At a County Court held at Boston January 26th 1674.

Present

Jn^o Leverett Esq^r Gov^r	Edw: Tyng
Simon Bradstreet Esq^r	W^m Stoughton
	Majo^r Tho. Clarke

Grandjury Sworn

m^r Ri: Collicot	Jn^o Stebbin	Benj^a Bates
Jn^o Anderson	Dan^ll Preston	Jn^o Ellice
James Everill	Thomas Trott	Js^a Bullard
W^m Salter	Sam^ll Bass	Tho: Metcalfe
W^m Dawes	Jn^o Baily	W^m Salsbury
Tobias Davis	Jerm: Beales

Jury of Tryalls Sworn

Cap^t D. Henchman	Tho: Bacon	Jn^o Jacob
Jn^o Oliver	W^m Lincorn	Ri: Ellis
Sam^ll Jacklen	Jn^o Withington	Nath: Fisher
James Hill	Sam^ll White	Ebenezer Haydon

[Weaver v. Woodbridge]

John Weaver plaint. ag^t Thomas Woodbridge Defendant in an action of the case for witholding his booke of accompts whereby hee is greatly disabled to make up a just accompt with the present Defendant & others to the damage of the plaintife about one thousand pounds & all other due damages according to Attachm^t Dat. January 8^th 1674. . . . The Jury . . . founde for the Defendant costs of Court

[Weaver v. Woodbridge]

John Weaver plaint. ag^t Thomas Woodbridge Defend^t according to Attachm^t Dat. January 8^th 1674. The plaint. withdrew his accion upon entring bond in Court with the Defendant for an Arbitracion

[Deane v. Bishop]

Thomas Deane of Boston plaint. ag^t Thomas Bishop of Jpswich Defendant according to Attachment Dat. Decemb^r 16^th 1674. The plaint. withdrew his action.

[Harrison v. Woddee]

John Harrison plaint. ag^t Ensigne Richard Woddee Defendant in an action of the case for that the saide Woddee did injuriously cut down the Fence upon the Land of the saide Harrison claiming interest in the saide Land calling it common Land, pretending Town Order to make the Land common to the damage of the saide Harrison at Least two hundred pounds with other due damages according to Attachm^t Dat. January 15^th 1674 . . . the Jury . . . founde for the plaint. two Shillings damage & costs of Court, allowed by the Court twenty Five Shillings & eight pence.

Execucion issued February 8^th 1674.

[See the review of this case, Woody v. Harrison, below, p. 651.]

[Woodcock v. Hues]

William Woodcock of Hingham plaint. ag^t John Hues of Hingham Cooper Defend^t in an action of the case to the value of three pounds & eight Shillings for Eight cords & a halfe of wood w^ch the s^d Hues received of the s^d Woodcock to Freight to Boston in a boate called the Forrester w^ch the s^d Hues then went in, in the yeare of our Lord. 1665. or thereabouts, w^ch s^d wood the s^d Hues was to deliver to m^r Peter Oliver of Boston on the account of the s^d Woodcock the s^d Hues being paide Freight for the s^d wood; which s^d wood the s^d Woodcock have noe Legall account of with all due damages according to Attachmt Dat. 16^th of Decemb^r 1674. . . . [287] The Jury . . . founde for the Defendant costs of Court, allowed by the Court Fourteen Shillings & four pence.

Execucion issued. Jan^ry 29^o 1674.

Holloway & Butler ag^t Dafforn

William Holloway & Stephen Butler plaint^s ag^t John Dafforne Defendt according to Attachm^t Dat. January 20^o 1674. The plaint^s withdrew theire Action upon agreement of a referrence of the case to the Gov Edward Tyng Esq^r & majo^r Tho: Clarke Esq^r & all the Select men of Boston, to abide by theire determinacion or the majo^r part of them in the case & engaged themselves in two hundred pounds apeice each to other to performe theire award.

vide p: 303

Spowell ag^t Griffin

William Spowell plaint. ag^t John Griffin Defendt according to Attachm^t Dat. January. 21^th 1674. The plaint. withdrew his accion & costs granted the Defendt for Attendance three Shillings.

Lytherland ag^t Veren

William Lytherland plaint. ag^t Hilliard Veren Clerke of Salem Court Defendt in an action of the case for that hee the saide Veren under colour of his office hath granted forth an Execucion bearing date the .26. (6). 74. contrary to Law, upon which occasion the saide Lytherland is executed upon imprisoned & retained in prison to his damage of about Sixty pounds in mony with all other due damages according to Attachm^t Dat. Novemb^r 7^th 1674. . . . the Jury . . . founde for the Defendant costs of Court, allowed by the Court, twelve Shillings Six pence.

[See above, pp. 500–4.]

Woodbridge ag^t Weaver

Thomas Woodbridge plaint. ag^t John Weaver Defendt according to Attachmt Dat. January 9^th 1674. The plaint. withdrew his action upon entring bond in Court with the Defendant for an Arbitracion

Sheffield ag^t Harrison

Thomas Sheffield plaint. ag^t John Harrison Defendt in an action of the case for refuseing to deliver up all writings that belong to a parcell of Land which the plaint. bought of & was delivered by the saide Harrison to saide Sheffield in the Yeare One thousand Six hundred & Sixty four as by a Deed of the same date may appeare whereby the plaintiffe is damnified the value of Fifty pounds & all other due damages according to Attachmt Dat. January: 18^th 1674. . . . the Jury . . . founde for the Defendt costs of Court allow^d by the Court two Shillings 2^d

Allen ag^t Emmons

Bozoon Allen plaint. ag^t Obadiah Emmons Defendt in an action of debt of Sixteen pounds or thereabouts due upon ballance [288] of Account & all due damages according to Attachm^t Dat. X^br 3^d 1674. . . . The Jury . . . founde for the plaint. thirteen pounds twelve Shillings & Six pence in mony & two pounds four Shillings & four pence in hides at mony price & costs of Court twenty one Shillings. Execucion issued pr^o Feb^ry 1674.

Norden ag^t Roades

Samuel Norden plaint. ag^t John Roades Defend^t according to Attachm^t Dat. October. 24^th 1674. The plaint. withdrew his action.

Cutler ag^t Jacob

Samuel Cutler of Salem Sonn & heire to John Cutler deceased plaint. ag^t John Jacob Senio^r of Hingham Defend^t in an action on the case to the value of twenty pounds for the saide John Jacob refuseing to give the saide Samuel Cutler possession of a great Lott lying in Hingham w^ch s^d great Lott containeth twenty acres of Land & was granted to the saide John Cutler deceased by the inhabitants of the Town of Hingham on the great plaine with all due damages according to Attachm^t Dat. Decemb^r 21^th 1674. The parties by consent referred this case to the Eleven Juro^rs. . . . The Jury . . . founde for the Defend^t costs of Court, allowed by the Court twelve Shillings & eight pence.

Hutchinson ag^t Paine

Eliakim Hutchinson & as hee is Executo^r to the last Will & Testam^t of his Father Richard Hutchinson Late of London deceased plaint. ag^t John Paine of Boston Defend^t in an accion of debt for not paying unto the s^d Eliakim Hutchinson ten tunn twelve hundred of merchantable barr Jron, nor unto the s^d Richard Hutchinson in London the Summe of one hundred Sixty nine pounds 12^s sterling mony due by Obligacion bearing date the 28^o Decembe^r 1664. with forbearance & all other due damages According to Attachm^t Dat. Decemb^r 24. 1674. . . . The Jury . . . founde for the Defend^t costs of Court, allowed by the Court Eleven Shillings: The plaint. appealed from this Judgement to the next Court of Assistants. & the s^d Eliakim Hutchinson principall in Five pounds & Cap^t Edward Hutchinson & Free Grace Bendall as Sureties in Fifty Shillings apeice acknowledged themselves respectiuely bound to . . . prosecute his appeale. . . . [289]

[The iron-works at Lynn were responsible for an immoderate amount of litigation (see Fogg v. Williams, p. 543, Leverett v. Fogg, p. 547, and Thayer v. Paine, p. 563, below). This particular case arose out of a specialty, or promise made under seal, of 1664 (S. F. 1362.6):

These presents Witness that J John Payne of Boston in New-England doe binde my selfe heires & Executo^rs and administrato^rs to pay unto Eliakim Hutchinson now resident in Boston Attourny to his Father Richard Hutchinson or to his or theire heires Executo^rs and assignes the just quantity of tenn tunn twelve hundred of Marchantable barr Jron at or before the last day of Septemb^r next ensuing the date hereof in case of non payment of the forementioned Jron then to pay unto the saide Richard Hutchinson or assignes at the angle & Starr in Cheapside in London the Summe of One hundred Sixty nine pounds twelve Shillings Starling. Jn Witness whereof J haue hereunto Set my hand & Seale this 28^o of December One thousand Six hundred Sixty & four; the saide Jron to bee paide at the Warehouse of the saide Hutchinson in Boston which is in full payment for the interest of the saide Hutchinson in the Jron workes

Per mee Jn^o Paine & a Seale

Signed Sealed & Delivered in the presence of and his words (or assignes) enterlined before the Sealing & Signing hereof.

Samuel Hutchinson

Edward Hutchinson

George Pearson

Geo: Pearson Sworne Saith that hee was present at the Signing & Sealing this Wrighting & put his Name thereto as a Witness

Before Tho: Clarke assis^t this. 27. 11. m^o 74.

Own^d in Court by m^r Jn^o Paine Janur^o 27. 1674.

as Attests Js^a Addington Cler.

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

Paine’s copy of a disputed collateral agreement of 1667 between Richard Hutchinson, Oliver Purchase, and himself follows (S. F. 1362.7). It will be observed that this does not indicate that the agreement bore a seal, and does not show whether all three parties signed the agreement. The signature of Eliakim Hutchinson merely attests the accuracy of the copy. His contention throughout the case was that this agreement, even if ever executed, was unsealed, and so could not supersede the formal, sealed document of 1664.

Know all men by these presents that wee Oliver Purchase & Jn^o Paine of New-England to ingage jointly & severally to pay unto Richard Hutchinson Jron Monger or any Agent of his in New-England the just quantity of ten tunn twelve hundred of Marchantable Barr Jron out of the first blast that the saide Purchase & Paine shall haue from the Jron workes of Lyn except some inevitable accident doe happen that the saide Workes cannot produce such a quantity of Jron then there shalbee a longer time granted for payment of the same for the true performance of which wee haue hereunto put our hands and Seales this thirtieth day of January Ann^o Sixteen hundred Sixty Seven; it’s to bee understood that there shalbee allowed to the s^d Purchis & Paine to make for theire use in carrying on the workes ten tunn of Jron & then the aboue quantity to bee paide unto the saide Hutchinson, this Obligation being performed the saide Hutchinson is to deliver up to the s^d Paine his bill formerly given to pay the saide quantity of Jron or mony in England and to give him a Deed for the part of the Jron workes sold him. This is a Coppie of the Obligacion given mee.

E^m Hutchinson

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

S. F. 1362.9

The Testimony of Oliver Purchis aged Fifty & Six, who testifieth & saith that m^r Eliakim Hutchinson made an agreement or contract with m^r John Paine of Boston and myselfe as Security for the payment of ten tunn & twelue hundred of Jron with relation to an interest in the Jron workes of Lyn as in that writing is specified; which writing beareth date the thirtieth day of January. 1667. & that the paper given into Court now of that saide date is the paper that m^r Hutchinson aforesaide gave to this Deponent as the Coppie thereof under his hand & farther Saith not

Sworn in Court Janur^o 29. 1674

as Attests Js^a Addington Cler

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

In the following Reasons of Appeal by Hutchinson (S. F. 1362.3), the admission by the appellant that proving of payment could make void a sealed instrument is remarkable if meant as a legal rule, since payment did not become a defense to a specialty in the English law courts until 1707 (by statute). Perhaps the courts of the colony had already adopted this rule for practical convenience.

Eliakim Hutchinson his Reasons of appeale in the Case between him as plant^ff & John Paine Deff^t tryed at the last County Court in Boston

Becaus the speatialty which the plant^ff Sues appears in Court Faire & vncancelled & owned by the Deffend^t in Court to be his hand & seale & his act & deed, and he doth not so much as pretend any payment of any part of the same therein specified to be paid to the plant^ff or his order, therefore the sd speacialty must of Necessety stand Good and in full force against the defend^t (both in law Reason & equity) as J humbly conceiue, yett notwithstanding the Jury at y^e last County Court weare pleased to finde against mee Wherefore J appeale to this hon^rd Courte

And whereas the Deffend^t pretends a Collaterall agreement that Cutts off the force & bindeing vertue of the speatialty J sue, J doe posetiuely denigh any such agreemt, neither doth any such agreement or Couenant appeare in the Case; the grownd of his pretence is from m^r Purchis his Testimony that he had w^th m^r Paine done so & so, and giues in a paper as a Coppie of what they had done which Coppie Dus not say that J had made any such agreem^t or couenant wt^h them but doth in effect say that the speatialty sued shall stand good against him till J am paid, Neither doth sd Purchis his single Testimony, Legally proue there was any such writeing, and if there weare any such writeing as the Deffendt pretends to be giuen mee (iff the paper in Court be a true Coppie) it doth not declare there was any agreemt of the plantiff to it, though m^r Purchis is pleased to say so in his oath which oath corresponds not with (but contradicts) the [write]ing he sweares too, and if no agreem^t of the plant^ff in y^t writeing (as there is not) then m^r Purchis his oath must of Necessety be invallid in law as J humbly conceiue, for that cannot bee an agreem^t where but one party consents, but sd pretended paper only appeares to be a further promise or a way presented to giue mee hopes of a speedy payment, by m^r Paine together with m^r Purchis, to pay mee Tenn Tonn Twelue hundred of Jron out of the first blast from the Jron workes except some Jneuitable accedent happen, That the sd workes cannot produce such a quantity of Jron then there shall be a longer time granted for paym^t, Now if any ineuitable accedent had happened they should haue required a longer time, but the workes are still standing, and no ineuitable accedent happening they are without Excuse; and this seemes straing that if m^r Paine referr mee to his steward for payment of his Debt And the sd Steward together w^th the principall obligeth that sd debt shall be paid out of the principalls Estate (as it is produced or comes to his hands) and if this steward cannot raise effects, or if he doth conuert them to some other vse, will the giueing such a writeing pay a speatialty thus proved and owned, J humbly conceiue it will not, And Further m^r Purchis did own in Court there had ben a blast and that there was made so much sow Jron as would produce about tenn Tonn of B[arr] Jron, which somthing agrees w^th what m^r Paine formerly told mee that there was Jron enuph made at the workes (besides Tenn Tonn) to pay mee, and that he woundred what m^r Purchis did that he had not paid mee; and said works haue made many a Tonn of Jron since that time, but yet they haue not paid mee, all which considered that pretended writeing doth implicitly declare that the sd m^r Paines speatialty sued for to pay the sd quantity of Jron or Mony in England is in full force & vertue, otherwise why was it not taken up when the pretended bill was giuen, but J plead to avoide that that indeed is not, for no such bill or Couenant or agreem^t appeares, And its verry straing to mee that the Jury should giue so much Creditt to m^r Purchis his Coppie of a pretended agreement or couenant which pretended origonall neither my hand nor seale is vnto, and which J doe posetiuely deny to be any agreement of mine, as to make m^r Paines bill (vnder his hand & seale & owned in Court by him) to be void of none effect, it being a receiued maxim that nothing but the hand and seale of the Creditor can make void y^e hand & seale of the Debtor except payment be proued, And whereas The deffend^t pretends that he has no consideration for his mony J answer he hath the Jntrest of the plantiffs Father Richard Hutchinson in the Jronworkes at lyn and hath had the Jmprouement of it for aboue Ten yeares neither did J euer deny to giue him deed of sale for the same, all w^ch J present to the Hon^rd Court

Eliakim Hutchinson

These Reasons were received Febr^o 25^th 1674/5

per Js^a Addington Cler

S. F. 1362.4

Jn^o Paine his answers to m^r Eliakim Huchinsons Reasons of Appeall to this Honor^ble Court of Assistance

To the firs^t that y^e Specialty is Sealed, vncancelled, Owned, no payment made or pleaded to &c therfore must Stand Good. Paine Answers

Itt is not the name but nature, matter & forme that Constitutes, hoc esse aut non. Ther can bee no specialtye or Obligation absolute, but for actual Consideration; and wrightings vppon condition, or for consideration to be performed, Oblige not vntill performed; and are properly but agreem^ts for bargaine & acts but jn fieri: to w^hich Jf ther be not a penalty to jnjoyne each to performe, they are both at liberty as in this case for woold m^r Huchinson obliged Paine, he must haue tendered the Consideration, for had Paine, paid m^r Huchinson without a Deed, hee Coold Not haue Obtaynced one by Law. And our Law aloweth not of fraudilent acts. Title Conveyances Page 32. Our Law. Then Since that neither Obligation nor specialty, truely So called, but only an agreemt in order to, or nature of a written bargaine, without Penalty, and Obligeing but answerable to Condition or Consideration therin mentioned & Resting on m^r Huchinsons part to pforme, w^ch hee neglects; And that the Last clause in an agreemt (or Obligation if this mought be called so) Is that which bindeth what preceaded, or maketh voyde the whole; which clause is the consideration in y^e wrighting Sueed & neglected to bee performeed by m^r Huchinson. I humbly leaue it to the honr^ble Court of Assistance & y^e Jury To determin whether m^r Huchinson hath not fayleed in & made voyd the wrighting hee now Sues.

Secondly. m^r Huchinson hath & may Produce a Second agreem^t of an after Date for the Same thing vnder hand & Seal as true a Specialty as the firs^t (were either so) the counter or jnterchangeable part to this in Court of the Latter Date, vnder m^r Huchinsons owne hand, which himself owne^d Jn thes wordes. it might bee my owne wrighting. but quearied how that Shoold cut of his Obligation &c. which for erreffrajable Reason it cannot but Doe. Firs^t from Reason equity & Law, neither of which alloweth [of] two agreem^ts to hould good against a Man for one and the Same thing^e: [Much] les for nothing^e; but the Latter, if [two], is only Suable, which is this case. Since then m^r Huchinson, as Sensible the first was vnequall & J was drawne in by pretence of a bargaine, of no bargaine, of my Fathers makeing^e which woold not proue, or his jnteres^t valluable, to hould the firs^t ag[reem^t] doth thereuppon Let fall the first & come to a Second agreem^t which Seemeingly hath more apperance of equity^e & Plain dealeing; wherin is other Conditions benifits & easemt which Plainely doth proue it a Colateral agremt and what m^r Huchinson himself hath in equity & for great Reason [granted] i trust this honor^d Court cannot in equity^e, Reason, or Law [nor will not take] from me

To the 2^d Objection or part of m^r Huchinsons Reason Expresing thes wordes I doe positiuely^e deny any Such agreem^t neither doth any Such agreemt or Couenant appere in the case. I Intreat m^r Huchinson in Respects to his freinds & those who haue a higher esteem of him then to Conclude he intend [torn] one possitive vntruth; therfore to giue his owne Sense (if it may bee) to free himself from Just feares of his tendancy to Popeish tennets alowing the Lawfullnes [of] Mental reseruations &c in affirmations and Oathes without which J can no wise conseiue how those words can bee cleered from absolute and apparent Falsehood.

Farther to those words. And giues in a paper as a Coppie which doth not Say that I had made any Such agreemt or Couenant with them. Paine Answers

The wrighting called a Copie was an agreemt in it self (in fieri) & therfore needed not mention any other agreem^t being J say the Original Counterpart or jnterchangeable act of m^r Huchinson vnder his owne hand by himself deliuerd m^r Purchase & myself together: & Rec^d by vs, as his act with the condition & Considerations on both parts agreed to, & by himself drawne vp: Obliging him to Me, as the other part Obligeth vss to him. & Suffitient as wee conseiued for an agreemt in firi, as afores^d.

To m^r Huchinsons Objection that this Latter agreem^t is not Sealed Paine Answ^rs Jtt is the Consideration that Obligeeth, giues virtue and forces. the Seal is no more then a sircomstantial Evidence, or Sighne of the thing Done; to which act if ther bee no more but his hand, & legal evidence to the wrighting made & Deliuered, on just consideration j wil ventor y^e Case though ther be no Seal. but the jnterchangeable part in his owne hand J suppose wil appere with a Seal, although that J Was not So Scrupelous, Expecting a Deed from him.

To m^r Huchinsons mistaken Inferance with his quiblees, trivial Objections, & tedios discorse, I esteem not diserueing an answer. But humblye craue this honord Court to p^rvse the agrem^ts and Evidences, and way the Same. M^r Purchases Oath, which the Appellant Objects agains^t he mought haue Saued y^t Labor, Considering m^r Purchases evidence is not for himself, & is no more then what the appelant owned in owneing the Second agreem^t Jn the Last County Court as bath been alledged, & I doubt not May be Remembored by Some of the judges and others in that hon^rbe County Cour^t, but had he denyed it then as Stoutly^e as he woold Seemingly doe now, the act Sworne to by m^r Purchase; delivered to him & mee together by m^r Huchinson vnder his owne hand appereinge Jn Court with other demonstrations, & Sircomstantial Evidences, j doubt not cannot but Sattisfy the Gentlemen of the jury. Espesially compareing that jn Iohn. 8^th 17 & 18 vs: with our Law, which alloweth of such evidence (as the word of god alloweth) to be good Jn Law. I leaue the case with this honorble Cour^t & Iury. And

I Humbtely Subscribe.

In^o Paine

[Marginal notes, in the same handwriting, beside the last paragraph:]

The 2^d agreemt doth indeed provide y^t y^e first shal be voyde, but doth possitiuely gran^t other conditions & furder time for fulfiling the [2^d] w^ch Js not Yet lapsed, nor [torn] that agreem^t Sued.

And that our Law doth allow of other evidence Jn case of Life & death to be equiuolent to two witnesses, & those of weight in that case, as in folio 15:8. the euidence in this case, wher ther is two euidences beside y^e act aperinge must needs be legal.

[Final note:]

for his pretene^d Intres^t jn trut^h I Know it not. nor hath he at any time mad^e it out to mee.

The substance of this Answer is repeated in a petition by Paine to the Court of Assistants (S. F. 1362.5). Also, on the reverse side of the copy of the disputed collateral agreement (S. F. 1362.7) reproduced above, Paine’s pleas are to be found once more, substantially as in his Answer. (A note by Edward Rawson, Secretary of the Court of Assistants, informs us that these arguments on the reverse side of the agreement were “not read in the County Court nor this.”) The most interesting passage in the document declares:

Though an Attachment bee a legall demand of a positiue debt for w^ch consideration is rec^d it is not soe in a conditionall contract without the condition performed or tender of the consideration which should give being or bindeing virtue to the contract that is but in fieri, a thing doing & not done, nor doth the Law inforce any man to pay mony to another for nothing consequently it allowes not of such an obligation that bee bindeing to the one party & the other to whome that party is bound to bee free, law being but the ballance or distributive power of Equity

Paine also says that the collateral agreement of 1667 was intended “in way of Easement” of the 1664 specialty, “Mr. Hutchinson being sensible the Sale pretended by my [his?] Father would not prove soe & that it was on higher terms then any part had been sold at.” The exorbitant price alleged was evidently the fraud in the 1664 transaction of which Paine frequently complains, and his contention is that the parties substituted the fairer terms of the 1667 agreement, which gave Paine and his associates a longer time for the delivery of the iron.

The action of the Court of Assistants on the appeal (Records, i. 28) is recorded as follows:

Eliakim Hutchinson plantiff ag^t John Payne deffendant in an action of Appeale from the virdict of the Jury & County Courts Judgm^t . . . the Jury . . . found a speciall virdict i e. If the Collaterial contract or Agreement betwixt m^r Eljakim, Hutchinson m^r olliuer purchis & m^r John Payne bearing date the thirtjeth of Janua^ry 1667: not prooved broaken doth according to law cut of or make voyd m^r John Paynes obligation to sajd m^r Hutchinson bearing date the 28^th of Decembe^r 1664 then wee finde for the now deffendant the Confirmation of the Judgment of the County Court at Boston & Costs of Courts But if m^r John Paynes first obligation standeth in force according to Law then wee finde for the now Plantiffe the reuersion of the former Judgment of the Court Appealled from w^th one hundred sixty nine pounds twelve shillings money according to obligation by bill & Costs of Courts The Court or Bench on Consideration of this virdict declared they found for the deffend^t.

This special verdict of the jury, which found for neither the plaintiff nor the defendant, but merely determined the facts making the original specialty good unless superseded, and left the rest of the case to the court, was in accordance with the law of the colony. On page 86 of the General Laws and Liberties, title “Jurors,” it is decreed that “if there be matter of apparent equity . . . the Bench shall determine such matters of equity.” Since, in contemporary English legal practice, a sealed obligation was such a solemn affair that a jury was not allowed to upset it by finding extrinsic facts like payment, fraud, or accord and satisfaction, the action of this jury in leaving the equitable defense—the collateral agreement—to the decision of the Bench is easily explicable.]

Collicot ag^t Sheafe

Richard Collicot the Assigne of L^t Richard Cooke in the behalfe & for the vse of Rebecca Hawkins wife of Thomas Hawkins & Attouny to her saide husband, plaint. ag^t Sampson Sheafe Defendt in an action of the case for witholding her just due of her right of thirds in the houses & Lands formerly her husbands mortgaged to m^r Thomas Thacher one part & another part to m^r Sampson Sheafe the which right the saide Rebecca by much perswations gave up her right to m^r Sheafe on condition to receive her part in mony when the house & Land were sold, w^ch were sold as ready mony for Five hundred & Seventeen pound wt^h other due damages according to Attachm^t Dat. January 20^th 1674 . . . the Jury . . . founde for the Defendant costs of Court.

[See Sheafe v. Hawkins, p. 1, and Hawkins v. Sheafe, pp. 275, 416, above. This case was reviewed at the April Court; see below, p. 564.]

Floyde ag^t Wright &^a

John Floyde Attourny to Henry Dispaw Senio^r & Henry Dispaw jun^r plaint. ag^t John Wright Esq^r John Geffard & Ezekiel Fogg, them or either of them Defendants in an action of the case for Five hundred pounds being the Forfiture of a bond of Lawfull mony of England bearing date the Eleventh day of the month of August 1673. & all due damages according to Attachm^t Dat. January: 6^th 1674. . . . The Jury . . . founde for the plaintiffs Forfiture of the bond & cost of Court, allowed by the Court Forty three Shillings & four pence.

Execucion issued Feb^ry: 5^o 167⅘

[See Massachusetts Bay Records, v. 35, and petition of John Giffard, based on that action, in S. F. 1420.]

Noyse ag^t Wayte

John Noyse in right as hee married one of the Executrixes of m^r Peter Oliver & in behalfe of the rest of the Executrixes & Executo^rs to the s^d m^r Peter Oliver deceased plaint. ag^t Marshall Richard Wayte administrato^r to the Estate of Nicholas Stevens deceased Defend^t in an action of the case for non payment of twelve pound four Shillings & four pence in mony, remaining due to the s^d Executo^rs & Executrixes for the acco^t of Moses Chaplain upon or according to the Summe proportioned by Cap^t Edw: Hutchinson & m^r John Richards as a Committee appointed by the Honored County Court for the same, out of the Estate of the s^d Stevens unto the saide Executo^rs & also confirmed by the s^d County Court for a division & Satisfaction to bee made as aboues^d to the Executo^rs & other due damages according to Attachm^t Dat. January 21^th 1674. . . . The Jury . . . founde for the plaint. twelue pounds four Shillings & four pence in mony & cost of Court allow^d by the Court twenty five Shillings & ten pence. Execucion issued Feb^r 24^o 167⁶/₇

Ordered to direct Execucion to the Marsh^ll Gen^ll [290]

Jewett ag^t Rawson &^a

Jeremiah Jewett Sonn & heire to Joseph Jewett of Rowley deceased & Executo^r with Philip Nelson to the Estate of the s^d Joseph Jewett deceased plaint. ag^t Edward Rawson & Bozoon Allen who was his Attourny Defendant^s The plaint. in failure of process was Non Suited, the Attourny onely being Attached & costs granted to Bozoon Allen Nine Shillings.

Smith ag^t Decrow

Benjamin Smith plaint. ag^t Valentine Decrow Defend^t in an action of the case for the saide Decrow his not delivering unto the saide Smith a just & true account with the produce thereof of the two thirds of the Earnings of my two horses & a cart for the space of about one yeare & Five months accounting from 31^o of October. 1671. untill the Latter end of June. 1673. that the saide Decrow went with the saide Cart & horses & hee was to have one third of the Earnings for his Labor & the saide Smith two thirds thereof of the saide Cart & horses & due interest for the forbearance of his mony & other due damages according to Attachm^t Dat: October. 27^th 1674. . . . The Jury . . . founde for the Defendant costs of Court, & allowed by the Court, thirty Shillings & two pence.

Atwater ag^t Balston

Joshua Atwater plaint. ag^t Jonathan Balston Senio^r Defend^t in an action of the case for non paiment of twenty Seven pounds nine Shillings & nine pence in mony due upon ballance of account due by booke, with due interest for the same & due damages according to Attachm^t Dat. January. 19^th 1674. . . . The Jury . . . founde for the plaint. twenty Seven pounds Nine Shillings & nine pence in mony & costs of Court, allowed by the Court twenty six Shillings eight pence. m^r Joshua Atwater personally appeared in the office Aprill: 17^o 1675 & acknowledged hee had received full Satisfaction for this judgement from Jonathan Balston. as Attests J: A: C

Batt ag^t Harris

Paul Batt plaint. ag^t John Harris Defend^t in an action of Appeale from a judgement of the Worshipfull Edw: Tyng Esq^r on the 7^th Decemb^r 1674. . . . The Jury . . . founde for the Defend^t confirmacion of the former Judgem^t & costs of Courts. The plaint. appealed from this Judgem^t to the next Court of Assistants & the s^d Paul Batt principall in £5. & James Green & W^m Rawson as Sureties in 50^s apeice acknowledged themselves respectiuely bound to . . . prosecute his appeale . . . [291]

[Batt had been found liable by a Commissioner’s Court on 23 June 1674, and thence appealed (S. F. 1355.4). He was again tried by a Commissioner’s Court on 7 December 1674, and thence appealed (S. F. 1355.5). After this third defeat, at the hands of the County Court, he appealed to the Court of Assistants (S. F. 1355.6):

Resons of apeale from the Iudgment of the honoured County Court held in boston the Case depending and theire tryed betweene Iohn Harres and Paul Batt Vnto this honoured Court of Assistance.

1^o Where as the apealant did Earnstly plead for Anonsute at the County Court; Which hee Conceues ought to haue bin granted acording to Law, and practis of Courts, the apealant then prouing to the Court that hee Was Worangfuly Sued and condemned at the Worshipfull M^r Tings court, by R[eas]en: the Very Same case matter and thing Was and had been Sued at the Comitionars court; and the honowred court of asistance; and cast in that Superior court for Said Batt, Which cause could nott in Law be sued againe by S^d Harres; butt by an Acttian of Reuiew in the first court, and much les in and before a Single maiestrat, as apears by the Law title trayles folio 152: Sextion the first, and the actian now depending was nor is any actian of Rewew, apears by all the Records in the Case, and Likewise to proue that this Very case and matter of action is the Very Same that had bin first tryed in the Superior courtts as afore S^d apears by the Resons of apeale from The Comitionars Court N^o 1: Sited theire for Refusing to pay the Ballance of the acompt, Which apears to bee the Same Somme now Sued for and Very acompt word for word & Ballance Sued theire for N^o 2: doth agree with the atachment Verbatom Sued at court of asistance N^o 3: and at Comitionars court and by the Iudgment of the court of asistance N^o 2: all which Records proues, where as one of them was Sufisient to proue itt one and the Same Case and actian, and that in particular the acompt and Ballance Word for Word to bee Sued in two Distinckt Courts and not bee one and the Same Case and actian, and yett I Was Refused A nonsuet for Which I apealed:

2^d: Reson the apeland Consiues the Iury did not Consider his case nor paruse his papers, afectually by which they Very much mised a true Verdit and that frist it apears by the accompt hee Sues Vpon is Very false and Eronius and the Said acompt considered proues the Said harres in Batts debt, Vpon Ballance seauen Shilings, as apears by [2]: hh^ds and 2: Barells at 15^s leaft and Desposed Contrary to Said Batts order, nor Brings no Recept for them if left nor gaue any Credit for them but a Blank, and for Comision charged for Retornes one the Deb tar Sidd of his acc^ot of 15 £ 1s 3^d When all he Retorned was but 3: Barells of Sug^r: Which Come but to 7^li 8^s 3^d the Comision of Which: is but 7^s: 5:^d and hee charged 15^s for itt: Next hee charges Comision for Kiping in his hands or paing him Sealfe for freat Dwe at Iamaico, With my mony for £6:4^s 4^d and the Next post is 15^s 9^d Which is for Comision of Sayles in itt Sealfe and yett hee takes Comision for it againe As Retturnes, Which is Comision Vpon Comision Which Said 6^l 4^s 4½^d and 15^s 9^d charged for Rettornes and C[omision] taken of itt as Retornes is a grose Eror, With the Rest and it is to bee Wondered at, that any Vpon theire oaths Should Take no notise and Slight ouer Such Palpable and manefest Erors Which Errors makes Seauen Shilings Dwe to the apeallant Vpon Ballance of Said harres one acc^t, now Sued, the Which is more particularly his Errors Explained in my Resons of apealle N^o 5: [from] the Worshipfull m^r Ting’s Sentance to y^e honoured County Court, Which I hombly desier may bee by the Jentillmen of the Iury now Strikttly Exsamened and efectualy obsarued for the fainding Out the Errors a fore said, and Doing mee Right, and allso in the for [torn] former Resons is Sited and made out by Comen Rezon the Vncertantys and Varyations of m^r Taping and m^r Rabinson[s] oaths as to the Case that Speaking about fraight as aparticular thing and the Case now Depending Consists of one acompt of near about 40: particulars the Ballance of all Which is Sued for and not for fraight. had hee Sued for 14: or 15^s Dwe for fraight itt moaght Some thing Conca[r]ne theire Deposisions but not in this Case

Lastly I doe hombly Consiue that a Iury being Sworne to goe a Cording to Law and Euidence that if in case anonsute is pleded for before them to the bench and proued by Law and practis that the nonsute ought to haue ben granted as I Conseue my Case was and if the Bench Refuse the nonsute that then the Iury ought to Exsaming the matter Whethar the Play for a nonsute was good and if Soe they are to find for the party that the nonsute was Dwe unto for that the Jurys are as Well Judges of Law as the MaJestrats or Else Where fore are they Sworen to goe by Law as Well as Evidence and the Law is positiue as before Sited title tryel[s] folia 152 first Section that this Case Cannot Legaly bee prosecuted but by way of Reuio Which is not done as apea[rs] by the Case being brought beefore m^r Edward Ting from Whence the Case now Proceeds the Which I Referr to the Considration of this Honoured Court and Jentillmen of the Iury Whethar the Case can Legaly now Proceed Nott being Vpon Reuiew aCording to Law and practis of Courts, Thus humbly Crauing the premeses may bee Efectualy wayed by this Honoured Court and Jentillmen of the Iury for the Relife of Youre Most homble Saruant

Paul Batt

These Reasons were received Feb^ro 25th 1674.

per Is^a Addington Cler

Answer thereto was made by a woman attorney (S. F. 1355.7):

Elizebeth Harris Atorny to her husband Jn^o harris her Answer to Paull Batt his Resons of appeale from the honored County Courte held In boston vnto this honored Court of assistanc

1 where as hee ses hee had wrong dunn him by the worshipfull m^r Tyng and by the honored County Court In not grenting him a nonsute which ought to haue bin according to law. the same Case as hee pretends haueing bin tried before: for Answer wee doe affirm that this Case was neuer tryed before In any Court: and therefore no ground for A nonsute: had it bin tried before as he ses it had bin esy for him to haue produced the former atachment which wold haue desided the matter being Compared: with this atachment

2 Where as he supposeth the Jury did not Consider his case nor peruse his papers and ther for mist it In there verdict: and his Reson is because of the 2 hh and 2 bb Jn^o harris left In m^r Willises hand Contry to his order: In his former Resons he ses with out his order wee doe not well vnderstande what hee means In so saying: tis as much as to say that becose In^o harris had no order to leaue any of his goods that wer vnsold behind In Jemaco that ther for what hee cold not sell he ought to haue brout back againe which is verry evacional so to Reson for the fraite of thos cask back wold haue bin fiue tims more then there worth. but his saying hee gaue Jn^o harris no order to leaue any of his goods In m^r willess hand that were vnsold is falls for hee did giue him Exspres order so to doe although it were uerball: and had there bin need wee cold haue proued it: but tis not matterial whether he did or no as this case is sircomstanced: for thes goods of his were nothing but old dry cask In which had bin the appels on onions or sum of thos goods specified In the acoumpt which cask hee cold not sell and ther fore was forced to leaue them behind and what he did was the best way for the appelants aduantage: and for his aledging he shold haue brought a recept of there being left for Answer m^r willess was not at home when they were left In his custoty: and had hee bin there tis a question wether hee wold haue trubbeld him self to haue giuen a Resate for such pittifull things as thos cask were. and where as he Reckons Jn^o harris D^r 15^s for thos cask. John harris neuer bought any of him and if hee had hee wold not haue giuen half that price: because Jn^o harris giues him C^r after that rate for sum cask hee sould of his there fore hee wold force him to alow as much for old cask that hee cold not sell which is verry vnreasonable if Jn^o harris hath dunn him no wrong and hee might haue bin paide long a goe for those cask if hee wold haue Receiued it by m^r willess but nothing will doe but Jn^o harris must [out] set it In his a coumpt

for his Charging Jn^o harris with a falls accoumpt wee are loth to trubble the court to heare answer to such Resons hee gius accept there were more In them his paying frate Is as Real Retorns as any of the Rest and the practis of others In charging comicion In such case is well vnderstood wee suppose

for his aledging hee chargeth Comicion uppon comicion the acoumpt is uisable and that [s^d Erro^r] will esely be mannefest but Jn^o harris we suppos is as good Anacowmpt tent as himself

Lastly for his giueing his Judgment about the power of Juries In finding a nonsute although the bench doe not: tis the first time that euer wee heard such a thing asserted and at present doe not beleiue it. but leaue it to the honored court home it Consents: thus hoping this honored court will find that the apellant had no wrong neyther by the worshipfull m^r Tyng nor by the honored County Courte vnto home he apeled as hee ses hee had

I subscribe y^r honours most humble seruent

Elizebeth Harris

The Court of Assistants confirmed the former judgments and found for Harris 14s and 24s 4d costs. Records of the Court of Assistants, i. 28.]

Dafforn ag^t Holowell

John Dafforne plaint. ag^t William Holowell Defend^t according to Attachm^t Dat. January. 20^th 1674. The plaint. withdrew his action.

Russell &^a ag^t Smith

Thomas Russell & John Dafforne plaint^s ag^t John Smith Defend^t according to Attachm^t Dat. January 20^th 1674. The plaint. withdrew his action.

Bishop ag^t Gould

Nathaniel Bishop of Boston assigne of Thomas Bishop of Jpswich plaint. ag^t Ensigne John Gould of Topsfeild Defend^t The plaint. withdrew his action upon the Defend^ts confessing Judgement.

Briggs ag^t Cooke

Abraham Briggs plaint. ag^t Robert Cooke Hornbreaker Defend^t in an action of debt of twelve pounds Sixteen Shillings in mony due by bill & due interest & due damages according to Attachm^t Dat. Novemb^r 17^th 1674. . . . The Jury . . . founde for the plaint. two pounds Sixteen Shillings according to bill & costs of Court, allowed by the Court twenty two Shillings. 10^d.

Pearson ag^t Hilton

George Pearson plaint. ag^t William Hilton & Charles Hilton Defend^ts in an action of debt for Forty pound due to him as by a bill or writeing under theire hands doth appeare upon the accompt of theire Father m^r Edward Hilton late of Exiter deceased & for all due damages according to Attachmt Dat. 4^th Decemb^r 1674. . . . The Jury . . . founde for the plaint. Forty pounds according to bill & costs of Court, allowed by the Court, twenty nine Shillings & two pence.

Execucion issued June 23^o 1675.

Sheafe ag^t Atkinson

Sampson Sheafe plaint. ag^t Theodore Atkinson jun^r Defend^t according to Attachm^t Dat. January: 12^th 1674. The plaint. withdrew his Action.

Brattle ag^t Hoare

Thomas Brattle plaint. ag^t Daniel Hoare Defend^t according to Attachm^t Dat. Novemb^r 25: 1674. The plaint. withdrew his Accion.

Fogg ag^t Joy

Ezekiel Fogg plaint. ag^t Thomas Joy Defend^t according to Attachm^t Dat. x^br 15^o 1674. The plaint. in failure of giving Summons was NonSuited.

Fogg ag^t Williams

Ezekiel Fogg & Company plaint^s ag^t John Williams Defend^t according to Attachm^t Dat. Decemb^r 3^o 1674. The plaint. in failure of power or consent from the Company was NonSuited & costs granted the Defend^t Six Shillings & four pence.

[See note to third case below. This was a part of the interminable litigation about the Lynn Iron Works.]

Tho: Edsall ag^t Page

Thomas Edsall Turner plaint. ag^t Edward Page Canmaker Defend^t according to Attachm^t Dat. January 18^th 1674. The plaint. withdrew his action. [292]

Rawson ag^t Billing

William Rawson who married Anne the daughter of m^r Nathaniel Glover deceased plaint. ag^t Roger Billing senio^r Defend^t in an action of the case for refuseing to deliver & give possession to the saide William Rawson his third part of that Fourth part of the Farme whereon the s^d Billing now Liveth; as also refuseing to pay him his part of Rent due according to proportion since the Late m^rs Anne Glover deceased the Relict of the s^d m^r John Glover (w^ch Land was given by the Last Will & Testament of the s^d m^r John Glover deceased equally to bee devided amongst Four of his Sonns & theire heires forever; whereof the s^d William Rawsons Father in Law m^r Nathaniel Glover deceased was one of them & all just & due damages according to Attachm^t Dat. January 20^th 1674. . . . The Jury . . . founde for the Defend^t costs of Court, allowed by the Court nine Shillings & two pence. The plaint. appealed from this Judgemt to the next Court of Assistants & the s^d William Rawson principall in Five pounds & John Noyse & Paul Batt as Sureties in 50^s apeice acknowledged themselves respectiuely bound to . . . prosecute his appeale. . . .

[Another case respecting the Glover property; cf. Rawson v. Glover, p. 472, above.

S. F. 1350.6

Will^m Rowson his reasons of Appeall from the vardict of y^e Jury & Judgmt of y^e last County Court in Boston in y^e Case where in he was plantife in right of Ann his wife & Rodger Billings Defendant Humbly tendered to this Hon^rd Court of Assistants for his Releiue

first—because y^e Jury at y^e last County Court notwithstanding his Compleant Exprest in his Attachm^t and his farther manifestation of his Indubitate right and interest as own of y^e heirs of y^e late M^r Nathaniel Glouer sonn to y^e late Worshipfull John Glouer in and to y^e farm that Rodger Billings now posseseth with [In]trest in y^e rent and preuelledges there of Cep^t and detained from him by y^e sd Rodger Billings without showing or makeing it out that he had Any right or Leagall pouer deriued to him from one or Another yet y^e Jury found Ags^t him there fore hee Appealed in hope and not doubting of his Just releif for if Any person May Keepe Another out of his Just right without shewing Any ground why he doath soe then y^e Appeallant Conseaus noeman Can long injoy his owne: vnles his sword be longer then his soe detaining

2ly—That not withstanding y^e Appeallants plain demonstration that his Hon^rd Grandfather y^e late m^r John Glouer by his last will & testiment Leagally prooued in y^e Ho^rd County Court whearin hee giues all his Esteat boath reall and parsonall after his funerall discharged and An[d] eLeuen hunderd pounds Legacies giuen to his sonns to M^r Thomas Glouer 140 pounds to M^r Habakkuck Glouer 100 pounds & after his wifs deseas 200 pound[s] Apeece to M^r John & M^r Pelathia Glouer and sum other small Legassies which he Accomp^ted as his Depts becaues he had promised them for other Depts hee had none, left all to his worthey beloued wife & relick^t Leaueing too larg farms one that y^e defendant posseseth Largly stockt that yealeded with y^e stock and Corn in & on it to y^e Vallow of 428 pounds 16^s 100 pounds parrannum Another good farm Little inferior to y^e formmer with A good stock Vpon it to y^e Vallow of 154 pounds 15^s 4^d that yealded 30 pound[s] parrannum with all his Depts & Moueables to her duaring her life and to paye his Depts & Legassis his Depts owed hime Amounting to 600 pounds 17^s 5^d his Leather shoos hids Corn in his hous at horn & other moueables Amounting to 1219 pounds 4^s 6^d and though hee Ecknowledgeth his Hon^rd Grandmother was A prudant frugall & pious gentle woman as he haith heard and partly knoweth as Most in y^e town did (Liued spearingly & beneath herself yet Liueing with his onnckle Habakkuck & his onnckele John Liueing in y^e hous with her to y^e Amazment of him self & all that hear of it y^e stock of boath farms Corn & all y^e y^e hides & other Moueables with one of y^e farms sould and all Made Away and not as yet Known by whom or houe [ ] and all Amicable tenders and Endeuer[^a] to obtain his Just part of y^e farm left yet Kept out of it Vnder pretenc of Depts to be paid though neuer yet Any brought in to the inuentary by his Hon^rd & pjous Grandmother who [best] Knew Depts if Any had been, and tooke her Sollom oath that it was A true inuentari of her husbands Estate & when shee Knew More Shee would discouer it; and Liueing About 15 years After neuer discouered Any; the Appeallant hopes none of his vncles within y^e Least Call her fidelity and good Contianc into question; and had there been Any Depts y^e will of M^r John Glouer prescribes y^e way hou they shall be paid. namely out of his Depts & Moueabls & not otherwise which Depts and Moueabls as to inuentary Amounted to 2400 pounds when y^e Depts oed by him Came but to 1100 pounds and Lands intajled Known not Liable to pay Depts till y^e whoall 2400 pounds paid out or Com short as y^ey did not and what Appears not is not, beside y^e Defendants owned in Couart & soe did his vncle M^r John Glouer that y^e Appeallant was an heire in part & yet y^e Jury found Against him for all which he Appeals & hopes & doupt not in y^e least but by y^e Justis of this Hon^rd Court & Jury to haue his Just releefe soe leueing him self & Caues to y^e wisdom of god and this Hon^rd Court for A Just determination hear in subscribing himself

Yo^r Hon^rs Humble saruant

William Rawson

Boston the 24 of february 1674

These reasons were received Feb^ro 25^th 1674

per Is^a Addington Cler

[Endorsed:]

W^m Rawsons Reasons of Appeale ag^t Roger Billing

S. F. 1350.5

Hudson Leveret as he is Atorney to Roger Billings: his ansuer to m^r William Rawson reasons of appeale

To the furst I answer that where as the plantif maketh Such a stue about the farmes and Estate of his Grandfathers, it is well enough known and appeareth by the will that m^rs Glover was late executrix and [torn] [had] power in herselfe to dispose of all in her life time, and did dispose of most of the moveable estate while she liued, and a great deale of them went to pay debts and much she lost many waies and it is like she disposed of Sum amongst her Children and it is thought most to her Son m^r Nathaniell Glover for he had a great part of y^e drye hides which by the Inventory amounted to a great Sum. besides many Scores of bushells of Corne and many other things of Considerable vallue whereof there is good testimoney and what m^rs Glover left her Son m^r John Glover hath administration granted him as by record may appeare, and from him the sd John Glover [der]iues his right as tennant to the farme. But yet if m^rs Ann Glover had not disposed of the Moveable estate but had left it with m^r John & m^r pellatiah Glover (which she never did yet the[re] would be 400 pounds for the foresayd Jn^o and pelletiah to receaue after there Mothers death and that by the will not out of y^e other goods in the Inventorye, but out of the two farmes before there be any division without any preiudice to the two hundred pound they should haue receaued before there mothers death, yet they receaued nothing of it in that time

In the Second place whereas m^r Rawson doth not onely intimate but affermeth y^e there is estate nough besides the farmes to pay all Legasyes and debts, yet it is not soe though m^r Rawson afferme it and wee doe not at all beleeue that the Court will take it for granted because m^r Rawson sayes it is Soe, for that we vtterlye denie but if m^r Rawson can find it the administrator is willing it shall goe as far as it can towards payeing of the debts and legasyes. yet notwithstanding there is Soe much estate in m^r John Glovers Inventorye. m^r John and m^r pellathia never had it nor the disposal of it, neither did they receaue anything of the 200 pound in there mothers life time and as for the estate in m^rs Glover inventorye it is but a heape of lumber and old household stuff and Soe much worne that one can not well use it any longer and the greatest part of it is debts where of there is nothing receaued and is doubtfull what wi[ll] euer [g]et receaued of it, and therefore doth nothing to the payeing of debts or legasy[es]

In the therd place as for the rent of the farme it hath don but little sence there Mothers death neither haue they receaued as yet one hundred pound, by reason that necessarye reparations and buildings haue taken vp Soe much rent further More wheras m^r Rawson sayth that Goodman Buillings shoaeth no write he hath to detaine the farm from him I answer if m^r John and m^r pelletiah are by the will to receaue the[re] legasyes out of the farme before m^r Rawson or any else haue the[re] shares in any division, then They haue righte to detaine the farme from him, But if they [torn] besides are to receaue any legasyes or debts before m^r Rawson haue his share (the[n)] I Confess I doe not conseaue it to be right to detaine the farme from him. And whe[n] m^r Rawson Sayth that m^rs Glover lived with her Son m^r Habbucuk it is not Soe for they liued a Sunder euer Sence m^r Glouers death and it was n[ot] m^r Habbucek nor m^r John Glover that wrought vpon there Mother to Sell the farme for they in themselues were avers to it but there mother petendeing sh[e] hat great debts to pay in England and that she could not tell how to pay them without selling that farme, for that reason they thought themselues bound in duty to there Mother to yeald vp there rights by Signeing that deed of Sale that Soe there mother might haue Some Spetiye to pay the[r]e old England debts with, and doubtless it was intended by there fathers will soe. and Maio^r Atherton was then there mother cheifest counsellor and did adviss and Counsell her to Sell that farme that Soe she might inabled to pay Some old England debts

Lastly whereas the plantiff sayth that his vncle John owned him to be and heire, vncle John vtterly dissowned it, but how euer that will not make him to be and heire, if he be not and heire. and if the farme be intayled as the plantiff doth grant and Say it is (then according to y^e Custome of old England) then the Eldest son m^r Nathaniell Glover must be heire, and it can not rationally thought to be the mind of him that gaue It by will that it should be devided equally among all the children for euer for then in short time it would come to Soe many divisions that it would be worth nothing to any of them theref [ore] I can not See how he will proove himselfe and heire Soe not at all doubteing but this honored Court of assistance and th^e gentlemen of the urye will see iust Cause for the Confermeing of the iust and right iudgmt of the late County Court Soe I rest and Subscribe my Self you^r obedient

Servant and faithfull Subiect

Hudson: Leverett

The Court of Assistants (Records, i. 26) confirmed the former judgment. But see pp. 656–60, below.]

Leverett ag^t Fogg

Hudson Leverett assignee of John Giffard plaint ags^t Ezekiel Fogg Skinner Defend^t in an action of the case for non performance of the condition of an Obligation on a bond of Ninety pounds good & Lawfull mony of England, as under the hand & Seale of saide Fogg may appeare, bearing date the 21^th day of June. 1673. & all due damages according to Attachm^t Dat: 9^br 25^th 1674. . . . The Jury . . . founde for the plaint. Ninety pounds good & Lawfull mony of England according to bond & costs of Court: Vpon request of the Defend^t the Magistrates chancered this bond to Forty Four pounds Fifteen Shillings & seven pence good & Lawful mony of England, and costs of Court, allow^d by the Court thirty two Shillings & 8^d

Execucion issued Aprill: 10^th 1675.

[Fogg’s picturesquely worded petition from jail, and the continuation of this case will be found under Fogg v. Williams a year later, below, p. 656.]

Long ag^t Paul

Joseph Long plaint. ag^t Samuel Paul Defend^t in an action of the case for witholding & refuseing to give possession of a peice of Land lying in the great Lotts in Dorchester of about three acres more or Less of Upland & Meadow, bounded upon Enoch Wiswall Southward or Southeast; on the land of Sam^ll Rigby northward & on the Mill Creeke eastward & is part of the great Lott of Joseph Long his Father & now the just right [293] & proper inheritance of the plaint. these w^th all other due damages according to Attachm^t Dat. January 20^th 1674. . . . The Jury . . . founde for the Defend^t costs of Court, allow^d by the Court Fifty Five Shillings eight pence.

m^r Oxenbridge &^a ag^t Rice

M^r John Oxenbridge, m^r James Allen, m^r Anthony Stoddard & m^r Humphry Davie Trustees & Executo^rs to the last Will and Testament of Richard Bellingham deceased plaint^s ag^t Nicholas Rice of Reding Defend^t in an action of debt for non paiment of Forty pounds for two yeares Rent for a Farme at Winnisimmet payable in March. 1673. 1674. w^th all due damages according to Attachm^t Dat. Decemb^r 1^o 1674. . . . The Jury . . . founde for the plaint^s Forty pounds of w^ch Five pounds to bee paide in Silver & costs of Court, allow^d by the Court, thirty six Shillings & four pence; Joseph Belknap & m^r Richard Wharton as Attournys & in behalfe of the Defend^t appealed from this Judgem^t unto the next Court of Assistants & themselves as principalis in Eighty pounds & m^r Jn^o Saffin & Tho: More as Sureties in 40^li apeice, acknowledged themselves respectiuely bound to . . . prosecute theire appeale . . .

[Another Governor Bellingham’s will case. Cf. Records of Court of Assistants, i. 24.]

Hudson ag^t Smith

Cap^t William Hudson plaint. ag^t Elizabeth Smith Widdow & Relict of Francis Smith sometime of Boston deceased) Defend^t according to Attachm^t Dat. Janur^o 19^o 1674. This Accion is continued, by order of Court untill the next Court of this County.

[See below, p. 592 for the continuance.]

Legg ag^t Curtis

Daniel Legg plaint. ag^t Ephraim Curtis of Sudberry Defend^t in an action of the case for witholding a parcell of goods left in his hands at Nevis by the s^d Daniel Legg & all due damages according to Attachm^t Dat. Decemb^r 24^th 1674. . . . The Jury . . . founde for the Defend^t costs of Court, allowed by the Court, twenty Shillings 6^d [294]

Greenlife Tappen & Pemerton Admonish’t

Enoch Greenliffe jun^r Joseph Tappen & Thomas Pemerton being all three bound over to this Court, to answer what they should bee charged with for affronting & violently thrusting of Abigail Taylor off from her horse on the roade between Boston & Roxbury; Vpon hearing of the case & receiving information under the hand of s^d Abigail Taylor, wherein Shee doth acknowledge herselfe Satisfied & acquits them from any demand of damage The Court admonish^d them ordered them to pay Fees of Court & soe discharged them.

Joseph Jndian Nesquin Sentenced

Joseph Jndian Nesquin convict in Court by his own confession of breaking up the house of John Tucker in Hingham in the night after nine a clock & drincking & spoyling his Sider valued at six Shillings: The Court Sentenced him to bee branded in the Forehead with the Letter. B. & to pay unto the s^d Jn^o Tucker Eighteen Shillings in mony & unto John Prince Constable of Hingham twenty Four Shillings in mony for his charges & Fees of Court & prison, & in case hee pay not the same that hee bee sold to Barbados for a Servant standing committed untill the Sentence bee performed.

Grandjury dismiss’t

The Grandjury brought in theire bill of presentm^ts Janur^o 27^o & were dismissed for this Court.

Gould to Bishop

John Gould of Topsfeild acknowledged a Judgem^t against himselfe & Estate to Nathaniel Bishop of Boston as assigne of Tho: Bishop for thirty one pounds ten Shillings in mony according to bond bearing date Octob^r 3^d 1674.

Execucion issued March: 11: 1674.

Woodbridge & Weav^rs bond for Arbitracion

Thomas Woodbridge & John Weaver came into Court & declared that they had agreed to refer all matters of difference whatsoever that are depending between them unto the issue & award of the Hono^rd John Leverett Esq^r Gov^r m^r Peter Lidget & m^r Thomas Deane as Arbitrate^rs & all former Awards to bee voide & did oblidge themselves each unto the other in the Summe of One thousand pounds mony to stand to & abide by the Award of the aforesaide three Arbitrato^rs or any two of them, being given in to the saide partys or either of them under theire hands & Seales on or before the 10^th of February next ensuing the Hono^rd Govern^r being to appoint time & place of meeting & the s^d partys doe oblige themselves to attend time & place according to the appointment of the Gov^r & then & there to declare theire severall cases. Entred Janur^o 28 1674.

Theodora Oxenbridge her Guardian

Theodora Oxenbridge appeared in Court & made choise of m^r Humphry Davie to bee her Guardian, which hee accepted & the Court approved of; provided hee give in bond according to Law.

Martha Minot her Guardian

Martha Minott daughter of the Late John Minot made choise of m^r Arthur Mason as her Guardian w^ch the Court approved of hee accepting thereof & giving in bond according to Law. [295]

Division of Blagues Estate

This Jndenture made the twenty Eight day of January in the yeare of o^r Lord One thousand Six hundred Seventy & Four: Between Elizabeth Blague Relict of Henry Blague late of Boston in the County of Suffolke in New-England Brickmaker deceased on the first part, Phillip Blague of Boston afores^d Brickmaker on the second part, Nathaniel Blague of Boston afores^d Brickmaker of Boston afores^d Brickmaker on the third part: Eliatha Blague of Boston afores^d Brickmaker on the Fourth part, Joseph Blague of Boston aforesaide on the Fifth part, Elizabeth Wheeler of Boston aforesaide Widdow on the Sixth part & Martha Blague of Boston aforesaide Spinster on the Seventh part, all of them Children of the abouenamed Henry Blague deceased & Elizabeth Blague party to these pu^rsents. Witnesseth, that whereas the abouenamed Henry Blague in the yeare of our Lord: 1662 dyed intestate & the Countie Court for Suffolke aforesaide granted Letters of Administracion upon the Estate of the saide Henry unto the saide Elizabeth Blague Relict of the saide Henry: And whereas the saide Children of the saide Henry & Elizabeth are now grown up: And the saide Administratrix being desirous that all the saide Children should now have the full of theire respective portions paide & delivered to them out of the saide Estate & that Shee the s^d Elizabeth as Administratrix might bee discharged therefrom: Each of the s^d partys for him & her selfe respectiuely, & for each of theire respective heires Executo^rs & administrato^rs doe Covenant promiss & grant to & with the other theire heires Executo^rs administrato^rs & assignes in manner & forme following (that is to Say).

Jmp^rs that the saide Phillip Blague 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 hereafter have hold possess & enjoy as his & theire proper Estate of inheritance in Fee simple & in full of his portion from the saide Estate, one Brickhouse scituate and being in Boston adjoining to the Street that Leades from the water mill towards Century haven; & also the Land whereupon the saide house doth stand, & a parcell of Land adjoining thereunto being butted & bounded South East by the aforesaide Street, Southwest by the Land of Nathaniel Blague, Northwest by the Mill pond, North East by the Land of Richard Collicot & measureth at the Front or saide Street Seventy nine foote & an halfe. & at the reare Seventy foote; with all profits priviledges & appurtenances that doe shall or may belong or appertaine to the same or any part thereof.

Jtem, that the saide Nathaniel Blague 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 hereafter Lawfully peaceably & quietly have hold possess & enjoy as his & theire proper Estate of inheritance in fee simple & in full of his portion from the s^d Estate, one moity or halfe part of the now dwelling house of the saide Elizabeth Blague. (Viz) the Northeast part thereof; which saide house is scituate towards the Northerly end of the s^d town of Boston & containing one Cellar one Low roome one Chamber & one garrat; with halfe the Chimnys in the s^d house, with the free use pu^rviledge & benefit of the Entry & Stares in the s^d house, with free Liberty of ingress egress & regress to & from the same; with all the Land whereupon the saide part of the [296] saide house & Chimnys doe stand, & all the Land that lyeth betwixt the saide part of the saide house & the Street; & also all that peice or parcell of Land that Lyeth at or adjoineth to the North East end of the saide house & is bounded at the Front or Southeast end by the saide Street, and Southwest partly by the end of the saide house & partly by the Land that lyeth betwixt the saide part of the saide house & the Street & partly by the Land of the s^d Elizabeth Blague rangeing down in a direct Line from the saide Street by the North East end of the saide house to the Northerly corner of Phillip Squires Land, Northwesterly by the Mill pond & Northeasterly by the Land of Phillip Blague & measureth at the Front Sixty & Six Foote & at the reare Seventy Foote Together with all profits priviledges Easements & appurtenances that doe shall or may appertaine or in any wise belong to the same or any part or parcell thereof.

Jtem, that the s^d Eliatha Blague 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 hereafter quietly & peaceably have hold possess & enjoy as his & theire proper Estate of inheritance in Fee simple & in full of his portion from the saide Estate, all that messuage or dwelling house that is scituate & standing in Boston & adjoining to the Street that Leades from the second meeting house towards Century haven; with all the Land whereupon the saide house doth stand, together with the free use benefit & pu^rviledge of the well that is in the Land that belongs to the s^d Estate there: as also the free use of a passage of five foote in breadth that Leads from the saide Street by the South East side of the s^d dwelling house into that Land that belongs now to the s^d Estate (which s^d passage is to lye in common to all that are or hereafter shalbee proprieto^rs of the s^d Land) Together with a peice of Land adjoining to the Southwest end of the s^d dwelling house; which measureth from the Southwest end of the s^d house twenty five Foote in a direct Line; & is bounded on the Northwest side by the Land of James English & on the South East side by the aforesaide passage or alley; & also all profits pu^rviledges Easements & appurtenances that doe shall or may appertaine or in any wise belong to the same or any part thereof.

Jtem, that the s^d Elizabeth Blague, her heires Executo^rs administrato^rs & assignes shall & may by force & vertue of these pu^rsents from time to time & at all times for ever hereafter quietly & peaceably have hold possess & enjoy as her & theire proper Estate of inheritance in Fee Simple, one moity or that halfe part of the house wherein Shee now dwells, together with all the Land that appertaines to the same bounded on the Northeast by the Land of Nathaniel Blague, Southwest by the Land of Phillip Squire. And also all that peece or parcell of Land which is bounded on the North by the saide Street that Leads from the second meeting house in Boston toward Century haven & Southerly by the Land of Ephraim Hunt, Easterly by the Land of William Norton & westerly partly by the aforementioned passage or Alley & partly by the Land of James English; together with the free use & pu^rviledge of the aforesaide passage & well & all other profits pu^rviledges & appurtenances that doe shall or may belong to the saide parcells of Land or houseing or either or any of them, or any part of them or either of them.

Jtem, that the s^d Elizabeth Blague her heires Executo^rs administrato^rs or assigns or some of them shall pay or cause to bee paide unto the abouenamed Joseph Blague his Executo^rs or assignes the full & intire Summe of thirty pounds of Lawfull mony of New-England at such time when the s^d Joseph shall attaine the full age of twenty one yeares; w^ch saide Summe hee hereby accepts of as the full of his portion from the s^d Estate. [297]

Jtem, that the s^d Elizabeth Blague her heires Executo^rs administrato^rs or assignes or some of them shall pay or cause to bee paide unto the abouenamed Elizabeth Wheeler her Executo^rs or assignes the full Summe of thirty pounds of Lawfull mony of New-England within the space of Six monthes next after due demand made of the same; which s^d Summe the s^d Elizabeth Wheeler doth hereby Engage to accept as the full of her portion & of all other demands from the s^d Estate.

Jtem, that the s^d Elizabeth Blague her heires Executo^rs administrato^rs or assignes or some of them shall & will pay or cause to bee paide unto the abouenamed Martha Blague her Executo^rs or assignes the full & just Summe of thirty pounds of Lawfull mony of New-England within the space of six months next after due demand made of the same; which s^d Summe the s^d Martha Blague doth hereby Engage to accept in full of her portion & all other demands from the saide Estate.

Jn Witness whereof the partys abouenamed have hereunto Set theire hands and Seales the day & yeare first aboue written.

Signed Sealed & delivered by the abouenamed Elizabeth Blague	Elizabeth Blague & a Seal. her // marke
Phillip Blague, Nathaniel Blague	Philip Blague & a Seal.
Eliatha Blague, Elizabeth Wheeler, Martha Blague & Elizabeth Blague as guardian to the abouenamed Joseph Blague in the pu^rsence of us.	Nathaniel Blague & a Seal.
	Eliatha Blague & a Seal.
Andrew Newcombe	Elizabeth Blague guardian to Joseph Blague her // marke & a Seal.
John Hayward scr.	Elizabeth Wheeler her // marke & a Seal.
	Martha M Blague her marke & a Seal.

Joseph Blague appeared in Court & made choise of his Mother Elizabeth Blague to bee his Guardian which Shee accepted & the Court approved of: And all the persons Subscribing appearing at the same time & acknowledgeing theire hands & Seales & this Instrument to bee theire act & Deed The Court declared theire approbacion thereof & ordered it to bee

Recorded in the Court Booke. January 29^o 1674 @

as Attests Js^a Addington Cler

Wheelers Receipt

Received this. 30^th of January: 167⅘ of my mother Elizabeth Blague of Boston in New-England Widdow the Summe of thirty pounds in currant mony of New-England; which is the full due of my portion from the Estate of my Father Henry Blague deceased. I say Rec: by mee.

Witness

the marke //of Elizabeth Wheeler

the marke //of Phillip Squire

Nath: Blague

Elizabeth Wheeler acknowledged the abouewritten to bee her act & Deed Feb. 3^th 1674. before

Edward Tyng Assist. [298]

Sam^ll & Stephen Minots guardians

The Court appoints Ensigne Richard Hall of Dorchester to bee guardian to Samuel Minot & Daniel Preston Sen^r to bee guardian to Stephen Minot, being both of them Sonns of the Late John Minot of Dorchester deceased untill they come of age to choose for themselves.

Norman Sent^a

Thomas Norman being bound over to this Court to answer for speaking reproachfully & contemptuously of the Governo^r Saying that old blue beard would stand by him or words to that purpose (which words blue beard relateing to the Governo^r) hee doth not deny; & being called to answer for the same: The Court (upon the hearing of the case & what himselfe acknowledged therein) doe Sentence him to bee whip’t with ten Stripes or to pay Five pounds in mony as a fine to the County according to Law standing committed untill the Sentence bee performed.

Harris Fin^d 5^li 2: 6 Respited

Joanna Harris being presented by the Grandjury for Selling of ale at three pence a quart without Licence & being called to answer for the same, Owned the presentment: The Court Sentenced her to pay Five pounds in mony as a fine to the County according to Law & Fees of Court Standing committed untill the Sentence bee performed. Vpon her petition The Court respited her fine till farther Order.

Cozens Fin^d 5^li 2: 6.

The wife of Jsaac Cozens being presented by the Grandjury for selling of Ale at three pence a quart without Licence & being called to answer for the same, Owned the presentmt The Court Sentenced her to pay Five pounds in mony as a fine to the County according to Law & Fees of Court, standing committed untill the Sentence bee performed.

Hemaway Sentenc^d

Ruth Hemaway convict by her own confession in Court, of committing Fornication & having a bastard Childe; which Shee brought into Court & charged Edward Peggy both in the time of her travail & upon her Oath in Court to bee the Father thereof: The Court Sentenced her to bee severely whip’t with twenty Stripes & to pay Fees of Court Standing committed untill the Sentence bee performed.

Peggy Sentenced

Edward Peggy being bound over to this Court to answer for his committing Fornication with Ruth Hemaway Shee having an illegitimate Childe & constantly affirming hee was the Father thereof both in the time of her travail & making Oath thereof in Court: The Court declareth the s^d Peggy to bee the reputed Father according to Law of the Childe Lately born of the body of the saide Ruth Hemaway & Sentenced the s^d Peggy to pay two Shillings & Six pence per weeke in money towards the maintenance of the saide Childe from the time of its birth till the Court take farther order & to pay charges of prosecution & Fees of Court standing committed untill hee give Security for the performance of this Sentence. [299]

Francis Sentenc^d

Richard Francis being committed to prison till this Court to answer for his disposeing & making sale of Caleb Bleasse for Five yeares unto Matthew Edwards of Redding in a way of deceit & cozenage, hee having noe power soe to doe, for whome hee received of saide Edwards Seven pounds in mony: Vpon a full hearing of the case & due consideracion thereof The Court Sentenc^d the s^d Francis to bee whip’t with twenty Stripes or to pay Five pound in mony as a Fine to the County & to pay unto Caleb Bleasse Fourteen pounds in mony paying Fees of Court & prison standing committed untill the Sentence bee performed.

Dan^ll Turill jun^r Fin^d 5^li

Daniel Turill jun^r being presented by the Grandjury for taking away an Attachmt from the Marshalls Deputy after it was served upon John Turill whereby the Law was obstructed & the persons concerned damnified: The presentment being called the s^d Turill appeared, and Vpon hearing of the Evidences & proofes in the case & consideracion of the same, The Court Sentenced the s^d Daniel Turill to pay Five pounds in mony as a fine to the County & charges of prosecution & Fees of Court standing committed untill the Sentence bee performed

Attachmt Ordered ag^t Northy &^a

John Northy & his wife & William Chamberlain jun^r of Hull making default in appearance to answer theire presentment according to Summons The Court ordered an Attachmt to issue forth for them ag^t next Court of this County

Hall & his wife Fined 5^li

Ephraim Hall & Sarah Rand (now his wife) convict by theire own confession in Court of committing Fornication before marriage: The Court Sentenced them to bee whip’t: i. e. the s^d Ephraim w^th Fifteen Stripes & the s^d Sarah with ten Stripes or to pay Five pound in mony as a fine to the County & Fees of Court standing committed untill the Sentence bee performed.

Carr Sentenced

Thomas Carr convict by his own confession in Court of committing two burglarys upon two severall Sabbath dayes: Viz: in breaking into the dwelling house of m^rs Elizabeth Powning upon one Sabbath day & taking from her a considerable Summe of mony She affirmeth to value of Six pound; & in breaking into the dwelling house of Mary Lyndon upon the next Sabbath & taking from her a considerable Summe of mony, Shee affirmeth to value of thirteen pound Five Shillings seven pence: Vpon consideracion hereof The Court Sentenced the s^d Carr to bee branded in the Forehead with the Letter B & to have one of his eares cut off & to pay treble damages to the persons from whome hee stole & in case hee make not payment that hee bee sold to make Satisfaction & to pay Fees of Court & prison standing committed untill the Sentence bee performed.

Lucath Grafton & Morrice Sentenc^d

Henry Lucath Servant to m^r Tho: Brattle, W^m Grafton Servant to Thaddeus Macarty being committed to prison for stealing severall goods from theire s^d Masters. & Edmund Fitz Morrice Living w^th one Humphrys for being a receiver & disposeing of the goods by them Stol’n: Vpon hearing of what themselves acknowledged [300] & what was proved in the case The Court Sentenced them to bee whip’t with Fifteen Stripes apeice & to pay treble damages to the partys from whome they stole, each of them to pay his proportion or third part thereof: Viz: to m^r Tho: Brattle Eighteen pound three Shillings, to m^r MacKarty to m^rs Hanna Savage Fifteen Shillings, paying Fees of Court & prison standing committed untill the Sentence bee performed.

[Order about Fogg]

The Court desires & appoints Cap^t Edward Hutchinson to prosecute & implead Ezekiel Fogg for his severall misdemeano^rs for which hee stands bound over to this Court.

Adjournment

The Court adjourned from Saturday 30^th of January to Feb^ro the 4^th being thursday at nine a clock.

February 4^th 1674 @

The Court met according to Adjournment.

Sam: Bridghams Guardian

Samuel Bridgham appeared in Court & made choise of Jonathan Bridgham his brother to bee his Guardian which hee accepted & the Court approved of; hee giving in bond according to Law.

Hawkins Sentenced

Mary Hawkins convict in Court of bold whorish carriages & having a bastard Childe & impudent & pernicious Lying: The Court Sentenced her to bee whip’t at a Carts tayle up from the dwelling house of John Hall in Boston formerly Ezekiel Foggs Lodgeing into the Town round about the Town house & soe to the prison with twenty five Stripes severely. & within one month following to bee whip’t again severely with twenty Five stripes, paying Fees of Court & prison standing committed untill this Sentence bee performed.

[S. F. 26634

To y^e hon^rd Court of Assistants now siting at Boston

The humble petition of Mary Hawkins Humbly sheweth

That where as yo^r pore petitioner hath through her very great sin & wickednes many ways agriuated, brought herselfe vnder the iust sentence of y^e Countie Court, one part of w^ch hath bene already inflicted vpon me & though I can not but owne yt I deserue not onely y^e other part to be inflicted, but by reason of my sin being so agreuated as It was, neuer to haue any countenans or fauour [showne] to me either from god or [man] yet considering gods wonderfull mercy to humble peniten [sinners] (though very hainous) calls vpon them to turne from the[re] wickednes & liue, & y^t y^e same spirit of Compashon he works in his people, imboldens me humbly to Supplicate yo^r hon^rs yt you wil be pleased to remitt yt other part of y^e punishment y^t is not yet inflicted, desireing y^e lord to worke still more & more in my soule a greater sence of my sin & giue me truly to repent & turne to him & to loath my selfe & sin w^ch I hope in [some] weaker measure I doe, thus leaueing my condition in y^e lords & yo^r hands praying for yo^r hon’s I subscribe myselfe

Yo^r Hon^rs pore afflicted prisoner

mary hokahans

In Ans^r to this peticon this Court Judgeth it meet w^th the Consent of the [County] Court to Grant hir request & Remitts hir second punishment ordering the keep[^r] of the prison to Dissmiss hir from y^e prison & set hir at liberty

past E R S]

Fogg Fined

Ezekiel Fogg convict in Court of wanton Lascivious & obscœne carriages with Mary Hawkins, the saide Mary now having a bastard Childe; the saide Fogg since the discovery of her being with Childe having encouraged her escape & endeavoured to conveigh her from the hands of Justice: The Court Sentenced him to pay ten pounds in mony as a fine to the County & remit the Forfiture of his bond for non appearance to ten pounds in mony more & to pay Fees of Court standing committed untill the Sentence bee performed.

Jeffery’s Guardian

John Jeffery Sonn of Gregory Jeffery Late of cape porpus deceased made choise of John Lux his Father in Law to bee his Guardian which hee accepted & the Court allowed of, vpon his giving in Security according to Law; which hee hath accordingly done.

Skelton purged by Oath

John Skelton of Dedham accused by Tom an Jndian & his Squaw for Selling them six quarts of Sider purged himselfe by his Oath that neither hee nor his wife to his knowledge sold any Sider to the saide Jndian or his Squaw for mony or otherwise. [301]

Tom Jndian Sentenced

Tom an Jndian being committed to prison for his abusive carriage in the house of John Skelton of Dedham in threatning his wife & Fighting with one of theire Neighbours whome they called in to theire assistance. The Court Sentenced him to bee whip’t with twenty Stripes & to pay Fees of Court & prison standing committed untill the Sentence bee performed.

Lorin Fined 5^l

John Lorin convict by his own confession in Court of making Loue to & engageing the affections of Mary Willis daughter in Law to John Man without her parents consent & after his being forewarned by them. The Court Sentenced him to give bond to the Treasure^r of the County of Suffolke for the payment of Five pounds in mony according to Law within Four monthes next following standing committed untill the Sentence bee performed.

Order abt^t Stanberry & Harris’s mony

Thomas Stanberry & Thomas Harris Butchers having a parcell of mony of theires Seized at Dedham by Cap^t Daniel Fisher as being exporting it out of the Colony; which mony was brought & deliue^rd in to the Court; but upon hearing of the case it not being proved that they were carrying it out of the Colony The Court ordered theire mony to bee deliue^rd them again.

Snellings Licence

Vpon certificate presented to this Court under the hands of severall persons of the benefit they have received by William Snelling in his administring of Physick: The Court doe allow & Licence the saide Snelling to practice physick.

The Court adjourned from thursday Feb^ry 4^th unto thursday Feb^ry 11^o at nine a clock.

Present

Simon Bradstreet Esq^r	Edw: Tyng Esq^r
February 5^th 167⅘

Potter to Tucker

personally appeared Richard Potter & acknowledged a Judgement against himselfe & Estate unto John Tucker for Forty Shillings mony 2:0:0

as Attests. Js^a Addington Cler

February 11^th 167⅘ @

The Court met according to Adjournm^t

Order to y^e Treas^r

The Court orders the County Treasuro^r to pay the charges of the meeting of Majo^r Tho: Clarke & the military officers of Boston about dividing the Companys which they expended at Cap^t Hudsons.

Morphey Sentenc^d

Bryan Morphey convict in Court by seu^rall Evidences of Stealing a paire of cloth breeches from William Toldervy valued at Sixteen Shillings. [302] The Court Sentenced the saide Morphey to pay unto the s^d Toldervay Forty eight Shillings in mony being that threefold restitution the Law requires & to pay Fees of Court & prison standing committed untill the Sentence bee performed.

Order ab^t Cornish

Hudson Leverett subAttourny to William Merrit Attourny of Thomas Taylor of Newyorke Feltmaker complaining to this Court that Thomas Cornish Servant to saide Taylor by Jndenture had absented himselfe from his Service & through threats & durance in the time of the Late Government of the place by the Dutch had obtained a discharge from his saide Master: Vpon hearing of what was presented by both partys & what was certified by the Worpp^ll Matthias Nicolls Maior of the s^d place, The Court doe order that the saide Cornish with the first oppertunity bee returned unto his saide Master & in the meane time bee Secured & the s^d Thomas Cornish principall in £:25 & Robert Orchard as Surety in £.25. acknowledged themselves jointly & severally bound to the Treasuro^r of the County of Suffolke on condicion that the saide Cornish should bee forth comming when demanded by authority in order to his being returned unto his saide Master.

Coake admonish’t

John Coake convict by his own confession in Court of breach & prophanation of the Sabbath in continuing drincking at the house of Christopher Crow in the afternoon of the Sabbath. The Court Sentenced him to bee admonish’t & to pay Fees of Court & prison standing committed untill the Sentence bee performed.

Earle admonish’t

Francis Earle convict as aboues^d The Court Sentenced him to bee admonish’t & to pay fees of Court & prison standing committed untill the Sentence bee performed.

Order ab^t Hawkins prison charges

In Answer to the petition of Thomas Matson prison keeper of Boston: The Court orders the County Treasuro^r, to pay the Keeper of the prison his charges in keeping of Mary Hawkins now a prisoner to bee paide according to Law.

This Court disolved February 11^th 167⅘

Present

John Leverett Esq^r Gov^r	Edward Tyng Esq^r Assist
February 16^th 167⅘

Curveath to Sandys

personally appeared Ezekiel Curveath & acknowledged a Judgement against himselfe & Estate unto John Sandys for Ninety three pounds thirteen Shillings in mony being the full ballance of Acco^t on file.

as Attests Js^a Addington Cler

Execucion issued Feb^ry 18^o 167⅘ [303]

Present

Simon Bradstreet Esq^r Assist	Edward Tyng Esq^r Assist
March 27^o 1675

Dinely to Legg

Personally appeared Fathergon Dinely & acknowledged a Judgement against himselfe & Estate unto Samuel Legg of Boston Marrin^r for one hundred pounds currant mony of New-England according to bill Dat. June pr^o 1673. Left on file; to bee paide unto the s^d Legg or to John Sandys as his Lawfull Attourny.

as Attests. Js^a Addington Cler

Execucion issued March 30 1675.

Arbitrato^rs Return in Holoway & Daffornes case

Whereas there was an action commenced by William Holloway & Stephen Butler against John Dafforne according to Attachmt Dated January 1674 & the plaintiffes withdrew theire Action upon agreement of a referrence of the case to the Honorable John Leverett Edward Tyng Majo^r Thomas Clarke Esq^rs & the Selectmen of Boston bindeing themselves each to other in the pœnalty of two hundred pounds to stand to & abide the award & determination of the aforenamed parties or the Majo^r part of them Vpon the hearing of the pleas & allegations of both parties in the case by us whose names are subscribed, wee doe Award that William Holoway & Stephen Butler shalbee at the charge to set up the Fence which they pulled down along m^r Daffornes Land in the same place where it was according to theire agreement before the Selectmen wt^h Richard Woody & the s^d Dafforne to enjoy that Line as the boundary between the s^d partys & this wee Award as o^r finall determination in this case, witness o^r hands this 24^th of Aprill 1675.

John Leverett	Hezekiah Vsher Senio^r
Edward Tyng	Tho: Brattle
Tho: Clarke	John Joyliffe
W^m Davis	John Lake
Tho: Lake	James Oliver

Recorded & compared Aprill: 24: 1675 @ Js^a Addington Cler vide. 287. [304]

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

2 Massachusetts Bay Records, ii. 38.

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

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

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

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

7 Massachusetts Bay Records, i. 169.

8 See our Publications, xviii. 56 n¹.

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

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

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

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

13 Osgood, i. 190–191.

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

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

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

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

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

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

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

21 Id., pp. 34, 152.

22 Id., p. 38.

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

24 Woody v. Harrison, pp. 654–655.

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

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

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

28 Patten v. Winsley, at p. 384.

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

30 Below, pp. 788–791.

31 Lechford, Plaine Dealing.

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

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

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

35 Id., p. 224.

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

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

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

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

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

41 Below, pp. 761, 766.

42 Order about Cornish, pp. 560–561.

43 Hutchinson, Atty, p. 95.

44 Below, pp. 14–15.

45 Below, pp. 295–296.

46 Below, pp. 388–390.

47 Below, pp. 550–554.

48 Below, pp. 563–564.

49 Below, pp. 451–453.

50 Below, pp. 1042–1044.

51 Below, pp. 899–900, 1047.

52 Below, pp. 1170–1171.

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

54 History of Massachusetts Bay, i. 323 n.

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

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

57 Below, p. 186.

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

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

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

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

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

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

64 Hilkey, pp. 66–67.

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

66 Below, pp. 373–376.

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

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

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

70 Scottow v. Shapleigh, at p. 1112.

71 Massachusetts Bay Records, II. 212

72 Below, p. 1105.

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

74 See this introduction, Attorneys and Magistrates.

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

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

77 Below, p. 163.

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

79 Patten v. Winsley, pp. 377–384.

80 Douglas Estate, pp. 1104–1105.

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

82 Hilkey, p. 68.

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

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

85 Below, p. 52.

86 Below, p. 568

87 Below, p. 624.

88 Below, p. 1155

89 Below, pp. 303–304.

90 Below, p. 615

91 Below, pp. 404–408.

92 Below, pp. 1147–1148.

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

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

95 Below, at pp. 70–71.

96 Below, at pp. 365, 367.

97 Hutchinson v. Blake, pp. 271–274.

98 Below, at p. 714.

99 Below, pp. 797–799.

100 Below, at pp. 654–655.

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

102 Peck v. Bonner, pp. 31–36.

103 Ashton v. Gibbs, pp. 347–358.

104 Below, pp. 99–100, 131–133, 201.

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

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

107 Clarke v. Lamb, pp. 1131–1136.

108 Below, pp. 1029–1037.

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

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

111 See this introduction, Attorneys and Magistrates.

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

113 Hodges, at p. 190.

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

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

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

117 Parker v. Champeroone and Leverett v. Ely.

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

119 Sheafe v. Hawkins, pp. 1–3.

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

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

122 Hudson v. Hunt, pp. 289–290.

123 Sanders v. Harris, p. 640.

124 Woodcock v. Sutton, p. 773.

125 Brackett v. Clarke, pp. 45–52.

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

127 Goodman v. Cocke, pp. 200–201.

128 Mosely v. Mason, p. 65.

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

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

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

132 Smith v. Cartwright, p. 10.

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

134 MackDaniel v. Hale, p. 818.

135 Below, p. 13.

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

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

138 Id, P. 7.

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

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

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

142 Massachusetts Bay Records, ii. 219.

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

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

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

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

147 Id., p. 7.

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

149 Plumb v. Parke, p. 146.

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

151 Below, pp. 417–420.

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

153 Below, p. 69.

154 Below, pp. 173, 760.

155 Cooke v. Oliver, pp. 1144–1150

156 Parmiter v. Perry, p. 294.

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

158 Blackstone, Commentaries, iii. 418.

159 Oxenbridge Complaint, p. 437.

160 Sands v. Hutchinson, pp. 460–461.

161 Whaley, p. 1164.

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

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

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

165 Walley v. Waite, pp. 802–803.

166 Below, pp. 139, 657.

167 Richardson and Read, p. 117.

168 Man v. Hews, p. 1058.

169 Bleaze v. Edwards, p. 925.

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

171 Mead v. Turner, at p. 39.

172 More v. Jones, pp. 156–158.

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

174 Hutchinson v. Paine, at p. 635.

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

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

177 Brattle v. Knight, at p. 799.

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

179 Hutchinson, p. 95.

180 Dowden, pp. 890–894.

181 Clarke v. Nicholls, pp. 5–9.

182 Sands v. Hutchinson, pp. 460–461.

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

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

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

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

187 Hutchinson v. Sands, p. 470.

188 Cutler v. Jacob, p. 530.

189 Indicott, p. 1101.

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

191 Skinner v. Lowell, at p. 391.

192 Legg v. Flood, pp. 1054–1055.

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

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

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

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

197 Lidgett v. Collins, pp. 43–44.

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

199 Jones v. Crispe, at p. 459.

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

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

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

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

204 New England Quarterly, v. 812–818.

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

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

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

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

209 Golden v. Clements, at p. 15.

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

211 Mason, p. 1013.

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

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

214 Below, p. 480.

215 Below, pp. 1030–1031.

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

217 Below, p. 169.

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

219 Purkis v. Winder, pp. 1002–1005.

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

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

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

223 Below, pp. 1145–1146.

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

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

226 Trott, p. 222.

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

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

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

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

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

232 Below, p. 71

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

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

235 Parker v. Champeroone, p. 4.

236 Below, pp. 882–883.

237 Below, pp. 1079–1080.

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

239 Below, pp 1137–1139.

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

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

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

243 Below, pp. 788–791

244 Below, p. 885.

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

246 Below, p. 629.

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

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

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

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

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

252 Baker v. Johnson, p. 392.

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

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

255 Davie v. Hall, pp. 875–876.

256 Skinner v. Lowell, pp. 388–392.

257 Greely v. Hall, pp. 988–989.

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

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

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

261 Below, pp. 65–78.

262 Cutler v. Cutler, p. 881.

263 Aspinwall v. Evans, p. 981.

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

265 Alford v. Endicott, pp. 726–735.

266 Lamb v. Williams, p. 1051.

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

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

269 Massachusetts Bay Records, v. 477–478.

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

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

272 Keen v. Wiswall, p. 1039.

273 Legg v. Flood, p. 880.

274 Clarke v. Kent, pp. 908–909.

275 Scottow v. Shapleigh, pp. 1108–1116

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

277 Danson v. Ellitt, p. 1123.

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

279 Id., pp. 364, 449.

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

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

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

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

284 Below, pp. 992–993.

285 See below, p. 228 n.

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

287 Below, pp. 228–229.

288 Below, p. 232.

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

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

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

292 Wainwright, p. 225.

293 Below, p. 235.

294 Below, p. 753.

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

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

297 Milton v. Eliott, p. 3.

298 Clarke v. Harbour, pp. 736–737.

299 Yardley v. Boden, p. 775.

300 Sheafe v. Palmer, pp. 829–830.

301 Woode v. Chantrell, pp. 159–163.

302 Snelling v. Chantrel, p. 166.

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

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

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

306 Below, p. 160.

307 Below, pp. 404–408.

308 Below, p. 149.

309 Below, p. 644

310 Below, pp. 695–697.

311 Newcomb v. Wardell, p. 800.

312 Lorin, pp. 332–333; Dare, p. 333.

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

314 See Forms of Action, in this introduction.

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

316 Harris v. Bridgeham, p. 277.

317 Gilbert v. Obison, pp. 738–742.

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

319 Below, pp. 759–766.

320 Norman v. Skinnar, pp. 803–806.

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

322 Skinner v. Lowell, pp. 388–392.

323 Phillips v. Wharton, p. 420.

324 Salter v. Rose, p. 984.

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

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

327 MackDaniel v. Hale, p. 818.

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

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

330 Jones v. Neylor, 471.

331 Stanton v. Trott, 242.

332 Keen v.

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

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

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

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

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

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

339 Cutler v. Cutler, p. 881.

340 Below, pp. 860–862.

341 Boseworth v. Morse, pp. 100–101.

342 Hiskett v. Paine, p. 318.

343 Below, p. 567.

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

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

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

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

348 Cutler v. Jacob, p. 530.

349 Sheffield v. Harrison, p. 529.

350 Order to Joyliffe, p. 755.

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

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

353 Smith to Jones, p. 1026.

354 Hudson v. Daniel, p. 776.

355 Hill v. Obbinson, pp. 1094–1095.

356 Below, pp. 579–583.

357 Below, pp. 426–429.

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

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

360 Phippen Estate, p. 996.

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

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

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

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

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

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

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

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

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

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

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

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

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

374 Patten v. Winsley, at p. 381.

375 George Estate, p. 223.

376 Pratt Estate, p. 716.

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

378 Simpson v. Salter, pp. 1040–1041.

379 Below, pp. 1064, 1096–1097.

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

381 Below, pp. 1029–1037.

382 Below, pp. 1104–1105.

383 Below, pp. 860–862

384 Below, pp. 1131–1136.

385 Below, pp. 821–822.

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

387 Below, pp. 81, 109.

388 Below, p. 95.

389 Hudson v. Smith, pp. 592–594, 833

390 Whipple Estate, p. 939.

391. Chamberlayne Estate, p. 992.

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

393 Below, pp. 797–799

394 Rogers v. Rowste, p. 689.

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

396 Deane v. Perry, pp. 724–725

397 Keen v. Oxe, pp. 906–908.

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

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

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

401 Below, pp. 195–200.

402 Our Publications, vm. 150–185.

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

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

405 Below, pp. 250–252.

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

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

408 Below, p. 369

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

410 Dudson v. Darvall, pp. 385–387.

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

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

413 White, pp. 994–995.

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

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

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

417 Hollett v. Pelton, p. 1077.

418 Warren v. More, p. 824.

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

420 Woode v. Chantrell, at p. 162.

421 Stuart and Ludden, pp. 407–408.

422 See Litigiousness, in this introduction.

423 Miller v. Risco, pp. 277–285.

424 Waldren v. Smith, pp. 135–139.

425 Davis v. Legg, pp. 504–507.

426 Wharton v. Elson, pp. 661–669

427 Alford v. Endicott, at p. 727

428 The Providence, pp. 250–252.

429 Below, pp. 31–36.

430 Below, pp. 901–903, 1119.

431 Below, pp. 279–280, 1119.

432 Below, pp. 471, 661–669.

433 Below, pp. 134, 858–860.

434 Below, pp. 277–278, 1117–1118.

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

436 Waldron v. Henderson, at p. 901.

437 Title Bills, enacted in 1647.

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

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

440 Mead v. Turner, pp. 36–43.

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

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

443 Wharton v. Elson, pp. 661–669.

444 Briggs v. Giffard, pp. 691–692.

445 Briggs v. Leverett, pp. 617–619.

446 Yeale v. Shoare, p. 326. 8

447 Lidgett v. Foote, p. 774.

448 Deane v. Hubbard, pp. 788–791.

449 Below, pp. 1080–1083.

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

451 Whitcomb v. Burnham, p. 21.

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

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

454 Below, pp. 30, 295, 317–318.

455 Below, pp. 79, 1072.

456 See in this introduction, Negotiable Instruments.

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

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

459 Below, pp. 60–62, 156–158.

460 Below, pp. 359–363, 1052.

461 Below, pp. 1123–1124.

462 Below, pp. 661–669.

463 Below, p. 910.

464 Below, p. 927.

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

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

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

468 Jenners Fined, Parkman Fined, p. 311.

469 Waldron v. Marshall, at p. 763.

470 Below, p. 126.

471 Below, p. 412.

472 Stanberry, p. 559.

473 Batt, p. 632.

474 Roberts, p. 602.

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

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

477 Reade, pp. 114–115.

478 Hannah, pp. 1153–1157.

479 Francis, pp. 555–556.

480 Holleday, p. 782.

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

482 Phips, p. 887.

483 Noakes, pp. 308–310.

484 Knight v. Moulder, p. 274

485 Cittern, p. 189.

486 Baker, p. 939.

487 Langle, p. 959.

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

489 Norman v. Salter, p. 131.

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

491 Gold, p. 184.

492 Chandler, p. 232

493 Gibbs, p. 304.

494 Meadore, p. 753.

495 Dove, Admonished, p. 785.

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

497 Below, pp. 937, 995.

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

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

500 Whitmore, p. 206.

501 Below, pp. 90, 92.

502 Below, p. 255

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

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

505 Below, pp. 629, 675.

506 Our Publications, iii. 51 ff.

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

508 Smith, pp. 1101–1102.

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

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

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

512 Colcord to Thornton, p. 945.

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

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

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

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

517 Carr Sentenced, pp. 556–557.

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

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

520 Below, pp. 84–85.

521 Below, pp. 231, 697, 302.

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

523 Below, p. 151.

524 Below, p. 674.

525 Below, p. 302.

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

527 Below, p. 1157.

528 Below, p. 1100.

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

530 James Indian, pp. 112, 119.

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

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

533 Below, p. 23.

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

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

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

537 Fairebanks, p. 257.

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

539 Below, p. 350.

540 For instance, Read, p. 88.

541 Below, p. 89.

542 Below, p. 90

543 Below, p. 300.

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

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

546 Below, pp. 82, 107–108.

547 Below, p. 221.

548 Below, p. 258.

549 Below, p. 265.

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

551 Below, pp. 720, 811

552 Below, p. 943.

553 Below, p. 943.

554 Below, p. 232.

555 Below, p. 150.

556 Below, p. 1158.

557 Below, pp. 754–755, 837–841.

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

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

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

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

561 Below, pp. 82–84, 126, 266.

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

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

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

565 Wheeler and Peirce, p. 443.

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

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

568 Hawkins and Fogg, p. 558

569 Man, p. 807.

570 See under Evidence, in this introduction.

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

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

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

574 Fiske, p. 28.

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

576 Below, pp. 256–257; see p. 597.

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

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

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

580 Below, p. 487.

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

582 Matson, p. 753.

583 Below, pp. 677, 997.

584 Below, p. 519.

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

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

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

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

589 Order, p. 646

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

591 Below, pp. 120, 867, 942.

592 Webb, p. 28

593 Below, pp. 305–306.

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

595 Newcombe, pp. 695–697.

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

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

598 Id., p. 207.

599 Below, pp. 153, 178–180.

600 Below, p. 624.

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

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

603 Below, pp. 27–28.

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

605 Simmons, pp. 808–809.

606 Evered, p. 868.

607 Usher v. Timberlack, pp. 154–155.

608 Usher v. Timberlack, pp. 154–155.

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

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

611 Hunt v. Warren, p. 1170.

612 Lamb v. Williams, p. 1051.

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

614 Sweete v. Gibbs, pp. 742–743.

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

616 Danson v. Ellitt, p. 1123.

617 Below, p. 600.

618 Below, pp. 628–629.

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

620 Sharp v. Rider, pp. 359–363.

621 Below, pp. 680–682.

622 Below, p. 1106.

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

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

625 Below, pp. 726–735.

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

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

628 Below, pp. 560–561.

629 Danson v. Eliott, pp. 1086–1092.

630 Below, pp. 347–358.

631 Below, pp. 680–682.

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

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

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

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

636 Lawton, in the case to which this belongs.

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

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

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

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

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

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

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

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

645 Pages 29 and 30 are wanting.

646 The list of judges is wanting for this session.

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

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

649 Moosepeak or Moosabec Reach, in eastern Maine.

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

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

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

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

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

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

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

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

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

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

660 Deputy-Governor Leverett.

661 Deputy-Governor Leverett.

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

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

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

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

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

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

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

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

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

671 Cape Newagen, Maine?

672 New Orange (Albany), or New York.

At a County Court held at Boston January 26th 1674.

Present

Grandjury Sworn

Jury of Tryalls Sworn

[Weaver v. Woodbridge]

[Weaver v. Woodbridge]

[Deane v. Bishop]

[Harrison v. Woddee]

[Woodcock v. Hues]

Holloway & Butler agt Dafforn

Spowell agt Griffin

Lytherland agt Veren

Woodbridge agt Weaver

Sheffield agt Harrison

Allen agt Emmons

Norden agt Roades

Cutler agt Jacob

Hutchinson agt Paine

Collicot agt Sheafe

Floyde agt Wright &a

Noyse agt Wayte

Jewett agt Rawson &a

Smith agt Decrow

Atwater agt Balston

Batt agt Harris

Dafforn agt Holowell

Russell &a agt Smith

Bishop agt Gould

Briggs agt Cooke

Pearson agt Hilton

Sheafe agt Atkinson

Brattle agt Hoare

Fogg agt Joy

Fogg agt Williams

Tho: Edsall agt Page

Rawson agt Billing

Leverett agt Fogg

Long agt Paul

mr Oxenbridge &a agt Rice

Hudson agt Smith

Legg agt Curtis

Greenlife Tappen & Pemerton Admonish’t

Joseph Jndian Nesquin Sentenced

Grandjury dismiss’t

Gould to Bishop

Woodbridge & Weavrs bond for Arbitracion

Theodora Oxenbridge her Guardian

Martha Minot her Guardian

Division of Blagues Estate

Wheelers Receipt

Samll & Stephen Minots guardians

Norman Senta

Harris Find 5li 2: 6 Respited

Cozens Find 5li 2: 6.

Hemaway Sentencd

Peggy Sentenced

Francis Sentencd

Danll Turill junr Find 5li

Attachmt Ordered agt Northy &a

Hall & his wife Fined 5li

Carr Sentenced

Lucath Grafton & Morrice Sentencd

[Order about Fogg]

Adjournment

February 4th 1674 @

Sam: Bridghams Guardian

Hawkins Sentenced

Fogg Fined

Jeffery’s Guardian

Skelton purged by Oath

Tom Jndian Sentenced

Lorin Fined 5l

Order abtt Stanberry & Harris’s mony

Snellings Licence

Present

Potter to Tucker

February 11th 167⅘ @

Order to ye Treasr

Morphey Sentencd

Order abt Cornish

Holloway & Butler ag^t Dafforn

Spowell ag^t Griffin

Lytherland ag^t Veren

Woodbridge ag^t Weaver

Sheffield ag^t Harrison

Allen ag^t Emmons

Norden ag^t Roades

Cutler ag^t Jacob

Hutchinson ag^t Paine

Collicot ag^t Sheafe

Floyde ag^t Wright &^a

Noyse ag^t Wayte

Jewett ag^t Rawson &^a

Smith ag^t Decrow

Atwater ag^t Balston

Batt ag^t Harris

Dafforn ag^t Holowell

Russell &^a ag^t Smith

Bishop ag^t Gould

Briggs ag^t Cooke

Pearson ag^t Hilton

Sheafe ag^t Atkinson

Brattle ag^t Hoare

Fogg ag^t Joy

Fogg ag^t Williams

Tho: Edsall ag^t Page

Rawson ag^t Billing

Leverett ag^t Fogg

Long ag^t Paul

m^r Oxenbridge &^a ag^t Rice

Hudson ag^t Smith

Legg ag^t Curtis

Woodbridge & Weav^rs bond for Arbitracion

Sam^ll & Stephen Minots guardians

Norman Sent^a

Harris Fin^d 5^li 2: 6 Respited

Cozens Fin^d 5^li 2: 6.

Hemaway Sentenc^d

Francis Sentenc^d

Dan^ll Turill jun^r Fin^d 5^li

Attachmt Ordered ag^t Northy &^a

Hall & his wife Fined 5^li

Lucath Grafton & Morrice Sentenc^d

February 4^th 1674 @

Lorin Fined 5^l

Order abt^t Stanberry & Harris’s mony

February 11^th 167⅘ @

Order to y^e Treas^r

Morphey Sentenc^d

Order ab^t Cornish

Order ab^t Hawkins prison charges

Arbitrato^rs Return in Holoway & Daffornes case