USA > Massachusetts > Suffolk County > Chelsea > Documentary history of Chelsea : including the Boston precincts of Winnisimmet, Rumney Marsh, and Pullen Point, 1624-1824, vol 1 > Part 56
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561
APPENDIX 2
CHAP. XIV]
the sª Edward Hull & John Shelton now in Court ready to be produced bearing date the fifth day of September 1702 for Divers good causes and Considerations thereinmentioned, Did grant bargain Enfeoff release Convey and Confirm unto the s! Edward Watts and Rebecca his sª Wife PIts as afores! the sd Land housing and premisses, and all their Estate right Title use and Trust to and in the same to and for the use of the said Edward Watts and Rebecca Watts and her heirs and assigns forever as in and by the said Deed and Deeds relation thereunto being had more fully and at large it doth and may appear; Nevertheless they the Defts aforesª altho often thereunto requested viz! at Boston aforesaid by the plantiff aforesaid the possession of the said ffarm or Tract of Land Messuage housing and premisses aforesaid to the plants aforesaid to Deliver have hitherto neglected and refused, and do still neglect and refuse to Deliver the same to them
To the Damage of the said Edward Watts and Rebecca his Wife as they say the Sum of One thousand pounds Which shall then and there be made to Appear, with other due Damages : And have you there this Writt with your Doings therein. Witness Elisha Hutchinson Esqr. At Boston, this Twenty eighth Day of August In the ffifth Year of Our Reign. Annoque Domini 1706 Addington Davenport Cler
The Defts plead they are only Tents vndr James Allen Clerk, who they
desire may be vouch'd Jnº Valentin [Endorsed on the back of the writ] : - The sª James Allen Clerke pleads not guilty John Floyd :
The Deft allows the plts Title as set forth in the Writ. Atts Ad : Davenport Cler
Suffolk ss : Boston August 29th 1706 By Vertue of this Writt J have attached the body of the within named Abigail Townsend and have taken bond of her to the Value of one Thousand pounds in money by the plts order and have like- wise Attached one Table & one Warming pann in the house of the within named Johnathan Townsend and have left a Summons at said house
Giles Dyer Sheriff 3
8 [Endorsed on back when folded: " Watts et ux v. Townsends. October 1706."]
VOL. I .- 36
-
562
HISTORY OF CHELSEA
[CHAP. XIV
[Judgment in the Inferior Court 4
At an Inferiour Court of Common Pleas begun at Boston Jan- uary 7, 1706 [1707] “ Edward Watts of the Parish of St Buttolph Aldgate in the City of London in the Kingdom of
Watts et ux
England Sawyer and Rebecca his Wife Plants v.
y
Abigail Townsend Relict Widow of Samuel Town-
Townsend &c.
send late of Winnissimmet within the Township of Boston in the County of Suffolk Yeoman, and Jonathan Town- send of Winnissimet afores! Husbandman Defendts In a plea of Trespass and Ejectment . .. [recites verbatim the above writ] ... To the damage of the said Edward Watts and Rebecca liis Wife as they say the sum of One thousand pounds. This plea was commenced at the Inferiour Court in October last past, the above- named Abigail Townsend and Jonathan Townsend then appearing by John Valentine their Attorney pleaded they were only Tenants under James Allen Clerk whom they Desire may be vouched, and the said James Allen now appearing by his Attorney pleads not Guilty; Upon which issue being joined the case after a full hear- ing was comitted to the Jury who were sworn according to Law to try the same & returned their Verdict therein upon Oath That is to say They find for the Deft Costs of suit IT'S THEREFORE CON- SIDERED BY THE COURT That the said James Allen shall recover against the said Edward Watts and Rebecca his Wife Costs of Suit; The Plants appealed from this Judgment unto the next Superiour Court of Judicature to be holden for this County and entred into Recognizance with Suretys as the Law directs for prosecuting of their said Appeal with Effect. 1st Jury/~"
Reasons of Appeal of Edward and Rebecca Watts 5
Suffolk ss. To the Honoble Her Majties Superiour Court of Ju- dicature holden at Boston for the County of Suffolke on the first Tuesday in May 1707-
Edward Watts & The Applts Reasons of Appeal from a Judg- Rebecca his Wife ment given against them at her Majties In- feriour Court of Common Pleas holden at Appellts Boston for s! County on the First Tuesday of James Allen Deft January last past, when and where the Applts were Plants & Abigail Townsend & Jonathan Townsend Defts and
4 MSS. Records, 1706-1710, pp. 2, 3. A certified copy is filed in Suff. Early Court Files, No. 7402.
5 Suff. Early Court Files, No. 7402; copy certified by the clerk of the Superior Court.
563
APPENDIX 2
CHAP. XIV]
afterwards by Rule of Court, the said James Allen was Admitted Deft in their Room
The Action was an Action of Tresspass and Ejectmt for Re- covering the possession of a Certain ffarm at Winnissimit within the Township of Boston as p Writ will more at large appear To Ich the s! James Allen pleaded not Guilty, and so the cause went- to the Jury who found for the sd James Allen Costs of Court, & Judgmt accordingly, from which Judgment the Applts Appealed for the following Reasons to this Honoble Court.
1. For that the Apples Right and Title to the ffarm in Contro- versy as set forth in the Writ was own'd & agreed to by the Def & if there be any Doubt of that the Applts can fully prove it in every particular.
2. The Deft never proved produced or indeed pretended any Right at all to the ffarm in Controversy but Insisted only and wholly on it that the Appellts could not pretend to Derive a Title as heir at Law to Richard Bellingham Esq! deced ffor that the sd Bellingham left a Last Will & Testamt in which he has Disposed of his Estate from his heir at Law to other uses to which your Applts then made & now again make Answer as followeth Viz! That true it is the Lands in Controversy were Originally the Estate and Inheritance of Richard Bellingham Esq! deced & who dyed Seized thereof, & that the said Bellingham left an Instrum! in Writing behind him Called his Last Will and Testament wherein he doth order his Estate in Winnisimet to be Disposed of in & to such & such uses, But then y" Applts hope this Honble Court will Consider
1st That were that Will now in force yet the Estate in Law in those Lands Continue still in the heir, for that tho the profits of them are behoved and Devised to such and such Uses, Yet the Lands themselves are not Devised to any one thorowout that whole Will as it is called, & the ffeoffees in Trust make the most of it have only an Action against the heir or Tenant for the profits.
2. The General Court of this Province in the year 1676 after long & due Consideration of this pretended Will of Gov! Belling- ham did adjudge it to be Illegal null & void in Law as will appear by their act or order, & your Applts hope this Honble Court will Consider how Illegal and Dangerous it will be for the Inferiour Courts or a Jury of twelve Men to Overthrow a matter so maturely setled and Determined in the Day of it, by the General Court of this Countrey now above Thirty yeares since, where there hath been many purchases & Conveyances of that Estate Pursuant to the order of the General Court.
HISTORY OF CHELSEA
[CHAP. XIV
3. The Def! can pretend to no Trust in the said Estate till after the Death of ye Grand Daughter of Governour Bellingham by the very words of the Instrum! it Self, now she is yet Living
4. The Appls & those under whom they claim Enjoyed this ffarm thro the years of possession Vizt from 1692 to 1704 & Reced the Rents & profits thereof & by the Law of this province that is not only a Confirmation but a Title of it Self -
Boston Ap1. 21st 1707
All which matters and things being Considered by this Honoble Court, your Applts Doubt not but they shall obtain Reversion of the former Judgment possession of tlie ffarm in Controversy & Costs of Courts.
P. Dudley pro Appelltibus
A true Copy Exam!
₽ Addington Davenport Cler
A true Copy of the Original
on file Examª p Elisha Cooke Clr."
James Allen's Answer to the Reasons of Appeal 7
Suffolk ss. To the honble her Mats Justices of the Superiour Court of Judicature to be holden at Boston for the County of Suffolk the first Tuesday in May 1707.
Watts & his wife Aplts agt sons of Appeal from the Judgmt of an
The Defte answers to the appelts Rea-
James Allen Defte Inferiour Court of Comon pleas held at Boston for the said C[oun]ty the first Tuesday of Jan'y last Past when & where the Aplts were Pits [Abi]gail and Jonathan Townsend Defts, & afterwards by a Rule of [Court] the said James Allen was in their room admitted in an accon of trespas & Ejectmt for a Farme at Winisimitt as per writt at large appears, the plea and judgmt were such as the Appelt has set forth, and tlie Judgmt is right & ought to be Confirmed
In the first reason the Applts have assumed, and Conclude vpon it, as the Apelts tytle was owned by the Deft at the Infer" Court, when only to save the Courts time the Deft having inspected the Deeds Conveyances &c. [Deft.] might owne they were well exe- cuted, but that was farr from owning a good tytle in ye Apelts &
" Endorsed: " Watts V. Allen. Reasons of Appeal Recd into the Office April 21st 1707. Ad: Davenport Cler."
7 Suff. Early Court Files, No. 7402. Paper No. 6.
565
APPENDIX 2
CHAP. XIV]
had it been so 'tis not to be doubted the Jury would have sav'd 'em the trouble of this Appeal.
2 the Appelts second Reason is very ill founded, or has rather no foundation at all For certaine it is, that the Fcoffees in trust wch now (survives to this Deft) were well vested [in ] the Estate by virtue of Gov" Bellinghams Will imediatly after his death, & it can never be devised (contrary to the Rules laid downe by ye Appelts) but a Devise of the issues & profitts of lands is a Devise of the land it selfe so 'twas adjudged in Cooks reports betwixt parker & Palmer where 'tis said to have the issues & profitts, & to have the land is all one; & so say all our Books of Law, but the Deft need not to insist on that, or any other tytle but his bare possession, wch alone is a better tytle than ye apelts have yet discovered or pretended to, according to that ancient rule in Law, Melior est conditio possidentis quam p[eten]tis & if they would recover they must do it of their own strength, not by any weaknes they wou'd seem to discover in the Defts tytle, for they having no right can- not suffer wrong by the Defts possion wch is always favour'd in Law as an argum! of right of it selfe & So the Deft Concludes that the heir at law neith" had, nor any deriving from him have or can have the Estate in Law in the lands in Controversy
.
1st But the Appelts vnwilling to rely vpon the weakness of this argum! have insisted that Govern" Bellinghams Will at a Gen11 Court of this Province in (76) was adjudged null & void. & so they Conclude & depend vpon it that the same is without Effect, To wch 'tis under favour answer'd & with all imaginable deference & submission to Gen11 Courts That the matter in dispute about the validity of the sd Will was wholly out of the Cognizance and Jurisdicon of that Gen" Court, then Especially called, For it was at a time when the Province was undr the old charter Gov- ernmt, and that sd Charter do's [it's] true Give the Govern! & assistants a Legislative power to make Laws [&c] and invests them with an authority to settle the Magistracy of the plantation & to Elect & appoint all Sorts of officers Superiour & Inferiour & to sett forth the powers and limits; but no where inables the General Assembly, to Erect themselv's in a Court of Judicature, as they did
2 That the General Court, Invested with the powers before recited Did by virtue of the sd Charter Erect Courts of Judicature, Constitute & make Judges Magistrates & Officers of the Law, within the Province with whom was lodged, & to whom was Comit- ted [the] Executive part of the Law ; And the Deft do's averr, & can read [ily ma]ke appear that the sd Will of Gov! Bellingham, was bona fide prov'd allow'd and recorded before the Magistrates that then had the proper Jurisdicon and who were rightfully
566
HISTORY OF CHELSEA
[CHAP. XIV
Chosen & Qualified by the Generall Court to these & Such like ends & purposes, & so was a will as well prov'd to all intents & purposes as could be, or the Law did require
3 It must needs therefore follow that the Act & judgm! of the Generall C[ourt] respecting the Said will was ipso facto void as being Cforam] non judice & therefore ought not in the least to prejudice [or] obstruct the Deft in the faithfull discharge of the trust reposed in & by the said Will, and therefore it will neithr be Illegal or dangerous for the Courts of Common Law (as the Apelt seems to app"hend) to reduce this Will to [its?] place, but on the other hand it will be very danger [ous] & of ill Consequence, If this matter should not be settl[ed] and regulated according to Law, wch with humble submission is in the power of this honb11 Court. For 1st It is both the Law of God & man that a man's will should be observ'd & fullfilled. The Maxim is Ultima Volun- tas Testatoris perimplenda est secundum veram Intentionem
2 The Governm! & acts of this Province by the Generall Court, are to agree with, and are Circumscrib'd by the powers & author- ityes granted by the Charter and these things wch doubted of may. properly be brot in judgmt and are no where so properly dis- putable as in the Courts of Common Law.
3 That the Courts of Common Law are obliged to Judge & de- termine of Such matters when they come judicialy before them, according to Law.
4 The Courts of Comon' Law in England, (the parlam! there having a farr greater power & authority in all things then ever was granted by a Charter to the plantations) have frequently Judged, of the affairs of the parlamt as what was or was not a good session of parliamt: and what was or was not an Act of parliamt, and the Judges have declared it was their Office & duty so to do, w! such matters came before ym wch the Defts Councell are ready to argue from ye authorityes in the Law.
5 [ ] Jurisdiccon of the Gen11 Court was not only Incom- potent [but] what they then did had it been Coram judice can never operate to destroy & make null the said Will, Because the Act of Assembly rely'd on by the Appelts, wants those Enacting Clauses which are absolutely necessary to the making of a good Act in Law weh the Deft is ready to shew forth to the Court
To the 3ª reason it is answer'd the [GrandD]aughter neith! hath, nor can pretend to any interest [or ri]ght to the lands in Controversy, the said Will having particulerly devis'd ym to other vses, & if she really has a right, the appelt has given up the Caus. for by saying so, he excludes his owne pretence; & then must allow that the Defts, possession (as before was hinted) is better than the appelts Tytle
567
APPENDIX 2
CHAP. XIV]
4. Reason "Tis preposterous That the Appelts should pretend to the right & possession of the Lands in Controversy, & yet sue them- selves out, for the sake of a Tytle, but the Contrary is most plain, our very Tennants in whose room the Appelle is deft, were the persons orriginally sued in this action, who without the Apelts hint will be mindfull to Confirme their Tytle (if need be) by pleading the Law of possession, but wth no other designe, but to Execute the pious vses mencond & declared in the sd Will
The Appelt in his Reasons setts forth, there has bin several Conveyances pass'd of the lands since the sd Will was frown'd vpon, the Apellee Answers, there was nev! any Conveyance of this land in Controversy, & if there had, the Rule is Caveat Emptor, & no doubt the purchaser wou'd observe this Rule, & gett good Warrantys & Covenants from ye Grantor, especially beca the Tytle must be precarious
All wch with wt will be furth" argued is humbly submitted to this honble Court, not doubting yor hon's & ye Jury will Confirme the former Judgmn! & allow full Costs to the Deft Jnº Valentine Attory for The Appellee.8
THE BILL OF COSTS 9
Suffolk ss. At an Infr Court in Octr 1706.
Watts & ux
Abigal & JonathD V for Copy writt
attendance of two defts 2 days
0
8
Townsend
Attorneys fee .
0
10
pd for addmittance of Mr Allen in ye room of ye Town- sends
0
1
pd for the Contin
0
1
Copyes of papers in ye tryall .
0
4
Attending ye Court in Janry two dayes
0
3
for Copy of the reasons of appeal .
0
3
Examng & taxing &c .
0
3
2
May Superiour Court 1707
£ 1:15: 2
Examd per Ad: Davenport Cler
Same
V for attending ye Court 2 dayes
3 -
Allen Clarke Attorneys Fee
0 12
for divers Records papers &c. for the tryal
1 2
filing papers exam'g 0: 4- 0
& taxing .
0 : 1- 0
3 19 0
3 17 0
Examd per Elisha Cooke Cler :
8 Endorsed: " [ ] Allens Ansrs To ye Reasons of Appeal."
9 Suff. Early Court Files, No. 7402. Paper No. 8. There are two copies; the second attested as well as examined by Elisha Cooke.
0
2
568
ILISTORY OF CHELSEA
[CHAP. XIV
WATTS US. ALLEN - ACTION BY REVIEW
Writ of Attachment 10
Anne by the Grace of God of England Scotland France and Ireland Queen Defender of the Faith &c.
Suffolk ss. To the Sheriff of our County of Suffolk his Under
(Seal) Sheriff or Deputy Greeting
Wee Command you to Attach the goods or Estate of James Allen of Boston within our County of Suffolk Clerk, otherwise Called James Allen Clerk, to the value of one Thousand pounds & for want thereof to take the Body of the said James Allen (if he may be found in your precinct) and him Safely keep so that you have him before our Justices of our Superiour Court of Judicature next to be holden at Boston within & for our said County of Suffolk on the first Tuesday of November next, then & there in our said Court to Answer unto Edward Watts of the Parish of St Buttolph Aldgate in the City of London in the Kingdom of England Sawyer and Rebecca his Wife: In a plea of Review of a plea of Tresspass & Ejectment Commenced by the said Edward Watts and Rebecca his Wife Plantiffs against Abigail Townsend Relict Widow of Samuel Townsend late of Winnisim- mett within the Township of Boston in the County of Suffolk yeoman & Jonathan Townsend of Winnisimmett aforesaid Hus- bandman Defendants at an Inferiour Court of Common. Pleas Begun & held at Boston within & for the County of Suffolk aforesd on the first Tuesday of October In the fifth year of our Reign Annoq Dom 1706. for that the Defendants have Illegally Entered into & do with hold from the Plants the possession of a Certain Farm or Tract of Land, Seituate lying & being at Win- nisimet in the Township of Boston aforesd Consisting of Upland & Marish, Containing by Estimation Three hundred Aeres or thereabouts being bounded Westerly by the Land of John Center Called Centers farm, Southerly by a Creek & by the Land of the Widow Eustiee, Easterly by the River, Northerly partly by a Creek & partly by the Land of [William] Ireland together with the Several Buildings houses Edifiees & fences, Standing & being there upon; As also the priviledges and Appurtenances there unto belonging or in any Wise Appertaining, which said Land housing & premisses was heretofore the Estate & Inheritance of Samuel Bellingham late of the Parish of St Anns Westminster in the County of Middlesex in the Kingdom of England Esq"
10 Suff. Early Court Files, No. 7402. Paper No. 1.
1
569
APPENDIX 2
CHAP. XIV]
deced who in his life time, to wit on the Sixteenth day of April 1695, In Consideration of a Marriage they Intended to be had between the said Sam" Bellingham & Elizabeth Savage then of the Parish of St Anns afores! Widow, by an Indenture or Deed of Feoffment under the hand & Seal of the sd Bellingham now in Court ready to be produced did grant Convey & make over (amongst other part of his Estate the Land Messuage & housing abovesaid with all his Right Title Estate or Interest, Reversion or Reversions Remainder or Remainders in & unto the same, unto Edward Hull and John Shelton Citizens of London aforesd. In Trust & for the Use of the said Sam" Bellingham & Elizabeth Savage during their Natural lives in Case the said Marriage took Effect & from & after the Death of the said Sam" Bellingham to the only proper Use & Trust of the sd Elizabeth Savage, & to Such Uses as She the sd Elizabeth Savage by any Writing or Writings or by her Last Will & Testament in Writing should Nominate & direct, And in Case of no Such Writing or Last Will & Testa- ment of the said Elizabeth Savage then for the only proper Use & Trust of the Right heirs of the said Elizabeth. Now the Plants in fact say, that the sd Sam" Bellingham did afterwards Inter- marry with the said Elizabeth Savage & is since deced and the aforesd Elizabeth is also deced without Issue or Brother and with- out having Conveyed away disposed of or directed her Use In- terest & Trust aforesd According to the Intent & Meaning of the Deed of Feoffment aforesd, Whereby the Estate Use & Interest of the aforesd Elizabeth after her decease did descend to the aforesd Rebecca Watts as being the only Sister & next heir of the s! Eliza- beth, And Accordingly the aforesd Edward Hull & John Shelton Trustees as afores! by an Indenture under the hands & Seals of them the sd Edward Hull & John Shelton, now in Court ready to be produced bearing date the Fifth day of September 1702 for diverse good Causes & Considerations therein mentioned did grant bargaine Enfeoff Release Convey and Confirm unto the s! Edward Watts & Rebecca his sd Wife Plants as aforesd the sd Land housing & premisses And all their Estate Right Title Use & Trust to & in the Same to & for the use of the sd Edward Watts & Rebecca Watts & her heirs & Assignes forever. As in & by the sd Deed & Deeds Relation there unto being had more fully & at large it doth & may Appear. Nevertheless they the Defendts aforesd altho often thereunto Requested to wit at Boston aforesd by the Plants aforesd the possession of the sd farm or Tract of Land Messuage housing & premisses aforesd to the plants aforesd to deliver have hitherto neglected & Refused & do Still neglect & Refuse to deliver the same to them to the damage of the sd Edward
570
HISTORY OF CHELSEA
[CHAP. XIV
Waits & Rebecca his Wife as they say the sum of one Thousand pounds At which said Court the within Named Abigail Town- send & Jonathan Townsend then Appearing by John Valentine their Attorny pleaded they were only Tenants under James Allen Clerk whom they desired might be Vouched, And the sd James Allen Appearing At an Inferiour Court of Common Pleas Begun & held at Boston for & within the County of Suffolk on the first Tuesday of January being the seventh day of the sd Month 1706 pleaded Not Guilty: When & where Judgment was Rendered for the Deft Costs of Suit, from which Judgment the sd Edward Watts & Rebecca his sd Wife Appealed to the Superiour Court of Judicature Begun & held at Boston for & within our County of Suffolk aforesd on Tuesday May the Sixth In the Sixth year of our Reign Annoq. Domini 1707 where Judgment was Rendered for the Appellee Confirmation of the former Judgment & Cost of Courts Which Judgment they the sd Edward Watts & Rebecca his sd Wife say is wrong & Erroneous and that they are thereby damnified the Sum of one Thousand pounds Money as shall then & there be made to Appear: for the Reversing whercof & Recov- ering of the possession of the sd Farme or Tract of Land together with the sd Several Buildings, Edifices fences privildges and Appurtenances there unto belonging they the sd Edward Watts & the sd Rebecca his sd Wife bring this Suit as also for their own Cost & damage Occasioned thereby. And have you there this Writt with your doings therein Witness Samuel Sewall Esqr At Boston the fifteenth day of October In the Sixth year of our Reign Annoq. Dom 1707.
Elisha Cooke Cler :
The Judgmts are right.
J : Valentine atty for Defte Suffolk ss.
Boston Octor : ye 20th 1707.
By Vertue of this Writt I have Attached the Dwelling house of the within named James Allen lycing in Boston which was Shown unto me by the Pits to be his Estate and likewise left a Summons at his house with his daughters.
Giles Dyer Sheriff 11
BILL OF COSTS 12
At An Inferiour Court of Pleas at Boston the first tuesday of January 1706.
Edward Watts & Rebeckah his wife plantiffs
James Allen By Rule of Court Deft
11 Endorsed: " Watts vs. Allen." For the judgment of the Court, see supra, p. 548.
Suff. Early Court Files, No. 7402. Paper No. 9.
CHAP. XIV]
APPENDIX 2
571
Costes for the Plantfs
Writ summons & service £:0-6-0
Entring the action - & Fee 1- 0- 0
continuance from october court 0- 1- 0
attendance at october court 2 days 0- 6- 0 .
to the Jury at January court . 0-12- 0
at January court attendance 1 day 0- 3- 0
appeal & Recognisance
0- 3- 0
Copiee of the Case .
0-16 - 6
Filing papers exam. & taxing costs
0- 3. 4
Examd per Ad : Davenport Cler
At A Superiour Court In May 1707. Watts & Uxor Appellants James Allen Deft
Entring the appeal and Jury
1- 5- 6
2 days attendance
0- 6- 0
Attorneys fee .
0-12- 0
Filing papers &c.
0" 4: 6
2= 8= 0
Review of the same Cause In Novemr: 1707.
Writt & Service
0- 6- 0
Attendance 4 days
0-12- 0 £ :5=18= 0
Attorneys fee .
0-12- 0
At May Superior Court In May 1708.
Attendance 4 days . 0=12= 0
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