Elizabeth Cooke Execx and Elisha Cooke Executor to the last Will & testam* of the late L* Richd Cooke deced or either of them plaint. conta Cap*n James Oliver Defend* for witholding the Summe of two hundred and Four pounds ten Shillings & nine pence in money due upon the ballance of an acco** under his hand datd 23th July. 1679. with due damages. . . . [ 630 ] The Jury . . . found for the plaint, two hundred and Four pounds ten Shillings nine pence in money & costs of Court grantd thirty Shillings and twopence.
Execution issued 27° Febr0 1679.
[ The account on which this action is based (copy in S. F. 1910.11) goes back to the year 1660. It includes charges for goods advanced from Cooke’s store on a rather wholesale scale, such as “ 100 hhds Salt at 12s 6d per hhd — 621 10s”; money lent or advanced, as “paid L** Remington for a Cowe — 4110s”; and the following item:
To 62h per bill of Exchange wch should have been pd in London in y° £ s d yeare .1653. w*h the allowance for the Exchange at .25u per0 is . 77:10:—
To the Interest of Ditto from ye Io June 1654. to ye Io June 1679. being 25 yeares at 6h per0 amounts to..............116:05:—
Following the account is Oliver’s attested acknowledgment of it:
Account3 with Elisha Cooke this. 23° day of July. 1679 and there rests due to his Mother mrs Elizabeth Cooke Executrix of the late Richard Cooke deeed the Summe of two hundred & four pounds ten Shillings & nine pence in money. As witness my hand the day & year abovesd
Errors Excepted per James Oliver
Jn pursence of us.
Sarah Leverett
Ann Hubbard
Sarah Leverett made Oath that Shee was pursent and did see James Oliver Subscribe his hand to this Acco* & that Shee set her hand thereto as a witness *1145& that Ann Hubbard did also as a witness Subscribe the same on the day of the date thereof, this was done the .26° day of Janry. 1679
Before me Anthony Stoddard Commiss*
mr3 Ann Hubbard tooke Oathe to Cap*n Olivers Subscribing this Acc° in as full manner as m13 Leverett is Sworn 30.2:80.
attests J. Addington Cler.
Oliver’s attorneys obtained a review of the case at the next County Court; but between the two actions an attempt was made to reach a settlement:
S. F. 1910.16
James Allen aged 47. yeares or thereabout testifieth & Saith. — That Cap* James Oliver did sometime in February last past come to the Deponent and desire him to heare the grounds of the difference between him & Dr Cooke about a debt oweing to Dr Cookes Father in order to the issuing of sd difference of which they had a tryall the last County Court here at Boston, having severall times discoursed each of them about it and perswaded sd mr Cooke and his Mother to accept of a Summe which Cap* Oliver did assure the Deponent hee would willingly pay to them; the sd Oliver did afterwards desire that mr Nowell & his Kinsman mr John Oliver might meete at the Deponents house to debate what was the true principle debt, who did there accordingly meete and after much discourse of a debt of Sixty two pounds due by bill of Exchange in London, the Deponent seriously urgeing Cap* Oliver to act the part of an honest man and say whither this was a debt yet unpaid or not hee answered to this effect, that hee durs’t not wrong his conscience, but did acknowledge it was yet unpaid and therefore due from him either to mrs Cooke as the Relict and Executrix to L** Cooke deced or mr Daniel Hoare, it being originally a debt due to them in partnership, and if mr Cooke and his mother would discharge him from the sd Hoare as his Father had done hee would pay it to him, woh Dr Cooke told him hee would do: This Depon* further Saith that sd Cap*“ Oliver did twice with him agree upon a Summe that hee would presently pay if sd Cooke would accept it wcl1 this .Deponent did perswade sd mrs Cooke & her Son Dr Cooke for peace sake to accept; Which Agreement (as afterwards J understood) was not performed by Cap*n Oliver, and that sd Oliver did at severall other times of his own accord acknowledge that it was a true debt, and that hee was agreived only at the Jnterest. The acknowledgement of the debt in the house of the depone* was in pursence of mr John Oliver and L** Reynolds & further Saith not.
Taken upon Oath the .29th of .2*11 m°: 1680 before me Anthony Stoddard Commiss1
Ownd in Court upon former Oath .30th April 1680.
attests Jsa Addington Cler
Copia Vera, per Jsa Addington Cler
S. F. 1910.13
John Walley aged about thirty five yeares testifies that severall times dis-courseing with Doctor Cooke about the Action and Aceo** that was depending between Cap*11 Oliver and him, hee hath heard sd Cooke owne that the Summe that had been due upon the bill of Exchange on the partable Account Hoare *1146suing Cap*n Oliver for the money, y* upon Cap* Oliver Request to oleare him of Hoare, his Father gave him a receipt on the partable Acco** & made Cap*n Oliver D* to his proper Acco** which in Cap*n Oliver behalfe wee urged hee would shew his Boolces to make y* appeare, but hee refused.
John Oliver testifieth to the truth of the abovewritten
Sworn in Court by both» Depon*8 30th april. 1680.
Jsa Addington Cler
Vera Copia attest* Jsa Addington Cler.
John Hubbard and Major William Phillips testified (S. F. 1910.15) that Oliver had asserted “he objected against nothing in the Accomp* but the Interest.”
In S. F. 1910.1 is a copy of the attachment against Oliver in the original action. The return, with a later note by the clerk, is worded as follows:
Novemb* 25th-1679.
J attached the ground of Cap* James Oliver on which his house did stand before the last fire in Boston with all the rest of his Land thereunto adjoining.
Return Waite Marshall
m* Cooke made Oath in Court 30th Janur0 1679. that hee deliu*d a Summons to Cap Oliver
attests J. Addington C.
This document furnished one of the arguments for the following Declaration (S. F. 1910.6), presented to the County Court by Oliver’s attorneys at the review in April, 1680:
Wee humbly Offer that the sd Cap*“ Olivers not so well minding or understanding his own concern nor seeing the snare that Doctor Cooke had laid to get his Estate from him & his secret manageing this matter as much as might bee that the sd Cap* Olivers Freinds might not appeare to defend his cause and discover sd Cookes unfaire if not unjust dealing therein was the Reason that no Defend* appeared in the last County Court, therefore a Reveiw being of the nature of a writt of Error, wee hope that if wee make it appear now, that there was no ground for the proceeding of the case at that Court, then wee shall obtain Judgem* for o* full damages now.
Io Wee Say that there was no Defend* appeared to owne nor any testimony that the Summons was served or given to sd Oliver Six dayes before the Court (as the Law provides) & had Doctor Cooke Sworne as to the time, which hee did not or that the Summons hee deliu*d related to this, yet wee leave it with the Hono*d Court to consider whither a party Swearing in that case bee legall proofe where the Defend* is not there to owne or deny.
2° Wee Say the Officer in his Return Saith that hee attached ye ground of Cap*“ Oliver but doth not Say to respond that Action therefore conceive that the case should not have proceeded unless there had been something attached to answer that action, for the attachm* the very words of it are to attach ye goods or Estate of &ca to answer the compl* &ca but it did not appeare that this Estate was attached to answer the Action according to the tenour of that attachm*. See the marshalls Return.
*11473° Wee say the partys are not understood if they are joint Executo”3 then they should jointly Sue and then what is due to the Estate is due to them jointly & so not at their Liberty to Sue severally, now by will they are joint Executo13 for it saith J appoint Eliz: Cooke Executrix and Elisha Cooke Executo” but not Eliza: Cooke or Elisha Cooke Executrix or Executo” &ca. But as to the Action they or either of them by Attachm* Sue for £.204:10:9d due upon ballanee of Acco** under Cap*“ Olivers hand but say not whither it is for so much due to one of them or whither due to both of them or if but to one to which of them, hee Saith for £.204:10:9d due but not to whome, and in the attachm* hee refers to a writing datd 23d July. 1679. now that writing if it hath Cap* Olivers hand to it, it is with an exception or reservation, all hee Saith is no more then that it is true, that there is so much due if the Acco** bee not false, which we Suppose will amount to as much as comes to nothing, for let the Erro”3 bee discounted which are excepted and there will appeare very little if anything due to the now Defend* or Defend*3. That writing saith so much due to Eliz: Cooke, now the action and that writing do not agree, for if it were due to her then not to her or him or either of them, they Say in the Attachm* for so much upon ballanee now there is not one such word in that writing, and it argues that they were not agreed nor come to any conclusion or ballanee by his setting his hand to it with that Reservation Erro”3 Excepted which was never seen to a writing of that nature, the testimony in Court was single, and onely sworn that Shee saw Cap* Oliver Set his hand to an Acco** but not that hee set his hand to a writing containing such a Summe as the ballanee neither was the Deponent present in Court to owne the Deposition as ye Law requires: As for the Acco** it will prove itselfe Erronious Jf the Hono”d Court & Jury will please to take notice that the first Article of it Js for ballanee then made up (woh was ye 4th of 8be” 1660). 2311 00:07d then due to L** Rich4 Cooke, and this pretended bill of Exchange was to bee paid in Ann° 1653 and therefore must needs bee included in the ballanee of 23h00:07| due in anno: 1660: being Seven yeares before. . . .
4. Error. And as for .194u of the Summe recovered it is not onely included in the ballanee of .23:00:07| (as wee Say before) but hee makes it rise from a pretended bill of Exchange which should have been paid in England but never Saith who it was drawn by who it was drawn upon or who payable to, now wee desire that hee should shew some probability or appearance that there ever was such a bill of Exchange for 621” To produce such an one wee know hee cannot wee have often urged him to shew his Bookes but judge hee dares not; but supposeing Captn Oliver had given such or any other bills of Excha they are to bee accounted pd unless hee produce a protest under a publique Notary’s hand according to the custom of Merchants, and if hee saith hee hath any bill of Excha from Cap* Oliver let him produce it and make it appeare what the Summe was and wee Judge wee are capable to prove it pd As for severall other Articles in the Acco** Cap*11 Oliver knows nothing of them viz* in perticular for Jnterest for m” Snelling and Rent for m” Dexter but wee desire that the Hon”d Court would cause m” Cooke to produce his Bookes to compare with the Acco** and then wee doubt not but his Bookes will prove more Erro”3 in the Acco** then wee are able to doe. And to conclude supposeing the .62h per bill of Exchange had been due upon which hee charges one hundred & odde pounds for interest yet o” Law title usury Saith that no usury shalbee allowed contrary to the law of God, and how well m” Cooke hath attended the law of God wee leave to the Hono”d Court & Country *1148to consider woh Saith in .25. Leviticus. 35. 36. and if thy Brother bee waxen poore and fal’n id decay with thee then thou shal’t releive him yea though hee bee a Stranger or a Sojourner that hee may live w*h thee take thou no usury of him or Jncrease but feare thy God that thy Brother may live with thee: wee shall adde no more at pursent untill wee see further occasion but Rest.
yor Hono*8 humble Servants
John Oliver Nath11 Oliver
Boston Ap11 ye 28th 1680. NathU WllKams
Vera Copia attest1 J. Addington Cler.
S. F. 1910.9
An Answer to Cap*n Olivers Attournys’ Declaration
Jn their preface they do very unworthily charge the Defend* with laying a Snare &ca and with unfaire & unjust dealing in this matter but mention no per-ticular for demonstration thereof; in which they shew their Machivilian policy to reproach & cast aspertions at any rate, to which J shall rather speake something then write if the honord Court please to give me leave.
1. And as to their pleas J Answer. 1. To the first that ye Defend* made Oath that hee deliurd a Summons to Cap*n Oliver according to the tenor of the attachm* upon the wedensday before the Court woh was judged legall proofe.
2. To the Second. That the Officer made a Return of what hee attached and the process declares for what.
3. To the third. The Execute* appeared in Court personally and the Executrix by her Letter attorny to the Execute* which Letter the Bench allowed and deliurd again to the Execute* and said it need not bee kept in Court and that either had sufficient power to Sue. . . .
And to their pretended Erro*8 in the Acco* J Answer
1. That the .6211 due in London was upon bill Exchange & not charged to Cap* Olivers perticular Acco** in the Booke untill the yeare .1662. and therefore could not bee included in the ballance of an Acco** made up the :4: October .1660. and therefore no Error. . . .
3. What need is there of declaring by whome these bills were drawn upon whome or to whom payable & of produceing protests &ca wn Cap* Oliver hath from time to time for so many yeers owned the debt and doth still as appeares per his Subscribing the Acco* & ye many other testimonys in the case.
Jn their conclusion they do as at the begining take to themselves liberty to revile and reproach, as if so solemn an Assembly as a Court of Judicature were a place licensed for men to vilify scandalize & calumniate at their pleasure as they do not onely the Defendant but his deceased Father and that without the least shadow of reason in speaking of his Bookes so reproachfully as they do, w°h neither of them have ever seen though Cap* Oliver hath often and alwaies said the Acco* was right & just the law they quote (woh the Generali Court therein saith is agreeable to the word of God) allows .8. per0 per annum & for bills of Exchange more, and it is the practice of our Courts to allow for money due in England by bills of Exchange or otherwayes 25 per0 for the Exchange of money woh is but the bare difference between our money & theirs, and also .8. per0 per annum upon the whole, but Cap*11 Oliver is charged with no interest at all for the first yeare and afterwards but 6. per0 wo1* hee was then freely willing to allow; *1149The Defend*3 were so far from oppressing Cap* Oliver as that they were willing (as full Satisfaction of the debt) to accept of what Cap* Oliver was freely willing to give & would have abated considerably of that too, wch issue these Genta his pretended Treinds with great endeavo13 prevented which concessions not being complyed with ought not now to abate of the just & legall right of the Defend*3 the Attournys’ whole designe in this matter hath been to calumniate the Defend* & darken & perplex the case with impertinent pleas and papers to mislead the Jury & keepe Cap* Oliver out of Court least hee should speake truth there as hee hath done elsewhere: But the debt for which the Judgem* was granted the last Court being sufficiently proved and by Cap* Oliver owned, though its said hee Signed the Acco* with the reservation of Erro13 excepted wck is a thing most frequent in Signing of Acco**8 which was ever hitherto understood to bee meant Erro18 onely in casting: The Defend*8 hope this Honord Court & Jury will see sufficient reason to grant them their costs & Subscribe
Yor Honors humble Servant
Elisha Cooke in behalfe of his mother
Elizabeth Cooke & himselfe
Vera Copia attest1 Jsa Addington Cler.
Despite the obvious sophistry of most of Oliver’s attorneys’ arguments, the jury found for him 193Z 15s money and costs of court, in partial restoration of what had been taken from him by execution after the original action. Cooke appealed; his Reasons are no longer to be found, but a lengthy answer by Oliver’s attorneys is in S. F. 1910.7, reproducing to a considerable degree the contents of the previous “Declaration.” A few sections of this document are of some interest:
21y Their Second is a false Assertion: for Capt. Oliver never acknowledged Soe much Due to the Appell*3 & whereas it is Said, that Cap* Olivers Subscription is as a Specialty, wee Beleive that, neither Dr Cooke, nor any man else, Ever Saw Such a Specialty as that is, & if any man give a Bill under his hand, w*11 that reservation (Errors Excepted) though it be Jmprudence, yet Such a Specialty (though Sollemnly Signed before two wittnesses) bindes the Signer to pay no more then what shall appeare to be due, when the Errors are discounted, against wck he excepted: & if men in a Secret & Clandestine way shall be drawne in & perswaded to sett their hands to a paper, woh is deliberatly & designedly made to get away their Estates from them, & Such Actions shall passe for bindeing Conclusions, how shall Any man keep his just right? . . . . Jf the Acc°* had bin Signed by Capt. Oliver, where mr Cooke had bin. y° Debtor, then it had bin propper for Capt Oliver to have signed his Acc°* w*k (Errors Excepted) & then Jt is Confest it might have bin taken only for Errors in casting but this is just the Contrary & Capt Oliver, when he was drawne in & none of his freinds present to Jnforme him better, if he must Signe to Satisfye mr Cookes Mother, as he pretended he had good reason to Except against mr Cookes Errors, wok now ap-peare to be many & great: And when he Saw that, that Stratagem would not doe, because of those words (Errors Excepted) he tenders to Sware that Capt. Oliver owned the Jnterest & was willing to allowe itt; & as mr Cooke said that Courts of Judicature were not places for men to vilify one another in, neither are they *1150Places for men to Sware other men into their debts: & the Hond County Court saw Just Reason to deny Dr Cooke the takeing of Such an Oath, the Contrary Oath being tendered by Capt. Oliver at the same time.
At the hearing of the appeal at the Court of Assistants (Records, i. 165-166)
. . . the Jury Brought in their virdict they found for the Deffendant3 Confirmation of the forme1 Judgment & Costs of Courts. The plaintif declard he At-tainted the Jury for errors or mistakes & in open Court Elisha Cooke in behalfe of his mother & for himself w*h Isaack Addington his suerty Acknowledged Jointly & seuerally themselues &e bound in tenn pounds to the Tresure1 of the Country on Condition that the sajd Elisha Cooke should prosecute his Attaint of the Jury as to matter of Erro1 at the next Court of Assistants to effect. E R S
The new hearing took place on 1 March, 1680/81 (Records, i. 179):
mrs Elizabeth Cooke executrix & mr Elisha Cooke execcuto1 plaintiffe3 in an Action of Appeale on Attaint of the Jury whereof mr Holliok was foreman. Aagainst Cap* James olliuer deffendant: from the virdict of the Jury at the last Court of Assistants After the Attachment the Courts Judgment & euidences in the Case produced were read Comitted to the Jury & are remaynng on file The Jury brought in their virdict i e in the sajd Case depending between the sd mrs Eliza: Cook & mr Elisha Cooke plaintiff and the Attorney3 of Captn James olliuer deffendants the Jury finds for the plaintiff seventy two pounds fiueteene shillings and nine pence money & Costs of Courts seuen pounds fowerteen shillings & 4d Reuersing the former Judgment.]