Batt v. Welds , 2 Rec. Co. Ct. 614 ( 1753 )

Timothy Batt plaint. agt Thomas Welds Defendt in an action of debt of Eight pounds eight Shillings & ten pence in mony due by booke & all due damages according to attachmt dat. July: 19° 1675. . . . The Jury . . . founde for the plaint: Eight pounds Eight Shillings & four pence in mony & costs of Court. The Defendt appealed from this judgement unto the next Court of Assistants & him-selfe principall in Sixteen pounds & Tho. More & Jn° Synderland as Sureties in £.8. apeice acknowledged themselves respectiuely bound to . . . prosecute his appeale . . .

[ Copies of attachment, of agreement by John Wells, of Newbury, house-carpenter, to frame three shops for Timothy Batt for 121 10s, of extracts from Batt’s books respecting payments in goods to Wells, and of various depositions, are in S. F. 1402.1, 2, 5-7. The following, in no. 7, is a sample:

The deposition of Edward Mortimore aged. 23. yeares or thereabouts testifieth

That this depont being in Timothy Batts Shop sometime in March last heard the sd Batt Say that Thomas Wells had taken up Eight pounds in goods of him as J understood upon his brother John Wells his account, and the sd Batt asked this deponent whither if Batt Sued Thomas Wells for the goods that hee had taken of Batt, whither John Wells would not Sue him for 6h in mony that hee was to pay for the worke which was done or in doing: to wch this depont replied hee might be sure hee would doe it & farther Saith not.

Sworn in Court. July: 28.75.

as Attests Jsa Addington Cler.

S. F. 1402.3

Thomas Wells his Reasons of Appeale from A Iudgement obtainde against him by Timothy Batt at ye County Court held in Bostown In July last past

1 Because I humbly conceaue I was then uniustly Served, being then and ther Served for A debt of eaight pounds eaight Shillins tenn pence monneys wob I neuer, neither receued of him nor nothinge for which I was Soe obliedged to doe

2 Because tho I doe and must owne that I receued Summ goods of him yet it was not to pay him monneys for. but apon accompt of work woh I did for my brother Iohn Weis who was by Agreement to doe a parcell of work for Sd Batt for wch hee was to Receaue twelfe pounds tenn Shillins half in monneys the other half in goods wch Said work I wrought upon, & my Brother Spake [to] Sd Batt to Deliuer mee what goods I had occassion for & afterward[s] tould my brother hee had Soe Donn as by my brothers testimony appeares

3 That I did receaue what I receaued of Said Batt apon my brothers accompt is euedent by the testimony of Abraham Clements lames Burns William [O]arum & Edward Mortimoar

4 Becaus his charge is proued by no Body but himSelf and Seuerall of the perticolers in his accompt I neuer Receued; & how far his accompt and charge is proued I leaue to this Honrd Court & Iury to Iudge of wch J hope will See Just Cause to Reuerse the former Iudgement and to taike of those damaiges from mee wch the defft for his owne Interest is willing to put mee unto

Thomas Wells

These Reasons were received 2d 7br 1675.

per Jsa Addington Cler.

S. F. 1402.4

Timothy Batt his Anser unto Thomas wells his, Resons of appeall

To his first ye Law titell appeall saith he shall breifly giue in under his hand, his reasons of appeal, with out reflecting one Court or pearty, ye which Law I humbly conseaue, he hath broken by bringing forth his humbell conseption, in theas words, I was Then unjustly served, which I Leaue to ye honired court & Juerys, reprehention, and for his other pearte of ye same, That he neuer Receued the goods is not treue for it is proued upon oath, what he did reseue, & his second reson saith that he doth & must one, that he hath receued sume goods of ye now defendant, & his third reson confermeth his reseption of goods also

To his second he one eth that he had goods, yet was not to paye in mony for them, J anser that homesoeuer J trust, I Expekt mony or satisfaktion to be my payment, & whear other satisfaction is not tendered, mony ought to be paid, becaus the prefes to our Law saith, that in defect or want of a Law the word of god is to be our Law, which saith By Soloman, that mony ansers althings this is to ye Legality of it & to ye Equity of it whie J should be paid in mony, becaus ye pertickelers are charged at mony pric as maye be seen by ye Bill of persells as marchantable Beefe at twenty :nine shillings per Bareli, & malt at fouer shilling per Bushell, which was worth then, & is now at this time worth noe Les and the rest of that reson so coled, is foie, for his Brother Jn° neuer gaue me any order to deliuer, any goods to Thomas welds, the now plaintif, & for what work he saith, he hath dun apon his Brothers acount, was neuer dun by him, nor by his Bro to this uerey daye, for after ye work had Bin Laid aside by him a full hool year after the time, whear in it was to a bin fineshed by the sd Jn° welds, J was forsed their by to hier an other man & giue him eight or ten pounds for y° same, which was greatly to my damag, but if the work had bin dirnn by sd Jn° I should not haue bin willing, nor could haue bin forsed, to charg this debt to his Brother Johns acount, nether could it posably be, becas that then their was noe acount, betwen his Brother Jn° welds, & I the said Batt, for ye couenant that was made betwen [torn] made the [torn]ber

But seuerall pounds worth, of theas goods that J sold & deliuered to Thomas welds, was in the seuenth of June, which was hue month Before, as doth apeare by compareing the acount & his Brothers agrément to gather, & theirfor can not be understood to be peart of payment, for work to be dune by John a boue ten months after, the goods taken up by tomas Exsept the agrement aboute work had binn maide with thomas hoe is now plaintiue,

But Jf J had charged this debt apon his Brother Jn°. acount which J neuer did, J doe nothing doubt but if i had demanded it, of him he would presently denied pament their of, askeing me to produc his order Ether by word or righting for his so doeing, which in dead J neuer had So that then, if J had sueed Jn° for it, thomas would then a testyfide that his Brother had them apon his acount, as now Jn° hath dune to ye same purpos for him, to ye end I should neuer haue my debt of ether of them

To his third J answer that nether of ye witneses their in named doe testyfy what he saith, that the goods which he reseued was apon his Brother Jn°s acount, but it may be thay may testyfie of my sayeing, that when Iohn welds had cornpleated his work, which he had undertaken to doe for me, that then Jf J fell in his debt, that then J would of set peart of this mony that is due to me from Thomas on Jn°s coull or words to ye Like efeckt, but as for ye work it was neuer dun yet by nether of them, as hath bin spoken to before

but housoeuer if J had altered my mind after sutch sayeing, & keept it still apon thomas his accoumpt, & their by J had fallen in Jn° debt, all ye damag would haue binn, J must haue paid him for his work but this acount neuer being tranc mited, from the first charged, namely thomas his acoumpt, J desier to be paid but one: & that by him to home J sold & deliuered the goods, which the other Court & Jury saw Just eaus to giue me, & J hope this honored Court & Jury can se no Just caus to reuers

To his fouerth he saith that ye charg is proueed by no body but him self which was good testymony By a bill of pertickulors, compared with y° charg in the Book in Court, & sworne to in Court, which hath bin used to be taken for good proof, by that & other courts, & that for reson best known to them selues, as J humbely conseue might pass for good proof against him then being their presant, & asked by ye honyred magistrat mr Brodstreat, which of pertickulors he denied, could not, nor did not, Exsept against anny, but that of fiften pene paid to hinger-man helgison¹ the baker,

So hopeing that nothing, which J haue said, can make that which J trusted to Thomas welds flue months, before any agrément mad with his Brother Jn°, to be taken for peart of satisfaction mentined in ye said agreament, unles J pleas so to allow of it, which J neuer did,

So Expecting a conformation of ye former Judgment for my Just debt J rest praying, for the foelisity & prosperity of this honered Court And Iury

Timothy Batt

The Court of Assistants (Records, i. 48) confirmed the former judgment and awarded 26s 6d costs to Batt.]

1 Ingermann Helgison, obviously of Scandinavian origin.