Paige v. West

2 Rec. Co. Ct. 1080

• Court: New York County Court, Suffolk County
• Decided: November 4, 1679
• Status: Published

Opinion

Nicholas Paige Attourny to Benju Barter plaint. conta William West Defendt for not paying unto the sd Barter nor his order the Sume of twenty five pounds Starling according to the tenour of a bill of Exchange bearing date the. 16th may. 1678. drawn by him upon mr Richard Wharton and compa merch*3 in Boston for the like value received of sd Barter; which sd bill is protested for non acceptance and non payment as by the sd bill and protests shalbee made to appeare wt11 damages: . . . The Iury . . . found for the plaint, five and twenty pounds money and costs of Court. The Defend* by his Attourny appealed from this Iudgemt unto the next Court of Assists and mr Richd Wharton and mr Jn° Fayerweather acknowledged themselves bound ... in the Summe of Fifty pounds money for the prosecution of said Appeale to effect, and also to Satisfy the Iudgemt in case of mr Paige his Recovery.

S. F. 1839.9

Trest¹ May the. 16th 1678.

At sight of this my third bill of Exchange my first and Second being unpaid, pay unto mr Benjamin Barter or his Order the full Summe of twenty five pounds Sterling for the like value received of him here and place it to the Account of your Loving Freind.

William West

To mr Rich: Wharton & Company Mercct. in Boston.

By this publick Instrument of protest bee it knowne and manifest unto all People that about one or two dayes before the Sixth day of October in the year of our Lord One thousand Six hundred Seventy nine Stilo Angliae Annoque Regni Regis Caroli Secundi nunc Anglite &ca Tricessimo primo, At the instance & request of Nicholas Paige of sa Boston merchant Attourny to sd Benjamin Barter above-named J Robert Howard dwelling in sd Boston sole Notary and Tabellion Publick by Authority of the Generali Court of the Massachusetts Colony of New-England admitted and Sworn did repaire to the dwelling house of sd Richard Wharton but finding him not at home on the sd Sixth day of October. 1679. hee the sd Richard WTiarton came with the sd Paige to the Office of me the sd Notary in Boston aforesd and then and there I the sd Notary desired him the sd Richard Wharton to pay the sd Originall bill of Exchange by me Notary unto him shewn and read a Coppie of which bill is here before writ word for word, But hee the said Richard Wharton answered me the sd Notary that hee would not pay or did refuse payment because the Summe demanded is already paid and accounted for to the drawer, and again attached in his hands to respond an Action of debt brought against Benjamin Barker, and because the demand of me alone (to which hee Subscribed his name thus) Richard Wharton, which answer from sd Richard WTiarton (as the onely person in sd bill mentioned directed unto and drawn upon with this addition and Company) when I sd Notary heard sd answer as aforesd At the instance and request aforesd I did and do solemly protest against the sd William West the drawer and Subscriber of sd bill of Exchange and all others whome it doth and may concern for all costs damages and interest for non payment as aforesd suffered and to bee suffered This was thus done and Protested in Boston aforesd in the Office of me the sd Notary the sd Sixth day of October One thousand Six hundred Seventy nine.

Quod virtute Officij mej Attestor

Robert Howard Not. publ. Massachusitt Colonise perdiot-

Postseriptor.

2nd Act in reference to the drawer.

As this aforespecified bill of Exchange drawn by sd William West upon Richard Wharton and Company and for non payment per sd Wharton was protested against William West the sd drawer hee being absent and no’t in the Town of Boston And now by providence being come to Boston upon the request of sd Nicholas Paige as Attourny to sd Benjamin Barter mentioned in sd bill, J the sd Notary on the two and twentieth day of October in the year of our Lord One thousand Six hundred Seventy nine went with him the sd Paige to the house or Lodgeing place of him the sd William West with sd bill of Exchange which I read unto him and acquainted him what was already done in his absence in reference to the aforegoing Protest and shewed him mr Wffiartons answer as is beforewritten As also the bill of Exchange itselfe which hee confes’t to bee his bill and his name therein written to bee his own Subscription Then I demanded of him the sd West payment of sd bill his Answer then was to me the sd Notary I cannot pay the money mentioned in sd bill untill I receive it of sd Wharton & compa which answer from himselfe the sd William West drawer when I sd Notary heard at the instance & request of sd Paige as Attourny aforesd I did and do again solemly protest against the sd William West drawer then and there being in his own person pursent and all others whome it doth and may concern for all costs damages and interest for nonpayment as aforesd suffered and to bee Suffered This was thus done in reference to the personall presence of sd William West drawer and Subscriber of sd bill the sd two and twentieth day of October 1679.

Quod virtute Officij mei Attestor

Robert Howard Not. publ. Massachusitt Colonise prsedict.

Recorded in the .312: page of the .5th Booke of sd Notary Records according the custom of the Jurisdiction aforesd

Vera Copia Attest* Jsa Addington Cler

S. F. 1839.3

William West, Appeallant, Capa Nich° Paige, pretended attourny to M* Benja Barker, Def*.

Reasons of appeale from ye Judgm* of ye County Court at Boston in Octob* last.

1. As the appeal* owned, & his Bills of Exchange proved him Debt* to Benjamin Barker, so hee should readily have paid what was due, had not Benjamin Barkers estate in ye appeal!*3 hands, (w°h was but Twenty five pounds) been attatched, & so by Law Subjected to satisfie a debt of Thirty Six pounds three Shillings due from sd Barker, & by ye same Juries verdict adjudged to m* Fairweather & Compa. Therefore this being pleaded for the appell*3 acquittance, y® Attatchm* being before them, & their Verdict not Twenty four Howres old,¹ it was most unreasonable & unjust, by an after verdict to order the appeal* to pay m* Paige what by a former Verdict according to law they had adjudged towards payment of Benjamin Barkers debt to M* Fairweather & Company

2 Jt appeareth not by the papers in this Case that m* Paige had any power to Sue, and if the Iewry had any refference to anything produced in another case, it had been just also that they should have taken their own Verdict in that Case as evidence in this however the jewry haveing by a Verdict found for m* Fair-weather & Compa upon the attatchment of Benjamin Barkers Estate in the appeall*3 hands, afterwards to cast the appea11* for for nonpaym* of that Estate to m* Paige is very illegall (our law saying that ye Estate attatched shall lye to satisfie the Judgment): And y® appeal* is by the last erronious & injurious Verdict (to avoid the Necessity of paying the Summe that was in his hands twice) necessitated to this appeale, hopeing that this Hon*d Court & Iurie will see reason to reverse y° former Iudgm*, & grant y® Appeal* Costs of Courts

tho: Norman

Atturney to Wm West

These Reasons Recd .26. feb* 1679.

per J: Addington Cler.

S. F. 1839.4

To: the Honred Court of Asestants Settinge in Boston March the 2d 16f§-Nicholas Paige: Atturney to Benj: Barter his Answers to Tho: Norman Atturney to Will West his Resones of Appeale from ye Judgment of ye Countey Court held in Boston in October Last Releatinge to y® Judgment granted to ye said Paige as Atturny to Benj: Barter againest Wiliam West Concerninge a bill of Exchange

To: The First Reason That ye Appelant owned and his bill of Exchange proued him debter to Benj: Barker and that hee might owne himselfe debter to Benj: Barker J will not despute but that his bill of Exchange proued him Dr to Benj: Barker J deney — The bill of Exchange proufed that hee wase indebted] vnto Benj: Barter; and not to Benj: Barker — J hop the Honred Court and Jury will destinguish be’twen Barker and Barter; and then they will find noe Vallidity in this Reson; The pretence why ye bill of Ex[c°]: wch wase drawne by West: payable to Barter: or: orde* Should not be paid to:, or: recovred By Barters order was be Cause the Estat of Barker:, wch beinge another man: bee Cause itt is a nother name, wase a Rested in ye hands of West, and w* Reson Cann thare bee in this Reson of Appeale, West might owe Barker fiue hundred poundes and Barker might owe Farreweather and Compa money:, and yet Barters Estate noe way Concerned, and if the same parson was ment and Jntended yet ye parson Cann not be Vnderstood:, and the parson and Case must bee Vnderstood or thare is noe ground of Action theare for here is no ground for ye Action of Appele:, Willm West ought to pay his bill drawne for ye Vse of Barter all though hee owed Barker neuer soe much, and itt wase attached in his hands:

To: his second Reason That itt ded not appeare Paige Wase Atturny: to Barker: their is noe need of that for J Claime nothinge Jn Right of Barker: but Jn Right of Barter:, and that ye Leater of Atturny appeared in Court and theare Js extant is true pa[r] wch J wase alowed to sue and did Recouer of West in the Name of Barter and why itt is not brought to this Court J know not,: but suppose that Barters Estat had benn Sued in the handes of West: yet West might owe Barter other wayes then by this bill: of Exchange and soe ye bill The payment theire of not to bee hindred: But if itt bee taken for granted that hee owed him nothinge otherwayes yet J doe Conceue the Attachinge or Recoueringe of Judgment: againest Ba[tom\ his Estat in ye handes of West in Genrall: will not touch the Estate of Barter in the hands of West per uertue of such a spetialty as a Bill of Exchange Thus not doubtinge but the Honeared Court and the Gentellm of ye Jurey will Com to a right understandinge of ye Cause and see Just Reson to Con-fearm the former Vardet and soe J am

yoE3 ^ 0omman(j

Nicho: Paige

(Records of Court of Assistants, i. 157)

wm west pit ags* Nicholas Paige Attumey to Benjamin Barter deffend* in an Action of Appeale from the Judgment of the County Court in Novembe* last at Boston . . . the Jury brought in their virdict i e If stopping of mony due by bill of exehainge by Attaching of it in the hands of him by whom the bill of exchainge is draune be a sufficient barr for the non payment of the money sued for then wee find for the plaintiff reuersion of the former Judgment & Costs of Courts if no* wee find for the deffendant Confirmation of the forme* Judgement & Costs of Courts. The Bench resolues this Question on the negative & so determines this Case for the deffendant Confirmation of the former Judgment & Costs of Courts three pounds eight shillings ]

1 Probably the place which appears elsewhere in these records as Treice, i. e., Tres Puntas, in the Bay of Campeachy.

1 Cf. Fayerweather, Tyng, & Co. v. Barker, below, p. 1107.