Wms v. Fogg , 2 Rec. Co. Ct. 685 ( 1753 )

John Williams plaint. agt Ezekiel Fogg & Compa Defendts in an action of reveiw of a judgemt granted the sd Fogg & compa to the value of nine pounds Seventeen Shillings & five pence in mony for ballance of Accot it being aboue ten pounds to the damage of the plaint. besides other damages; which judgment was granted the sd Fogg & compa at a County Court held at Boston the. 25th day of January. 1675. & all other due damages according to attachmt datd March. 8th 1675/6. . . . The Jury . . . founde for the plaint. nine pounds Seventeen Shillings five pence in mony & costs of Court. The Defendant appealed from this judgemt unto the next Court of Assistants & himselfe principall in £.20: & Phillip Read & Tho: Cox Sureties in £.10. apeice bound themselues respectiuly in the Summes aforesd ... on condición the sd Ezekll Fogg should prosecute his appeale . . . [ 370 ]

[ A review of a case at the January session (above, pp. 656-61). Fogg appealed as follows (S. F. 1472.4):

Phillip Read and Thomas Cox as suretyes For Ezekiell Fogg theyr Resons of Appeale on the behalfe of the said Fogg & Company from the Judgment of the Honnored County Court held in Boston the 25th of Aprill Last past in which was Judgment granted to John Williams plajnt Agaynst Ezekiell fogg & Company Defendants

Imprmis Wheras the said Ezekiell Fogg & Company had a Judgment granted for Nine pownds seuentene shillings & fiue pene by the honnored County Court held in Boston the 25th of January Last past agaynst the said williams for a Debt Due by book and possitiuely proued as may appear by the Records of the said Court and therfore the Apelant takes it as a great Agriuement to be Cast by the witnis of John Geffard & mr Hudson Leueret at the next Court held in Aprill

2dlly Wheras the two testimony of John Geffards & Mr Hudson Leueret are not any ways Circumstancl: as to our former acction or to Reuoke the former Judgment for John Geffords testimony stands on our behalfe in that he saith he herd Fogg say he had sould a parcell of goods to Frissill & williams which Justyfyes and Confirms our former Judgment in Jann Court

Thirdly Wheras John Gefford and Mr Leueret testyfyes of a bill giuen by the said John williams vnto the said fogg yet in theyr testymonyes they Doe not agre Neyther Doe they Sweare that yt bill was giuen for the ballancing of that accompt sued for by the said fog Nor yet was the bill giuen for the Ballanein of all accompts as may appear by theyr Testymonyes and therfore we humbly Conceiue yt the Judgmen[t] that Ezekiell Fogg Recouered in Jann: Court Agaynst williams Remayns Just and Right still

4thly Wheras the two witnisses pretend they herd fogg say he had a bill: which is Nothing but a heresay & not possitiuely therfore not witnis suffissiently to Diuert the former acction besides the testimony of John Geffard Doth more Confirme the Justness of our former acction for wheras he sayes there was a bill but it would not answer fogs ends which argues the bill was not suffissient if any such bill weare

5thly Wheras the said Geffards testimoni Doth appeare out of mear selfe ends & mallis because the said fogg had Receeued the said mony of Williams and he Could not get a part of it in pretenc yt he had a Rite vnto it or els why should he offer to Discharg Williams for fower pownds

6thIy If any such bill had bin or Could be Legally proued the said williams had his way by Law to Recouer the same if on the payment of his Due Debt Recouered he Receued not a Discharg for the same wherfore by all these Resons we Humbly Conseue our former acction gayned in January Court stands good

Phillip Read

Thomas Cox

These Reasons were received August: 30th 1676.

per Isa Addington Cler

To this Williams replied as follows (S. F. 1272.2):

Nathll Williams Attorney to John Williams his Ansuer to the Reasons of Appeale given in to this Hond Court of Assistants, in the behalfe of & Suretyes for Ezekiell Fogg, by Philip Reed & Tho Cox &c

Inprimis. To the first Reason I answer, yt the Testimonyes of Mr Hudson Leverett, & Mr Jn° Giffard being duely Considered, the now Defend4 would have had greater Cause of aggreivent, if their Evidences soe positively proving a Bill, given by ye Defendt & Tho: Frizzell unto Fogg the now Plantiffe, & yt Bill to be the ballanee of Accots betweene them; showld not reverse the Judgt of the Hond County Court held in January Last past, then the Plantiffe hath of being aggreived for being Cast by the positive testimony of two substantiall Wittnesses whereas the Judg4 of the Court in January (as I humbly Conceive) was only grounded on Foggs Single Evidence to his owne Accot not agreeing wth his Accot given in & Sworne to before the worshipfull Simon Bradstreet Esqr both by sd Fogg & William Grice, as per ye sd Accot in Last article of the Same but one may appeare, For there it is said the Glasses were dd to Frizzell, & at that time the now Defdt was at N. Yorke wch was aliso after the Ballanee was made up, & a Bill given for the Same. & In January Court the Defdt was Visited wth a fitt of Sicknesse, & Soe was inforced to reveiw his action to the next County Court in Aprill, not being able in January Court to be personally present to defend his Case —

21y To the 2d R: I answer that the Evidences of mr Leverett & mr Giffard are Every way Circumstanct to the former action for the revocation of the Judgt of January Court For though Giffard Swares yt Fogg sould a parsell of goods yet take all his Evidence, that the Bill given to Fogg was for the Ballance of Accots it planely appearing yt Wms & [Frizzell] had given their Bill in Ballance they Could not be Sued upon Aceot wch Justifyes & Confirmes the Judgt of January Court.

3ly As to ye 3d Reason I referr it to the Consideration of this Hond Court & Jury how farr the testimonies of Mr Levert & Mr Giffard doe agree: Giffard Swares yt it was for the ballanee of Accots betweene them now; there was never any Accot pretended to or Sued for by sd Fogg; but that Accot for the summ & Substance of it, wch was Sued upon in January Court & sworne to by sd Fogg & Grice, as is alledged in my ansuer to Ms first reason; If there Ever was any other Accot bet the Plantille & Deft. Let the plantille produce the Same, else of necessity it must be for ballance of yt Account

41y I ansuer to ye 4th Reason yt Whereas they Say that ye witt[nesses] pretend they heard Fogg say &c: is as much as if they should have said that the wittnesses swore to pretensions: wch [is] an Odium Cast upon the wittnesses; whereas on the Contrary one of them positively Swares, that he had heard Fogg often say that he had taken a Bill under Wms his hand for ballance of accots between him & Frizzuell: & the other swares yt Fogg shewed him the Bill: as per their Evidences may more fully appear. The Plantiffe (I conceive) will hardly finde any Evidence that will prove ye Justnesse of soe fraudulent an action as that was in January Court. had Fogg produced the Bill or Sued by ye Bill he could have recovered of Williams but Ms proportion of the ballance they being not bound Jointly & Severally; & that was the Reason why Fogg tould Jeffords it would not ansuer his End to Sue by Bill but upon Accot.

5. The Fifth Reason is only a Charging of mr Geffard wth swaring for Selfe Ends & mallice, wch Concernes sd Giffard more then the Defdt or the Case

61y To the sixth I answer that such a Bill hath bin Legally proved to be in the hands of Fogg & detained by him, & would have bin sued upon had it bin sufficient to have reacht his Ends. therefore that being proved, Fogg had no cause of action to sue the Defdt upon Accot. a discharge from the Bill would not be any advantage to the Defdt because another is Concerned Conjunctly.wth himselfe. Wherefore the Defdt humbly Conceives & hopes that it will plainly appeare to this Hond Court & Jury, that the Reversion of the Judg[t] of the Hond County Court held in January, graunted to ye Defdt att the next County Court in Aprill is good & Legall, & yt this Hond Court & Jury will give ther Conformation of the same

Your Hono’rs humble Servt

Nathll Williams

The Court of Assistants (Records, i. 68) confirmed the former judgment. See also Fogg v. Leverett, p. 689, below.]