Peter Golden Attourney of Walter Barefoot pi* against Edward Clements Defend* in an Action of the case for not payeing a debt of twenty one pounds & od money owned by the said Clements due by bill or soe much as shall appeare by bill or witnes & due interest & all others due Damages according to Attachm* Dated the 24th of July 1671 . . . the Jurie . . . found for ye Defend* Costs of Court the plantiff appealed from this Judgm* [7] to the next Court of Assistants & Cap* Walter Barefoot in twenty pounds & Isaac Woodie & George Broughton in tenn pounds apeice acknowledged themselves bound to . . . prosecute his appeale . . .
[“Captain Walter Barefoot chirurgeon” was a well-known planter of Dover, N. H., which at this time was included in the Massachusetts jurisdiction. The facts of this case are explained by the following documents and depositions, together with Barefoot’s reasons of appeal and Clements’ answer. The Commissioner’s Court mentioned in the deposition of Elias Stileman is one of the few references we have at this period to a special court instituted in 1651 in order to relieve the County Court.
*14It consisted of seven freemen annually chosen by the freemen of Boston, and authorized by the Court of Assistants to hear and determine all civil actions not exceeding the sum of 10Í; the commissioners had a clerk and kept records (The Book of the General Lawes and Libertyes 1660, p. 13; Whitmore ed., p. 133). In S. F. 1077 will also be found copy of writ dated July 24, 1671, with return dated August 3; record of bond given by Isaac Woody and Broughton to appeal the case; testimony of Isaac Woodey, similar to Stileman’s. Barefoot lost the case on appeal; his bill of costs is here given as a sample of that sort of document.
S. F. 1077.6
I under written doe promise to pay unto Cap* Walter Barefoot of Boston Twenty one pounds nine shillings in goods.
Boston 29: 3. m° 64: per Edward Clements
Yera Coppia as Biehard Steleman Cleric paid of this bill five pounds fifteene shillings & 2d per Edward Clements
Sworne per Cap* Walter Barefoot y* ye above written was the hand writing of mr Edw: Clements in Commission Court. 3d 7: m° 1669
The Deposition of Elias Stileman.
This Deponent Saith y* some time in August now last past I heard Cap* Barefoot saye uppon some discourse passing about a difference y* was betweene him self e & Mr Edw: Clements y* he y° sd: Barefoot had as much Silk as came to five pounds wc)l was made reci*d upon ye back side of a bill or bond under ye said Clements hand, these words was Spoken y* day y* Martin Hall was one board Said Clements ship when Cap* Barefoot & said Clements had words or discourse about ye Said Silke & further Saith not.
Sworne in Commision Court ye 3d 7: m° 1669 Rich: Steleman Cleric
Vera Coppia as attests Rich: Stileman Cleric
This is a true Coppie as Attests Free Grace Bendall Cler.
Barefoot’s power of attorney to Peter Goulding (S. F. 1077.3) follows:
Know all men that I Walter Barefoot of Dover Chyrurgeon have made ordained constituted & appoynted & doe hereby made ordaine constitute & appoynt my trusty freind Peter Goulding of Boston my true & lawfull Attourney for mee & in my place & stead to aske require & receive of & from Richard Cooper or his heires Executrs Administrsor Assignes ten pounds due to mee by bill and a certaine summe in goods due from Edward Clements due by bill & also eight pounds Sterling due from William Wright of Dorchester, by bill or from their or either of their heires Executors Administrs or Assignes And I herby give my sd Attourney full power (if he see cause) the sd debts or any of them & all other due dammages thereon or therby ariseing to sue for At Law by Action or Actions vnto judgment or Judgments & therupon Execution or Executions to take out & ye same to cause tobe satisfyed& such satisfaction to receive & to doe & execute or cause to be done & executed all & every other Act & Acts divice & divices in y0 law whatsoever that I might or could doe if I were personally] present. And I doe & will at all *15times rattefy & confirme whatsoever my sd Attourney shall lawfully doe or cause to be done in & about ye premesies In witnes whereof I have hervnto put my hand & seale this eighth day of June 1669 & in ye xxi yeare of ye reigne of King Charles ye second &e
Walter Barefoote
[seal]
Signed sealed & delivered in the presence of vs.
James Gundry William Smith John Mesinger
S. F. 1077.8
Edward Clements Aged thirty years or there abouts Testifieth uppon Oath that he oweth Mr Walter Barefoot nothing neither Directly nor Indirectly & that to his knowledge he never gave the Said Barefoot Any bill for the payment of any thing
Taken upon Oath this 23d of August 1671 before me.
. . . Bichard Parker Commis[sioner]
S. F. 1077.4
Walter Barefoot Or Peter Goulding his Attorneys Reasons of Appeale from a Judgment of A County Court held in Boston on the 31* of October 1671. in which Action he was plaintif ag* Edward Clements def
First for that his Cause of Action mentioned in the Attachment (tó wit) A debt of Twenty one pounds due by Bill owned by the sd Edward Clements due by Bill or soe much as shall appeare due by Bill or Witnes & due interest &c. is sufficiently proved. That there was such A Bill by the testimonie of Isaack Woodey his first oath that five or six pounds was written on A Bill which he then thought was an obligation from the sd Clements: But when he had better bethought himself being lawfully required did farther testefy that Edward Clements did owne he had given Walter Barefoot A Bill for the payment of Twenty one pounds odd money & that he did see this bill which he the sd Clements owned to be his &c. And secondly Martin Hall his Additional! oath sayeth that Walter Barefoot demaunded the abovesd debt of Edward Clements due by Bill which Edward Clements owned was due. All which is enough to prove there was such A Bill & debt, as by Refference to them Testimonies had doth more at large appeare though thervpon the plaintif could not have the Judgment of that Court for him wherfore he appealed.
Secondly, Edward Clements his owneing of the wholl sd debt to be due is clearly proved by his paying parte therof, proved by Isaack Woody his first oath, & by Martin Hall his Additional! oath both which doe mention some silke pd in parte. Soe that though the plaintif was negligent in causeing witneses to subscribe to the Bill when Edward Clements did subscribe it, that Defect is salved & made vp by oleare proofes that there was such a Bill & is yet unpayed. But because he had not a judgment of that Court for his soe just debt therfore he appealed.
Thirdly As it was in the sd honored Court pleaded that Edward Clements never dealt with the plaintif much les gave A Bill to him for payment, which plea was weakly grounded on Edward Clement’s owne oath (as I suppose) the contrary to which is evinced by Samuel Warkman’s bond assigned vnto him pd sd Clements by the plaintif And that there is noe truth in his sd oath appeareth plainely by his owne acknowledging otherwise at other times, sworne too by Isaack Woodey & Martin Hall.
*16fourthly Though some peradventure not well advised would boldly say it was an oversight for Courts to accept off parties owne oathes against one another the plaintif dares not say soe much. But humbly offereth to the wise Consideration of this Honorable Court & Gentlemen of the Jurey the plaintif his owne oath that Edward Clements did write the whole Bill as testimony equivalent unto Edward Clements owne oath that he never gave such a Bill. Wherfore leaveing them the plaintif doubteth not from what is abovesd to wit cleare proofes of A Bill & debt due & parte therof payed but to have the Judgment of this Honorable Court for the same wherfore he appealed.
Pe: Goulding Attorney of Walter Barefoott.
Receaued ye 27Ul of 12 m° 1671 per Free Grace Bendall Cler
S. F. 1077.5
Answers to the Reasons of Appeale Given in by Peter Goulding Attorney for Walter Barefoote as pw ag* Edward Clements defend* at a county court held in boston 31 Ocktober 1671
To the first I answer that wheras he speaketh of A Debt of Twenty one pounds due by Bill and owned by the defend* the Defendent utterly denyeth any such bill given by him and for the testimonyes there spoken off: with their Additional! Oathes: the Defendent hopeth they will be by this honoured Court, and Jury so considered off that they will be accounted of no validity
To the second the Answer is the Defendent neuer owned paying of any such Bill only five pounds Captaine Barefoot bought of him in Silke and paid him for it; but if he set downe that; or what else he pleased upon any peice of paper; and say it is receiued upon the within written let him make use of it; only the Defend-ent hopeth he being not oblidged to what is within shall not suffer for what is without
To the third the Answer is that the plaintiffe therin seemeth himselfe to owne that what was: was only the Bond due to the plaintiffe from Samuel Warkman: which was Assigned to: to ye Defendent but being by the defend* neuer receiued he haue as he conceiuethe no reason to pay it
To the fourth I answer that I humbly conceiue the honoured Court more meet to answer it then any other; and therfore shall forbeare to make any reply to it
per Richard Way Attor
to Mr Edward Clements
S. F. 1077.12
Walter Barefoot plaintif his bill of Costs ag* Edward Clements Def*
At the County Court in Boston Octobr 31: 1671 l s d
for two dayes goeing to Mr Elias Styleman for coppies of Evidences . 0:02:00
pd to him for coppies .0:03:00
pd Mr Rawson for coppies .0:03:00
the Attachment & serveing it .0:01:06
Entering the Action .0:10:00
his owne comeing from Pascataqua to bring coppies of Martin Halls Evidence & other things & in goeing hoame to puscataqua againe six dayes .0:12:00
his owne Attendance 5 dayes at Court .0:10:00
writeing ye first evidences & sumoning witneses .0:00:00
*17 l s d
Isaaek Woody’s attendance 4 dayes .0:06:00
pd the Witneses for the first swearing so all twice & Woodys first oath ' & sumons.
fyleing ten papers . 0:01:08
ferryage outwards & hoamward 0:00:00
2:11:02
At the Court of Assistants for Entering the Action 0:16:00
pd for County Courts records . 0:09:00
his Attorneyes Attendance 5 dayes. 0:07:06
writeing reasons of Appeal . 0:01:06
more to be pd for the judgment because above 10u 0:00:00
fyleing 13 papers . 0:02:02
5:06:10
Allowed ERS 1:15:2
2:11:2
4:6:04]
Height. See New English Dictionary, “ Chief,” sb.9.