UC "'•«

974.402

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GENEALOGY COLLi^CTlON

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12

A DOCUMl^NTAllY IIISTOIIY

OF

CHELSEA

Committee of Publication

CHARLES F. ADAMS CHARLES C. SMITH HENRY W. HAYNES

A

DOCUMENTARY HISTORY

OF

C 11 E L S E A

INCLUDING THE BOSTON PRECINCTS OF WINNISIMMET IIUMNEY MAUSII, AND PULLEN POINT

1G24-1824

COLLECTED AND ARRANGED, WITH NOTES

liY

M ELLEN CHAMBERLAIN

IN TWO VOLUMES

Volume II

BOSTON

PRINTED FOR THE MASSACHUSETTS HISTORICAL SOCIETY

1908

THE UNIVERSITY PRESS, CAMBRIDGE, U.S.A.

1217278 CONTENTS

\i

CIIAPTEE XX

TiiE Contest Runewed 1

Appendix 1. Original AccoiiniB 11

Appendix 2. 'J'lio Surv('y of llic I'aigr; i-'arm ... 15

CHAPTER XXI

Elistia Cooke's Last Appeal IT

Appendix to Chapters XIX-XXI. Nicliolas and Anna

Paige and Captain Keayne's Estate 20

Appendix to Chapter XXI. Tlie Paige Farms ... 74

CHAPTER XXII WiNNisiMMET Ferry 85

CHAPTER XXIII WiNNisiMMET Ferry in Court 94

CHAPTER XXIV

WINNISIMMET Ferry: Acts and Orders lui

Appendix. The Landing Place of Winnisimmet Ferry

in Boston 1-23

CHAPTER XXV

■J

■4-

Illustrations

Highways and Town Ways and Bridges Appendix. Original Documents . .

134 IGG

VI CONTENTS

CIIAPTEE XXVI

Paod

Ecclesiastical 178

Appendix 1. Miscellaneous Memoranda 187

Appendix 2. Eev. Thomas Cheever 192

CHAPTEE XXVII

Formation of a Church, as given by Eev. Thomas

Cheever 197

CHAPTEE XXVIII

Eev. William McClenachan's Pastorate 251

Appendix. Petition of Eev. William McClenachan . . 279

CHAPTEE XXIX

Phillips Payson's Pastorate 283

Appendix. Votes from the Town and Selectmen's

Eecords, and Payson Genealogy . . . 316

CHAPTEE XXX Education 322

CHAPTEE XXXI Miscellaneous Matters, 1631-1739 342

CHAPTEE XXXII

WiNNISIMMET, EUMNEY MaRSH, AND PULLEN PoiNT BE- COME A Town with the Name oe Chelsea . . . 359

CHAPTEE XXXIII Chelsea as a Town

374

CONTENTS vii

CTTAPT?]Tl XXXTV

Chelhka ah a 'I'ovvn (continued) lilH

A[)|)('iiilix. ( '(Hiiiicrfcii Money 380

CIlAI'TKlt XXXV '

A NkW PaRIHII, J[JKYMrON, AND TAXATION 388

CHAPTER XXXVI Point Shirley 391

CHAPTER XXXVII The Small-Pox 395

CHAPTER XXXVIII In the French Wars 407

CHAPTER XXXIX Beaches and Marshes 412

CHAPTER XL The American Revolution Coming 417

CHAPTER XLI The American Revolution Begun 425

CHAPTER XLII

Removal of Live Stock from the Islands 432

Appendix. Extracts from Contemporaneous Records . 450

Vlll

CONTENTS

CIIAI'TKTi XLIII

Pagb

Chelsea in the Rrvolutionary War — Bunker Hill . 453 Appendix. Chelsea Companies in the Fight .... 459

CHAPTER XLIV

Chelsea in the Revolutionahy Wak — Military Forces

AT Chelsea during the Siege of Boston . . . 463 Appendix. Original Documents 470

CHAPTER XLV

Chelsea in the Revolutionary War — Losses from

Military Occupation 472

Appendix. Damages sustained by Jonathan Green . . 475

CHAPTER XLVI

Chelsea in the Revolutionary War — Quotas, Enlist- ments, Bounties, and Pay 479

CHAPTER XLVII

Chelsea in the Revolutionary War — Arms, Ammuni- tion, Clothing, and Supplies 505

CHAPTER XLVIII

Chelsea in the Revolutionary War — Alarms and

Signals 516

CHAPTER XLIX Chelsea in the Revolutionary War — The Small-Pox 525

CHAPTER L

Taxation and Political Affairs 535

CONTIONTS ix CAlAPTFAi LI

Paoh

Cjiiclska BijiDaio and Saijom 'I'ijiimmkr 55G

CHAPTER I.ir

JiKV. 'I'lKiKIUfMAN's I'ASTOIfA'I'K 550

Appendix. I*]xl.niclK I'roin I lu; 'rown l.'i'conl.s . . . . 573

GENERAL APPENDIX

I. Persons jidiTiiiicd lo Pull Cornmiiiiioii, from (lie

Cliiircli Records at Kniiincy MarHli 570

II, BaptisniH froin tlie Church Rc(;ords at Hutnin'V

Marsh 588

TIT. P>aplisiiis diirinjf Rev. Dr. Tuckeniian's Pai?torate . G02

IV. A Re^i^l'T <>'■ I I'rom October 1757 . . . G07

V. Deatlis diii'iug Dr. 'riickcrinan's Pastorate .... 612

VI. A Ref^Wstry of I\lnrria^a-s from October 2C,, 1757 . . GIO

Vri. Intentions of Marriage G-.^O

Vni. Deed of tli(> School-house 633

IX. E(hieational Slatistics G35

X. Military Statistics and oilier Matters G30

XI. Taxation and Miscellaneous Items 656

XIT. Officers at Rumney Marsh and Chelsea GGO

XIII. Inscriptions in Rumney Marsh Bury ing-C round . . GOl

Indicx 713

7 I

ILLUSTRATIONS

Pack

Piligc Farms IG

Chelsea Mecting-liouse 185

Green House 443

IIISTOPtY OF CHELSEA

CIT AFTER XX

THE CONTEST IIENEWKD

TXTI^I<]N years jiI'Ict IIk; i)rnc(;(!<liii<i,s rccorildl in ili<-

^ ]n,st chapter, in 1084, Captain Nicholas Paige ami Anna his wife, as lieir of licr ^grandfather. Captain Koberl Keayne, commenced a suit in llie Comity (V)nrl at JJoston, against -loliu Wiswall, -Jr., tcnnnt of lands al Knmney J\Iarsh under his father, I<]lder Wiswnll, and Klizahclli Cooke, widow of Jiicliard ('ook(^, who (dainicij ihc (islates at Ruinncy Mar.-li, under the deed of IGGJi.'

' As propocdiii^ts outside of roiiri. (lie follow iiif; entries are of intercut. "28: H: HU'A). hi order to an afJtreeineiit made hy a Coniilteo and the Select- men with lit. Richard Cooke and Deacon dohii W iswall the 2(itti of the 2nfl. mo. 1(H)!) about the payment of a l(>n;aeie given hy ('a])(. Uohert Keayne to the towne, this day the said Cooke and U'iswall did assigne and make over to the selectmen for the townes use the one halfe of the new house in I'os- tone (next yc. old house) which was :i ])arte of Mrs. Keayns thirds and secured (o th(> treasin-er the jiayment of £1 18, (is. 8il. — one halfe thereof on the 2Slh of March 1(!70 the other halfe the 2r)th of March UMl.

" The same day tlu> selectmen assifruiul over the said Cooks and Weswalls deed or assignment (o Nicholas Page and his lieires for ever the said halfe parte of the new house in consideration of £120 to he ])aid by him to the Treasurer for the use of the lowne vi/,( £40 xMarch 2r)tli 1070. £.")0 March 2.")tli 1071 and £:!() March 2.')(h 1072 all in mony secured hy said house as apenres by his obligation." Boston Town lice, ii. 47 in IJoston Rec. Com. Ivc])., vii. M). 1 May 27, 10(!7, ten days after the House of Deputies acted adversely on the petition of the overseers of Captain Keayne's will, the selectmen aiipointed a committee of three " (o make inipiire into the thirds of Mrs Cooie estate, and are hereby fully iui])oured (o ishue all matters concerning the Townes legacye."' Ca]itain Keayne's widow became the wife of Samuel Cole, and on her death the Library in Hoslon was (o receive one half. Har- vard College one fourth, ami the granddaughter Anna, one fourth of (he l)roperty in which the widow luid ii life interest under the Captain's will, vol,. 11. — 1

2

HISTORY OF CHELSEA

[Chap. XX

County Court, January 29, 1C83/4 Nicholas Paige of Boston and Anna liis wife (laughter of Major B(mjaniin Keyne, dece'.' and Grand daughter of and sole lieire unto Cap*, l^ohcrt Keync, sometime of P>ostoii dece'^. P'*. conf^. John Wiswali .hin''. of the Townsliip of Boston Def. in an action of the case for entring into and deteining and refusing to give possession of a certain ffarme at Pumncy Marsh which was formerly the land of the said Pohert Keype and whereof he dyed seized, and which now is the inheritance of the said Anna, together with all other due damages.

The attachment and evidences in the case produced being read and committed to the Jury which are on file, the Jury brought in their verdict, they found for the P''. possession of the ffarme sued for and costs of Court

The Def^. appealed from this Judgement unto the next Court of Assistants, and himselfe principal in ffive hundred pounds, m"". John Wiswali Sen"", and m"". Elisha Cooke Sureties in Two hun- dred and flfifty pounds apeice stand bound in the SuiTies afores''. unto the Treasuro'". of the County and party concerned on condi- tion that the Def^. John Wiswali Jun''. shall prosecute his said Appeale to effect.^

Wiswall's appeal resulted in a reversal of the former judg- ment, as thus appears:

Att a Court of Assistants held at Boston 4*^ march 1683 [1684]. . , . John wisewall Jun) plant, conf^ m'^' Nicolas & m''s Anna Paige deffend^s in an Action of Appeale from the Judgment of the last County Court in Boston After the Attachment Courts Judgment Eeasons of Appeale & euidences in the Case produced were read Comitted to the J ury and are on file with the Eecords

Mrs. Cole was living in March, 1G66 (Suff. Deeds, L. 5, fT. 484, 485) ; but died apparently before the overseers' petition in May, 1667, as her signa- ture was not appended to the deeds by which Samuel Cole in September and October, 16G6, transferred title to property in Boston; nor is she men- tioned in his will, dated December 21, 1666. He died at Winnisimmet, v/liere a granddaughter lived. See vol. i. pp. 246, 247, 380; Suflf. Deeds, L. 5, ff. 53, 74, 91 ; Boston Rec. Com. Rep., x. 37.]

" 1683 Augt 2(J. Giuen David Edwards an ordr vndr ye select mens hands to receaue of Elder John Wiswali & Doctr Elisha Cooke, 341(1. 4s. in mony for severall tilings he brought from England for ye vse of the Library, by order of Capt Brattle, & is in pte of a greate sume due from them, for Capt. Robt. Keynes legacie to ye vse of s<3 Library, as apeares fol. 47." (Boston Roc. Com. Rep., vii. 162.) See also ibid., 5, 7.

^ MSS. Rec. of Suff. Co. Court, 1680-1692, p. 161.

CiiAi'. XX]

THE CONTEST RENEWED

3

of tliiH (U)[\ri the, .Jury broii^jlii in llicir virdid, tlK;y fToiirid for Uic pliiiMliir n;u(THi()ii of lli<; lonncr .) ii(l;,nnciit, (fe (Jo.sIh oT (.'oiirls i. 0. Houei) poiindH Hixl(.'(!ii Hliilli/ig.

The dofondt in open Court sajd he Attainted the Jury for error and the Hiijd Nicolas Paif^e Aeknowledj^ed hiri)Kc;lfe hound In ^0" sterljng to the TniaHiire'' of the (Jountry & party (Joncerned his heir(!H execcuto'H &(; on this (Joruh Lion that lie will prosecute this Attaint at the nex*- Court of ABHiHtants to effect — ^

In tho ''attaint of the jury," Soptemher 2, 1084, Paige was defeated, and the former verdict in behalf of Wiswall was confiriried.''

Nothing daunted by the result of the prea;ding suit, — ])r()l)al)ly tluiy did not await it, — Nicholas and Anna Paige brought an action whi(!h called in question the validity of Wiswall aiul Cooke's title under Lane's deed of 1003. The record is this :

At a County Court for Suffolke, licld at Boston 29^^ April A? 1G84

Captain Nicholas Paige of Boston & Anna his wife daughter of Major B(;njamin Keayne dece"? & Grand daughter of & sole heir unto (*iip"® Kohert Keayne sometinie of Boston dece'' P'.' cont'? Elder Joim Wiswall of Boston & lOlizaheih Cooke Belief of L' Eichard Cooke late of Boston deceC Def? in an action of the case for entring into and detaining & refuseing to give possession of a cer- tain pasture close scituate in Boston a fores*? containing about one acre lying by the Inud of ni'" Edward Tyng late of Boston dece*? which s"^ ])asturc was souietiuics tlie Land of the s'.' Cap"!" Bobert Keayne whereof bee dyed seized and whicli now is the right & inheritance of her the s*? Anna with all due damages : The Attacli- m* & evidences in the case produced being read and coniniiited to

" Rec. of tlie Court of Assistants, i. 249. [For the list of jurymen see ZtiU, 245.1

■* Ibid., This " attaint of the jury " requires explanation. When tlio

losing I'lU'ty thought that the case went against him by reason of miscon- duet of the jury, or by their failing to give weight to tlie evidence, he was at liberty to show these facts and have a new hearing. Sometimes the jury were punished for manifest misconduct. The proces.s is no longer known, so far as 1 am aware; but if the verdict is manifestly wrong, it may be set aside by the Court. Quincy, Mass. Reports, .^.T!). [Note a change in the law in September, 1084, the date of this trial. Mass. Col. Rec., iv. pt. i. 381; pt. ii. 508; v. 440; Ancient Charters and Laws, 147.] The bill of costs has been preserved [see infra, p. 11).

» MSS. Rec. of Suir. Co. Court, 1080-IC92, p. 177.

4

IIISJORY 01'' CHELSEA

[Chap. XX

llic 'IiH'y wliicli iirc on (ilc , 'I'lic .Jury Ijrouglii in tlieir Vordict for Del''? costs of (!oiirl. 'Flic 1"! iii)pciiJ('(l from this Jiidf^ein*^ unto }'!' next Court oi' Assistants, und s'' Nicliolas I'aige principall in Ten pounds and Ebenczar Savage and Samuel Phillips Sureties in 1<"'ive pounds apeico stand l)ound to tlie Treasuror of tliis County & party concerned in the Suines afores'.' I'or s'.' i'aige his prosecu- tion of tliis y\})iH'nlc to Effect.

rrocerdings on Appeal

" The P'*'^ Questions in Law \y*'' a motion to tl)e Court there- about in Six pages & Appeale from Courts Pesolution in two — reckon*^ all as one pap*'." The aljove is the filing-title to a document of which the following only remains;" it relates, I suppose, to the foregoing suit.

Allegation. That whereas the Defendants produce scvcrall papers & Eecords of Transactions concerning Cap*. Keayns Estate between the Executrix & m"". Lane before the marriage covenant between s^. Lane & m''^. Anna was by the Court declared null & void. —

Ans"". That what trust soever was comittcd to m''. Lane either by the s*^. Executrix or by the Court was upon his p^'tcnding to marry the heir this demandant or upon his covenanting in mar- riage w* her but the s''. Lane never p''forming the marriage cove- nant as he himselfe confessed in Court all that trust reposed in him became null & void & thereupon so declared by the Court & all those acts reposeing trust in him made void & Cap*. Keayns Estate taken out of his hands & upon his Petition he also freed from all bonds and Obligations to Cap*. Keayns Eelict & Execu- trix touching Cap* Keayn's Estate. See the Nullity & Gen". Courts Order thereupon & his Petition.

Upon all which we humbly pray the Court to determin accord- ing to Law whether any of those papers lierctofore null & declared to be so by the Gen". Court ought to pass to the Jury as Evidence yea or noe. Eesolved in y? iSTegative

3^1. May. 1684. Attest? Js^^ : Addington C'^e.

m"". Elisha Cooke appearing as Attourny to his Mother claim^. an Appeal from y^. Judgem*. of y^. Court in their resolution of y® above A\Titten & annexed Querys, unto j®. Judgem*. of y®. Bench at y® next Court of Assistants ; which the Court granted, and himselfe & Elder John Wiswall (the other Def*.) entred bond of twenty pounds jointly and severally to the Treasuro"". of this

° Chamberlain MSS., iv. 11, 19. [A complete paper is in Suff. Early Court Files, No. 2233.]

CiiAi'. XX]

TIIIO (XJN'I'ES'I' IIKXKWKD

5

(Joiini.y & pl,y coiiccriicd for y''. prosecution of k''. Appealo lo VAlvx:L ' Atlosf. Js": Addington C"'-.

All('f(iitioTi. 'I'luil, nil KcuyiiH Ksttitc was given away ljy

will & HO nothing for tho iK'irc to inherit.

Ans. 1. 'J'hat J<]x(,'ept the DefeiidanlH fiin inlille themselves hy some express Claws in i\nt will, this will i>e no plea for ihcm lo make title to this Land.

2. That there is not iiny p'. of k''. I^and^ given to any pson or psons whatsoever in plieiiler, nor so that any one could intille [ himself I to imy p'. thereof hut the heir onely. —

.'5. If it had in exjiress lernis hecn said in the will lhat his lOxecuto'". or any oilier should Sell his Lands lo [lay his Leg- acys, yet that takes not away the descent from the lu ir. See Godolphin, page .372. s. .'5.

Upon which we pray the Court lo dclern:in according lo law whether hy the will Cap*. Keayn's heir is deprived from inheriting his Lands. — Vera Copia of it's original on file

attestr Ja'': Addinglon C"".

Wiswalls & Widow Cooks Allegation. That all Cap*. Uohert Kcayns Estate was Sould for payment of debts & Legacy's. &c. hy Articles & produces a C.oppy for proofe attested a true Coppy of the Origenal Edward l?awson Secretary ^

Ans. I'liat the s'\ pretended (lopjiy is no proof of any such Articles, for there is no JJecord nor Original on tile of any such thing.

Th.it his Attestation or under writing a true Co])y of the Orig- inal Edward I'awson Secretary is no more a proofe that there is any such Original or that the ])retended Copy is true then if any other man had so attested who is not in Otiis.

For his Oath binds him no farther then matters imcdiatly transacted by the General] Court So that he is not under Oath in any other matt(>rs nor ought to give any such attestation in any thing but such nuilters onely as are of Record or file bv order of the Gcnerall Court or Court of Assistants so that hi-^ attestation is no prolf thereof.'' Sec The Secretarv's Oath folio IGr).

2'"y. If the p^'tended Copy might be supposed to be true, yet it is no Evidence to a Jury but the Original it Selfe under hand & Scale must be shewed in Court & so given to the durv wlio are to try whether that Jnstrum'. bee the Deed of the party sujiosod

' fTliis dociinioiil; is in llio a]i]H'n(li\- to cliap. xxi, infra, p. 50.]

" rri\ia iisrconu'iit iiiul Iuhmi iuithoiizod by a voto of tlio (^(Mioral Convt,

N()vonil)(>r 12, Klf)!), and was coiilinned by tlio CDnunittco IIkmi ai>|K)inted.

liifnr, pp. 58, CO.]

6

HISTORY OV C^IIKLSEA

[CirAP. XX

or no; l)iit wholhor th.it p'"i.(!nd(;(l Jnstnnri'. do pass or convey the Lands according to law 'J'hc Court ought to dctcrmin. Coke i'olio. 35. 6. 1 & 225. a & b.

Upon all which we humbly pray the Court to d(!terrriin accord- ing to Law whether the p'lended Copy ouglit to ])asH to the Jury as Evidence yea or noe. Itesolved in y'-. Negative

3<J. May. 1684. Attesf. Js"^: Addington C'^.

And whether the s^ pretended Articles do pass the Lands of Cap*. Keayne to m"". Lane w^'''. was but a ruff draught never finished nor Scald nor delivered to m^. Lane nor Signed by the demandant nor he never giveing bond to fulfill the premisses, we pray the Court to determin whether this p'^tended Instrum* did pass the Lands of Cap'. Keayne to m'". Lane according to law yea or noe. See the Massachuset Laws. page. 38.

Vera Copia of it's Original on file Attesf. Js^: Addington C"-?."

These arguments did not prevail, as the court declared in the second case below that the papers should have been given to the 'jury.^

[John Wiswall & Elizabeth Cooke their Reasons of Appeale from ye Judgment or order of ye County Court held at Boston ye 29. day of Aprill last past, by which order severall coppyes of Records of Court which y'' Appellants delivered into y*^ Court to defend their Interest in an Action comenced ag*^ them by M"" Nich" Paige &c were taken out of y® Case & not delivered to ye Jury

1. Because such a method is contrary to ye practise of all o"^" Courts of Justice.

2. It depriues y*' Appellants of their birth-right as English subjects to haue their Case tryed by a Jury

3. Because Jurors are y^ pp Judges of Evidence.

4. It invallidates all coppyes of Court Records though attested by their prop officers & renders them & their Offices of noe credit. These Reasons Rec'^ y® 28° John Wiswall Seno' Aug" 1684 P Is? Addington Clr. Elizabeth Cooke]

Court of Assistants, September, 1684. m"" Nicholas Paige & Ann* his wife plaint Con** m"" John wisewall sen) & m^'s Elisabeth Cooke Executrix to y® late Left Richard Cooke defend*^ in an Action of Appeale from the Judgment of the last County Court

" [The argument of Cooke on this point is inserted in brackets. It is in Suff. Early Court Files, No. 2233, vol. xxvii. p. 47.]

CiiAi'. XX]

TfllO flONTKST IIENKVVEI)

7

in JJoBton After Uift AUfi(.Iifri(;iit (JourtH .1 ud'^nw.ni TfoasoriK of Appciulo & oiji(J(!ii(;c8 in llio (JiiHC produced were read (Jorriitted to the Jury & are on file with the lieccords of thia Court th(; Jury hroufrlit in tiieir virdiet, they found for tii(; defl'end'" ('onfiriuiilion of the fortrKT virdiet & (JostK of (JourtH.

ni'' Jn" wisewal) win & u\''h Elizaheth Cooke executrix to y" ]ate Ijcft Jiich Cooke phiiiitill'" ('onta Cap' Nieliolas Paige &e defend' In An Action of Appealc from tlie Judgin' of tiie last (bounty Cour' in IJo.ston an to a non Suite; = on a full hearin;,' of both plaintilf" & deHend'- 'J'he IJench doe (Jive Judgmen' for tlie plantifl's and doc declare that the pape'^s in question ought to have been deliuered to the foriiujr Jury: & Crants y'' plaintiffs Costs of (Jourts."'

So far Wiswall and Cooke had defeatod Nicholas and Anna Paige, hut better tiinoH \v(!r(! at hand. TIk; old charier was vacated late in l()iS4, though the gov(;riiiti(;nt ehangeil only with the coming of .losepli Dudley's eoninuHsioii as President of Nevi^ England in May, 108(5. Nicholas and Anna Paige quite probably thought that Elisha (/Ook(!, a friend of tlie old charter, and a very astute politician, carried his case by j)olitical influ- ence. However this may have been, they brouglit an action in a now form, ejectionc firmae,^^ unknown before in the colony, and j)rcvailed.

Sewall notices the case.^^ August 5, 1G8G: "This day Ca])t. Paige hath a Judgment for Capt. Kcyn's Farm: ]\Ir. Cook Appeals."

At a Councill held in Boston New England December IG"'. 168G. . . . M''. Elisha Cooke appearing before the Court, and being demanded if he would sign his Bonds of A])peal to his I\Iaj'>' in Councill according to a late injunction of the Court of appeals in the cases depending between hiniselfe and others (and Capt°. Nicholas Paige & his wife) and if be had Suretyes for that pur- pose answered he could not consent to give such Bonds as were required by the Court for the same. Also M"". John Wissell Sen"".

Records of Court of Assistimis, i. 2r)fi.

" Tlie declivrntiou is in the n])j)eiHlix of Stearns' Real Actions. Tnrel vs. Dyer in hjjcclionc firma- from two messuages in Runiney Marsh. ,Iuly 27, l(i8(i. For iv fuller statement of this case with much new matter and notes by the learned editor see Provincial Acts and Ixcsolves, vii. .')07-.')ll. [See in the appendix to chap. xxi. the papers iu one of these suits.]

" Diary, i. 14G.

8

HISTORY OF rilELREA

[Chap. XX

Jn''. Wissoll .Tun"", being severally asked as of M"". Cooke aforesaid returned the same answer as M"". Cooke had done. Also M'". John Flood boinfr demanded as of M''. Cooke aforesaid answered he should do iiolliing.'''

Monday Deeemhcr 20, 1080, Last Satterday, Mr. Cook not prosecuting his Appeal, Possession was given by Major Bulkly and Marshal Green, of the Farm to Capt. Paige and his wife."

During the Aiidros government, when writs of intrusion Avere brought against the owners of estates on the ground of their reversion to the Crown after the revocation of the Charter in 1684, Colonel Paige and his wife, 21 March, 1687/8,'^ petitioned for patents for two estates, one on the south side of King Street, against the Town House, Boston, and the other the Keayne farms at Eumnej Marsh.^" Patents were granted, and may still exist.-' ^

Elislia Cooke reopens tlie Case

For nine years Nicholas and Anna Paige, having defeated Cooke and satisfied the King, enjoyed their estates and were content ; but Cooke was not content, and sought relief in the General Court which passed a vote For granting a review, to Elislia Cooke and others of certain actions brought in the time of President Dudley, hy Colonel Nicholas Paige and Ann, his wife, concerning lands in Rumney Marsh and Bos- ton, wherein judgment was entered against the Defendants, June 17, 1695.-'^ With this enabling act Cooke re-opened the contest which had slept for nine years. September 18, 1695, SewalPo records: "This day, Sept. 18, Mr. Cook enters the Lists with Col. Paige, and sues for Capt. Keyn's Farm again." This suit was by review of the judgments

" 2 Proc. Mass. Hist. Soc, xiii. 284. " Sewall, Diary, i. 162.

[The confirmation of these estates was entered on the Council Records December 19, 1687, in vol. ii. p. 157.] « MSS. Records of the Council, ii. 157. " The survey of the farm is given infra, p. 15.

" [The correct date is June 17, 1696. This followed the action by re- view, and the petition of Cooke, Wiswall, et al., given below. This bill is omitted, as it is printed in Provincial Acts and Resolves, vii. 117.]

" [This bill was not signed by the governor. Infra, p. 38.] Diary, i. 413.

CriAP. XXI

TIIIO CONTEST RENEWED

9

agaiiisl, liiin in 108(1, rci'cvvfd (o jiliovc, ainl jswcn in full in I'rovinciiil LiiwH iiH iihovc; ciixul. liiin id 'I lioiiia.s,

ThoinMS N(!WloTi, uihI Tlioiniis Dudley,'''^ coiuikcI of Xif;liolas ami Anna I*ui^'(;, ansvvci'c.d as follows:^"

Siid'olk. iSM All, an Infer'' (IniirL of [ticas lioldcn in I'o-lon for tin; s'' ('oiinl y on Uic (ii'H I, Tuesday of Octo!' Anno l)oiii' MiDo. Anno'|: I{R« Wilhclni An^i;"'' &'• vii'-" —

'i'lio flea of ('oil. Nicholas Pai<(o & Dann; Anna I'aii^f; liis wilo to the Action l)roii<(lit w^* llicni hy I'llislia (!ook lvs(|'' dn" W'i.swall & Jn» Floyd at thin Court.

The s*^ Nicholas Vii\go. & Dame Anna l'ai;.a' his Wife Came inio (!onrt & hy Natlian" 'Idioinas l']s(|'' tlunr Attorney say tliat the a'^ J<;iisha (!o()k, Jn" Wiswall & Jn" Floyd their Action of Kcview aforcs*' ougltt not to haue & maintain af(' the DefoncU^ in this Court, for that no action of Review will Lye in this Infer"" Court of |)l(!as npon a Judj^nnent given in the ( 'ourt of aiipeales or Crand AksIzc mentioned in tlu! pi'** Writt, and also for that there an; several other ])ersoiis meidioned in the j)rocess Record & Judgm' njjon w*'' the Writ of Review is r)rou<r]it which are not mentioned in the Writt of Review nor any Lei^^ally Represenl ing them, & this the Defend' is Ready to Averr whereupon lie Craves Judpf- nient if the s'' Fliaha Cook ,Jn" Wiswall & Jn" Floyd their Action afores'' ag^ the Defend'*^ ought to maintain. And that the sd Action of Review is Nathaniel Thomas,

barred by the province Law Fntitul(>d an '^Idios: Xewton, Act for ]*]stal)lishing Courts of Judicature Tho. Dudley. &c page 1 1 .

[Sull'olk ss At an Inferiour Court of I'leas holden in Boston for yP said County on yP first Tuesday of October Anno Dni 1()!)5. Annoi] in»s Willielmi Angl &v Seplimo.

Tha replicacon of Klisha Cooke J']s(]!' John Wiswall & John Hlovd at this Court lo the jdea of Nicholas Page and Dame Anna his wife to an accon brought by them y? said P".?

The said p'*.^ Flisha Cooke John Wiswall John llloyd come into the Court & by Palph : Syndry Cenlt their Attorney say that there is not any thing in the said def'^ Nicholas Page & Anna his

Tliomns wns aftovwiirds a, juilge of tlie Supremo Court. Newton liad neied as attorney jj;eiieval in tlie wilelievaft trials at Salem, luul Diullev was a. son of the governor. About tliis time leif.il proceed insjs Iiefjan to show tho skill of trained lawyers, and contrast favorably with those of a few years earlier.

Chamberlain ]\ISS., iv. 33.

10

HISTORY OF CHELSEA

[Chap. XX

wife^ pica to p'^cludo or nhatc said p't« from liavciiij,' & mainetayn- inff their accon of Review !ifor(!sai(] ag^ tlieni y'.' (said J)ef*? for an aceoii of H(!view will lye in this Iiiferiour (Jourt vpon yl' Baid Judmt menc'oned in y'.' Haid writt of Jievi(;\v

And further P".« Uej)]y and say yt all y« persons meneoned in the said process and Judgm\ which are needfull are rnenconed in the said writt of Keview whereby the persons and Case may he well vnderstood, and therefore the p".-'^ crave Judmt &c

Kalpli : Syndry ^-'J

The Court apparently sustained this demurrer by Paige, and thereupon Cooke and his associates went to the General Court the next year.^'' The General Court, with which Cooke as a popular leader had influence, granted the application, and a second time he was defeated in the Superior Court; for Sewall records: 25 "Boston, K E., IsW 19. 1701. The Court gave Sentence that the Law for Reviews bars Mr. Cooke &c. their Action against Col. Paige, Mr. Saffin was of that opinion also." Sewall gives the names of the jurors when the case was tried at Boston, July 27, 1686, and also on the appeal, November 2, the same year ; to this last, he adds the names of the judges. But Cooke had courage and perse- verance, and again appealed to the General Court.

Suff. Early Court Files, No. 4197. The writ of September 18, 1C95, ia also on file.

^ [The petition is omitted because printed in Provincial Acts and Re- solves, vii. 509. It preceded the introduction into the General Court of the bill cited supra, p. 8.]

^ Diary, ii. 47.

Chap. XX]

APPENDIX 1

11

APPENDIX 1

John WiHvvall .Tiinr liis liill of ('ohIs' in ye. Action of Atbiint Mr Xioliolas Paige hcing I'lniiitiHoH &. »<1 VViwwull Uefundant at tliin ( ourt of

AssistantH S('|)!' '2. l(iH4

L H d

To i)iiy(l for y llcaHonn of Attaynt " — " .4" —

'i'o 1. diiy(! to fetch tlieni " — " .2" —

'J'o CoppyeH of RecordH to defend yc cam? " . 1 " 17 " —

To Ut Ueniington for tlinu' (lay<!H attendance ijeiiig suiTi-

oiied \>y ye SeeretarycH warrant " — "12" —

To yc. (IcfendniitH Attendance 3. dayes " — " -G " —

To fylitif^ of |)a|)erH " — " .0" —

To ye Bill of Costs allowed March 4o 1083/4 " -7 " 15 " -<5

Allowed H D.» 11" .2" .6 E R S *

[John Wiawall Senr & Klizabetli Cooke their Bill of Costs'' at ye (!ounty ('ourt at Boston Ai)rill 2!)<) l(iS4 in ye Acid

of Nicho Paifre &c af;l. ym II s d

to ye Co])])y of yc Attachnit " — " — " -0

to Coppyes of Records giuen in ye case as 'jj) ye pticulers may

api)eare " -3 " -7 " -fl

to Attendance of yc Defendants 7 . dayes " _1 " _1 " —

to fyling of papers "0 11 0

At ye Court of Assistants iicld at Bosto Sepr 2(1 1JJS4

to Coppy of ye Reasons of A])peale " — "-3" —

to Copjiyes of Records of Court " — " -4 " -(5

to ye Defendants Attendance G - dayes " — " 18 " —

to fyling of papers "00 11 00

Allowed . Tl D " -1" 10 E R S

Jno Wiawall senr & Elizabeth Cooke their Bill of Cost" in yir Actio aa^t Nicho. Paige &o ujion an Ap])eale fro je .ludgnit or order of ye Coiinly Court iield at Boston April 2'Jh l(iS4

• Chamberlain MSS., iv. 11, Doc. 2.

" [,)ona(han Remington was foreman of the jury whose verdict in this case was attainted. Records of the (^ourt of Assistants, i. 245, 250.] " I Humphry Davy, one of tlie judges.]

* IKdward Rawson, Secretary.]

» Suir. Early Court Eiles, No. 2233, p. 74. ° Ibid.

12

HISTORY ()]'' CIIEI^SICA

[CiiAi'. XX

li 8 d

to Kiilriiif,' yv AAh, "_"]()"_

to payd for CoppycH of y(! ll('cor<l,s " — " 1!) " —

to yo Appclliiiits Attciulance 5 . dayos " — "15" —

to 'fyliiif,' of i);ii.ci n " _ « _1 " _8

Allowed II D 2 " -1 " -8

E 11 S

Tke Account prcscnlcd lij Anna I'aige '

Mr Miisscy . 7 . ycares rent at . 7()li p ycare	U 400	8 . 00	d 00
Mr Musseys . 7 . yrs rent at . 5011 p yeare	300	00	00
To Lands Sould to Goodman Dolittle	250	00	00
The fl'arm at Maiden sould mr Dexter	250	00	00
For ten yeares Rent whilost in Cooke & wiswalls hands as
the farm hath been	COO	00	00
The Stock at the Harm as they received it as it was prized
by Inventory "	271	18	00
To Houshold Stuffe & implements at the ffarm	031	00	00
To the trarm in mr Lanes own hand '^/j year	050	00	00
To the fit'arm it Selfe at Rumly Marsh worth at least " . . .	3000	00	00
The pasture in Boston worth at least	150	00	00
The Land on which m;" Wiswalls & Cook's Shops stand . .	050	00	00
Of what they have received of my Granniothers thii'd.'" . .	GOO	00	00
A debt oweing from Left Cook to mr Lane for Inglish goods
which goods nir Lane bought of my Bradstreet ....	200	: 00	: 00

Besids all the Household stuff Linen plate Iron backs torn out of my Chimnys a large Coper all his money bills bonds debts, apperill & Linen tho prized in his Inven- tory but at 5 = 6 : 1 .who had one hat with a Silver hat band wcli cost 3ti 10s : 0(1 in England the Sumer before I went thether, which hat Left Cooke wore after- wards as I have often seen & also a Ring which my Granffather in his will gave to my ffather worth at least . 201i besids Silver buttons clasps & buckles & other things ; all which things Left Cooke valued at . 6-6-1." ' 270 : 00 : 00

' Suff Early Court Files, No. 2G733. Endorsed: "An Accott of Rents of ye ffarme &a ex." Tliis account is undated, but the certificate by Isaac Addington, and not his successors Thomas Dudlej' and Daniel Allen, and the list of rentals, show that it was prepared in 1084.

* The inventory of Captain Keayne's estate in 1G5C. Cooke and Wis- wall did not receive the farm until 1G63.

" The farm was appraised in 1G56 in Captain Keayne's inventory at £750, and was estimated by his widow in 1659 at £1200. Mass. Archives, vol. B. 15, 211.

" Cooke and Wiswall received one fourth of Mrs. Keayne's thirds, that is the portion of Anna Keaync Lane. This estimate would m ike the total of her thirds £2400, a few pounds less than the whole of Captain Keayne's estate was appraised at in 1056. See also supra, p. 1.

" Inventory of the estate of Edward Lane. Suff. Prob. Rec, L. 5, f. 119.

CuAP. XX]

Ai'i'i;\'i)i\' J

13

'I'lic l.'ciiiH of the. pantiirn & fill Uu: Iioiihcs in I'lOnUm (cxwpt my (JniiKliiiotlicrH ) tlx; llcuL of which hoiiHfM mr Laiu;

received for (i . yeareH hefor(r I went for I'lnt^hinil " . . 324 : 00 : 00

For Lniid Souhl at Mcdlic^hl 080 : 00 : 00

Aiid i.fiiid Souhl to inr Turner''' O.'^O : 00 : 00

And dil'ly [louiid in |)laU! & liouHiiold Stud' lie recc'.l of iny

(.'raiiil nioUK iH 050 : 00 : 00

0«8fl : 18 : 0

'I'licy h:ivc rei'cived nil (liiH& nmcli more Sen mr LancH Deed for the payment of 700(1 & tl];it at their Cooke &, WiHwall. liherty wiietlier tliey \vr)uld pay it <>v noe

— hy ni)' l<no\vled;je Anna Paige Vera Copia, of its' ori;,'inaI on fii(; Attests isa Addiii;<lon ( TTT.

The Acnovill prcseillid hi/ Wiainill and Ci/ul:' '*

In the Extract of (!iipt Keaynos will &, The ahreviate of the Le;>iicyes vnder his ownc hand it j)lainely ai)|»eis That h(! hath given in ix'gacyes out of yl pt of his

estate which he Calls his owne (o severall persons &

for puhlick VHcs to the value of " 1201 " 10" . .

And out of that [)art which he intended for his son hut Ik;

being Dead gi\es it to others to the Valine of . . . " 1000 " .. " ..

The Third |)art of his hoiiseing & Land ho setts aparte for his wife Dureing her Life & after her D(!ath Dis- ])os(?th of which as 'jt? Inventory amounts to ... . " .'y'Ci" 13" 4

Tlu^ Dehts & funerall ('harges as 'ff Inventory 274 " .. " .

30r)2" .3" 4

Mr I,anc Disbursed for i-e|ia ireiiig the houses &c alt his first being possessed of 'i'he Instate as aectt thereof given by him to the GeiirU Court Novcmbr 1050 to ye vatl- of " .280 " 4 " 0

Mr Lane hath paid more for Debts wliich were not In- ventoried to se\erall psons an act I whereof was for- merly given by him Amounts to " .124" 14" 11

34(i(i " 2 " 9

The whole of ('a])l Keaynes Estate as

sttt The Inventory is ." 242C " 2" 1

All The Debts that Mr Lane received as

Due to that Mstalc- were b>it SI " IS " (!

2508 : . . : 7

So that ye Estate would thus be Indebted to Mr Lane , . .958 : 2 : 2 Besides what he paid to the I'.xeculrix as the account

in Court which is '• ,200" 13" 5

And to his wife as 'if) that account al.so • . . . . 113" 8" 2

" Mrs. Paige inchulos in this account against Cooke and Wiswall rents received by Kdvvard Lane when she was living with him as his wife. lOdward Lane sold this land May 7, 1(>")0. SulV. Deeds. L. 3, f. 241. " Sufi'. Early Court Files, No. 2233.

14

HISTORY OF CIIKI.SKA

[Chap. XX

Ami h\H Kift to liis wife Uie now plaintifTe aw ^» DmkI of

(-iifcofinciit for the liouHO hIic I.ivch in Valued in the ^ lnv('iitr)ry which waH bcfon; tlio rcpaircinf,' alt . . . ovO .. And what tho I'hiintillc rccc<l more of him when hIk; wont for Kn"huid wliich waH soinctliing conHidcrahlts This is a true Copie of that on tlie file of .Jany Court 1083 [1084]

AttewtH I Ha Ad'linprton Clr. Vera Copia Attests Isa Addington-CtTC]

Cjiai'. XX]

APPENDIX 2

15

APPKNDIX 2

Tlin Hurrrij of I he l'(tl<ji: Farm'^

By Varicvv of A Wurrant from Excclency Sr Edmond AridroH Kiii^dil, (Jciicnill & Ooiicii!' in (Jlicifc of liin Majes-

ties leritorv & (loiiiiiiioii of new l*]ngland haring Date Boston the 181" day of Jan? 1(587 —

ITaiio suruaed and Tjayd out for TjIcu^ Co" nicolas Paige and Anna his wife two seueraii fannes or tracts of T^and the first heing Siteuat and Lieng hy Ifnnuiey Marsh and Knowne hy Ihe nann; of hogining at A hridge upon the Pines Piiier known Ijy tlie name of Ijinn bridg and stretcliing south west and hy soutli tlireo degrees and fiftoeno minits southerly twenty Eiglit l?odd and from tlienee turns west and by south two degrees & forty fine minits westerly one hundred and ten Pochl & A lialf and from tlicncc south and hy west two degrees and forty flue niinits westerly forty two Podd and then South East seuen degrees southerly fifty six Podd and from thence south w(>st and hy south six degrees and tifteene minits westerly thirty eight JJodd then south south west two degrees & A half westerly one hundred and foure Podd to A great cake tree Marked with B: standing in the Road from thence East & by south fifteene minits Easterly twenty Eiglit Podd to two yong oake trees standing by the fence and tlicn East South East Eight degrees & A half Southerly three hundred & twelve Podd to the End of A stone wall and then by said wall North East and by north Eight degrees and fifteene minits East- erly twenty nine Podd & A half and from thence north north East nine degrees l<]asterly one liundred and twenty Podd to A ditch in the Meadow by the Little Island of vpland: and soe by the midle of said ditch and A Painge of stakes north north east seuen degrees & A half Easterly one hundred thirty two Podd to the Pines b'iuer and falls A Lit'tle to the East of A small Musell - banke in the Piuer and from thence by the Piuer as it Puns to Linn bridg wheare first began: all Conteyned within said bounds hills Valleys swamps Cricks and Marshes is Eight hundred anil

' Mass. Archives, Mujis and Plans, iii. 4. [For the survey of his Boston estates. February 1()87 (1(!SS), see ibid., 11.] " L Interlined over " elani," cancelled.]

16

TIISTOUV OF ClIELSKA

ICiiAi". XX

Bcnion Akors iind A Imlf ouL of which is to boe Mowed A Kuficient w;iy I'or (lie Coiiircy Koiidc, llie second is A Little fanne neare iid jDyniii^j; lo tlic f'oriiicr hi'iiifr distant fil'ty six Jiodd to the south wrsl : l)cj^iiiiiig at A slake and A heap of stones in the Ifoade wliicli is the west Corner, and Raingcs in Length one the BOiith west side ICast south East Eight degrees and forty fine minits southerly two hundred Eighty foure Kodd and then in hredth lOast and by north one degree & A half Easterly sixty senen K'odd then turns north East and by north one degree Easterly tweluo Ilodd and from thence in Length one the north East side north north west Eight degrees and forty flue minits northerly three hundred and thirty six IJodd to the Itoad and from thence in brcdth fifty foure Rodd to the first stake and heape of stones being bounded to the south west by Land Improued by Newgat south by Land Chaimed by John Tuttle & brothers North East by Land in possion of John Coging North west by the Contrey Eoad Conteyning one hundred and seuen Akers and A quarter out of which is two Rodd in bredth Left at the north west End for half the Contrey Roade performed this 16*1 ^^y of Feb^- 1G87

P Phillip Welles Suru'' Endorsed; " 16^^ fPebruary 1687 [1688] Survey of two farmes

neere Rumney Marsh for Leiut Cott Nicho : Page. &c."

Among the maps and plans at the State House, is one of this

survey, a reduced copy of which is here given.

CiiAP. XXI I

KI.I,SIJA COOKK'K LAST Al'l'EAI.

17

CIlAPTKIl XXI

WIIFjN 1 I)Ofj;;in to invoHti^^jitn Uk; Icj^al procccilinfrs for ('iipliiiii Iw'ii yrxi'w fiiriii, I uiis f^rcally ciiilKirras^cd by lack (if records, and lalci' liy iIk^ in ii 1 1 i |(I ici ly (tlioii^li iiir from coniplclc^ ). IJiil, llic, slory is lold ^rapliically, if not quite imparl iaily, by Klislia ( 'ooko in a iiu'inorial to iho (Jcricral Co'ii'l.' | 'Flic- ciidoi'sciiicnl s on lliis niciiioj-ial follow : ]

In (iouMcil l?«ul 20"' Fvhy 1701/2

llend a 2" iiiiio . 27"'

]?ca(l . 10'" .July . 1702

27"' Fob'- 1701 j 1702] In CouuvU

The Question hewg put. WluMlicr (he I'ct'"" should he {^ranted? Ans'" Yes.

Then a 2'' Quesfiou beiiif;- put, Whether a pi'ivate J>ill shall he made for the releil'c of the Pef"?

Ans'' Yes , by Fourleeii, Five of Iheiu sayiuij, ])rovide(l That Ool" Paige he NotiI'ved.-' A third Question being put, Whetber Col" Paige shall he notifyed to attend too morrow, at Ten in the morning, or sooner, if it may be?

Ans!" Yes. Is"^ Addington Secry.

' Mass. Archives, xlv. 272. ri'i'intod in Provincial Acts and Resolves, vii. 50!), 510.]

' [.hine 27, 1702, Covcriior Dudley ])roroji\ied (he Oencral Court until August, 12, and duly 8, he informed tlie Council (hat lie would liMve Boston on the follo\vin<; day for a (rip (o (lie eas(\vard. TIkm'c is no record in (he Maaa. Archives of a nicetiiif; of the Council between duly S and Au-mst Possihly the endorsement on the petition should he dune 10, when (he liill given in the (ext, infra, p. 18, was read.]

" February 28, 1702. " Yesterday Mr. Cookes Petition to enable him (o sue Col. Paige for his Farm, was brought fiu'ward. 1 moved that Col. Paige might be Noli tied and 4 more. Mr. Cooke seemed dis])leas'd, and in way of Dis])h'asure said 'twas to delay his Business: was sorry I was so far engag'd in it. For this, and because of Sherbourn case. I chose (o stay from Council this Forenoon; that might avoid being present when suspected, or charg'd with Prejudice." Sewall, Diary, ii. 54. VOL. II. — 2

18

HISTORY OF CHELSEA

[Chap. XXI

February 28, 1701/3, " Coll" Niclioliis Pai<re attended the Board Accoi-diiig to the Notifieation Sent liim Y(t«ter<lay; And OU'ering notliin<f against what was I'rayed for l)y l<jlisha (Jookc Esq'" &c in their Petition, only tliat he liad been inforiried tliat Hoinething had been sent I'roin England relating to the Passing of Acts a Bill was brought in 'IV) onal)le Klisha Cooke Es(j'' John Wiswall, and Sarah, and llugli Floyd Administrators of tiie Estate of John Floyd Deeed to review two Judgements given in tlie Year 1(586, at tlie Superiour Court of Judicature &c to be holden at Boston Which Bill being read at the Board, it was Voted that it be re- ferred to the next Sitting of the General Court." *

The Bill ^ to enable Cooke to sue for ilte Keayne Estate

Province of the Massachusetts Bay

An Act To Enable Elisha Cooke, Esq"" John Wiswall and Sarah & Hugh Floyd Adrain^s of the Estate of John Floyd deced to review two Judgem^^ given in the year 1G86 at y® Superionr Court of Judicature &c to be holden at Boston. (Here follows by way of recital the petition) Be it therefore Enacted by the Council and Representatives in General Court assembled And by the authority of the same It is Enacted That the s<^ Elisha Cooke John Wiswall, and Sarah Floyd and Hugh Floyd Admin^'^ of the Estate of the deed John Floyd Shall be and hereby are enabled & impowred to have new Tryals by Eeview of the two several Judgem*^ given as afores'^ in the year 1686. by virtue of which they were put out of possession of the Farme and Pasture beforementioned, at the Superiour Court of Judicature. Court of Assize and General Goal Delivery to be holden at Boston at any time before the last day of May Anno. 1704, And That the Superiour Court be and hereby is directed and required to admit & receive the s^^ Tryals by review, And to heare and determin the same doing therein that which to Justice doth appertain according to Law.

Any Law Usage or Custom to the contrary in any wise not- withstanding

February. 28'^ 1701. Eead In Council and referred to the next Sitting of the General Court. Is" Addingtou Secfy.

A.M. Read in Council. June 1702. P.M. Read a 2'' time

^ MSS Rec. of the General Court, vii. 271. " Mass. Archives, xl. 735.

CiiAP. XXTl KLrSIIA (;OOKE'S LAST AI'PKAL

19

W(; luiiir no rrion; of (liis lull. Il, \v!is droppfd, ;iri'l fi'orn tlial, tiiiK! Anna vvjih allovvtid (|ni<'f ly to ''n joy lifr cstato,

bnt nol, for lonf!,'; for Snwall lia.s tliis cnl.ry:" " K<!ria Sfixta, Junij, .'<(), 1701. As tlici (iovcrMoiii- |.los(|»li Dii'llcty] sat at ll)(! ( 'oiincil-'l'ahlc Iwas loM liiin, Aladani I'u'v^i: was dead;

claspd lii.s liands, and (piickly w(!nf, oul,, and rcfiirn'd not to tli(! Chamber afi,'ain." Madam Paige wa.s iIk; niece of Gov(!rnor Dudley, atid on -Iidy 2, 1704, in Hoston, was hornt; to tli(( tond) by distinf;\]isli(!d f)alld)earers. Jler linsband, (;oloiiel Nicholas I'aif^c, siirvivc^d her some years, dying y)roh- ahly lalx! in 1717, as his will was |)rohat(!d .January .'>, 1717/18.

Of the Keayne estate at linniiiey Marsh, tlie little farm was sohP l-o Paul l)udl(!y, as hefon^ related, and the great farm hecame the projUM-ty ot" Martha Ilohhs, who was in some way ndalcd l,o Nicholas I'aige, and married iSIathaniel Oliver.'*

« Diiu-y, ii. 10!).

' Vol. i. p. (>;!(!, note.

* For llic niil)S('(]iK'iit, owners of tlie great farm, and for more about Martha llobbs, sec K. D. Harris, Account of the Descendants of Capt. Tlioinas Hrnt th', 5.'), r>(>, 5!), (!() ; and for the connection between tlie Oliver mid Wendell iMmilies, pp. :!!), 40. The late Henry K. ()li\cr of Salem was of the llwiniiey Marsh family. [Infra, p. 74.]

20

IIISTOIIY OK CIIKI.SKA [CiiArs. XfX-XXI

APPENDIX

TO CIIArTJCKS XIX-XXI

[In January, 1683/4, Captain Nicholas Paige and Anna his M'il'e brought suit in the Inferior Court of (Jornmou I'Icas to recover tlie farm at Rumnoy Marsh on tlie plea that she was the heiress of her grandfatlier. Captain Keaync, who had died nearly twenty eight years before. The suit was brouglit against John Wiswall, Jr., tenant and part owner of the farm through a deed from Edward Lane to Eichard Cooke and Elder Wiswall dated some twenty years before. The verdict in this lower court was for the plaintiff, possession of the farm and costs of court. ^ The de- fendant appealed to the Court of Assistants, where the judgment Avas reversed at the March court of 1683/4.^ Nicholas Paige then took the final step of attainting the jury. This rendered a new trial necessary before a jury of twenty-four, a method of procedure substituted for an appeal to the General Court, which had been the earlier practice, but had proved burdensome and obstructive of the country's business.^ This trial by attaint of jury was appointed for the September term of the Court of Assistants.

In the meantime at the April term of the Inferior Court of Common Pleas, Nicholas Paige and Anna his wife brought suit to recover another piece of property, a pasture in Boston, which had belonged formerly to Captain Keayne, and passed by the same deed from Edward Lane to Cooke and Wiswall.'* This time the verdict in the lower court was against Captain Paige, and he appealed to the Court of Assistants, the case also coming up at the September term. Many of the papers in these suits thus

^ Supra, p. 2. One of the jurymen at this court was Daniel Turell, infra, p. 30, On the same day Captain Nicholas Paige and Anna his wife petitioned to be appointed executors of Captain Keayne's estate. The petition is printed in the N. E. Hist, and Gen. Reg., xxxi. 105. Letters of administration were issued to them (Boston Rec. Com. Rep., X. 54) ; they gave bond therefor on February 9, 1C83/4. Suff. Prob. Files, No. 171. How much of the original farm Captain Paige and his wife would have secured through this suit is not known. John Wis- wall, Jr., owned one fourth of the great farm; possibly he was tenant of the whole, though this is not probable. Supra, vol. i., pp. C65-CC7.

^ Supra, p. 2.

^ Supra, p. 3.

* Supra, p. 3,

Oil A I'M. XIX XX r I

Al'I'KN'DIX

21

appealed liJiV! lic.c.n proscrvi'd in IIk; Karly f'oiirl Filcfi of SiiHolk CoiiJily.''

" l*;i(l(T VViHvviill & Wiil'lovv Cook" in ili-d'uci- of their till'! (•liiinicd Uuil all ('a[)l,airi Kiiayno's cHtalc li:i(l Ix'cn j^ivcd away by will a/i(l (■onsc(pi('iiily Lli(!i'(! was nolliin;/ lor I In- heir to inlicrit, ; tliat llu; CHlalc! had hcon Bold to Mdward Laiif lor iIk; payin(!iil of debts and Ic^acicH hy Ihc overseers of llie will under a resolution of thfi (Jenoral Coiirl, and willi Ihe a|>proval of ils eoniniiltee; and that ijanc! had (;onv(iyed l.o lliein ( I lie (lefendanlH ) lliel.iml in di-piite Ijy deed of Dec. 11, KiO:!.''

Nicholas I'aii^'e and liis wife claimed Ihe fiirm on the ;:ronnd tiial she was sole heir lo Ihe (-slalc! of ('aplain Koherl Kejiyiie, insisting thai "if it had in express tei'ins ln'i'ii said in the will tliat Ids Kxecnto!' or any oilier should Sell his Lands to ])ay liis JjOf;,'acys, yet that takes not away Ihe descent from the h(;ir," quoting Ciodolpliin, page 372, s. '.i. Of the deed fmm l/ine to Cooko and Wiswall they demanded first llial the ori^ijinal should he pro- duced, adding, " 'I'hat if any such Inslrmiient were made hy Mi" ]jane to them 'I'lieir safest IMea is to say that it was in 'I'nist, which if they shall not so Doe we say Tliat the said Insirumcnt was a Covenous & fraudulent Conveyance . . . Made & conlrivi'd one purpose to Defraud M''^ T'aige of her Estale which came lo her from her Crand father Oap"^ Keayne."

A few words o\' ex])lanation se(>m necessary. Anna Keayne Paige was not- hy Ihc will a residuary legatee. She received three hundred pounds as her lii-st legacy, six hundred more if her father died leaving no other children, and at the death of her grand- niolher, ('aplain K'cayne's widow, one fourth of her thirds — that is, the legacy could not have exceeded, in the intent of Captain Keayne, £12;54. Under the will she could not claim both the house in Jioston, which Edward Lane had deeded to lier in 16(53, and the farm at Kunnu'y Marsh, for in the inventory of Ca])tain Keayne's eslale Ihe one had heen valued at ,l'r)70, and the olh(^r at EToO. a total of £1320, exclusive of household furniture and slock; and

° Case No. 2231? (40 pn])(>ra). Other ilocunionls rcliitiiig to tlip cn9C aro lo he foiiiul :it tlio State House, nt tlie ^liildlescx Comity Court House, and in tlie Cliauilierlaiu Cotleeliou ;it (lie rooms of tin- Mass. Hist. Soe.

'I'lie jilea luul arguments of Cookp and ^^■is\v:^ll in tliis case have not l)een jireserxed, and are only known as quoted in the answering argu- ment by Nathaniel Thomas, the attorney of Cajitain I'aige. The latter is in RulV. l^larly Court Files, No. 22.'?;?; see also .iiipra, p. 4. Kiehard Cooke (lied some ten ye!vrs before this suit was brouglit, and Klisha Cooke, the well-known political leader, conducted this case as his mother's attorney.

22

IIISTOIIY OF CIIELSKA

[CiiAi'H. XIX-XXI

tlio appraisomont of Uk; inventory wan hoiik; foiirt(!(;n hundred pounds IcHH llian (laplain Keayne's (;Hiiinalc, Ijy which lie gauged his legacies.' 'rhcrclore if ('a|)(,ain i'aige and his wife intended to claim tlu; whole ol' I In: I'anri, it was necessary to demand the estate as iieir-at-law.

Their opponents chiirned that the whole of Captain Keayne's estate had been given away by the will, and therefore riotiiing was left for llie heir-at-law. As to the intent of the testator, the will is in print and can be consulted. Apparently Captain Keayne intended, in case his son did not survive him, to dispose of his whole estate; if there were any residue, it was to be devoted to "publike or charitable use or uses" by the overseers with the advice and consent of his w^ife, the executrix.*

Anna Keayne married Edward Lane December 11, 1G57. Before the marriage Mrs. Anna Keayne, the grandmother, transferred the executorship of the will to Edward Lane." Within fifteen months the granddaughter, dissatisfied with Edward Lane as a husband, petitioned the Court and secured an annulment of the marriage.^" A biisiness settlement was necessitated, and to ac- complish it the aid of the Great and General Court had to be invoked. Edward Lane insisted that he had assumed a heavy burden when he undertook the executorship, that Captain Keayne had estimated his estate at four thousand pounds, and had made his bequests in accordance with that estimate, while by the inven- tory of the estate taken at his death it fell far short of this, and when his debts and funeral charges were paid, it would not amount to two thousand pounds; and he asked to be relieved of the

' Captain Keayne, wlien he made his will, estimated his estate at £4000. Boston Rec. Com. Eep., x. 47. For the inventory, see infra, p. 51. As to the widow's thirds, see supra, p. 13. See also Boston Rec. Com. Rep., X. 19, 20, 21, 37.

* Boston Rec. Com. Rep., x. 21, 39.

" An attested copy of the preliminary agreement between the widow and Edward Lane, dated November 14, 1057, is in Mass. Archives, ix. 31; the report signed November 24, 1657, by Edward Rawson and Captain James Johnson (for Mrs. Keayne) and William Brenton and Captain Edward Hutchinson (for Mr. Lane) is, in an attested copy, in Chamberlain MSS., iii. 179; the articles of agreement drawn in accord with the latter document, and signed four days later, November 28, have been printed in Siiflf. Deeds, L. 3, f. 77. The account rendered by Mrs. Keayne in accordance with tliis agreement is in Mass. Archives, vol. B. 15, p. 209".

" Her petition is in Mass. Archives, ix. 32. The decree annulling the marriage is in SuflT. Early Court Files, No. 2233, vol. xxvii. p. 47. It was given at the March term of the Court of Assistants in 1058 [1659], because Edward Lane was unable to beget children.

CiiAPH. XIX-XXI]

APPKNDIX

23

cxcciilorsljip." At tlic liino of liis marria^^o Eflward hsinc liail b(;(!n in llio country IniL ii liUlc ov(!r a year ami, pnisuirialWy, had broii^flil willi Iiiin I'lindH. It was charged by (.'aptain Keaync's widow Ibat he pai<l \('^uv]ch more, promptly titan tlu; proviHions of tlic! will rcipiircd.'^ bad also iiiad<; repairs and all(;rationH on tilt! bouses, spending Ibercby .i:i,()r>!i, ol' liis own r-state, be claimed, for which be demanded payment. Tlie widow of (.'aptain Keayiu; further coni])licated affairs by assuming the position that, not- withslnnding tin; annulment of his marriage will) her grarid- daugbler, Mr. liane must abide by bis busin(!ss agreement wilb liorsolf, and remain executor of Iht husband's estate. 'J'bis ))osition she continued to hold even when her brother-in-law, John Wilson, and the other overseers of the will, declined further to HU])i)()rt her.''' The business was before the (Jeneral Court during two sessions, and two committees were occupied with it before a final settlement was reached. One suggestion was that Samuel Cole, who had in the jneantime decided to marry Mrs. Anna Keaync, Sr., should become the execulor, and repay such dis- hursemenls of Mr. Ijane as had increastnl the value of the estate, on condition that the half of Mrs. Keayne's thirds which was devised at her death to the Library in Boston, should be con- firmed to her.'' In November, 105!), the court decreed that Mr. Lane should be nileased from the executorship, and repaid for what he had expended to Ihe amouni of six hundred and fifty })oun(ls, receiving also the rent for llic two past years of the farm and of the J5oston house and shop. It then appointed Mr. Simon Hnidstrcet and Major-Ceneral Lennison, uncles by marriage to " M''*^ Anne Keayn(\ .lunio'V' her guardians, releasing Mr. Jjanc from this trust. It next directed the overseers of (Japtain Keayne's will " to take the estate into theire hands. & to sell or dispose thereof, for speedy payment of the legatjes." 'IMie (\)urt also appointed a conuniltee of six to join with the overseers in interpreting Ca])(ain Keayne's intentions as to public and private legacies, and to a])i)rove and confirm their acts as to the estate. Shorlly Ihereafler the Court " in consideration of the late C^apt. Ixobert Keaynes libberall guifts to the country in his will " granted to Mrs. Anna Kenyne Cole and .\nna Kcayne

" Petition of lC(hv;ir<l T,:iiio in Mass. .Aroliivpsi, vol. B. \'). \i. 212. also SiilV. Karly Court Kilos, No. 22;i;?, |i. .">1.

" Answer of Anna Koayno. Sr.. in l\Iass. Archives, vol. R. 1,"), p. 21:?. " MaBS. Aroliivos, vol. H. 1.'), pp. 211, 21:?.

" Ibid., 215. On Mrs. Keayne's death one half of her thirds was pay- able to the Library in Postoii, one fourth to Harvard College, and one fourth to Anna Keayne, Jr.

21

III.STOJIY ()!<' CllKI.SKA [Ciiai-h. XIX-XXI

five Imndrod acres of land apiece in Die wildcrnesH, on llio hanks oi' the Merrimack. TiiiK waH in Novernhcr, IGT)!)."''

Within a lew w(!eks, this eettlement was ovcrtiirown Ijy Anna Keuyne marrying Edward Lane a second time. (!af)tain Kcayne's estate was then a second time turned over to Air. Ijarie l)y a document signed March 12, 1659/G(), by himsc;!!', i)y six out of eiglit overseers of the will, by four of the coinmitteo of six ap- pointed by the General Court, and by Mr. and Mrs. Cole.'" According to later evidence Anna Keayne Lane was present.

By these articles the estate was delivered to Mr. I^ane " to enjoy to him his heires & assignes for ever" on condition that he should pay the debts and legacies of Captain Keayne, and fulfil the agreement with Mrs. Cole as to her thirds. Moreover, it was provided that Lane should pay Mrs. Cole twenty pounds a year instead of the forty pounds agreed upon in 1657. Also after her death, " in consideration of what y** Estate may possibly fall short & to prevent ye abatement of any legacies in whole or part at p''sent/' he was permitted some choice as to the form of payments made to the legatees to whom the thirds were bequeathed. And in case there should in the future be recovered against Captain Keayne's estate debts amounting to the " valine of one hundred Marks or upward, then y** Overseers will further consider how they may ease M"" Lane in y^ paym* therof in case it be p^'sented to them whilst it is in their power to do it." Edward Lane was to give security to the overseers for the payment of debts and legacies.

The argument of Nathaniel Thomas, attorney of Nicholas Paige, to invalidate this document has been given in full, and reference thereto should be had.^^ At the different trials several writings were placed on file. Comparing these the following facts stand forth. Cooke and Wiswall could not produce the original of the agreement of March 12, 1659/60, with its thirteen signatures, but the document presented to the Suffolk County Court was a copy attested by Edward Eawson as Secretary of the Colony, as the agreement had been authorized by a vote of the General Court, and confirmed by its committee. On March 13, 1659/60, the overseers of the will, the committee empowered by the General Court to confirm the action of the overseers, Mr. and Mrs. Cole, Edward Lane, and Anna Keayne Lane met in Mr. Turner's inn adjoining the Keayne mansion, and in the presence and with the consent of all concerned, the agreement in

" Vol. i. pp. 643-646. " Infra, p. 59. " Supra, p. 4.

CiiAi'H. XIX XX[|

APPENDIX

question wuh drawn an a final kcI I Idii' ii I of tlic cslafc and was tlicn Hi^Mcd. Anna Koayn(! Lanc'H Hif(nalun; was not net'OSHary, aH her inlcrcsl, waw lliat ol' a Icf^alcc. 'I'li<! dociiincnl in IIk; progrcHH ol' lis irrovvili iiad, liowf'vcr, Id'cn tniicli Idollcd and inli-rlin(."d, and wa,.s ilicn'ron! ifd't with I'idward I'awKoii, tin: Sffcrotary of tlie ('olony, and an ovcrmrv of ('aptain Kcaync'n will, to rrmkc a clear copy ol' it. 'I'liis is slad'd in ilic tcslirnony of Simon I'radsl rfft confii'nicd l)y i'ldward Ifawson and 'I'lioinaH Danforlli. A<;cording to llicir Icstiniony also, I lie dociinirnl in coirrt was an accurate copy of tli(! ai;i'('('incnt Hi/^iicd on March I:', lGr)!)/(;0. It had not Ijccii recorded in the re<^istry of deeds, as tlu! earlier aj^reerncnl of 1G57 had heen. According to a deposition by Siinon Bradstreet it was intended tliat the copy made by Secretary ifawson should b(; delivered to Edward Lane as evidence of title upon his giving bonds to carry ont its provisions, hut that Lane had neglectcjd to give bonds, and hence, so far as he knew, the agreement had never been delivered lo him. It is nowhere explaincid how Cooke was able to produce in court a copy of the agreement attested by "Edward Hawson Secretary," if I his copy was not delivered to Edward linne. Edward b'awson deposed that T>ane had refused to give bonds. This, then, was the gronnd for invalidating Lane's, and hene(,' (!ooke and Wiswall's, title lo llie estate. The same attempt on the same grounds had been made by the overseers of the will in I()G7 in a petition to the Ccneral ('ourt, and had failed.'* (looke in KJSI introduced copies of testimony taken in court in 1()()T to })i'ove that Oajjtain Johnson, in the name of the overseers, formally delivered possession of the premises to Mr. Lane after the second marriage. Of ]<]dward Lane's possession of the estate there was no ([uestion. The overseers stated that Lane retained the estate in his hands after the decree of the General Court in November, 1059. On this point the testimony is contradictory. In December, KiHT, when Lane first assumed (be executorship, the bonds re(|uired of him by the Court covered the farm at L'umney Marsh and the mansion house of Captain Keavne ii\ Boston. At no time did (mIIum- l^am^ or Cooke and \\'isw.-dl deny that they were charg(>able for the legaci(^s and debts of Captain Keayue. During his lifetime T;ane had undisputed pos- session of the estate, paid IMrs. Cole's annuity according to the agreement signed in March, l()5r)/G0, and paid several legacies of Captain Kcayne. Cooke and Wiswall asserted, and no contra- dictory evidence is on file, that the agreement of 165P/G0 was honestly ful tilled by Lane and by themselves.'-'

" Vol. i. I). (MO.

Sco ififra. i>i>. .^O-lU, (ho ovidoiico in tho c.ise.

26

HISTORY OF CHELSEA

[Chaps. XIX-XXI

Next to be considered are Captain Paige's objections to the deed from Lane to Cool<e and Wiswall of Deecrnber 14, IGGS.^** At that time, about four years after tiieir second niarriagc;, Edward Lane and iiis wife decided to separate, tlie cause being apparently her relations willi Nicliolas J'aige, the father of lier ciiihin-n.^^ December 2, ](iG;5, Edward Lane, intending, it was said in a sujipleiiieritary document,^^ a "voyage for England siiddainly if Ood pinitt," conveyed to trustees for the use of Anna Kcayne Lane the iriansion house of Captain Kcayne in Boston on the condition that she renounce all claim to the estate of Captain Eobert Keayne, and to that of Edward Lane, " Except what maye be heereafter giuen and Bequeatlied Vnto hir by the last will & testeament of me the said Edward Lane." '^^ Possession was taken in her behalf by the trustees Robert Gibbs and Thomas Brattle. The deed was acknowledged before Thomas Danforth, one of the committee of the General Court who had signed the agreement of March, 1659/60 ; and also before Samuel Bradstreet, when a clause was added in her favor. Doubtless Samuel Bradstreet was the son of her uncle Simon Bradstreet, who had been appointed her guar- dian by the General Court in 1659, when the first marriage was annulled.^* The deed was recorded immediately in the Suffolk Eegistry of Deeds by Edward Eawson, her cousin, one of the over- seers of Captain Keayne's will. She herself signed with the trus- tees a supplementary document to the effect that Edward Lane was to retain possession of the house, and receive rents until March 25, 1664.

Twelve days after the signing of this deed and three days after it was recorded, Edward Lane conveyed the remainder of his estate, including the farm at Eumney Marsh, to Pichard. Cooke and Elder John Wiswall,^' the former apparently an intimate friend, and the latter a tenant of one of the shops built on Captain Kea3Tie's land, next his house, in Boston. The consideration was that Cooke and Wiswall should pay the annuity of £20 a year to Mrs. Cole; also all debts due from Edward Lane to Simon Brad- street and to parties in England, and the necessary expenses of Edward Ijane, to an amount not to exceed seven hundred pounds.

^ Suff. Deeds, L. 4, f. 191.

" Vol. i. p. 641, note.

" Infra, p. 62.

Suff. Deeds, L. 4, f. 167.

^ Simon Bradstreet had a son of that name who died in 16S2.

^ John Wiswall was a ruling elder in the First Church, of which John Wilson, uncle by marriage of Anna Keayne Lane, and an overseer of Captain Keayne's will, was pastor.

C'liAi'H. XIX-XXIl

APPENDIX

27

Accordiri^r io ji Hiiilciriciil iniidc hilcr I'idiard Cooke, tiioy alno af^rccd io pay ilircc liiiiKlrcd poiiiidH more in ddits or Jc;/a( iff-, if rofjiiinrd ho Io do, hid, lliiH Ijillcr ii^^rccincut, docs not ii|)[K-;ir in llic deed.'" Iviinc did nol, ".'iYC :i WiirraiiLy, IhiI coiivi-yi-d the i)ro[H;rti(!8 " in Hiicli \jiiv<^(; & ample HorL manner dfe j'ornie, an he y'- k'' Kdward IjiUK! may frnirii Har^aine Hell eni'eon'e aHsi;,Mie Sett over, & (Jon- firiru! y" Haine." Ilo Hpecifically conveycMj the rifi^lils of Anna Keayne I.ane in h(!r ^raiidinol Iht'h lliird.s. He, alone, Kignod the de(!(l. 'riic intent of Kdward Lane was ap|)arontly to convey to ('ookc and VViswall all his rif^litH in the property as cxr-fMitor, and also all the riirhls of Anna Lane fn's wife, sole heir-at-law of I'ohert Keayiie, loavin^r tin; property Huhject Io llie lid' interest of Mrs. Anna Keayiie (!olo, as defined in the settlement of I(i5!i/(i0, and tlx; piihlic or private heqiiosts which remained unpaid or became dne on the dealh of Mrs. (!ole. The deed was Hif(ned Deeeiriher 1 !, IHfi.'J, acknowled.t^cd, Kehriiary 1, and recorded hy l*Mward K'awson, March 24, lG(i3/'^> ^^'K' <lii.y before Ijano had af^reed to f^ive final possession of the mansion house lo (lie trustees for the use of Anna Keayne Lane.

Edward I;ane died in about a year, danuary 1'^, lf)ni/5, and in cons('(|nen((' of his early dealli without leaving a will, Cooke and Wiswall were compelled lo pay on his account only about £4!);{, and of this £75 were for Jegacies under Captain Keayne's will. Thus they obtained (he property for less tlian half the sum which, according to their own slatement, (hey might have been compelled by Lane to pay, and (hat was probably less than the real value of Ibe property. Bitterness was also felt toward llichard Cooke for the part which he had taken in tbe affair, from tlu> marriage in 1G57 (o (be publicity of tbe scandal in (he indiciment of Mrs. Anna Paige, on ber return from England, in 1()G5.-' Tbe overseers of tbe will, Ibree of whom were uncles by nuirriage of Mrs. Paige, consecpiendy petitioned the General Court in May. I()(i7, (o be given (be control of (be projMM'lv that y^ true meaning and will of y*" deceased, who Soe leberallv bequeathed to Publi(]ne vscs may ho fuKllled; and bis delations may not be jniured." TIht complained that (be " Said Lane bath neidier giueu Security, nor discbarged all y'' deltts and T^egacies according to bis Covenant, and y'^ Expresse Condition of bis being be- truslinl with tbe Said Es(a(e: Ru( on y*" Coidrary ba(b as wee

=" Sutr. Prob. Roo.. T>. IT. 110, 120. Tliis inv(Mi(ory of F.dwanl T.niip's ostntc was not ])liU'ofl on record until May, KidT. wlicn ('ool<o :uul Wia- WiiU's title wiis already in di.s])n(e.

" l)e|Hwi(i(in of Mrs". Anna ('ole in SufT. Karly Court iMles, No. 22."?3 ; also other evidence in the same case.

2S

HISTORY f)F CHELSEA \Cuavh. XIX-XXI

arc iiiCoriiicd by a fiiII;icioiis Deed Conveyed ilie Said Estate to I;eil'' (!o()l<e and Deacon Wiswall, wlio now stand Seized tlieroof, and Jiano refu.snd to deliu'' iha Same vnto us, or to giuo Bond I'or y"" payment of all Debts and Tjogacies yet due; whereby wee, y'' Overseers are vtterly disinabled to discharge the trust Coiiiitted io us, by the Will of y^ Said Cap* Keyne." In a petition of Nicliobis and Anna Paige the preceding October, they complained " she is y*-' only ofspring of Cap* Robert Kcayne wlio dyed Scazed of a fare estate desposing of a great part theare of to publick uses by his Last will w'^'' as to others hath beene at- tended, her Selfe only being bereft of her purtion." ^* Possibly the falling due of the legacies from Mrs. Cole's thirds, payable at her death, may explain this discrepancy."" However this may be, the General Court in 1666 and 16G7 remained unmoved, — if any legacies were unpaid they might be collected through the courts,^^ but Mrs. Anna Paige, it was intimated, had suffered no more than she deserved."^

Nicholas Paige and his wife were apparently not more success- ful in the lower courts. When Benjamin Muzzey refused to pay his rent, Cooke and Wiswall were able to collect it by process of law, though Nicholas Paige supported Muzzey and appealed the case to the Court of Assistants.^^ At the trial of the indictment of Mrs. Paige in 1666, Nicholas Paige and his wife in their defence " humbly propose to the Hono'^'*^ Court That the said Cooke first release all pretended Eight to any part of the Estate which was formerly the Defendants & Eeferr it to the hono''*^ Court or such Coihittee as they shall appoynt to Determine, and order him all reasonable Sattisfaction & Interest for Disbursments vpon the said Estate; and the remainder Thereof to the heires in law or Judgment of the Court." Eichard Cooke in his answer re- plied to this point : " but I humbly Crave leave to Declare That if any of The relations of Captaine Keayne Desire to have that estate which was his; left them but give vs all M"" Lanes Dis-

Vol. i. p. 649. Infra, p. 63. Supra, p. 1, note.

" The endorsement on a deposition, ^iven infra, p. Gl, implies a trial in the courts of 1667, possibly in accord with the suggestion of the Deputies. Cooke and Wiswall remained in possession of the estate.

Vol. i. pp. 648, 650. Many papers in the trial of Mrs. Paige for adultery in the spring of 1666 have been preserved in Suff. Early Court Files, No. 223.3.

Suff. Early Court Files, No. 742. On the reasons of appeal is the endorsement : " Nicholas Page deliured these reasons to mee the 30th day of August, 1666." The case was Cooke and Wiswall against Muzzey at the May term of the Commissioners Court.

CHAI'H. XIX-XXI]

APPENDIX

29

bursmonlH vpoii ilial, K.sliilc! in paying Dobls & Logacies; & otfiorwaycfH expended l)y liiiu in relation ll)<;r(;vnto And vpon M*"" l'iiig(! vv<! will Tlieii J)eliv(!r vj) all That was eajdain KoaynfiB Tliajt is in our liandH, & will give tlii in lOO' onl ol' naid iJinhurn- mcnts; And if tliiH be not aeeepled Tlien lett all that hear it Judg; what wrong I have Done M''" ]'aigo." ^* As this offer waH not a(:eept(!d, the inrerenet! is lliat the dispute was over the estate ol' JVlr. Lane, not of (Japtain KeayiK;.

Seventeen years' possession from IGd? to 1084 would under ordinary conditions confiriM IIk; title of Cooke and Wiswall. That it was during this period considered beyond rpiestion seems ap- parent from th(! fact that in 1 078 John DowlcKle paid i'i'iO for one i'ourlh of the large farm exclusive; of buildings, and in 1080 ]<]liHha Cooke paid £150 for Wiswall's half of [he small farm.""' But early in 1084 the Colony's charter was known to be in danger/'"' and in the legal confusion which must n(;(;essarily follow its annulment possibly tlu; iiiec(> of .Joseph Ihidley luight win her case. Thus the; most i)iteresting fealuic of Ihe trial of H)84, as disclosed by llu! papers preserved, was the (pioting of the laws of England, ignoring the customs and statutes of the colony, and the allempt to discredit the registry system of Massachusetts, and conipel the f)ro(luction in court of original documents.

During the trial Nicholas Paige tried to keep from the jury all the papers on which the defendants depended to prove the title of Lane, hi the margin of the Sulfolk County Court record it is written that " AV" Htoughton, Joseph Dudley & Peter Bulklcy sat in Court y*" three first days of ]\Liy," 1084,'''^ Joseph Dudley, being the uncle of Mrs. Paige. On May 3, Nathaniel Thomas, attorney to Nicholas Paige, secured in this court two orders ex- cluding the i)a])ers by which the estate of Ca])tain Keayne was placed in I'Alward I^ane's hands in 1G57, and again in IGGO. If these orders were sustained, Lane's title, as it would appear before the court and jury, must depend solely on his position as husband of Anna Keayne. To meet this the attorneys contended that a husbantl could not by Ids sole act alienate his wife's lands, and then denied that Edward Lane bad married Anna Keayne a second time, though for four years, KKJO to lOd.'!, she was

»♦ SulT. Karly Court I'^iloa, No. 'I'lXi. 8oo also supra, p. 12-14, tlu> accounts ])r('S(>nti'd by t'ooke and Wiswall, and by Anna Paip^-.

»" SulV. Deeds, K. "ll, (T. 2(V2, ;?!(). The deeds were recorded promptly. October 2(!, Ki.S."!, Randolph arrived with a writ of ()((() W'anaiilo. 'n November the Deputies and .Assistants disaj^reed as to whether it was best to lii>ht tlie case in tlic English courts. December 14, 1G83, llaudolpli left Uoston for I'^ngland on his return.

Suir. Co. Court Kcc, lOSO to iGS)2, p. 173.

30

HISTORY OF CHELSEA [Chaps. XIX-XXI

|>ul)li(ly rcf^ranlcd as liin wife, and licr two children were recorded ill I he iJosloii (own records as liis cliildron. Jt was claimed that all prool' of a second niiirriage should bo (;xcluded.'"*

Thus at the S(!pt(!niber term of tlie (Jourt of Assistants in KiSI, three appeals lay, — that of Elder Wisvvall and l']lizaheth Cooke against the ruling out of documents at the April term of the County Court, that of Nicholas Paige and his wife from the verdict in the same case and court, and the attaint of the Jury for the verdict at the March term of the Court of Assistants. The latter suit was for the farm at liumney Marsh, the former for the pasture in Boston. In all three appeals the verdict was against Nicholas Paige and his wife. The trials do not seem to have been hurried, — Cooke and Wiswall charged for attendance seven days at the April term of the County Court, and at the September term of the Court of Assistants, six days as defendant and five days as appellant, and in the trial by attaint in the same court, three days.^"

Thus far Wiswall and Cooke had defeated Nicholas and Anna Paige, but a change was impending. The Colony's charter was vacated, and Joseph Dudley was appointed President of New England. May 15, 1686, Sewall wrote: "Gov? Hinkley, Major Richards, Mr. Eussell and Self sent to by Major Dudley to come to Capt. Paige's, where we saw the Exemplification of the Judg- ment against the Charter with the Broad Seal affixed." Five days later Joseph Dudley assumed the office of President.

Apparently Nicholas Paige and his wife thought that Elisha Cooke would be powerless in the courts against the influence of the " President," Joseph Dudley. Consequently, at the first court which met in Suffolk County after Joseph Dudley took his seat as President, they brought an action in a new form, ejectione frrinae, hitherto unknown in the colony, Elisha Cooke asserted. In this suit they prevailed. The case was tried in " his Majesty's Court of Pleas and Sessions of the Peace," held in Boston for Suffolk, July 27, 1686, William Stoughton being the President of the court.*" The case was entitled " Daniel Turel Plant, versus

^ Vol. i. p. 641, note 13: Suflf. Early Court Files, No. 2233, papers on pp. 64 and 65.

^° Supra, pp. 11, 12.

" Stoughton and Dudley were warm friends, and commonly co- operated . . . July 26, 1686, Dudley, with the concurrence of the Coun- cil, placed Stoughton at the head of the courts, where he remained during the Presidency of the former. He was Dudley's chief confidant." Sibley, Harvard Graduates, i., 198. " Trials were by juries, as usual . . . but, as the jurors were returned by the marshal, very different ver-

CiiAi'H. XIX-XXI]

APPENDIX

31

GiloH [)yci- ill I'Jjrrl.loiif; fir/ii/if froiii I wo moBSua<?os or Tonemenls HciiiKilc l.yiii;4' iind Ijciii;^ in Ifniniicy Mar.sli, and one ncrc. of i'uHUirc IjuihI in lioHloii, . . . ('iipl,. Niil liJinicI 'riioiniiH at tfiiinicy to (.'apt. Nicho: and Daino Anna l'aiff(! tlio LitHHo''* of ilic I'hmi. afjpcariiig; and EliHlia (Jookt; in bcliall' of iii'« I'M/." Cooke, I.-" Lewis; John Wiswall Hon'' John WiHWiill .Inn' and .lohn Floyd Tenants in I'osseHHion went adniitled defend'" ..." .Jiid;.niient was ren- dered a(, the adjourned session of llie court, ;\u<(iist ■), KiHG, the jury rel nriiiii^i; a venliel for t lie plainl iff ; I lie did'cndants appealed, givin;^' lionds for two liiiiidred jioiinds. Tlie appeal was tried at tlu! " Court of A|)pcals, (irand Assize and ffcnerall Ooal delivery holden at Boston in y'- coiini,y of Suffolk- . . . Xovenihr Hi.SG." .loseph Dudley was President and W" Slon.ijlilon Hepiily I'resirlenL of tlu: court. 'I'lie verdict of IIk; jury was in coiifiniialioii of the jiiilf^nnent in tiie lower eourt. lOlislia ('ooke et al. appealed " to his iiiajestie in Couneell, which appeale was allowed by the court upon condition, that the said Ai)|)ellants forthwith give hond with sullieicnt sureties to the vallew of one thousand pounds sterling ixnto the said Capt? Nicholas Paige ... to jirosccute tlie s*' Appeale to efect . . . within nine months next conieing, (or such farther tiiiu; as his majeslie shall please to allow) " " At the last session of the (!ouncil before Kir Kdiniiiid Aiidros four days later took his seat therein as (Jovernor, the ii|ipellaiits were called and declined to give the bonds re<|nire(l. 'I'wo days later the iiiarslial put Captain Paige in possession of the farni.''-

(licts were given from what would have beon given under the former luliiiiiiistiiilioii." Ihitcliiiison, Hint, of Ma.s.s. (ed. 1795), i. .315. '.UCi. iSee hIho ibid., i. ; ii. lOIi. Jurors "were now selected by the Marslial and one .JuHtice of the county, ])ricking their nanies upon a list ri'turiie(l to them by the Relectnieu of the several towis." Washburn, .hidicial Hist, of Mass., H(i. ,111110 2, l(iS(i, Nathaniel Page and .John Winelicoinl) were appointed Maislials for Siiirolk County. W. 11. Whitmore, Mass. t'ivil List. <hily 21, .loliii Richards and Siuum Lynde were appointed " to assist in holding county courts for SulVolk." Ibid. The otiier judges at this term of court were .lolin- I'ynchon, Wait Wintlirop, Edward Uandoliih, Richard Wharton, and .lohn llslier. For the jury in this case, and also on the ajipeal, see Sewall, Diary, ii. 47. The judges of the Court of .\p])eals Wi're Dudley, Sloughton, Wharton, Randolpli, W iiithrop, and I'slicr, with Peter Pulkley, Hart, (iedney, and I'^dward Tyng.

Provincial Acts and Resolves, vii. 5()S, 50!). The action of Ejcrtionc finiia- had b(>oome the regular and usual mode of trying possessory titles in Kiigland. Its chief development had however taken ])lac»' siiuv the fouiuliiig of New England, and the simple jurisprudenct^ of tlie colony had rendered unnecessary so comi)lieated and artiticial a form of procedure. Of the legal lictions involved Stearns (Heal .\ctions) remarks that "no client can possibly be nuide to understand these lictions," " 8ufra, p. 8.

32

HISTORY OF ClIIOLSlOA

r Chaps. XIX-XXI

In this case no paiMTH HV.v.m to liavo bw^n prcscrvtid oxccy)t the formal court record, l>iit for tlx; trial in tiio Middlesex County Court the pa])ers are still on (lie. Ah it liaf)pened, torty acres of Captain Keayne's farm lay in Maiden. Jlence after tlie ren- dering of judgment in the lower court of Huilolk County, and before the trial Ity a|)peal, suit was brought for Ihcsc; forty acres in tlie Middlesex (Jounty Court, over which William Stoughton had been appointed judge by President Dudley, July 2G. The trial took place in October, and lasted two days. The verdict was for Captain Paige. An appeal was taken by Cooke to the same November Court of Appeals to which the Suffolk County case had been appealed. With one exception the evidence consisted of copies of documents and depositions filed in the Suffolk County Court.'^

The plea of Nicholas and Anna Paige by their attorney, Nathan- iel Thomas, in 168G as in 1G84, was that she was the sole heir-at- law of Captain Keayne. They placed on fde depositions proving the line of descent. In response Cooke insisted that they had no right to sue, being debarred by the judgment in 1684, after which no action was permissible except by a review of tlie judgment then rendered ; and also by the Statute of Limitations.** Failing on this point, Cooke claimed, as in the earlier suit in 1684, that all of Captain Keayne's estate had been given away by will, so that there was nothing for the heir to inherit; that the estate had been handed over to Mr. Lane on condition that he pay the debts and legacies ; that he had fulfilled this agreement, including the legacy to the plaintiff ; and hence that she had no right to any of the land. Their own title they held by deed under seal from Mr. Lane; but possession alone was sufficient for them as the plaintiff could not prove title.*^ In support of these allegations Cooke filed thirteen papers copied from the earlier court files, his papers being at- tested by Daniel Allen, one of the two clerks of the Suffolk County Court, while Thomas Dudley, the other, attested the documents presented by Mr. Paige. In the answer, Nathan- iel Thomas entirely ignored the evidence introduced to prove that the whole estate had been given away by will and therefore that there was nothing for the heir to inherit, claiming that as no spe- cific piece of land was mentioned in the will, the whole landed estate of Captain Keayne should be adjudged to the heir ; and in answer

^ The papers in this ease are given infra, pp. 44-73. This was the first session of the Middlesex County Court after Joseph Dudley became Presi- dent of the Colony. Infra, p. 46.

*^ Infra, p. 50.

CiiAi'S. XIX XXI I

APPENDIX

to IIk; f»lf!i lliiil, llio cHliilc hcci) sold hy llir; cxocutors to Mr. Liiiic by Ui(! iigr(!(Tr)(!ni of Miirdi, in5!>/(;(), he n-pr-alfd tlif ar^'u- fiK'iilH inadc! in the; trial ol' HiSI for liio oxoliisioii of Llic [taper in (jiicHiion."'

'V\u'. caKc; Llicii l,iir;ic(l oi: vvlicUicr llic litlt; to Captain Kcavn'^'s ■ CHlatc had passed to Edwai'd Ijane, March \2, lOHii/GO. 'I'lial tlifi a^n'cdniciit of tliat (lat(! waH intcmdwi iw a final sct.t Iciiiftnt of llio case, and was af^rccd to by all ])arti<!.s concerned, appeurK clearly Froni llie iiapersoii (ilc. '!V(!nty years before, in ](',iU], imkI a;.''ain in 1()()7, it lia-d been so accepted by llie (ieneral Coiirl, wbicb re- fused to list(!n to l,lie pleas of Anna I'ai^^e, and of ihi' overseers of tlu! will, that it, kIiouM be set aside, 'i'wo years before, in two trials, both carried by a|)peal to the hifrliest court in tlie Colony, Paige's |)li'a, similar to that, now presented, had been re jn lcd. iind the title of Cooke; had been re-alllrnied. At this trial in IG.SI!, as at tliat in 1684, the assertion was made, and ])roof was ]iresenled in its support, that Lant; and liis assignees had hoiia fide, carried out the terms of the agreement, and no evidence was brouglit to show that he or Iris assignees, Cooke and Wiswall, had failed at any point.'"

The evidence of tlie agreement presented in court was a copy attested by Daniel Allen, Clerk of the Suffolk County Court, of a, copy attested by L]d\vard Kawson, a cousin of Jlrs. I'aige and an overseer of Captain Keaync's will, as Secretary of the Colony. The signers then living, Simon Bradstrcet, Thomas ])anforUi, aiul Edward Eawson, testified that they "were p''senl at y'' meeting & debate of the severall particulars, & do (•'"leiidy know y* y*" severall articles therein named were then nintually agreed upon by all partyes conc'ncd, & arc fully saltisfled & confld' y' this Instrum' or writeing is a true coppie of y** orrig- ijiall then signed by our selves, & those others Iherein named." 'J'he only testimony brought to invalidate the transaction was that of Simon Bradstrcet and Edward Rawson to the eU'ecl (hat, ac- cording to the agreement. Lane was to give bonds to carry out its ]M'ovisions as to the payment of debts and legacies, that he never did this, and hence that the transfer of title was never legallv consummated.'" To prove the transfer of title Cooke produced evidence to show that after March 12, 1659/60, Captain John- son, one of the overseers of the will, gave formal delivery of (he ])remises to Lane in the presence of witnesses.'^" The court ruled that the title could not pass except " by a formal & sufli-

Infra, p. 64. " Vol. i. i)p. 048-050; supra, p. 0; infra, p. .""il. " Infra, p. 00. " /)(/'/((, p. 05. »" Infra, p. 01. VOL. n. ---3

34

IIISTOIIY OF CITKI.SKA rCiiAi-H. XIX XXI

f'iont Pood iinrlor Hk; IIjiixIk & Soalos of y'' ponsoiis ko Jtnpow- or'd." Wlicllior llio iillo did ho pass to Lujio Ijy tlio agreciiiont of March M>5'.}/(){), as evidenced by the document presented ill coiirl, was left io ilu! jury hy the Middltwx ('ouniy Court. 'I'lic riiliiio- of the Sull'olk' County Court had loft to tho Suffolk jury no discretion wliatever/'^ Tlie (kflVndantH could nf)t produce the original document in court, and lost their case.

Decemljer 19, 1(187, Lieutenant-Colonel Paige and his wife obtained from the (Jouncil a confirmation of their lands at Jioston and liuraney Marsh. Joseph Dudley's estates were confirnuid on the same day. 'J'wo days later Cooke, Wiswall, and Floyd tendered the following petition:

To his Excellency Edmond Andros K"*^ Captain Generall and GovornoV in Chiefe of his Majesties Territory and Dominion of New-England

The Petition of Elisabeth Cooke Widow, Elisha Cooke, John Wiswall, and John ffloyde. Humbly ShoAveth./.

That yoV Pot!''^ being Informed, That Colonel Nicholas Paige and Anna his wife have made their application unto yo^ Exc^ for a Confirriiation and Patent of their Houseing & Lands scituate within the Township of Boston &c?- Amongst which they have inserted and given in Two Messuages or Tenements with their appur*^^? Lying at Eumney Marish, One in the Occupation of Benjamin IMuzzey Sen?" the other in the Occupation of Isaac Lewis, And One Pasture Close of about one acre Lying in Boston : which s? Two Messuages or Tenements and Pasture Close were late in the Possession of 3^0? Pet^"? and whereto they lay Claim. — YoV Petv® therefore humbly pray yo? Excy? ffavour to Sus- pend a Grant of Patent of the P''misses untill such time as yo? Excy shall please to give opportunity and direct yoV Pet'"? when to waite upon you to Offer and lay before yo!" Ex?y what they have to Say respecting that matter. — And yo? Pet!"^ as in duty bound shall for ever pray &c?- 21? Decembr 1687. Elisha Cooke in behalfe

of his Mother & himselfe. — John Wiswall 27 : 2 : 39 John ffloyd

" Infra, p. 67. °' Supra, p. 8. Vol. i. p. 167,

62 jnfra, p. 66.

" Mass. Archives, cxxvii. 297.

Cha7>s. XIX-XXIl APPENDIX \2',% 7*f^J7S

A |t|iii nil ( I V lliiH |ii'lili'>ii ivsiilN'il III iiol Ii i ii;'. Tli'- Kiirvoy of the riinii of XiclioliiK I'iii^c ill, lfiiiiiii''3' .M;ir,-li, iii;i<li- iii \WH, is Ktill

on file.'''"

It'or nine ycjir.H llicii N'iclioliis find Aniiii I'ai^'f, liaving de- ■J'<!iil('il (iookc, (!njoy(!(l Uicir cstalcs; ijnt Cofjki; would not rest. Kldcr Wiswfill d'icil in 1087, iiiid it) .liinuiirv, Cooke waH Hcnl, l)V llii^ Colonv, ;is one of its w/f\\\-r, lo l'ji;f|an<l. ()(;to- l)(!r ''/lo, lie rcliiriicd lo Mnsloii from l.oiidoii, Inil. owiii^ to

liis dis|iiili' vvilli Aliillicr in i';n;il;iiid, ;iiid hi- opposition to the new (;liarl('r iVoni William ;ind Marv, Ik; li:id ni;iny opponents in New I'hif^'land. 'I'liiis in dune. Hi?);!, liis cli'i-l mn U) the (Council wart n(\L;alivcd hy (iovcriior I'hipps.''' Iliil in 1 lio was rc- clcclcd lo llic Council, ;ind was piTiiiil lc<| lo hike lii.s Hoat. Al)0ut (Ik Kami' liiiM' Ih' seems lo liiive liirned lo llie (;isk of rocovcrint^ tlie riiiiii al, i;ii:imey Marsh. First it was iiccossary to secure a. slandini^' in conrt.

In l(>S I I<]lisha, Cooke and -lohii W'iswiill h;id not oidy heen ol)li<f('d lo (leFcnd their suit ajijainst Nicholas l'ai;^'e and his wife, hul, art in KKK!, Iliey had on hand n suit a<(ainst l>enjamin ^fuzzoy. At Ihe April Icrin of Ihe County ConrI in KiS I tiny recovered against Mu/zey and Joel Jenkins, iwo hundred |)ouiids and costs of court. This heing ihe rorlVilnre oF a hond, it was chauncercd, or reduced, lo one hundred iwenly-si.\ pounds in money (less ten ])ounds ali'cady received) on April KiSo.'''* On June 21, 1()!J4, l']lislia, Cooke secured a writ of s(in' fnchts calling Benjamin ]\Iu/zey of (Cambridge, son and adininislralor of the estate of Benjamin l\Iuzzey deceased, and Ezekiel Jenkins of ^lalden, son and sol(> executor of the will of Joel Jenkins, to ap])ear in court on llie llrst Tuesday in July lo sliow cause v/liy an ex(>- culion should not issue {igainsl Ihem. Al the July court the "I'arties appeared by themselves & AKorneys. ]5enj" i\Iu///:ey y'^ AdmV ])lea(ls he lialh no Instate of Bcnj'.' j\luzzey dec^ in his hand hul one pound nine shillings six pence w?'' he is ready (o pay. The A\'ri(t was read and no other pleas oiTered to prove payment. Tlic Judgemeul was allirnied by the Court."'"* As Muzzey did not

Supra, pp. 15, IC.

" Spwall, Diiiry, i. ;i()7, 378, 370.

]\1SS. live, of Suit. Co. Court, 1080 to 1002, 100, 170. Tlic boml was (la tod July 27, 1()82.

"» ]\1SS. Hoc. of the Inferior Court of Common Pleas, 1002-1608, p. G.». See also tlie aecount presented by Benj. Muzzey to the Probate Court. .Tuly 2, KiO-t, and recorded in L. 13, f. 44(); the inventory presented April 2S, K'Ol, in L. 8, f. 203. IMuzzey and Waite's bond of April. 1004. the delivery of goods to RTu/.zey in the sunnuer of 1G94, and the receipt of £24 from John Floyd discredit this j)lea.

3C

HISTORY OF C'lII^LSKA [Chaps. XIX-XXI

dispute Cooke's claiin, the (|uestion as to the owiier.ship of lh(! farm was not l)roiight hei'on! the courts.

March (5, 1(594/5, Elisha Cooke was nominated hy the Council a judge in tlie Superior Court of Judicature, receiving twenty votes against five scattering,''" and was conllrmed by tiie acting Governor, William Stoughton. On the twenty-fifth of ihe same month, eight months after the confirmation of the judgment against Muzzey, execution was issued for one hundred twenty pounds fifteen shillings and eight pence. ''J'he return of the under sheriff of Michllesex County was that Benjamin Muzzey declared he had no estate of his father in his hands — only five pounds six shillings and six pence."^ No further action was taken in the case for over a year.

Six months later, September 18, 1C05, Cooke took out an attach- ment on the farm at Kumney Marsh and on an acre of land in Boston, and entered the case at the October term of the Inferior Court of Common Pleas. It Avas an action by review of the action of ejeciione firniae by which Nicholas Paige and his wife had obtained possession of the property in 1686. The decision was Tendered at the January court of 1695/6. Elisha Cooke and his associates were nonsuited.''^ Apparently in 1695 Cooke had, according to the laws then in force, no right of review. The act establishing the courts, which was passed in 1692 under the pro- visions of the new charter, permitted a review immediately after judgment, and the supplementary act of Oct. 22, 1694, modi- fying this, permitted a review within eighteen months of the ren- dering of judgment and no later. Furthermore an act passed in December, 1693, permitted judgments rendered in County courts since the year 1686, and before the passage of the act of November, 1692, to be reviewed at any time before December, 1694, but not later.*^^ On the other hand, the act of October 14, 1692, stating that qi;iet possession from October 1, 1692, to October 1, 1695, would give confirmation of title, would have barred all possibility

Sewall, Diary, i. 301.

Suff. Early Court Files, Nos. 3385, 4109. This balance on hand differs from that given above ; it is copied from the writ of November 9, 1696.

The plea of Nicholas Paige, signed by his attorneys, and the answer of Elisha Cooke arc given supra, p. 9. The decree of court is in M'SS. Rec. of Suflf. Co. Court of Common Pleas, 1692-l(i98, pp. 121, 122. The judges present were Elisha Hutchinson, John Foster, Isaac Addington, and Peter Sargeant.

The act of 1694 and of December 11, 1693, were not disallowed until December 10, 1696. The act of November 2o, 1692, to which both the preceding acts were supplementary, was disallowed August 22, 1695,

C'liAi'.s. XIX-XXI]

APPENDIX

of I'liliin; rcc'jvcry iiiiIokh (-'oola; lofjk iicl.ion heforc tliat time."* Jlciicc, proljably, HiiiL wiih bi'ijiiglil, as alrcaily (liT:(,Til)(;(i.

HuviDg b(;en noiiHiiiled, i'jIiHlia (jooko, John WiKwall, and .John

liiiL tl](^ lcLt(;r I'loiii Uic I'rivy Coiincil l,o t.li<! ;,'ov<Tii()r conveying this iiil(l)i{(cii(:c was dated Duciunbi-r 20, JOitr), and Iicik.v could not liavc icacluid Aiiiorica till alter the trial had ended. I'rovineial AcIh and Ile.solve.s, i. 72, 7.'), 10!), 110, 14:t, 1H4, IH",. Klirtha Cooke, in 1702, Haid that ii(!\vH of th(! (liHullowHiHU! of the Aet of (Jctoher 14, 1002, alwo of (hito AiifTUMt 22, ](i!)5, reached Anieriea after the trial. The atUjrncya of NieholiiH and Anna I'ai/^e quoted tiie " I'rovinee Law Entitled an act for lOHtaldiHliiiig ('oiirt.4 of Judicature &e. j)age 41 " as a bar to the aetion of review. The Hupidenientiiry act of JJ<;cen)l)er 11, KiiV-i, is found on i)ng(! 41 of the edition of the l'n>\ince Law.s in lOIM. It recit<;il that whereas in tiie aet of H!!)2 for estnldiHliin;^ .ludiciitories and Courts of duHtico, the provision as to " rcwiews and writs of error, doth only ex- ti'ud to the courts estahlished hy said act, and no provision is thereby niad(! for iiny tryals heretofore had in the county courts in the lute distinct colonies now united within this province, which arc now dis- solved: and 'whcrcuH, for want of due provision and remedy therein, great damage <md injury may occur to some of their majesties' good subjects within this ])rovince, for redress whereof, and that no defect or want of justice may in any manner happen or therefore it was

enacted " Tiiat when any tryal, judgment, sentence or decn^e has been had, given or made in any of tlu; county courts witiiin the late colonies of the Massachusetts or I'limouth, or province of Main, of what nature, kind or quality soever, the same have been there tryed, liad, given or made, since the year of our Lord one thousand six hundred eighty and six, and no review or appeal thereupon heretofore had and prosecuted, it shall and may be in the liberty of either party (])lantill' or defendant), agrieved, within the spaee of twelve months next after the date of this present act, and not afterwards, to bring liia or their action of review to the inforionr court of common i)Ieas to be held for tlie same county where the action was first tryed," etc. The time for bringing suit nndcr this act had ended in December, 1094. It might be (juestioned whether this would apply liter- ally to tlie case of Elisha Cooke, as the judgment against him was ren- dered during, not since, the year 1(!8(), aiid he had jirosrcuted an appeal in l()8(i. It is doubtful then if he could have claimed a right of review un<ler a literal interpretation of the act. But it is evident that it was intended to permit a retrial of cnses decided during the inter-charter period. Thus Ilia jilea for a hearing before the courts would have been stronger in 1094 than in 1095, in spiril if not in letter. To assume that he had a right of rcvi(>w in 1(595 would mean that judgments rendered before the beginning of the year 1087 might be reviewed, whil(> for judgments rendered later such review was forbidden. Moreover the preand)le of the act of December 11, 1093, as quoted above, assumed that a review of earlier judgments was not an existing right, but a privilege that could be enjoyed only by special grant, as by that aet.

The act of October 14, l(i9'2. was disnllowed in .\ug\ist. I(i95. In October, 1(!97, another act was passed requiring undisputed possession from October 1, 1092, until October 1, 1704, to eonfnni title. Prov. Acts and Resolves, i. 41, 299.

•38

HI STORY OF CHELSEA

[Chaps. XIX-XXI

Flo3'(l petitioned the Ueneral Court convened ut iioston, May 27, KIIXI. Sevenil of the Justices of the County Court having de- clared Ihiit "by y'' Lawes of this Province all such Actions are burred," tiiey asked to be relieved in the prejnises, and enabled to review. 'I'iie petition was read and agreed to by tlie Council on June ]('), and by the House of Jiepresentatives the day following, but it did not receive the approval of the Lieutenant (Jovernor necessary to its becoming a law.""' As William Stougliton, tlie acting Covernor, had been a member of the lower court, which. May 3, 1G84, ruled out the principal documents on whicli Cooke and his associates depended to defend their suit, and as lie had been president also of the courts before which the actions of cjec- tione firmae in both the Suffolk and Middlesex County Courts had been brought by Nicholas Paige in 1G86, he naturally hesitated to sign the bill, especially as the higher Court of Judicature in IGiJG consisted of Stoughton, Danforth, Winthrop, Sewall, and Cooke.

r,5 jjj Provincial Acts and Resolves, vii. 117, the vote in answer to the petition of Elislia Cooke has been printed as chap. xxvi. of the laws of that session; but on p. 507 the editor adds in a note: "It is not certain that the vote whieli constitutes this chapter received the approval of the Lieutenant-Governor, which was indispensable to its becoming a law. In the petition to the General Court in 1701, which is hereinafter printed in full, the petitioners declare that this ' bill ' was ' never perfected,' — a declaration which would scarcely have passed uncontradicted if it were not true. Still, since tlie vote remaining in the archives has all the charac- teristics common to perfected votes and resolves, and was, moreover, re- corded by the Secretary as having been passed, it has been deemed proper to include it here and to leave the question of its validity to be determined by other inquirers." The latter statement is based on the assumption that nothing was copied into the book of records of the General Court, from which this is drawn, that did not become a law. An examination of the book in question shows that this statement is not justified by the record. On the preceding day, June 15, two bills were entered which certainly did not become laws, as after each it is recorded that they were " read in Council, and Voted, a non concurrance." Examples could be multiplied to show that the book contains the daily legislative action of the Council, and is not solely a record of laws enacted. Six measures were voted by the Council on June 16 and seven on June 17. To twelve of these was appended the phrase " I consent, Wm Stoughton " or its equivalent. The vote on the petition of Cooke, Wiswall, and Floyd was the only vote to which this con- sent was not appended. The vote on this petition passed the Council on June 10, and was recorded under that date. According to the entry on the petition as preserved in tlie Archives, it was read twice in the House of Delegates on June IC, but was not passed by the lower house until June 17. On the same day the Lieutenant-Governor adjourned the Court until the September following. Tliere is no evidence to show that he gave his assent to the measure. See MSS. Records of the General Court, 1089-1098, p. 408; Mass. Archives, xvi. 519.

CUAI'H. XIX-XXI]

APPKNDIX

39

Thus, iillhoiij^Ht hoLli liouKCH voli'd in I'avor of fp-anting tho ])<tl'\- •tioii, LIk; (ic.nc.ydl (/'oiirL wmh uiljounicd on .June 17, uilliout tho

gOVCI'MOr'B Hif^'JIililll'f Ji;ivili;r liCCIl (jMililKMl.

At, LIk; Jnl'erior Conri of (Jonimon PJoas which met at Boston (ir«L 'I'noHdiiv of .inly, (Jooko obtiiiiicfJ an alias cxofMitioii agaiii.st Mu7M'y on Uie Jud/ffnont rcndorcd two yoare lj(;forf', Uio writ to Ijo j'ol.iirii(!(l lo I.Ik! (JoMi'L vvliicli Hhoiild nictl on (lio first 'l'wn(\;\y of Juniinry, l()!)(»/7. 'I'lu! writ wuh diilcd Novcjinljor '.), lOIKi, and llio return of llu^ iindcr-shcri (f, .lolin W'liilc, d;it(!(l Novemhor 11, stated that licnjiiniiii Mu/zcy liacJ Ix'cn lod<f(id in the priHf)n at Cani- l)ri(l;r(;. Nolhing further appears oji the record of tlie Suffolk County (Jourt. VVhaiever the Hettl(!inent nifiy have been, it did not appanwilly involv(! (puiHtioTiing the title of Nicholas I'aige and his wile lo the farm."" Nor was any suit brought for this purpose

"" Snir. Knrly Court J^'ilcH, No. .S.Sfi.^; alwo No. 410!). MSS. Rec. of Uic. ('ourt of Coininon i'loiiH for Sull'. Co., l(i!)2-l(i!)H, ]>. 147. On NovcmIxT 11, .Toliii Wii,it(! its uiKlcrslicrilV rcporU-d that h(\ lind plnccd lii'iijiiiniii .Mii/.zcy in tlio giiol in ('anihridf^c-; and acoordin^^ to the writ tho trial of the ca.se waH to come before tlu! court which met on the first Tuesday of the follow- ing .lanuary. ]{y writ dated .January 11, l(i!)0/7, a suit was inHtituted hy M\\7M'y against .lohn Waite. 'J'lio inventory of the estate of Benjamiti Mu/M'y, Sr., filed at the Sullolk Probate Ollicc A])ril 28, 1(101 ( L. 8, f.'2()3), on which I'enjamin Mu/./.ey based his assertion tliat he had on hand of his father's estate only one i)ound nine shillings six jience, did not represent the whole of the estate owned by the fatlier at the time of his death. Two other inventories were drawn in May and .July, KiOl, and an agreement enlenul into by the lieirs in the latter month. The reason for this as stated in the agreement was that the real estate, and tlie greater |)roporti()n of tile personal ])roperty wore "conveyed to one of ye abousd Cliilidren before his death, wiiieli was to ye dissattesfaelion of ye rest of tlie s<l t'liildren." According to tliis agreement Alice, tiie widow, was to have one third of tho movables, also one (iiird of tli(> iiomeslead and one half of tiie house for life. Of tiie remainder, IJen janiin Mu/.zey, as tlie (ddcst son, was to have a double ]u)rtion, and lliciiard Mu/.zey and "John Waite who Maryed with Kary Muzzey " were to have single portions. Beiij. Muzzey was to receive liis portion in movables, and .loiin Waite his in land, these amounting respectively (o £8,') !),s- 4d and £42 14,9 M. It was added tliat if the in- ventoried estate iiiesented to tlie court was not sullieient to ])ay the debts of tho deceased " so but yt the sd Admr be sued and putt to Ciiarge tliereby that then tiie rest of ye s<1 Cliildren shall bare their I'/quall i)arts of sd Charge." On April 2(!, 1(!!)4, Waite gave bonds of £1()0 to Heiij. Muzzey to pay Richard Muzzey £(10 (i,s- within n year, or to set olT to him so nuich of the lands of nenjaniin Muzzey, deceased, na that sum represented, and also to d(>liver to l^enjaniin Muzzey certain livestock, all the movable estate of Renj. ISfiizzey deceased in iiis hands, and an order on Cajit. .Tohn Floyd for £24 in money. Tiiis was the bond on wiiicli Muzzey brought suit in .lanuary, l(!0()/7, Richard Muzzey assigning liis right to I'cnianiin Muz- zey on .Tanuary 12. Tlie attnciiment was levied on " one dwelling iunise an<l the land it stands one and about six accres of Sallt madow and upland,"

40

HISTORY OF CllEJ.HEA [Chaps. XIX-XXl

by Elislia Cooke until after the death of Aeting-(jovernor Stough- ton (July 7, 1701). Thereafter tlie Council, of wliieh Eiisiia Cooke was a member, stood in the Governor's place. Stoughton's death also left a vacancy on the bench. This was filled August 1, 17'01, by advancing Wait Winthrop to the Chief Justiceship and appointing John Sallin to fill the vacancy. Three months later, in November, Cooke brought a suit " on review of a plea of tres- pass and ejectment " in this court of which, as has been said, he was himself a member, but was defeated. 8ewall, also a mem- ber of the court, writes under date of November 19, 1701 : " The Court gave Sentence that the Law for Eeviews bars Mr. Cooke &c.

which Muzzey pointed out to the sheriff in Ruiriney Marsh. This descrip- tion tallies with the number of acres taxed to Benj. Muzzey, Sr., and later to Widow Muzzey and John Waite. Joseph Hasey and James Convers were witnesses to both the agreement and the bond, and James Convers testified to tliem in the Superior Court at Charlestown on January 27, 1090/7. It was also testified on January 27 that Benj. Muzzey had received in the summer of 1094 the livestock and the household goods; Muzzey himself acknowledged receipt of the stock and the payment of £24 from Floyd. Possibly a rumor of this agreement of April, 1094, led to the first proceed- ings of Cooke vs. Muzzey in June of the same year. At the Charlestown Court on the last Tuesday of January, Muzzey recovered judgment for £00 6s and costs. The writ issvied to the sheriff of Sufl'olk County Feb- ruary 2, 1090/7, returnable to the Superior Court of Judicature at Cam- bridge in July, was returned July 2, 1G97, with the endorsement that he could find neither estate nor person of John Waite to satisfy the execution. Thereupon another writ of execution was addressed to the sheriff of Mid- dlesex County on September 21, 1097, returnable on the last Tuesday in January next following. This execution was levied on land belonging to John W^aite, Sr., in Maiden. In connection with the return of the Suffolk sheriff', that he found no estate of John Waite, the following deed is of interest. On October 1, 1097, Benjamin and Sarah Muzzey of Cambridge conveyed to Colonel Nicholas Paige for £60 thirty acres, " formerly be- longing to Benjamin Muzzey Senr Deed," consisting in orchard plowland, woodland and salt marsh at " Rumly Marsh." On July 10, 1699, Nicholas and Anna Paige convej'ed title to this same piece of land, for £80, to John Waite. The first deed was recorded November 3, 1097, and the second was acknowledged August 20, 1702, and recorded July 1, 1721. Apparently Benjamin Muzzey was compelled to satisfy the execution obtained against him, by Cooke, and therefore enforced against Richard INIuzzey and John Waite the terms of the agreement of 1091, wherein provision was made for such an emergency. Evidently a good understanding was maintained between Nicholas and Anna Paige and the family of Benjamin Muzzey. The title to the Paige farm did not become involved in this suit. The difficulties between Muzzey and Waite did not end in 1097. December 19, 1099, Muzzey gave Waite a release from all claims or demands whatso- ever, but in 170,3, sued him again on a bond dated December 20, 1099. See SuflF. Early Court Files, Nos. 3614, 5628, 5831, 2018; SulT. Deeds, L. 14, f. 443; L. 35, f. 103; Chamberlain MSS., iv. 31; supra, vol. i. p. 279.

Chaps. XfX-XXFl

AIM'KXDIX

41

llioir Action iif^aiiiHi (>)1. Mr. S;ifliri w!:s of lliiit opinion

also." "

'I'lu' liiw of IIk; case would Hccni to Ikivc Ix'cii as IoIIowk: — 'I'lic iirat two actH for csljildiHliinii: llic ,Jii(iiciarv and rc;.ndatiti;r [tro- coduro in tlu; coiirtH had hoili liccn disallowcil by tlx; King in Council, 'riic firs! |iiTMiillcd a review iiiiiin'diately al'tor jlidg- inenl, and llie other within eighteen months. In 109!J tho Act for IJegulating and Directing tho J'roeeedings in tiie (.'onrts of diislice, elc., [M'ovided that ifi "all cases wherein lli" pjainliU' or (lerendani, shall have ohiaincd llic niiinher of tliivc judgments, it shall he n (inal issue and delenrnnal ion of such case; and every nction of review shall he hrought within the space of three years." Tho Lords of Trade ohjected to (his feature as " delatory and vexatious," and it was theroforo disallowed Oetohor 22, 1700. In Juno, 1701, (he "Act for liovicw in Civil Causes" was passed.'"* Tho molive fer (he law, as stated in llie preanilili', was to permit to every one a trial hy review, on the ground that IIh; ])arties inter- ested might for this trial ohtain now evidence which (hey could not secure in so short a tiuu! as was allowed hy law for a (rial i)y appeal. This right to review was limited hy the following clause: " provided no action of review shall he hrought after tho expiralion of three years from the time of rendring tho judgement to ho reviewed; saving unto any infant, feme corerl. or person ikjii com- pos mentis, imprisoned, in captivity, or out of (his province, the term of three ye<irs. next after their coining of full ag(! or such iniporfection removed, to hring his or her action of review, and not afterward." Ilio plea of l^lisha Cooke et al. has not hoon found; hut on failing to ohtain a hearing hofore the courts, (hey petitioned the General Court and this petition is still on (ile.'''' In it tliey assumed (hat tho act of 1701 limited a right of review already existing, and hence the inter])re(ation of (ho courts made it an ex post facto law cutting them o(F from an existing right. This theory presumahly rested on the fact that at the date of passage of the act of June, 1701, there was no statute in force regulating the right of review, as the last of tho series of five s(atu(es'" dealing with

Sownll, ninvy, ii. 47. Sre Provineinl Acta ami Rcsdlvos, vii. .500. From tlic pctilion of Elialia Cooko to tlic ncncnil Court in Fcliruary. 1701/2, it would R])])car that Cooko brought suit in tho courts shortly nftor the act of 1()!)U {svpni, noto (it) had boon disallowed by tho Kinsr. In ])oint of fact ho brouii'ht snit noarly fivo yoars aftor that act had boon disallowed, and fotn- months aftor Lieutenant -Covornor Slonfjliton diod.

«8 Provincial Acts and Kosohos, i. ;17.'!. 37r), 4(!(), 4()7.

"° 'riio ))o(i(ion is ])rintod in Provincial Acts and Kosolvoa. vii. .")0i>. .")10.

" Act of Novond)or 2.'), 1()!)2, disallowed August 22. lOO.'. ; a<'t of October 22, l(i94, supplementary thereto, disallowed Deconiber 10, lOOG; act of

42

HIS'I'ORY OK CIIKI.SKA [CirAi's. XIX-XXI

thiH matter had boon disallowed Octoljcr 22, 1700; and on iln: assiiinplioii Uial, as no slniiiic was in I'orcc in June, 1701, for- liiddiii^- llic coni'ls lo ciih'i'hiin a suit by review, a ri^lil, lo revi(!W existed, and was liniil(,'d only by the provision in llir; aei of Oelolx-r ;50, 1(597, providing that quiet possession IVoni October 1, li)'.)2, to October ], 1704, should give eonfirrnation of title."' 'i'lH: (piestion is whether tlie aet of June, 1701, instituted a right to review or limited it. 'i'he wording of the preambles of the acts of Decem- ber 11, 1G9.'5, and June 18, 1701, seems to sliow that the legislators thought the former the ease.

The petition of " Elisha Cooke, John Wisewall, Sarah and Hugh Floyd Administrators ot John Floyd" to tlie General Court that they might " not be forever out Lawed " but that they might " have Beliefl in the premisses " and " be enabled to IJeview the s'' J udgments," was read in the Council for the first time February 26, 1701/2. The succeeding day it was read a second time, and the Council voted that the petition be granted and a private bill brought in for the relief of the petitioners. Sewall and four others moved that Colonel Paige should be notified. Cooke, Sewall records, February 28, " seemed displeased," and " said 't was to de- lay his Business : was sorry I was so far engag'd in it." So Sewall stayed from the Council on February 28, when Colonel Paige ap- peared. As he offered " nothing against what was Prayed for . . . only that he had been informed that Something had been sent from England relating to the Passing of Acts, a Bill was brought in," and read, but referred to the next sitting of the General Court.''^

The cause of Cooke's displeasure with Sewall is not far to seek. Sewall was, as has been said, a member of the Court which had decided the previous November that the Act for Review barred the action, and before which suit would be brought if this impediment

October 3, 169G (temporary), disallowed Noveinber 24, 1698; act of June 19, 1G97, disallowed November 24, 1698; act of July 18, 1699, disallowed October 22, 1700. Provincial Acts and Eesolves, i. 72, 184, 248, 283, 372, 375, 466.

" From the petition of Cooke, Wiswall, and Floyd, it would appear that this act was permissive, granting " libertie to all men to bring their Actions for recovering their Right in Lands at any time before the first day of October, 1704." On the contrary the act, as its title implies, was one of limitation solely, and was not operative until October 1, 1704.

Supra, pp. 17-19. November 3, 1705, the House of Representatives passed the following: "Resolved that as an Explanation of the said Law [the Act of Review], each Party (Plaintiff or Defendant) that hath not bad a Review in each Court, may review in Each of said Courts once and no more." The Council disagreed November 6, 1705. MSS. Rec. of the General Court, p. 164.

CUAI'H. XIX XXI]

APPENDIX

WiiH rcjiiovcil hy I he (Jcncnil Coiirl. I'llisliii Cookf; w(iH obvioiiKly in liiiHl,(! lo [jrcKH liiH Kiiil. In I(;hs than four niontliH Jowpli JJu(ll(7 ari'iv '(I iiH (ir)V(-ri:or, ainl it, was already cxpccUMj that lio would receive Ihe a |i|»oi ii I men I . ' ■ 'I'lins when Ihe hill was post- j)f)ned l.o Ihe ne.\l, Millin;^; of Ihe ('oni't, if was ))i'ael iea I ly dlKpOHcd of. .(line Id, il, was reail Iwici' in ('i)iiiieil; nothin;/ iijorc is heard of il. .Juno J 1, .ioH(!|)h Hiidley Icjok his seat as (lovenior. Shortly aJ'ler iliis, .June 2'.), (lie Superior Court of .Judicature was rc- OJ'ganized. (iooki; was dro|)|ied, as uas also W'inl !ii-o|j.''' and t he appointee as (lliieT .Justice was Isaac Addiii;^ton.' ' In llO.'i, also, (Jovernor Dudley expiiiif^cd ('ook(!'s nanio from the ('ouneil list.

negatived hin again in J7()l, I70(;, and IIOS; nor did (,'ooke again ohtain a scat in tlio Council until I 7 1.""), lie died in (Jctohcr of the same year, aged seventy eight. After therefore. Colonel Paige and his wife had undisputed pos.sc'Ssion of the farm.

(!ookc, however, it would appear, did not relincjuisli fur many years all ho|)e of its recovery. On .July 7, 1701, a week after the death of Mrs. Paige, John and Ihimiah Wiswall, as compensation for a deht of one hundred and eighty-six pounds, (|ui1-claiined to (^ooke their right to one fourth of the great farm, agreeing that they would " permit and SiiiVer the said lOlisha Cooke his heirs and Assigncs to make use of his or their Names in anv Action or Suit to ho hrought for the IJccovery ol' and As( li tainiiiL:: the right, of the said .Tohn Wiswall and Hannah his said Wife" to the lands in (jucstion, and that they would "alwaycs Avow Such Actions or Suits so hrought and never Disavow or hecorac Nonsuit therein."" Hut as the title to hoth ihe farms at Ifumney l\Iarsh had heen transferred hy the deeds of Fehruary 10. 1702/.3, and Fchniary 10, 170;i/l,'to .Joseph Dudley,'*' " Govcrum- „r the Provinc(> froui 170"i to 171.^), recovery by process of law would throughout (his period obviously have been hopeless.

'■' SowmII liiul noted in S('|il cinlicr of (lie |ir('cc(liii<; y<>;ir (liat it was ro|ioil('(l tliiit ('()ol<(> iuul VT'ait W'iiit Ino]) lijul written Sir llenrv Aslmrsl in opposition to tlie a])])ointnieiit of Dudley. Diary, ii. 41.

'* A(ldinfj;ton was one of tlie i)all bearers at the funeral of Mrs. Anna Paifie in 1704. Sewall, Diary, ii. 111.

" SiUr. Deeds, L. 'i,'), f. 'it)!). Tlie deed was recorded March 2. ITlU/ll.

" Ibid., L. 21, f. 410; L. 31, f. 53.

44

HlSTOIiY OK ClIKLSKA [(^hai-h. XIX XXI

I'Aioio vs (JooKH a I, al.

County Court, Oct'.' IfiSG "

Hummons lo .In," liurral

L'icliiird l.'oo ( 'oinpliiincs of John iJoe of a plea of 'i'mspass & ]<]jccliiicnl for that That Ih to say Tliat wheras Cap' Nichohis Paigo & Daiiic Anna Paige his wife the fir8t day of May in tlie second yeare of the Keigne of our souereiga Lord Jain(!K tlie second King of England Scotland france & Ireland &c at (Jani- hridgo in the County of Middlesex in the Territory of New England had Demised granted & to farme letten vnto the s<J Eichard IJoe a Certaine Messuage or Tenement, a parsell of wood-

" This file of papers preserved in tlie Middlesex County Court House seoiiis complete. The bill of costs of Nicholas Paifje shows that no papers presented by him are missing. " The DefTendts Pleas for ye abatemt of ye writt " are in the handwriting of Elisha Cooke. All the papers which sup- port Cooke's contentions are in the same handwriting, and are attested by Daniel iillin, the attestation being in a different hand from the body of the document. The Declaration of Title of Captain Paige is signed by his at- torney Nathaniel Thomas. The papers charged on the bill of costs of Nicho- las Paige are in the same handwriting, and are attested by Thomas Dudley, the attestation being in a different hand from the body of the document. June 2, 1G8G, Allin and Dudley were appointed clerks of the Suffolk County Court by Joseph Dudley, temporary President of the Colony. The " Sum- mons to Jno Burrell," judging by the handwriting, was drawn by Nathaniel Thomas, and signed in a different hand by Laurence Hammond, clerk of the Middlesex County Court, and endorsed in a still different hand by John Greene, marshal. The first " Rule of Court " was drawn by Nathaniel Thomas, and bears the signatures of I^aurence Hammond, Elisha Cooke, and John Burrell. The " Court's Resolve in point of Law," signed by Ham- mond, seems to be wholly in his hand. As the action of ejecUone firmae was until then unknown to the courts of Massachusetts, Hammond had to depend upon Tliomas apparently to draw the court documents.

The following documents are omitted because they are printed elsewhere. (1) " Certaine Clauses & passages out of ye Record of Capt Keaynes will." These cover four folio pages, and are in tlie handwriting of Elisha Cooke with two attestations by Daniel Allin. The will is printed in Boston Rec. Com. Rep., x. 1-54. (2) Articles of Agreement between Anna Keayne, widow, and Edward Lane, November 28, 1G57, printed in Suft'. Deeds, L. 3, f. 77. (3) Conveyance from Edward Lane to Thomas Brattle and Robert Gibbs in trust for Anna Keayne Lane, December 2, 1663, in Suff. Deeds, L. 4, f. 167. (4) Conveyance from Lane to Cooke and Wiswall, December 14, 1663, in Suff. Deeds, L. 4, f. 191. (5) Vote of the General Court, October 10, 1666. These documents, except the attestations by Daniel Allin, are in the handwriting, apparently, of Elisha Cooke. Although the land sued for lay in Maiden, it was contiguous with the farm-lands in Rumney Marsh. See the plan, supra, vol. i. p. C35.

" This is the endorsement on the writ. Possibly he was later, as John Burrell of Lynn, Speaker of the House of Deputies.

CiiAi'H. X7X~XXI1

APPENDIX

45

liitnl iirnihlc I'iiHliir*; liind in iilioiil, forl.y (ktch witli tlifi apjiiirLciiticcs SiLiii;il,(; lyiii;^ &. Iiciii^ in (Ijc TowfiKliii) of Miiiildon ill IIk; (y'ouiity ul'oniH'' To liiuit! & 'I'o hold lln' 'l'(;n(;riU'ii(K arorcHc] wilJi IIk! ii|)|)iirL(;n!U)(:(;H viilo I lie k'' Ififlni r'l Ifoe & liiw iiHwi/i^iK'K — from ilio /iuo!& twcnlicUi day of Miircli last jjjist Coirionly cjillod ludy day vniill tlie end & tornic of llinio years ihonce next follow- ing fully to 1)0 (Jornplcai & oridcd by vorliio of wliicli h'' I)cnii8C the h'' Kicliard lUnt into IIk! 'i'ciK.'iii^ al'orcs'' willi tlicrc apinirle- naiKtos Entred & was thereof PosHessed vntill the s*^ John Doe aft^;r- wurds that is to say the same first day of may in the yoarc of the King aforesd with foree & Amies into the 'I'cnements aforesd with tlio a|)purt('nanceH in & vpon the; Possession of tlu! sd IJiciiard Vkxw ciitrcd & him from his s'' farme In's 'i'crmc thereof afores'' not yet linishcd did Inject exspcll & amouc & him Ihc s** Kichard l{o(! from liis J'osscsion thereof haih held out & other Rnorinitve io liim tlien & there did against the; of our s'' lord (he King

tliat now is & to the damage of th(! al'on's'' K'ichard line Icii jiound.s sterling & thereof lie bringeth sute.

To M"- John Burrell

You may p'ceiue by the wilhin written deelaraiion tliat J am ened for the Messuage or Tenement within mentioned to which J (lame noo title & whereof you are in Possesion These arc tluirfore to giue you Notis tliat you ajipear or they vnder whom yon Clame at the next Court of Pleas to be held at Cambridge for the County of Middlesex on the first teusday in October next then & there to defend your title (if any you haiie to (he p''niises) otherwise J shall suH'er Judgment to he enlred against me by Default & thereby you will be turned out of Possession. Dated September Your Ifrend John Doe

I'Jtii im} —

To the T\rnrshall of the County of :\Iiddlesex or his Deputy Creeling. These are in his Majesties name to require you on IJeceit hereof to sunions the ahous^ John Burrell to make his aitpearance at the next C\)urt of Pleas to be held at Cambridge for the County of ]\liddlesex on the first teusday of October next then iV' there to defend his tille io the Messuage or tenement aforesd Jf anv he hath there vnto & hereof you are not to faile & make true Keturu vnder your hand to Ihe s'' (\>urt

Dated in Charleslowiie in the By Tiaur. llaiinnond Cler g^^^j Territory of New ]*]ngland of the Court for (he County September y^" Eiglidi Anno of MiddL?x Dom. IGSG

4G

TIISTOIIY OF CTIF.I.SKA \Cu\vh. XIX-XXI

Theso nro lo oortific that J Jolin (irvxm IVIaT.slKill of Mi(l(]l(;,sox (lid rciul llic iihovc SiiinrnoriH unto ilu; wil'(! ol' iiljovc barrel ol Miiidcn, ill, his iioiiKo & left a <;0|)|)y iljdrciof wiili his wife —

Dated 10'.'' Sept. lO^f' ; -Joliri (immi Marslial of Middlesex.

Tire Dcffrnd'" Pleas for 1/' ahatem'' of y" ivriLL

■ 1. Tliis C!asn lialli had a full hearing & this land with ye rest of farme sued for at ye County Court at Boston, thence ap- pealed to ye Court of Assist*^ & after yt an Attaint, & was finally determined for ye Deff*? yet now is an action brought anew without mention of any former tryal; it is therfore humbly offered to ye Court to consider whither it ought not to have been by a Review or writt of error, or some way in- timating ye former tryal : for [if] what is tryed. & determined at one Court may again be tryed at ye next, it may as well run ad infinitu, & so would ye Law pvide for ppetual contentio, which is not rational to imagine

2. The method & proceedings at law in this Actio ye Jnhabitants here are generally ignorant of & know not how or what to plead in this way, or what ye consequences in Law of advan- tage or disadvantage may be; it is therfore humbly offered to ye Court to consider whither these methods & proceedings are agreable with ye p''sent state & conditio of his Maj''?^ Sub- jects here & ye circumstances of this place.

But if ye Court judge yt notwithstanding what is sayd to answere further, we say —

'3. That this Actio of an Ejectione firmae is not due in law to ye Demandant.

For ye Bookes say yt he canot bring this action yt hath not made a good Entry into ye land, & he cannot make a good entry yt hath no Power & Eight of Entry at ye time of ye making of ye lease. Now to prove yt ye Demand! hath no Eight of entry see Stat. 21. Jac. 10. under ye title Limitatio in ye Abridgm^s which sayth, ji none shall herafter enter into any lands &c. but within 20. yeares next after his or their right first accruing, if ther be no Jmpediment of Jnfancy, coverture or being beyond sea; & if so y"^ within 10. yeares after y* Jmpedimt is removed : Now its aboue 30. yeares since ye death of Cap* Keayne, fro whose death she p''tends her right to accrue ; its also aboue 21. yeares since y® death of her husband Mr Lane, wherby ye coverture was removed; & aboue 20. year's since her arrival here fro beyond sea; so yt by this Statute she is for ever barred of entry. —

C;iAi-H. XIX- XXI I

APPENDIX

47

4. Tliiil, H'l IjiiiKi ;iliciiiilc(| ye IiiikI Hiicd for lo Kiclianl C'ooKf; & .iolin VViHwull Sen'' \>y Dcfil <l:it<'<l .):iii'y II. Hi';:i wliicli h'1 (!()okc |)0,SH(!HH(!d 10. yi'iiH'.s it _y" dyed Hi;ix,f'd in J Jecoiiil)!' H'>7.'{ & we liiiuo liiid posKcssin aboue 12. ycarcs Hincc liin diMlli, '> of yo w'-'' fii'Ht 10. ycan.'H without ciifry is Kiiilicicnt lo liarr her nl'Uir cnLry iiilo ye h'-' Ijniid iieeordin^' lo ye Stat. II. H. Kce y*' (ilaliile iimli'i- lille l-jilry i;;iurnll in yc Al>rid<riii^

upon wliicli ye ljavv\ers ,say ,11' a I'enie covert he. dis.seiKcd

lier luiHhand dye, hIk; tak'(;H another husband, & yri Itel'ore entry yo disHCMHor dye; seiscfd ; in this ease yc, entry of y<! wife is taken away, see Co. on Lit. p 2:17. & 2 \('). & Shepards .Mirirj^^nn! part 2. 13. — dVoin all wliieli it is plaine yl yi' I )ciii;indant hath no l?if;lit of ]']nli'y i!v tlierfore canot haue Ihis Aelion of lOjec- tione ilrniae; wherforo wo pray an abatement of ye wrilt.

Rule of Coiirl.

At tlio Court of IMeas llolden in Cainbrid;^ for tlic (!ounty of Middlesex October ](W(\

John Doe vei'sus Kicbnrd ifoe in l<]jeclioni' Finnae from one mosiiagc or ^renemeiil scittuale lyin<^ and liciiiu in Manldcn in tlie County of Middlesex

Jt is ordered with tlio (^onsent of Nalhaiiil 'i'liomas Allurney to (la])* Nicholas & Anna i*aig(! (of Jioston in the Counly of Suifolk) IMaiiililfs & l-^lisba Cook-o (of Boston in the County of Suffolk) for hiniseir X- John Burrell of ]\Iaul<lcn in the County of Midlesex aforesd for that the s^^ Elislia Cooke iV ,lohn Bur- rell arc allowed Defendants who arc without delay to ajijiear & Plead by theniselues or atturnoy to a general! Jssue | in | (his Court and at the triall tlu-revpon to be made the s"? Cooke & Burrell shall appear in their pioper p''sons or by their Connsell or atturney & aeknowlege a L(>ase J*]ntry & onsler or in defect Jndirment shall be enlred against the Causnall Ejeeter, But further Prose- cntion against them is suspended vntill the s'' Elisha Cooke & John Burrell hane made a defect in some of the ji'^mises And bv the assent of the Counsell it is ordered further by (he Court iliat the aforesd P'lisha Cooke & John Burrell shall take noe aduan- tage against the Plantilf for his not Pros(H'uting vpon (he Triall

This is tlio en(lorsonuMi( on ilio pMiicr wlioii folded. A( tlu' lop of (bo pafjo whou o]ion is (lie ondorsonuMit , " nii|)oiiitod ortob. .Tlli A adjomiu'd liy order of Prosidt & Couuci! unto 10th of yo Same 1 r>S()."

Tito ohmsos ill imrontliosos wore intovlinod in the orijjinal with two carets, to designate their insertion after Anna Paige and after Elisha Cooke.

48

HISTORY OF OIIEI.SEA [Chaps. XIX-XXI

ocasionod l)y such Kind of Dci'iudt but tliat llio aforos'i Klislia Cooke & John HuitcII shall j)ay tiie J'laiiliir Cost of ('ourt to he ii|i|)()iril('(l & Jt is furlJior ordered thai the b*^ Leasers Cap*- N'ichohis & Anna J'ai^a' flanlifl's sliaJI pay the (Josts of the De- fendant wliich the Court shall appoint or adjudfi,e

By order of tlie Court Nathaniel Thomas

Laur. llarnmond Cler. atturney of Middlesex ' - , Elisha Cooke

John Burrell

Cap* Pages Count or Declaralw

The Count or Declaration of The Title of Cap* Nicholas Paige & Danic Anna Paige his wife to the Messuage or Tenement, lying in Maulden in the County of Middlesex sued for by the Ejectione fermae brought against John Burrell to tlje Court of Pleas to be held at Cambridge the first teusday in October next 1686

Humbly sheweth to this Honored Court That Cap* Bobert Iveayne late of Boston in the County of Suffolk in the Territory of New England died seised in ffee of a Certane farme about one thousand acrees of woodland Pasture Arrable & Meadow land sittuate lying & being at Eumney Marsh partly & -mostly in the s^ Township of Boston & partly viz the afores*^ 40 acres in the Township of Maulden in the County of Middlesex being deuided by a line w'^h parteth s*^ Towns of Boston & Maulden.

That the &^ Cap* Eobert Keayne had Jssue only one son Major Benjamin Iveayne who deceased in old England a little before his father Cap* Eobert Keayns death.

That the Benjamin Kea3'ne had Jssue his only Child the Dame Anna Paige.

That by the death of the s"^ Cap* Eobert Keayne the s*^ farme at Eumney Marsh together with the s'^ forty acres lying in Maulden lieing p'^sell therof with other heredetaments & Estate Descended on, accrued & appertaineth to the s"^ Dame Anna Paige she being only heir vnto her Grandfather s*^ Capt Eobert Keayne & vnto her father the s*^ Major Benjamin Keayne.

The s*^ Plantiff Prays to be Eestored vnto & put into the Pos- sesion of the s*' Messuage or Tenement, with the appurtenances in Maulden Your Hono^'^ most Humble Seru*.

Nathaniel Thomas Atturney

The endorsement on the document.

Cjiai'h. XIX-XXT]

APPENDIX

ThiH I)(!(!l}ini,iion wjih deli vcrcd lo ii\<: by Cap* N'ir-liolaK I'ago 8(!p' IH'." in«G. iillcslH

Luur. JIaiiiifioiid Cler.

Doi'd!:'* j)l('a,d rioL ^niiliy. I^IIislia Cookf!

Joliri Hurrcll

The Deposiiion of James Pemerton and liis Wife

Thd Doposilion of ■JarriH Pc'tnerlon af^cd fifty ono ycarcs or Ukto- al)OiitH & Sai'al: Ih'h wife aj^cij fifLy UiriMi years or tliorcal)Outs

Tcfslify 'J^liai V/.ip^ IJohcrl, KcayiK; HorrK^timc of Uosioji dwoaHwl died HoiHod of llu; farm at JUiiiinoy Marsli ('oiisistiii<^ of riiru; liiindrcHl acres & vpwards soc Estoinatcd wlicron .lolm W isuall & others now DwelF & this tliey Certainly Know Ijein^^ Tenants for years to tiie s'' Keayne at the time of Ins d(;ceass And they furtlier Testify that M''** Anna Paige the now wife; of Cap* Nicho- las Paige of Boston was tlie Daughter of Major Jicnjamin Kcayri & Sarah his wife both deceased & Grandauglitcr of Cap' li'oln rl KenyiK! deceased soe Ifeputed cfe owned hy Hieni & this they very well Ivnow liaueing Known lier frojn a Child

James Pemerton & Sarah his wife made oath to (lie

abouewritten January 2!)^'' lG8i

before Peter IWilklcy assist

aflirmed in (Jourt Pro. feb!' 16815*^ vpoii I'nriiicr

oath attest -Isaac addington Cler This is a true Copy of the Originall on file

attest!- 'I'ho. Dudley Cler.

ilf Bradstreets & ilf Rawsons Depositions y* slic is Iicir^^

Edward Rawson aged about soucnty years being Deposed saith that vpward of fifty years sence he Knew the late Cap* Ivobert Keayne & Anna his wife whitest they lined in birching lane London & also Knew tlie late benjamin l\eayn(> their only son Coming to New England vpwards of forty six years was well acquainted with the a,boue mentioned Cap* Robert Keayne & Anna his wife whitest they lined & Knew & saw the manifestation of th(>ir deare loue & affection to tlieir s*^ aboue mentioned son in Prouiding a wife for

Obviously this tostiiiioiiy was {jivon at tlio I'rohato Court when Nicholas rai{j;o and his wife politioned to bo appoiiitod exci'iitors of Cajitain Keayno's will. !Sluj>ra, p. 20, note.

The ondorsoiuoiit on the docninont. Their dates show that these depoailions were used in the second suit in the SuH'olk County Court in 1084. Supra, p. 3.

VOL. II. — 4

50

HISTORY OF CIIELRKA [Chaps. XIX-XXI

liiiii Rurah Uio Dnnf^lilcr of llio liito worlliy & Worshif)/' nil 'IMioiriaa Dudley \<]k(\'' & rroiii tlio .inranoy of M''" Anna ilie solo Kopuied & owned Daughter of the late Major Benjamin Keayne & Sarah liiB wife soe owned by them wliilest tlicy liucd & now is wife of M'' Nicliolas Paige, her said (Jraudfuther & (JrancJniother tlie abouementioned Cap^ ]{obert Keayne & Anna his wife after her father the s<^ Benjamin Keayne went for England which was in the yeare 1G41 or 1G42 tooke the Care of & gaiie her liberall Edu- cation exspresing ucry Indeared affection to her as tlieir grand- child whilest they or either of them liued & further saith not; Sworn in Court T'*** May 1G84

Attest Jsaac Adington Cler _ This is a true copy of the Originall on file

Attestr "tIio. Dudley Cler. The Deposition of Symon Bradstreet who testifieth & saith that he Knoweth M''® Anna Paige now the wife of Cap* Nicholas Paige of Boston to be the Reputed Daughter of Major Benjamin Keayn & Sarah his wife owned & acknowleged by them & that Major Benjamin Keayne was the only son of Capt Eobert Keayn late of Boston deceased & that the s*' Anna was much beloued & uery well & Carefully Educated by her s*^ father Grandfather & Grand- mother from her Childhood

Sworn in Court 30 Aprill 1684-. attest Js^ addington Cler This is a true copy of the Originall on file

attesf Tho. Dudley Cler.

The Defendants Answer to y® Plaint^? Coiint or Declaratio That Cap! Eob* Keayne dyed seised of s^ farme tho wanting some hundreds of 1000. acres is owned. Cap*^ Keaynes & his sons Jssue we know not. That if ye s"! Anna were ye only child of s^^ Majo"" Keayne, yet by ye death of y® s"! Cap* Keayne ye s^I Land & estate did not descend & accrue to ye s<l Anna

Because ye s'^ Cap* Keayne by his last will Dated Decemr 28°. proved & upon Eecord gaue away his whole estate both real & psonal in several legacies w*^** with his debts & funeral charges amounted to more y° his whole estate, & left not one penny worth of lands or goods for an heire to inherit, see ye Extract & his ab- breviate of ye will & ye Jnventory & comparing y™ it will appeare

The Replication of Elisha Cooke

That Capt Keaynes Estate in land was Jn goods chattels & debts reeeiued . .

£ s d " 1730 " — " — "-778 " — "-7

Jn all but

2508

-7

riiAi'H. xix-xxii

AI'I'K.VniX

51

Lpgacies f^ivcn nwsiy by will iirf! " 2778 " -3 " -4

l)('l)tH & fuiicnil cliiuf^i^H .hivcntorycil "-274" — " —

more (M>iH [Kiyd \>y mf Lanu "-124" 14" 11

~3170~"l8""-3

wliicli in more yn Iiih wliolcr cHliite " .(iHH" 17 " H

Ik'HidcH what irii" LaiK! diHltiirHl for repaircH of y old

lioiiHCH li t IiIh firnl posHcsHiiig tlioiii " 2H9 " -4 " -0

So(! yi ilH mosi :i|»|)iirfnL yi Kciiyii'; did inlcrid in caso Iu'k

son dyed before liim lo ;i;iuc! uway all liis estate, & did accordingly do it & a great deale inore, He<! liiH owiie words in ye last claiisf; of ye l*]xiraet of liis will, vzl- , .J liaue given away all if not more y" all, wlini y" can possibly \w left for an lieire. And this his will was fulfilled, his debts & legacies payd lo satis- factio of ye Court & all psons concerned by m"" Tjanf!, to whome yt whole es(al(! for his pforniance of will was legally coiTiitted ac- cording to y'- practise; y", & honestly assigned first Ijy ye Executrix & ye County Court & finally by general! Court by their Comittee ■^yth ye Overseers of s"^ will, lo whonie also ye will gaue great pow(;r in yt affair.

And ye Demarulant had at last when slio parted from m"" I.an(! (notwilhslanding ye estate fell so much short) her Legacies i)ayd her by ye houses & lands she now possesses made over by Deed of EnfeofI'mt to m"" Brattle & Gibbs for her use & a considerable sum of money besides. So yt it is plaine also yt she had no right or title to one foot of ye land yt was Cap* Tveaynes Ami as to this action of Ejcctione firmae we say yt she hath no right of Entry & therfore cannot bring such an action for ye reasons mentioned in ye Pleas for abalem' of ve writt, & especially vo Statutes of 33.'h. 8. ;33. & 21. Jac. 16. which in this Actio do also conccrne ye merrit of ye case, to w'^'^ therfore please to be referred. As for y^ De"''? title we hold fro m'" Lane by Deed under hand & scale acknowledged & recorded ; but it matters 0 what o"" tille is in this case seing ye Demandant proues non<>, for (ils a maxime) ^* in e(|ua!i jure melior est conditio ])ossi(l(>nlis, possessio is much vallued by ye law, & much more w"* it is by Deed as afores*!

Captain Kcaync's Inixntor;/

This is a tnic Jnvcjitory of ye Kstato of ye T.ate Ci\\i{ Roht Keame deceased taken by ns whose names are hereunto subscribed this twenty third of April! I(i5(>

£ s d

Jnipriniis in ye l<]ntry two rowles of sheet lead about

five hundred at 20s p Cent : -.1 : — : —

" Interlined in tlie original.

"° The original is in Suil. Frob. Files, No. 171.

52

HISTORY OF CHELSEA [Ciiai'h. XIX-XXI

Jn yo Cellar under yf liall two liarrellH & a ]in\U> of Bcefe a kceler Home plunkw &. Home Lumber ' . . .

Jn yp hall v/X One j)r of braHH Andironn & one pair of nmall AndiroriH,

long table, broiul | board hIioiI frame & 2 forin('H , 1 . Court Cubbard, l)aHon & Ewre & cubbord cloatli & 2

liAging jiiangingl candle sticks

1 . long carpet old, 1 . great cliaire & iowe stoole ....

1 . old cliest & 2M llax with lock & key

1 . back in ye hail chimney of Iron

: 0	10 : —
11	10 : —
: -3	10 : —
: -1 : -1	10 : —
	-G : — -fl : —
-G	12 : —

Jn ye Kitchen vzt 1 . pr of Andirons, fire shovel, 1 . pr of tongs, Jack two spitts 1 . gridiron, 1 . old fender, 2 . potliaiigers

1 . Iro barr 1 . Iro Ladle, 3 . brass potts & 2 . pr of potthooks

1 . Jron pott 1 . Jron kettle 1 fryingpan

1 . Copper kettle 30s 1 . Copper Furnace 411

1 old kettle 2 . posnetts 3 . Ijrass skilletts

1 old pestle & mortar old candlestick scinier & flesh

hooke

2 . Lathiijg hafTiers 2s 1 old cupbard 2 . pales 2 old chaires

2 joynt stooles 2 siues [sieves] *° 2 wooden platters & 2 . wooden dishes 10s

Jron bcame & scales of brass

Jn pewter of all sorts 1081i 4 . chamber potts & one bed pan

Sufu

Jn ye chamber over ye hall Vzt — Jn money found yr 38s Jn money in two boxes for ye

poor &c. 121i 2s : 6d —

Jn 1 . Beer bowle ISVa §

Jnl. Tankard I^VjI

Jn 1 . Guilt Tankard .... 16

Jn 1 . Salt lOi/o

Jn 1 . Sugr dish 6%

Jn 2 . wine cups QY^

Jn 2 . porringers 12

Jn 13 . Spoones 19%

Jn a trencher salt dram cups & Pt^ ^

of a tip & silver buckle of a girdle | ^ ^

Jn 3 . signet gold rings % § 18 drams at 3 . [gra at 31i]

1 . stoned ring 2.5s in 1 . watch 50s in 2 . hatt bands 5s .

in 3. dozn plate buttons at 6s 18s in . 3 dozn smaller

plate buttons 9s

Jn 1 feather bed boulster 3 . pillowes all old & a tapestry

coverlid & 1. old blanket

-3 : 12 — : 18 -5 : 10 -1 : —

-6 : —

— : 12

— : 10

-5 : 13

18 : -1

14

-at 5s

27 : -9

: -2 : -7 -4 : —

-6

-5 : 10

^" The words in brackets are from the original in the Probate Files, and are given to make the text clearer or supply omissions. When this method is not practicable, the parallel reading is given in a footnote.

CiiAi'S. XIX-XXIl

APPKNDrX

53

in I pi' of t,'rc(Ti ('iiriniriH & valltTitH 2": 10« in ] pr of

l)l(!W ciiiLiiiiiH & vfillcntH .'{Oh : .4 : — : —

iij 1 . I)(<Ih(c(I rrmU/ & cord witli curtaido rorlH : — : 12 : — •

in I . round (iililn 20h in 1 . jjh^hh cidjbard )-Jh : . 1 : 14 : —

in .'J . low hIooIch 5 joynt hIooIch & one ciiHliiii cliairc low

& old two wootlcn old cliainfH : — : 12 ; —

in OIK! \vor)(lcn Hi.iindi.4li IOh | I of <io^gH 1 pr of l)cl- lovvcH, IvanipHj Hiiu/rcrH Iro box |l>aciicj, & r> boxoH

25h : -1 : 15 : —

03 : -0 : -9

.fn y<' h>n^ cliamticr v/.t — 1 .old fcatliorbcd, boillHicr, llock boiilHlcr, I blanket I old

nif^ otirtaiiiH & valleniH with bedstead : -0 : — : —

in 1 table eai'iiett & livery eid)bard : -1 : 2 : —

in 5 (^aHcs for (luHliins 1. wroiif,'lit eubbard eloath & vail : -2 : 10 : —

in 14. old ouhIiohh 24s in 2 window eiirtainn old 2» (><} . : -1 : -(i : -0 Jn liiH wearing ai)[)arrell with Hoine yt were his sonH in a

trunk : 2!) : — : —

in ;! . bells I . ])r bandileers 1 . sword 1 (lutlass 1 musket

1 pike 1 Coslett 2 head ])eeces & a <for^(dt .... : -7 : — : —

in I pr of pistols & bolsters & a small pistoll & stafFe . : -1 : 10 : —

in ye ehest they are in & .Jniplenients : -1 : — : —

SuiTie .... 45 : -8 : -6 .In a litle eliaiid)er next to ye lon^' eliambor 1 old featherbed boulster blankett mix & lialfe li(?aded

bcdsted :.4:10: —

1 pr of wrouj,'ht vallens & enrtaiiis : -1 : — : —

2 . trunks, . [)eecos of curtain cloatli & dariiix .... : — : 12 : —

-0 : -2 : —

Jn .a litle ehandier next y stnddy vzt 1 feather bed boulster 3. pillowes 1 blankett ru<^ bedsted

& old pr valbuiee : -G : 10 : —

in 1 small featherbed boulster rug <^reen vallans 3 pil- lowes truekle bed :-.'>:-.'): —

1 small table, 2 . litle cliaires, 1 ])air of (lo<];s : — :..'>: —

Jn old chand)er, truckle bed, boulster warming pan . . : — : 10 : — Jn one of ye garretts clossets several ])eeces of l(>ad to valine wtli several old Jro lumber two swords &

some candles : -5 : — : —

Jn ye other C'lo.s.sett in ye garrett 1 leatlicr great sadle &

bridle : -1 : — : —

one cliurne some tubbs old & some corne : -3 : — : —

Suifi .... : 21 : 10 : — Jn another litle roome in yc garrett vzt — Jn ginger loose in ye Cellar a pipe & a barrell in ye

hall : -a : — : —

a drum & anotiier great sadle bridle & stirrups .... : -3 : — : —

a box of candles 15s a shred old bed 2s Cd : — : 17 : -6

Jn a hole by ye staire case 0 . Buekctts old still & several

lumber : -1 : 10 : —

13 : -7 : -6

54

IILSTOKY OF CHELSEA [Cjiaps. XIX-XXI

.rn ye Study Vzt

7 . yards of Kersy at 5? 0<1 3 ydw % of rod Hliag^ at 3? 6d : -2 : 1 1 : -1 i/g 5 yds Yi of l^ockcroiiie at 20(1 7 ydn 14 of liauit . Lock-

crome at 18(1 . — . 19 . _7]^

(i% ydH of OzonbrigH at 1H(.1 5'/^! yds of fustian f}s 4^4 yds

red c'otten at 32d : -1 : 10 : 5'/.

3 yda Vi M; Vh i.e. %) of broad cloath at 9h 8% yds

red cotton at 3s : .2 : 18 : 10%

2'/. yds wtt [white] Cotton at 2? (i<} 0 stauos & one rapier

staffe fls ; : ] 1 : -3

7 . paper bookes 12b in ye bookcs left in ye study to sell

5'.' : -5 : 12 : —

in C . pr of shoes at 4» 248 in 1 . pecce of yellow ribbin 5s : -1 : -9 : —

in wtt [white] paper 10s in 4 pr of gloves 8s in a d<*ik 5s ; _i ; _3 .

in 1 pr of scales & beame & 2 brass heads 10s in a case

& 2 old kniues 18d : — : 11 : -6

in 4 pr of gold scales & a box with some brass weights . : — : 10 : — in a pr of great stilyards & a poise wtb a cross cut saw

& 1 . bar of Steele : -1 : 10 : —

in 2 . musketts & a Carbine : -1 : — : —

in 2 . spades 1 old sword mattock & some weights, & a

hoop of Iro targett bridle hoop of Iro, stock lock & a

wimble, 1 . pr of girts : -2 : 10 : —

Suffi .... 22 : 16 : 10

Jn Linnen &c. Vzt

7 . pr of fine old sheets & 1 pr & 1 odd course : — 5 : — : —

4 . pr of course sheets & 1. odd : — 3 : 10 : —

in some small peeces of diaper [very] old 5s in 3 pr of

diap table cloaths thin 35s : — 2 : — : — ^

in 1 . dozn \<2 . of diap old napkins 10s in 4 dozn & 5 nap- kins ye od new & coarse 153 : . 1 : -5 : —

in some old pillowbeers . 7 towells 2 cubbard cloathes : — : 15 : —

in ye Capts staffe [scarfe] with silver lace : — 2 : — : —

in 2 . Negroes & a child Negro : 30 : — : —

Jn ye great house yard garden & orchard : 570 : — : —

in ye two new houses & some yard roome : 300 : — : —

Jn a garden of an Acre : -30 : — : —

944 : 10 : —

Jn 60 Bushlls of wheate mault at Winbornes [and Goody

Halletts yt was wett] : — 9 : — : —

in 20 Bushlls of wheate yt hath been wett 3s 6d . . . . : -4 : 11 : —

in a garrett in ye new house 8 Bush of mault : -1 : 16 : —

in 46 . Bush wheate at 4s Od in 3 . Bush rye 3? 6<i . . . : 10 : 17 : -6 Jn both garretts in Jndian 260 Bush 2s 4d in % . Busli

pease 2s : 30 : -8 : -8

in ye Cellar about 200 of boards : — : 12 : —

57 : -5 : -2

CiiAi's. XIX-XXIl APPENDIX Sr,

Jn yft [)arlar iit y; fiirmc vzt — Jn plale 1 . tankard 1 . wiiK; )>i>w\(: ) porringer 1 dram

cu|) & 2 H|)(ioiiH : .0 : -5 : —

1 old tii,l)l(! I old I joynt hLooIch 2 cimlioii hCooIch 2 old

wooden cliair(!H, cuhIioh &, foi-in<? 22h 1 feather ))i-A

hoiilHlcr Hi, wl rui^ wHi 1 old pillovv 411 IOh — ... : ./i : 12 : — another featherbed 2 lioiilHters 2 pillowcH & (loek hrjiilnUir

2 coverlids 1 . dornicU & tnindh; Ix-dHted : .5 : — : —

Sum .... 16 : 17

In ye cloHHett vzt —

£ 8 d

1 trunko 1 old Htill & Home other lutnher : -2 : — : —

Jn y« KiUrhen 1 great (;o[)j)er fiirnaee wth a cover &

.In") kettlcH :-4: — : —

in [two] |)ewt(!r dinheH 1 .fruit di.sh I old chaiidjer ])ot

old tahl(( w'li Htone mortar : — : 10 : —

in 1 pr of AndiroiiH 1 . potliaiif;er 2. spitts 1 brass skillet

1 . trafTudl & a litle ehaine 18h 1 fowling jx'eec & 1.

niuHket 3()s : -2 : -8 : —

-8 : 18 : —

Jn ye chamber vzt — 1 Steele mill I pr of stilyardn 1 hateliel 1 kneediiig trou;,'h

with Home old tid)bH |& a buHhell j & Home earthen

ware r)()H |41h| 1 rug 2()h : -.T : 10 : — "

in corne theiH? to be Hcnt home in peane 30 . HuHliftH at . : -.5:10: — in barly 34 Hnnh . at 4h 2<1 in .Indian 05 bunh . at 2h . . : 13:11: 8 in Rye 28 bunli . 3h 2d in 3 . other [CroHHe ('utt| nawes

&c & pump Auger 31s : .5 : 10 : .8

in 2 whip navveH 1 erona cutt saw 1 Jro hoop : — : -9 : —

in 9 . ])eeeeH of Iro lltt to band wheelen 1 crank for a mill

1 i)r of AndiroiiH & 3 . other Jrona barrs & some

nailes for ye wheeles : .2: — : —

Jn a vice : — : 10 : —

Jn ye house barnc farmo upland & meadow at Rumny

Marsh : 750 : — : —

in land nigh Medfield : -80 : — : —

in 3 old waines as in ye Jnventory [£3], in two dung

carts 1 pr of [new] wheclea as in ye Jnventory [£2] : — 3"* — : —

864 : 10 : .4

Jn cattle vzt —

Jn 1 . Bull 3* 15s in 22 . Cowes 971 : 10? .' : TOl : .5 : —

in 1 lieifer 3 . ycarea, 1 . steere 3 . yeares old : — 5 : -5 : —

'in 3 . heifers 1 . steere of 3 . yearea old in ptnership .

I his ])l j. : — 7 : 10 : —

in 1 . steere of 2 . yeares old :..2: — : —

in 1 . steere & a heifer in ptnership his pt 3* in a year- ling heifer 2Cs : _4 : _6 : —

" For £3 . 10,9 rend £3 1.x.

Trans]iose the " 2 wlii]) saves 1 cross cutt saw " with " 3 other Crosse Cutt aawea," in the preceding item. Read £5 for £3.

56

HTRTORY OF CIIELSKA [CnAi>8. XIX-XXI

in 1 Bull 2 . hcifciH [of] 1 . yoare in ptnorHliip .[his pt] : -2 : 12 :

in 0 . oxen at 12. a yoal<e 30t in (i . oxen at lU a yoake 331 ((9 ; — ;

in 1 yoake of oxen : 10 : :

Jn liorHGs vzt — 201:18: — a black marc loldl with one eye 51 1 old mare 18 yeares

new [iiciicrl hackt 81 : 13 : . ;

1 . 3 yciircH old marc 121 1 gray mare 0 . yearew old lU . : 23 : — : —

1 . hrownc mare from Dorelienter : 12 : :

1 . Iior.sc (i . ycarcH . 1 . horm'. 3 . ycarcs old IHi in a year- ling horse colt 41 : 22 : :

70 : — : —

Jn a Negro Mayd & a scott ] 20 : : —

in two plowcs with plow .Irons & all other Jro workes

6 . yoakes &c as in ye .Inventory 40.s in 5 . plowe

chaines &c as in ye .Inventory 30s : -3 : 10 : —

in 3 . wedges 3? in 3 tind [3 three tine] dung forks

shovels & spade as in ye Jnventory Os ; — : -9 : —

in 4 . pitch forkes, 2 broad howes &c as in ye Jnventory : — : -7 : —

in 2 . ropes 1 pitclie &c as in ye Jnventory : — : 10 : —

in a pr of new small harrowes wtli 16 tines as in ye

Jnventory . :18:

in 2 . old fanns : : -5 :

in 1 Beetle wth 2 hoops 1 Serine [skeine] a mattock as in

ye Jnventory : -1 : :

in dary vessells as in ye Jnventory 2 . Milke leads ... : -4 : 10 : —

in swine : 22 : :

SuiTi . . . 53 : -9 : — The total sunie cast up of all Capt Robt Keaynes houses lands & moveables according to ye Jnventory ye

smTie of : 2426 : -2 : -1

William Colborne ) Anthony Stoddard >» i Debts owing by ye deceased vzt —

li s . d

To Samtt Eldred [Eldredge] for a Negro &c : .11 : — : —

To Mr Gray about : . 44 : — : —

To Mr Knowles :..3: — : —

To funeral Expences : 140 : — : —

To Mr Brenton : . 33 : 10 : —

To Mr Webb about : _6 : _ ; —

To J ames Pemberton : . 34 : — : —

To Mr Danforth for ye Colledge : . .2 : 10 : —

total suiii .... 274 : — : — Debts owing to ye deceased besides such as are desperate & not here mentioned vzt —

li s a

p . wt Major Keayne owed his father as p Booke .... : 239 : . 9 : .2

Tho. [Rich] Dexter : — 5 : 15 : —

'"' For £2426 - 2 - 1. read £2427 - 12 - 1.

In the original in the Probate Files the signatures Will Colbron and Anthony Stoddard appear after the lists of debts to and from the estate.

viiM-H. xix-xxr]

APPENDIX

57

ffrom IIiitcliiiiRoii of Rcdirif; : — 0 : — : —

p Mr (Joodycr | (joodycarcl : . 15 : — : —

X) lOdiimiKl JV'laUookc | Miiltox| : — 9 : — : —

X) (j!(K)(lrri!i,n liowkcr & Hill : .32 : .3 : .6

l> 'I'lio . Iin ci<(! : — 0 : -!> : .0

p (Joodirmn Twitchcll — : —

J) Mi'H iiiirrowoH : — S : 10 : —

p (!a[)( iSiivaf,'(! &, (.'apt 1 1 iit(fliii)H(>n : .40 : .5 : —

p Dexter of Maiildeii : —4 : — : —

p Tho. indued I : — 4: — : —

p Lieut. Ifud.son : — 1 : 10 : —

p (Joodiiijin l'>ri(lgliain : — 1 : 10 : —

p Lioiil^ I'liiiliiiH : -. 1 : 15 : —

J) Mr lOdw. Ting : . .5 : — : —

p Mr Parker : — 1 : — : —

p [Tho. I .Joy &c : .40 : — : —

Total Huiu . . . 440 : .7 : .2

Jn p''s('TU'(' of y'' Oovorno'' Dopuiy Governo'' & Mil jo'" Athortoii

At a County Court held at Boston ye Ifjo 9"'? 1057 M''^ Anna Kcaync .Executrixe of ye last will & testament of Cap* Keayne deceMsod ap[)e!ir('d before ye Court &. p'^sciiled fliis a.s a true Jnveiilory of y^' Kstate of her late husband (!ap'. IJoI)'. Keayne & deposed before ye Court it to be a true Jnventory of yt Estate to ye best of her knowledge, yt wh(>n she kiiowcs more she will discover it, which y"^ Court allowed.

This is a true eop[)y eonipared with y'' orii,nii;il iis atle.stod

= i<](lward Uawson Hecordr This is a i rue Coppy "i Attest"*

of tliat on file — / Daniel Allin Cler

Appointment of Edward Lane Executor, 1657.

At a County Court held at Boston by Adjournm* December 3'J U!f)7 M""? Anna Keayne y*^ elder appearing before Court tlv: jiublickly renounced her Execuirixship to ye last will & lestiiin(>nt of Cap' Robert Kcaync her laic husband & surrendered up her right & interest in y' Estate which Court accepted of. — And M"" Edward T;ane who is to marrv^ with Anna Keayne y"^ younger ap- pearing then also in Court Anna Keayne y** elder desiring also that y*^ s<I Edward Ijano might be instated in her roome in all respects to doe execute & pfornie y^ will of s^l Cap' Kob' Kcaync in all respects paying all legacies given therin to publick uses & private psons & discharge all debts, w'"'^ he v*" s*! Edward T-nne ingaging to pfornie as also to giue good security to y*" County

58

HISTORY OF CHELSEA [Chats. XIX-XXI

Courts acceptance for pformance thereof. The Court allowed

& ap])roved of y*-' s<^l Edward Lane in stead & place of

]M'" Anna Koayno to doe execute & pfornie wliat she was to haue

done as Executrix to yt will.

A true CJoppy Compared with the Order of Court in the Courts Booke Atf Daniel Allin Cler

Edw: Lanes Jngagcm* to ye County Court . 17 . DeceT Id 57

At an Adjournm* of ye County Court held at Boston 17? De- cemb'' 1657. M"" Edward Lane appearing before ye Court did publickly acknowledge yt he ingaged ye farine at Kumny Marsh & ye great old house at Boston formerly Cap* Eob*^ Keaynes as security to ye County Court at Boston afores** for his pformance of ye last will of ye late Cap! Eob* Keayne in all respects he accepting his wiues portion according as it is given her in ye said will, which ye Court accepted of.

This is a true coppy taken out of ye Courts booke of Records as attests Edward Eawson Records This is a true Coppy Attest"" Daniel Allin Cler

Overseers power w^^ ye Comittee of y" (7e?ie'"" Court. 12.9.1659.^*

At a General Court held at Boston 18? Octob"^ (12(9)59) The Overseers of Cap* Keaynes will are hereby impowred to take ye Estate into their hands & to sell or dispose therof for speedy paym* of y^ Legacyes according to y® will as they shall judge & determine. Provided their determination be approved by Majo'" Atherton Russell M"" Danforth Majo"" Hauthorne M"^ Stoddard & Lieu* Cooke or y« major part of them, who are appointed by this Court as a Comittee to joyne with y*^ overseers in interpretation of y^ will respecting legacies to his relations, & y^ conclusion agreed on by y*^ major part of y® Overseers & of y** s^ Comittee shall be a final issue of all Causes or Actions yt haue or may arise concern- ing Legacies bequeathed by ye s'l will.

That this is a true coppy taken out of ye Courts Booke of Records Attests Edward Rawson Secret^

A true Coppy of That on file atf Daniel Allin Cler

" Endorsed : " Mrs Keaynes Renunciatio of her Executorship & mr Lane appointed by ye Court in her roome to Execute & pforme Capt Keaynes wilL Decey 3d 1657." The articles of agreement between Mrs. Keayne and Edward Lane are printed in Suff. Deeds, L. 3, f. 77.

" The endorsement on the document.

" The endorsement as above.

CiiAi's. XIX-XXI]

APPENDIX

59

Agreement between the Overseers and Edward Lane IWO

ArliclcH of A^jjrccnicnl, iriiulf! & coricliulcd at Boston yc \Z: of ye /iPHt inontli I tinf) | by ye (JvcrKwrs of y; Last will &

testament of (!af)' Ifob' Keayne deecjased willi ye advise & consent of ye (iomittce appointed by y" (jenerall (,'oiirl, & with y*^' consent & I'lill acceptance ol' partyes concerned liierin vz*-, M'' J^dward Ivane, M'' Sam" Cole & M''« Anna Cole ye Jielict of y"" 8'l Cap' Kol)' Keayne & now wife of y** s'l M"" Cole. —

1. Tliat yo Estate of y"^ s^^ Cap* Keayne be it more or less in valine consistinff of bouses lands & cbattels, Bookes of Aecounts del)ts &c. now in i^einff, not formerly alienated, appropriated, or by will otherwise disposed of shall be delivered into y* hands & possession of y<^ 8*^ M"" Lane to enjoy to him his heires & assifjnes for ever, except M""^ Coles thirds y*^ reversion wherof after her decease is to be dis|)ose(l accordinji; to y'- will of y*" s'^ testalor —

2. That ye s"^ M'" Ijane shall (in consideration tlierof) satisfy & pay all y® just debts gifts & legacies yet unpayd & due to be payd out of y^ Estate of s<l Cap'^ Keayne, & in ye meane time giue sullicierit security to y'* Overseers of y*-' s^^ \yill for the accomplish- ment of y"^ same

3. That ye M*" Tiane for & [in] consideration of M""^ Coles thirds of all y" houses & lands shall pmitt & suffer her & her assignes peaceably & quietly to possess & enjoy new house in Boston with yard as it is now fenced in, & to allowe her twenty pounds 'Ij? annu, to be payd quarterly to IM"" Edward IJawson & Cap* James Johnson for y"* use of y^ afores^ M""^ Cole or her assignes during her natural life to be accounted from y* seventh day of this Instant & to be payd at Boston y*^ one halfe in corno in equal ])ro- poriions of all sorts of ordinary graine, & y*^ other halfe in beefe, porck & English goods at price current. —

4. That after y^ decease of y^ s^t M''^ Cole it shall & may be law- full for y^ M'" Lane his heires Exccuto''^ Administrato'"s or Assignes to ]iay or satisfy y^ Legatees to whome y*" s*! tliirds are bequeathed by will either in kind or according to y<^ valine thereof by Inventory exhibited to y*^ Court & remaining upon Kecord at y^ choice of him y® Lane or his assignes, w*"'" Liberty we do allow in consideration of what y*" Estate may possibly fall short & to prevent ye abatement of any legacies in whole or part at p'"sent.

5. And lastly for ye further satisfaction & conveniency of M""* Colo ye M'' Ijane is willing & accordingly hath agreed, y* she yc git ]\jr8 Cole' shall haue & enjoy during her natural life an aijdi- tiou of sixe foot of ground from y*-' street at y*-' south end of y®

GO

HISTORY OF rTIELSRA [CiiAi'S. XIX-XXI

now house to range even with y'' olhcr fcnfo with liherty of a watercourse throw yard adjoynirig, which is not to he accounted as part of her third but allowed her upon other considerations — Provided alwayes y' if liercafler it sliall appeare y*^ y'" are any debts w^''' shall be demanded & recovered y' liath not as yet been taken notice of, & y*^ shall exceed such debts as are due to y« Estate to y<^ valine of one hundred Marks or upward, then y'' Overseers will further consider liow they may ease M"" Lane in y*" paym' therof in case it be p'sented to them whilst it is in their power to do it. In wittness wherof wee haue hereunto sett o"^ hands ye day & yeare aboues''.

Thomas Danforth Simon Bradstreet Samuel Cole

William Ilathorne Daniel Denison Anna Cole

Anthony Stoddard John Wilson Edward Lane

Kichard Cooke John Norton

Edward Eawson James Johnson That this is a true coppy compared with y^ orignal

= as Attest Edward Eawson Secret A true Coppy of that on file att? Daniel Allin Cler

Wee under written haueing read & considered these within written Articles do testifie that wee wore p^'sent at y® meeting & debate of the severall particulars, & do c^'teinly know y* y^ severall articles therein named were then mutually agreed upon by all partyes conc'ned, & are fully sattisfied & confid* y' this Instrum* or writeing is a true coppie of y^ orriginall then signed by our selves, & those others therein named, as also y* m'"^ Anna Paige was then & there p'"sent, & consenting thereto, & acqiiiessing therein, the orriginall to w*^^ o"" hands were put being left with m'" Eawson the then secretary, to y*^ Gen". Court."" Boston octob»' 18*1^ 1686. S. Bradstreet/

Simon Bradstreet Esq"" and m"" Edward Tho : Danforth./ Eawson testified upon oath to the Edward Eawson =

truth of what is aboue written Before me Wait Winthrop.®^

J Symon Bradstreet doe also testify as I haue in a former evi- dence vpon oath that the originall was blotted & interlyned & J [ ] to m'' Eawson to wryte it fairly out & that I confidently

" Apparently this endorsement is in the handwriting of Thomas Dan- forth, with autograph signatures of Bradstreet and Rawsdn. An endorsement by Wait Winthrop.

CuArs. XIX-XXI]

APPENDIX

61

bclciue that ihiH i.s u triKs (.'Oppy of tliui origiiiiill a;^rc(:);i' according to tl)o intoi'lynciiig S: Jli-iidHti'ccL

Daniel & A nlhovy Fislixr & Coolces Teslimonyes

Daniel Fisher uf^cd 'ID. ycarcs & Aiilliony I'^iHlior n'^i'A ahoiit \'.). yoarcs tcsti fy & say. —

That on y** thirtyeth day of lliis .Jiisiani July 1007 we y*^ deponents Was at y^ houso of (Jap'. James Johnson in Boston where we did heare y° s"^ Johnson allirnie y' soniiiiiie after y*^ Nullity of m"" ]janos & his wiucs niai-riagc was (Icclarcd he y*^ s'l Johnson had in his custody y^ bookes & acco'." yt were Cap* \{oh\ Keaynes & also keyes of his houses, w'^'' he kept until after ni'" Lane & his wife came together againe, & y*- y*-' overseers with y'' consent of y* Corriiiiee of y'' (jeneral ('ourt had agreed to deliver y'- estate unto m"' Lane againe, then he y*^ s^ Johnson did by order under y* hands of y^ rest of y^ Overseers deliver unto y^ afores'1 Lane y** Bookes & Accounts & also gaue y^ 6<1 Lane possession of y* houses, And further y'' s^t Johnson said y* his memory was bad in many things but this he did verry well remeinljer. AI.^o y'" wife of y^ Cap*^ Johnson did at y" same time allirme y' she did see Keyes taken out of their house for yt end, but did not goe with them to see y*' jwssessid giucn & furtlier say not.

Taken uj)o oath iji y*-' Court 31? July 1GG7. Vera (Jopia, Attest'" as Attests Edward Kawson Becordr

l^dward llawson I?.'" Copia vera attest'" Edward J?awson Secretary

A true Coppy of that on file Alt'" Daniel All in Clor

Richard Cooke aged al)out 57. yeares testifyeth & sayth yt he was p'"sent when Cap* Jmncs Johnson did deliver pos.sossion of y® houses y* were Cap* Keaynes unto M"" Edward Lane & did see him do it, which was done after y*^ time y* M'" Lane & his wife came together againe, & further sayth not.

Deposed in Court 31? July 1667

^ Edward Kawson Becordr

Tliia statomcnt ia in the liaml of Simon Brmlstroet. Tlio doouniont was endorsed wlion folded: "Articles of Agreeinl with ye Overseers of t'apt Keaynes with consent of ye CoiTiittee iS:e." The body of (he doeninent is in the handwriting' of li^lislia CooUe. The attestation of Daniel Alli]i is in hia handwrilinf^. Witli the exeeption of the endorsements on this jmjhm' no evi- dence ia on tile (hat was not copied from the SulTolk County tiles'. ™ The endorsement on the doiiuneiit.

62

HISTORY OF CHELSEA [Ciiaps. XIX-XXI

Vera Copia AiiosL'' Edward Kawson K"" Copia vera AUcsL'' Edward Rawson Sccr A true Coppy of 'J'hat on file Att'" Dan' Allin Cler

Anna Lanes Nolo Dece'' 2. 106S

I'Cnow all men hy these p^sents y* wheras there is a Deed*"" of fieoH'iiit l^eui'ing date y*' day of y*-' date lusrof fro Edward Lane of Boston Merch"^ unto us Thomas Brattle & iiob* Gibbs of Boston Merch's ffeoffees. in trust to & for use of Anna his wife & pos- sessio thereof given for y* y'^ Edward Lane is intended a voyage for England suddainly if God pmitt yet Kent of y"^ granted p'"misses until y^ twenty fifth of March next insuing y^ date hereof is to be received by y® Edward Lane or his assignes, & yii ye ]jgy -j^Q ]jg dellvcred up to us y** ffeoffees whatsoever may appeare in y« [deed] to y^ contrary notwithstanding Wittness o'' hands this 2? day of December one thousand six hundred sixty & three Anna Lane

Wittness hereunto Tho : Brattle

Samuel Bradstreet Eob* Gibbs

Eobt Howard Not. publi.

Vera Gopia Attest ^ Edward Eawson Eecord'" Copia vera Attest'^' Edward Eawson Seerefy A true Coppy of That on file Atf Daniel Allin Cler

if Paige & wifes petition to y° Genera"' Court 8 1666

To y^ honered Genr^' Court now seting at Boston The petetion of Anna : y® wife of Nich? Paige. — Humbly sheweth y* y"" petetioner as is too notoriously knowne hath benn extreamly Jnjured in her person & estate by m"" Edward Lane who beefor his decease by a pretended Deed hath made over y® Estate lately Cap* Keaynes her honered grandfather whareunto he had no Jiist title, as by y^ faver of this Court will be made ap- parent, w'^'^out any Satiesfaction to her for portion o"" other Jnjury done her, : unto Lef tenant Cooke & Deacon Wiswall unto whome tenders of a frendly Composing of all differances (and demands)*"^ have benn made on yo"" petetioners behalfe by y^ Overseers of her

The endorsement on the document.

See Suff. Deeds, L. 4, f. 167. A copy is on file with the papers of this

suit.

The endorsement on the document. '"^ The words in parentheses are interlined in the same hand and ink as the final attestation by Daniel Allin.

CiiAPH. XIX-XXI]

APPENDIX

63

gnindfalhors will lo wliome of right y" dospoBing of CHtatc doth (belong) w*^'' offcrH liaiicing bcnn ncgleoU'd & not accoptod by y" efl Cooke & WiHwall yo'' petitioner is l(;l't vv"'oiit (roniedy save onely by tlu; .JnHlic(! of iliiw (!onrt whcrcljy kIk; is (.'orifidcnt of) reliele not doiibLing l)ul,t IhiH bono'''' Ooiirt will waigli & Conceder y'' ciinily ol' y'' (.!im & y*-' .(iihIck of Som of llicir Hornier acts:,

1 llirsi Tor bor Sclfe hIio is y" only ofspring of Cap*^ Kobert Keayn(! who dyc'd HvnwA of a fare estate (b.'HjJosing of a great part tb(!iMc of |(» [Mibliek iis(,'s by his Last will w'*' as to olbcrs bath beene iUlciideil, her Sc^H'e only being bereft of ber piirtion :, y" lands & goods of y'' s'' (Jap' Keayne Being possesed by otiiers by w* right she ho])es y*-' (Joiirt will incpiire into: ,

2 Mi' Lane upon pretended marriage Iwiviiig Conl radril with Exeeetrex & thereby got y*^ estate into his haiides after

nullity declared did obtaine a Judgment of this Court to dessolve y^ 8'^ Contract to y** great prejudice of y^ Executrix, upon this grond: , y*^ y^ s"^ Contract for y*' estate was founded u|)on y* Con- trect of marriage w"' yo'" petetioner w*"'' ])roving to be null : , y® Contrect for y® estate ought to be null: also w'-''' was highly dis- advantageous to yo'" ])etishoncr itt being given out by ni"" Lane or Som of his frends y' yo'" potetionners portion must fall Short more then two therdes by which nieanes, & by ni"" Ijanes cV' his ffrends Sollecitations & falcc Alfernuitions yo"" petetioner was abused by a Secon Cheate & y® estate againe put into y*' Lanes hnndes by y*' Overseeres & a Comittee of y" Gener" Court upon Certain artickles never yet fullfillcd w<^'* agreement was all so founded upo y^ same mcstake of a marrage as y*^ former & upon y" same C round : Cann not hoc of aney force to y*' prejudice of yo"" petetioncM- :,

May it therforo i)lease this honered Court to declare y^ s"' agree- ment m;ul(! by y'' Overseers of (lap' Keaynes will & a CoiTiiltee of this Court w"^ m"" Lane to be voyd & null & y® estate to be Left as it wase beofor y^ s^ agreement in y® liands of Overseers y*^ yo'" petetioner may recover her portion Left her by her dcare grandfather togeather w"' such other dues as may of riglit be Long to her & Such satiesfacttion from m*" Lanes estate for y^ wrong he did her as this Court in Justes may judge meet all w'''> yo^' petetioner : is bold to Crave Apprehending itt Cann not but be thought more agreeable to equity & Justeces y' she should bee poscssed of lier grandfathers estate rather then nux're strangers IDspeshally any such as haue benn highly Jnstrumentuall to her wrong & y^ Kather for y' security liatli benn offred y' they may be repayed for any (^barges exitcnded : & all Just d(>bts for m"" Lane descharged y*' premeses Considered w"' w' farther picas y®

64

HISTORY OF C;ilKI-8KA [Ciiai-s. XIX-XXI

pctciionor halli to niiikc kIicc liimihly heggolli y'= Speedy ' liolp & relol'c from this honored Court Niclio: Paige

That This is a true Coppy Compared with tlie Anna : J'aige Ori^'iriiill Jeft on file; in Ocio'' l(i(Hi As Attest? Edw" J{awson.

A true Coppy of that on file in the County records Attest? Daniel Allin Cler."^

The Plaintiff's Rejoinder

Cook? allegation

That Cap* Keayns whole Estate for Performance of his will was legally & honestly sould to m'' Edward Lane by the Executrix & ouersecrs of Cap* Keayns will &c Who were suffi- ciently Jmpowered soe to Doe both by s'' Will & afterwards by the Generall Court & this done with the free & full Concent of all p''sons Concerned as well the Demandant as the Rest &c

Ans — That those allegations are altogether fake.

1 That the s*^ Pretended Coppy is noe Proff of any such Articles, for there is noe Eecord of any such thing

2 That the Secretarys Attestation or vnderwritting a true Coppy of the origeonall Edward Eawson secretary is noe more a proff that there is any such Origeonall or that the p''tended Coppy is true then if any other man had soe attested who is not in office

for his oath binds him noe further then matters Jmediatly Transacted by the Generall Court &c. soe that he is not vnder oath in any other matters nor ought to giue any such Attestation in any thing but of such matters only as are of Eecord by order of Court soe that his attestation is noe proff thereof (see y^ Secre- ttarys oath)

3 Jf the p''tended Coppy might be supposed to be true yet it is noe euidence to a Jury

but the origeonall it self vnder hand & seale must be shcAved in Court. & soe given to the Jury who are to try whether that Jnstrum* be the deed of the party supposed or noe (Cok.35.b.9. &.325.a.b.)

But whether that Jnstrum* doe pass or Convey the land accord- ing to law the Court ought to Judge

^"^ The "Gem II Courts Answer to Mrs Paiges petitio 8br 1666 " is given supra, vol. i. p. 648.

Compare this with the argument before the Suff. Co. Court in 1684, supra, p. 4.

The citations in parentheses are in the margin of the manuscript.

cirAi-H. xix-xxri

AI'I'IONDIX

05

Ypon all w^h wc limrihly I'niy IIk! (-'ourt lo flr'lcrrninr! ncf.ordiin^ to liiw wli(il,}i(!i' k'' [)'U:ri(Jc(J (Joppy ouglil, lo p;iKH to tho Jury as Kuidciicd yen, oi' no(!

'J'Jiai wliciiH IJk; J ieH'ciKlantH allcdj^ That all Cap*- KoaynH Kstatf! wan f^iiKT) away by will hoc iiotliiuf^ Icl't for an licir

Ans I 'i'liat (Jap' Robert Koayno gauo not one. Coot of liis lands to any p'Kon or p'soriH wliatKocncr nor koc as any ono (■onbl .Jntitlo them solves to any |)aii, llicn'of biil llic Ikmi- only

2 That (!ap' Kobort Kcayn by bis s'' will not disposcin;/ of any part of bis lands lo any p'son from bis licirc,

Jl, follows Tbcrcrorc Ibal all Koayns lands a( llic time

of Ills d(!atb d(!SC('nd('d to bis bciro (Sue Cok. 2'.i7. a. (iodolphin 372. Seel li. 4. Cok. !).a.)

& 'I'licrciipon wo I'ray tbo Conrt to dclcrrnino wbctbcr by s'^ will Cap' Keayns lieire is dcpriued from Jnlioritting bis landtr "'"

M'' Jh-adslrrcls cf- M>' Pkiw.wiis Di'/Jdsllioii ahoiil llir Arlulcs '"^

The I)o])ositioii of Hynion Jiradslrect Ks(|'' one of Ihc oilcrscors of Cap' Robert Keayns will

Who DepoRoth & saitb Ibat after some sborl liini' of tlie second snpposed Mariage or (!onieing loi^elber of M'' Kdwanl Lane M'i* Anna Keayne as man & wife there was a IVIolion or Pettilion made by Ibe s'' Mdunrd Lane with his IJepiiled wins Consent for the settleing of ibe J^slate of (Jap*^ Robert Keayne according (o bis will there being then neither Execntor or administrators lliereof senerall legaeys k Debts being vnpaid & amongst the Rest those legaeys to Anna Keayne vpward of a 1000" whervpon the (ienerall (Jourt made an order .Impowering a Com it tee to Joyne wiili the oner-seers for the end a fores'^', as appears by the s'' order who mett at M'" Turners with the partys C-oneerned viz M'" Lane & his L'epnted wife & M'" Cole & his wife & after some disscorse did vnani- mously agree vpon Certaine Articles which that I'aper in Court may for ought .1 Know be a true Coppy of .1 am Ccrlnin that article of Mr Lans giucMUg snnieient security &e was one ,1 writt it my S(>lf but much blotted & I'hilerlined as discorse caused alter- ations this was deliuerd to m'" Rawson to writt out fair logclbi r with a bond for M'" Lane to signe & then the agreem' or Copjiv to be deliuerd to m'" Lane but neither the one nor the other euer done as that J Know of J seuerall tinu's nioued Lane to giue his bond the like did Leiu* Cook as he told me iV once or twic(^ in my heart'-

Endorsod: "Answers to Mi" Cook's Allogulioiis." "" The endorsement on the document. VOL. II. — 5

66

IIISTOllY f)K CUIOLSKA [Chaps. XIX-XXI

•,„;■■ linl Hie Lano allways noglcctwl or liefuscd l)nt wont on in payiM- of Dcl.is & Icf^acys hut not all till tic nor doc J Know how Ins Kcputcd wiiH'S 'I'oi'lioii was Paid or what satisfaction slice had in lew oF il nor doc ,) Know that ciicr in'' Lane had soc much as a Copi.y oF that agreement while he lined dclin.Tcd him hy the ouerseers &c nor was there Keason For i( tell he had -inen security

as al'oresd , ,

Sworn in Court 2^ feb^ 1G83 [IfiBI]. attest Jsaac Adington

(Jler

This is a true Copy of tlie Original] on (ile attest;' Tho. Dudley Cler. M-^ Edward Rawson of Boston aged 68 years being sumoned Tes- tifieth & saith that the Ouerseers of Cap* Robert Keayns Will whereof he was one was always uery Carefull & desireous to tal<e good security that the s<^ will should be performed & perticulerly of m^ Lane after those articles were agreed on wherby the Estate of Capt Keayne was to be Conueyed to him but the s^^ Lane ol ten refused to giue bond according to that agreem* for the fulhllmg the s-J Will & Discharging of Debts & legacys as Witness my hand this 29^^ of January 1683 [1684]. Edward Rawson

& ads that^ he knows m-" Lane did pay him his Legacy & some others Sworn in Court P^'o febr 83."* attest Jsaac admgton Cler This is a true Copy of the Originall on file

Attest? Tho. Dudley Cler.

The Ruling in the Suffolk County Court

1 That when a Will doth Impower Executors to make sale of land for the uses therein Expressed vntill that sale be actually made It doth Descend to & Rest in the heir.-

2 That when the Generall Court Especiall Impowers any p-" sons to make sale or dispose of land If it be not done by Deed vnder hand & scale it is not vallid in Law

3 That the Paper shewed in Court as articles of agreement with- out any other attest but that it is a true Coppy Compared

For the court and ease in which this deposition was used, see supra p. 20. In the bill of costs the charge for these depositions was apparently

Prtsumably these were the rulings of the Suffolk County Court in the T,arallercar decided the preceding July, supra, p. 30, as Allm and Dudley ?re toirted clerks of that court in June. This paper - J-^;^^^-''* Resolutron." It appears to be in the handwriting of Nathaniel Thomas.

CUAI'H. XIX XXI]

APPKNDFX

07

Willi IIk' ori/_'r''iM:ill in hoc IiC;.'iill ]in>{]' Ui;if, (lifro i.s or oner wjiH Kijch orij^coiiiill iioi- l)c ciiiilciicc lo III'' -Jury

These arc tlie IN'Soliil.ioiis of llic Coiirl in tlicHc I'oints ■diU'.alH l);iiiicl AIN'ii CIit"" TIk.. DiMilpy CIcr.

Tlir. li'niiiif/ in llir, M iilillesex (Jonnly Court

Jn llifi CiiHG Dcpcndiii;^ botweono Caj)' Nicholas I'a;.^o PI? against (Klisha (,'ook & Jn" J'.iirrcl JJcfc-ml'.

'^rhc Coiirj I'csolvcs in [loiniol' Law

1. '^rii;il w'licn ii. will (lolh . I in power lv\rccnlo'"^ to nialcc sale of Lands for I he uses llici-ciii expressed, iiiilil I hat sale he actually made, itdolli descend to & IJcst in I he Heir.

2. Wliere tlu; (Jen" Court hy any speciall order Tmpowcrs persons to make sale or disposer of Ivands, whereby the fee simple is to be Convey'd, if the same he iml ilnnc hy a formal & siifllcient Deed nnder the Hands & Scales of y'' persons so Jmpowcr'd, Jt is not Valid in Law.

Dat. ()ch)h. 20'.'^ ]'.y order of the Court

1 (iSC). Lanr. Hammond Clcr."-

Jiin/'s \'n;Iirl

Cap' Nicholas Tape w"' Anna his Wife IManlifs Contra (Fdisha Cook Esq &) John liiirrell Defendants, the Jury linds for the riantife the Land in Controversy w"' Costs of Court — Octob. 20, KiSn

The Bill of Costs

Bill of (\)st ill tlu^ Caao bptwcpii Capt Nicliolas Paitro & Anna Paige PlantifT.s against Mr iOIislia ('o()l<(> & .loliii I'urrcll Di'irciulants Conienci'd at Caniliridgo octob. IS). lU8(i.-

2 ovigooiiall writts 0-4-0

Drawing tlio Declarat ion 0 - 2 - 6

Entring the action 0-10-0

fileing tlip Declaration 0-1-0

senieing the sumona 0 - 1 - 0

In the original this name is cancelled. Int-erlined in the original.

I'^.ndorsed: " Court's Resolve in point of Law." The endorsenieiit on the original 'paper.

The word.^^ inelndei! in ]iareiithcses are in a dilTorent handwriting and ink from the rest of the verdict.

"° Tliese items are blotted; apparently the charges were revised by the Court.

OS

HISTORY OF CHELSEA [ Chaps. XIX-XXI

Copia of Mr BradsirfiotR & RawHons Tostimr) to prone l)cr licir 0 - 2-0 Copia of Mr l5r!ulHtr(!tt8 & My Rawwonn Tclimo aboul tlic

arficlcH >i'i

JarriH PcincrionH & wivos dcpoHit ion copia o - ] - 0

Slaiiii)inf,' tli(; \vrit(,n in llie HcorcfaryH olfis ()_()_ 8

To llui .Jury 0 Hliilling with what more the Court will allow . 0-0-0

To Drawing the Rule of Court 0-2-0

To the Plantill's attendance this Court & other (.'harfres carriing

the writt to the Marwliall 0 - 10 - 0

To Atturneys fees attending two dayes O-15-O'"

2-15-2

Allowed fifty fine shillings & two pence besides filing of papers 0 - 4-4

W : S 2-19-6

Recording Judgement -2-

3 - 1 - C "»

The Composition of the Jury

The names of the persons of the severall towns of Middlesex pricked for the pannells of both Grand & Petty Jurors for the Court of Cambridge to be held on the first Tuesday October 1686.

Charlestown

Grand Jurors Eichard Lowdon X Thomas Lord sen? X

Cambridge Mr William Manning X Mr 1" Eichard Eccles x

Watertown

Gregory Cook X John Livermore X

■ Cancelled.

Apparently revised by the Court, lis William Stoughton, the judge in this case.

Endorsed: " Capt Paige's bill of cost." ™ This paper, filed in a bundle marked " Court of Pleas and General Sessions of the Peace Oct. 1686," gives the composition of the petty jury which rendered the verdict in this case. Three handwritings, each in a different ink, can be distinguished. The body of the document is in one hand; the date and the signature of Thomas Greaves in the second; the signature of .John Green, the cancellings, the " Tho " of Tho Lind, and the " for " (i. e. foreman) after the name of William Green in the third. John Green of Maiden was appointed Marshall of Middlesex County May 28, 1686; William Green was his brother. See Corey, Maiden, pp. 313-316 (also note 40) 324, 325, etc. See supra, p. 30, note, as to this mode of choosing jurors. "1 Title cancelled.

This name is cancelled. See the list of jurymen given infra, p. 70.

Petty Jurors

Mr Ebenezer Prout

Steven Waters

]Viri2i Thomas Oliver Zachary Hicks

Thpmas Leverill Joseph Child jun?

CirAi-H. XIX-XXI]

APPENDIX

00

Benjamin Moor X Edward Rico X

JlllllCH l)l()0(l X

John Hull Hcn!' X Tho'^^' J;ind X

Uiinaniah Parker X JoHcpli Wri<i;lit X Simon droshy X Left, 'riiornas Adams Left William Laken X

Siidliury Mall)o?'oii;.di ( '(Hicord Med ford ]\1;inld<»ii

Tti'dilin;,' W'ohurn Billcn'ca Old insford (i rot on Slicrhurn

Josfpli frrcf'inan Ol.iiiliidi Ward l>iiiiifl

W'illiiiiii (Irccii fori 0- iiiaii I

J>('iiJ;iniin nilcli

James fl'ow l

Xalli;ini<1 ilill

Solomon Keies

Jolin l*age'--

Jonatlian Wliitnv

John Perry X

September . 8 . 1G8() Tlio : C reaves Justie(! of Peace for

Middlesex

John Oreen Mars"

The Judgmcnl on the Appeal^-*

Att a Court of y\|)])eals, (Jrand Assize and jxonorall Goal do- livery holden at Boston in y*^ (\)unty of HuH'olk in the territory and dominion of New-England Novemb!" 2'^ 108(5 Annoi] itrlt'^ Jacobi Angliae (fee"- Secundo. Before y^ hono'''.'^ Joseph Dudley Esq'' President Ae^, W'P Stonghton Esq"" Dep : Presidt ; Peter Bulkley, Pieliard AVharlon, Hart: (Jidney, I'Mward I'andolpli, Waite Winthro})e, John llsher, and Edward Ting Escpiires & of

™ This name is caiicollod. 8oe tlu> list of j\iryiiu'n ;j;iv('n infra, ji. 70. " l']nsi!i;ii " cauc'i'llcd mid " Tlio '' inlcrliiicd.

]\1SS. of (lie Sii])r(>iiio .TiuliciMl Court, ii. S-11. Tlio rocords of tlio Middlcsox Coiiiity Court for this p(Miod are lost, but tho judgiiioiit tliore was quotod on tho ajiiical.

This was tho lirst sossion of the oourt aftor its roorpuiization by ProsidoiiL Dudlov. Tho aiipoal from tho Sutfolk (\)uiity Court in Cooko rt al. vs. Paitro iiniiiodiatoly prooodod tliis oaso, liointr r(>oordod on tT. ;)-8 of the record, and the writ of execution in that case on IT. 14, 15. 8ee supra, p. 30.

70

HISTORY OF CHELSEA

[OiiAi's. xix-xxr

Coiiiiccll l-]lisli;i Cooke and ./oliii I'.uitcII appi'llanl.H

vcrsiiK (John Ooo lessee ol')'-" (Jii|)i: Nicholas I'ai^e and Anna Paiffc his wife appellees. From ilie verdict of Jury and Jud^^^e- ment of tho Court of J'leas holdeii For his inajeslie att ('anihridge in y*^ County of Middlesex on llie 1!)!'' day of Ocloher Anno Dom 1G86. Annoq 1ttt« Jaeohi Angliae &ci 2*"?

That is to say (Kichard Hoe) pit versus (John Doe) upon fi writt of Ejectione lirmae from one Messuaf,re or tenement & about fourty acres of Land, Scituate, ivycing, and being att Maiden in the county of Middlesex.

Capt? Nathaniell Thomas attorney to Capt: Nicholas Paige and Anna his wife the Lessors of the pits apj)eareing, and Elisiia Cooke in belialfe of himselfe & John Burrell, was adinitted de- fendants, and entred into y<^ following rule vizt. Itt is ordred by the consent of Nathaniell Thomas attorney to (I'icliard lioe lessee of) ^-'^ Capt. Nicholas Paige, and Anna Paige plaints & Elislia Cooke for himselfe and John Burrell in the county aforesaid, for that he the said Elisha Cooke is allowed defendant, who is without delay to appears & plead by himselfe or attorney to a general! Jssue at this court, and at the tryall thereupon to be made the said Elisha Cooke shall appeare in his own proper person or hy his councell, or attorney, and accknowledge A Lease, entry, and Ouster, or that in default Judgement shall be entred against the casuall Ejectour, but farther prosecution against him is Suspended, untill the said Elisha Cooke hath made a de- fect in some of the premisses. And by the consent of councell it is ordred farther by the court, that the aforesaid Elisha Cooke shall take no advantadge against the pits, for his not prosecuteing upon the tryall, occasioned by such kind of Default, but that the aforesaid Elisha Cooke shall pay the pits costs of court to be appointed. And it is farther ordred that the said (Eichard Eoe lessee of) Capt: Nicholas Paige and Anna Paige plaintiffs shall pay y® Costs of the Defendant, which the said court shall appoint or adjudge.

■ Att the said court by adjournment the 20*'^ day of October Anno Dom 1686. The pleas of both partyes being fully heard, & evidences read, the case was comitted to y" Jury (vizt) whose names are in the margent,^-^ whoe returned theyr verdict thereon,

The words included in parentheses were interlined.

Interlined above a name cancelled so as to be illegible.

The names in the margin are: Will: Greene, Ebenez: Prout, Stephen Waters, Thom : Oliver, Zech : Hicks, Joseph Child, Jos. ffreeman, Obadiah Ward, Ben: fi'itcli, James ffowle, & Jonath: Whitney. See supra, p. 08.

ciiAi'H. xix-xxn

AI'I'KXDIX

71

tlicy foiirid for llir- pll,H, Uk; LundH, arul lonomonts fined for & (josj.H ol' coiirl. IIL in llicn'rorc coiisidcrfd y" court tluit the j)liH hIiiiII rccoviT I lie :i Fo/'i'sii id l/.iwd-. iV, Ii-i]ciii(;nt8, & additioiiall (liUfiir]ii;^i'S loi' cosIh ol' Siiilc 'I'lio ddViidaiil jtfipf.'jilwl from this I iid^ciiicM I , iiiilo Ins in;i jcHi ics iicxi, Coiirl, of A (ipeiilcH & frnirid- jiKHizc lo l)c lioldcii IJo.slon licforc llic lioiioflic) IiIk Majcstit-a Prcsidi'ii I. iiiid (■(jiiiici'l I, foi' lliis liis iiiiiji.'slir.'.s torritor}' and doiiiiiiioii of NTow-Enffliiiid, NovimmI)!' 'l'' \>wr, And iiccor(liii<^ly nit tlii.s (Jjiy ilu; k'' Appclhiiil Klislia ('ooko caim; imIo iliiH court, iuid defended the wnui<( niid Injury wlieii a &(:", and Kaid (as in y'' forincr court lie siiiil) I hat he is not f(iiilty of y" trespasse and ejectnieid. as the y\pp(,'llec,s have ' ohjecled against liini.

'riierefore, the I'rovost Marshall is coiTi'anded lo suniinoiis a Jury to try the said case, l)el\veen(! Ilu; said appellees (I'ichard Koc Icssw! of) ('apt: Nicholas I'aif^c, and Anna l'ai;:e, his wife, and the s'' a])pellanls, for lhat the said ajjpellants as well as (he said Appellees, have pul- llieniselves upon y"-' Jury &e" And ihe said Provost Marshall did according to tlie coiuand of Ihe court, pre- sent a pannell to try the said case. Vizt

Sampson Shea fe ,)olin Minoil

-Joseph Lynds J'eti'r Woodai-d

Krauc: iiurroughs Wl' Deaue

Who were iinpannelled and sworn accord inii'ly (o Iry Ihe said case, and Ihe pleas of hoth parties heing fully heard, and evidences read, the case ivas coiTiitted lo the Jury vi/,t. said Sani])son Slieafc, Joseph Lynds, Francis Burroughs, William Whil(>, Daniell Brewer, John 15reck, John Minott, Peter Woodard, William Deane, Sam: (loll'e, ,)ohn Hammond, John ]\losse. Being re(|uire(l to give theyr verdict in the said ease, heing em])annelle(l. and sworne, as aforesaid, and the marshall sworne to keep y'^' and they returned into (he court, and doe say upon (heyr oalhs (hat they find for the appellees conlirmation of (he verdict of the former jury (vizt) they found for the Appellees, (he Lauds & tenements sued for, and Costs of Courts.

ThcM-efore it is considered hy tlu^ s'' (\>urt 'That the aforesaid pit ought to recover his afon^said (earme yet (o come, of, & into the said one messuage or teiu'ment, (!v: ('our(y acres of Laud scituate, Lyeiug. and heing, at MahliMi in (he County of ]\lidd'^, with theyr appurtenances to Enter. And now (he said

William While Daniell Brewer John Breck

Sam: Goffc John TIaiTiond. iV John Mosse

72

HISTORY OF CHELSEA

[Chaps. XIX-XXI

appellant Elisha Cooke appealed from I Ik; judgement of tliis Ins majesties court of appcales and grand assize, to his majcstie in ('ouncell, wliicii apjxiale was allowed by the court, u])on (;oiidition that the appellant, I'orthwitli give bond with sufficient sureties to the vallew of 500" sterling, unto the said Ca|)t: Nicholas Paige that he y« saici appellant by hiniHclfc or his LawfuU attorney, doe draw forth from y'^ Secretary & clarke of the said coui't, coppies of the records, ludgenient. Pleas, and Evidences on both sides, & Lay the same before his Sacred Majestie in councell ; and j)rosecute the said appeale to efect, so as to shew forth before his said majesties President and councell, or other his majesties gouuernment, for y** time being for this territory, within nine months next comeing, (or such farther time as his majestie shall please to allow) his majesties iinall judgement and resolution in the said case of appeale, & his directions thereon, and pay such costs as shall be determined by his majestie, within dayes next after

return of such Judgement./

Writ of Execution

jSTew England ss.

James the 2"^, by the grace of God of Engl'^ Scotia

ffrance & Irel'.^ King Defend'" of y*^ ffaith &^ To y® Provost Marshal of Our Territory & Dominion aforesd, or his Deputy. Know ye. That Richard Eoe lessee of Capt Nicholas Page & Ann Page, as wel at our Court of Pleas held in Cambridg for Our County of ]\Iiddlesex in Our Territory & Dominion aforesd, on y"^ Thirteenth day of October last past; as also at Our Court of Appeals & Grand Assize held the Second day of Novemb-' also last past at Our Town of Boston in y*^ County of Suffolk, in Our said Territory, hath recovered against Elisha Cook & John Burrell his term yet to come of and in a certaine Messuage or Tenement, a parcel of "Woodland Arable & pasture land ; in all about fforty acres with y*^ appurteiices Situate lying & being in y*^ Township of Maiden in y^ County of Middlesex ; Which sd Messuages Lands & p^'misses Capt Nicholas Page & Anna his Wife, the ffirst day of May in the sec*^ year of Our Eeign, unto y® said Eich? Eoe did demise To have & to hold unto y*' said Eichard Eoe from y^ Twenty fifth day of March now last past, unto the end & term of Three years thence next insuing fully to be compleat & ended; which

Cancelled so as to be illegible. "° MSS. Rec. of the Supreme Judicial Court, ii. 15, 16. Tlie writ in the ease appealed from the Suff. Co. Court precedes this on fT. 14, 15.

CHAI'H. XIX-XXIJ

APPENDIX

73

Hiiid icrrn is not yd p;iKl, & from wlionco y" aforoHd EliHha (Uiok & John liurrcll (liiri tin; H(i Ificliard Roo Lokhco iiforcsd from liiH ui'on-'HJu'(J nVrrn IjiiridH & p'^iriiKHcs did cac.vX, wliorcol' tlioy urf; oon- victod : 'I'licrcrore We command you, That unto the aforesd Iiich- ard Roe, Ijcsscm; al'or(!Hd, his I'oHRCHHion of Ihh aforcKd 'I'criii yt to oornc;, of & in the w! McHKuagf! Land & [(''iinHHCH with their a[)- purlericcH, wit.lioiil, ddiiy you f,nv(!. A'lid liow you Khal (;xecute this our Writ, you Hhal make l{(;turn.

WiTNJOss Joseph Dudley Presidcait of Our Tcrrilory ^' iJoinini'jn aforcHd iliis Si^vcnlccnlli diiy of Ddcemb'' Afio Rc;:iii Nri Aii;.diae &e S(!(uiiido Ano(i Domini I (i.S(i. ]'](! Randolph Seer.

Curiam

Ben: Bullivant Cleric "j By vertu of this Writ to me directed, (Jurine Super Dom : Ileg: r y® Eif^liteenth day of Deceuibr in y^ N. Anglia j year within men(Tjiicd, I liavc given

unto y*^ within menc^jned Rich'.' lioe his possession of his term within writ- ten of & in tlie tenements within specified, with y'^ appurteiuuices, as by y^ within Writ I was comanded. Pet. Bulkley Prov^ Marshal Entred & recorded according to y*-' Original y*-' 30"> Deeenib!' 1 'iSG

Benjamin Bullivant CI.]

74

HISTORY 01-' CHELSEA

[CiiAi-. XXI

APPENDIX

[Nicholas Paige was proprietor of both the Keayne farms from 1G8G until his death in 1717. Joiin Chamberlain was lessee of the little farm in 1703, and William Owen was mentioned in con- nection with the great farm in February, 1703/4.^ In 1701 Owen was taxed for one poll and one horse; in 1702 for one poll, one horse, one cow, a house, and six acres of upland and meadow. Colonel Paige was taxed in 1702 for five negroes, eight oxen, six- teen cows, two hundred sheep, five swine, four horses, and four hundred acres of upland and meadow.' Sept. 7, 1703, Paige agreed with Prancis Leathe of Ipswich to build as speedily as possible a house with a stone cellar, a lean-to, a well, and a barn forty-two by twenty-two feet, and rent it to Leathe for seven years at thirty pounds a year in silver. Leathe agreed to pay all taxes, and plant an apple orphard of five acres, Paige paying for the trees and fencing one half. By writ dated May 23, 1711, Paige brought suit for rent for the year ending March 25, 1711, against Francis Leathe of Charlestown.^ March 27, 1710, Nicholas Paige leased to Thomas Marable for three years at twenty-four pounds a year a " Messuage or Tenement commonly called or known by the name of the Lamb with the Farm and Lands thereunto belonging with the appurces Eumney Marsh." ^ The following October the Selectmen of Boston approved " Thomas Marble " to " Sell Strong drinck as an Inholder at his House nigh Coll? Paige^ at Eumny Marsh." Three times within the previous three months they had disallowed his petition.* March 31, 1712, Thomas Marable peti- tioned the selectmen of Boston. He explained that some years since, because of his " Long continued Lamenes," which unfitted him for active work, and " the great Charge of Children w?^ he had," he obtained a license to sell drink, " not Long after w?^ Coll°

' Suff. Deeds, L. 31, f. 53; supra, vol. i. p. 651.

' MSS. Rec. of Inf. Court of Common Pleas for Suff. Co., 1710-1713, pp. 51, 52; Suff. Early Court Files, Nos. 8354, 8310. With the farmlands included in this lease was a parcel of marsh or meadow " known by the Name of Forty Acres lying and being between two Ditches and adjoyning to Mr John Chamberlains meadow and the said Paiges meadow." Infra, p. 83. Leathe could cut firewood on the farm. Verdict for Leathe.

' Ibid., p. 127 ; Suff. Early Court Files, No. 86G9 ; see also vol. i. p. 1681 « Records of Selectmen, Boston Rec. Com. Rep., xi. 112, 115, 118, 119.

CiiAj'. XX J I

APPENDIX

Paigo liiH Ijiiii'llonl piild (lovvnc llic IIouk'; wficr : in y'' f'etr Lived, Kf) l,li;it iK ;iow rciriovcJ inio Uh; JIouso w'-'' was forrrirly Capt Tlioi' IJcrrys." '' In coiiKidfral ion of his (;on(,innf'(l illnoHH, and his fiv(! Hniiill chililrcn liciiskcd " his wi I'c ina y Ale of Her owne brewing', & wine bvuv & (Jydci'." " The |)el,ilion was rejected. By wril, (laled May IW, ]7]2, NichohiK I'ai're Kned Marahle for two years' I'cnl, cndin;;' Maivli '.'7, 11 1?, and ol)l,aine(l a writ of exe- enlion June Kl, 171.'!. Api'il (>, 1711, lln' Scl(;et.inen directed the |i('i-anihidalurs lo nicel. " al y'' lloii. e \Uiitc 'I'lioinas Marble Lately

(IwidL now in the Tenure of Laiiison in II. marsh." July 5,

1715, they ay)prove(l John Lamson to sell "Strong drink as An Innlioldei' at a. Teneni' he iiires of Coll" I'aij^e at Kuniny Marsh." Lainson's house; was in(;idioned in the peranihulation of the bounds btitween P>oston and Maiden in 1717 as near tlie boundary, that is, near Black Ann's corner. And Ihe house; wliere the " Si^^n of tlio ]jajnb " had been was nieidioned in Ihe |)erainl)ulalion of 17;};^ as in Captain Oliver's farn: on Ihe road lo Lynn near lln' county bridge. Li tlie perambulation of 17;jr), it was said to be in the occupation of Jolin Lathe. Whether Colonel Paige built and leas(;(l other tcnenienis on his farm is not known; leases were not ordinarily recordeil.

The deed of gift of February, 170:3/1, I'l'om Xidiolas and Anna Paige, V(>sted the title to the larg(> farm in (iovernor J)u(lley and Nalhanael Thomas for the use, after the death of Colonel Paige and his wife, of " M''^ Martha llobbs Neice to the Nicholas Paige and to the lieirs of her Body lawfully to he begotten for- ever." She married November 30, 1709, Nathaniel Oliver (IL C. 1701) a member of the Artillery Company (1701), son of a wealthy merchant of the same name, who l)or(> Ihe first sum- mons of surrender to Governor Andros at Fort Hill in KJsn. The son was not successful in business, and shortly after Colonel Paige's death was obliged to remove from his home on IMilk Street in Boston to the farm at Rumney Marsh. Ther(> he prepared young men fo'r Harvard College, was a Justice of th(> Peace, and active in the alfairs of the town until the growth of a settlement at Pulleu Point, and the coming of Colonel Thomas (loldihwait. Previously to this Captain Nathaniel Oliver had shared with Judge Samuel Watts the honor of presiding at \ho town meetings. Also he was selectman from 1749 to 175'i, i\nd town clerk from 175;? to 1757. He died in December, 17G8.

» Vol. i. pp. 280-200.

" Misc. Papora in City Clerk's Oflicc, Boston, i. 135; Boston Rcc. Com. Rep., xi. ICC.

76

HISTORY OF CHELSEA

[Chap. XXI

His three Bona, wore: (1) Nathaniel, Jr. (IT. C. 17.33). He was a lawyer and resided in Chelsea and Boston. In 1741 he married Mercy, daughter of lion. Jacob Wendell, a wealthy mer- chant in Boston, Colonel of the Boston ]{egiment (1742), and a member of the Governor's Council, 1734-17G0. He married second, in 17G3, Sarah Hill, who survived him. Nathaniel Oliver, Jr., died December 26, 17G!i, leaving two sons, Daniel (then a lad of 16) who graduated from Dartmouth College in 1785, and was a minister at Beverly; and Nathaniel, aged four in 1769, absent at sea in 1784. (2) Peter (H. C. 1737). He was a sea captain, and died in the West Indies. (3) William (H. C. 1739). He married in 1742 Eebecca, daughter of John Sale of Chelsea, and grand- daughter of Hon. Penn Townsend. He was a farmer in Chelsea, where he died in 1782 ; his widow died in 1801. Two sons survived him : William, an innkeeper in Chelsea, and Nathaniel, a physi- cian, who lived in Marblehead and Danvers. His daughters married Edward Wait and Walter Perkins.''

Nathaniel Oliver, Sr., was heavily burdened with debts, when he came to Chelsea in 1719. He mortgaged both his own and his wife's estate in Boston to secure his creditors, and also mortgaged the farm for a term of sixty years " if the said Nathaniel Oliver shall so long live " to Thomas Palmer and others as security to fourteen creditors ; he received a lease for the same term of years at one hundred fifty pounds a year.* The legatees of Colonel Paige were obliged to collect their legacies by process of law, exe- cutions being issued in the spring and early summer of 1719 for an aggregate of about £370.'*

March 1, 1738 [1739] Nathaniel and Martha Oliver, seized of the farm " in the Eight of the said Martha in fee tail," released their right to one hundred and ten acres of upland and forty acres of salt marsh at the east end of the farm to Nathaniel Oliver, Jr.^" The deed expressly denied to the son all right of alienation. In 1749 Nathaniel Oliver, Jr., suffered a common recovery to bar the entail. The following indenture of May 15, 1749, shRws the process. This indenture " Witnesseth that Whereas by a plea of Land commenced at the Inferiour Court of Common pleas held at Boston in and for the County of Suffolk on the first Tuesday of January last the said Samuel Sewall Demanded of the said

' Descendants of Captain Thos. Brattle, 55, 59-64. « Suff. Deeds, L. 34, ff. 4, 23.

" Rec. of Inf. Court of Common Pleas for Suff. Co., 1718-1720, pp. 232- 236,388,412; also i&id., 1727-1728, p. 448 ; ibid., 1728-1729, p. 480. Suff. Deeds, L. 34, f. 143.

Suff. Deeds, L. 81, f.l71.

Chai'. XXI]

APPENDIX

17

Niilii;ini('l Oliver jiiti'' llic Followin^^ 1 met of Ijiiri'l ... in Chelsoa aforesnid bounded . . . SoiiLliweKlerly on the 'I'owiih i'oiid loading from tlio Country Koiid to (JhelHea Meeting douse eontaining by Estimation one hundred and fifty aeres, as his Inheritance & Kight, and into whidi the said Natlianiel Oliver junT bad no Kntry but after tlio Disseisin, wliieli Hugh Hunt tiiereof unjustly and with- out .ludgUH^nt eorninittcid against the said Samuel Sewall within Twenty Years last past, and whereof he eompiained tliat the said Nathaniel Oliver jun'" unjustly deforced him &(tl''} ufilo wlncli plea th(! aforesaid Nathaniel Oliver jiuiT did forthwith ap[)(,'ar, and Vouehed over the Oonirnon Voueliee to Warrant the premisses, who did forthwith appear enler into Ihe Warranty of the i'remis- ses, and afterwards made J)(!fault, wluireupon a Coinmon HeeoverA' was had and recorded of the Premisses as by the Kecord thereof may more at large appear. Now therefore it is Declared and Agreed by & between the Parties to tliese presents and tliey ilo hereby severally for themselves and their heirs agree & Declare that tlie aforesaid Recovery of the tract of land and Appurces, and the Execution thereof, shall be and Enure to the only use & behoof of tlie said Nathaniel Oliver jun'." his heirs and assigns, and the said Samuel Scwall and his heirs sliall forever stand and be seized of the said tract of Land and Appurces to tlie only proper us(! and benefit of the said Nathaniel Oliver junr his heirs and assigns forever and to no other use intent or purpose whatsoever." This indenture was recorded March 8, 1749/50, and on March 9, Nathaniel Oliver, Jr., mortgaged the land for £500 to John Ham- mock of Boston.*' Four years later, in 1753, Samuel Watts by agreement with Nathaniel Oliver, Sr., and his sons Nathaniel, Jr., Peter and William Oliver, the mother being dead, obtained in the court a common recovery to bar the entail for the whole farm. The agreement was that Nathaniel Oliver, Sr., should possess the western half of this tract of 768 acres for life, after which it was to pass to Peter and William Oliver. Of the easteni half, one hundred fifty acres were to be conveyed to William Story, niul the remainder was to be for the use of Nathaniel Oliver. Jr.. after two debts to Samuel Tuttle and Samuel Walls had hvon satisfied. Immediately, September 2(), 1753, Nallianiel Oliver, Jr., and Mercy his wife conveyed title to the land to James Pitts and Thomas Flucker.*''' Presumably Oliver remained on the farm, as he continued active in the affairs of the town, and there is no evidence that Pitts or Flueker lived in Chelsea.

" Suff. Dppda, L. 7S, f. 10.

" Cliaiiiborlnin MSS.. iv. 47; SufT. Deeds, L. 84, ff. IC-IS, 20, 23. " Suir. Deeds, L. 84, f. 24.

78

HISTORY OF CHELSEA

[Chap. XXI

Jn 1755, Tlioiriiis l^'luckcr piirchaHod llio riglit of I'oler Olivor, deceased, to one fourth of tlie fiinri, the deed to take effect on the dcnih of Nathaniel Oliver, Sr. According to a later convey- ance Uic farm contained "by an accurate survey six hundred and sixty six Acres, but was formerly said to contain seven hundred and sixty eight Acres," — the eight hundred s(!ven acres of tlic survey in IGSG less the forty-acre lot of rnarsli given 1o Paul Dudley with the little farm. As six acres were deductcsd for the highway, the western half of the farm was estimated to contain 3;j0 acres. According to a survey of the farm preserved in the Massachusetts Archives, it contained in 1755 six hundred fifty-five acres, one quarter, twenty-three poles." December 16, 1774, Thomas Flucker of Boston assigned his rights in the eastern half of the farm, and in one half of the land purchased in 1755, 82i/^ acres, to James Pitts of Boston,^'^ who acquired thereby a farm of 4121/2 acres, which his heirs sold in 1779 to Bobert Temple of Charlestown.^*'

Title to this farm of 4121/2 acres, enlarged by some eighty- five acres from the farm of William Oliver, passed successively to Nathaniel Tracy of Newburyport, Thomas Russell, and Andrew Leach of Boston." There is no probability that any one of these owners lived on the estate. When the direct tax of 1798 was as- sessed, the farm was owned by Andrew Leach. There were two houses about half a mile apart. The one nearest the meeting- house was occupied by James Blodget. It covered 1284 feet, was of two stories, had fourteen windows; was " Verry Old," and with an acre of land was valued at $220. Presumably this was the house occupied earlier by Nathaniel Oliver, Jr. The other house, de- scribed as about two miles north of the meeting-house, was occu-

" Suff. Deeds, L. 8.3, f. 1, L. 87, ff. 18G, 190; Mass. Archives, Misc. Maps and Plans, xiii. 1.3.

" IMd., L. 126, f. 234.

*° Ihkl., L. 131, ff. 1-4. Beginning at the soiithwest corner of the farm in Samuel Sergeant's line, at the corner of Temple's thirty-two acre lot, the boundary ran southeast by Sergeant's boundary-line to Chelsea road (now Maiden Street) , then east by the road to Mr. Fuller's land ( Charles E. Fuller in 1874), then north 12 rods, then southeast by said Fuller to Chelsea way (a way to the back marshes along the western boundary of the B. H. Dewing estate), then by the said way to the Dudley marsh, then northwest by the Dudley marsh, then north by said marsh to the river (in 1874 between the heirs of P. C. Hall and Tewksbury). The river formed the northern boundary to the marsh of William Waite, whence the line ran south, bounded west by land of William Waite, William Oliver, and said Temple to the first bound.

" IMd., L. 131, f. 4; L. 132, f. 156; L. 150, f. 189; L. 161, f. 184; L. 152, f. 62; L. 177, f. 150.

CirAP. XXII

APPENDIX

])]<;(] l)y .lolin M'^Dowcll, wlx) w;m ulso Icniint of fiirrri lands. 'J'liiM liouso covered Ui2 l I'c.c.i, wuh of oik; aiory, iiiid li;id Iwcnt y-lour windowH. '^rhoro Wii8 also a one-story " I'unip lIouHe" tJiat c.ov- cTcd 50 1 reel,, and a iwo-story granary that covered 800 feet. ^.I'liesc! l)iiil(lin<rM witli an aero of land were valued at ijiBHO. 'J'he farin landK, 50;} acres, with two barns (120 X .'H feet and GO X ;;() IVcl ) and a, " I'.laeksmith's Hhop " CM) y \H feet), were valiK.'d at $H,0!)r). TIk; fartri was deserihed an hounded s/-)uth by Samuel Sar^^eant; west liy town mud (I lie ro;id to Lynn); north hy a riv(!r (tli(; I'iiies IJiver) ; and east hy Samuel Sewall and others (Cornierly ("o^ran's f^reat I'arin).

In 1798, Nathaniel Hall of " Westboston " purchased it of Andrew Leaeh for $8,100, tlum a farm of some five hundred acres.^" March 14, 1803, Nathaniel Hall conveyed to Jonathan r. Hall for .$1,(;00 about 250 acres, bounded east by land of the grantee from tlu; town road to the river; north by the river and marsh of William Wait and others lo llie Winnisimmet road; west hy that road to the town road leading lo Chelsea meeting- house; south by the latter road lo the (irst bound. He described this as the west half of the farm that he purchased of Andrew Loach. 1"

William Oliver, like; his elder brother Nathaniel, lost during his lifetime the greater portion of his farm. In December. 1781, the executors of the estate of Benjamn Lynde obtained a judgment "against William Oliver for .£120 (J.v. and bad off to them in April, 1783, three parcels of land containing ninety acres seventy-five rods. Fifty-three acres fifty rods were bounded west and northwest by the (\)>Hdry road, northeast by William Wait, and east and south by Nathaniel Tracy. Twenty-nine acres were bounded northeast and east by the Country road, south by Tower Hill, west by the county lino,