Title: The Pleadings Book: 1771–1773
From: Adams, John
To:

         I

        Case on a Bill of Lading vs. Master for not delivering the Plaintiff’s Goods freighted on Board the Defendant’s Vessell.
        Asa Holden vs. Charles Conner
        For that the said Charles on &c.—received on board his said Ship called the X X and whereof the said Charles was Master (Hogsheads, Casks &c.) containing the Goods in the schedule annexed—And on the &c.—at —— signed a certain Note in Writing called a Bill of Lading and undertook (the Dangers of the sea excepted) to deliver the said —— to the Plaintiff he paying the customary Freight and afterwards, vizt. on —— the said Charles arrived in said ship at said ——. Yet he has not delivered said Goods &c. tho the Plaintiff hath often requested it, and has been always ready to pay the Freight aforesaid, but refuses so to do.

         II

        Case. By Freighter vs. owner for the Embezzlement of the Master upon a Bill of Lading.
        Waldo vs. Gridley
        John Waldo of Boston &c. vs. Isaac Gridley. In a Plea of Trespass on the Case, for that the said John on &c.—at Boston aforesaid, shipped on Board the said Isaac’s Snow, Mermaid, then bound on a Voyage in the said Isaac’s service, to Jamaica, a Quantity of Gold and silver vizt 8 Guineas, 1 Pistole, and 23 Dollars all of the Value of £19 lawfull Money with Reuben Hussey the said Isaac’s servant, and Commander of said Vessell for said Voyage and for whose Conduct in said Service, the said Isaac is answerable, to be transported in said Vessell on the Plantiffs Account and Risque, to Jamaica, the Danger of the Seas only excepted, and there to be delivered to the Plantiff, his order, or assigns, he or they paying Freight therefor two Pr.Cent with Primage and Average accustomed: And the said Reuben then and there in said Capacity, signed a Bill of Lading, according to the Custom of Merchants, thereby engaging for the Delivery of said Gold and Silver in manner aforesaid; and upon the Conditions aforesaid, whereby the said Isaac, according to the Custom of Merchants then and there became obliged that said Gold and Silver should be (the Danger of the seas only excepted) safely kept, transported and delivered as aforesaid, and then and there, promised the Plantiff accordingly. And the Plantiff in Fact saith, that the said Isaac’s Master of said Vessell, in said Vessell and in said Isaac’s Service, arrived safe at said Jamaica with said Gold and Silver, that the said Gold and Silver was not safely kept, but by the said Isaac’s Master aforesaid and the Crew of the said Isaac’s Vessell, for whom in such Respects he is answerable, was there on board said Vessell converted to their own Use, and imbezzled and was never delivered to the Plantiff, nor to his order nor assigns, though often requested thereto, and though the Plantiff was always ready to pay the Freight, and Primage and average aforesaid; by means whereof, the said Isaac, according to the Custom of Merchants became obliged to pay the Plantiff his Damage occasioned thereby (which the Plantiff avers, amounts to —— L.M.) on demand, and accordingly on —— &c. —— at Boston aforesaid, promised the said John to pay him the same on Demand, Yet the said Isaac, tho requested has never paid the same but neglects and refuses to do it. To the Damage &c.
        Octr. Court 1751 NB. This Declaration was drawn by Mr. Pratt, Mr. Gridley pleaded in Abatement, but the Plea was overruled by the Court. Issue was joined, and after a full Hearing the Case was committed to the Jury, who found for the Defendant Costs.

         III

        Case on a bill of lading against the owner.
        Langdon v. Barber
        3. Bac. 591. Bottom. 3. Mod. 321. Boson vs. Sandford. 1. Reading Clerk’s Instructor 371. For a Precedent of a Declaration vs. Master.
        Summon Wm. Barber of Charlstown &c.—to answer Edward Langdon of Boston &c.—in a Plea of Trespass upon the Case for that the said Wm. at a Place called Patuxent River, in our Province of Maryland vizt. at Boston aforesaid, on the 8th day of last December was owner and Proprietor, of a Vessell, being the good Brigantine called the Fair Lady, whereof was then Master under God for the then present intended Voyage, Abiel Lucas, and then riding at Anchor in Patuxent River aforesaid, in which Brigantine the said William was used and accustomed to carry Goods, Wares, and Merchandises, for a reasonable Hire, from Port to Port: And the said Edward, there afterwards, on the same day, put, shipped and loaded, in good order and well conditioned in and upon the said Brigantine, then, by Gods Grace, bound for Boston in New England, 500 Bushells of good merchantable Wheat, of the Value of £133 6s. 8d. L.M. to be delivered in like good order and well conditioned, at said Port of Boston, the dangers of the Seas only excepted, unto the said Edward, or to his assigns, he or they paying Freight for said goods with Primage and Average accustomed, and the said William, then and there promised the said Edward to deliver the said Wheat accordingly. Now the said Edward in fact says, that the said Brigantine afterwards sailed from said Patuxent River, with the said Wheat on board in good order and well conditioned, and arrived safe at said Port of Boston with said Wheat in like good order and well conditioned on the 17. day of December last; yet the said William, tho often requested neither by himself nor by any other Person for or under him, ever delivered the said Wheat to him the said Edward, or to his assigns, tho the said Edward was always there ready to receive the same, and to pay Freight therefor, with Primage and Average accustomed, but the said Abiel Lucas the said Master and Commander of said Brigantine, and in the service of the said William, and for whose Embezzlements and Conduct in such Respects the said William is answerable, there afterwards on the same 17th day of December last, embezzled the said 500 Bushells of Wheat and converted it to his own Use. By means whereof the said William by Law and by the Custom and Usage of Merchants, became obliged to pay the Plantiff his Damages occasioned thereby (which the Plantiff avers, amount to £133 6s. 8d. L.M.) on demand and promised the said Edward accordingly at said Boston on the day of December last, to pay him the same on demand; Yet the said Wm. tho requested has never paid the same but neglects to do it. To the Damage &c.

         IV

        Ejectment. By a posthumous Daughter, on the seizin of her Father.
        Hill vs. Whiting
        Summon J. Whiting, to answer to Abiel Hill, &c. in a Plea of Ejectment, wherein the Plantiff demands against the said John the Possession of a certain Tract of Land containing &c. and bounded &c.
        Whereupon the Plantiff saith, that Ebenezer Hill late of said Wrentham, Husbandman deceased Intestate, Father of the Plantiff, in a Time of Peace, vizt. on the 30th day of October Anno Domini 1732 was seized of the Demanded Premisses in his Demesne as of Fee taking the Esplees thereof to the Yearly Value of four Pounds and on the same day, afterwards at said Wrentham, the said Ebenezer died so seized thereof and Intestate, leaving Susanna his Widow pregnant with the Plantiff, who was born afterwards at said Wrentham on the sixteenth day of February Anno Domini 1733, and after the Death of the said Ebenezer Hill, Father of the Plantiff, and the Birth of the Plantiff as aforesaid, the demanded Premisses, and the Right and Property thereof, descended by Law to the Plantiff, Child and Heir of the same Ebenezer deceased, and she ought accordingly to be in quiet Possession thereof, but the said John, since the Death of the same Ebenezer, hath unjustly entered into the demanded Premisses, and still unjustly, deforces and holds the Plantiff out. To the Damage &c.

         V

        Case.

         Haynes v. Shaw

        Indeb. Ass. on an Account annexed. Summon F.S. &c. to answer S.H. &c. in a Plea of Trespass on the Case, for that the said F.S. at Boston aforesaid on the 14th. day of April instant being indebted to the said Ind. Ass. for Money, laid out, and expended for Defendant. S.H. in the sum of £155 19s. 9d., as by the account to the Writ annexed appears, did then and there promise the said S.H. to pay him that sum on demand. And for that the said F.S.Ind. Ass. for money had and received afterwards, that is to say, on the same day at Boston aforesaid, was indebted to the said S.H. in another sum of £150 19s. 9d. for the like sum of Money, before that Time, at the special Instance and Request of the said Francis, and to the Use of the said Francis, paid, laid out and expended, and being so indebted, he, the said F.S. in Consideration thereof, afterwards, that is to say, the same day, at Boston aforesaid, promised the said S.H. to pay him the same on demand. And, whereas the said F.S. afterwards, that is to say, on the same day, at Boston aforesaid was indebted to the said Samuel H. in one other sum of one hundred and fifty two Pounds, Nineteen Shillings and Nine Pence for the like Sum of Money, by him the said F.S. before that Time had and received, to the Use of the said S.H., and being so indebted he the said Francis, in Consideration thereof, that is to say, on the same day, at Boston aforesaid, promised the said S.H. to pay him the said last mentioned sum on demand; yet the said F.S. tho requested hath not paid the said S.H. said sums.
        Insim. Comp. And for that the said F.S. and S.H. at said Boston, on the  day of  accounted together concerning diverse sums of Money, before that Time due and owing from the said F.S. to the said S.H. and then in Arrear and unpaid, and on the Account so stated, the said F.S. was then and there found in Arrear, on the whole to the said S.H. the further sum of £200 16s. 8d. sterling, which the Plantiff avers to be equall to  Lawfull Money, and the said F.S. at said Boston, on the said last mentioned day, in Consideration thereof, promised the said S.H. to pay him that sum also, on demand: And for that the saidQuant. Valebat. S.H. at said Boston, afterwards vizt. &c. had sold and delivered to the said F.S. at his special Instance and request, 13 Barrells of Flour, and other Goods, Wares and Merchandises, other than those contained in the Schedule, or Account annexed but of the same Quantity and Quality, and the said F.S. then and there in Consideration thereof, promised the said S.H. to pay him there for all such Sums of Money, as the said Flour, and other Goods, Wares and Merchandises in this Count mentioned were reasonably worth, whenever he should be thereto requested; Now the said S.H. in Fact saith that the said 13 Barrells of Flour last mentioned, were well worth, £22 5s. 6d. L.M., and the other Goods, Wares and Merchandises last mentioned, were well worth the several sums set against the like Articles in the annexed schedule or account amounting in the whole to  L.M. of all which the said F.S. there afterwards on the same day had due Notice from the said S.H. and thereby became obliged to pay him the same sum on demand and then and there promised so to do.
        Quant. Mer. And for that the said S.H. at said Boston on the  day of  had

         VI

        Trespass. Assault, Battery, Wounding, Imprisonment, Tarring and Feathering.
        Richards vs. Doble
        Attach &c. Joseph Doble of Boston &c. Mariner, to answer unto Owen Richards of said Boston Yeoman, in a Plea of Trespass, for that the said Joseph, on the Eighteenth day of May last 1770 at Boston aforesaid, with Force and Arms an Assault on the Body of him the said Owen made and him did then and there violently beat, wound, bruise, and evil entreat, so that his Life was thereby put in great Danger, and He the said Joseph did then and there take and imprison him the said Owen, and him in Prison for a long Time, vizt. for the space of six hours, detained against Law, and the Custom of our Realm, and he the said Joseph then and there, did also grievously abuse the said Owen; forcibly took and placed him in a Cart, and stripped him naked to his Skin, and with Force as aforesaid, did tear off, from his Body, and take from him, his Hatt, Wigg, Coat, Waistcoat, and Shirt, and also a gold Sleeve Button, two Handkerchiefs, his Pocket Book, with sundrie Papers therein of the Value of  vizt. an original Note of Hand, for seven Pounds, Ten Shillings, and Sundrie, original Receipts for Moneys paid, and other Papers of Value, also one Piece of Gold Money, called a Johannes, and two Spanish milled Dollars in Silver, being all of the Value of Thirty Pounds lawfull Money, none of which Things so taken from him the said Owen, have ever been returned to him again and He the said Joseph did then and there also cover and besmear the said Owen, Head, Face, and naked Body, with Tar and cover him over with Feathers, upon said Tar, and cruelly and inhumanly set fire to said Feathers; and then and there dragged said Owen in said Cart, through diverse Streets of said Town of Boston, and from one End of said Town to the other, for the Space of Six Hours, as aforesaid, and fixed a Label to his the said Owens Breast, with Writing thereon importing that he the said Owen was a common Informer, and in that Condition exposed him the said Owen to the Contempt and Resentment of our liege Subjects, and as a public Spectacle, thro said Town, and other Outrages and Enormities, on him the said Owen, He the said Joseph then and there committed, against our Peace, To the Damage &c. £1000.
        7. Jan. 1771.

         VII

        Trespass, Assault, Battery, Wounding, Imprisonment tarring and feathering.
        Gailer vs. Trevett.
        Attach &c. Eleazar Trevett Junior and Benjamin Trevett, Merchants, Daniel Vaun Mariner, all of Newport in the County of Newport and Colony of Rhode Island and Providence Plantation, and David Bradley, Pool Spear, Taylors, and David Provence Infant and Edward Mathews Mariner all of Boston in our County of Suffolk. To answer unto George Gailer of Boston aforesaid Mariner, in a Plea of Trespass, for that the said Eleazar Trevett Jnr., Benjamin Trevet, Daniel Vaun, David Bradley, Pool Spear, David Provence, and Edward Mathews, at said Boston in the Evening of the twenty Eighth Day of October last, together with diverse other Persons to the said George Gailer unknown, with Force and Arms, an assault, on the Body of the said George Gailer did make, and then and there with Force as aforesaid did strip the said George Gailer naked, tar and feather his Skin, and carry the said George Gailer naked, tarred and feathered, as aforesaid in a Cart about said Boston for the space of Three Hours, and with Clubbs, Staves, and a hand saw did then and there strike him the said George Gailer, sundry heavy and grievous Blows, upon the said George Gailers naked Body, and greatly bruise, and wound him and hit him the said George Gailer diverse grievous Blows, with Stones: By Reason of all which the said George Gailers Life was put into great Hazard and Danger, and greatly despaired of, and many other Enormities, and Cruelties, the said Eleazer Trevett Jnr., Benja. Trevett, Daniel Vaun, David Bradley, Pool Spear, David Provence, and Edward Mathews, with others unknown to the said George Gailer did then and there commit, on the said George Galer, against the Peace of our Lord the King and to the Damage &c. £2000.

         VIII

        Debt for Taxes, by Collector vs. an Inhabitant.
        Ruggles vs. Doane.
        Summon Elisha Doane of Welfleet Esqr., to answer unto Samuel Ruggles of said Boston, Housewright, in a Plea of Debt, for that the said Elisha in the Year of our Lord Christ 1765 and 1766, was an Inhabitant of said Town of Boston and rateable to the Province, County and Town Taxes and was by the Assessors of said Town duely rated to Province, County, and Town Taxes, the several sums following, to wit for the Year 1765 the sum of Nine Pounds, Six Shillings and Three Pence, and for the Year 1766 the sum of £6 11s. od. which sums together make the sum of £15 17s. 3d. for his Proportion of Province, County, and Town Taxes in said Year, and the said Samuel was the same Year, duly chosen and sworn a Collector of Province, County and Town Taxes, in the same Town, and had the Rates aforesaid, made on the said Elisha, given him to collect; and the Time of Payment to the respective Treasurers is long since elapsed, and the said Samuel hath paid to the respective Treasurers all the sums given him to collect for those Years, and of all this the said Elisha hath had Notice from the said Samuel, whereby and by Force of an Act of this our Province, made in the fourth Year of our Reign intituled an Act to enable the Collectors of Taxes in the Town of Boston to sue for and recover the Rates and Taxes, given them to collect in certain Cases, the said Elisha became indebted to the said Samuel in the said sum of £15 17s. 3d., and an action accrues to the said Samuel to recover and have the same sum, yet the said Elisha, tho often requested, hath never paid the same sum, but detains it. To the Damage &c.
        Plea Nil Debet. And the said Elisha comes and defends &c. and saith, he owes nothing to the said Samuel in manner and Form as within declared and thereof puts himself on the Country.

         IX

        Account vs. Bailiff of Goods, and Receiver of Monies.

         Green v. Green

        1. Mallory’s Mod. Ent. 48. Tit. account.
        Summon George Green &c. to answer to Joshua Green, &c. Administrator of all and singular, the Goods and Chattells, Rights and Credits which were of Anna Green late of said Boston, Widow deceased intestate in a Plea of Account for that the said George at said Boston, on the first day of July Anno Domini 1765, the said Anna being then living, and from the said first day of July to the Thirty first day of December Anno Domini 1768 was the Bailiff and Receiver of Monies of the said Anna, she being all that Time living, during which Time the said George received of the Monies of the said Anna at said Boston, one hundred Pounds, by the Hands of Samuel Cotton, Thirty Pounds by the Hands of Thaddeus Wyman &c.  in the whole amounting to Two Thousand, Three hundred and seventy Pounds Thirteen shillings and Ten Pence of lawful Money to render a reasonable Account thereof to the said Anna whenever he should be thereto requested; nevertheless the said George, tho often requested, never rendered such reasonable Account to the said Anna in her Lifetime, nor to the said Joshua Administrator as aforesaid since his Intestates decease, tho requested, but still neglects to do it: And for that the said George at said Boston on the first day of July Anno Domini 1765 and from the said first day of July to the Thirty first day of December Anno Domini 1768, the said Anna being all that Time living, was the said Anna’s Bailiff, and during all that Time had the Care and Management of all the Goods, Chattells, Wares, and Merchandise and Cash contained in the Schedule hereto annexed, amounting in the whole to the further sum of 2677 Pounds 11s. id. of lawfull Money more to merchandise and make Profit thereof for and to render a reasonable Account thereof to the said Anna when he should be thereto requested; yet the said George (although requested) never rendered such reasonable Account to the said Anna in her Lifetime nor to the said Joshua Administrator as aforesaid, though requested since his Intestate’s decease, but still neglects and refuses to do it. To the Damage.

         X

        Case for a malicious Prosecution.
        Needham vs. Kingsbury.
        2. Ins. Cler. 53. 4. 5. 6. 7. 1 Mod. Ent. 160.
        Attach Seth Kingsbury of Walpole, &c. to answer Ezekiel Needham of Wrentham, &c. in a Plea of Trespass upon the Case, for that the said Ezekiel, now is a good, honest, true and faithfull subject of Us, and hath all his Lifetime hitherto, carried and behaved himself among all his Neighbours, and other our faithfull subjects, and those of our Predecessors, so as to be esteemed by them of a good Name, Fame, Credit, honest and faithfull Conversation, and good Behaviour; and all his Lifetime hitherto hath lived, remained, and continued, without any Blott, or having committed any Falshood, Perjury, or other Crime or Misdemeanor whatever, and hath

         XI

        Case. For inticing and seducing an Apprentice from his Master whereby he lost his Service.
        Paul Revere vs. James Lowrie
        Attach the Goods or Estate of James Lowrie now residing in Boston in our same County Mariner, to answer Paul Revere of said Boston, Gentleman, in a Plea of Trespass on the Case, for that one David Mosely of said Boston an Infant was by Indentures made by and between himself, by Consent of his Uncle on the one part, and the Plaintiff on the other part, on the 17th of March AD 1770, lawfully bound an Apprentice to the Plaintiff to serve him faithfully for and during the Term of four Years from the same Date, and the Plaintiff in said Indenture did covenant to teach and instruct the said Apprentice or cause him to be instructed in his the said Paul Revere’s Trade or Art of Goldsmith and Engraver and also to find and provide for the said Apprentice sufficient Meat, Drink, Washing, Lodging and Cloathing during the said Term; which said Indenture duly executed by &c. on the part of the said Apprentice in Court shall be produced; of all which the said James Lowrie was well knowing, yet he maliciously contriving and intending to deprive the Plaintiff of the benefits of said Apprentice, and to render it impossible for the Plaintiff wholly to perform his Covenant aforesaid did at Boston aforesaid on 27th of Septr. AD 1771 (the said Lowrie being then Master of an outward bound Vessel) seduce the said David Mosely to leave the Plaintiff’s service, and did carry him away and has ever since detained and concealed the said David so that the Plaintiff cannot find, and take him, and the said James Lowrie hath oftentimes since (tho requested) refused to deliver said Apprentice to the Plaintiff and still unjustly detains and conceals the said Apprentice whereby the Plaintiff hath lost the benefit of his said Apprentice and is unable to perform his Covenant aforesaid and hath suffered much Pain and Anxiety of Mind, all which is to the Damage of the said Paul Revere, as he saith, the sum of £150.

         XII

        Debt.
        Ruddock vs. Aylwin
        2 Mod. Ent. 1. Covenant on a Charter Party. 2 Mod. Ent. 211. Debt on Ditto.

        Attach Thos. Aylwin &c. and John Scollay, &c. to answer Abiel Ruddock &c. in a Plea of Debt, for that the said Thomas and John, by their Indenture of Charter Party of affreightment made at Boston aforesaid, on the fourth Day of May Anno Domini 1770, executed between the Plaintiff, by the Name of Abiel Ruddock, &c. owner of the Schooner, Two Friends on the one Part and the Defendants by the Names of the several Persons whose Names are subscribed and their Seals fixed to the said Charter Party of the other Part, which Part sealed with the seals of the said Thomas and John, and to which their Names are subscribed, the said Abiel brings into Court, the date being the same Day and Year, he the said Abiel granted and demised the said schooner, to freightment to the said Thomas and John, by the Names of them subscribed thereto, and that they in like manner hired the same from the said Master for a Trading Voyage, to be made by the Grace of God, to Chalure Bay, Gaspee &c. and from thence to be delivered at Boston, as follows—vizt. the said Abiel for himself, his Executors and Administrators covenanted, promised and agreed to and with the said Merchants, subscribing said Charter Party, that the said schooner is tight and stanch and strong. And is and shall be during said Voyage with all that is necessary that it shall be lawful for the Defendants or their Correspondents to load and unload and reload the schooner with such Goods Wares and Merchandizes as they shall think proper during said Voyage, and they the said Merchants subscribing the said Charter party for themselves their Executors and Administrators aforesaid, covenanted and agreed with the said Abiel his Executors, Administrators, and Assigns: will not only load unload and reload as aforesaid but that they will in case she is seized in a counterband Trade and condemned pay to the said Abiel his Executors or Administrators the full and just sum of £340, that they will also pay the Port charges and the charges for victualling and manning this said schooner during said Voyage: and that they will well and truly pay or cause to be paid unto the said Abiel his Executors, Administrators, or assigns the sum of £15 per month and so in proportion for a greater or less time and the said Abiel firmly by said Charter party obliged and bound himself his Executors, Administrators, and Assigns, and his said Vessel together with all the furniture and freights to the said Men: subscribing said Charter Party, their Administrators, Executors, and Assigns in the penal Sum of one hundred pounds and to the true performance of everything in said Charter Party, on the part of the said Merchants subscribing said Charter Party to be performed, they the said Merchants by their Charter Party firmly obliged themselves their Executors, Administrators, and Assigns and the Goods as aforesaid intended to be loaded to the said Abel his Executors, Administrators and assigns in the like penal sum of £100 as by the said Charter Party doth and may more fully appear. Now the said Abiel in fact says that he the said Abiel on his part hath well and truly performed his part of said Charter Party that the said Schooner was tight staunch and strong, and was so during said Voyage and before the voyage was ended as aforesaid four months and more were elapsed, the said Abiel further avers that the said Thomas and John have not nor ether of them paid or caused to be paid to the said Abiel the £15 aforesaid agreed to be paid whereby an action has accrued to the said Abiel to require and have from the said Thomas and John the said £100 nevertheless the said Thomas and John tho requested have never paid the same but neglect &c.

         XIII

        Ejectment on a Covenant.
        Wendell vs. Williams
        Summon Nathaniel Henshaw and Jona. Williams &c., to answer unto Oliver Wendell of Boston Merchant, in a Plea, wherein he demands vs. the said Nathaniel and Jonathan, one undivided third Part of all that Farm or Tract of Land, commonly called and known by the Name of Hog Island, both the greater and the lesser, lying within the Bounds and Limitts of the Town of Boston aforesaid containing by Estimation, 530 Acres and bounded on all Sides by the Salt Water, together with one undivided Third Part of all the Buildings thereon standing, and of all the Appurtenances thereto belonging; whereupon the said Oliver complains and says that on the Nineteenth Day of September A. 1769 one Samuel Sewall Esqr. was seized and possessed of the whole Farm or Tract of Land aforesaid, with the Appurtenances, in his Demesne as of Fee, and being so seized and possessed thereof, the said Samuel by a certain Indenture of Bargain and Sale of that Date, made and duely executed by and between the said Samuel, on the one Part, and the said Oliver and one Jonathan Jackson on the other Part, then, at Boston aforesaid, granted, sold and conveyed the same Farm or Tract of Land with the Appurtenances to the said Oliver Wendell and Jonathan Jackson, to hold the one Third Part thereof to him the said Oliver and his Heirs forever, and the other two Third Parts thereof to him the said Jonathan Jackson and his Heirs forever, one Part of which said Indenture, under the Hand and seal of the said Samuel, duely executed, acknowledged and recorded, is in Court to be produced; by Force whereof the said Oliver Wendell and Jonathan Jackson, then and there entered into and became seized, as Tenants in Common, of the said Farm or Tract of Land with the appurtenances, to wit, the said Oliver of one undivided Third Part thereof, in Fee Simple, and the said Jonathan Jackson, of the other undivided two Third Parts thereof in Fee Simple, and the said Oliver ought still to be in quiet Possession of his said undivided Third Part thereof; nevertheless, the said Nathl. Henshaw and Jona. Williams have since unjustly and without Judgment of Law entered into the whole of the Premisses, and disseised the Plaintiff of his said undivided Third Part thereof, and still unjustly deforce him thereof, and altogether hold him out of the same. To the Damage &c. £1000.

         XIV

        Plea of Tender. Indebitatus Assumpsit and Quantum Meruit. 2 Counts.
        Jno. Coburn vs. Rob. White.
        2 Mall. Mod. Ent. Vid. of pleading a Tender under Tit. Pleadings in the Table.
        3 Inst. Cler. 134. 136. Bac. Abr. Tit. Tender. 2 Mod. Ent. 310. 5 Bac. Abr. 1.

        Plea
        Suffolk Ss. Common Pleas April 1771.
        Coburn plt. vs.White Deft. } Defendant’s plea of Tender &c.
        And the said Robert White comes and defends &c. and as to seven pounds six shillings and Eight Pence, parcell of said sum of Nine Pounds, 14s. 8d. in the first Count in said Declaration mentioned, saith the said John ought not to recover against him the said Robert any further Damages than the said £7 6s. 8d. because he says that the said Robert from the Time of making his said Promise for Payment of said Sum of £7 6s. 8d. (which promise he made for Cash or Money lent him by the said John and for Eight Weeks board, as severally charged in the Account annexed to the Writ) was always ready and now is ready to pay the same to the said John; and he the said Robert before the day of suing forth the said Johns said Writ, vizt. on the Fifth day of January last, at said Boston, offered to pay and tendered the said sum of £7 6s. 8d., then and there to the said John, and the said John then and there refused to accept the same sum; and the said Robert hath ever since been ready to pay the same sum to the said John, and now brings the same into Court ready to pay the same to the said John if he will accept it: And all this the said Robert is ready to verify: Wherefore the said Robert prays Judgment, if the said John, shall have and recover of him on this suit any further Damages than the said sum of £7 6s. 8d. as aforesaid; and for his Costs. Samuel Quincy for Defendant
         And as to the sum of Two Pounds Eight Shillings, Residue of the said £9 14s. 8d. in said first Count in said Declaration mentioned the said Robert says he never promised the said John in manner and Form as he declares against him and thereof puts &c. S.Q.
         And the said John likewise.
         And the said Robert White comes and defends &c. and as to the said £7 4s. in said second Count in said Declaration mentioned saith the said John ought not to have and recover any further Damages against him than the said £7 4s. Because he says, that from the Time of making his said Promise for Payment of said sum of seven Pounds, four Shillings (which said Promise he made for Eight Weeks Board in the said John’s House) he was always ready and still is ready to pay the same to the said John; and he the said Robert before the Purchase of the said Johns Writ, viz. on the Fifth day of January last, at said Boston, offered to pay, and then and there tendered to the said John said sum of £7 4s., and the said John then and there utterly refused to accept the same; and the said Robert hath ever since been ready to pay the same Sum to the said John, and now brings the same into Court ready to be paid to the said John, if he will receive it; and all this the said Robert is ready to verify; wherefore, the said Robert prays Judgment if the said John shall have and recover against him on this suit any further Damages than the said sum of Seven Pounds four Shillings as aforesaid, and for his Costs. S.Q. pro Defendente
         And as to the sum of £2 8s. in said second Count in said Declaration mentioned, the said Robert White saith he never promised the said John in manner and form as he declared against him and thereof puts &c. S.Q.
         And the said John likewise.

         XV

         Writ of Intrusion

        Brayton vs. Robinson
        Attach Eliza. Robinson &c. to answer unto Israel Brayton of Swansey &c., in a Plea of Ejectment, wherein he demands against the said Eliza, a Messuage and Twelve Acres of Land in Swansey bounded &c.  and is bounded all round by Land now in the Possession of the said Israel, and its appurtenances, which demanded Premisses were formerly in the Possession of one John Brayton of said Swansey, and which the said Israel Claims as his Right and Inheritance and into which, the said Elizabeth Robinson had no Entry, but by Intrusion which she made upon the same after the Death of Ruth Brayton who was the Wife of the said John Brayton and which Messuage and Lands were assigned to the said Ruth as her Dower of certain Lands which formerly belonged to the said John Brayton by Preserved Brayton to whom the Reversion of the demanded Premisses belonged, and who devised them to the Demandant his Son and his Heirs, Whereupon the said Israel saith, that the said Preserved Brayton in a Time of Peace in the Reign of our late Royal Grandfather was seized of the demanded Premisses in his Demesne as of Fee, taking the Profits thereof to the Yearly Value of Ten Pounds by the Year and being so seized afterwards vizt. on the Eighth Day of December Anno Domini 1753 by his Deed of that Date in Court to be produced, assigned and sett off, to the said Ruth Brayton the demanded Premisses as her Dower in a certain Messuage of about 100 Acres of Land in said Swansey of which the demanded Premisses, is part, and of which same Messuage and Land before that time, and since the Intermarriage of the said John and Ruth, the said John Brayton who was deceased before the date of the same deed, was seized in his Demesne as of Fee, and delivered Seisin thereof to the said Ruth and thereupon the said Ruth, then and there, vizt. at said Swansey in the said Eighth Day of December, A.D. 1753, accepted of said demanded and assigned Premisses in full satisfaction of her said Right of Dower and entered into the same, and held them as Tenant in Dower of her said Husband, John Brayton, on the said assignment of the said Preserved Brayton as aforesaid and was seized thereof in her Demesne as of Freehold in a Time of Peace in the Reign of our late Royal Grandfather, taking the Profits thereof, to the amount of Forty shilling by the Year, and afterwards vizt. on the 7. day of Decr. A.D. 1759. the said Preserved Brayton to whom the Reversion in Fee of the demanded Premisses belonged, and of which he was then seized at Swansey aforesaid made his last Will and Testament in Writing and therein devised his said Reversion to the demanded Premisses, to the Demandant and his Heirs, and afterwards, vizt. on the 21. day of May A.D. 1761 the said Preserved at said Swansey died seized of the said Reversion to the demanded Premisses, by Force of which Devise the said Israel became seized of said Reversion in Fee simple, and afterwards vizt. on the 26. day of July A.D. 1770 the said Ruth Brayton at said Swansey died seized of said Estate in Dower, and into which demanded Premisses the said Elizabeth had no Entry, but by an Intrusion therein made by her as aforesaid, after the death of the said Ruth Brayton who held as aforesaid, and after the Death of the said Ruth Brayton, the said Israel Brayton ought to be in quiet and peaceable Possession and Seisin of the demanded Premisses; yet the said Eliza. having intruded therein unjustly holds the Demandant out of the Possession of the demanded Premisses, To the Damage &c.
        Quaere of this Writ?

         XVI

        Trespass. Assault, arrest and Imprisonment.
        Palmes vs. Greenleaf
        Summon Stephen Greenleaf &c. to answer to Richard Palmes of Boston &c. in a Plea of Trespass, for that the said Stephen at said Boston in the 1st. day of August last with Force and Arms, and without any lawfull Cause did assault, arrest, and imprison the said Richard, and without any lawfull Cause or Warrant did there hold and keep the said Richard in Prison and in his Custody, till to obtain his the said Richards Discharge he was by the said Stephen obliged to enter into a certain Recognizance in the sum of a hundred Pounds to appear at the then next Superior Court of Judicature, Court of Assize and General Goal Delivery to be holden at Boston in and for said County of Suffolk, and other Enormities the said Stephen then and there did to the said Richard contrary to Law and against our Peace and to the Damages &c.

         XVII

        Case vs. Master for not transporting Goods according to Bill of Lading.
        McLean vs. McEwen.
        Attach James McEwen &c. to answer unto Donald McClean of our City of N. York &c., Physician, in a Plea of Trespass on the Case, for that the said James on the 15th. day of Feb. A.D. 1766 at N. York aforesaid had received in and upon the Snow called the Peggy, whereof the said James was then Master, bound on a Voyage from New York aforesaid to Leith in that Part of our Kingdom of Great Britain called Scotland, in good order and well conditioned, diverse Goods of him the said Donald, vizt. one Tierce containing 255 Pounds Weight of Snake Root of the Value of £43 Lawfull Money &c.—to be transported by him the said James in the said Snow from New York aforesaid to Leith aforesaid and there to be delivered to Hector McClean, or his assigns for a certain Hire, by the said Hector to the said James to be paid, thereupon, vizt. one Pound Twelve Shillings Sterling, in Consideration whereof the said James afterwards vizt. on the same 15. day of Feb. aforesaid at said Boston, promised the said Donald that he the said James would carry and transport for the said Donald the said Goods from N. York aforesaid to Leith aforesaid and the same Goods to the said Hector McClean or his assigns at Leith aforesaid would safely and securely deliver (the Dangers of the Seas only excepted): And the said Donald avers that the said James after making the Promise aforesaid vizt. on the first day of April Anno Domini 1766 safely arrived in the Snow aforesaid at Grenoch in that Part of our said Kingdom of Great Britain call’d Scotland, from N. York aforesaid with the said Tierce and Barrell safe on board the said snow: And altho the said Hector McClean from the Time of making the Promise aforesaid by the said James, was always ready and still is ready to pay the said James the said Hire agreed to be paid him as aforesaid, for transporting the said Goods as aforesaid: yet the said James did not carry the Goods aforesaid to Leith aforesaid, nor hath he ever delivered the same or any Part of them to the said Hector McClean, or to his assigns according to his Promise aforesaid or in any manner performed his said Promise, tho often thereto requested, but hitherto hath wholly refused and still doth refuse to deliver the said Goods as aforesaid or to perform his said Promise.
        To the Damage &c.

         XVIII

        Debt. For a Legacy.
        Loring vs. Loring.
        Summon Mary Loring &c. as she is Executrix of the last Will and Testament of Policarpus Loring to answer Thomas Loring of &c. as he is Administrator of all and singular the Goods and Chattells, Rights and Credits which were of Lydia Loring late of said Plimton Widow deceased intestate, in a plea of Debt, for that one Caleb Loring, of said Plimton, on the 22d day of January A.D. 1731, at said Plimton, made and duely executed his last Will and Testament in Writing, which Will was afterwards duely proved and approved, which Will and the Probate thereof in Court shall be produced, and in and by said last Will, the said Caleb among other things gave to the said Lydia, who was then living and the said Caleb’s wife £40 a year, yearly to be paid her, by his two Sons Ignatius and Policarpus (the said Mary’s aforesaid Testator) so long as the Furnace in Plimton should be improved and She the said Lydia remain his the said Caleb’s Widow, in Consideration that he did in that his Will aforesaid, give his two Sons aforesaid his eighth part of said Furnace. And the said Caleb in and by his said Will gave and bequeathed unto his two Sons aforesaid (who were then in full Life) their Heirs and Assigns his eighth part of the Furnace in Plimton aforesaid, with the priviledges thereto belonging; and thereby ordered them to pay to his aforesaid Wife, the sum of £40 yearly and every year, so long as the Furnace should be improved, and his said Wife should remain his Widow: And afterwards at said Plimton, viz. on the 22d day of December A.D. 1732 the said Caleb died, living leaving his said Wife and two Sons; and afterwards there the said Ignatius and Policarpus by virtue of the Devise aforesaid in said last Will to them made, entered into and became possessed of the said eighth part of said furnace, as Jointenants in Fee simple, and thereupon became jointly chargeable to pay the said Annuity or Legacy of £40 a year to the said Lydia as aforesaid. And the said Ignatius and Policarpus continued during their joint lives jointly to improve the said Eighth part of said Furnace: And there afterwards on the 9th day of April A.D. 1742 the said Ignatius died, living his Mother aforesaid the said Lydia and his aforesaid Brother Policarpus, whereupon both the Right to the Eighth part of the Furnace aforesaid and the obligation to pay the Legacy or Annuity aforesaid, survived to the said Policarpus, who became bound to pay the same to the said Lydia according to the Will aforesaid.
        Now the Plaintiff in fact says that the furnace aforesaid in Plimton has been improved from the day of the date of said Caleb’s aforesaid Will, untill this day, and the said Lydia lived and remained unmarried, the Widow of the said Caleb, from his death until the 28th day of March A.D. 1771. Nevertheless the said Ignatius and Policarpus never paid the Legacy aforesaid, or any part thereof, to the said Lydia, during the Life time of the said Ignatius and Policarpus, nor did the said Policarpus in his Life time ever pay the said Legacy or any part thereof to the said Lydia, during his Lifetime, nor has the said Mary Loring Executrix as aforesaid since her Testator’s decease ever paid the said Legacy or any part thereof, to the said Lydia in her Life time, or to the said Thomas Loring Administrator as aforesaid since his Intestate’s decease, but detains it.
        To the damage of the said Thomas in his said Capacity as he saith £2000.
         Adams

         XIX

        Case. Assumpsit against an executor for a legacy.
        Gore et ux. v. Gould
        Summon Joseph Gould of &c. Sole Executor &c. to answer J. Gore. and A. his Wife, in a Plea of Trespass on the Case, for that the said John Gould Testator, at &c. on &c.—made and duely executed his last Will and Testament in Writing and therein among other Things, bequeathed to his daughter the said Abigail the Sum of £13 6s. 8d. lawfull Money, to be paid her in three Years after his decease, vizt. £4 8s. 10d. thereof to be allowed and paid her by the said Testators Son John, £4 8s. 11d. thereof by his son Samuel, and £4 8s. 1 id. thereof by his said son Joseph, whom he therein appointed sole Executor, of his said Will: And after making and executing his said Will the said John Gould the father at said &c. on &c.—died seized and possessed of a real and personal Estate sufficient to pay all his funeral Expenses and Debts and to pay and satisfy all his Bequests and Legacies in his said Will and afterwards to wit on &c.—at &c.—

        the said last Will, was by the said Joseph Executor as aforesaid, presented to the then Judge of the Probate of Wills &c. for said County, to whom the Probate thereof appertained, and the same last Will was by the same Judge, then and there duely proved and approved an authenticated Copy of which Will and the Probate thereof in Court shall be produced and the said Joseph then and there accepted the said Trust, and undertook the Administration, of the said Testators Estate, according to the Tenor and Intent of said Will, and received all the said Estate into his Hands for that Purpose and thereby became obliged to pay the Legacy aforesaid to the Plaintiff according to the Will and Intent of said Testator and in Consideration thereof, promised at &c.—on &c., but hath not paid it tho requested often and at &c.—on &c.
        To the Damage &c.

        XX
        Debt. For not exhibiting a true Inventory of the Testator’s Effects.
        Woodward vs. Fisher
        Attach &c. Daniel Fisher i.e. as executor of Jeremiah Fisher to answer Richard Woodward and Deborah his wife in a plea of Debt, for that the said J. on the 5th Day of Apl. made his last Will and Testament, and therein appointed his Son in Law N. Ames and his Son D. Fisher joint Executors of that his last Will &c. and thereby gave and bequeathed to the said Deborah among other things an uncertain residuary Legacy and on  died, leaving a considerable Estate there and elsewhere, both real and personal, and among many other things leaving a Bond under the Hand and Seal of S. Laucher, &c. bearing Date, wherein and whereby the said S. Laucher bound himself to the said J.F. who was then living in the Sum of £80, conditiond per the payment to the said J. (his Executors &c.) of the Sum of £40 13 4 of Lawful money with lawful Interest therefor on &c.; which Bond was the property of the said J.F. at his Death and thin i.e. then due and wholly unpaid. And the said Daniel undertook to execute the said Will (the said N. the other Executor in said Will having died before the Testator at said Dedham) and on &c. presented the said Will to the Honble. T. Hutchinson Esqr. Judge and Probate of Wills for the County &c., who on  comitted the Administration of the said J’s Estate, accordingly to his Son in Law N. Ames, and his Son D. Fisher Executors in the same Will named, well and faithfully to execute the said Will and to administer the Estate of said Deceased according thereunto, and to make a true and perfect Inventory of all and singular the Goods, Chattles &c. of said Deceased and to exhibit the same into the Registry of the Court of Probate for the County &c. at or before the Day—And also to rendir a plain and true Account of said Administration upon Oath, and the foremention’d Bond then came to the said Daniel’s Hands and Knowledge—Yet the said D. did not give Bond pursuant to the Law in that Case provided to pay the Debts and Legacies of the said J. and tho the Judge of Probate &c. did not enlarge the time for the said D’s rendering into his Register’s Office a full and true Inventory of the said J’s whole Estate upon Oath beyound the said Day of &c. and notwithstanding the Honble. T.H. Esqr. on Judge on —— caused the said D to be cited to appear at the Probate Office &c. to exhibit more particularly a full and true Inventory of the Estate of the said J. yet the said D. has not exhibited into the said Office an Inventory of the said Bond, or any Sum of Money due to said Estate for or upon it altho’ the said D. before &c. had demanded and received the principal and Interest due upon said Bond of the said S. Laucher, whereby and by Force of the Acts of this Province in that case provided the said D has forfeited to the Plaintiff the sum of £3200 for thirty two Months Neglect therein from &c. to —— which he has not paid but unjustly detains to the damage ——.
        Adams

         XXI

        Case. For a false Return.
        Pierpont vs. Phipps.
        Summon David Phips of Cambridge in our County of Middlesex Esqr. and Sheriff of said County of Middlesex to answer Robert Pierpont of Boston in said County of Suffolk Gentleman in a plea of Trespass upon the Case, for that the said Robert by the Consideration of our Justices of our Superior Court of Judicature Court of Assize and general Goal Delivery holden at Boston within our County of Suffolk, and for our County of Suffolk, on the lastt Tuesday of August in the eleventh Year of our Reign, recoverd Judgment against William Barber in our County of Middlesex Merchant for the sum of £227 16s. 2d. Lawful Money of Massachusetts Great Britain, Damage and for the sum of three Pounds, Seven Shillings and two Pence Lawfull Money of the Province of Massachusetts Bay, Cost of Suit, as to us appears of Record, and thereupon afterwards vizt. on the eleventh Day of September in the eleventh Year of our Reign, took out of the Clerks office of our said Court our Writ of Execution in Form as by the Law of this Province is prescribed directed to the Sheriff of our said County of Middlesex, his under Sheriff or Deputy, returnable to our said Superior Court of Judicature Court of Assize and General Goal delivery holden at Boston within our said County of Suffolk, upon the third Tuesday of February there next and at Boston aforesaid, on the same eleventh day of September, in the said eleventh Year of our Reign, delivered the same to one Joseph Butler, then being and untill the return thereof and ever since continuing to be one of the said David’s Deputy Sheriffs, for whose default and misconduct in this said Office the said David is answerable which was by the said Joseph accordingly returned to the same Court in the following words and Figures vizt. “February 18 1772 Received Fifty two pounds Fourteen shillings on this Execution and order the officer to return this Execution so far satisfyed Robert Pierpont.
        “Middlesex Feby. 18th 1772 I return this Execution but in part satisfyed as above by order of the Creditor Joseph Butler, Deputy Sheriff,” as to us appears of Record.

        Whereupon the said Robert Pierpont, afterwards vizt. on the twenty Third day of March in the twelfth Year of our Reign took out of the Clerks Office of the same Court our Alias Writ of Execution for one Hundred eighty eight pounds five shillings and ten pence Lawfull Money of Great Britain, and said sum of three Pounds seven shillings and two pence Lawfull Money of the Province aforesaid Costs of suit in form as by the Law of this Province is in such Cases prescribed directed to the Sheriff of our said County of Middlesex, his under-sherriff or Deputy returnable to our superior Court of Judicature, and general Goal Delivery holden at Boston within our said County of Suffolk upon the last Tuesday of August then next and the said Robert afterwards at said Boston, on the same twenty third day of March in the twelvth Year of our Reign delivered our same alias Writ of Execution to the said Joseph Butler being then and ever since one of the said Davids Deputy Sheriffs for said County of Middlesex to be by him executed served and returned to our same Court according to our Command therein given: And the said Joseph might and could have executed served and returned the same accordingly, Yet the said Joseph Butler in no wise regarding his said office but contriving and fraudulently intending, him the said Robert in this behalf to injure, and deceive and him to hinder and wholly deprive of the Obtaining his Debt and Damages aforesaid, afterwards viz. on the twenty fifth day of August Anno Domini 1772 falsely and fraudulently made return of the same Execution to our same Court in the Words and figures following vizt. “Middlesex Ss. April  Received £100 Lawful Money in part of the within Execution equal to seventy Five Pounds Sterling.” Robert Pierpont. “Middlesex Ss. August 25, 1772 Received one Hundred Pounds of Lawfull Money in Part Satisfaction of this Execution and paid the same over to the Creditor and took his Receipt as above therefor, the Creditor declining to levy this Execution on the real Estate of the Debtor and having directed me not to take the Debtor’s Body and I not being able to find any Goods or Chattels of the Debtor for the further Satisfaction of this Execution, do return it satisfied in Part as above mentioned. Joseph Butler Deputy Sherriff”

        And the said Robert avers that the said last mentioned Return is false and fraudulent, and that in Truth, the said Robert the Creditor aforesaid never did direct him the said Joseph Butler not to take the said William Barber the aforesaid Debtor’s Body and the said Robert also further avers that after the delivery of the said last mentioned Execution to the said Joseph Butler and before the Return day thereof the said Joseph was able to find and well and easily might and could have found Goods and Chattels of the said Barbers the aforesaid Debtor within his the said Butlers Precinct in the further and full Satisfaction of that Execution by which false and fraudulent return the same Robert is not only deprived of his Remedy for the obtaining of the Damages aforesaid and Costs aforesaid against the said Barber, who always after the return last aforesaid in a place unknown to the said Robert hath been hiding and skulking and hath wholly concealed Person Goods and estate so that they cannot be come at but also the same Robert his Damages yet unpaid being £113 55. 10d. of Lawful Money of the Province aforesaid and the further sum of Three Shillings and nine Pence like Money of said Province for the two Executions aforesaid so as aforesaid recoverd both wholly Lost. To the Damage of the said Robert as he saith two Hundred Pounds.

         XXII

         Case for diminution of water in a stream.

        Clark vs. McCarney.
        Attach Michael McCarney, &c. to answer Richard Clark, &c. in a Plea of Trespass on the Case, for that one James Boies of said Milton Gentleman on the Twenty ninth day of June A.D. 1765, was seized in Fee, and possess’d of a certain Paper Mill in said Milton, with its appurtenances, erected and standing upon or near to Neponsit River, and also of the Right and Priviledge of, in, and unto the whole of the Stream of said River, and of the Head or Pond of Water therein, upon which Pond, or near to the same, the said Paper Mill stands, and from which Pond, or Head of Water the same Paper Mill was, and is supplied with Water to carry and work the same: and being then so seized and possessed of the said Paper Mill and its appurtenances, and of the said stream, Pond, and Head of Water, He the said James Boies, on the same 29. June A.D. 1765. at said Milton, by his Deed of that Date under his Hand and Seal, duely executed, acknowledged and recorded, and in Court to be produced, for a valuable Consideration in said Deed mentioned, among other Things, granted and conveyed to the said Richard Clark, and to his Heirs and Assigns forever in Fee simple, the one Moiety or half Part in Common and undivided of the said Paper Mill, and the Appurtenances thereto belonging, together with the one Moiety or half Part of all the said James’s Right and Interest in the Stream of Water aforesaid, the said Paper Mill to have the commanding Part of said Stream, from the first of May to the first day of October following Yearly, and the equal half of said stream the remaining Part of the Year forever. To Hold the said granted Premisses to him the said Richard, his Heirs and Assigns forever. By virtue of which said Grant, the said Richard then entered into, and became possessed, of the said granted Premisses, and hath ever since held the same. That since the making the Grant aforesaid to the said Richard, another Paper Mill hath been erected upon the same Stream and is supplied with Water from the same Pond or Head of Water aforesaid: That on the Thirtyeth Day of July last, at said Milton, the Water in said Neponsit River was so low, that it was not sufficient to supply both said Mills, and keep them both going in a proper Manner, at the same Time: Whereupon the said Richard, who was then and there improving his said Mill in making Paper, finding that the Water failed and that there was not sufficient to keep his said Mill going and at Work in a proper Manner, unless the other said Mill last built as aforesaid, which was then going, and the Water drawn off to supply it, was stopped, then and there went to the said Michael, who was then actually in the occupation and Improvement of the said other Mill, and keeping the same going, and drawing off the said Water, to supply the said other Mill, and acquainted him the said Michael with the Premisses, and that there was not sufficient Water to supply both the said Mills at that Time, and that his the said Richards Mill must stop, for Want of sufficient Water to keep it going unless he the said Michael would shutt his Water Gate and stop his Mill in order to give him the said Richard the whole Use and Command of the said Stream for that Time according to the Grant made to him as aforesaid: and he the said Richard then and there requested the said Michael to shut his the said Michaels Water Gate and to stop his said Mill accordingly, for that Time, and for the Purpose aforesaid: that the said Michael then and there absolutely refused to shut his said Water Gate and to stop his said Mill, tho thereto requested as aforesaid; but continued his said Water Gate open and to draw off the Water of said Stream from said Pond, and Head of Water therein and to keep his said Mill going: By means whereof the said Richard had not sufficient Water left to him to keep his said Mill going, and at Work in a proper manner, but was greatly hindered and retarded in the Use of his said Mill and in his Business, and his said Mill was Stopped for want of sufficient Water, and he could not proceed in his Business of making Paper for the space of 30 days. To the Damage &c. £150.
        Plea in Abatement
        Suffolk Ss. Court of Common Pleas Octr. A.D. 1772.
        Richard Clark Plaintiff
        vs.
        Michael McCarney
        And the said McCarney, by Josiah Quincy Jnr. his attorney comes and defends &c. When &c and prays oyer of the said Deed of the said James Boyes, to the said Richard Clarke, mentioned in the Plaintiff’s said Writ and Declaration, and hath it, and the same is read to him the said McCarney in the Words and Tenor thereof, which appear by the said Deed filed in the Case; which said Deed being read and heard, the said McCarney saith that the Plaintiff’s said Writ and Declaration are bad and ought to abate.
        1. Because by the Plaintiff’s own shewing in his said Writ and Declaration, that one James Boies is tenant in Common with the Plaintiff in the said Paper Mill, and in the said Right Priviledge and Interest, of and in the said Stream of Water, mentioned in the Plaintiff’s said Writ and Declaration, which said James ought by Law to have joined in the said Action, brought against the said McCarney.
        2ly. Because by the said Deed of the said Boies to the said Clark in the Case, it appears, that the said Boies and Clark are Jointenants of the said Paper-Mill and the same Right, Priviledge and Interest in the said Stream of Water, which said Boies ought by Law, to have joined in the said Action, brought against the said McCarney.
        3. Because by the Plaintiff’s own shewing in his said Writ and Declaration he made a Demand upon the said McCarney for the whole Use and Command of the said Stream for that Time mentioned in the Plaintiff’s Writ and Declaration: Whereas the said pretended Grant therein mentioned was only of the Commanding Part thereof; and for this supposed Denial, of this unwarrantable Demand of the said Clark, he hath brought his said Action.
        4. Because the said Clark in his said Writ and Declaration, hath not anywhere suggested, or properly set forth, that the said McCarney had any Right or Authority to shut down said Water Gate, or stop said last erected Mill, whereof one Hugh McLean, and the said James Boies were at the Time of the supposed Denial and ever since Tenants in Common in Fee simple, and thereof then and ever since in actual and full Seisin and Possession.
        5. Because the said McCarney would have been a Trespasser and Wrong Doer had he complied with and obeyed said Demand of the said Clark, for a Non Compliance of which, he hath brought his said Action. All which the said McCarney is ready to verify: wherefore he prays Judgment of the Writ and Declaration aforesaid; that the same may abate and for his Costs.

         XXIII

        Debt upon a Bond.
        Metcalf vs. Hall
        For Pleadings in a similar Case vid. 3 Ld. Ray. 275 &c.
        Defendant pleads as follows.
        Suffolk Ss. Common Pleas. July A.D. 1772
        Hannah Metcalf Plaintiff vs. Jeremiah Hall Defendant.

        And the said Hall comes and defends &c. and craves oyer of the said obligation and it is read to him &c. He likewise craves oyer of the Condition of the same obligation, and it is read to him in these Words, Ss.
        “The condition of this obligation is such, that if the above bounden Jeremiah Hall, his Heirs, Executors, Administrators or Either of them, shall and do, for his, or their Part, in all manner and every Thing, or Things, well and truly observe, perform, fulfill, accomplish, all and singular the Covenants and Agreements whatsoever, which on his or their Part are or ought to be observed, as menshened in a sarting Articals and Agreements indented and baring Evin Date with theis Presents made between Jeremiah Hall, on the one Part and Hannah Metcalf and Debory Metcalf on the other Parte, whose Names are abovementioned, and that in and by all Things, According to the said Articals, with ought Covent, then this present obligation to be void and of none Effect, or else to remain in full Force and vartor virtue during there Lives.”
        Which being read and heard, the said Jeremiah Hall saith that the said Hannah and Deborah Metcalf, their Action aforesaid thereof, against him ought not to have or maintain, because he saith, that he the said Jeremiah Hall, for his Part, in all Manner and in every Thing and Things well and truly hath observed, performed, fullfilled, accomplished, all and singular, the Covenants and Agreements, whatsoever which on his Part, are, or ought to be observed, as menshened in a Sarting Articals and Agreements indented and baring even Date with the said Bond, made between Jeremiah Hall, on the one Part and Hannah Metcalf and Debory Metcalf on the other Parte, whose Names are mentioned in the same Bond, and in and by all Things, according to the said Articals, with ought Covent. And this the said Jeremiah Hall is ready to verify: Wherefore he prayeth Judgment, if the said Hannah and Deborah their Action aforesaid thereof against him, ought to have or maintain.
         Josiah Quincy

         XXIV

         Replevin. Of a Sloop hypothecated.
         Rob. Mercer and Jno. Ramsay vs. Edward Moffat.
         seal Suffolk Ss. George the third by the Grace of God of Great Britain, France and Ireland, King, Defender of the Faith &c.

        To the Sherriff or Marshall of the said County of Suffolk, his Undersherriff or Deputy, or Constable of Boston within the said County or to any or Either of them, Greeting.
        In his Majestys Name you are required, to replevie the sloop or Vessell called the Industry of the Burden of about Twenty five Tons, with her Tackle and Apparel belonging to Robert Mercer and John Ramsay of our City of New York in our County and Province of New York, Merchants, now distrained kept or impounded by Edward Moffat, now residing in Boston in our said County of Suffolk Mariner, and deliver the said sloop or Vessell with her Tackle and Apparell unto the said Robert Mercer and John Ramsay: And summons the said Edward Moffat to appear before our Justices of our Inferior Court of Common Pleas, next to be holden at Boston, within and for our County of Suffolk aforesaid, on the first Tuesday of January next, then and there in our said Court to answer to the said Robert Mercer and John Ramsay, in a Plea of Replevin: For that the said Sloop or Vessell, on the first day of January Anno Domini 1771 was at New York, a Place so called vizt. in Boston aforesaid upon a Voyage from New Providence one of our Bahama Islands, and back again, and was greatly out of Repair, and in Want of many Necessaries, as well to repair and refit the said Vessell as to furnish her with stores and other Things necessary to enable her to prosecute pursue, and finish the said Voyage, and one John Petty Mariner was then and there legal Master of said Sloop or Vessell and had the Care and command of her, for and during the said Voyage, and was thereunto duely authorized and appointed, and was necessitated to take upon the Adventure of said Sloop or Vessell the sum of two hundred and Eighty four Pounds Twelve shillings and five Pence current Money of our said Province of New York, for making Repairs, and discharging the Repairs made upon said Vessell, and furnishing her with Necessaries to set forth on, and pursue her said Voyage, and without which She could not have proceeded on said Voyage: which said sum the said Robert Mercer and John Ramsay, supplied and paid to the said John Petty, for the Purpose aforesaid, at his Request, at the Rate of Eight Pounds Per Cent for said sum, for and during the said Voyage: And the said John Petty, then and there, vizt. on the said first day of January Anno Domini 1771 at said Place called New York viz. in Boston aforesaid, by a certain Bill, or Instrument in Writing of Bottomree, and Hypothecation of that Date under his Hand and Seal, duely executed and in Court to be produced, in Consideration of the said Sum, supplied and paid him as aforesaid, did covenant grant, promise and agree to and with the said Robert Mercer and John Ramsay that the said Sloop or Vessell should depart from the Port of the said City of New York on her said Voyage to Providence on or before the tenth day of January aforesaid and as Wind and Weather would permit, should proceed on her said Voyage without Delay: And the said John Petty further, by the same Instrument, or Bill of Bottomree and Hypothecation, for the Consideration aforesaid, did then and there, vizt. on the said first day of January aforesaid at said Place called New York vizt. in Boston aforesaid, grant, bind, hypothecate and pledge the said sloop or Vessell, with the Freight, Tackle and Apparel of the same, to the said Robert Mercer and John Ramsay their Executors, Administrators and Assigns to pay them the full sum of £307 currant Money of our said Province of New York in 10 days next after the said Sloop or Vessell Arrived at Providence aforesaid; and the said John Petty did then and there by the same Instrument or Bill, further covenant with the said Robert Mercer and John Ramsay, that the said Sloop or Vessell, with her freight, Tackle, and Apparell, should at all Times after the said Voyage be lyable and chargeable to and with the Payment of the said sum of £307 currant Money aforesaid, to them the said Robert Mercer and John Ramsay; and by the same Instrument or Bill it was then and there further provided, declared and agreed by and between the said Parties to the same, that in Case the said Sloop or Vessell should be lost, miscarry, or be cast away before her Arrival at Providence aforesaid, that then the Payment of the said sum of £307 current Money aforesaid should not be demanded or be recovered by the said Robert Mercer and John Ramsay; and that the loss thereby should be wholly born and sustained by them; and that every Act, matter and Thing in said Instrument or Bill contained, on the Part and Behalf of the said John Petty, should be void: And the said Robert Mercer and John Ramsay aver, that the said Sloop or Vessell did depart from the said Port of the City of New York as aforesaid, and within the Time limited for her departure as aforesaid: and did proceed on her said Voyage, and arrived safely at Providence aforesaid on the 10th, day of Feby. Anno Domini 1771, and was not lost nor did she miscarry, nor was she cast away: And that the said sum of £307 (which is equal in Value to £230 5s. Lawfull Money of our Province of the Massachusetts Bay) hath never been paid to them the said Robert Mercer and John Ramsay or any Part thereof; whereby the said Sloop or Vessell with her Tackle and Apparel hath become forfeited, and belongs to them, and that they ought to be in Possession of the same. And that the said Edward Moffat, on the 16 day of October last at Boston aforesaid took the said Sloop or Vessell with her Tackle and Apparell belonging to the said Robert Mercer and John Ramsay the present Plantiffs: and the said sloop or Vessell, with her said Tackle and Apparell carried away and kept at a Place called the Long Wharf in Boston aforesaid, and there unjustly detained against Pledges and Sureties till this day; which is to the Damage of the said Robert Mercer and John Ramsay as they say the sum of £300 lawfull Money aforesaid, as shall then and there appear, with other due Damages: Provided the said Robert Mercer and John Ramsay give Bond to the Value of £300 lawfull Money aforesaid, with sufficient surety or sureties to prosecute their said Replevin, at the said next inferiour Court of common Pleas, and so from Court to Court untill the Cause be ended, and to pay such Costs and Damages as the said Edward Moffat shall recover against them. Hereof fail not and make due return of this Writ with your Doings therein unto the said Court. Witness Eliakim Hutchinson Esqr. &c.

         XXV

        Debt on judgment.
        Palmer v. Noyes
        Attach &c. to answer unto Joseph Palmer of &c. in our said County of Suffolk Merchant in a Plea of Debt for that the said Joseph by the Consideration of our Justices of our Inferior Court of Common Pleas holden at Boston within and for our County of Suffolk aforesaid on the first Tuesday of October Anno Domini 1771 recovered Judgment by the Names and Additions of Joseph Palmer &c. both in our said County, against the said Joseph Noyes for the sum of 36 pounds 14/ and 4 pence of Lawful Money Damage and two pounds 17/ and 6d. Costs of Suit, as by the record thereof in our said Court remaining appears which Judgment remains in its full force and Unsatisfied whereby an Action hath arisen to the Plaintiff to recover those sums against the said Joseph Noyes yet he hath not either of them, tho often requested but detains them.

         XXVI

        Ejectment by Lease, Entry and Ouster.
        Laughton vs. Pitts et als.
        Summon James Pitts Esq. Charles Dabney and James Sumner &c. to answer to William Laughton, of Boston &c. Tayler, in a Plea why they the said James Pitts, Charles Dabney and James Sumner, with Force and Arms a Part of a Messuage, Part of a shop and other Buildings, with two certain strips or Parcells of Land, under and adjoining thereto, situate in said Boston and bounded as follows vizt. &c. one line blank in MS with the Appurtenances, which William Warden of said Boston Peruke maker and Sarah his Wife, demised to the said William Laughton for a Term which is not yet past, entered and him from his farm aforesaid ejected, and committed other outrages upon him to the great Damage of the said William Laughton, and against our Peace,
        And whereupon the same William Laughton complains and saith that the said William Warden and Sarah his Wife on the Sixteenth day of this present June, in the 13 Year of our Reign at Boston aforesaid in the County aforesaid demised to the same William Laughton the Tenements aforesaid with the appurtenances to have and to hold to the same aforesaid William Laughton and his assigns, the same Tenements aforesaid, with the appurtenances, from the said sixteenth day of June aforesaid for and during the full Term of three Years, from thence next ensuing to be compleat and ended, by Virtue of which demise, the same William Laughton into the Tenements aforesaid with the Appurtenances entered and was thereof possessed; and he the said William Laughton being so thereof possessed, the said James Pitts, Charles Dabney and James Sumner, afterwards, to wit, the same 16 day of June aforesaid with Force and arms &c. into the Tenements aforesaid with the Appurtenances which the said William Warden and Sarah his wife, to the said William Laughton demised in form aforesaid for the Term aforesaid which is not yet passed, entered, and him the said William Laughton from his farm aforesaid ejected, and other outrages they the said James Pitts, Charles Dabney, and James Sumner, then and there did against our peace and to the Damage &c.

         XXVII

        Case for diverting Water from a Trench, Mill and Land.
        Boies vs. Gillespie.
        Attach A. Gillespie &c. to answer to J. Boies &c. in a Plea of Trespass on the Case, for that whereas the said J. Boies was on &c. to &c. seized in his Demesne as of fee of a certain Water Mill comonly called the Slitting-Mill and of a parcel of Land containing by Estimation 13 Acres or thereabouts near adjoining to said Mill with the Appurtenances situate on or near a Trench in a place between the upper and the lower dam so called in Milton aforesaid; and the said J. Boies and all those whose Estate he hath, in the Mill and parcel of Land aforesaid have and ought to have, and from time immemorial have been accustomed and ought to have the Benefit of a certain Water or Water-Course commonly called Neponset River, running from a Spring in said Milton commonly called Charles River from thence to the said place there in said Milton commonly call’d the upper Dam and increases a certain Water-Course River, or Stream of Water, which runs from and by the said upper Dam thro’ a certain place there call’d the Trench to the said Mill of the Plaintiff there situate between the said upper and lower Dam as aforesaid; And the said A. Gillespie well knowing the premises but maliciously contriving, and fraudulently intending him the said J. Boies of the profits and Commodity of his said Mill and parcell of Land altogether to deprive, on the Day of the purchase of this Writ and on divers other days and times between the said first day of January and the day of the purchase of this Writ in Dorchester aforesaid the Bank of Inclosure of the Water Course aforesaid which runs from the spring aforesaid and increases the Watercourse River or Stream of Water aforesaid which runs as aforesaid from and by the said upper Dam thro’ the Trench aforesaid to the Mill of the Plaintiff so much broke, cut, dug, carried away and threw down or caused to be cut, broke, dug, carried away and thrown down, and the Water aforesaid so much diverted or caused to be diverted that by means of the breaking, cutting, digging, carrying away, throwing down and diversion aforesaid, the said Mill of the Plaintiff call’d the Slitting Mill for want of sufficient Water running in the ancient Course thereof, could not slit or work so well or commodiously; and the said parcel of Land was greatly damnified, whereby the said J. Boies lost great part of the profits of the said Mill and parcel of Land aforesaid for a long time viz. on the day of the purchase of the Writ and divers other days and times between the said first day of January and the said Day of the purchase of this Writ, and more especially the Plaintiff lost the Benefit, profit and Advantage of cutting and slitting two Tons of Iron at said Milton on the same day which lay there ready at said Mill to be cut and slit, and the plaintiff avers that every thing was then and there ready for the purpose of slitting and cutting the said Two Tons of Iron excepting water sufficient for commodiously working the said slitting Mill, which water was then and there diverted and turned away out of it’s said antient Course by the said A. Gillespie in Manner as aforesaid.
        And also for that wheras the said J. Boies on &c. and for three years last past was and now is seized in fee and possessed of, and in an antient Messuage, and a certain other Tract of Land containing by Estimation 13 Acres or thereabouts with the Appurtenances in Milton in the County aforesaid which same Tract lieth contiguous and adjoining on the North Side, to a certain antient Water Course called Neponset River, which runs and time out of mind hath run and used and of right ought to run from a certain Spring head called Charles River in Milton aforesaid to, in, and by the said last mentioned Tract of Land of the plaintiff and his Messuage aforesaid thro’ a certain other Trench there by the same Tract of Land quite up to, by, and beyond the lower Dam there so called adjoining a certain other Tract there being and belonging to the plaintiff, notwithstanding which, the said A. Gillespie (not ignorant of the premises, but contriving and maliciously intending to frustrate and hinder the said J. Boies from the use and Benefit of the same Water Course) on the day of the purchase of this Writ and on divers other days and times between the said 1st Jany. and the said Day of the purchase of this Writ in Dorchester aforesaid dug, broke up, and cut away a certain bank or Inclosure of the said Water-Course and thereby diverted the same Water Course from the Water Course of the said J. Boies; by which the said J. Boies was greatly injured and deprived of and lost a very great part of the use profit Benefit and Advantage of the said Water Course for a long time viz. on the day of the purchase of this Writ and also from the said 1 Jany. to the said day of the purchase of this Writ: Ad damnum £300.

         XXVIII

        Trespass.
        Ditson vs. Small.
        Attach &c. John Small &c. to answer John Ditson &c. in a Plea of Trespass for that the said John Small, at Dunstable &c. on the first day of January Anno Domini 1771 with Force and Arms, broke and entered the Plantiffs Close in Dunstable aforesaid, containing &c. bounded &c. and being so entered with Force as aforesaid cut down and carried away one hundred Trees the Property of the said John Ditson to the Value of 2s. each, erected a Fence on the said Land of the Plantiffs, dug up the Soil and the Grass of him the said John Ditson in the Close aforesaid then growing with certain Cattle and Teams, oxen and Carts did eat up, tread down and destroy, the Trespass aforesaid as to the cutting down and carrying away the Trees as aforesaid and as to the Eating up, treading down and destroying the Grass aforesaid with the Cattle aforesaid from the aforesaid first day of January Anno Domini 1771 to the Day of the Purchase of this Writ, at Sundry days and Times continuing, and many other Enormities the said John Small did to the said John Ditson against our Peace and to the Damage &c.

         XXIX

        Borrowing.
        Stone et al. v. Littlefield.
        Attach &c. to answer in a plea of the case for that upon the 4 Octr. &c. at &c. the said J. borrowed and received of the Plaintiffs 11 Gall. of Barbadoes Spirit, worth £ 2–13–4 and in consideration thereof the said J. then and there promised the plaintiffs to repay them 11 Gall, of the same sort of Spirit when he should be requested so to do; Now the said &c. say that afterwards viz. on &c. at &c. they requested the said J. to return and redeliver to them 11 Gall, of the said Spirit, but the said J. then refused and still refuses to deliver to the Plaintiffs 11 Gall, of said Spirit and so has broken his promise aforesaid.
         Kent


Title: Editorial Note
From:
To:

       This complex litigation, a landmark in the history of Martha’s Vineyard, arose out of an unhappy family situation. The genealogical as well as the legal involutions of these cases being what they were, a sketch of the members of the great Mayhew clan of Martha’s Vineyard mainly concerned, and of their relationships, is almost essential to an understanding of the legal issues. The chief figure on one side was Dr. Matthew Mayhew (1721–1805), a physician who was repeatedly a representative to the General Court and, from 1761, a Justice of the Peace at Chilmark, the village where all the action in the cases occurred. Allied with him was his wife’s brother, Robert Allen (1732–1792), the coroner of the County of Dukes County.
       A sister of Dr. Mayhew, Hannah, had married into the other and much more extensive family faction. Her husband was Zephaniah Mayhew (1715–1751), a son of Bethiah (Wadsworth) Mayhew. Among their children who were to play parts in the physical and legal scuffles of the 1760’s were Lucinda (1739–1815), Wadsworth (1741–1829), and another Zephaniah (b. 1745). Bethiah, widow since 1733 of an elder Zephaniah, was the embattled “old lady” of the trial records.
       The feud seems to have begun after the death of the younger Zephaniah, husband of Hannah, in 1751. Though the details are obscure, his widow appears to have handled her affairs and brought up her numerous children in a manner so irksome to Dr. Mayhew that, it was said by those who disliked him, he “sought all occasions, to ruin and destroy them.” With the backing of her husband’s family, Hannah evidently succeeded fairly well, at least for a time, in fending off the effects of her brother’s ill-will.
       By 1762 the widowed Bethiah and three of her daughters—Jerusha (1717–1793), Bethiah the younger (b. 1723), and Mercy (1725–1825)—as well as the widowed Hannah and several of her children were domiciled in the Chilmark household of the elder Bethiah’s nephew, Zaccheus Mayhew (1723–1775). Zaccheus, the son of the late Colonel (Judge) Zaccheus Mayhew, was one of the most prominent members of a family always prominent in the Vineyard; in the documents he is never called by his Christian name but always deferentially Squire (“Esqr.”) Mayhew. Zaccheus was married to Rebecca, and had numerous children of his own, including, it seems, Lucy (sometimes confused with her cousin Lucinda, Hannah’s daughter).
       Strong-mindedness was evidently endemic among the Mayhew women, notably the elder Bethiah and her daughter Jerusha; but Dr. Mayhew eventually found, or thought he found, a vulnerable point in their defenses. In 1744 Mercy Mayhew had married Abel Chase, a hatter of Edgartown. After bearing Chase two sons, Mercy quarreled with him and went to live with her mother, taking her younger son Zeph, who was actually, however, articled to his grandmother until he reached the age of fourteen. Zeph turned fourteen in 1762 and his father wanted him back. The new chapters in the old feud began when Chase applied to Justice of the Peace Doctor Matthew Mayhew for legal help in forcing the women to give up the boy. What happened thereafter is told in the documents printed here.
       The case fast became “a quarrell of the most invidious, inveterate and irreconcileable nature.” Conflicting testimony abounded. Some of it appears in the minutes which follow; more may be found in a large collection of depositions and processes in the Superior Court Files. Adams remarked years later, “it was impossible for human Sagacity to discover on which Side Justice lay.” The years have not resolved the problem. We propose now merely to describe the procedural framework.
       Legal matters commenced with Abel Chase’s giving the warrant for Zeph’s return to Deputy Sheriff Cornelius Bassett. When Bassett went for Zeph at Bethiah’s house on 1 June 1762, the boy evaded him. It does not appear that Bassett made any return on the warrant; thus the warrant remained effective, a fact which was to become important later on. Bassett did however formally complain to Justice Matthew Mayhew that Jerusha Mayhew, her sister Mercy Chase, and Lucy Mayhew had rescued Zeph out of his hands. The Justice then issued a warrant, dated 1 June 1762, directed to “one of the Coroners” of Dukes County for the arrest of the three women.
       Coroner Robert Allen took the writ. It is not clear whether he attempted to execute it immediately, although there is some evidence that he at least read the process to Jerusha on 1 June. On 9 October 1762 Allen brought Jerusha physically before the Justice, who bound her over to the next Sessions at £5. Jerusha refusing to post the bail, Justice Mayhew ordered her committed and issued a mittimus.
       Now began Jerusha’s lengthy attempt to foil Allen. On 11 October 1762 he went to take her but forbore when she pleaded illness and when Deacon Timothy Mayhew promised that she would go on the 15th or “the next fare day.” Allen returned on the 19th and the 20th, but still Jerusha would not go, even though on the 20th Allen himself agreed to be one of her bondsmen. On the 25th, Allen came to the house once more, this time with Thomas Lothrop as aid, and repeated his offer. Like almost everything else in the case, what happened next is uncertain. One of Jerusha’s witnesses said that Allen manhandled Jerusha as she lay in bed and had threatened her with a whip; Lothrop said that Jerusha called Allen a liar and used him “with Uncivility,” whereupon Allen told her that if she were a man he would horsewhip her. Allen asked Wadsworth Mayhew to aid him, but Wadsworth, the Mayhews said, was deaf. According to Allen and Lothrop, Wadsworth rescued Jerusha out of Allen’s hands.
       Now it was Allen’s turn to swear out a complaint, this one at the Court of General Sessions of the Peace which was then sitting at Tisbury. A warrant for the arrest of Wadsworth Mayhew issued, dated 26 October 1762 and directed to the sheriff or his deputy. It is clear that Bassett took the warrant, but the evidence is confused as to whether or not he agreed to wait until the next day before executing it. At any rate, he summoned a number of men to aid him and set off at about 9:30 P.M. on the 26th for Bethiah’s house, where Wadsworth was supposed to be. To cloud the picture further, there was evidence that he had the old warrant for Zeph in his pocket and intended to execute that as well.
       From the depositions of members of the Aid, it appears that Bassett’s group stole silently toward the house and surrounded it. Bassett went to the front door, demanded entrance, heard a voice cry “Fire the gun,” and received a charge of buckshot in the legs. He and his men then broke down the door and entered the house. Inside, Bethiah Mayhew, although seated in a chair, began belaboring Bassett with a three-foot stave. Seizing it to protect himself, he pulled her onto the floor. More pulling and hauling ensued before “the People then Grew Moderate.” Wadsworth, being securely tied, was then carried to jail and the Sessions.
       Wadsworth, Bethiah Jr, and Bethiah Sr. were all indicted for criminal assault by the Grand Jury at the May 1763 sitting of the Superior Court at Barnstable, but only Wadsworth was ever tried. In May 1764 the jury brought in a verdict of guilty, which the court rejected.
       Meanwhile, the civil litigation multiplied. Jerusha sued Allen, Bassett sued Bethiah Sr, and Bethiah Sr. sued Bassett. Bethiah Jr. later was admitted as a party in all actions, while Lucinda Mayhew was admitted to the action against Allen, and Wadsworth was admitted to the actions against Bassett. The litigation wound its way from the Edgartown Inferior Court to the Barnstable Superior Court, where finally, in May 1764, all the cases were submitted to three referees: Gamaliel Bradford, Josiah Edson, and Ebenezer Spooner. In August 1764, the referees attempted to hear the cases, but Jerusha interposed a series of objections which succeeded in postponing the hearings for a year. Finally, on 29 August 1765, the hearings commenced. The minutes which follow as Documents I and II, by Adams and Robert Treat Paine respectively, memorialize the proceedings before the referees. Adams was of counsel for Bassett and Allen, and Paine for the Mayhews. It appears from the minutes that the cross actions between Bassett and the Mayhews were tried together.
       After hearing the evidence and the arguments, the referees found against Allen in favor of Jerusha, £6; for Bethiah Jr, 20 shillings; and for Lucinda, 20 shillings. They also found against Bassett and awarded Bethiah Sr. £4; Wadsworth, £3; and Bethiah Jr, 20 shillings. In addition, Allen had to pay court and reference costs of £30 16s. 11d. Bassett’s costs were £43 8s. 4d. The controversy remained alive until 1768, by which time Bethiah Sr. had died and Bethiah Jr. as her executor prayed execution against Bassett for the £4 damages and costs. Adams interposed a multipart defense, of which the following sentence is sufficiently illustrative to stand as a commentary on the entire case: “And the said Cornelius Bassett comes and defends, &c. and Saith that this Writ is bad and ought to abate for that 1. It is in said Writ alledged that said Bethiah Mayhew before the Justices of the Superior Court of Judicature, &c. holden at Barnstable within said County of Barnstable and for the Countys of Barnstable and Dukes County, on the second Wednesday of May in the Sixth Year of his Majesty’s Reign and by the Consideration of said Justices recovered the Judgment mentioned in said writ which by Law ought not to have been alleged if the said judgment should have been alleged to have been recovered on the Wednesday preceeding the third Tuesday in May in said year.”
       Apparently Adams never pressed the technicality, for the final Record entry is: “The Defendant makes default”; that is, the defendant allowed the plaintiff to prevail by default.