Swift v. Smith , 2 Rec. Co. Ct. 680 ( 1753 )

Obadiah Swift Thomas Bird & John Clarke or either of them being sons in Law to the late Major Humphry Atherton decd plaints agt Richard Smith of Wickford in the County of New-London Defent in an action of the case for his the sd Smith's keeping possession of an Estate belonging to them & not paying theire respective dues according to promiss & engagement to them once & again as will [367] further appeare by a bill, bond or writing under his hand datd the the .10. Augst.74 & the order of the honord Court of Assistants at Hartford: May.26.74. to the great damage of the plaints these with all due damages according to attachmt dat. March the .13.1675/6. . . . The Jury . . . founde for the plaints Eighty pounds Fifteen Shillings four pence halfe penny per share & costs of Court. mr Richd Wharton being Surety for the Defendt & appearing to defend the case appealed from this judgmt to the next Court of Assistants & himselfe principall in £.160. & Jn° Wilkins & Nathanael Williams Sureties in Eighty pounds apeice acknowledged themselues respectiuely bount to . . . prosecute his appeale . . .

[ Although the appeal was withdrawn (Records of Court of Assistants, i. 69), the following Reasons (S. F. 1467) explain the nature of this interesting case on the conflict of the laws of two jurisdictions:

Richard Wharton Surety for Mr Richard Smith his Reasons of Appeale from ye Iudgemt of ye County Court In Aprill last In an action Commenced by Obadiah Swift Thomas Byrd & Iohn Clarke

1t Because ye then plts Sue as sons in law To Majr Humphrey Atherton & by vertue of yt Relación pretend a right To an Estate in ye possession of ye sd Smith But doe not declare whether they married Majr Athertons daughter or Majr Atherton married their mother To make them Sons In law But supposeing ye first woh is ye most probable To give them interest yet yt was not proved To ye Iury or if i[t] had yet as Sons in law they cannot Sue exept in right of their wives whom they must prove Either heyres Exrs Admrs or assignee To Majr Atherton if they will recover any Estate belonging To him but noe such plea or proofe was presented att yt Court

2d They insist vpon a promise & ingagemt & Referr To a Bill Bond or Writeing vnder hand dated ye 10th Augt 1674 wch writeing only Seems To suppose yt ye now Defendts might or ought to have some right share or interest in some Money agreed on for ye purchase of Two Tracts of Land in ys Narragansett Countrey woh parts or Shares Mr Smith oblidges to pay according to ye Decision of ye Collony of Conecticott But it did not appeare to ye Court yt any lands yt belonged To Majr Atherton were Sold But it being granted there we[re] It appeared not what Tracts nor for wt Summe of Money nor wt ye Defendts parts or share[s] were therein And (as none is) Soe if all this had been proved ye Decission of ye Collony of Conecticott is referd To in ye obligación according to woh Mr Smith promises payment Now Mr Smith being an inhabitant of yt Collony ye Estate in Controversy being in yt Collony & his obligación being To make paymt according To ye Decission of yt Collony It is humbly Supposed yt ye now Defendts ought not to have brought any action agt Mr Smith in this Collony his person or Estate being alwayes in yt Collony To respond greater Demands but if it be pretended ye order from Conecticott referrs To ye distribución of ye Court of ye Massachusetts It is answered ye order is directed To those in whose hands ye Estate shall bee found wch ye Defendts say is Mr Smith Therefore by vertue of yt order they should have made their Demand & if hee had been dissobt they might Iustly have Complained of his Contempt & have had Execucion for wt they could make out to bee their right But Supposeing yt Mr Smith should bee lyable To bee Sued heer yet yt order referring To ye distribución of this Collony & nothing like a distribución of this Collony appeareing To ye Court onely a paper yt mencons 13 Shares but to whom these Shares are To bee divided is not mencioned nor is their any act of ye Authority of this Collony passed vpon sd paper & Supposeing To ye Children yet these persons being neither Children nor proveing themselves marryed to y9 Children Can have noe legall pretence To any share or Interest to anthing Mentioned in said Paper

Lastly Because ye now defend43 not looking Vpon y9 order of Conecticott as a Decission They by an order of theire owne Dated about ten weeks after y4 of Conectic[ott] order & Depute Mr Smith to detaine & keep in his hands there parts & shares till it is ordered by ye Court of Conecticott Since woh order & deputacion from ye Defend43 To Mr Smith noe order from Conecticott hath been Tenderd to him But on y9 contrary certificate from y9 Governor & two assistants of y4 Collo[ny] y4 they apprehend it Reasonable y4 Mr Smith Detaine w4 money hee had in his han[ds] Till Majr Athertons Children should agree or ye Court of Conecticott should order how ye money should bee distributed & y4 a settlem4 thereof would bee made vpo[n] y° Childrens applicacion To ye sd Court By all woh it is humbly hoped y4 to this honrd Court & Iury will appeare a multiplicación of Errors att y° County Court the least of weh may bee Sufficient to reverse y9 former Iudgement.

, , r. Rich9 [torn]

These Reasons were received August. 30° 1676

per Jsa Addington Cler ]