John Gilbert plaint, agt Enoch Greenleafe Defendant in an action of the case for not performeing his engagement of one hundred & thirty pounds according to agreement as by Evidence will more fully appeare & all other due damages according to Attachmt Dat. aprill *56620th 1675. . . . [305] The Jury . . . founde for the plaintife twenty pounds in mony damage or the performance of the Agreemt by the Defendt & costs of Court, the agreement to bee performed in a month’s time after this day. The Defendant appealed from this judgement unto the next Court of Assistants & himselfe principall in Fourty pounds & John Sandys & John Williams as Sureties in twenty pounds apeice acknowledged themselves respectiuely bound to . . . prosecute his appeale ...
[John Gilbert appears to have been another of the litigious tanners who abounded in Boston at this time. One of several depositions produced when the case was tried on appeal shows the nature of the contract (S. F. 1405.6):
The testimony of Wm Wright Senr aged about. 63 yeares saith that mr Enoch Greenleefe the dyer together with John Gilberd & his wife being at the house of this deponant about the 27th of March last at which time they were agitating about a bargain concerning the house ground &c. of John Gilberds, in the end it was concluded in manner following: namely that mr Greenleife engaged himselfe to pay to John Gilberd one hundred pounds in Silver, thirty pounds in english goods at mony price as hee could buy at any warehouse & one Rugg & barrell of Molasses & to pay the same as followeth: Namely Sixteij pounds in silver to the honoured Wm Stoughton Esqr & so to redeeme the mortgage & to pay the same in Fourteen dayes & to pay the other 40li in Silver to pay for a purchase wch John Gilberd intended at Concord the remainder of the pay John was to haue upon demand & to binde this bargain mr Greenleife borrowed Five Shillings of this deponent & gaue to John Gilberd in part of pay, on the other side so soon as the Mortgage was paide mr Greenleefe was to haue possession but John Gilberd to liue in it & emproue it for the workeing up of his ware wch was agreed to bee one yeare
Milcah the wife of the abouenamd deponent doth testify to all the abouesd bargain being present at the agitation & conclusion thereof.
Taken upon the oath of both the abouewritten deponents. aprill. 26th 1675. before mee Edward Tyng
affirmed in Court aprll 27° 1675 by Capt Wright upon his oath taken as Attests Jsa Addington Cler.
S. F. 1405.3
Enock Greenlef his Reasons of Apeell from the Iudgement of the County Court held in Bouston in Apprill last which Iudgment was Granted to Iohn Gilbord Against the present plaintife
1 because ye now plaintife was then Sewed as appeareth by An Attachement for not performing of An Ingadgement according to Agreement, but nothing thear in exspressed neither for what the Ingadgement was nor when it was made & yet ye Iurys verdyit was Against the plaintife as I Conceaue contrary to our law which saith yt both persons & case Shall bee both thearin Expressed
2 If anny agreement was made between the plaintife and the Defdn it was for house and land, or for nothing at all, if for house & land: then ye plaintife, must *567bee Surely legally Interested in; or possesed of the premises, before the Defftt had anny reason to Demaund pay now the present plaintife could not if A byear be legally possesed, either wthout Deliuery; or deed of Saile maide accknowledged and recorded wch neither of these wher donn or offered to bee Donne by the Defftt, now our law Saith yt no contracts for houses or land Shall bee vallued in law except it bee vnder hand & Seale
3 If it bee Said yt ther was A verball Agreement and that the pltf gaue earnest to binde the bargaine, yet they doe not Say, yt if the Agreement wher not performed, yt then the pressent pltf Should forfeit twenty pounds nor moor nor lesse, Soe I most humbly conceaue if ther had been anny Sutch agreement made, and not performed, espectialy about house and land: all the Damaiges I can or ought to Sustaine is the losse of my earnest be cause ther was no bargaine under hand & Saile forth whith:
4 because if anny agreement was made; beetween the parties concerned it was not mutch aboue A month before the Defft obtained A Iudgement gainst the pressent pltff and all the while hee had ye use and Improument of the premisses & how the Iury could Justly adiudge mee to pay twenty pounds damages in moneys & cost of Court I wonder at it and thearfore haue reason to Appeale
5 because apon our first treaty of A bargaine, I being A treads man had mutch need to maike use of mutch water, and inquireing of the Defft how his Scituation was furnished thearwth hee tould mee hee had A liueing Springe in his land but Soone affter I goeing whith A friend wth mee to See whether it wher Soe or not (wee found it was not Soe) wherapon I tould him then yt it was not for my use and would leaue it; and this was but about A week after hee ye Said Iohn Gillbert Said yt wee had agreed thus hopeing yt the honesty of my case is euinced I hope this honered court will See cause to reuerse the former Judgement
Enock Grenleif
These Reasons were recd 2d 7br 1675
per Jsa Addington Cler
S. F. 1405.4
John Gilberd his Answar to Mr Enock Greeneleifs Reasons of Appeale from ye Judgmt of ye County Co[urt] held in Boston in Apprill Last as Followeth
To his First wherein he seemes to Make his Cheife plea that Judgmt was Contrarie to Law ye person and Case both in ye Attachmt not Expresed & yet himself Expreseth that it was for not performing an Engage[mt] and found for John Gilberd against him ye Said Enock Greenleife which if it had been that some Circumstantiall Error, yet person & Cause were rightly vnderstood & intended by ye Court Jssue Joyned and preceeded to verdict then not Contrarie to Law but Accordeing to it: Attachmts: page: 7: sec: 2 but his without Law or reason
To his Second where as hee would Make it doubtfull saying if any Agreemt wee refer it to ye Euidences both for what it was & vpon what ocasion & to yt part where he saith if for hous and Land then to bee Legally intresed or possesed &c it is Answered hee by his owne Agreemt had in Capassitteted him self vntill ye sixtie pounds was paid and thereby the Mortgaige Cleared as will Euidently Appear by ye Euidences soe that there is noe ground of pleading yt Law of Contracts of housis and Land and deeds there for: [til] A performance of such abeing but to his theirds
*5683ly where he saith if it be sd there was A uerball bargin it is humbly Conseued that Mr Greenlif[e] is not soe Jgnorant as to put it to an if: or to plead to fast & loos when hee haith soe Agreed nor soe Esily [Cheng] when he haith ingeaged pslam ye 15:4 and that verball Contranets are not good when truly Euidenced as this and to say he Could but loos his Ernest and not forfet twenty pounds it will as before Appear that hee Knew it that if he satisfied not the Sixty pounds According to his Agreemt the pooer man now defendt Must pay twenty pounds more for intrest therefore ye sd mr Greelif hastened to Mr Theophilus Frerie tendering twenty pounds presant with aforther promis of ye res[t] in ye time these things are Euidenced by ye Said Mr Frerie and mr Chiuers and ye dammag[e] by ye Honrd Mr Stoten Esqr
4ly whear he haith his if still if Agreemt it w[torn] not much Aboue A monnth before Judgmt & which might Justly be performed when Agreem[t] Considered for time &c and for haueing ye improouemt of ye premisis that alsoe was Agreed too Soe that he needs not wonder at ye Verdit of ye Jury 20lis money and Costs of Court & then noe tru reason to Appeale
To his 5 and last which is About wator that haith been Chared and it is wel Known to many of ye liueing spring & what A place of water it is & that it is not Esily pasable throug yt Narrow Lane becaue of water the most part of ye yeare all which Considered the Now defendt humbly hops A Confermation of former Judgmt with Adition & Costs Humbly leueing his wrighteous Caus with ye lord in ye hands of ye Honrd Court & Gentlemen of ye Jury to Judg
John Gilbert
The Court of Assistants (Records, i. 48) reversed the former judgment and awarded 28s 6d costs to Greenleaf.]