Middlecott v. Scotto , 2 Rec. Co. Ct. 821 ( 1753 )

Richard Middlecott as hee is Attourny to Wm Adams Admr to the Estate of In° Sheppard decd in the right of Elisabeth Adams Executrix to the last will and Testamt of him the sd In° Sheppard plaint. agt In° Scotto and In° Endicot Execrs to the last will & testamt of andrew Sheppard decd Defts in an action of the case for witholding an Estate amounting to the Summe of three hundred Forty nine pounds Eight Shillings [ 451 ] and eleven pence given and bequeathed unto her the sd Elisabeth Executrix by him the sd John Sheppard decd in his last will and Testamt which Estate aforesd was given him by his Brother Andrew Sheppard decd as per his last will and Testamt may appeare with other due damages according to attachmt datd Iuly. 23° 1677. . . . The Iury brought in a Speciall verdict, i. e. If the Law bee that where there is an Executrix appointed to an Estate that another may take out Administracion in her right wee fi'nde for the plaint: that the Defts doe deliver up the whole Estate of Andrew Sheppard of Boston lately decd that is or may bee received by them before the time hereafter limited debts Legacies and charges being deducted unto the plaint, at or before the first day of Decembr next or three hundred Forty nine pounds eight Shillings eleven pence mony & costs of Court: But if the law bee otherwise wee finde for the Defts costs of Court. The Magistrates on perusall of this verdict finde for the plaint: The Defendts appeald from this Iudgemt unto the next Court of Assistants and themselves principalis in £.400. and Nathanll Williams and Wm Coleman Sureties in £.200. apeice acknowledged themselves respectiuely bound . . . on condition the s4 John Scotto and Jn° Endicot should prosecute theire appeale . . .

[ Another claimant to the Shepard property; cf. Alford v. Endicott, above, p. 726. The following portion of Middlecott’s Answer to Scottow’s Reasons of Appeal (S. F. 1657.3) refers to the title “Jurors” in the General Laws and Liberties of 1672:

1. Answer, whereas the Appealants is pleased to tax the Jury with Error, but if they please well to Consider they will find themselves to Erre by a Misunderstanding the Law they pretend So much to make for them, for the Honoured Law Makers have given their Sence fully in Each Sect: which is Cited for the End intended which makes not for the Appealants purpose nor will it bear their Strained Paraphrase or far-fetch Construction, for the Law Saith Sect. 3. that in all Cases wherein the Law is obscure So as the Jury cannot be Sattisfyed therein, they have liberty to present a Special Verdict &c. it doth not Say provided they doe first ask advice of any Man in open Court, but if the Jury be not Satisfyed they have Such a Liberty.

2. As to the Law in Sect. 5 it doth not absolutely require or Compel but onely gives a liberty (in Case of Conscience or Such like) to any Jury if they See cause to aske advice of any man in open Court as aforesd then there is no Error in the Jury in not So advising as the Appealants infer.

The Court of Assistants (Records, i. 96) confirmed the former judgment.]