Elisabeth Lidgett Executrix of the Last will & Testamt of the late mr Peter Lidgett or her Attourny plaint. agt John Smith Mercht Defendt in an action of debt of ten pounds Seven Shillings and a penny due by booke as per adjustmt of Accot with the sd Peter Lidgett on the. 31° day of March. 1676. as per Evidence thereto may appeare with all due damages &c. . . . The Jury . . . found for the plaint. Ten pounds Seven Shillings & one penny in mony and costs of Court grantd twenty three Shillings eight pence. The Defendt appealed from this Judgemt unto the next Court of Assistants who gave bond with Sureties for the prosecutn thereof to Effect.
[S. F. 1692.3
Iohn Smith Ms reasons of appeale from ye Judgement of a County Court held at Boston Ianuary 29.1677. in an action commenced agst him by mrs Eliz: Leigett Executrix to mr Peter Leigett deceased
lst Because the then plaintiffe sues for Ten pounds seven Shillings and a penny, due by booke as per adjustment of acct The 31th of of March 1676 [&c] and produced not ye booke of accts Vpon which any such adjustment was made, nor any perticular Acct extracted thence, to leave wth ye Jury as matter of Evidence, Although The Appealt often demanded that the Bookes of ye deceased wherein The Appealts acct was placed might be brought into Court. That soe the Appealt might have Assign’d or Evinced the Error, vpon ye supposed Adjustment, Or, That mr Charles Leigett, or Mr Deering might have Verifyed theyre Evidence, & demonstrated that theire Evidence contained the whole Truth relating to ye Case — And as it is Vsuall in all Courtes where Actions Vpon accts or Adjustmts of accts by booke; are entertain’d: soe is it Absolutelie necessary, where Bookes are not burnt or lost, that the bookes be prodused — That soe they may be examined: Mistakes Vpon acct (though a ballanee be ignorantly Jnconsiderately or Vpon a Supposition owned, being noe payment (Errors in accts being allways excepted). And when they are found though after a ballance or Adjustment: are allwayes allowed Either by the ingenuitie of ye partye or ye *877sentence of the Judge. Now. Had mr Leigetts’ Leiger & Cash Book, been produced The appealt concieves hee could have readilie demonstrated a materiall mistake, as well in mr Charles Leigetts & mr Deerings oathes Vizt that the 101 now in controversie was not more Then ye Appealt. had Creditt for in those bookes, The Appealt presumeing that his Creditt standes faire in ye sd bookes (if not Vnjustlie altered) for that Ten poundes. Vizt for 130lb whereas mr Charles Leigett in an old acct brought into Court gave Creditt for noe more then 120lb — This that is allreadye Alledged Jt is humbly supposed may be sufficient to show the Error in the Judgement appealed from; Neither ye booke of accts nor any Exemplification from ye Same; Vpon woh the adjustment was made being brought into the Court, Allthough The action had a most necessary reference There Vnto And dependance Thervpon
But for ye cleare Vnderstanding of This honourd Court & Jurie — The appealt holds it needfull to declare the matter Vpon wch the action arose, as to ye former Court he did brieflie declare. Vizt. The Appealt in ye moneth of 8ber 1674. bought of mr Peter Leigett Goods, Provisions & Pipe staves, To ye Value of 53311 3sh 1d — for wch he was to pay in. 6. monthes if Convenientlie hee could Mr Leigett promiseing that hee would not presse the Appealt if payment were made in Twelve monthes As the appealt if it were needfull can depose, That ye depont payd ye greatest part of ye sd money wth in six monthes, & That the wholl (exept one hundred & twentie poundes was paid in Eight monthes Ten dayés & in three monthes more or lesse the whole payment was Compleated As the Appealt Concievd to mr Leigetts satisfaction by a bill for one hundred & Twentie pounds payable by mr Violl; But soe it was That mr Leigett showing Lenitie to mr Violl recieved not the whole summe soe soon as was expected; And Allsoe found vpon counting 13011 mr John Coney paid mr Leigett Ten poundes to be wanting for wch mr Charles Leigett gives his reciept to ye said Coney wch occasioned some agitation between mr Peter Leigett & The appealt about an Adjustment & mr Charles Leigett Affirming that hee had recieved noe more then one hundred & Twentye poundes from Coney, And the appealt not haveing accounted wth sd Coney nor taken vp mr Charles Leigetts reciept, might, vpon the supposition of The truth of mr Charles Leigetts word, acknowledge the ballance from mr Violl & himselfe to be. 60ll 7sh 1d — But if hee did it was Vpon that supposition and noe other groundes, And this will manifestlie appeare if the Court & Jurye please to Compare, The oath given Jnto Court by mr Leigett with his reciept. The Articles of ye 29. Aprill 1675 Gives creditt to ye appealt for noe more then 12011 The reciept dated ye same day for money from ye same person speakes 130£ And this reciept is owned by mr Charles Leigett, or Else might have been proved by mr Coney Otherwise soe that the errour pretended to be adjusted is Evident.
And whereas it was Alleadged that Vpon ye Consideración of ye Ten poundes that miscarried between Mr Coney & mr Leigett The appealt was willing to Allow interest to raise the ballance to ye summe swome to. The Appealt. Answers That it had been necessary for ye Verifieing that Allegation That ye bookes had been produced, That soe ye state of accounts and Summe charged for interest (if any had been) might have Appeared.
But the Appealt certainlie Knows that mr Peter Leigett was a man of more Ingenuitie and worth then to demand, much lesse to Charge Vnreasonable interest, where hee had soe good payment, or if hee had The appealt was better informed in a way of Trade, then to promise and Consent to any Interest, or if it *878had been practicable to pay interest in such eases, The Appealant should not have consented to ye summe demanded; The vtmost exaction if any had been due being but about four po[unds] Thirteen shillings. [The rest is a recapitulation.]
S. F. 1692.4
Richard Way Attorney to Eliza Lidgett his answers to Iohn Smith his Reasons of Appeale
Whereas In° Smith in his Reasons speakes of the sum of money sued for by book in the last County Court and saith that the book of accounts on which the adjustment was made was not produced —
To put the most Charitable Construction thereon it may rather be imputed to the infirmity of his memory occasioned by his age then from any prmeditated designe so boldly to give undr his hand what the Honrd Court and all that were then prsent will Contradict him in; for the book was in open Court shewed to the Jury & withall he adds that the book was refused though he himself did often demand it; now it is judged the Case was to be heard by the Bench and Iury the Bench to require or demand what they see necessary in the Case, had there been any difficulty so that I knew not I knew not Mr Smith Looked on himself to have equall Comanding or demaunding power with the Judges of the Court in woh he putts the stress of his Reasons which is very unreasonable he also saith had the book been there he might have assigned or evinced the errour by Assigning it is supposed according to the meaning of the word he would have appointed in his behalf or substituted another to pay his debt, being a grievous thing to do himself wch is ye only Error he so much stumbles at his Creditor seeking her right of him,
As for what he saith about the evidence of Mr Henry Deering & Charles Lidgett it needs no demonstration before there is an accusation
For the other part of his lifeless reason which seems to have an head but no body therefore lifeless for he begins with a first but hath no second or rather like a monster with 2 heads hath two firsts One after another so that the vast bulk or length of them together with thier forme rendrs them more frightfull to a Iury then evinceing the matter
Further sd Smith saith that He bought of Mr Peter Lidgett a parcell of goods to pay him in 6 monthes which were accordingly entred in ditto Lidgett’s books but not added if Conveniently he could & to say that greatest part of the money was paid in 6 monthes and the whole in 8 monthes & 10 dayes shews that Mr Smith knew not how the account stood by an other, nor keeps any books of his owne, and because the money was not pd acording to Contract he adds that he knew better what belongs to trade then to pay forbearance it is an ill signe of not much knowledg in that kind when a man knowes not his owne trade or stock how should then he prtend to a generall knowledg of trade for a man to engage paymt of money when his stock will not bear wth a Complyance acording to time argues not much undrstanding neither is it the Custome of merchants
Further the Appeallant speaks of an acc° given into Court but saith not whose accot neither owned nor proved nor undrwritten by any so not pertinent to this Case he speaks of rects & mistakes over & over againe but the matter is not to be as he would have it
£10:73:ld: is sued for due by book from or by such an adjustment haveing no reference to formr transactions of any kind the book is produced and 2 evidences *879positively sworne to the truth of it plainely makeing it a true debt upon wch the formr Jury acording to thier oath both by law & evidence grounded thier legall judgment And it is hoped that this Honrd Court and the prsent Iury will see just cause to Confirme the same
per mee Richard Way
Athorney as afforsaid
Depositions, bills of costs, etc., are on file in S. F. 1692. 3-10.
The Court of Assistants (Records, i. 113) reversed tbe former judgment and found for Smith with 35s 8d costs.]