Provincial Court Proceedings, 1674. 247

       his heirs executors administrators firmly by those presents notwith- Liber M M
       standing which the said John Upgate the Said Summe of One thou
       sand eight hundred twenty & eight pounds of tobacco according to
       his Said writeing Obligatory hath not paid though often thereunto
       required but the Same to pay hath hitherto denyed and Still doth
       altogether deny to the damage of the Said James three thousand
       pounds of tobacco & thereupon he bringeth his Suite.
        And the said John Upgate by Robert Carvile his Attorny doth
       come and defend the force and injury when &c and prayeth heare
       ing of the Said writeing Obligatory and it is read unto him he
       prayeth also heareing of the Condition of the Said writeing and it
       is read unto him in these words The Condition of this Obligation
       is Such that if the abovebounden John Upgate Cooper doe well
       and truly pay or cause to be well and truly paid unto Captaine James
       Neale his heirs or assignes the full and just qauntity of nine hundred
       and fourteene pounds of good Sound merchantable leafe tobacco
       in caske upon demand at my now dwelling plantation in St Maries
       County or that then this Obligation to be Void or of none effect
       otherwise to Stand remaine and be in full power force & Virtue.
        Which being read and heard the Said John Saith that the Said
       James ought not to haue his action aforesaid against him because
       he Saith that he hath well and truly performed the Condition of
       the Said writing Obligatory and paid unto the Said James the Said
       Summe of nine hundred and fourteene pounds of tobacco in the con
       dition of the said writeing Obligatory mentioned according to the
       forme and effect of the Condition of the said writeing Obligatory
       and this he is ready to averr whereupon he demands judgmt whether
       the aforesaid James Ought to have his action aforesaid against him.

        And the aforesaid James Saies that he by any thing before al- p. 180
       leadged ought not to be debarred from haveing his action aforesaid
       for that he Saith that the aforesaid John Upgate hath not performed
       the Condition of the Said writeing Obligatory nor paid unto the Said
       James the said Summe of nine hundred and fourteen pounds of to
       bacco in the condition of the Said writeing Obligatory as the a fore
       said John hath above alleadged and this he is ready to averr where
       upon he demands judgment and his debt aforesaid together with
       his damages to be adjudged to him.
        And the Said John Saith that he hath performed the condition of
       the Said writeing Obligatory and paid the Said nine hundred and
       foureteen pounds of tobacco to the Said James as by his plea he
       hath alleadged and of this he putts himselfe upon the Country and
       the plaintiff likewise therefore it is Comanded the Sheriff of St
       Maries County that he cause to come here twelve &c who aswell &c
       to recognize &c.
        Att which day to witt the Sixtenth day of April in the two and