James Townsend Housewright plaint. conta John Williams Boatman Defendt in an action of the case upon the Forfiture of a bond of two hundred pounds in not paying the Summe of one hundred and thirty pounds money as by the sd bond may appeare bearing date the. 23 d of January. 1678. with all other due damages &ca. . . . The Jury . . . found for the plaint, two hundred pounds money being the Forfiture of the bond & costs of Court: On request of the Defendt and hearing both partys The Court chancered this Forfiture to Fifty one pound ten Shillings money debt and damage and costs of Court: The Defendt appealed from this Judgemt unto the next Court of Assistants and put in Security for prosecutn thereof to effect.
But as by Certificate appeares failed in the prosecution and was nonsutd so Execution issued forth upon the abovewritten Judgem* according to order. 6° march: 1679.
Execution issued 6° march. 1679. [ 625 ]
[ This case grew out of the same disagreement as that of Williams v. Townsend, above, p. 1122. The covenant over which the dispute arose (S. F. 1833.8) is interesting because of its detailed specifications for the construction of a house:
This Agreement made Between lames Townsend of Boston in New-England Housewright of the one part: And Iohn Williams of sd Boston Boatman on the other part Witnesseth that the sd lames Townsend doth hereby covenant promiss and agree (in consideration of the payments and other the Covenants hereafter in these pursents expressed) to Frame erect Set up and finish for him the sd Williams upon his Land in Boston in the place where his now dwelling house standeth (which is to bee taken down by the sd Townsend) A Tenement or dwelling house according to the dimentions following. Viz* to contain in Length thirty [1126]*1126four foote more or less as the Land will beare and in breadth twenty foote and Fifteen foote Stud with two jetts in the front next the Street, and a Leanto of ten foote wide joyning to the backside to reach throughout the Length of sd house, to Stone a Cellar underneath the sd main house throughout the whole length and breadth thereof, to build a Stack of good brick Chimnys to the sd house to contain six fires one in the Cellar, three upon the first Floore and two in the Chambers to inclose and cover the sides and Roofe with clapboards and Shingles, to make and place Four great casern* frames in the front of sd building, two cleer storey windows in the gables and two in the Cellar wall and to make outside dores and Stakes into the Cellar, to fill lath & plaister the walls of sd house throughout, to lay a Floor of boards upon Sleepers in the Cellar, to make up all partitions, to make and hang all dores, Stakes and to lay all the Floors of sd house with good merchantable well Seasoned pine boards, to make & put up pyramides and flewboards at the gables and generally to do all Carpentry and masons worke whatsoever necessary to the compleating and finishing of the sd Tenement or building to make it tenantable, although not herein perticularly expres’t (Ceiling of the Roomes excepted) all the timber used in about the frame of sd house to bee of good sound well seasoned Sizable white & black oake; all which workes and materials for the same (Clapboards Shingles hinges and Locks excepted) are to bee found made and done strong substantial! & worke-manlike at the proper cost and charge of the sd lames Townsend, the Frame to bee raysed at or before the first day of May and the whole worke to bee fully done and finished on or before the last day of Iuly next insuing the day of the date of these pursents. Jn Consideration of which workes to bee done and finished in all respects as is above expres’t and materials for the same the abovenamed Iohn Williams doth hereby covenant promiss and agree to allow unto the sd lames Townsend his pursent dwelling house, all the timber boards & bricks belonging thereunto (hee takeing down the same) and to pay or cause to bee paid unto him his hekes Execrs Adm18 or Assignes the full Summe of One hundred and thirty pounds currant mony of New-England in manner following Viz* thirty pounds at the Ensealing of these pursents, Fifty pounds at the rayseing of the frame, and Fifty pounds more when the whole worke is done and finished as abovesd. Also to digg the Cellar and to finde and provide all Shingles clapboards hinges and locks for the sd building at his own cost & charge For the true performance of which abovewritten covenants Agreements and payments the partys to these pursents each one for his respective part doth binde himselfe his heires Exec18 and Admr8 unto the other his heires Exec”3 Admr8 & Assignes in the penall Summe of two hundred pounds lawfull money of New-England to be well and truly paid by the defective party. Jn Witness whereof they have interchangably Set to their hands and Seales this twenty third day of Ianuary Ann0 Dom1 1678. And in the .30th year of his Majes*188 Reign
Memorandm It’s agreed that the foreside and end of the house is to bee boarded underneath the Clapboards up to the first jette
lames Townsend a Seale
Signed Sealed & Deliurd in the pursence of us.
Jsa Addington
John Casey
Ownd in Court. 27° Ianur0 79. by lames Towsend Attests
Js Addington C
[1127]*1127Boston 23 Ianuary .1678.
Then Rsd of Iohn Williams the Summe of thirty pounds money according to the within written Covenant in full of the first payment I say Rsd
pr me lames Townsend
Witness
Jsa Addington
Boston 26° Iune 1679
Then Rsd of Iohn Williams the Summe of Fifty pounds in money being in full of the within mentioned paym* covenanted to bee paid at the Rayseing of the Frame. I say Rsd
per me James Townsend
Testis
Jsa Addington
Vera Copia . . . Jsa Addington Cler
Williams’ Reasons of Appeal have not been preserved; but the grounds of his refusal to pay the last installment of the sum agreed on in the covenant are set forth in his “Declaration to the Honored Courte of Assistants” (S. F. 1833.6):
In the Reson of Appeale we haue Declared we haue not forfited Said Bond & thatt we Owed not 130£ when this Attach4 was Serued Nor 51£ 10s Debt & Dammages:
Jn this we shew y4 by sd Couenantt We are to pay 1301: at thre seuerall times viz4
30£: when ye Couenant was Signed
50£ at Rearing sd House
w°h is done as appeares vndr the plantiffs hand- therefore ye 50£ is not due vntill said House be finished which is not done — therefore Not due & 200£ not forfited there fore not 51:10s due mony Deb4 & damage
All which Appeares by ye seuerall Euidences putt Jnto this Action both by ye pi4 & Defend4 as Will at Large appeare. both by time when it aught to haue ben don manner how & what is wanting as to prtieulars of many materialls assen-tionally, (requisit to fulfil sd Couenant:
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James Townsend Housewright plaint. conta John Williams Boatman Defendt in an action of the case upon the Forfiture of a bond of two hundred pounds in not paying the Summe of one hundred and thirty pounds money as by the sd bond may appeare bearing date the. 23 d of January. 1678. with all other due damages &ca. . . . The Jury . . . found for the plaint, two hundred pounds money being the Forfiture of the bond & costs of Court: On request of the Defendt and hearing both partys The Court chancered this Forfiture to Fifty one pound ten Shillings money debt and damage and costs of Court: The Defendt appealed from this Judgemt unto the next Court of Assistants and put in Security for prosecutn thereof to effect.
But as by Certificate appeares failed in the prosecution and was nonsutd so Execution issued forth upon the abovewritten Judgem* according to order. 6° march: 1679.
Execution issued 6° march. 1679. [ 625 ]
[ This case grew out of the same disagreement as that of Williams v. Townsend, above, p. 1122. The covenant over which the dispute arose (S. F. 1833.8) is interesting because of its detailed specifications for the construction of a house:
This Agreement made Between lames Townsend of Boston in New-England Housewright of the one part: And Iohn Williams of sd Boston Boatman on the other part Witnesseth that the sd lames Townsend doth hereby covenant promiss and agree (in consideration of the payments and other the Covenants hereafter in these pursents expressed) to Frame erect Set up and finish for him the sd Williams upon his Land in Boston in the place where his now dwelling house standeth (which is to bee taken down by the sd Townsend) A Tenement or dwelling house according to the dimentions following. Viz* to contain in Length thirty [1126]*1126four foote more or less as the Land will beare and in breadth twenty foote and Fifteen foote Stud with two jetts in the front next the Street, and a Leanto of ten foote wide joyning to the backside to reach throughout the Length of sd house, to Stone a Cellar underneath the sd main house throughout the whole length and breadth thereof, to build a Stack of good brick Chimnys to the sd house to contain six fires one in the Cellar, three upon the first Floore and two in the Chambers to inclose and cover the sides and Roofe with clapboards and Shingles, to make and place Four great casern* frames in the front of sd building, two cleer storey windows in the gables and two in the Cellar wall and to make outside dores and Stakes into the Cellar, to fill lath & plaister the walls of sd house throughout, to lay a Floor of boards upon Sleepers in the Cellar, to make up all partitions, to make and hang all dores, Stakes and to lay all the Floors of sd house with good merchantable well Seasoned pine boards, to make & put up pyramides and flewboards at the gables and generally to do all Carpentry and masons worke whatsoever necessary to the compleating and finishing of the sd Tenement or building to make it tenantable, although not herein perticularly expres’t (Ceiling of the Roomes excepted) all the timber used in about the frame of sd house to bee of good sound well seasoned Sizable white & black oake; all which workes and materials for the same (Clapboards Shingles hinges and Locks excepted) are to bee found made and done strong substantial! & worke-manlike at the proper cost and charge of the sd lames Townsend, the Frame to bee raysed at or before the first day of May and the whole worke to bee fully done and finished on or before the last day of Iuly next insuing the day of the date of these pursents. Jn Consideration of which workes to bee done and finished in all respects as is above expres’t and materials for the same the abovenamed Iohn Williams doth hereby covenant promiss and agree to allow unto the sd lames Townsend his pursent dwelling house, all the timber boards & bricks belonging thereunto (hee takeing down the same) and to pay or cause to bee paid unto him his hekes Execrs Adm18 or Assignes the full Summe of One hundred and thirty pounds currant mony of New-England in manner following Viz* thirty pounds at the Ensealing of these pursents, Fifty pounds at the rayseing of the frame, and Fifty pounds more when the whole worke is done and finished as abovesd. Also to digg the Cellar and to finde and provide all Shingles clapboards hinges and locks for the sd building at his own cost & charge For the true performance of which abovewritten covenants Agreements and payments the partys to these pursents each one for his respective part doth binde himselfe his heires Exec18 and Admr8 unto the other his heires Exec”3 Admr8 & Assignes in the penall Summe of two hundred pounds lawfull money of New-England to be well and truly paid by the defective party. Jn Witness whereof they have interchangably Set to their hands and Seales this twenty third day of Ianuary Ann0 Dom1 1678. And in the .30th year of his Majes*188 Reign
Memorandm It’s agreed that the foreside and end of the house is to bee boarded underneath the Clapboards up to the first jette
lames Townsend a Seale
Signed Sealed & Deliurd in the pursence of us.
Jsa Addington
John Casey
Ownd in Court. 27° Ianur0 79. by lames Towsend Attests
Js Addington C
[1127]*1127Boston 23 Ianuary .1678.
Then Rsd of Iohn Williams the Summe of thirty pounds money according to the within written Covenant in full of the first payment I say Rsd
pr me lames Townsend
Witness
Jsa Addington
Boston 26° Iune 1679
Then Rsd of Iohn Williams the Summe of Fifty pounds in money being in full of the within mentioned paym* covenanted to bee paid at the Rayseing of the Frame. I say Rsd
per me James Townsend
Testis
Jsa Addington
Vera Copia . . . Jsa Addington Cler
Williams’ Reasons of Appeal have not been preserved; but the grounds of his refusal to pay the last installment of the sum agreed on in the covenant are set forth in his “Declaration to the Honored Courte of Assistants” (S. F. 1833.6):
In the Reson of Appeale we haue Declared we haue not forfited Said Bond & thatt we Owed not 130£ when this Attach4 was Serued Nor 51£ 10s Debt & Dammages:
Jn this we shew y4 by sd Couenantt We are to pay 1301: at thre seuerall times viz4
30£: when ye Couenant was Signed
50£ at Rearing sd House
w°h is done as appeares vndr the plantiffs hand- therefore ye 50£ is not due vntill said House be finished which is not done — therefore Not due & 200£ not forfited there fore not 51:10s due mony Deb4 & damage
All which Appeares by ye seuerall Euidences putt Jnto this Action both by ye pi4 & Defend4 as Will at Large appeare. both by time when it aught to haue ben don manner how & what is wanting as to prtieulars of many materialls assen-tionally, (requisit to fulfil sd Couenant:
Wee shall doe all Right to ye pi4 In Giuing in ye Euidences as he shall Desire most Conducing to his Cause Either first or Last to the End truth may Appeare and Justise may be Done Impartially:
Yor Honors Seruant and the Jurys Friends
John Williams Appellant:
John hoare attorny to said Williams
There follows “A Scedule of ye seuerall papers in this Case.” A few of these papers suffice to indicate the contentions of each party:
S. F. 1833.7
Wee whose names are underwritten'being desired by John Williams of Boston to veiw and examine what his new dwelling house doth want to bee finished do finde these perticulers following not done according to Covenant.
[1128]*1128Jnprimis The mantle tree in the Cellar not faced.
21y. The mantle tree in the Leanto Chimly not faced.
31y. One Partition in the Cellar and a dore left undone
41y. Two Partitions in the Garret not done, and never a dore to them.
5. Three pair of Staires and but one dore to them all
6. Seventeen dores in the house, and not one latch, katch or bolt to any one of them.
71y. Five gable ends to the house and not one of them fil’d.
81y. Two Jetties not close in the foreside: the one end and the foreside should have been boarded underneath the clapboards woh is not done.
91y. One Pyramid and one gutter on the backside of the house not done
10. One guttar on the foreside of sd house not done, so that the house is much damnified for want of it.
11. One end of the main house and Leanto from the bottom to the top, which hath no filling at all in it:
12 And the Cheekes of the Cellar dore, which should have been done up with brick and Lime, is not done, which should have been done.
13. One Partition upon the wing of the Leanto Chimney not done
14. Some of the Windows in the house open between the Window frames and the posts.
15. The Partition in the Leanto is not done as it should bee by a workeman
16. The Cellar Staires that go out to the Street are neither fastned with Spikes nor with trunnels.
Obadiah Stout
Francis Dodson
Thomas Adkins
Sworn in Court .27° Janur0 79 by the three Deponents
attests J: Addington C.
Vera Copia . . . Jsa Addington Cler
S. F. 1833.10
Cornelius White aged about .30. yeares testifieth and Saith that that end of John Williams his house joining to mrs Pugliss8 could not bee filled because there could not bee boards put up to fill against by reason it stood so neer it. And that the middle wall in sd Williams house between the main house and the Leantoo is boarded with plaine boards on one side, and filled lathed and plaistered on the other side which is not usuall and further Saith not: This Deponent adds that it is not usuall to fill gable ends, where a house jetts
John Pearse aged about .70. yeares testifieth to all abovewritten
White adds that Wms did motion to have that end of the house filled, but J shewed unto him the inconvenience and improbability of doing it, wherwith Wms seemed to bee Satisfied.
Sworn in Court by'both witnesses .28° Janur0 79
Attests J: Addington C
Vera Copia . . . Jsa Addington Cler
S. F. 1833.11
The Deposition of William Dawes Mason aged .62. yeares or thereabout testifieth and Saith that being desired by James Townsend to go with Deacon [1129]*1129Allen to pass their Judgement upon a house built by the sd Townsend for John Williams and J do Judge it to bee done workemanlike according to covenant and that hee has done rather more then less hee was obliged by covenant, as the plaistering the walls of the Cellar and the pointing the garret and that it is not usual to Seel the jetties when the Rooms are not Seeled.
Boston Janur .26. 16ffr
Taken upon Oath before Elisha Hutchinson Commiss1
Vera Copia . . . Jsa Addington Cler
Deacon Henry Allen also deposed (S. F. 1833.12) that he judged the house to be built “workemanlike and made tenantable according to his [Townsend’s] covenant’’; and a similar opinion was given by John Pearse (S. F. 1833.16).
S. F. 1833.13
The Deposition of Gamaliel Rogers aged .22. yeares or thereabouts testifies and Saith that sometime in July last past J was at worke at Goodman Williams house, and hee would not let me go forward with my worke, because hee would have it boarded under the Clapboards and the same day James Townsend came down and they had some discourse about it, and the sd Williams was as J thought very well Satisfied about the boarding, and J went forwards with my worke and afterwards J heard the sd Williams Say that hee the sd Townsend should allow him boards for the fence.
Benoni Gridly aged .15. yeares doth testify to what is abovewritten
Sworn in Court per Gamaliel Rogers and Benoni Gridley Janury .27: 1679 attests J: Addington C.
Vera Copia . . . Jsa Addington Cler.
S. F. 1833.17
The Deposition of Peter Weare aged twenty and nine yeares or thereabout testifieth and Saith that hee being Emplpied by James Townsend about the framing & finishing of the house of John Williams from the first to the last and that it was done Substantial! and workemanlike by the middle of October and further that the sd Williams did say severall times in my hearing that hee could not finde any fault in the worke, Farther after the sd Townsend had framed the house in wideness and Length according to his Covenant, hee was forced to cutt of Six or Seven inches of the Length of it which was no small hinderance to the sd Townsend and farther Saith not.
Sworn in Court per Peter Weare Janur 27: 1679 attests Jsa Addington C.
Vera Copia . . . J: Addington Cler
And as for the defendant’s objection that the work had not been finished on schedule:
S. F. 1833.15
The Deposition of Thomas Ghent aged about 37. yeares testifieth.
That sometime last Spring John Williams the Boatman imployed me to digg a Cellar for him, where his dwelling house now standeth wch house was buil’t by James Townsend and this deponent testifieth that the sd Cellar was not digged [1130]*1130and finished untill the last Election day in the morning being the .28. of may. 1679. my Selfe and one more man being imployed about it.
Taken upon Oath ye .26th of .11th m° 1679.
Before me Anthony Stoddard Commiss1
Owned in Court Janury ,27th 1679. on his former Oath by Tho: Ghent attests J: Addington C.
Vera Copia . . . Jsa Addington Cler.
S. F. 1833.3
To the Honred County Court assembled at Boston .27 of January .1679.
John Williams craves the liberty of the law to appeale from the Jury’s Verdict to the next Court of Assistants in the action between James Townsend plaintife and my Selfe Defendant. As witness my hand this 12: of February .1679.
of
the marke I W Williams John
A true Coppie . . . Jsa Addington Cler
The magnanimous tribute to impartiality with which Williams concluded his declaration did not impress the higher court sufficiently to counterbalance the appellant’s failure to conform to legal practice. In the Records of the Court of Assistants, i. 155, we find the following entry:
John Willjams plaintiff in an Acción of Appeale ag* James Townsend defend* from the Judgment of the County Court at Boston this Acción was Called no Reasons Appeard signed by a legall Atturney nor vnder y0 plaintiffs hand the plaintiff was declard to be non suited & the deffendant to haue his Costs seven shillings.
Williams’ letter of attorney to John Hoare is in S. F. 1833.9; Townsend’s bills of costs are in S. F. 1833.18, 19.]