Fogg v. Wms

2 Rec. Co. Ct. 656

• Court: New York County Court, Suffolk County
• Decided: January 25, 1675
• Status: Published

Opinion

Ezekiel Fogg & Compa plaints agt John Williams Defdt in an action of the case upon accot to the value of twenty six pounds one Shilling & five pence or thereabouts being for goods sold & delivered himselfe & Capt Tho: Frizell in consortship as per saide Acc° will more evidently appeare with all due damages according to attachmt dat. Janury 5th 1675. . . . The Jury . . . founde for the plaint, the ballance of the Accot nine pounds Seventeen Shillings & five pence in mony & costs of Court Fifteen Shillings ten pence

Execucion issued Febry. 2d 1675

[ A case respecting the Lynn Ironworks, Fogg being some sort of agent for the English Company of Undertakers. As a result of his losing an action with Hudson Leverett at the previous January session (above, p. 546), Fogg was consigned to jail, whence he issued the following petition to the Court of Assistants (S. F. 1472.3):

To The Right: Honnorbl Governor And Worppll Maiestrates Setting on Bench: in the: Honnoble Court of Assistence

The Humble Petion: of Ezekiell Fogg: A Disconnsolate Prisonor Hummbly sheweth

That yor Peticionr being Committed vppon Execution. whare hath Layne Alredy Euer Sence the 5th of Febry Last & Like heere to Continnew till releefe from England: wch will bee a Long tyme before Can Exspect Instructions from our Compan. vppon whose accott I am this Sufferer I haueing Advannced vpwards of 2 or 300li: more then haue Effects of theires in my hands. & through Mr Giffards Fraudulent Dealeing in not paying what he ought but Consumeing our Compan: stocke in his private Conceames or at Least Combineing with our Servants at whose Suite I am heere. wch Seemes to be Euedent by Reason as hee is at Liburttie. & yett the princeple. that ought to a benn taken with this Execution and not I: besides no Longer Sence then Last night hee Came to mee in an vpbrayding manor Flinging the Sentence of ye Court (for my Folly) in my teeth Contrarye to Law: after a Courts Sentence is Sattisfied butt with very reproachfull Languedg & Dreadfull Cursses did hee abuse mee: vppon my requesting of him to help mee to Fortye od shillings that I Lately Lent him in mony out of my Poekett wch would Now in my restraint a Done mee a kindnes: but instead thereof hee flew out in Such a radge Saying the Divell should: haue mee. & the Like, hasting out of my Chamber: with these Expressions that I should Lye heere & Rott Dubleing of it that I should Lye heere till Dice ware made of my boones before I should Com out. Implyeing thereby: my Abideing heere is of his Contryvience or Combinnation as before recited: by wch may See that the mercyes of men are Crueltie who at the worst Can but reach the body yet to be heere: Destitute of Publiqe ordennances: is preiuditiell: to the Soule: which I know yor Honnors in Contience are soe tender off that noe prisonor (Desiereing) might be Depriued of those Gospell privell[e]dges; which God hath Appoynted in his Publiqe Worshipp: Therefore yor Petitieor Doth humbly Pray yor Honnors will please Soe to Consider the premmieses as Vouchsafe mee yor honnors Ordor, for the Libertie of Goeing to meeteing on Sabath & Lector Dayse that I might Experience whilst men Curse God blesse & by Gods Blessing vndor Publique ordinances receue Soule Inlardgment: whilst vndor Bodyly Restraint: And alsoe Sume tymmes would Craue the Libertie to See my Sicke Brother who hath by ye visseting hand of God Keept his bed & Chamber in this towne about this 6 mounths that Soe wee might: be a Little Comfortt to each other for he is vncapiable of visseting mee. Thus haueing Discharged my Contienc in appeareing not neclegent in ye vse of meanes in what in me Lyeth: in this my adress to yor honors in whose brest & powre it is I haueing to ye Keeper alredy given no Les then 600li. Sofitient Securitie for my Faithfull Imprisonment And shall Comend the Effect: & my Cause to the wise Disposuer of all things not yor honnors redines of Adheereing to Such a Christian act & Reasonable Request the Answareing of wch will Deepely obleig yor Honnors humble And Confind Petitieor as in Dutye boutid ever to pray:That yor Peticionr being Committed vppon Execution. whare hath Layne Alredy Euer Sence the 5th of Febry Last & Like heere to Continnew till releefe from England: wch will bee a Long tyme before Can Exspect Instructions from our Compan. vppon whose accott I am this Sufferer I haueing Advannced vpwards of 2 or 300li: more then haue Effects of theires in my hands. & through Mr Giffards Fraudulent Dealeing in not paying what he ought but Consumeing our Compan: stocke in his private Conceames or at Least Combineing with our Servants at whose Suite I am heere. wch Seemes to be Euedent by Reason as hee is at Liburttie. & yett the princeple. that ought to a benn taken with this Execution and not I: besides no Longer Sence then Last night hee Came to mee in an vpbrayding manor Flinging the Sentence of ye Court (for my Folly) in my teeth Contrarye to Law: after a Courts Sentence is Sattisfied butt with very reproachfull Languedg & Dreadfull Cursses did hee abuse mee: vppon my requesting of him to help mee to Fortye od shillings that I Lately Lent him in mony out of my Poekett wch would Now in my restraint a Done mee a kindnes: but instead thereof hee flew out in Such a radge Saying the Divell should: haue mee. & the Like, hasting out of my Chamber: with these Expressions that I should Lye heere & Rott Dubleing of it that I should Lye heere till Dice ware made of my boones before I should Com out. Implyeing thereby: my Abideing heere is of his Contryvience or Combinnation as before recited: by wch may See that the mercyes of men are Crueltie who at the worst Can but reach the body yet to be heere: Destitute of Publiqe ordennances: is preiuditiell: to the Soule: which I know yor Honnors in Contience are soe tender off that noe prisonor (Desiereing) might be Depriued of those Gospell privell[e]dges; which God hath Appoynted in his Publiqe Worshipp: Therefore yor Petitieor Doth humbly Pray yor Honnors will please Soe to Consider the premmieses as Vouchsafe mee yor honnors Ordor, for the Libertie of Goeing to meeteing on Sabath & Lector Dayse that I might Experience whilst men Curse God blesse & by Gods Blessing vndor Publique ordinances receue Soule Inlardgment: whilst vndor Bodyly Restraint: And alsoe Sume tymmes would Craue the Libertie to See my Sicke Brother who hath by ye visseting hand of God Keept his bed & Chamber in this towne about this 6 mounths that Soe wee might: be a Little Comfortt to each other for he is vncapiable of visseting mee. Thus haueing Discharged my Contienc in appeareing not neclegent in ye vse of meanes in what in me Lyeth: in this my adress to yor honors in whose brest & powre it is I haueing to ye Keeper alredy given no Les then 600li. Sofitient Securitie for my Faithfull Imprisonment And shall Comend the Effect: & my Cause to the wise Disposuer of all things not yor honnors redines of Adheereing to Such a Christian act & Reasonable Request the Answareing of wch will Deepely obleig yor Honnors humble And Confind Petitieor as in Dutye boutid ever to pray:That yor Peticionr being Committed vppon Execution. whare hath Layne Alredy Euer Sence the 5th of Febry Last & Like heere to Continnew till releefe from England: wch will bee a Long tyme before Can Exspect Instructions from our Compan. vppon whose accott I am this Sufferer I haueing Advannced vpwards of 2 or 300li: more then haue Effects of theires in my hands. & through Mr Giffards Fraudulent Dealeing in not paying what he ought but Consumeing our Compan: stocke in his private Conceames or at Least Combineing with our Servants at whose Suite I am heere. wch Seemes to be Euedent by Reason as hee is at Liburttie. & yett the princeple. that ought to a benn taken with this Execution and not I: besides no Longer Sence then Last night hee Came to mee in an vpbrayding manor Flinging the Sentence of ye Court (for my Folly) in my teeth Contrarye to Law: after a Courts Sentence is Sattisfied butt with very reproachfull Languedg & Dreadfull Cursses did hee abuse mee: vppon my requesting of him to help mee to Fortye od shillings that I Lately Lent him in mony out of my Poekett wch would Now in my restraint a Done mee a kindnes: but instead thereof hee flew out in Such a radge Saying the Divell should: haue mee. & the Like, hasting out of my Chamber: with these Expressions that I should Lye heere & Rott Dubleing of it that I should Lye heere till Dice ware made of my boones before I should Com out. Implyeing thereby: my Abideing heere is of his Contryvience or Combinnation as before recited: by wch may See that the mercyes of men are Crueltie who at the worst Can but reach the body yet to be heere: Destitute of Publiqe ordennances: is preiuditiell: to the Soule: which I know yor Honnors in Contience are soe tender off that noe prisonor (Desiereing) might be Depriued of those Gospell privell[e]dges; which God hath Appoynted in his Publiqe Worshipp: Therefore yor Petitieor Doth humbly Pray yor Honnors will please Soe to Consider the premmieses as Vouchsafe mee yor honnors Ordor, for the Libertie of Goeing to meeteing on Sabath & Lector Dayse that I might Experience whilst men Curse God blesse & by Gods Blessing vndor Publique ordinances receue Soule Inlardgment: whilst vndor Bodyly Restraint: And alsoe Sume tymmes would Craue the Libertie to See my Sicke Brother who hath by ye visseting hand of God Keept his bed & Chamber in this towne about this 6 mounths that Soe wee might: be a Little Comfortt to each other for he is vncapiable of visseting mee. Thus haueing Discharged my Contienc in appeareing not neclegent in ye vse of meanes in what in me Lyeth: in this my adress to yor honors in whose brest & powre it is I haueing to ye Keeper alredy given no Les then 600li. Sofitient Securitie for my Faithfull Imprisonment And shall Comend the Effect: & my Cause to the wise Disposuer of all things not yor honnors redines of Adheereing to Such a Christian act & Reasonable Request the Answareing of wch will Deepely obleig yor Honnors humble And Confind Petitieor as in Dutye boutid ever to pray:That yor Peticionr being Committed vppon Execution. whare hath Layne Alredy Euer Sence the 5th of Febry Last & Like heere to Continnew till releefe from England: wch will bee a Long tyme before Can Exspect Instructions from our Compan. vppon whose accott I am this Sufferer I haueing Advannced vpwards of 2 or 300li: more then haue Effects of theires in my hands. & through Mr Giffards Fraudulent Dealeing in not paying what he ought but Consumeing our Compan: stocke in his private Conceames or at Least Combineing with our Servants at whose Suite I am heere. wch Seemes to be Euedent by Reason as hee is at Liburttie. & yett the princeple. that ought to a benn taken with this Execution and not I: besides no Longer Sence then Last night hee Came to mee in an vpbrayding manor Flinging the Sentence of ye Court (for my Folly) in my teeth Contrarye to Law: after a Courts Sentence is Sattisfied butt with very reproachfull Languedg & Dreadfull Cursses did hee abuse mee: vppon my requesting of him to help mee to Fortye od shillings that I Lately Lent him in mony out of my Poekett wch would Now in my restraint a Done mee a kindnes: but instead thereof hee flew out in Such a radge Saying the Divell should: haue mee. & the Like, hasting out of my Chamber: with these Expressions that I should Lye heere & Rott Dubleing of it that I should Lye heere till Dice ware made of my boones before I should Com out. Implyeing thereby: my Abideing heere is of his Contryvience or Combinnation as before recited: by wch may See that the mercyes of men are Crueltie who at the worst Can but reach the body yet to be heere: Destitute of Publiqe ordennances: is preiuditiell: to the Soule: which I know yor Honnors in Contience are soe tender off that noe prisonor (Desiereing) might be Depriued of those Gospell privell[e]dges; which God hath Appoynted in his Publiqe Worshipp: Therefore yor Petitieor Doth humbly Pray yor Honnors will please Soe to Consider the premmieses as Vouchsafe mee yor honnors Ordor, for the Libertie of Goeing to meeteing on Sabath & Lector Dayse that I might Experience whilst men Curse God blesse & by Gods Blessing vndor Publique ordinances receue Soule Inlardgment: whilst vndor Bodyly Restraint: And alsoe Sume tymmes would Craue the Libertie to See my Sicke Brother who hath by ye visseting hand of God Keept his bed & Chamber in this towne about this 6 mounths that Soe wee might: be a Little Comfortt to each other for he is vncapiable of visseting mee. Thus haueing Discharged my Contienc in appeareing not neclegent in ye vse of meanes in what in me Lyeth: in this my adress to yor honors in whose brest & powre it is I haueing to ye Keeper alredy given no Les then 600li. Sofitient Securitie for my Faithfull Imprisonment And shall Comend the Effect: & my Cause to the wise Disposuer of all things not yor honnors redines of Adheereing to Such a Christian act & Reasonable Request the Answareing of wch will Deepely obleig yor Honnors humble And Confind Petitieor as in Dutye boutid ever to pray:

Boston Prison: Whilst I Am: Ezekiell Fogg

the. 2d of: 1st m° 7⅘ 1674

5 march 1674

In Ansr to this peticion the Court Declares that when the peticione hath honestly pajd his Debts he may be at his liberty altogether

past ERS

To which Gifford replied with a counter-petition (S. F. 1472.5):

To the Honoble the Gover And Maiestrates Now Setting in the honored Court of Assistance In Boston:

The remonstrans of John Giffard to the honorable Courte. Humblye sheweth:

That wheras yor honors haue beene presented with a petion from mr Fogg wherein he makes many Scandilous Complai[nts] against me thereby to defame me both to this honord Court and Countrye. As not desirous to be ouer troublesome to your honors in your more waitee affaires yet giue me leaue a little to remonstrate the truth in answer to his Scandilous and hollowharted petition. As to his furst relation yt he giues of his Imprisonment. He may thanke himselfe haueing Convayde away Soe much of the Compa estate as he hath done, and Soe largely Spent vpon it. and hath Soe large and estate as he hath at New yorke betweene 5 and 6 hundred pounds, which can be prooved by oath from his owne mouth and hath still estate remaineing of ye Compa in his hands which he hath made ouer to mr Sands for his Securetye, he becomeing Securetye for mr fogg to be a true prisoner as in his petition he demonstrates. Now he knowes that what estate was Committed to him from the Compa was to be improoved for the Carring on of the Compa affaires in the workes, which vpon my request and others that desired him to furnish the workemen but with 20 pound which would haue stopt these prosedeings. he answred he would not (noe if 5s would doe it, but he keepes me both out of my owne estate and Compa estate to make and estate to himselfe, lett what will be come of workes or workemen And where as he sayes he hath advanst vpwards of 2 or 300 pounds more then he hath efects it is noe Such thing, for it is well knowne to the Compa and my Selfe he neuer brought a farthing into Stock, what he hath Spent and liued vpon must be raysed out of our estates. And in Case he will haue that to be true the like must belong to me as well as him being partnors in neere 300 pound worth of goods Bough[t] out of England in ioynt ship betweene us that had noe relation to the Compa he keepes both this, and that which is of the Compa and trades with as he please and will not furnish me with any to helpe forward our business, though I lye at the [Stake] for what euer he can Claime in England which If I might intreat that favor of your honors to Consider of and to put me in Some way that I might force estate out of his hands to Carry our business and End with.

To what he Chargis me with fraudelensye in my dealings and Consumeing the Compa estate. I waye not his charge haueing the testimonye of owne Consience to the Contrarye that I haue and doe studdye the good of the Compa and were it that I had of my owne to make present Supply by turneing in to moneys the Compa Conserne should not want nor shall Soe long as I Can helpe it, it haueing layne vpon my shoulders now this 6 moneths time and more without any assistance from him but to those Chargis of his he may lay his hand vpon his mouth and looke back on himselfe and Consider how easy Such things wilbe prooved against him, he haueing Soe vainely and wickedly Spent that estate wch would haue Carryed our business and end with out any further trouble.

As for my abradeing of him with reproachfull language and dredfull Curses. I denye, and question not but your honors haue knowledge of him and Countrye both what a Iyer he hath made himselfe out to be. I haue beene heere in the Countrye I thanke God neere this 35 yeere I know not yt any can Charge me either with Curseing or Swareing or that I euer was adicted there vnto but that it was euer hatefull to me, and through Gods helpe euer shall but that which layes this Seandall vpon me for, is, for what testimonye I haue borne against him, for his vitious Course, when he toolce a Cup of Sack in his hand and holding of it vp (as if he would Call heauen to record to showe his Cleereness and Innosensy in the last Sinfull business yt was before yor honors, that I stopt his hand and bore wittniss against him, he then abraded me, to the Spectators that was present and no[w] he thus doth againe because he knowes wt advise I gaue him to take heed of his actions in prison where he had a prissnor, that was reported to be mr[s] Gillum made in his Chamber in the darke, non but him and she alone for a great Space of time, which Can be testifyed by Mr Grice that went in to the Chamber, and what he sayd to mr fogg after I was Come away, which indeed telling him of these things with out abradeing of him he fell abaseing of me with words, where vpon I told him that if this wa[s] all the thanks I had for my loue he should stay in prison long enough tell dice might be made of his bones before I would Come to See him.

Thus hopeing that his Slanderous tounge will not occasion your honors to looke vpon me with that Eye that mr fogg would render me to be [ ]

your honors humble Sarvant

John Giffard

March: 5th 1674/5

The following account, for which Fogg sued, is in S. F. 1472.7:

Boston New-England Ann° 1674

John Williams & Capt Thomas Frizell in consortship, to accot of Ezekiel Fogg & Compa are Dr

May. 1

To Sundry goods bought of Ezekiel Fogg Vizt lisd

1000. of. 4d Nayles ...................£00:03:03

1000. of. 6d Nayles ...................£00:04:06

1000. of. 10d Nayles ...................£00:09:06

2. pitt Saws at .8s per pa .................£00:16:00

4 pair of Hose N° 51. at 4s 6d per pair ...........£00:18:00

4. pair ditto N° 52. 5s per pair...............£01:00:00

1. bedtick & boulster...................£00:14:00

3li of black & brown thred ................£00:12:00

2li ½. of whited brown N° 25...............£00:14:06

2° ½ of Needles .2/6 per 0.................£00:05:00

1. paper of Strapeing N° 1 ................£00:05:00

doz. of pinns N° 11 ................£00:08:06

li S d

1. barrell of powder ...................£06:00:00

12li of Shott. 4s.....................£00:04:00

½. doz of Spades.....................£00:16:00

5. rowles of Tobacco. wa 100li at 4d ½. perli.........£01:17:06

2. barrells of Molasses ..................£02:15:00

1. bagg of cotten N° 1. qt 184li ..............£04:19:08

June 24.

36. glasses........................£01:04:00

1. Cuttace .......................£01:15:00

£26:01:05

Errors Excepted per mee Ezekiel Fogg

per Contra Boston New-England. 1674. Credr

May 2. lisd

By Cash received from Capt Thomas Frizell ........£10:07:00

By a discount with Arthur Mason for bread ........£04:05:00

By a paire of Stilliards from Capt Frizell..........£01:12:00

£16:04:00

Rest due to ballance per Contra............ 09:17:05

Summa £26:01:05

Sworn in Court to bee a just & true accot both of debt & Credit, being compared with his Booke January. 26. 1675 @

as Attests Isa Addington Cler.

The case was reviewed at the April session. See below, p. 685.]