Walley v. Waite , 2 Rec. Co. Ct. 802 ( 1753 )

John Walley plaint. agt. Return Waite Marshalls Deputy Defendt in an action of the case for that hee the sd Return Waite underpretence or colour of his office served or extended an Execution bearing date Febr 13° 1676/7. granted to mr John Saffin by virtue of a judgement of the County Court holden at Boston in January last; which Execution was granted agt the Estate or person of Jacob Jesson for thirteen pounds according to Lease, and for want of the Estate or person of sd Jesson against the Estate or person of John Walley his Surety; and although hee the sd Return Waite wanted neither the Estate of sd Jesson or sd Walley for Satisfaction of sd Execution but both or either were tendred him by sd Walley; with mony for charges of Court & Execution; yet hee the sd Waite refused the Satisfaction tendred & extended sd Execution upon the person of sd Walley contrary to Law & committed him the sd Walley to prison where hee was severall dayes [ 439 ] illegally imprisoned by sd Waite, all which is to the sd Walley’s very great damage according to attachmt datd april: 11° 1677. . . . The Jury . . . found for the plaintife Fifty pounds mony damage & costs of Court allowd Forty five Shillings & ten pence. The Defendt appeald from this Judgement unto the next Court of assistants & himselfe principall in one hundred pounds & John Saffin and Richd Knight Sureties in £.50. apeice bound themselves respectiuely ... on condition the sd Return Waite should prosecute his appeale . . .

[ This case arose out of the execution issued by the Court in the case of Saffin v. Jesson, above, p. 774.

S. F. 1584.3

Joshua Winsor & Jsaack Walker, aged Twenty Eight yeares or thereabouts Testifie, that vpon the Twentieth of February Last past, being desired by John Walley, went with him & Retume Waite to the warehouse, of Jacob Jesson, where Said Retume Waite Marshals Deputy demaunded of Said Walley, Thirteene pounds in money, for Sattisfaction of an Execution, granted to mr John Saffin against the Estate or person of Jacob Jesson, and for want of the Estate or person of sd Jesson, against the Estate or person of John Walley his Surety, whereupon he the Said Walley tendred to Said Retume Waite, Silke lace gimp lace, broad cloth Stuffe and Sarge and Siluer buttons, which he declared to be the Estate of Jacob Jesson & tendred it to the Said Waite in Sattisfaction to the Execution aforesaid, & told the Said Waite if he would attend the Law, for the apprizement of Said goods he was ready on his part to attend it, Said Waite then Said, he would take nothing but money, Said Walley then tendred unto him Come, yt he Said was the Estate of Jacob Jesson: & told him he might take to the full Sattisfaction of his Execution, out of that, & he the Said Walley tendred the sd Waite also in money for Charges of Court which we told, Twenty nine Shillings & Tenn pence, & Two Shillings in money more for the Execution, & told him he had money there, that if there were other Charges he would pay it, Said Returne Waite againe Said, that he would haue money for the whole, or else he would take his person, The Sd Walley told him, he was not to medie with his Estate, or person, but for want of Estate or person of Said Jesson which was not wanting, & that he ought not to a refused it, but yet he told him that as his owne Estate he tendred a parcell of kersys & Cotton, which he Showed, & told him he might Sattisfie his Execution out of that, & then againe, tendred the Charges in money as aforesaid, & wee testifie that either of the parcels of goods tendred, were in our Judgments of more vallue, then the Summe mentioned in the Execution, but he the Said Waite Said he would haue all money, & refused all the offers made, & Extended Said Execution vpon the person of Said Walley. ...

Taken vpon oath this 24th of Aprill 1677

Before me Tho. Brattle Commissr

S. F. 1584.4

Thomas Mattson prison keeper in Boston, aged forty three years or thereabouts, Testifieth, that vpon the 20th Feb. last, John Walley was deliuered prisoner vpon Execution, by Returne Waite Marshals Deputy which Execution was .granted to mr John Saffin, for Thirteene pounds, according to lease, on which Execution Said Walley remained a prisoner foure dayes, in which time he made me Severall offers in order to his discharge, but J told him J Could not let him goe, without he left money to Sattisfie mr Saffin, Said Walley told me, he did not thincke the law obliged him to pay money, he then tendred me for Sattisfaction a parcell of English goods to the vallue of Sixteene pounds or vpwards out of which by legall apprizement he told me J might Sattisfie Said Execution, & laid downe money for Charges of Court Execution & marshalls: fees. J told him J must have money he Said then if there was no other way but he must buy his liberty, he must do it, for his businesse was Such, he Could not lye there whereupon that he might be discharged he left with mee, besides the goods abouesaid, & money for Charges as aforesaid, Thirteene pounds in money, but Said it was the goods he left for Sattisfaction of Said Execution, but not the money for that he Left, because of his necessity to goe about his occasions, & the goods Said Walley left are still in my Custody, whereupon havinge paid the Charges for his accomadation & fees of prison, was lett out of prison,

Taken vpon oath the 24th of 2d monthe 1677

Before me Anthony Stodderd Commissr

The Court of Assistants, on appeal (Records, i. 99-100), “found for the plaintiffe an Abatement of the former Judgment to thirty pounds in mony & Costs of Court.”]