Waldron v. Marshall

2 Rec. Co. Ct. 759

Opinion

Jsaac Waldron plaint. agt. Captn Tho: Marshall Deft in an action of the case for detaining & keeping from him two Cows and one heifer without any Legall right or title to them which were taken off from his Farme sometime in October, or November, last whereby the sd Waldron is damnified Eight pounds in Silver and all other due damages according to attachmt datd January. 6th 1676. . . . The Jury ... found for the plaintife the two Cows and heifer Sued for or Eight pounds in Silver with costs of Court: The Defendt appealed from this judgemt unto the next Court of Assistants and himselfe principall in Sixteen pounds and Robt Brimsdom & John Flood as Sureties in £.8. apeice bound themselues respectiuly ... on condition the sd Tho: Marshall should prosecute his appeale . . .

[ This and the four subsequent cases arose out of a misunderstanding, wilful or otherwise, as to the ownership of the cattle on Bennett’s Farm in Lynn, which Isaac Waldron leased. The following papers give an outline of the events.

S. F. 1569.1

To the Constables: of Boston: Rumni marsh, Lynn or of any Towne in the Massachusetts Colonie

Whereas Complainte is made by mr Jsaac Waldron, hath Severall Cattle viztt Three Oxen, Two Cowes and two heifers taken off from his farme Called Bennets farme, These are in his Majesties name to require you in your severall precincts to Search for the said Cattle, and them findeing you are to Seize & bringe Such person or persons with whome you finde the Cattle or any of them, before authority that they may answer the Complainte of the Said Jsaac Waldron, according to Law, hereof you are not to fayle & you are to make returne what you do herein, Dated in Boston [2d] Decembr 1676

John Leverett Govor

The Returne

Dated the 6th of December. 1676

According to this warrant J have Seized Vpon an Oxe which J found in Joel Jenkins keeping, which the Said Jenkins had taken to winter for the Said Bennet, and have Summoned the said Jenkins to appeare before your Worship

By the Constable of Maulden

John Floyd

Vera Copia attestr Jsa Addington Cler

S. F. 1569.13

These may Serve to Lett you vnderstand that J have found all the Cattle mentioned in the warrant Except one, vizt at Capt Marshalls three, att William Bassett two, and William Edmunds acknowledged to me to have another all which men J have now brought before authority and they have Severally bound themselves that the Cattle shall be forth Comeing, according to Command of authority as attests

Clement Coldome Constable

Decembr the 8th 1676

Vera Copia attestr Jsa Addington Cler.

S. F. 26181

John Floyd Constable of Maulldjng his bjll of Charge Agajnst mr Walldren for Searchjng for & Zeaseing of An Oxx in he hands of Joell Ginkins, by vertue of A Spetjall Warrant of the Honred Gouemer Leuerett graunted out by vertue of Which ye saide Ginkens was brought before ye Worshipfull Symond Broad-street Esqujer in which hee Spent. 3: dayes tjme — 2:s aday--is 00-06-00

Allowed by ye Court EES

S. F. 1569.17

The Testimonie of John Shaw aged forty foure yeares or thereabouts Sworne Saith, that about the Twelfth of this instant January J being at the house of mr Waldron in Boston, J did heare mr Waldron Say, that he did Showe mr Bennet the Cattle, & bid him to take them, and did bid his man to helpe mr Bennet out of the Orchard with them, and these are the Cattle that are now in Controversy, that mr Waldron hath arrested Captn Marshall, Serjeant Bassett Goodman Jenkins Goodman Edmonds, as mr Waldron did tell mee and further Saith not,

Sworn in Court January 30th 1676 as attests Jsa Addington Cler

Vera Copia attestr Jsa Addington Cler

S. F. 1569.20

Aphra Bennet aged about Thirty five yeares testifyeth and Saith that She hath heard her father mr Samuell Bennet Say Severall times that Benjamen Mussey & John Floyd did advise and Jncouridge and also did helpe him, to take away Mr Waldrons Cattle, from offe his farme, and that the Said Benjamen Mussey & Floyd hope him to drive them from the farme to Old Chaddockfs] and also that Benjamen Mussey told him, that the Cattle was his, and that he might do it well Enough, and that he the Said Benjamen Mussey would warrant it, furthermore Mr Samuel Bennet Said that because that Mussey was thought to be a Subtle Lawyer by others he the said Samuel Bennet thought so too, Therefore he took his Advice and did with their assistance, as abouesaid, and further he said that Except the abouesaid Mussey & flood had Urged him to it, he would not have done it, and also without their assistance he Could not have done it, and further Saith not.

Taken vpon Oath this 29th of December 1676 before me Thomas Brattle Commissr

Vera Copia attestr Jsa Addington Cler.

S. F. 1569.26

The Deposition of Benjamen Muzzy Aged forty Six yeares or thereabouts Sworne Saith, That J being at Boston about Six or Seven weeks agone John Floyd of Maldin being present with mee, we Saw mr Bennet who did disire vs to goe alonge with him to mr Davenports, to Search the Records & to gett an attachment for his Son John Bennet, for Said mr Bennet my Son hath a parcel of Cattle of mine, which he hath nothing to do withall & J am resolved to arrest him for them, J asked mr Bennet if he had not given them or Sould them, or Lett them vnto his Son, & he replyed, that he had not, J told him that J did vnderstand, that mr Waldron had hired the Cattle with the farme, he then did absolute affirme, that neither mr Wafldron] or his Son had any thinge to doe with them, for the Cattle were his and he would have them, J told him that if they were his Cattle his best way in my apprehension was to goe & Speake with mr Waldron, for Said J if he will give you leave to take the Cattle, and the Cattle be your owne, you have no neede to Sue your Son for them, & he did then intreate vs to goe along with him to Mr Waldrons house, & accordingly wee did & when we Came thither he spake to Mr Waldron about the Cattle & tould him the same Story as he had told vnto vs, about arresting his Son for his Cattle: Mr Waldron told mr Bennet that the best Councel he Could give him was to goe over to the farme & take away the Cattle, and then lett your son Sue you for the Cattle, J replyed that it may be if mr Bennet should take away the Cattle, whether mr Waldron were willinge or not, he Said he was willinge with all his heart, J said it may be that he would Sue mr Bennet if he should take them away, Mr Waldron did then promise that he could not Sue anybody about the Cattle for said mr Waldron, J shall gett by it, for J have had the vse of them all this Summer & shall Save the wintringe of them, but Said mr Waldron when the Cattle be gone, J will Come vpon Elisha, when he Cometh from Sea, for my bargaine because his father hath fetched away the Cattle, & J will make him pay dammage & this discourse it was on a Satturday & they did appointe the next seccond day following both of them to Come over to the farme, & desired vs to meete them there, and accordingly they did both mr Waldron & mr Bennet Came to the farme, and mr Waldron bid mr Bennet to take [torn] & what else that was his, but there wanted two Oxen, which mr Waldron sai[d] was gone in his teame, to his owne farme, and said he, J will goe & send them downe, and he tooke horse, soone after the Oxen were brought down by Goodman George, and he Said mr Waldron ordered him to deliver them to Mr Bennet,

William De[l]ow & Bryan Berreden, doth testifye to the truth of all in this paper, written, Excepting the discourse, that mr Waldron mr Bennet John Floyd, & Benjamen had at Boston, in the beginning of the Testimonie, which is about ten lines, We also doe testify that mr Bennet did tell mr Waldron, that the Jron doggs Standing by the fire were his, and did take hold of them, and mr Waldron bid him take them away, and mr Bennet, did take them out of the house, and these Jron doggs are the doggs, which mr Waldron hath arrested Benjamen Muzzy for, to the Commissioners Court next in Boston

Taken vpon the Oathes of John Floyd Benjamen Muzzy William Dellow, and Bryan Berreden this 8th of Decembr 1676 before me

Simon Bradstreet Assist

Affirmed in Court January. 30th 167 6/7 by all the within named persons, vpon former oath, as attests Jsa Addington Cler

Vera Copia attestrr Jsa Addington Cler.

Only a fragment of Marshall’s Reasons of Appeal survives, in S. F. 162159.2. Waldron’s Answer (S. F. 1569.10) denies that Marshall took the cattle with Waldron’s consent or knowledge, and continues :

... And the Appealant Receiving my Cattell, after J had lost them, and possessing the[m] when the warrant was Jssued forth, and my Cattell being found in his hands, yt was the Cause, and reason, why he was apprehended, and brought before Authority, and not by any particular Complaint J made against him, And whereas the appealant, would make it Seem a Strang Judgment, by mentioning 8li in mony, the Judgment was, J should have my Cattell againe, or else 8li in money, by which the appealant may keep his 8li money, and that J might have my Cattell againe, which J humbly Conceive is no other, but a Just, and honest, Judgment, against the appealant

2 J Answer Neither the Appellant, nor Mr Samuel Bennet, who Delivered my Cattell to the Appealant, had ever any Legall right or title to them, since the [torn] was borne, And that the appealant did not buy them, Legally, it appears by law page 147 (Title tolling Cattell) its there said, yt all Cattell, bought of any person, shall be entred in a toll Book by the Clark of the writts, with their Age, Colour, and marks, at the perrill of the buyer, with the name of the Seller, and the seller shall have two vouched, to testifie the Seller, to be the proper owner of the Cattell Sold, So yt the Cattell being not told, no[r] vouehers, nor owner of the Cattell being being present, J humbly Conceive Could not be Legally Sold, for the Law will not allow one man, to pay his Debts, with anothers Cattell, Therfore J humbly Conceive, it doth appear, no other, but a Just, and honest, Judgment against the appealant

3 J Answer Mr Samuel Bennet, whom the appealant pretends sold them, never owned them, So yt from him, needs no Conveyance to his Son, who bread the Cattell, the Appealant hath of mine. And whereas they say there was but one Witness Sworn to the deed, of Gifft for the Cattell, J Answer it was because the other Wittness was dead, therefore Could not be obtained in which Case one Wittness is Sufficient, and whereas the appealant saith, the Grant of the Cattell is Conditionall, J Answer it is absolute, in Respect to the Cattell as per deed appears, though Conditional! in Respect to ye vtensells, therein mentioned, but in this Case it values not, because he yt sold them, never [Owned] them, Therefore J humbly Conceive yett it appears, no other; but a Just [and] honest Judgment, against the appealant

After detailed comment on the testimony of Marshall’s witnesses, Waldron proceeds:

Again J Answer J prosecuted the appealant, according to my Complaint as J Judged according to his Desert, according to the Bond, and According to the Worshipfull Mr Broadstreet his Order, yt made the bond, for J was so fearfull of Affending authority, yt J Would not trust to the bare Letter of the bond, but intreated the Authority abovesd to tell me, how J was to prosecute them, his Answer was, in Civill Actions and that it was my best way so to do, and withall he told me there was but one bo[u]nd, as per bond appears, Therfore saith he, yow must Summond them or Attach them, or else they will not Come, by which it appears, yt they was not looked upon, as persons guilty of any Criminall fact, So According to my order, or Command from Authority, J Attached them all, that they might Come, and Cast them all, as will appear, So yt as yet it appears a Just and honest Judgment, As J humbly Conceive, against the Appealant

Againe J Answer, that Whereas the appealant saith, yt J should say, that Mr Saml Bennet would Swear any thing for a pint of Liquor, J absolutely deny it, for J never did Speak it, But this J Confess, J did say, yt Mr Samuel Bennett, would sell anything, for a pint of Liquor, And that J suppose most of his Chapmen, that use to Deal with him, knows it to be true, if they do not, his poor Wife, and Children do.

Waldron denies that he ever sent for Mussey or Flood to come and see him and deliver any cattle to any person whatsoever.

Againe J Answer, whereas the Appealant pretends, he detaineth not my Cattell [tom] the law, J Answer as at first, y* he detaineth them, and not the law, and though he pretenfds] he was bound, y* the Cattell by him, should be forth Coming etc there was no bond drawn, Therefore he was not bound, as doth appear, So y* J Answer, what Clement Coldam saith, may be true, But what he Swears, must be the truth, ye whole truth, and nothing else, Therefore it plainly Appears, the Appealant detaineth my Cattell Wittness Clement Coldams Evidence upon oath the verdict of the Jury, and Judgment of the Court etc, Therefore J humbly Conceive, that it will yet Appear no other, but a Just, and honest Judgment, against the Appealant

In the Court of Assistants (Records, i. 78) the former judgment was confirmed, with 36s 8d costs.

See also the four following cases.]