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

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

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

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

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

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

Whereas Henry Ashton of the age of about 30. yeares a tall wellset man of brownish haire and fresh complexion being under an arrest hath made an Escape: These are therefore in his Ma^ties Name to will and require yo^w to make diligent search in yo^r severall Towns for the s^d person and haveing apprehended him, let him bee conveyed safely to the Marshall of Suffolke or his Deputy & the charges thereof shalbee satisfied by m^r Benjamin Gibbs of Boston m^rcht. and hereof yo^w are not to faile. Dated 3. Novemb^r 73.

Simon Bradstreet Assist . . .

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

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

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

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

Yo^r Hono^rs most humble Servant & Suppliant

Henry Ashton

1673

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

S. F. 1341.39

Boston: 6: 9: 73.

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

Js^a Addington Cler.

S. F. 1341.35

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

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

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

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

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

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

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

The rest of the document is mutilated.

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

Richard Way Attorney Appointed by the Last Hono^rd County Courtt held Att Boston His Answ^r To Benjamin Gibbs His Resons of Appeale:

Jmp^rs: To his First p^rtended Reson Js Only Grounded vpon Reflection Against the Hono^rd County Court and therefore Contrary to Law title Appeales w^ch Saith thatt y^e Appellant shall Enter his Resons Without Reflections vpon y^e Court or party butt being Contrary to Law y^e Def^t Hopes this Hono^rd Court Will see Cause and Ground sufficient to Cast his Resons (or More Like Clamerous Words) out of y^e Courtt: But the Last Hono^rd Court Went both by Law and Euidence as Will Planely Appeare Jn y^e Tryall of the Case:

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

3. To his: 3^d Wherein he p^rtends that y^e p^rson Arrested was in the possession of y^e offic^r, Wee Own he was once p^rtendedly in y^e possession of y^e pl^t: And had his Liberty from y^e offic^r to goe About his Buisness and Jllegally p^rsued by y^e pl^t and to his Reflect vpon y^e Last Hono^rd Court J shall Leaue to this Hon^rd Courts Consideration & Determination therein

4: To his: 4: Jf an offic^r Doe neglect his Duty Jn his office that Doth not Justify any officer in y^e Jndeauoring to Doe his Duty Jn an Jllegal way:

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

6: To his 6: whereas he saith that Jf any Damage be Done y^e Marshall must suffer being y^e only Gaine^r, To Answ^r though y^e p^lt was Deputy Marshall here Jn Boston yet he p^rsued not m^r Aston by vertue of y^t Attach^t but by vertue of A Warrant From y^e Worshipfull m^r Bradstreat and whom soeu^r he Jmplyed and Acted in y^e Buisness After his Going outt of Boston he y^e p^lt Jngaged to bare them Harmeless in what they Did; and Jn y^e prosecution of y^t Warrant he was neith^r Jmpowred as marshalls Deputy no^r Constables Deputy.

7. To y^e 7^th & Last Jll is only a Reflection vpon y^e Hono^rd County Court whom J higly Hon^r and Respec^t and Judg they Did notthing Butt what was Just And Legall All which J shall Leaue To this Hono^rd Courtt and Jury to Determine:

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

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

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

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

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

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

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

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

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

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

8. In breefe may it please this honour^d Court and Gentlemen of the Jury, in answer the p^lts 8^th reason, the def^t humbly replyeth that y^e testimony of Capt Nicolls alone is sufficient to evade it, and make it of noe Validity

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

Your honno^rs humbly devoted, and poore Subject, & faithfull servant,

John Sharpe

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

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

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

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

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

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

Now may it pleass this Hono^rd Court to Consid^r my Innocency in this matter, and that it may pleass y^e Lord to Moue yo^r Charitye to Conclude the prosedings of my opposite partyes haue byn much like it from the first Sezing and takeing of my ship from mee,

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

Entred . . . Janu^ry 6. 1673

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

Att a spetiall Generall Court Called by the Gou^rno^r and magistrates in Boston and there held the 10^th of December 1673

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

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

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

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

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

Because J humbly Conceive there was Sufficient to prove y^e Plaintifes power of Adminestracion

1 There was and is y^e Letter of Adminestracion granted by y^e Countie Court in Boston 29 of may 1662 wherein y^e said Rock hath power of Adminestracion upon the said Estate he giveing sufficient Security to y^e Court to be responsible for the same according to y^e last will of the said John Coggan n^o 1:

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

3 There is a Judgem^t of Court that shews Rock as adminesto^r to m^r John Coggan and Martha his wife: was sued by y^e Gardians of the Orphants Robinson

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

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

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

Now this Ordor the said Administrato^r hath not performed nor Can performe with out greate Dammage & pu^rjudice to himselfe For the Following Reasons.

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

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

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

So y^t by this Order J must have beene wronged one hundred thirty two pounds foureteene shill^s and Eight pence

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

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

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

Yo^r Humble servant

Joseph Rock

These Reasons were received from m^r Joseph Rock Feb^ry: 26^th 1673

Per Js^a Addington Cler

Thomas Clarke his Answere to m^r Rocks reasons of Apeale

I humbly conceaue it being in pointt of a non sute y^e Court or officer of y^e Court is to make y^e answere to them—yet I shall make bould to present this to the Consideration of this Hono^d Court—

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

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

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

Thomas Clarke

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

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

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

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

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

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

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

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

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

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

Humbly requesting the honoure^d Court & Jury to Consid^r y^e premises which is of Soe great Consequence Not on[ly] to Jn^o Patten But vnto posterity Crauing pardon for what may seeme to reflect vpon y^e Honoured Court apealed from herby Solemly declaring that J Jntende noe reflection vpon y^m—but only A Cleare Dem[onst]ration (Acording to Law) of y^e Justness & equitye of my Case Now Comitted vnto yo^w whose J am Acording as in duty bounde—

Tho Patten—Attorny as aforesaid

These Reasons of Appeal were received from Thomas Patten Feb^ry: 25^th 1673

per Js^a Addington Cler

Dyer’s Answer (S. F. 28659) follows:

Giles Dyer His Answ^r to Thomas Patten Attorney to his Father John Patten Resons of Appeale:

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

2: To his 2^d Assertion or p^rtended Reson itt hath Litle of Reson or Law in Itt as J Conceaue. For him to say that she is neith^r Heire nor Assigne of m^r Nath^ll Patten Deceased, I Answ^r Although shee Be neither Heire or Assigne yet she is the Relict of Nath^ll Patten And that part of y^e Estate that she hath Allowed to her is hers of Right by vertue of Law title Wills Sect the 3^d Page 158 w^ch saith y^e County Courtt hath pow^r to Allow the Widdow such A part of Estate of y^e Deceased as they shall Judg Just and Equall And this Estate now sued for they haue Allowed And giuen to y^e Relict of y^e said m^r Patten As Appereth by the Courtt Record. Which Law Form^rly Coated Title Wills Sec^t: the 3^d Doth Absolutely Say That the County Court Are Jmpowred Soe to Act which J Desire the Hono^rd Court And Jury to Consid^r of and peruse the same:

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

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

Giles × Dyre

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

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

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

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

John Patten (a seal)

[Witnesses, attestations and endorsements omitted]

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

S. F. 1281.11

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

Taken upon Oath May. 5^th 1673

Before us William Stoughton

Edward Tyng

. . . true Coppie . . . Js^a Addington Cler

S. F. 1281.12

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

Taken upon Oath, Novemb^r 1: 1672: before

Edw: Tyng Assist.

Copia vera per Js^a Addington Cler

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

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

Taken upon Oath. Novemb^r 1: 1672.

before Edw. Tyng Assist.

Copia Vera per Js^a Addington Cler

S. F. 1281.15

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

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

. . . true Coppie . . . Js^a Addington Cler

S. F. 1281.16

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

Sworn in Court Feb^ry: 1: 1672. Attest I. A. C

. . . true Coppie . . . Js^a Addington Cler

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

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

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

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

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

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

2. That m^r Nathaniell Patten dyed intestate.—.

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

Nathaniell Patten afores^d deceased.—.

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

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

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

Yo^r humble Servant

Tho: Patten Attourny as afores^d

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

per Js^a Addington Cler.

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

Imp^rs To his First Wee possitiuely Deney And Doe Affirme he hath Rightt nor title to y^e p^rmises sued for.

2. To His 2^d Wee Waue his Negation and Affirme y^t Benjam[in] Beale Js y^e True And Rightfull Owne^r of y^e p^rmises sued for:

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

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

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

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

Richard Way

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

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

Joseph Dudson, Richard Wharton, & John Fayreweather their Reasons of appeal from the judgem^t of the County Court held at Boston—Jan. 27. 1673. Jn an action of the Case ag^t William Darvall Defend^t——

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

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

3. As the s^d Darvall hath herein reflected upon his Majesty & his Authority here Established & abused the Magistrate as afores^d, So hath he perverted justice & the Law in prosecution of his s^d warrant so fraudulently obtained in falsely pretending robbery & Damage to molest Vex & Defame the Appellants & in Causing the Constable to breake open & rifle their warehouses, as if they had been notorious Theives & robbers, seizing upon their proper Goods & others in their Lawfull possession, & putting the King & Countrey’s marke, upon the same, causing a false & partiall Jnventory thereof to be taken & returned, & indeav^ring Contrary to Law Title Burglary & Theft. Sect. 3^d latt^r part—to gett the Same into his possession & refusing to charge or prosecute any person for the falsely pretended Theft, & prompting & putting the Constable upon the Transgression of his warr^t—promising to save him harmless in all y^t he directed him to, whereby the s^d Darvall, & by his actuall assistance, hath made the Constables act his owne, as much as any vexatious or groundless arrest laid by the marshall is the plaintiffs: notwithstanding m^r Hodges’s Learned plea to the Contrary, to make the Constable the Trespasser or person injurious herein.

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

Joseph Dudson

Richd Wharton

John fayerweather.

These Reasons were received February 26^th 1673. per Js^a Addington Cler

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

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

(S. F. 1273.6)

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

John Glover & a Seal

Signed Sealed & Delivered in pu^rsence of

his

Thomas T P Peck

Marke

Sammuell Plummer

Jn^o Williams

. . . true Coppie . . . Js^a Addington Cler

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

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

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

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

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

Joseph Lowle.

S. F. 1273.4

Thomas Skinner His Answ^r To Joseph Lowles Resons of Appeale.

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

2^d To His: 2^d: Whereas he saith he is Judged to Remoue A fence Within three Dayes. The p^lt Is very much Mistaken In the Judgmentt, y^e Judg^t is nott for to Remoue A fence but the fence for y^e Word A & the in this Case is very much Different one from An Other: And whereas he saith thatt it is nott so much as any Proofe, there is A fence much Less y^t he sett it vp: 1^st I Answ^r that had there ben Noe fence, there had ben noe Trouble, 2dly had there ben Noe fence why should the p^lt haue putt the Country to soe Much Trouble & himselfe & y^e Def to soe Much Charge To Appeale. had there ben Noe fence there had ben no Cause of Appealing from y^e sentance of y^e Last Hono^rd Court 3dly wheras he saith that Juro^rs are To try y^e Case Acording To Euidence, w^ch the Defend^t Desires they may only try the Case by y^e same Euidence y^e Last Jury Att the County Courtt had which was the Sightt of the Thing sued for w^ch the Last Hon^rd County Courtt see Cause To Desire the Jury to Goe Down & Veiw the thing to p^rventt Cross Oaths, w^ch he y^e Appelant would haue Brought Jn to haue blinded the Courtt and Jury and Justise wold haue ben p^rvented And the then p^lt Extreamely Wronged; And Jtt is the Desire of y^e Now Def^t that the Hono^rd Courtt Wold Desire this Jury to goe Down & veiw y^e same Again And then J question nott but they will see how J am Wronged by y^e Appell^t And Rather Augm^t then Deminish the Former Juries verdict:

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

Yo^r Seruantt:

Thomas Skinner

[Endorsed:] Tho. Skinne^r Answ^r To Joseph Louell Resons of Appe^l

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

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

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

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

On the reverse is the following record:

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

Hopestill Foster

Richard Braket

Thomas Gardner

Milton the 18: of July: 1673

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

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

The accident is described in S. F. 1270.10:

The Testimony of Iohn Pearce aged 41. yeares & Tho: Goodridge aged 41 yeares & Iohn Iemson aged 25. yeares testifieth & saith that on the 28^th of Novemb^r last about eleven a clock wee were all standing together at Iohn Peirces Shop dore where wee then saw the boome of Iohn Bicknells Sloope whereof lames Stuard was Master, being topt up more then Ordinary haueing noe cleat on the boome to keepe the pennent of the topping lift on, the pennent slipt off the boome fell down to o^r Sight, wee forthwith ran down & found Tho: Williams & Rob^t Pegg lay dead [on] the wharfe the blood running out of saide Williams’s mouth

Thomas Goodridge

Iohn Pearce

Iohn Iemson

Sworn in Court by Iohn Pearce Ian^ry: 31. 1673. as Attests: J. A. C

Sworn in Court by Tho: Goodridge Ian^ry: 31: 1673 as Attests J. A. C

. . . true Coppie . . . Js^a Addington Cler

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

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

S. F. 1270.6

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

firs^t Rea: Because Wee Humbly Conceiue no Ground of Censure because the

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

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

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

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

Yo^r Humble Apealants:

Joseph Ludden

James Stewart

Febr: 23: 1673

These Reasons were received Feb^ry 24^th 1671¾ as Attests Js^a Addington Cler.

S. F. 1270.7

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

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

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

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

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

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

Yo^r Hono^rs humble Servant by Order & appointment of the County Court of Suffolke

Js^a Addington Cler

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