214 Provincial Court Proceedings, 1679.

Liber N N

Now here at this day to witt the Seventh day of June in the fourth
yeare of the Dominion of Charles Lord Baltemore &c Annoqj Doni
1679 came as well the said p^lt as the said Defend^t by their Attorneys
aforesaid And the said Defend^t by his said Attorney putt in his
reason for the Arrest of judgm^t which are as followes Viz^t
The p^lt declares ag^st the Defend^t for that he the fourth day of
August One thousand six hundred Seventy five bought had & re-
ceived of him the said Edward divers Goods & M^rchandizes, & upon
that accompt together with Custome house Charge Carriage & other
Charges incident thereunto the said John Quigley stood justly in-
debted to the said Edward the sume of twenty foure thousand Eight
hundred Eighty & two pounds of tobacco And being so indebted the
said John Quigley did assume &c and for want of performing that
assumpsit say they are damnified forty thousand pounds of tobacco.
The Defend^t pleads he did not assume, & upon that plea, issue being
taken by the plaintiffe, the cause comes to tryall
The p^lt produces an accompt of Goods delivered & sould to Quig-
ley in April One thousand six hundred seventy five for three thou-
sand foure hundred forty two pounds of tobacco which can have no
relation to the declaration for Goods, sould the fourth of August.
In the same account he also charges him for Goods sould & delivered
the fourth of August one thousand six hundred Seventy five for
Fifteene thousand six hundred & Eighteen pounds of tobacco which
in the whole makes Nineteen thousand & Sixty pounds of tobacco
And in the same account giues him Creditt for thirteen thousand
nine hundred twenty fiue pounds of tobacco So that by that account
Quigley was indebted to Man five thousand One hundred thirty fiue
pounds of tobacco, but yet never proved by the Oath of Man or his
bookekeeper or any other person, so could be no evidence to the
jury, yet the jury haue found for the p^lt fiue thousand One hundred
thirty fiue pounds of tobacco.
The judgm^t ought to be Arrested
I^st Because the said account was never proved to the Court, & the
jury was sworne to try the issue joyned according to their evidence,
& they found that Verdict without any evidence att all, which is Error
2^dly Because the account & the declaracon doe not agree, which
declaracon mencons twenty foure thousand Eight hundred Eighty
two pounds of tobacco in Goods sould the fourth of August.
Whereas by the account exhibitted by the p^lt to make good the said
declaracon, three thousand foure hundred forty two pounds of
tobacco part of it is said in the said account to be sould & deliuered

p. 869

the April before The said fourth of August One thousand six hun-
dred Seventy five, which is Error
3^dly The declaration & the account does not agree, nor judgment
cannot thereon be given by the Court upon the Verdict of the jury
aforesaid, for that the p^lts account to maintain his declaracon afore-