. F. 596.1

To the Marshall of the County off Suffolk o^r his Deputy o^r Constable of Boston

You are hereby required in his Mas^ts name to Attach the goods Lands o^r other Estate in y^e hands of Richard Cooke & Walter Price made ov^r to them by Thomas Broughton for y^e payment of severall Creditors according to deed & Shedule thereunto Annexed, & fo^r want thereof the bodyes of Rich Cooke & Walter Price o^r Either of them, & take bond to y^e value of Nine hundred pounds With sufficient Surety o^r Suretyes fo^r their o^r Either of their personall appearances at the next County Court to be held at Boston then & there to Answer y^e Complaint of Jn^o Chickley in an action of y^e case fo^r that y^e said Cooke & Price have not paid vnto y^e said Chickley y^e summ of fouer hundered & seventy pounds Seventeene shillings & six pence, due to him from them by vertue of y^e aforesaid deed & Shedule Therevnto Annexed, w^th due dammages & so make A true Return hereof unde^r yo^r hand dated y^e sixth day of y^e Eleventh mounth called January 1663:

By the Court: Jonath. Negus

. . . A true Copie . . . Edw. Rawson. . .

[on reverse:]

I have Attached the goods debts o^r Estates of Richard Cooke & Walter Price the two dwelling houses & ground also y^e Bake house brewhouse & one Copper and the greatest parte of the Wharfe to the North ward of y^e Bake house Commonly Called by y^e name of Centr^e Haven this 8 Jannuary 1663.

per me Rich Wayte Marshall

Vera Copia Edw. Rauson Record^r

Attachment to January Court 1663

S. F. 596.3

1663: Att A County Court held at Boston y^e 26^th Jannuary: 1663:

John Chickley of Boston Merchant plantiffe ag^t Richard Cooke of Boston & Walte^r Price of Salem: Merchants in an Action of y^e Case fo^r that the said Cooke & price have not paid vnto y^e sd Checkley y^e summ of fouer hundered & seventy pounds seventeene shillings & six pence due to him from them by virtue of a deed & schedule to it Anexed from Thomas Broughton to them w^th due damages according to Attachment Dat: y^e 6^th of Jannuary 1663: The Action was Called y^e plantiff & on of y^e defendts: ie Rich: Cooke appeared y^e Attachm^t & othe^r Evidences in y^e Case produced were Read Committed to y^e Jury & are on file w^th y^e Records of this Court the Jury also hearing y^e pleas made by plantiff & defend^t Brought in their virdict they found fo^r the plantiffe five hundered sixty fouer pounds nineteene shillings & Eleven pence damage & Costs of Court forty two shillings & nine pence The defend^t Appealed & said Rich: Cooke & Jn^o Wiswall Acknowledged themselves & heires . . . bound in one thousand pounds to . . . prossecute s^d Appeale to Effect:

S. F. 596.7

Richard Cooke & waiter Price theire Reasons of Appeale from y^e Judgm^t of y^e County Court held at Boston y^e 27^th of Janu^ry 1662 in y^e Case depending betweene Jn^o Checkly & themselves.

First because y^e Deed is made absolutely to us & o^r heires for ever & not upon any Condition of forfeiture, or making of it invallid, neither are wee thereby made Agents or Atturneys unto Mr. Thomas Broughton, but legall Grantees, as appeares in y^e s^d Deede, possession being giuen, & y^e Deed acknowledged & Recorded according to y^e Law here established.

The Jury were mistaken in y^e ground, upon which they gaue in theire Speciall Verdict: for (say they) wee find an Article or condition requireing y^e Grantees to pay unto M^r Jn^o Checkly & y^e other Credito^rs foure thousand pounds, which (say they) we doe not as yett find performed. Now herein they were mistaken: for that Condition is legally performed by us, as appeares by y^e Credito^rs acceptance there of to y^o full vallue aboues^d, to which we referre. But 2^ly in case wee had not performed one tittle of it this cannot make y^e Deede invallid: for soe farre as wee are there obliged it layeth us open to y^e Law to be sued by him or them to whome wee are therein obliged, & M^r Checkly may take his course at Law if he judgeth us to be therein obliged unto him; but this is not o^r Case now, neither are wee sued upon any such Acct.

Wee doe humbly conceaue that y^e hono^rd Bench haue not only changed y^e tearmes of y^e quæstion, but also y^e verry quæstion itselfe, y^t was putt to them by y^e Jury: for y^e Jury’s quæstion is, whither y^e non performance of y^e Article there specifyed doe according to Law make voyd y^e Deed? Now y^e Bench state y^e quæstion thus, whither y^e Deed to Cooke, Price & Srimpton be absolute & good in Law. And they Answere, y^t y^e s^d Deede is noe legall Barre ag^t s^d Checkly, & y^t they do confirme y^e judgmt. granted to y^e s^d Checkly at y^e former Court, allowing him also y^e costs of this Instant Court. Soe y^t (as wee conceaue) they haue not giuen a resolution of y^e quæstion as its stated by y^e Jury, or as stated by themselues; & yet they give y^e then Pl^tffe costs of Court, & seeme to giue away o^r estates alsoe. Now wee humbly desire y^e hono^rd Court & Jury to take notice, y^t wee did not, neither doe wee oppose y^e Court’s judgm^t formerly granted to M^r Checkly: for y^t judgm^t was ag^t M^r Broughton & not ag^t us: wee only oppose M^r Checkly’s extending his Execucion upon y^e Estate in quæstion, which is not M^r Broughtons’, but o^rs.

The former County Court hath a first & second time confirmed y^e same Deede to be vallid & good in Law, upon which we proceeded & acted, disbursing many hundred pounds in paying offe workemen & repayreing part of y^e s^d Estate, & haue made many Contracts relating to y^e same, & ran into severall Ingagem^ts which would be too tedious here to relate, & haue soe gone on for allmost four yeares. Now if y^t Deed, which y^e Court accepted of as good & vallid in Law soe many yeares since, upon which y^r hath beene such transactions & Ingagem^ts shall now by y^e same Court be condemned as invallid; then wee appeale unto all men

to judge what o^r condition here is, & what sad consequences will follow; we shall be at an uncertainty what is vallid & what is invallid, what is Law & what not Law: this will bee y^e way to kindle such a fire, as will not soone be quenched, & sett friends at enmity one with another; & this p^rtence of healing one will wound many. Such a p^rsident we judge, was never seene here before, & what y^e issue will be y^e Lord only knowes, we feare y^e hazzard of y^e mine of some, y^e multiplying of suits at Law by others, & when it will end who knowes. By all which we hope this hono^rd Court & Jury will seriously considder & determine y^t righteousness & equity may take place, which is all we desire.

M^r Jn^o Checkly accepted of his Debt as y^e rest of y^e Cred^rs did, as appeares by y^e testimony of M^r Rawson & M^r Srimpton, which is also further confirmed by his receiueing of about foure score pounds of us in order thereunto, as appeares per y^e testimony of M^r Timothy Prout.

Wee craue y^e benefitt of y^e Law page y^e first, y^t no mans Goods or estate shall be taken away from him, nor any wayes endammaged under collo^r of Law or countenance of Authority; unless it be by vertue or equity of some express Law of y^e Country warranting y^e same, established by a Gen^ll Court & sufficiently published. Now noe such Law or equity of it hath yett beene produced; & therfore o^r Estate & others ought not to be so taken from us.

It will evidently appeare y^t there is not y^e least shaddow or coulo^r of fraud in what is done, because y^e estate made over unto us is not worth what is ordered unto others, though wee to whome its sould should not haue one penny for o^r selues, by which it will appeare who will be defrauded if others doe as M^r Stodder hath done, & yet he complaynes most of fraude.

Lastly we know not what place M^r Stodders testimony tooke with y^e hono^rd Court & Jury, as also his reasons & many expressions charging us with plotting & fraude: wee say these expressions & charges of his are fallacious & without proofe, & also y^t Oath of his (to giue it y^e best style wee can) was rash, Inconsiderate, & how farr short of truth he knowes or may know in time & place convenient, being told in Court y^t y^e publique Records would evidence ag^t y^t he would sweare: for he hath sworne y^t M^r Srimpton renounced y^t Sale, thereby tending to proue it fraudulent; now y^e s^d Srimpton in open Court owned y^e Sale, & as appeares per his testimony in Court sould y^e same thing back againe, which fully proues he owned it.

The p^rmisses duely considered wee hope this hono^rd Court & Jury will see just cause to defend o^r right by reversing y^t Judgm^t so farr as it concernes us relating to y^e Estate in quæstion, y^t we may haue noe cause of future complaint either to God or man.

besides the deeds were made by the aduice and Councell of one whose Judgment in the Law was accoumpted a bond most in this Cuntry to bee sound and good and this deede was then so accoumpted by him self (25) (12) 62

Richard Cooke for him selfe and the rest Concerned

[Recd] 25^th feb. 1662 per Edw. Rawson Record^r

S. F. 596.6

John Chikley his Answers to Walter Price & Richard Cooks reasons of appeale from the Judgement of the Countie Court held at Boston. 26. Jan^r 1663.

To the first

It rather consernes y^e Court to answer then Jon Chikley: yet for Answer Richard Cooke may consider he could finde noe error in y^e Attaichment, & he had legal notis of it, w^ch is all y^e law require, and both caise & persons y^e Court wel vnderstoode & gaue judgement acordingly, but there judgement pleased not Richard Cooke & therefore he condemnes it thinking him selfe more able to iudge then y^e Court was.

To the 2^d

the deede p^rsented if Walter Price & Rich: Cooke had neuer accepted of it vpon y^e tearmes it could not haue obliged them to pay Jon Chikley & then y^e estaite had remaind m^r Broutons, & then y^e extention of Jon Chikleys execution Legal, but Wal: Price & Ri: Cooke accepting of the conuayance, & receueing possetion upon y^e tearms there in exspressed & puting it vpon record: It is then for y^e benefit of al conserned in it, & y^e Richard Cooke himselfe ownes in y^e last of his reasons of appeale, & if for there benefit then it must be acording to y^e deede, w^ch is y^e paym^t of there whole debts, not proportion, & if any of them be content w^th a proportion yet Jo: [Chikley neuer] was, therefore he haueing bene soe many yeares w^thheld from his right by Wal: Price & Ri: Cooke he hopes now at last he hath got y^e clue by y^e right ende, & therefore sues y^e estaite being in y^e hands of Wal: Price & Ri: Cooke, who hath had y^t estaite in there hands diuers yeares. mr Broughton by y^t deede & seddal chearges vpon Wal: Price & Ri: Cooke to pay Jon Chikley 450^l they accept as before, therefore not onely y^e drawer Acountable to Jon Chikley but y^e accepters alsoe:

To the 3^d

It is wel Ri: Cooke wil make a supposetion he is obliged, yet he sath it is but in hope & confidence then he thinks it should seeme hope & confidence of his performance is not obligeing, & though he fail them of there hopes & confidence it matters not much, y^e most y^t can be, wil but make him falce to his trust (w^ch to him is a slight thinge) for y^t is a worde alsoe vsed, in Suer trust & confidence, w^ch is as stronge an obligation (I conceue) as can be, for faile of y^t & noe thing is maide ouer; for it is fiue times in y^e deede exspressed it is maide ouer for thos ends & noe other but he sath it is to pay others together w^th them selves, for Answer, there acceptance & receueing possetion, of Center hauen &c payes them selves, therefore m^r Brouton haueing not onely paid them but deliuered them a further estaite to pay to Jon Chikley &c & they vndertaking paimt, & not doeing it, is y^e cause of this complaint. & y^e complaint is not because they haue alienated but because they doe not alienate some part of y^e estaite to pay Jon Chikley w^ch m^r Brouton alienated to them for y^t ende, but they desire to keepe Jon Chikles estaite whether he wil or noe, & where as Ri: Cooke saith they haue p^d Jon Chikley a considerable some w^ch they indeuer to proue by m^r Prouts oath, but compaire m^r Prouts oath & his recept on y^e back of y^e bil of laiding w^ch is in Court, & it wil appeare m^r Proute did receiue of m^r Broughton for y^e vse of John Chikley y^t some he speaks of. therefore Rich: Cooke is pd it. & it becomes an honest man when he is once p^d not to rcaue it againe; if m^r Brouton demand any thinge of Jon Chikley he is ready vpon other aco^ts betwixt them to owne what is due.

To the 4^th

If m^r Broughton neither haue nor can make good what he hath sould to Wa: Price & R Cooke then Center hauen is free, & it is m^r Broutons estaite stil, & then Jon Chikleys extention of his execution is good vpon it. but if they will say onely some part fals short it is Answered, Walter Price & R Cooke should haue lookt to y^e before they had ingaiged such paimts for it. it is ouer laite now: But y^e Cr^trs they ingaiged to pay is of too sorts in y^e Seeal644 some certaine some vncertaine. thos they terme certaine comes to aboue 4000^l those vncertaine aboue 5000^l though I thinke indeede they were al vncertaine, & merely at randum. now John Chikleys comes among y^e certaine ones & y^e first of them, & to be suer he now hath made it more certaine then any haueing proued it in soe many Courts, w^ch I question whether R Cooke be able to doe his; Jon Chikley alsoe is not onely exspressed in y^e Cedal but in y^e deede alsoe, w^ch noe other is but one more. & therefore beinge soe certaine he ought to be pd in y^e first place; & whereas R Cooke in perteculer sath they can not enjoy Nodles Island: I conceue he hath confest enufe to proue they doe enjoy it; according to y^e deed for y^e Sugors sued for by R Cooke w^ch was lent by m^r Brouton was disbursed for part paymt for Nodles Island, & m^r Brouton was in possetion of it, onely had not pd al y^t was due for it; & by reason there of had not a deede for it, onely a promis by letters vpon paiment to haue it. & this was knowne to R Cooke from the begining to be y^e title to it. yet he accepted of it. & this gaue R Cooke the aduantage to sue for y^e sugors disbursed vpon it & recouered y^e debt & damages, extended y^e execution on Nodles Island, since hath desposed of it by saile, & I conceue receaued y^e ful pay for it, how euer considerable somes R Cooke knowes wil be proued p^d to him vpon it, 200^l of y^e mony R Cooke ordered to be p^d m^rs Sheafe for his perteculer debt he owte her—who gaue him a ful discharge for 200^l receued by her of R Cooke & I thinke 200^l is more then [   ] if there were noe more pd him then y^t, but he knowes there is more p^d him & he knowes we are not ignorant of it nether: And for y^t clause consemeing the grantor not makeing good to y^e grantee. We know R Cooke thinks reason is onely w^th him, but we (whether reasonable or noe) conceue it a maxim y^t if R Cooke bey a parsol of land and ingaige to pay 8000^l for it to such & such men. they will haue there mony, whether his titel be good or noe. he should haue lookt better to it, & though R Cooke say this is y^e state of y^e caise, yet let me be bould to say he misses it: for though if it were soe yet still he is obliged but y^e caise is better for y^e defendant, for Rich: Cooke would keepe Center hauen, would keepe y^e estaite to y^e eastward, would keepe y^e estate recouered by iudgmt vpon Nodles Island, w^th w^ch he hath p^d part of his owne debts, would keepe al y^e estaite at Barbados. & keeps his sonne there at this day to receue it, & yet he wants straw to make briks, & for y^e Egiptian taske masters he mentions I know not howe he can meane except it be y^e Court. But he hath soe much Straw & makes soe many briks I feare he aims at Building Babel for I see noe thinge but confution, but I hope y^e honrd Court & Jury wil finde a way to dissperse part of y^e materials to y^e true owners & confirme y^e Judgement of y^e Countie Court: the estaite R Cooke owned when he tooke it, he lookt at worth much more then y^e Sedal requird of them for it, and when y^e first meeting was (w^ch he would make a wronge vse of) there was not any mention of proportion, nor of some yeares after, onely desired to improue y^e estaite Intire, not questioning the paimt of y^e whole debts w^th interest, but Jon Chikley declaired agt there keepeing any part of his estaite in there hands, or managing it for him, w^ch they plead, w^ch is far from his reiecting.

yet they haue agt his wil soe many yeares detained w^ch he hopes this Court & Jury wil consider of.

To the 5^th

John Chikley before sued this estaite in this action & recouered then y^t some of 470.17.6, and this estaite then was & now alsoe is iudged y^e estaite y^t was to pay it, onely y^e court of Asistants iudged it was not m^r Broutons estaite but Legally alienated to Wal: Price & R Cooke, yet if alienated it must be for y^e ends exsprest. And therefore Jon Chikley forced to bringe a new Action, & y^e deede p^rsented obliges Wal: Price & R Cooke to pay Jon Chikley 450^l butt y^t vpon tryal proued 470.17.6, but if y^t were a wronge I suppose it may wel be pardoned, for if Wal: Price & R Cooke should pay interest for 450^l from y^t time they had Jon Chikleys estaite to this day w^th y^e damages legally due I sopose it would amount to a far greater some then as yet is recouered, w^ch I hope this Court wil see iust cause to giue, & whereas it is againe aledged m^r Prouts testemony I haue answered fully to it before, Jon Chikley receaued noe thing of them, but what he pd for to m^r Proute by m^r Brouton, & hath m^r Prouts recept for it on y^e back of y^e bil of laiding, yet R Cooke hath y^e Impudens to blame y^e Jury for Acting aboue there vnderstanding & soe commit an Error, soe both Bensh & Jury are Irronius Irrashonal & men wants vnderstanding compared w^th R Cooke if [torn] be Judge.

To y^e 6^th

Though both bensh & Jury be Irrational in R Cooks openion, yet we shal answer Rich Cooks reason. Jon Chikley neuer renounst his debt, nether euer did Ed: Hutchinson or Anthony Stodderd. if Rich Cooke or any other for him would haue pd him, w^ch in honesty he ought to haue donne, nor neuer reiected his claime to this estaite but alwaise lookt at this estaite to pay him. but this he did he disowned to approue of R Cooke or any other to be his pursebearer he was able to be his owne, & there was not for some yeares any talke of proportion neither doth y^e deede speake of any, but Jon Chikley denyed to ioyne w^th any Cr^trs to giue way R Cooke should haue y^e managemt of any part of his estaite, if Jon Chikley had no estaite in R Cooks hands nor if he ewte him noe thinge why did he speake to him abought for bereing of it. But after some yeares R Cooke came to speake of proportion w^ch Jon Chikley then alsoe reiected any thoughts of, and then indeede Jon Chikley did begin to feare a cheate, but considering y^e tearms of y^e deede. did thinke y^e deede made ouer was onely matter of trust, y^t phrase being vsed in it, & Wal: Price & R Cooke not performeing there trust he did conceiue y^e deede void, & y^e estaite reuerted againe to m^r Brouton & therefore sued y^t estaite as his. y^e Court Judged as he did and gaue him Judgm^t & y^e execution was serued on y^e estaite at Center Hauen. R Cooke makeing interruption the Court againe iudged y^e extention legal. R Cooke appeals. y^e Court of Asistants iudges y^e deede to be valid w^ch m^r Brouton maide to Wal: Price & R Cooke, yet Jon Chikley conceueing if valid it is for y^e ends exsprest therefore brings his action agt y^e same estaite in y^e hands of Walter Price & R Cooke, recouers agt it vpon w^ch R Cooke againe appeals. And instead of Reason Rails vpon & reuiles y^e Court because they wil iudge this deede valid, who could doe noe other y^e Court of Asistants haueing donne it before. & now he sath they alsoe iudge it more valid then it is in it selfe, w^ch he cals a strange contradiction and then would couer him selfe w^th makeing an inferens agt y^e defendant, y^t he would get an estaite vpon any Aco^t, but in y^t he striks more depely at the Court then him, for he brings his caise to tryal by law, & except he iudge both Bensh & Jury Corrupt (w^ch in them he cals his reasons I conceue he hath said noe lesse) he cannot haue his estaite but vpon a good & iust Aco^t. That he arrested y^e estaite of m^r Broughton & that w^ch he then iudged onely his estate is confest already y^t y^e execution was extended is alsoe confest & yet makes not for R Cooke at al, for it was extended upon this estaite w^ch was & is in y^e possetion of m^r Brouton & is now sued. And though a smal matter of puter & brasse &c were in y^e howse & soe taken w^th it, yet R Cooks interruption p^ruented y^e proseding w^ch as before ocations this Action. And for askeing aduice Jon Chikley can not be blamed. And for y^e many vnheard of inuectiues agt the Judges & Jury to be Illegal, vniust, vnheard of practis, by noe law nor case Justifiable, we hope y^e Court themselues wil giue answer, yet we shal p^rsent this to consideration If y^e Judgemt of y^e Countie Court [be now confirmed] it is but Judgemt agt y^e same estaite, & soe but one iudgemt, onely before conceaued to be m^r Broutons & y^e deede to Wal. Price & R Cooke inualid, but now we are directed by y^e Court of Asistants how to looke at it, who haue iudged it valid, yet this estaite is that w^ch was and is truly to pay this debt & Wa: Price & R Cooke are the persons to pay as y^e Countie Court Judges, being sould for y^t ende. & we haue noe doubt but y^t y^e Court of Assistants wil confirme y^e same, not w^th standing y^e plantiues haue soe much villified both y^e Caise & Judges. And though the plantiues affirme Jon Chikley is legally paid, yet y^t is but to mantaine his prinsiple y^t he is wiser then his Judges. But he knowes it is nether legally nor truly paid. Except he allow y^t y^e execution extended on Center hauen is legally extended: & soe cry peccaui, & if it be then how he wil cleare him selfe of a vexatius suite & paying treble damages I know not, but to be suer y^t law by him is abusiuely Cited.

To the 7^th

The Plantiues haue not performed there [   ] selues one penny, though whether y^t be truth or noe we leaue to what said before [   ] haue they pd others, but if they haue they haue not pd Jon Chikley who by deed [   ] must be one paid, who euer else is left vnpaid, & first pd for it is to pay Jon Chikley & others, but I beleue they haue not pd y^e 4000^l they boast of to haue pd nether according to law nor a good contience,—& for what appears vnder there hands if y^t be a discharge they are y^e better able to pay Jon Chikley, for the plantiues say they haue not alienated any estaite from themselues. if soe & y^e Cr^trs be pd then it is time to alienate to pay Jon Chikley: I feare y^e Cr^trs wil rather finde the plantiues to abuse them then y^e defendant who medles not w^th them, nether doth he ether them or plantiue any wronge, onely seeks for his iust due in A legal & iust way. And y^e plantiues declares they receaued y^t deede for y^e vse of the Cre^trs, & saith they soe alwaise declaird, then surely they must not alwaise keepe it them selues but Alienate at least part of y^e estaite soe much as to pay the Cr^trs. & they not paying Jon Chikley who is vnwiling to trust them, why should he be blamed for sueing for his debt w^ch that deede alows him w^th forberance—he being y^e onely man named in y^t deede w^ch is to pay. & who euer is not pd he by name is to be pd, & pd his whole debt. And though you say y^e somes set downe be aboue 8000^l remembr 5000^l of them are vncertaine & 4000^l he cals certaine, amongst w^ch are yo^r owne, though I feare some of them as vncertaine as any: And though you aco^t euery man must haue his iust proportion, yet I feare you are not very wiling to y^t, for euery mans iust proportion by y^t deede is his whole debt, & you lyable to damages from that day you receued it. And if any haue maide other composetion w^th you, you haue cause to thanke them, But Jon Chikley hath not, nor neuer was wiling to haue you haue y^e fingering of his estaite soe longe as you haue, And if it be an abuse to say we conceaue you indeuer to cheate, we cannot but thinke stil it is in yo^r minde, but we hope y^e Justis of y^e Court wil p^ruent you. And if you would not be thought to giue 1600^l bribe you should not haue maide it soe apparent in yo^r deede. you say in yo^r deede you haue paid m^r Brouton longe since 4000^l & it appeares in the Sedal he ewte you but 1800^l certaine & but 600^l more vncertaine w^ch is but 2400^l & it is to be questioned whether he ewte al y^t or noe, soe there is 1600^l at least, remains if you haue not pd it him as a bribe y^t he may not cal you to aco^t for any thinge. then it is stil in yo^r hands, soe then you haue enuf in yo^r hands to pay Jon Chikley still, though you should haue pd y^r Cr^tra 4000^l: you owne Jon Chikley was prouided foramongey^e rest, but why then doe you put him to sue for his right, he was alwaies wiling to haue it out of yo^r hands, and because he can not get it is forced to sue for it, therefore Craues both law [torn] Court as wel as you, & hopes to finde it by a cause in [torn] the Countie Courts verdit, w^th an addition of y^e damages since sustained both for troble & forberance & thereby to be freede from yo^r vexatious trobles.

John Checkley

S. F. 596.8

Objections against the validity of m^r Broughtons deed of Center Haven and Nodles Island to m^r Shrimpton, Price and Cooke

First the deed was made to three parties, and not to any two or one, m^r Shrimpton renounced it therefore invalide, for it appeares not to be a contract but a plott of m^r Broughton with some one or two of the parties, for m^r Broughton cannot sell, except m^r Shrimpton will buy

2: It is made in Consideration of 4000^l m^r Broughton is truly and really indebted to the three parties, and in hand receiued by the seller, and yet in the shedull he ownes but 2450^l owing to them, whereof 600^l is made doubtfull, whether owing or not so that at the time when the deede was made there was but 1850^l knowne to m^r Broughton to be indebted to them

3: He p^rtends that it is in Consideration that all his Credito^rs might be payd theire due, & for that ende p^rtends to haue annexed a shedule, but hath done it fraudulently Leaving out severall to whome he was Indebted, as some may be Instanced m^r Edw: Ting Cap^t Hutchinson m^r W^m Payne w^th others

4: He p^rtends in the deed the annexing of a shedull, but it appeares at the Sealing of the deed noe shedull was annexed for it came after possession giuen w^ch was not till the day after sealing

5: Not Long after the making the deed m^r Broughton payd Nathaniell Williams out of that estate w^ch he therein p^rtends to make over to the 3 parties, as the Cattle on Nodles Island

6: The deed was made vpon Consideration that they to whom it was made over to should pay the Credito^rs mentioned in the shedull besides them selues the value of 4000^l the w^ch in all the time they haue not payd, nor any part thereof not taken Course for it, but haue some one or two of them improved it to theire owne vse, Lived upon it as also m^r Broughton & seu^rall of the said Credetors haue beene wholly or in part payd not by them but by mr Broughton, either out of the Estate pretended to be made over or otherwise

7 There is no absolute sale or allienation, but for mr Broughtons vse, so it is more propperly a deed of Agensy trust or Atturneyship, and the Aecompt & remainor is to the grantor, being made only to secure it from m^r Cole, for his Creditor, so it is manifest It remains m^r Broughton his estate in the hands of his Agents for his Credito^rs therefore John Checkley by Law being proved m^r Broughtons Credito^r ought to haue Legall proceeding against the Estate of m^r Broughton, in whose hands soeuer. The Consideratio[n] of the prmisses, I hope will satisfy the Court & Jury that I am to be payd, out of the Estate, being particul^rly & personally provided for in the deed

John Checkley

S. F. 596.9

An Answer vnto m^r John Checkley his objections

In general they are but words, in which are many mistakes vntruths for the validitie, and Legallitie of the deed I appeale to the Records

1 But to the first particul^r if but one did accept of the sale in the case it were sufficient: but the Plaintiff mistakes him selfe for all three accepted of the Sale, and in particuler m^r Shrimpton: which appeares by his deed of Sale of the same thing that Stands vpon publique Records a Copie of w^ch cannot be p^rsently obtained, but for the truth of it, I refer to the testimoney of the Secretary

2 To the second the deed being made for 4000^li owing to three & yet but 2450 Set downe in the Schedull, by [them] the plainti[ff] may satisfy himselfe that there was no fraude Itended by m[^r] Broughton, but that euery man should haue his just proporti[on] otherwise he would not have set it so downe in the schedull but further there was many hundred pounds more owing vnto m^r Shrimpton, w^ch he did not know, whether it was then payd, which was not then set downe, in the schedull, but [if] the deed be observed, and also what is said, in the schedull, i[t] is that euery man should haue his just debt, which w[as] not then Certainely knowne unto him, because he could not tell what was payd in Barbadoes and England, and as it was his Intent that euery man herein exprest should haue his Just proportion, according to what is really due, so it is also our Intent, not to haue one penny more then the rest according to our proportion of what is really due, and for that end, according to my promisse I haue giuen it vnder my hand and Seale long since which Cap^t Clark hath in behalfe of the Credito^rs W^ch was deliuered in the precence of m^r John Checkly.

3 3^dly Whereas he Chargeth fraudulency in that some are left out of the schedull, the weaknes of his reason needs no great strength to answer et, I would appeale to the penman of it: doth m^r Stoddard Judge it fraudulency that he has gotten his whole debt & damage of m^r Broughtons friends when others are vnpayd, thers no necessitie that a man should pay all his debts, with one & the same thing

4 To the 4^th I referr to the Records.

5 To the 5^th thers no trueth in it the Cattle specifyed were neuer so [   ]

6 To the 6^th whereas its said that the deed was made vpon consideration, that they to whome it was made should pay the Creditors mentioned, besides themselues, the answer is the Plaintiff mistakes himselfe the deede saith no such thing, it is but together with themselues, but themselues haue not received the value of one penny, and whereas its said, they haue payd no part vnto any thats vntrue, for the Plaintiff himselfe hath beene payd a Considerable Sume as is proved in Court, & by himselfe there Confessed, and whereas its Said that that sume one or two of vs, have Improved it for our owne vse, and Lived vpon it, which is altogether fals, and herein the plaintiff doth extremely abuse vs for its knowne that there was an Agent put in by the whole that is to say m^r Coles part and ours, whose accompt hath beene rendered for the whole, and as for m^r Broughtons Liveing vpon it, it is vntrue, if m^r Stoddards and m^r Checklys familys had no more supply then m^r Broughtons hath from his they would be badly Cloathed & fedd as his is—and where as its said that seuerall of the Credito^rs haue beene payd by m^r Broughton, either out of this Estate or otherwise its in part true, for m^r Stoddard hath beene payd: but he best knoweth how: not by this Estate, nor no man else Concerned but m^r John Checkly

7 To the 7^th the Sale and Allienation is Absolutly and wee are neither Agents nor Atturneys vnto m^r Broughton the Estate is none of his, wee appeale to the Records—it hath beene and is Imployed for the Credito^rs to whome it is sould, and m^r Checkley being one of them hath receiued as is above said, and if this hono^red Court be pleased to appoint appraysers of the Estate: and it doth then appeare that he is short of his proportion it shall be payd him, both our selues and the Credito^rs desires that there may be no fraudulency, but that there may be Just & Equall dealings as wee doe manifest in our Petition vnto this hono^red Court, the which I doe humbly Crave that it may be read & Considered by this hono^red Court

Richard Cooke

true Copie . . . Edw Rawson, Record^r]

[See above, pp. 45 and 64, and consult index.]

[See above, pp. 45–52.]

[For earlier but similar doings at the widow Thomas’, see Records of the Court of Assistants, iii. 226, and Diary of John Hull, in Archæologia Americana, iii. 232. She was given partial liberty in June, 1672 (below, p. 126). The General Court at its October session in that year, alarmed by the “bold and audacious Presumption of some, to erect a Stews, whore-House, or Brothel House,” enacted that “every such Baud, Whore, or vile Person” upon conviction of setting up or keeping any such house, “shall be severely whipt, at the Carts-tayle, through the Streets, where such Offence or Offences hath been committed, with Thirty Stripes, and thence to be committed to the House of Correction . . . to be kept with hard fare and hard labour,” their recreation being once a week at least “in hair Frocks and blew Caps by the Executioner to be fastened to a hand Cart, and forced along to draw all the filth laid up in the Cart, through the Streets, to the Sea side. . . . ” Colonial Laws of Massachusetts, reprinted from the Edition of 1672, p. 208.]

[The following deposition is on file in S. F. 162102.1:

The Deposition of Anthony Crosbie aged thirty-fiue years or there abouts this Deponent testefieth that beinge in Company with Robert Marshall att boston the saide marshall in Discourse was Relatinge his travils with one Captaine Welsh a sea Captaine, he the saide marshall extoled the Saide welsh Extraordinarile for a braue souldier and good Disposition man as euer Came into a shipe, yet saith he the saide marshall [Welsh?] he was an Athest beleuing that there was nither god nor Deuell hell or heauen. I asked him the said Marshall whether all his men were of that belefe he saide some weere and some were not. them that would Read or pray thay might by his permission. I asked marshall what Beleife he was of after a little pause. He the saide marshall to the best of my Remembrance Replyed I Coulld be or I am of Captaine welshes mind only I dare not speake what I thinke heere or in this Country]

[Mary Read was summoned as witness in case of Edward Naylor, accused of adultery, Sept. 7, 1672. With Anna Keene she made the following deposition (S. F. 1148.16):

Anna Keene examined sath y^t I heard m^rs Simkins say she d[id] apprehend m^r nailer was poisoned & she gaue her some thinge to expel y^e poyson & being asked how she came by it she shooke her head & said noe more but said she would haue stayed longer w^th y^e [said?] Saml Emens his wife but y^t she would goe to her because of her weaknes. owned in Cort by mary Read y^e 7^th of 12 m^o 1671.

Edward Naylor was a frequenter of the widow Thomas’s bawdy house, and often in trouble. See Index, also Records of Court of Assistants, iii. 224–26.]

[A copy of John Alcock’s will, naming Greene joint “Over Seer” with Edward Rawson, is in S. F. 1721.2.]

Present, the Gov^r Dep^t Gov^r m^r Stoughton.

[See above, pp. 53–9.]