350       Provincial Court Proceedings, 1676.

              Liber N N     non est factum & bring Speciall matter in evidence, but his plea
                    ought to have beene that it was not the Act & Deed of Charles Dela-
                    roch for that the bond was delivered only as an escrowle upon a con-
                    dition not performed & the plaintiff ought to have had liberty to have
                    replyed to that plea that it was not delivered as an escrowle and
                    prayed the inquiry of the Country or he might have demurred to such
                    plea and putt himselfe upon the judgment of the Court, from both
                    wch he was barred by that plea of non est factum. which was legally &
                    Sufficiently proved.
                    3dIy The verdict Ought to have been Speciall and the jury ought
                    to have putt themselves upon the judgment of the Court in matter
                    of Law, that if they but found the bond to be an escrowle & so de-
                    delivered they found it Soe & not otherwise.
                    4thly Besides the mischeife of introduceing an ill president of ques-
                    tioning the consideration of bonds or bills legally executed, which is
                    unjust & against Law, when the Law allowes so many Speciall pleas,
                    as, that it was, p dunes, p minas, as an escrowle or gained by some
                    other fraud or Collusion. This was of proceeding leaves the plain-
                    tiff remidylesse in the recovery of a just debt, which neither Law
                    nor equity can or will permit—ffor he cannot bring his action On his
                    accompt which he is ready to prove every particular of & the rates &
                    prices at which they were delivered at & for which the bond was
                    made & given & had he come with his accompt so proved by his
                    Owne Oath the Court must have given judgment for him but now if
                    he brings an action of assumpsit on his accompt they may plead the
                    bond given for Satisfaction & this judgment on it in discharge of
                    the debt.
                     The deft might in Equity have beene releived against the bonds
                    penalty, but if this be admitted the plaintiff has no benefitt in Law or
                    Equity which he prayes the consideration of the Court and judgment
                    for his debt                     Ro: Carvile.
                       Which being read & heard the Court will advise hereupont be-
                       fore they passe judgment whereupon day is given to both
                       parties here untill the morrow & order that Coppy of the reasons
                       aforesaid be given the defts Attorny.
                     Att which Said morrow to wit the Seventh day of December in
                    the yeare aforesaid came the partyes aforesaid by their Said Attor-
                    nyes The Court haveing considerately weighed the whole matter &
                    more especially the Oath of the said John Deery are of Opinion
                    that it is a good bond, whereupon it is granted by the Court here
                    that the said John Quigley recover against the estate of the said
                    Charles Delaroch the summe of twelve thousand foure hundred
                    twenty One pounds of tobacco the Principall debt aforesaid Seaven
                    hundred thirty five pounds damages occasioned by detention of the
                    debt aforesaid & thirteen hundred flinty nine pounds of tobacco costs
                    of suite.