Balston v. Atwater

2 Rec. Co. Ct. 578

Opinion

Jonathan Balston Senior plaint. agt Joshua Atwater senr Defendant in an action of the case for nonpaiment of thirty pounds one Shilling & nine pence in mony due for three hogs hds of Sugar sold the sd Atwater in the yeare. 1671. & all due damages according to attachmt Dat. aprill 22° 1675 . . . the Jury . . . founde for the plaint, thirty pounds one Shilling & nine pence in mony damage & costs of Court, the Defendt appealed from this judgemt unto the next Court of Assistants & himselfe principall in £60. Benjn Gibbs & Jeremía Dummer Sureties in £30. apeice acknowledged themselves respectiuely bound to . . . prosecute his appeale . . .

[ Atwater’s Reasons of Appeal (S. F. 1411.2) offer little of interest, and he withdrew the action when the appeal went before the Court of Assistants (Records, i. 44); but the following document (S. F. 1411.3) seems worth preserving, if only for its spelling:

To the Honered Corte of Assists Sitting in Boston sept: [75]

Johnathun Bolstons his Answer to Mr Joshoway Atwaters Reasons of Appeale

[Torn] whare the nou plantiue Sayth that the then plantiue [torn] no Just Ground of Axtion: the then plantiue did euedent Ley ma[ke re]por to the Corte and Juery that he had Just Grounds of Axtion and dusnot question but this Honered Cort and Jurey will find the same: if th[ey] du but sere[yo]sley Considur the then plantiues Acompt and oth which the nou plantiue Cols a Contridixion: for the a Compt ye then plantiue gaue in wos tru: for In his forst A compt he did omit the shuger be Cos: he: Rekine[d] he had bin payd forit but after wards Mr Atwater Recouers that mon[i] which the nou defendant had Reseued for the shuger: sothat thou ye nou defendant had no grounds of Axtion be fore Mr Atwater had [torn]d his moni bale again: yt nou he hath Just Grounds: for noue [torn] not payd for his shuger nor: nauer shud if he had not sued for it [torn] I hope thare is no man but will say that it is Reson that if Mr Atwater Hes his moni bale a gain which moni he payd for the shuger, but that I shud be payd sum way for my shuger: if yu mind his a Compt you will find that he Charges all the moni that Eauer the nou defendnt Had of Him but yu will not find a word of the shuger thare soe that I think It would be a hard Case If I must a loue for all the moni I had of him and he haue 3hh of shuger of me and a loue me not on pene as per his a Count will a per. he oned he had the shuger in priuit as is proued: and All a Long in Cort he oned he had the shuger yet he giues in his A Compt and swares to It: and nauer taks ani notis of the shuger and yet he Cols my a Compt fols: but His not giuein me Credit for the shuger and yt swares it is a tru a Compt which as I Humbley Con seues maks his A compt and oth to of Litill walle if not all to Gather fols: be sids all this Mr Atwoter and my selfe wonc Came to a rekening quicldey after this shuger wos dele[uer]d and then we set this moni which Mr Atwotter hes sene Recouered bak of for the shuger and thar for when we Rekined we brot nither to a Compt and them he oned he oued me 11li odmoni as will aper by my Accompt: and I wonder that Mr Atwoter shud when we Rekined [worn] be willing that this moni shud go for the shuger and [after] wards su for it a game and nou is not willing to a loue me anithing for it but I hope the Cort and Jurey dus Ritley undestand the Case as the former Cort did thar for I shall say no more but subscribe myselfe as I [am] yr honers Humbill Saruant

Jonath[an] B[als]ton ]