This text of 2 Rec. Co. Ct. 572 (Jay v. Woodmansey) is published on Counsel Stack Legal Research, covering New York County Court, Suffolk County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Thomas Jay of Hingham Carpenter plaint. agt John Woodmansey of Boston Defendt in an action of debt to the value of three hundred eighty five pounds two Shillings & eight pence or thereabouts due to the sd Thomas Jay for severall parcells of mony, ninety one pound for a Warehouse by apprizement, timber, plancks, boards & goods as [573]*573appeares by the sd Thomas Jay’s account with all due damages according to attachmt Dat. aprill: 21° 1675 . . . the Jury . . . founde for the plaint, three hundred Eighty Five pounds two Shillings eight pence to bee paide as followeth. vizt £:10:5:0: in mony, Forty Five pound in Fish at price currant & the remainder in provisions at price currant & costs of Court: the Defendt appeald from this judgemt unto the next Court of assistants & himselfe principall in £800. Captn Sam° Scarlett && Joseph Rock Sureties in £400 apeice acknowledged themselves respectiuely bound to . . . prosecute his appeale . . . [308]
[ See Woodmancy v. Joy, p. 129, for the beginning of this litigation, and the audits of their accounts on pp. 145, 149. There is a long account in S. F. 1433.8, from 1659 to 1667.
S. F. 1433.3
Jn° Woodmansey his Reasons of appeale from ye Judgmt of the honord Countey Court held at Boston in Aprill last, to this honord Court of Assistants in the case Depending betweene Tho: Jay & himselfe. vizt:
First. The action being an action of accompt (or of Debt appearing by accompt wch is all one) I apprhend (wth all humble submission) that the then plaintiffe ought to have produced a booke, or bookes, out of weh his prtended accompt was taken, to the end they might have beene examined, & Compared in Court, or by an audit appointed thereto, before he had swome to it, or elce that he should have made some other equivolent proofe, to each article disowned by mee, all which was required of mee & done to effect, before I Could obteine Judgmt against him, therfore I appeale,
2ly: The same action (without any materiall difference hath beene Commenc[ed] against mee by the Pllt divers times, before now, Especially att the County Court in July 1672 as may appeare by the records, & by the Summons here extant, where the then pllt tendred his oath to his then prtended accompt, wch was somewhat different from this, the Court then demaunded his booke that it might be compared & audited, his answer was that his books were too big & too heavy to be brought into Court, meaning as he explained himselfe, the worke he had done for mee (wch was then mentioned as one article in the attachmt & Summons, though not now) in Fine he owned he had noe other bookes, whereupon the honord Court then saw cause to refuse his oath, to his prtended accompt, soe that his actions Could not proceed, which occasioned mee to make a motion in Court, that men might be chosen in Court & appointed to veiw what should be prsented against mee by him, I promiseing to allow whatsoever he could prove, or I Could owne, and men were accordingly appointed, & it is not my Fault that it hath not beene attended, whatsoever the Pllt injuriously prtends, for I often spake to Huegh Druery, who was one of them to promote it, being earnestly desirous to attend the issue in that or any other honest way, & I writt earnestly to the Pllt to that end, a Coppy whereof is here extant, Now may it please this honord Court & jury to consider, that he being then not permitted to sweare soe [574]*574dangerous an oath, to his then prtended accompt, & the case being the same now, I might well expect the same issue, therfore I provided noe other deffence, which I could plentifully have done if I Could have foreseene such an alteration Therfore I Appeale —
3Iy The plaintiffs prtended accompt to wch he hath sworne, consisting of twenty & eight articles, hath not any date to any perticuler charged therein Save only to an apprisemt of one warehouse at Ninety one pound, wch I ever owned & gave him Creditt for, & a wharfe veiwed by Deacon Allin and Huegh Drury upon his misinformation, all the other twenty & Six articles though very considerable summes many of them, & of Fourteene years standing & more from the first, being without dates, & not taken out of any booke but his owne treacherous Memory: it may well be suspected that he hath taken an unsafe oath to my great prjudice, therfore I appeale,
4Iy All the perticulers in difference, are noe otherwise proved then by his owne oath, without booke or date, which if it should passe for Currant, he or any other of like conscience may sweare themselves into an estate att pleasure, & of what dangerous consequence, such prsident may be to others as well as to my selfe, I humbly present & leave to the Serious consideration of this honord Court, As for his eight First articles, together with the thirteenth, ammounting to above two hundred & thirty pounds & part of some other articles to the vallue of Fivety or sixty pounds when Finished, these I ever owned, both in Court & elsewhere, but was never in debt to him for any of them because he was alwayes overpayd beforehand, as will appeare by my account which I gave him, which accompt he putt into the Court (though much corrupted since he had it) except his want of dates to his charge darken the ease, which if it doe, it is evident that I have proved my charge First, but I could never immagine, that upon my owning the greatest part of his prtended accompt the juery would give him the rest, wch I never owned, nor he hath proved, I doe not beleive that was the Courts intention in permitting his oath, But there are in his prtended accompt, twelve or thirteene articles which I utterly deny, as being either not done at all, or not done for mee, (besides divers things, being vallued by himselfe only, are over-rated very much, as the bridge & belconie, wch are prized by him at more then three times the worth of what he did towards them, & other things charged more in quantity then were done for mee, as wharfing &c, or received by mee, as planke &c And though it is difficult to prove Negatives, I am sufficiently able to prove divers articles in his prtended accompt to be false, I instance in the eleventh article of twenty & Six pounds, for part of a frame of a dwelling house, besides six pounds, & other summes about the same house, whereas I never sett him aworke about it, but can Fully prove, that he hath owned to others what he hath often told mee, vizt that he was sett aworke & payd by Captn Olliver for it, & his sonne Joseph Jay who soe earnestly importuned the Countey Court that his Father might take this daungerous oath, & alsoe in his owne oath doth darkely mention this part of the frame of this house, he was one of that juery who found the whole house to be Captn Ollivers & not mine, therfore I am necessitated to appeale,
5ly I Suppose it will appeare, that the plaintife hath dealt fraudolently in the management of this action, not only in introduceing papers into the Court & to the juery, not sworne, nor concerning the case, & yett the Creditt of such persons as have thereunto subscribed, may have some influence upon a Flexible juery, as vizt Captn Davis his note, in which alsoe there is a mistake of the person who [575]
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Thomas Jay of Hingham Carpenter plaint. agt John Woodmansey of Boston Defendt in an action of debt to the value of three hundred eighty five pounds two Shillings & eight pence or thereabouts due to the sd Thomas Jay for severall parcells of mony, ninety one pound for a Warehouse by apprizement, timber, plancks, boards & goods as [573]*573appeares by the sd Thomas Jay’s account with all due damages according to attachmt Dat. aprill: 21° 1675 . . . the Jury . . . founde for the plaint, three hundred Eighty Five pounds two Shillings eight pence to bee paide as followeth. vizt £:10:5:0: in mony, Forty Five pound in Fish at price currant & the remainder in provisions at price currant & costs of Court: the Defendt appeald from this judgemt unto the next Court of assistants & himselfe principall in £800. Captn Sam° Scarlett && Joseph Rock Sureties in £400 apeice acknowledged themselves respectiuely bound to . . . prosecute his appeale . . . [308]
[ See Woodmancy v. Joy, p. 129, for the beginning of this litigation, and the audits of their accounts on pp. 145, 149. There is a long account in S. F. 1433.8, from 1659 to 1667.
S. F. 1433.3
Jn° Woodmansey his Reasons of appeale from ye Judgmt of the honord Countey Court held at Boston in Aprill last, to this honord Court of Assistants in the case Depending betweene Tho: Jay & himselfe. vizt:
First. The action being an action of accompt (or of Debt appearing by accompt wch is all one) I apprhend (wth all humble submission) that the then plaintiffe ought to have produced a booke, or bookes, out of weh his prtended accompt was taken, to the end they might have beene examined, & Compared in Court, or by an audit appointed thereto, before he had swome to it, or elce that he should have made some other equivolent proofe, to each article disowned by mee, all which was required of mee & done to effect, before I Could obteine Judgmt against him, therfore I appeale,
2ly: The same action (without any materiall difference hath beene Commenc[ed] against mee by the Pllt divers times, before now, Especially att the County Court in July 1672 as may appeare by the records, & by the Summons here extant, where the then pllt tendred his oath to his then prtended accompt, wch was somewhat different from this, the Court then demaunded his booke that it might be compared & audited, his answer was that his books were too big & too heavy to be brought into Court, meaning as he explained himselfe, the worke he had done for mee (wch was then mentioned as one article in the attachmt & Summons, though not now) in Fine he owned he had noe other bookes, whereupon the honord Court then saw cause to refuse his oath, to his prtended accompt, soe that his actions Could not proceed, which occasioned mee to make a motion in Court, that men might be chosen in Court & appointed to veiw what should be prsented against mee by him, I promiseing to allow whatsoever he could prove, or I Could owne, and men were accordingly appointed, & it is not my Fault that it hath not beene attended, whatsoever the Pllt injuriously prtends, for I often spake to Huegh Druery, who was one of them to promote it, being earnestly desirous to attend the issue in that or any other honest way, & I writt earnestly to the Pllt to that end, a Coppy whereof is here extant, Now may it please this honord Court & jury to consider, that he being then not permitted to sweare soe [574]*574dangerous an oath, to his then prtended accompt, & the case being the same now, I might well expect the same issue, therfore I provided noe other deffence, which I could plentifully have done if I Could have foreseene such an alteration Therfore I Appeale —
3Iy The plaintiffs prtended accompt to wch he hath sworne, consisting of twenty & eight articles, hath not any date to any perticuler charged therein Save only to an apprisemt of one warehouse at Ninety one pound, wch I ever owned & gave him Creditt for, & a wharfe veiwed by Deacon Allin and Huegh Drury upon his misinformation, all the other twenty & Six articles though very considerable summes many of them, & of Fourteene years standing & more from the first, being without dates, & not taken out of any booke but his owne treacherous Memory: it may well be suspected that he hath taken an unsafe oath to my great prjudice, therfore I appeale,
4Iy All the perticulers in difference, are noe otherwise proved then by his owne oath, without booke or date, which if it should passe for Currant, he or any other of like conscience may sweare themselves into an estate att pleasure, & of what dangerous consequence, such prsident may be to others as well as to my selfe, I humbly present & leave to the Serious consideration of this honord Court, As for his eight First articles, together with the thirteenth, ammounting to above two hundred & thirty pounds & part of some other articles to the vallue of Fivety or sixty pounds when Finished, these I ever owned, both in Court & elsewhere, but was never in debt to him for any of them because he was alwayes overpayd beforehand, as will appeare by my account which I gave him, which accompt he putt into the Court (though much corrupted since he had it) except his want of dates to his charge darken the ease, which if it doe, it is evident that I have proved my charge First, but I could never immagine, that upon my owning the greatest part of his prtended accompt the juery would give him the rest, wch I never owned, nor he hath proved, I doe not beleive that was the Courts intention in permitting his oath, But there are in his prtended accompt, twelve or thirteene articles which I utterly deny, as being either not done at all, or not done for mee, (besides divers things, being vallued by himselfe only, are over-rated very much, as the bridge & belconie, wch are prized by him at more then three times the worth of what he did towards them, & other things charged more in quantity then were done for mee, as wharfing &c, or received by mee, as planke &c And though it is difficult to prove Negatives, I am sufficiently able to prove divers articles in his prtended accompt to be false, I instance in the eleventh article of twenty & Six pounds, for part of a frame of a dwelling house, besides six pounds, & other summes about the same house, whereas I never sett him aworke about it, but can Fully prove, that he hath owned to others what he hath often told mee, vizt that he was sett aworke & payd by Captn Olliver for it, & his sonne Joseph Jay who soe earnestly importuned the Countey Court that his Father might take this daungerous oath, & alsoe in his owne oath doth darkely mention this part of the frame of this house, he was one of that juery who found the whole house to be Captn Ollivers & not mine, therfore I am necessitated to appeale,
5ly I Suppose it will appeare, that the plaintife hath dealt fraudolently in the management of this action, not only in introduceing papers into the Court & to the juery, not sworne, nor concerning the case, & yett the Creditt of such persons as have thereunto subscribed, may have some influence upon a Flexible juery, as vizt Captn Davis his note, in which alsoe there is a mistake of the person who [575]*575sayd there was noe record of the Court order, for it was not I, And alsoe there is a note under the hands of Deacon Allin & Hugh Druery, who only declare what the then pllt told them, But cheifly in that accompt which I gave to Thomas Jay some yeares since, att the end of which I gave him part Creditt soe far as was then cleare, but he hath not only altered that Credit upon my sayd accompt, & soe falsifyed it as I conceive, but added many perticulers to it according to that prtended accompt to which he hath sworne though not in the same method, nor contenting himselfe wth the same summe by which I feare he might somewhat delude the juery, For one of them told me, that he thought I had given him all that Creditt, though since, he hath forgotten it And to evince what I here assert to this honord Court, I have by the Favour of the honord Countey Court obteined the originall paper, putt in by the then plaintiffe, (haveing left a Coppy thereof upon record) in which the addition appeares to be Willm Leatherlands hand, & by Thomas Jay his order as he the sayd Leatherland told mee, all which I humbly Crave this honord Courts serious consideration of, that such irregularityes may be prvented for the Future
6Iy Because the juery hath given the then pllt his whole prtended accompt in wch there are divers articles that are not exprest, nor can any way be intended or included in the attatchmt, which I humbly conceive is contrary to law, & to the Custome of our honord Courts, as for instance, they have given him Fourty & Five pounds to be payd in Fish at price Currant, whereas the attachmt mentions noe Fish, neither was I ever engaged to pay him any Fish, Jts true I received of mr Nieholis Davison of charlestowne, about thirteene or Fourte[en] yeares since, Fourty & Five pounds in Fish, att two payments upon the accompt of Thomas Jay, & by his order, which was in pt of payment, for the great wharfe which he built at Charlstowne for the sayd Davison, and for which I then gave him Creditt, it being in part of what he then owed mee, and he requesting mee to take it in payment for goods, because he Could not otherwise dispose of it to his content And alsoe there are divers articles for worke which are noe way Comprhended in the attachmt, nor yett true in themselves one of which is Fiveteene shillings for helpe in the Cellar, when my wines were oversett, I had noe wines there, but the Cellar was hired by mr Rob* Gibbs, & the wines were his, Now the Cooper haveing let the water into the Cellar, through his forgetfulnese there was dammage & Tho: Jay & his sonnes, being thereabout at worke, were called, & did helpe them a while, & had their Fill of good Mallego wine for their reward, but I sett, them not aworke, neither was I any way Concerned in the matter, Further then to know, how this dammage came because the Cellar was hired of mee, This & many other more considerable articles for worke, are in that prtended accompt, & given to him by the juery, which I humbly conceive is illegall, & a great errour in the juery, And they had alsoe at First given him three or foure pounds more then the summe mentioned in the attatchmt, which I simply Complaining of, the honord Governor was pleased to say that was a sufficient reason of appeale, whereupon they were sent out againe, & they rectifyed only that one errour, leaving the rest to their issue, All which I humbly prsent to this honord Court & juery as the grounds of my appeale from the Judgmt of the honord Countey Court, which gives him more, then I recovered of him, although I can make it appeare he is indebted to mee, to ballance our accompts the best part of a hundred pounds.,
yor humble Appeallant
Jn° Woodmansey
[576]*576These reasons of Appeale were delivered by John Woodmansey into the office this Second of 7br att about 3 of the Clock & received per Jsa Addington: Cler.
Vera: Copia Attestr per Edwd: Rawson Secret
S. F. 1433.4
Joseph Joy Attorney of his father Thomas Joy [torn] answer to John Woodmonsies reasons of Appeal soe cal[d]
first J doe humbly conceive that all the reason contained in his pape[r] called Reasons might have bin comprized in a very small volume the which he hath made to be a wholl sheet of paper full written & therby (as J humbly conceive) hath not prosicuted bis appeal according to Law, which sayeth title Appeals he shall breifly vnder his hand give in his reasons & if his be breif J know not what is long & therfore doe intreate it to be determined by the Bench whither he hath not forfeited his bonds for prosicution of his appeal before the cause goe on. but if J must answer J say.
To his first Jt being an Action of Accoumpt or debt vpon Accoumpt &c. he taketh the boldnes to declare his Apprehentions thervpon & thought the Court & Jury would have bin regulated therby but he was mistaken in his apprehentions & there J leave him
To his second J say he is therin soe long on purpose to puzle both Court & Jury (as J Conceive) & is all a new plea not made in the other Court & therfore ought not to come here & that is my answer.
To his third J answer that every Article of my charge is yet obvious to wit my severall workes done & if J have sworn any thing false he may take A remedy legally & God forbid it should prove soe
To his fourth that by the same practice of swearing any may swear themselves into an Estate J answer he may & that very honestly too the works appearing & J hope J might set a price theron & yt lawfully & swear thervnto as the now plaintif might vpon any of his Goods sold & delivered & if J have wronged him by setting a price too high as he may have done to others there is a Law to punish vs therfore. & after conviction therby he may have a just cause of Review of the Case. And wt he sayeth of A dwelling house is falatious it doth consist of two double houses built at two severall times.
To his fift tedious story J say if it were true wt he sayeth what J did with a paper he sayeth he gave mee & calleth it an Accoumpt sure it was my owne & J might doe with it what J listed & it was nothing materiall to my Action for wt J had Judgment for is evident to all seeing eyes to wit any buildings & his business was to have proved payment & nothing els as J thinke
To his sixt J say the jury gave noe more then was proved & which J now expect to have. & the now plaintif did not then disprove any thing & he is willfully mistaken in saying the Attachment mentioneth noe fish, it doth mention other Goods as in Accoumpt & the Acct mentioneth fish. & he now owneth the receipt of fish of mine. & why should it not be given mee since J am not in his debt And if he had found himself agreived at any thing or proceeding in the former Court he might have had his Action or Actions against mee at July Court last but he was conscious that he had noe just ground therefore, soe leaveing it to your vise Consideration as God shall direct you to doe & rest your humble
servant Joseph I I Joy
his markes
[577]*577The Court of Assistants confirmed the former judgment and awarded costs to Joy. Thereupon Woodmancy “in open Court declared that he Attainted the Jury & declared he doubted not but he would proove error” and filed bonds to the amount of 500l to “prosecute his Attaindure at the next Court of Assistants.” There is no record extant of this prosecution. Records of the Court of Assistants, i. 45-6.]