USA > Massachusetts > Suffolk County > Chelsea > Documentary history of Chelsea : including the Boston precincts of Winnisimmet, Rumney Marsh, and Pullen Point, 1624-1824, vol 2 > Part 5
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their Action against Col. Paige, Mr. Saffin was of that opinion also." $7
The law of the case would seem to have been as follows: - The first two acts for establishing the Judiciary and regulating pro- cedure in the courts had both been disallowed by the King in Conneil. The first permitted a review immediately after judg- ment, and the other within eighteen months. In 1699 the Act for Regulating and Directing the Proceedings in the Courts of Justice, etc., provided that in " all cases wherein the plaintiff or defendant shall have obtained the number of three judgments, it shall be a final issue and determination of such case; and every action of review shall be brought within the space of three years." The Lords of Trade objected to this feature as " delatory and vexations," and it was therefore disallowed October 22, 1700. In June, 1701, the " Act for Review in Civil Canses " was passed."% The motive for the law, as stated in the preamble, was to permit to every one a trial by review, on the ground that the parties inter- ested might for this trial obtain new evidence which they could not secure in so short a time as was allowed by law for a trial by appeal. This right to review was limited by the following clause : " provided no action of review shall be brought after the expiration of three years from the time of rendring the judgement to be reviewed ; saving unto any infant, feme corert, or person non com- pos mentis, imprisoned, in captivity, or out of this province, the term of three years, next after their coming of full age or such imperfection removed, to bring his or her action of review, and not afterward." The plea of Elisha Cooke et al. has not been found ; but on failing to obtain a hearing before the courts, they petitioned the General Court and this petition is still on file."9 In it they assumed that the act of 1701 limited a right of review already existing, and hence the interpretation of the courts made it an ex post facto law cutting them off from an existing right. This theory presumably rested on the fact that at the date of passage of the act of June, 1701, there was no statute in force regulating the right of review, as the last of the series of five staintes 7 dealing with
67 Sewall, Diary, ii. 47. See Provincial Acts and Resolves, vii. 509. From the petition of Elisha Cooke to the General Court in February, 1701/2. it would appear that Cooke brought suit in the courts shortly after the act of 1693 (supra, note 64) had been disallowed by the King. In point of fact he brought suit nearly five years after that act had been disallowed, and four months after Lieutenant-Governor Stoughton died.
08 Provincial Acts and Resolves, i. 373, 375, 466, 467.
70 Act of November 25, 1692, disallowed Angust 22, 1695; act of October 09 The petition is printed in Provincial Acts and Resolves, vii. 509, 510.
22, 1694, supplementary thereto, disallowed December 10, 1696; aet of
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this matter had been disallowed October 22, 1700; and on the assumption that as no statute was in force in June, 1701, for- bidding the courts to entertain a suit by review, a right to review existed, and was limited only by the provision in the act of October 30, 1697, providing that quiet possession from October 1, 1692, to October 1, 1704, should give confirmation of title.71 The question is whether the act of June, 1701, instituted a right to review or limited it. The wording of the preambles of the acts of Decem- ber 11, 1693, and June 18, 1701, seems to show that the legislators thought the former the case.
The petition of " Elisha Cooke, John Wisewall, Sarah and Hugh Floyd Administrators of John Floyd " to the General Court that they might "not be forever out Lawed " but that they might " have Relieff in the premisses " and " be enabled to Review the sd Judgments," was read in the Council for the first time February 26, 1701/2. The succeeding day it was read a second time, and the Couneil voted that the petition be granted and a private bill brought in for the relief of the petitioners. Sewall and four others moved that Colonel Paige should be notified. Cooke, Sewall records, February 28, " seemed displeased," and " said 't was to de- lay his Business : was sorry I was so far engag'd in it." So Sewall stayed from the Council on February 28, when Colonel Paige ap- peared. As he offered " nothing against what was Prayed for . . . only that he had been informed that Something had been sent from England relating to the Passing of Aets, a Bill was brought in," and read, but referred to the next sitting of the General Court.72
The cause of Cooke's displeasure with Sewall is not far to seek. Sewall was, as has been said, a member of the Court which had decided the previous November that the Aet for Review barred the aetion, and before which suit would be brought if this impediment
October 3, 1696 (temporary), disallowed November 24, 1698; act of June 19, 1697, disallowed November 24, 1698; act of July 18, 1699, disallowed October 22, 1700. Provincial Acts and Resolves, i. 72, 184, 248, 283, 372, 375, 466.
11 From the petition of Cooke, Wiswall, and Floyd, it would appear that this act was permissive, granting " libertie to all men to bring their Actions for recovering their Right in Lands at any time before the first day of October, 1704." On the contrary the act, as its title implies, was one of limitation solely, and was not operative until October 1, 1704.
72 Supra, pp. 17-19. November 3, 1705, the House of Representatives passed the following: " Resolved that as an Explanation of the said Law [the Act of Review], each Party (Plaintiff or Defendant) that hath not had a Review in each Court, may review in Each of said Courts once and no more." The Council disagreed November 6, 1705. MSS. Rec. of the General Court, p. 164.
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was removed by the General Court. Elisha Cooke was obviously in haste to press his suit. In less than four months Joseph Dudley arrived as Governor, and it was already expected that he would receive the appointment." Thus when the bill was post- poned to the next sitting of the Court, it was practically disposed of. June 10, it was read twice in Council; nothing more is heard of it. June 11, Joseph Dudley took his seat as Governor. Shortly after this, June 29, the Superior Court of Judicature was re- organized. Cooke was dropped, as was also Winthrop,3 and the appointee as Chief Justice was Isaac Addington." In 1703, also, Governor Dudley expunged Cooke's name from the Council list. He negatived him again in 1704, 1706, and 1708; nor did Cooke again obtain a seat in the Council until 1715. He died in October of the same year, aged seventy eight. After 1202, therefore, Colonel Paige and his wife had undisputed possession of the farm.
Cooke, however, it would appear, did not relinquish for many years all hope of its recovery. On July 7, 1204, a week after the death of Mrs. Paige, John and Hannah Wiswall, as compensation for a debt of one hundred and eighty-six pounds, quit-claimed to Cooke their right to one fourth of the great farm, agreeing that they would "permit and Suffer the said Elisha Cooke his heirs and Assignes to make use of his or their Names in any Action or Suit to be brought for the Recovery of and Ascertaining the right of the said John Wiswall and Hannah his said Wife " to the lands in question, and that they would " alwayes Avow Such Actions or Suits so brought and never Disavow or become Nonsuit therein." 75 But as the tifle to both the farms at Rumney Marsh had been transferred by the deeds of February 10, 1202/3, and February 10, 1703/4, to Joseph Dudley,76 Governor of the Province from 1702 to 1715, recovery by process of law would throughout this period obviously have been hopeless.
73 Sewall had noted in September of the preceding year that it was reported that Cooke and Wait Winthrop had written Sir Henry Ashurst in opposition to the appointment of Dudley. Diary, ii. 41.
" Addington was one of the pallbearers at the funeral of Mrs. Anna Paige in 1704. Sewall, Diary, ii. 111.
75 Suff. Deeds, L. 25, f. 209. The deed was recorded March 2, 1710/11.
78 / bid., L, 21, f. 410; L. 31, f. 53.
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PAIGE US COOKE el al. COUNTY COURT, OCT? 1686 77 Summons lo Jnº Burrel 78
Richard Roe Complaines of John Doe of a plea of Trespass & Ejectment for that That is to say That wheras Capt Nicholas Paige & Dame Anna Paige his wife the first day of May in the second yeare of the Reigne of our souereign Lord James the second King of England Scotland france & Ircland &c at Cam- bridge in the County of Middlesex in the Territory of New England had Demised granted & to farme letten vnto the sd Richard Roe a Certaine Messuage or Tenement, a parsell of wood-
" This file of papers preserved in the Middlesex County Court House seems complete. The bill of eosts of Nicholas Paige shows that no papers presented by him are missing. "The Deffendts Pleas for ye abatemt of ye writt " are in the handwriting of Elisha Cooke. All the papers which sup- port Cooke's contentions are in the same handwriting, and arc attested by Daniel Allin, the attestation being in a different hand from the body of the document. The Declaration of Title of Captain Paige is signed by his at- torney Nathaniel Thomas. The papers charged on the bill of costs of Nieho- las Paige are in the same handwriting, and are attested by Thomas Dudley, the attestation 'being in a different hand from the body of the document. June 2, 1686, Allin and Dudley were appointed clerks of the Suffolk County Court by Joseph Dudley, temporary President of the Colony. The "Sum- mons to Jno Burrell," judging by the handwriting, was drawn by Nathaniel Thomas, and signed in a different hand by Laurenee Hammond, elerk of the Middlesex County Court, and endorsed in a still different hand by John Greene, marshal. The first "Rule of Court " was drawn by Nathaniel Thomas, and bears the signatures of Laurence Hammond, Elisha Cooke, and John Burrell. The "Court's Resolve in point of Law," signed by Ham- mond, seems to be wholly in his hand. As the action of ejectione firmae was until then unknown to the courts of Massachusetts, Hammond had to depend upon Thomas apparently to draw the court documents.
The following documents are omitted because they are printed elsewhere. (1) " Certaine Clauses & passages out of ye Record of Capt Keaynes will." These cover four folio pages, and are in the handwriting of Elisha Cooke with two attestations by Daniel Allin. The will is printed in Boston Ree. Com. Rep., x. 1-54. (2) Articles of Agreement between Anna Keayne, widow, and Edward. Lane, November 28, 1657, printed in Suff. Deeds, L. 3, f. 77. (3) Conveyanee from Edward Lane to Thomas Brattle and Robert Gibbs in trust for Anna Keayne Lane, December 2, 1663, in Suff. Deeds, L. 4, f. 167. (4) Conveyanee from Lane to Cooke and Wiswall, December 14, 1663, in Suff. Deeds, L. 4, f. 191. (5) Vote of the General Court, October 10, 1666. These documents, except the attestations by Daniel Allin, are in the handwriting, apparently, of Elisha Cooke. Although the land sued for lay in Malden, it was contiguous with the farm-lands in Rumney Marsh. See the plan, supra, vol. i. p. 635.
18 This is the endorsement on the writ. Possibly he was later, as John Burrell of Lynn, Speaker of the House of Deputies.
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CHAPS. XIX-XXI] APPENDIX
land arrable & Pasture land in all about forty acres with the appurtenaces Sittnate lying & being in the Township of Manlden in the County aforesd To haue & To hold the Tenements aforesd with the appurtenances vnto the 8º Richard Roe & his assignes - from the fiue.& twentieth day of March last past Comonly called lady day vntill the end & terme of three years thence next follow- ing fully to be Compleat & ended by vertue of which sª Demise the sd Richard Roe into the Tenemt aforest with there apporte- nances Entred & was thereof Possessed vntill the sd John Doe after- wards that is to say the same first day of may in the yeare of the King aforesd with force & Armes into the Tenements aforesd with the appurtenances in & vpon the Possession of the sd Richard Roe entred & him from his so farme his Terme thereof aforest not yet finished did Eject exspell & amoue & him the sº Richard Roc from his Possesion thereof bath held out & other Enormitye to him then & there did against the Peace of our sd lord the King that now is & to the damage of the aforesd Richard Roe ten pounds sterling & thereof he bringeth sute.
To M' John Burrell
You may preciue by the within written declaration that J am sued for the Messuage or Tenement within mentioned to which J Clame noc title & whereof you are in Possesion These are therfore to gine you Notis that you appear or they vnder whom you Clame at the next Court of Pleas to be held at Cambridge for the County of Middlesex on the first teusday in october next then & there to defend your title (if any you have to the p"mises) otherwise J shall suffer Judgment to be entred against me by Default & thereby you will be turned out of Possession. Dated September Your ffrend John Doe
19th 1686 -
To the Marshall of the County of Middlesex or his Deputy Greeting.
These are in his Majesties name to require you on Reecit hereof to sumons the abousd Jolin Burrell to make his appearance at the next Court of Pleas to be held at Cambridge for the County of Middlesex on the first teusday of october next then & there to defend his title to the Messuage or tenement aforesd Jf any he bath there vnto & hereof you are not to faile & make true Return vnder your hand to the sd Court
Scal
Dated in Charlestowne in the By Laur. Hammond Cler Territory of New England of the Court for the County September ye Eighth Anno of Middlex
Dom. 1686
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These are to certifie that J John Green Marshell of Middlesex did read the above Summons unto the wife of the above burrel of Malden, at his house & left a coppy thereof with his wife - as attests
Dated 10th Sept. 1686; John Greene Marshal of Middlesex.
The Deffendts Pleas for ye abalemt of ye wrill
. 1. This Case hath had a full hearing & this land with ye rest of ye farme sued for at ye County Court at Boston, thence ap- pealed to ye Court of Assistts & after yt an Attaint, & was finally determined for ye Deff's yet now is an action brought anew without mention of any former tryal; it is therfore humbly offered to ye Court to consider whithier it ought not to have been by a Review or writt of error, or some way in- timating ye former tryal : for [if] what is tryed & determined at one Court may again be tryed at ye next, it may as well run ad infinitu, & so would ye Law pvide for ppetual contentio, which is not rational to imagine
2. The method & proceedings at law in this Actio ye Jnhabitants here are generally ignorant of & know not how or what to plead in this way, or what ye consequences in Law of advan- tage or disadvantage may be; it is therfore humbly offered to ye Court to consider whither these methods & proceedings are agreable with ye prsent state & conditio of his Majties Sub- jects here & ye circumstances of this place.
But if ye Court judge yt notwithstanding what is sayd to answere further, we say -
'3. That this Aetio of an Ejectione firmae is not due in law to ye Demandant.
For ye Bookes say yt he canot bring this action yt hath not made a good Entry into ye land, & he cannot make a good entry yt hath no Power & Right of Entry at ye time of ye making of ye lease. Now to prove yt ye Demand! hath no Right of entry see Stat. 21. Jae. 10. under ye title Limitatio in ye Abridgmts which sayth, yt none shall herafter enter into any lands &c. but within 20. yeares next after his or their right first accruing, if ther be no Jmpediment of Jnfancy, coverture or being beyond sea; & if so y" within 10. yeares after yt Jmpedimt is removed: Now its aboue 30. yeares since ye death of Capt Keayne, fro whose death she prtends her right to accrue ; its also aboue 21. yeares since ye death of her husband M! Lane, wherby ye coverture was removed; & aboue 20. years since her arrival here frõ beyond sea; so yt by this Statute she is for ever barred of entry. -
7
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CHAPS. XIX-XXI]
APPENDIX
4. That sd Lane alienated ye land sned for to Richard Cooke & John Wiswall Sent by Deed dated Jan'y 11. 1663 which sl Cooke possessed 10. yeares & y" dyed seized in Decemb! 1678 & we haue had possessio abone 12. yeares since his death, 5 of ye weh first 10. yeares without entry is sufficient to barr her affer entry into ye s! Land according to ye Stat. 32. II. 8. 33. see ye statute under title Entry Lawfull in ye Abridgm! upon which ye Lawyers say - Jf a fome covert be disseised her husband dye, she takes another husband, & yn before entry ye disseisor dye scised ; in this case ye entry of ye wife is taken away, see Co. on Lit. p 237. & 216. & Shepards Abridgi! part 2. 13. - from all which it is plaine yt se Demandant hath no Right of Entry & therfore canot haue this Action of Ejec- tione firmae; wherfore we pray an abatement of ye writt.
Rule of Court 7
At the Court of Pleas Holden in Cambridg for the County of Middlesex October 1686
John Doe versus Richard Roc in Ejectioue Firmae from one Inesuage or Tenement seittuate lying and being in Maulden in the County of Middlesex
Jt is ordered with the Consent of Nathanil Thomas Atturney to Capt Nicholas & Anna Paige (of Boston in the County of Suffolk ) 80 Plaintiff's & Elisha Cooke (of Boston in the County of Suffolk ) 80 for himself & John Burrell of Manlden in the County of Midlesex aforesd for that the sd Elisha Cooke & John Bur- rell are allowed Defendants who are without delay to appear & Plead by themselnes or atturney to a generall Jssue [iu] this Court and at the triall therevpon to be made the s? Cooke & Burrell shall appear in their proper prsons or by their Counsell or atturney & acknowlege a Lease Entry & ouster or in defeet Judgment shall be entred against the Causnall Ejecter, But further Prose- cution against thein is suspended vntill the sd Elisha Cooke & Jolin Burrell hane made a defeet in some of the prmises And by the assent of the Counsell it is ordered further by the Court that the aforesd Elisha Cooke & John Burrell shall take noe adnan- tage against the Plantiff for his not Prosecuting vpon the Triall
70 This is the endorsement on the paper when folded. At the top of the page when open is the endorsement, " appointed octob. 5th & adjourned by order of Presidt & Council nnto 19th of ye Same 1686."
80 The clanses in parentheses were interlined in the original with two carets, to designate their insertion after Anna Paige and after Elisha Cooke.
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ocasioned by such Kind of Default but that the aforesd Elishra Cooke & John Burrell shall pay the Plantiff Cost of Court to be appointed & Jt is further ordered that the sd Leasors Capt Nicholas & Anna Paige Plantiff's shall pay the Costs of the De- fendant which the sd Court shall appoint or adjudge
By order of the Court
Nathaniel Thomas atturney
Laur. Hammond Cler. of Middlesex
Elisha Cooke
John Burrell
Capt Pages Count or Declaratio 81
The Count or Declaration of The Title of Capt Nicholas Paige & Dame Anna Paige his wife to the Messuage or Tenement, lying in Maulden in the County of Middlesex sued for by the Ejeetione fermae brought against John Burrell to the Court of Pleas to be held at Cambridge the first teusday in october next 1686
Humbly sheweth to this Honored Court That Capt Robert Keayne late of Boston in the County of Suffolk in the Territory of New England died seised in ffee of a Certane farme about one thousand aerees of woodland Pasture Arrable & Meadow land sittuate lying & being at Rumney Marsh partly & .mostly in the sª Township of Boston & partly viz the aforesd 40 aeres in the Township of Maulden in the County of Middlesex being deuided by a line wch parteth sd Towns of Boston & Maulden.
That the sd Capt Robert Keayne had Jssue only one son Major Benjamin Keayne who deeeased in old England a little before his father Capt Robert Keayns death.
That the sd Benjamin Keayne had Jssue his only Child the sd Dame Anna Paige.
That by the death of the sd Capt Robert Keayne the sd farme at Rumney Marsh together with the sd forty aeres lying in Maulden being prsell therof with other heredetaments & Estate Deseended on, aeerued & appertaineth to the sd Dame Anna Paige she being only heir vnto her Grandfather sd Capt Robert Keayne & vnto her father the sd Major Benjamin Keayne.
The sd Plantiff Prays to be Restored vnto & put into the Pos- sesion of the sd Messuage or Tenement. with the appurtenanees in Maulden Your Honor's most Humble Serut.
Nathaniel Thomas Atturney
81 The endorsement on the document.
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This Declaration was delivered to me by Capt Nicholas Page Sept 18th 1686. attests
Laur. Hamnond Cler.
Defd's plead not guilty. Elisha Cooke
John Burrell
The Deposition of James Pemerton and his Wife
The Deposition of Jams Pemerton aged fifty one yeares or there- abouts & Sarah his wife aged fifty three years or thereabonts
Testify That Capt Robert Keayne sometime of Boston deceased died seised of the fam at Rumney Marsh Consisting of nine hundred acres & vpwards soe Estemated wheron Jolm Wiswall & others now Dwell & this they Certainly Know being Tenants for years to the sd Keayne at the time of his deceass And they further Testify that Mrs Anna Paige the now wife of Capt Nicho- las Paige of Boston was the Daughter of Major Benjamin Keayn & Sarah his wife both deceased & Grandaughter of Capt Robert Keayne deceased soe Reputed & owned by them & this they very well Know haucing Known her from a Child
James Pemerton & Sarah his wife made oath to the abonewritten January 29th 1682
before Peter Bulkley assist affirmed in Court Pro. feb! 1683 82 vpon former oath attest Jsaac addington Cler This is a true Copy of the Originall on file attest! Tho. Dudley Cler.
M" Bradstreets & M" Rawsons Depositions yt she is heir 83
Edward Rawson aged about scuenty years being Deposed saith that vpward of fifty years senec he Knew the late Capt Robert Keayne & Anna his wife whilest they lived in birching lane London & also Knew the late benjamin Keayne their only son & Coming to New England vpwards of forty six years was well acquainted with the above mentioned Capt Robert Keayne & Anna his wife whilest they liued & Knew & saw the manifestation of their deare lone & affection to their sd aboue mentioned son in Prouiding a wife for
82 Obviously this testimony was given at the Probate Court when Nicholas Paige and his wife petitioned to be appointed executors of Captain Keayne's will. Supra, p. 20, note.
83 The endorsement on the document. Their dates show that these depositions were used in the second suit in the Suffolk County Court in 1684. Supra, p. 3.
VOL. II. - 4
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him Sarah the Daughter of the late worthy & Worshipfull Thomas Dudley Esqr & from the Jnfancy of M's Anna the sole Reputed & owned Daughter of the late Major Benjamin Keayne & Sarah his wife soe owned by them whilest they liued & now is wife of Mr Nicholas Paige, her said Grandfather & Grandmother the abouementioned Capt Robert Keayne & Anna his wife after her father the sd Benjamin Keayne went for England which was in the yeare 1641 or 1642 tooke the Care of & gaue her liberall Edu- cation exspresing uery Indeared affection to her as their grand- child whilest they or either of them liued & further saith not; Sworn in Court Des May 1684
Attest Jsaae Adington Cler . This is a true copy of the Originall on file Attest! Tho. Dudley Cler. The Deposition of Symon Bradstreet who testifieth & saith that he Knoweth Mrs Anna Paige now the wife of Capt Nicholas Paige of Boston to be the Reputed Daughter of Major Benjamin Keayn & Sarah his wife owned & acknowleged by them & that Major Benjamin Keayne was the only son of Capt Robert Keayn late of Boston deceased & that the sd Anna was much beloued & uery well & Carefully Educated by her sd father Grandfather & Grand- mother from her Childhood
Sworn in Court 30 Aprill 1684. attest Jsª addington Cler This is a true copy of the Originall on file attest" Tho. Dudley Cler.
The Replication of Elisha Cooke
The Defendants Answer to ye Plaintffs Count or Declaratio That Capt Robt Keayne dyed seised of sd farme thô wanting some hundreds of 1000. acres is owned. Capt Keaynes & his sons Jssue we know not. That if ye sd Anna were ye only child of sd Major Keayne, yet by ye death of ye sd Capt Keayne ye sª Land & estate did not descend & accrue to ye sª Anna
Because ye sª Capt Keayne by his last will Dated Decem! 28º. 1653 proved & upon Record gaue away his whole estate both real & psonal in several legacies wch with his debts & funeral charges amounted to more yn his whole estate, & left not one penny worth of lands or goods for an heire to inherit, see ye Extract & his ab- breviate of ye will & ye Inventory & comparing ym it will appeare
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