[This is another case growing out of the will of Governor Bellingham, as the following bit of evidence (S. F. 1225.7) indicates:

Peter Lorphlyn and James Penniman Testifie that vpon the last day of December last past, being requ[est]ed by Richard Wharton, went with him into a peece of pasture ground lyeing behind y^e depon^ts Pennimans house & Lane, in Boston, on the North side of the way to Roxbury, And then w^th the said Wharton and m^r John Blake went peaceably without any opposition into the said pasture, by the gate way, and there, vppon the said pasture, the said Wharton gaue possession thereof to m^r John Blake in the name and for the vse of Doctor Samuell Bellingham, as heyre to the late Deceased Governor, & y^t the said Wharton left the said Blake in possession, and that the said Wharton and Blake requested y^e deponant Penniman to nayle vp the gate, and he the deponent Penniman saith, that accordingly he did nayle vp the gate, and further they say not.

Sworne in Court 3 June 1673 as attest Robert Howard Cleric Cur Comiss

. . . true Coppy . . . Robert Howard Cleric Cur Comiss

Another action arising from the same set of circumstances had been heard at a Commissioner’s Court on 3 June 1673 (S. F. 1225.1):

Captaine Edward Hutchinson plaintife against John Blake vppon a replevin of one bay horse of said captaine Edward Hutchinsons Jmpounded per said Blake &c. M^r Anthony Stoddard declared in said Court, That m^r John Oxenbridge, m^r James Allen, with him the said Stoddard, did let vnto said Captayne Edward Hutchinson as tenant for one yeare, The pasture which was the late gou^rnors neere the neck in Boston, And that he the said Stoddard gaue the said Hutchinson possession thereof, with the consent of the said Oxenbridge and Allen, who both appeared in said Court, and declared to the truth aforesaid. Which said Replevin and all other writings and evidences in the case being red & duely considered by the Court, the said Court found for the plaintife Cost of Court fourteene shillings eight pence money.

The said John Blake Appealed from the Judgm^t of said Comissioners Court to the Court of Assistance, And he the said John Blake with Richard Wharton his suerty, binds themselves Joyntly and severally in the summe of five pounds vnto the Tresurer of this County and parties therein concerned, That he said John Blake, shall and will prosecute this his Appeale to effect.

. . . true Coppy . . . Robert Howard cleric cur comiss

The Reasons of Appeal from the judgments of the Commissioners’ Court and the County Court, by Blake and Hutchinson respectively, follow:

S. F. 1225.9

John Blake his Reasons of Appeal from a judgement obtayned against him by Cap^t Edward Hutchinson at a Commissioners Court at Boston held 3^d June 1673

1. The trespass, the Jmpounding, & Repleving, did arise & were to be Determined vpon a Claime or pretence of title which the then Plaintiff made to Land Jn possession of the Appellant vallued by the Said Hutchinson at two hundred & fifty pounds, the action was not tryable at that Court their power being not higher then for ten pounds

2 For that the persons from whom Cap^t Hutchinson pretends to Deriue his title never had any themselues, the will by him produced making noe mention of any Land with which they are to Jntermedle But that at winnisyniett, as Jn another Case is since Determined by the County Court.

3 For that M^r Stoddard alone, pretending the Consent of m^r Oxenbridge & m^r Allen as the testimony declares, gave possession to Cap^t Hutchinson whereas the paper Called a will saith there must be the Consent of three to make a vallid act, But the Consent of Cap^t Hutchinson’s other two Land Lords appears by nothing but by m^r stoddards words till they Came to Court which was about two moneths after possession was given and 14 dayes after the Replevin was executed.

4 That the Appellant had Peacable possession at least three monthes before Cap^t Hutchinson & Law & Reason Jnform that Possession is a good title till a better [be] proved

5 Where There is noe Damage there Lyes noe action But noe Damage appears to be Done to Cap^t Hutchinson therefore none is granted him Notwithstanding the Appellant is Condemned to pay Cost of Court by which Jt is humby presumed that it will appeare that the action was vnjust & the Judgement Erronious

Per me John Blake

delivered vnto the clarke of the comissioners Court the 27^th day of August in the afterpart of said day before sonne sett, as attest Robert Howard Cleric Cur Comiss

S. F. 1225.10

Edward Hutchinson his Reasons of Appeale from y^e County Courts Judgem^t in July last in a caise of Replevin betwixt Edward Hutchinson & John Blake

First J apprehend y^e Jury mistooke in y^r verdict, for a spetial verdict by law is if y^e law be in such a point we finde for y^e pl. if y^e law be otherwise we finde for y^e def^t but in this verdict be y^e law what it will they finde for y^e def^t

2^ly y^e Jury as J app^rhend in this mistooke also, for Ed: Hutchinson is but constrained pl, for m^r Blake first impounded my horse, & J forced to Replevin him, so he is y^e original pl. & J y^e proper def^t & according to law was forced to giue in ten pounds bond to answer his damage, w^ch is found none by y^e Jury, & how they could finde then for him & giue no damage J do not vnderstand, & therefore J humbly conceiue they gaue noe verdict in y^e caise, or at best a mistaken verdict.

2^ly The Jury owned in open Court m^r Wharton had no right to lease out y^e land y^t was y^e late Gou^r Belinghams, vnder p^rtens of his letter of Atturney from doc^t Belingham, & y^rfore m^r Blaike could not haue more right then m^r wharton could giue him, w^ch was none at all, by y^e Jurys Judgem^t & therefore he vniustly impounded my horse, & my replevin iust.

3^ly for y^e land in controuersy Gou^r Belingham dyed possest of it, his Executors & Trustees haueing proued y^e will, & giuen an Jnuentory into y^e Court vpon oath of y^e estaite, where of this land is part, & therefore of necesity it must needs nextly fall into there possetion, & desposall to lett out.

4^ly Doct Belingham himselfe (much lesse an Atturney, & farr lesse any p^rtended Atturneyship as to y^t perteculer, or any by or vnder him) can not haue any thing of that Estaite till there be an orderly demand of y^e Executors & a legall recouery, w^ch was neuer donne, & therefore my right good.

5^ly if it should be Judged legall w^ch J conceaue can not be, y^t any vpon pretens may come & take possetion of an others land & lease it out, & y^t lease be good while eiected by law, then no man is suer of what he hath, but may be molested in his iust right w^th out any culler of law (as J am in this caise) Esspetially considering m^r Wharton gaue y^t his Jllegal possetion to m^r Blake in y^e winter, when no man had ocation to looke after such paster land, neither did he it by any corse of law, nor y^e Executors who was possest of it not being informed of it by him or any in his behalfe.

6^ly My goods being impounded J was forced to replevie, & so to proseed by way of Ciuill Action, yet vnder correction, J humbly conceaue it also Criminall, & therefore craue y^e Courts serious consideration.

Edward Hutchinson

These Reasons were received August 27^th 1673

per Jsaac Addington Cler

[Endorsed:]

Capt^a Hutchinsons Reasons of Appeale w^ch was not deliu^rd into y^e Court by m^r Addington. Thô when y^e action was Called he affirmd publickly & made it a [Contest y^t] he tend^rd his oath y^t he had so donn: that J was fore^t to make vse of m^r whartons Copie vnd^rtaking to Give him another. Refusing such was his Confidenc to look for y^em yet afterw^rds y^e next day brought them to me & acknowledged he had mislayd them.

as Attests E. R. S.

S. F. 1225.13

Edw: Hutchinson bill cost in the Action of Repleuen ag^t Jn^o Blake

Allowed per Cur 3 June 1673 attest Robert Howard Cleric

There is no record of a hearing on this case by the Court of Assistants.]

[This action grew out of a mortgage foreclosure in 1671: see Sheafe v. Hawkins, above, pp. 1–3. A copy of the attachment, return, and bond is in S. F. 1458.1. The articles mentioned below were brewing vessels.

S. F. 1458.7

M^r Sampson Sheafe Owned in Court that hee had Sold all that by the Mortgage hee had of Thomas Hawkins: & William Stoughton Esq^r Owned that if the abouesaide things (which are some appurtenances to the brewhouse) were m^r Sheafes hee then bought them. this done & testified y^e 29^th of: 5^mo 1673

as Attests Free Grace Bendall Cler

. . . true Coppie . . . Jsaac Addington Cler

S. F. 1458.14

An Acco^nt of Goods sold by m^r Sampson Sheafe to W^m Stoughton Esq^r of Thomas Hawkins apprized by us underwritten.

An Acco^nt of Goods belonging to Tho: Hawkins disposed of by m^r Sampson Sheafe.

prized by mee concerning the pumps & what J know.

David Adams

John Mirick & John Andrews made Oath in Court that they made the abouesaide Vessels for Tho: Hawkins & that this is the true vallue of them

Sworn in Court y^e 29^th 5^mo 1673

as Attests F. B. C

. . . true Coppie . . . Jsaac Addington

Hawkins’ Reasons of Appeal are in S. F. 1458.8. The record of the appeal has not been found. See Hawkins v. Sheafe, below, p. 416.]

[Here begins the tale of another unhappy voyage, in the little brigantine Good Hope “of Carolina in the County of Albemarle,” N. C., Robert Risco master, bound from “New-Bean [Newbern?] Creek in Pasquotanck riuer” (S. F. 1245.10), to Fowey, England, with “Nyne Tunnes being Thirty Sixe hogsheads of tobacco.” The tale is best told in the documents which have been preserved. First, the charter-party (S. F. 1245.7):

Jn the name of God Amen This Charter party of Afreightm^t Jndented made and agreed vpon the first day of March Ann^o Dmⁿ 167⅔. Between Robert Risco marin^r and part owner of the good Brigantine called the good Hope of Albemarle in the Province of Carolina of the portage or Burthen of tenne Tunnes or thereabouts nowe riding at Ancor in Pasqottancke river in the County aforesaid and master vnder god for this present voyage Bound fortwith for England or Jreland of the one part An^d m^r Thomas Miller of Balley Samson in the County of Waxford in Jreland Apothecary of the other part Witnesseth that the aforesaid Robert Riskoe master for and in the Behalfe of himselfe and Noah Parker part owner of the aforesaid good Brigantine hath granted and let to freight vnto the said m^r Thomas Miller Nine Tunnes of tobacco for which the Said Miller is to pay to the said Riskoe master and Company Nine pounds Sterling for every Tunne (being foure hogsheads of tobbacco Soe shipped by him: Only the said Miller is to haue his passage one Chest one barrell and his Cabbin with good accommodations fraight free And further it is agreed Between each parties that the said Miller shall haue the liberty besides his poart nominated in his Bills of Loading to Saile to any other Port for the discharging his tobaccoes soe fraighted on board the said Brigantine Either in England or Jreland Provided that there bee noe more then five working Dayes space Between the arrivall at the first and the Setting Saile to y^e Second the winds and weather being faire And noe Jmbargo of Province to hinder the same: And likewise it is Agreed that the said Risko (if required by the aforesaid Miller shall Stay any longer then the aforesaid Five Dayes in the first Port with an Jntent to Saile to the Second (the aforesaid hindrances being Considered that then the aforesaid Miller shall pay vnto the aforesaid Riskoe & Company vpon the Accompt of Demurrage for every Day that they shall attend through his occasion tenne shillings Per Day. Likewise it is agreed on that if the first Port bee in England the Second shalbee there likewise And soe in Jreland if it shalbee lawfull And to the true performance of the abovesaid Charter partie wee the abovesaid parties haue Enterchangeably Sett our hands and Seales the Day and yeere abovewritten

. . . true coppie . . . Jsaac Addington Cler

The story of the voyage is told in Thomas Miller’s petition for a survey (S. F. 1245.2), and in a deposition of Edward Cox, one of the crew (S. F. 1245.22), which merely repeats the facts in the Master’s Instrument of Protest, recorded at Newport, R. I (S. F. 1245.6):

By this publique Jnstrument of Protest, Bee it Knowne & manifest to all whom it may concerne Whereas Robert Risco in the County of Albemarle in the province of Carolina master of the vessell called the good hope of the above-said County by gods grace being intended or bound for Foy in old England and in pursuance thereof & with an hearty Jntention to performe the said voyage on the 20^th day of March 167⅔. from Pascotancke Riuer set saile & on the 22^th of March aforsd wee came before the New Jnlet w^ch seemed to bee quite barred vp for wee Stood for the Middle thereof till wee came on ground. Jt pleased God the tide of Flood fauouring of vs wee got her off againe & stood further to the Southward till shee came on ground the Second time Then wee carried out ou^r Ancor and by the help of god gott her off againe then wee stood almost to the Southside of the Jnlet till wee found but Fiue foote water and before wee were about, wee were on ground the third time But not soe fast but that wee got off with little trouble soe being quite discouraged and quite out of hope of finding any channell that way wee stood quite ouer to the Northside where wee found Eight foote water but it showling soe suddenly y^t before wee could get the vessell about wee were fast on ground againe notwithstanding all our endeauo^rs with Ancor & Cables and all the meanes wee could vse shee cast thwart & Jmediatly there arose a violent Storme or tempest of wind at Southwest or thereabout which caused the Sea to breake sheer over her & she beating soe violently that wee much feared shee would split in peeces The time y^t shee lay in this Condition was from Nyne a Clocke in the morning till about fiue in the afternoone & the Strength of the tide with the motion of the vessell with the Sea had wrought away y^e sand afore and abaft and banked vpon the lee-side in the middle almost to the Bend which wee feared would haue broke her backe But wee tryed the pump often but could not find her to complaine as yet But when it was almost night with great labour & paines & with the help of the flood wee got her off Jn which time wee receiued three or foure Extraordinary knockes. But in the End wee being almost tyred and Desiring to take o^r rest wee went first to try the pump by w^ch wee found a great deale of water & that o^r vessell had receiued some harme by beating in which Condition of leakines Shee hath ever since Continued for which cause the afores^d master did resolue to put into some part or place in New England. Wherefore knowe yee therefore that J the said Risko doth Solemnly protest against the Showles Tempest and Sea which wee met with Coming out of the Said Jnlet against all Dammages that wee haue Sustained.

This abovewritten Jnstrument of protest was by the aforesaid master and two of his men viz^t Edmund Cocks & Noah Parker published & Declared before mee: The truth of what is above declared J attest to bee from them declared vnto mee Witnes my hand this 17^th day of Aprill 1673

John Sanford Record^r of his

Ma^ts Colony of Rhoad

Jsland & Providence

plantations

Appeared before mee Robert Risco Edmund Cocks & Noah parker the day & yeere above written & tooke their Solemne Engagm^ts that the above written Jnstrument is the truth and nothing but the truth & that as yet they haue not broke Bulk

Francis Brinly Assist^nt

. . . true Coppie . . . Jsaac Addington Cler

S. F. 1245.2

To the hon^d the Gouern^r Deputy Gou^rno^r & the rest of the Magistrates of his Ma^ts Colony of Road Jland & Providence plantations & Jnhabiting in the Towne of Newport on Road Jland Apr: 17^th 1673. The humble Peticion of Thomas Miller

Sheweth That whereas yo^r peticon^r is by providence arrived in this port in a Small Brigantine bound by Charterparty Either for England or Jreland which vessell yo^r peticon^r conceiues is altogether in Sufficient to performe sd voyage & therfore may in the Conclusion prove very preiudiciall to him both in his person and Estate.

His request therefore is y^t you will bee pleased to afford y^t lawfull & Just favou^r to him a Stranger to Comand a stop of sd vessell vntill some skilfull persons haue taken a Survey thereof & made a Returne of their Judgm^ts therein vnder their hands vnto yo^r worships & it will very much oblige

Yo^r peticon^r & Supplicant

Thomas Miller

To Iames Rogers Generall Sergeant . . .

Thou art hereby required to require Henry Beare George Joye & John Hickes to view the said vessell & to giue their Judgm^ts whether the said vessell bee sufficient to performe the Service promised and returne what they affirme, they Judge in the Case. Dated the 17^th Apr: 1673

Nich Easton Gou^r

. . . true Coppie . . . Jsaac Addington Cler

On the reverse side is an instruction by the Deputy Governor of Rhode Island to James Rogers to command a stay of the vessel till further order and require the master to attend ashore. James Rogers deposes that he did so on May 3, 1673 (S. F. 1245.15), securing the sails and anchors on shore.

S. F. 1245.9

Wee whose names are here vnderwritten being by authority ordered to Survey the good hope Brigantine Robert Risco master belonging to the Colony of Carolina and Bound for England and forthwith to giue in o^r Judgm^ts of her ability for the said voyage Therfore in obedience to yo^r ho^rs Comands wee haue been on board the said vessell & being vncapable of viewing the hold of her shee being laden with goods Cannot say anything to it But her vpp^r worke & Riggin wee find Defectiue w^ch makes her if not repaired vncapable to performe a voyage soe long and full of Difficulty:

The Master of s^d vessell informed vs that Coming over the Barr at the Jnlet of Carolina the vessell grounded and beat much vpon that Showld since which shee hath been leaky Therfore Doubting her Bottom may bee p^riudiced our judgm^t is there may bee a Carfull view taken thereof and what is amiss to bee amended

John Hickes

Henry Beere

George Joye

Abiah Edwards

Abiah Edwards aged two & twenty yeeres or thereabouts testifieth y^t hee was one of the persons who viewed the vessell above & set his hand to this Returne & see it signed by the other persons this 30^th 4^mo 1673 Taken before mee Walter Clarke assistant

. . . true coppie. . . Jsaac Addington Cler

After this exchange of pleasantries, Thomas Miller employed Nicholas Stevens of Newport, c. May 20 “to Rowle his tobacco to Caleb Carres warehouse” (S. F. 1245.14), which brought on a dispute between him and Risco over the freight money. There are several depositions about what Miller got ashore from the Good Hope, and to the effect that he and the Captain came to an agreement about the freight, in S. F. 1245.1620; a copy of the alleged agreement is in S. F. 26662, from which it appears that Miller owed freight on 36 hhd. tobacco at 22s per hhd., to be paid in tobacco at the rate of 2d per lb. This worked out at 4752 lb. tobacco for the whole freight bill. In order to discharge this, Miller left with Captain Risco 12 hhd., weighing 4524 lb. net, allowing 75 lb. tare on each hogshead; and still owed 228 lb. tobacco.

James Rogers, the General Sergeant, deposes in part (S. F. 1245.15):

. . . After which time aforementioned the sd Risko did procure a writ to attach the Body of the s^d Miller, the w^ch writ J the sd Sergeant did serve on the Body of the sd Miller for Security which was according to the writ Suddenly after which time the said Miller did himselfe or his order deliuer the Sailes by mee before secured as above to the master of the afore mentioned Brigantine without my knowledge till after it was done which was contrary to the teno^r of the writ and suddenly after the said Miller did depart this province without any knowledge of mine and without giuing mee Security according to law hee the said Miller being vnder an arrest and is not as yet Released from the said arrest And alsoe J the sd Serg^t doe here declare y^t after y^e said Miller or order did deliuer the Sailes of the aforsd vessell & alsoe himselfe departed out of this province J the sd Serg^t did noe longer take charge of Sd vessell nor forbid or hinder the sd vessell nor master from Departing. . . .

Depart he did; and Miller took the tobacco he had “rowled ashore” to Boston on a sloop, Derrick Smith master, as John Trengo deposes July 30, 1673 (S. F. 1245.21). We next hear of the Good Hope at York, Maine, where an attachment was served, and the following inventory was taken of her goods by “Abra: Preble Constable of Yorke,” June 20, 1673 (S. F. 1245.12):

Jnpr^s 7 Hodged of Toba: marked as Jn y^t Margent, & Numbered . . .

Jtt: one parcell of bulke Tobba:

It six empty barrells, 6 barrells of Gumes, & a parcell of trunnells, One Jron Pott, 1 brasse kettle, & some ould Pewter, It one mayne sayle, fore sayle & stay sayle being ould,

It one Cable & anker, the Cable ould It one buckett, & more 5 barralls empty It one chest with bread & Cloaths in it,

It one small Caske of Beuerice, with other small dishes & one [quaderine] It some Candles about 10 Pound, It ocum & some yearne, It pumpe Leather

It some brass things, one Hammer blocke & dead eyes,

It 1 barrell of bread one Roape, 1 Hatchett one Compass marling speeke & pumpe bowlts, & Calking Jrons, one Crow of Jron

It one pumpe hooke, & her Riging

Of course this meant more “Disbustments” (S. F. 1208):

A True acc^ot of Charges & Disbustmens^t, vpon the brickiteen Called y^e good hope of Albemare. Now in Yorke. Augus: 1673

This is the True aaott of the disbustments as attests; Abra: Preble Constable

It is not clear why the action was brought in Suffolk County. See the entry above, for the verdict. Miller’s Reasons of Appeal follow (S. F. 1245.5):

Thomas Miller his Reasons of Appeale from the Judgment of the last County Court held at Boston July 29^th 1673 in the case wherein hee was plaint, against Robert Risco Defend^t

Jmp^r Whereas the plaint. did arrest the Defend^t for breach of severall Covenants bills of lading Charterparty &^a which as the plaint, humbly conceives depends one upon another for all relate to one & the same thing & the same voiadge & never altered by the plaint, but were refused to bee performed by the Defend^t as plainely appeares by the Defend^t forceing the plaint. contrary to his will & designe into severall strange places viz^t Sandyhooke neere New York & from thence to Newport on Rode Jsland; there fallatiously protesting against the damage of the Shoales incapasitating theire vessell to proceed the Voiadge as theire protest imports; yet though the s^d vessell was insufficient, they refused to fit her, though many offers of the plaint^s to defray the charge of the same; but turns part of the plaint^s goods ashoare in Newport & runs away with the rest; which was seized at Yorke in the Vessell, severall hogsheads of the plaint^s markes & Numbers as appeares by the returne of the Jnventory signed by the Record^r & Constable of Yorke who seized the same; though the vessell was under Attachm^t Newport as appeares under the hand of the Record^r of Rode Jsland & soe it may bee seen as will further be illustrated that the Defend^t breakes both Charter-party & bills of loading; the plaint, never intending any such thing; soe that hearinge of theire arrivall at Yorke with the Vessell the plaint. could doe noe less then Attach them to Answer his complainte for the not fulfilling of the bills of loading & Charterparty buts it’s pretended by the Defendt that hee delivered the plaint^s goods onshoare at Newport by consent & a colaterall agreement under the hands of Arbitrato^rs chosen by the plaint, which never yet lawfully appeared nor could doe because it is most false. For it’s most inconsistent with reason that the plaint, should haue received his goods Viz^t the goods mentioned in the bill of loading when they were afterwards part of them Attached as is before expressed.

2^ly As to the Charterparty the plaint, humbly conceives that the Gentlemen of the last Jury did not soe well minde the absolute & expeditious drift of the same for England or Jreland, where both theire mentioned viz^t Risco & Parker, as part Own^rs were bound to goe, though they never intended it as may bee judged by theire running upon the Shoales w^th theire Vessell when there was a Navigable Channell out, whence many Vessells belonging here to Boston haue safely sailed through this very new inlett against which they haue protested before they got out to Sea, thinking & contriving thereby to quash the plaint. & save themselves from the damage of the Tobacco (which was susteined by the leekiness of the Vessell in taking in of the same) as appeares by the testimony of Edward Cox; & might haue made her tite before they came out, had they honestly intended the voiadge.

3^ly: The bill of loading & Charterparty being by the Defendt broken as may appeare by theire putting in to the afores^d places & refuseing to goe the voiadge it plainely proues that the plaint. never had the least thought of breaking them, soe that the damage which the plaint hath suffered is his thirty six hogsh^ds of Tobacco & other goods being not delivered in England or Jreland which may bee supposed would there haue yeilded him sixpence per pound cleere of all charge; which amounts to ten pound sterling per hogshead at four hundred neate; but severall of the same weighed more; besides the loss of time & expence both in Boston & Rode Jsland. the plaint, being altogether a Stranger.

4^ly Whereas the Defend^t pleads that there is a colaterall bond of two hundred pound under the hand & Seal of the plaint. & therefore all former Covenants to bee voide & by it cut of; it is utterly denied by the plaint, for the plaints seeing what they intended to doe when they were at Rode Jsland & that there was noe penall Obligacion on the Charterparty, hee viz^t the plaint, had reason to binde both it & the bill of loading as firme as hee could ife soe consequently gaue them this bond to pay for what goods the plaint, should receive onshoare theire Freight in Tobacco at two pence per pound as should bee judged the usuall Freight from Caralino to Boston. soe that this bond is but a firmer bindeing of the former Covenants, for the bond saith in these words (when the s^d Miller shall receive such a quantity of hogsheads according to bill of loading in good Order & well conditioned, then to pay him the aforesaide Freight) soe that all along it is according to the first agreement in the maine for England or Jreland, for there’s noe other place of delivery mentioned in the bond, soe that it is not what they thinke the bond imports must bee the intent of the same.

5^ly As to the Testimonies of the Defend^t & to begin with Noah Parker’s; the plaint, humbly hopes that the Honorable Court & Gentlemen of the Jury will maturely consider of what validity his testimony is in law, for if they looke but into the Charterparty they will finde him a part Owner of the Vessell & lett upon his Accoump^t tas well as the others & soe a partner in the benefit of the same as will more fully appeare in the testimony of Edward Cocks & laurence Gonsallys; therefore the plaint, humbly conceives that his Evidence in law is not to bee taken & soe invallid because it is in his own case, if soe bee it were true: And as to the Accoump^t of D^r & C^r signed by Noah Parker & the notionall Evidences o^r rather blanke papers of Stevens, Hodges, Rogers, Hawkins, Cocks & Blowers, which were the last Court exhibited by the Defend^t & then look’t upon by the Hono^rble Court as noe Evidence in law; which if they had been the plaint. had neere three to one that were there Engaged also, but being not lawfull Evidence as is before specified therefore did forbeare to put in what testimonies of that sort hee had, which are diametrically opposite to theires; & if the Gentlemen of the Jury will but looke upon all the papers Engaged at Rode Jsland they will plainely see, that none of them all is upon Oath, soe the plaint. humbly conceives that the jury is bound to goe according to law & Evidence; which Evidences J conceive must bee taken upon Oath according to o^r law: But suppose that Parkers Oath were true & hee noe party concerned & that the rest of the papers were good in law; yet there is none of them say that the plaint. ever demanded or desired his Tobacco to bee there landed, or that hee ever received all his goods according to bill of loading, either for good condicion quantity or place; noe, but some Say that the Defend^t delivered some of it ashoare, some say a quantity of hogsheads was landed on m^r Carrs wharfe, others say housed in his Warehouse which the s^d Miller willingly received say others, besides severall other impertinent assertions; to which J Answer that 2. 3. or 4. are quantities of hogsheads or ten likewise are soe, Yet they are not thirty six soe not compleating the bill of loading in that respect. As for Trango’s testimony, who sweares that after Thomas Miller had received his Tobacco ashoare; hee sweares not all his Tobacco, nor any certain quantity; but his Tobacco, that is some of his Tobacco, & that hee Shipped a quantity of the s^d hogsheads for Boston in a Sloope. To Answer to which as to the other testimonies, that a quantity is not all as is before expressed; but to show the reason of the reception of that Tobacco, it was for the defraiing of divers necessary expences which the plaint. by the Defend^ts bringing him amongst Strangers had exposed him to in Newport as Also to recruite in Boston necessary Apparrell in the roome of them which they deprived him of; And what small quantity that was soe rec^d by the plaint. though hee was to pay Freight as afore-saide in Tobacco at two pence per pound doth not at all hinder or take of the force of the bills of loading & Charterparty, that the remaind^r ought not to bee delivered according to bill of loading and Charterparty for a place & condicion & onely allowance to bee made for the quantity received in good condicion & not damnified which could not bee much for that the majo^r part was damnified by the vessells insufficiency in taking in the same as appeares by the testimonys of Edward Cox

6^ly The plaint. proues by Edward Cox, who was at Albemarle with them viz^t Risco & Parker (who shipped him) all along till they come to Neuport on Rode Jsland, whome although they had shipped for the voiadge to England or Jreland Yet suddenly after theire Arrivall at Nueport cleered him; For they knowing that had they not soe done, they could never haue Effected theire contrivances upon the plaint. Hee viz^t the plaint. proues by s^d Cox, that the Vessell was very leaky & the Tobacco most of it damnified in taking in of the same; & they knowing this well, went to goe out at a place where they were unacquainted with the s^d Miller & his goods & soe severall times ran aground on the shoales on purpose as may easily bee supposed to blinde the plaint. by scaring him with theire protest against the same, to depriue him of his due damages by theire insufficiency, & not without danger to his person which is contrary to the law tit. Maritine affaires. Sect. 20. soe that running aground soe often & that purposely to & theire clearing of Edward Cox the Seaman are great Arguments of the Defend^ts never intending to performe the Voiadge, hee was bound on but a meere delusion or cheate to the plaint.

7^ly As to the Protest made by the plaint. at Newport on Rode Jsland, it’s grounded on the Return under the hands of the appointed Surveyo^rs of the s^d Vessell; by the Authority there, how that shee was not founde insuffitient by any beating on shoales, but for want of being rigged & fitted Sutable for such a Voiadge; soe that theire protest will appeare to be fallatious & contrary to law. title. Maritine affaires Sect: 11. &. 15. Thus haveing as wee suppose sufficiently proved the insufficiency of the Vessell, & other deceits of the Defend^t The Plaint. humbly requests that the Hono^rble Court & Gentlemen of the Jury wilbee pleased seriously to consid^r how that from time to time the plaint. hath been abused by the Defend^t & grant him releife in this deplorable condicion according to law.

Yo^r humble Servant.

Thom: Miller

1673

These Reasons were received August. 27. 1673

per. Jsaac Addington Cler

The appeal was not allowed. Three other actions and counter-actions between Risco and Miller will be found in this book. See below, pp. 288, 299, 316. The Massachusetts courts, perhaps warned by the protracted Lawton and Bonner case, found in every instance for the defendant and so discouraged further litigation.]

[The surviving documents on this case include only a Bill of Costs (S. F. 26707) and the following (S. F. 25919):

Phillip French his Answers to Jonathan Tyngs Reasons [of] Appeale from the judgm^t of the Last County Court at Boston

Whereas hee Sayth J then and Still Judged the process to bee Contrary to Law title accounts665 being arrested by the plaint. Jn his owne name, J Answer the Defendt was neither Then nor now willing to abide by the Appealants judgmt The Case being before the proper Judges neither is the process Contrary to Law title acctions for the now Defendt Then sued in the Same Capasity which the bill sued for puts him in Viz^t as Philip French for Acco^tt of m^r Sammu[ell] Shute and Benj: Shute and Thomas Firmin and the bill being made paiable to Philip French or ord^r for acc^tt of Sayd Shute and Firmin as by the Comparing the bill with The Attachment: is most evident, soe that the Defend^t Shews in the Attachment in what Capasity and for whose acc^tt hee sues and whereas hee Sayth there are other bills giuen for the Selfe Same mony now sued for, J Answer Jts false and neuer desire to haue the mony twice but would bee glad of it once haueing been due about fiue yeares,

To his Second the plaintiffe had noe wrong by the Last Jury neither did they misapprehend the term of the bill its Trew the bill is for Six tunns and one halfe of good march: Logwood or one hundred and fifteene pounds in mony which may Stand most with the plaintiffes Conveniency At or before the Last day of Decemm: next ensuing soon After the bill was due the Defend^t goeth to the plaintiffe for his Logwood or mony the plaintiffe then giues this Answer hee Could make more of his Logwood, then the Sume expresed, and so promised him the paiment thereof Jn mony haueing that priuiledge by the bill, as appeares by both the Testimonies soe that now haueing made Choise of and promised mony for the Specie to pay That bill in that promise we sue for.

To the third wherein hee Sayth the witnesses are parties espetialy m^r French, therein the plaintiffe Js Exceedingly mistakin and doth neither Consid^r the Attachm^t nor bill for whose Accon^tt they are its true The Defend^t hath sued in his owne name but for use and acc^tt of other men according to bill neither is hee Concerned in one farthing of profit or Loss in the buisness therefore his and seruants testimonies in the Case are and ought to bee of validity and that as two witnesses wherease hee Sayth hees Condemned by one witnes, here are three positiue witnesses against him Viz^t the bill vnder his owne hand and owned by him Jn Court, Phillip French, and Thomas Meriwether and whereas hee Sayth let him sue for the promise and Then J Shall as well as J Cane Answer it, Answer the Defend^t doth Sue the promise as it relates to the bill as the Jury may see by the Attachment in those very words and promised to pay in mony, and though the Defend^t did in Aprill Sueing for this mony lay his accion wrong and therefore did withdraw it yett now hopes hee hath Stated it wright

To his Last: The Jury ought to giue intrest, because it is both Sued for by the Attachment and pleaded for and the Defend^t doth now pleade that it may bee alloeued from that time till the Jssue by this Court and whereas hee Sayth the Defend^t is noe wayes damnified for want of the Logwood being payde in time according to bill, Answer the Defendt is damnified, for Six tunns and one halfe of Logwood would haue yeilded him more then A hundred and fifteene pounds in mony at that time and therefore the Appealant tooke that aduantage of the bill and promised mony, Lastly the Appealant misinformes the Court for there hath been oppertunity of Shipping for England Since Decemb^r Last as by Grenough Morten Paxton and Forman in euery of whome the Defend^t was Concerned therefore such pretences and pleas are but Vaine

Phillip French]

[See above, pp. 277–85, and below, p. 299.]

[This case takes up the story of the protracted litigation between Supercargo Lawton and Captain Bonner of the ketch Recovery, where we left it in the note to Lawton v. Bonner’s Bond, pp. 176 ff. Gibbs’ appeal to the Court of Assistants was allowed, and was heard before that Court on September 2, 1673 (Records of Court of Assistants, iii. 249–50), on the same day as an appeal of Bonner against a judgment of the Middlesex Court in favor of Lawton! In the appeal from the Suffolk court, the judgment of the lower court in favor of Bonner was affirmed; and on Lawton’s plea the Court “chancered the bond with all damages to one hundred pounds mony for the plaintiffs to pay or that they deliver possession of the house & land and in other respects performe the Award.” Bonner’s bill of costs is printed with this decision in Records of Court of Assistants, iii. 250. The next development was Lawton’s indictment for perjury. See below, p. 302.]

[The arbitral award which Bonner refused to respect is printed in note to Bonner v. Ashton, above, p. 167. Following this strange failure of the Court to hold Bonner to the performance of his bond, Ashton decided to make the best of his way to Virginia, with consequences which are related in the note to Ashton v. Gibbs, at the beginning of the January session, 1673/74. See below, pp. 348–58.]

[See above, pp. 167, 246. This was the fifth time that the courts had held against Dinely in the matter of his brother’s debt to the New Yorker. Once more he appealed to the Court of Assistants, which on September 2, 1673, “found for the Appellant Reuersion of the former Judgment with the land in Controversy & Costs of Courts” 4l 10s 2d. See case of Davis v. Dinely at the session of 27 April, 1675.]

[There are 15 papers preserved for this case in S. F. 1234. No. 1 is the writ of attachment; no. 8, the bond; no. 9, Saltonstall’s power of attorney to Stoughton; nos. 10 and 14 are depositions about demanding payment of the debt in 1671; no. 12 is the bill of costs; no. 13 a copy of part of Thomas Bishop’s will; no. 11 is printed in Records of the Court of Assistants, iii. 251. The agreement respecting the mill, which was the subject of this suit, follows (S. F. 1234.3):

Articles of Agreement made & Concluded by & betweene Richard Saltonstall of Jpswich Esq on the one part & Thomas Bishop of Jpswich & John Todd of Rowley Merchante on the other part this twenty-fifth day of March 16⁶³/₆₄.

The sayd Richard doth lett to Farme his Mills at Jpswich with all appurtenances vnto the sayd Thomas & John (their Heirs or Execut^rs) for the tearme of seaven years & one Quarter next ensuing the date herof to have and to hold the sayd Mills; (against the sayd Richard & all persons claiming of by & vnder him) with all profits & benefitts, produced, & to bee produced by the same; for the time & tearme afforsayde!---on consideration whereof [the saide] Thomas & John for themselves their Heirs & Executors: doe promise & Covenenant to & with the sayde Richard his Heirs & Assignees to pay vnto him or any of them for the first five Quarters, that is to say, from the twenty fifth of March afforsayde vnto the twenty fourth of June which shall bee in the yeare one thousand six hundred, sixty & five, the summ of one hundred thirty & seaven pounds ten shillings, at the Jles-of Shoals in Codfish dry, merchantable, well cured & conditioned, at the rate of thirty two Ryalls a Kenta[l or at] price current (as the sayde Richard shall choose:) & the sayd Thomas & John doe promiss and Covenant as afforsayde that all after payment shall bee made every yeare at the Rock in Marbleheade in such fish as afforsayde, & at the rate formentioned & that they will pay every yeare the summ of one hundred & ten pounds. save only that ten pounds more is to bee added to the last yeare!---And the sayde Thomas & John doe promiss & Covenant as afforsayde that at the end of the tearme forementioned the sayde Mills with all vtensills & appurtenances, as also the Milldamm, shallbee returned in like good condition as now they are excepting weare & teare of Milstons & such dammage as will accrue mearly & only by length of time & not otherwise---And the sayde Thomas & John doe promiss & Covenant as afforsayde that for the whole tearm abovementioned, the sayde Mills with all appurtenances shall be kept in good condition as formerly they have, or as they ought to bee; and that the sayde Richard shall not bee præjudiced in his Grant of the sayde Mills; by any defalt of theirs respecting the Towne of Jpswich; or any Jnhabitant therof. - - And y^e sayde Thomas & John doe promiss & covenant as afforsayde joyntly & severally: that the sayde Fish shall bee payde & delivered as afforsayde & that the loss & dammage by disappoyntment if any bee shalbee borne by them, their Heirs &c; & that they the sayde Thomas & John will give their Bond of two thousand pounds, of lawfull money of England; for performance of this Agreement & every Article of the same.—And the sayde Thomas & John doe promiss & Covenant as afforsayde y^t they will admitt noe partner to this Agreement without the sayde Richards consent first had & obteined in writing; & that Thomas Wait shall not bee imployed any more (as Miller in the afforsayde Mills;) after the expiration of his present Covenant; & during the extent of this Agreement---Furthermore the sayde Thomas & John doe promise & Covenant as afforsayde, that vpon their breach of this Covenant, in any clause or Article therof; it shall bee lawfull for the sayde Richard, his Heirs or Assigness to Reenter vpon the præmisses; & notwithstanding such Reentry had & obteined; to proceede at law for such further satisfaction as may bee due in such a case; vnto him the sayde Richard. Jn witness herof the partyes abovenamed have subscribed with their hands & sealed with their seals, the day & yeare first above written

R^rd Saltonstall [seal]

Thomas Bishop [seal]

John // [seal]

Signed, sealed, & delivered in the presence of Vs,

Thomas Andrews

Thomas Wells

It is provided & so it was provided & concluded by the partyes abovenamed before the sealing & subscribing of the afforsayde Articles; that all Rates; Taxes, & Asessments for & in respect of the Mills afforsayde shall bee payde & discharged by the above-named Thomas & John; their Heirs, Executo^rs or Administrators; which is attested to by Vs

[Endorsements]:

Lease of the Mills in Jpswich made in the year 16⁶³/₆₄.

There is due to me by this Lease above 140^li for which I will not sue, unless J should bee greatly provoked!

The following document (S. F. 1234.6) was part of the evidence.

20^th 6 month 1664

J acknowledge my Selfe to bee indebted to Thomas Bishop of Jpswich m^rchant the Summe of foure pounds to bee paid in wheate vpon Demand.

Alsoe J promise & Couenant that hee shall Enjoy my house lot orchard & planting Lott Rent Free the Space of two yeeres.—Provided that if the said Thomas Doo not hould the Milles at Jpswich longer then Seaven yeeres and one quarter which is wholly & only at my choice (as by an Agreem^t of the Same Date with these presents may appeare) then the aforesaid Summe of Foure pounds shalbee repaid by the said Thomas or his Assignes & the promise abovementioned relating to the house lot Orchard & planting lott shalbee void

Willm Fellowes made oath that he was present & saw m^r Richard Saltingstall signe this writing taken July 24^th 1673 Before mee Daniell Demson

. . . true coppie . . . Jsaac Addington Cler

The defendant’s Reasons of Appeal (S. F. 1234.4) and Stoughton’s Answer thereto (S. F. 1234.7), follow. The references in this document to pp. 1 and 158 of the Laws are to provisions of the Body of Liberties which are incorporated in those pages of The General Laws and Liberties of the Massachusetts Colony, 1672. Apparently the appeal was not allowed.

Reasons of Apeale from the Judgment of the Honored County Court Last held at Boston unto this Honored Court of Assistants now sitting at Boston in an Action of the Case depending betweene the Worshipffull M^r Stoughton Atturny to Richard Saltonstall Esqr. plantiffe & Margarett & Samuell Bishop executors to Thomas Bishop Late of Jpswich deceased defendants. The Case Arising thus

1 R: The plantiff sues the deffendants and also Recovers a Judgment against them for Witholding a Debt of 300^li sterl: due upon Bond unto Richard Saltonstall Esqr from Thomas Bishop which Bond was brought into court but not being owned by the deffendants nor yet proved by the plantiffe by so much as one witness when the Law Requires two or that y^t is Equivolent these defendants humbly Conceiue it to be invallid and of no force against them

2 R: if the Bond Afforsd were owned by the defendants or proved against them by the plantiffe yet the deffendants doth humbly conceiue it not to be broke or forfeited, because the condition of the Bond Afforsd hath Refference to Articles of Agreement made betweene Richard Saltonstall Esqr and Thomas Bishop deceased which Articles neither being owned by the defendants nor yet proved by the plantiffe the defendants doth humbly conceiue it not to be broke that is the Bond nor Any condition of it

3 R: why the defendants doth not consent to nor can be satisfied with the Judgment of the honored County Court Afforsd, is because the honored Court being to accept of the Jurys Verdict, and the Gent. of the Jury not Proceeding according to Law as the defendants doth humbly conceiue, for they being to Judge according to Law (& evidence) which is cleare for the defendants as we humbly conceiue for in the First Law it is said page the first, that no mans Goods or estate shall be Taken from him under Colour of Law &c: and also in page 158 there it is expressed that no man shall be put to death without the Testimony of two or three witnesses or that which is equivolent therunto, now if the Law provides that no mans life shall be Taken from him without 2 or more witnesses, Then it must also necessarily follow that no mans Liuely hood and estate shall be Taken away from him without the same number of evidences Afforsd notwithstanding the plantiffe hath produced four evidences yet not so much as one of them is A circumstantiall evidence in this Case First as to the evidences of Robert Lord sen & Robert Lord Jun They do not at all Testifye to this Case as the deffendants doe humbly conceiue for they sware nothing but what Richard Saltonstall Esqr Requested them to doe for him in his owne Case and therefore of no vallue, and also what margaret Bishops Answer to them was that the house and Land they had Attached was a house & Land they had bought of Richard Saltonstall Esqr:

These Testimonys having no Refference to the Bond the plantiffe hath sued for, the defendants humbly conceiveth it to be invalud, & as for the testymony of Thomas Bishop we humbly conceiue it hath no Refference to this bond now sued for, for he only swareth that after the Testes Afforsd had demanded of margaret Bishop 150^li in Fish she sayd that if mr Saltonstall would stay no Longer for it, she would pay him so much Fish, not Knowing that mr Saltonstall had any such Bond of her husbands, and as for the Testimony of the worshipfull mr Danforth we humbly conceiue it hath no Refference to this bond now sued for by the plantiffe for he only Testifieth, that either Thomas Bishop or Samuell Bishop held some treaty or made some offer of payment for an house but not by virtue of Any bond (for they knew of none) which for other Reasons they might at that time proffer, which hath no Reference to this action which is now before the honored Court & Jury to be issued according to law, which we desire & doubt not but will be attended, and then no bond being proved, no bond can be found against us defendants, for de non apparentibus & non existentibus eadem est ratio,667 and also it hath been the Judgement of this honored Court where a Bill or bond hath beene sued and not proved legally by one witness at the least and also circumstantially by him whom it was due to it hath been Judged invalid, and therefore here being no witness to prove this Bond Afforsd and also there being no mony neither legally nor honestly due the defendants doth humbly craue & desire some Relife from this Honored Court & Jury for the Reversion of that Judgment Granted against the widdow & Fatherless, Thus Comitting of our Case to, & Leaving it with, This honored Court & Jury seriously to consider of it, We Remaine your Humble Servants: Margaret Bishop: & Samuell Bishop:

These Reasons were received August: 17^th 1673

Per: Jsaac Addington Cler

The defendants answer, to the Reasons of Appeale given in by the Excecuto^rs of Tho: Bishop, pl.

Whereas the purport of the Plant^s Reasons, is a Seeking to evade the righteous Judgem^r of y^e Coun: Court, for defect of their testimony on oath y^t Subscribed the bond, & Articles, y^e one haueing reference to y^e other, the Def^t shall not abuse y^e patience of this hon^d Court, (as y^e manner of too many is) w^th any reply to many frivolous words & alligations, but shall breifly make answ^r as followeth.

Humbly conceiuing that it is without controversie.

1. That Thomas Bishop deceased, bargained & had of Ri: Saltonstall Esq^r his late mansion house & land Scittuate in Jpswich, on condiccion to pay 150^l in mann^r, as the Articles declare the w^ch Articles were Exhibited by y^e p^ls at Salim last Coun: Court, being y^e counterpaur of those put into this Court

2. At y^e Expiracion of the terme when the money was to be pay^d m^r Saltonstall made demand of y^e s^d debt, & ^e Excecuto^rs of the said Bishop then promised paym^t, this is confessed by y^ms. as the Records of y^e Court will show: yet never payd any part thereof:

3: m^r Saltonstall not being payd, was at liberty by y^e Articles passed between y^m either to reenter, or sue the bond, as to him should seeme meet: and he being shortly to take his voyage for England made an assignem^t of y^e said house & land vnto relict widow & children, of y^e Reverend m^r Jonath: Mitchell late of Cambr deced, who accordingly demanded possession thereof, of y^e Said Bishops, and was denyed wherevpon a sute was commenced for possession at y^e last Coun: Court at Salim, where y^e Said Bishops confessed y^e bargaine made w^th m^r Saltonstall, & Exhibited the Articles made between them, in barr of y^e p^ls yⁿ sute. pleading 1. a defect in the assignem^t made to m^irs Mitchell. 2. y^t m^r Saltonstall could not assigne y^e same before his reentry, & also that m^r Saltonstall had a bond given for paym^t w^ch he might sue when he pleased, & had made entrance of sute, and therefor could not now enter on the lands conveyed. Also in discourse with the then attorney for m^rs Mitchell, y^e s^d Bishops tendred to pay y^e money, in case y^t they might haue a years time.

Wherevpon y^e Plant, haueing heard their plea, although it altered not the case as to matter of equity, yet Seeming to haue Some coulour of law y^rin he withdrew his accion, and after sometime made demand of y^e money according to covenant, w^ch being denyed, occasioned the now def to sue the bond at last Coun: Court at Boston, where the now p^l y^t had as is before recited, pleaded ag^t a Surrender of possession of y^e house & land p^rtending y^e bond lay out ag^t them for paym^t thereof, so also then he pleaded as much ag^t paym^r for y^e same, although by bond obliged thereto, p^rtending y^t it was not legally proved, bece the witnesses that had subscribed the same appeared not in Court, the one being dead, and the other a sojourn^r in the Said Bishops family, who although he was summoned, & money put into his hand to bring him to y^e Court, yet he would not appeare before the Court to give his testimony as in law & conscience he was Obliged, how farr the p^l had the contrivance hereof himselfe best knows.

Now let the premises be Duly considered, together with the evidences [in] the case y^t are before the Court, y^e def^t humbly conceiueth y^t it is fully demonstrated, y^t y^e debt sued for is aswell legally proved as honestly Due yet evident it is, by y^e p^ls now plea, y^t if y^e death of one witnes, & y^e refuseing of another to give his testimony to his owne hand, (as is undoubtedly true) if this will pay a debt from them so justly due, they faile not to vrge the same to the vttermost, endeavouring to make the hon^rd. Court, (appoynted for y^e releife of the oppressed) a Patron of their so great a peece of injustice & fraud. the Evill thereof being aggravated, by the great oppression done to the helpless widow, & fatherless children of so Reverend a man Vpon whon this wrong will finally Center.

[A further development of the ketch Recovery case of Lawton v. Bonner, for which we now have so many entries that the reader must be referred to the Index. The evidence in the files shows that in September, 1672, Lawton had approached Francis Sciddall (one of the servants whom Ashton had procured at Liverpool and at that time indented servant to Michael Holmes) and pressed him to swear to things which Sciddall knew to be untrue, and so refused (S. F. 1221.89). He also forged a deposition by John Billington, who disowned it (S. F. 1341.45). Lawton’s “reasons of appeale” from this sentence (S. F. 1221.27; F.B. pp. 352–80) are rambling and unconvincing: mainly devoted to an attack on the character of John Billington. Bonner’s “Answers to Henry Lawton his prolix & pretended Reasons of Appeale” are more convincing; he reviews facts which he alleges came out in court, to the effect that Lawton not only wrote the Billington deposition and forged another, but had received his sea-chest with contents intact. The legal part of the plea is of interest:

“. . . And whereas he craves y^e Liberty of a Stranger to present his Evidences for defence Answer the Appealant is noe stranger for he hath lived some yeares in the Country & from hence hath received his Employ & cannot upon his good abbearance bee legally rejected as an inhabitant, however what hee pleads for is absolutely contrary to law title Appeal Sect. 3. in all cases of Appeal the Court appealed to shall judge the case according to former Evidence, & noe other &c. Now I doubt not but this hono^rd Court & Gentlemen of the Jury will finde by the Evidences the severall presentm^ts sufficiently proved for either of which crimes the Appealant deserveth as a high a censure as hee now lieth under, & though wee haue noe perticuler law which speaks of perjury or suborning Witnesses yet the word of god is cleere for the punishm^t of such, as in 19, deutrinony: 16, 18, 19, verses, 6, levit: 5, verse, which by o^r law is to bee the judge, in defect of a Law in any perticuler case. . . .”

The appeal evidently was not allowed; and from the evidence at hand it seems that Lawton, although the main details of his account of the voyage had been corroborated by Henry Ashton and several members of the crew, had been overzealous in obtaining evidence against Bonner, and that in order to convince the Court he had not hesitated to manufacture evidence of his wrongs.

But we are not yet done with Lawton’s turn of fortune. At this same session of 29 July, 1673, as we have already seen, Lawton was defendant against Bonner for non-performance of his engagement to accept the award of Joyliffe, Peter Lidget and Thomas Deane, dated January 20, 1672 (Records of Court of Assistants, iii. 251). The jury found for Bonner 200l and costs. Gibbs and Lawton appealed, and their appeal was heard before the Court of Assistants on September 2, 1673, the same day that Bonner “declared he did attaynt the jury” for confirming a judgment of the Cambridge court in favor of Lawton. Notwithstanding, the Court of Assistants sustained the lower court and found for Bonner, with additional costs. After which, at the next session, Peek starts a new suit against Lawton. See below, p. 315.]

[“Pound breach” was a serious offense in New England, as in any agrarian society. A law of 1645 provided that every town and village should maintain “one sufficient Pound or more . . . for the Impounding of all such Swine and Chattel as shall be found in any Corn field or other inclosure,” there to be held until the person damaged by the stray cattle be satisfied by its owner. Pound breach was defined by a law of 1647 as an owner’s “rescuing” his animal from the pound before satisfying the damaged party, or a third party removing the animal without the owner’s consent. It was subject to a fine of 5l, or public whipping “not exceeding twenty stripes,” in addition to penalties for theft if the rescuer were not the animal’s owner (The General Laws and Liberties of the Massachusetts Colony, 1672, pp. 124–25). Part of the testimony (S. F. 1209.4), Noakes’ Reasons of Appeale (S. F. 1209.2), and the Answer thereto (S. F. 1209.3), follow:

William Pollard aged 62. yeares & Bartholmew Sutton aged 45 or thereabouts testifieth that they heard Robert Nocks say that if hee did breake the pound it was but five pounds. Owned the 21^th of July 1673. by Robert Noakes before John Leverett Gov^r

Owned in Court. 5. 6. 73 Attests J. A. C

Robert Noakes principall in 10^li John Tappin & Sammuell Johnson as Sureties 5^li apiece Owned themselves bound to the Treasuro^r of the County of Suffolke that Robert Noakes shall appear at the next County Court to bee holden in Boston to Answer for the pound breach hee made in taking out his horse without leaue, being impounded: & suspicion of his breaking open the pound to let other horses out & for abuseing old Goodwife Cullimore the pound keepers wife by bad & unworthy language. & that hee abide the Order of the Court

Owned by them the 21. July: 1673.

before John. Leverett Gov^r

Robert Noakes Owned in Court. 2. August. 1673 that hee desired Zachariah Phillips to goe to Goodwife Cullimore to fetch the Key of the pound that soe hee might put in a mare, the w^ch hee did, & when the dore was open hee the s^d Noakes tooke out his own horse.

as Attests Jsaac Addington Cler.

. . . true Coppie . . . Jsaac Addington Cler

Robert Noakes Resons of Appeale From the Judg^t of the Last County Courtt: Imp’s: My First Reson why J appealed from the sentance of the Honored Courtt is Because J was Sentanced Contrary to Law hauing neuer been guilty of any such thing that was Laid to my Charge, there being no [wit]ness against me thatt Euer J broke pound, and thatt my going into the pound when the p[ound door] Was Opend by Zackry Phillips Can bee a pound Breach Cannot no^r J hope Wi[U not bee] Counted A pound Breach though J fetched my horse out of [torn] att that time and Also noe p^rson Dammnifyed neither y^e pound keeper nor y^e p^rson y^t putt my Horse into y^e pound but y^e mony paid by another p^rson hauing his horse or Mare by me pounded, & also y^e pound keeper owning herselfe fully sattisfyed for y^e same; But the time that J am Charged w^th Breaking the Pound J was A bed & Can safely take my oath of itt if Called theretoo:

2dly: Because noe Wittnes Came Jn Against me the Law of God [&] man Saying Expresly that no man shall bee Condemned or sentensed but by y^e mouth of two or three Wittnesses, And being noe Wittneses against me and nott being in y^e Least Measure Guilty of that w^ch [is] Laid to my Charge y^t J was fined For y^e Appellantt hopes the Hono^rd [Court] Will [see] Cause to Cle[ar]e y^e poo^r Appellant from the fine [torn] Hono^rd Courtt [torn]

Answers to Robert Nokes his pretended Reasons of Appeale from the Sentence of the County Court in Boston

Whereas hee saith hee was Sentenced contrary to law there being noe Witness against him: The Appealant doth most unworthily & abuseivly reflect on the Court Appealed from, & seemes to bee very forgetfull of his own acknowledgment in Court (which is of as much force against him as twenty Witnesses) where hee Owned that hee spake to Zechariah Phillips to fetch the Key from the pound keeper under a pretence of his impounding of a Mare, which hee had taken up, & when the pound dore was opened hee tooke out his own horse & that without the pound keepers Knowledge or paying according to Order; which by o^r law title pound breach. sect: 2. is noe less then pound breach which saith whosoever shall by any way or meanes convey cattle out of pound &^ca & therefore the penalty of five pounds justly inflicted upon the Appealant: there is also two positiue Witnesses which say. the Appealant did giue out words which occasion just Suspicion, in that, hee saide; if hee did break the pound it was but five pounds soe if the Gentlemen of the Jury bee pleased well to weigh & consid^r the Appealants acknowledgement in Court with the other concurring testimonies together with the law title pound breach sect. 2. J doubt not but they will see cause to confirme the Sentance of the County Court.

Jn behalfe of & by Order of

the County Court of Suffolke

Jsaac Addington Cler

The appeal was not allowed.]