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(173) And whereupon the defendt by his Attorney James: Sangster Comes and defends the force and injury &c and saith that as the plt doth declare he did lease a Certain plantation of mr John:White late of this County deceased, for the terme of six years, which in the first place is altogether false as the lease will make appeare being but four years 2dly the plt doth declare that he the sd plt did lease a certain plantation, but what plantation or where there is nothing more uncertain, (the sd mr John:White decd being seized of severall plantations with the names & where they lye ought carefully to have been inserted Otherwise it appears that this plantation by the plt alleadged was no plantation of mr.John:White deceased & consequently y decl false 3dly the plt sayes, that at the expiration of six years he did remove of the sd plantation which is by the defendt granted and further he sayes that he left 16. hogsheads of tobacco in a tobacco house upon the sd plantation which is also false, being a dwelling house. Now herein the plt is herein also uncertain as to the quantity or quality weight or Condition, Sound or rotten, So that no judgmente can pass, if all that the plt doth alleadge thereupon were really true. 4thly the plt alleadgeth yt the defendt did take the said 16.hhds of tobacco which in Law terms doth amount to an appropriation which is likewise false & 5thly that the sd defendt did put out of the sd tobacco house the sd 16.hhds of tob. which is by the dft likewise warranted as thus. The plt anno 1688. was tenant by lease paroll, and being lawfully warnd to remove about the latter end of december that instant year the plt did remove leaving his tobacco part in hhds, which was removeable without damage notwithstanding the sd plt being warned as sd is to transport and remove the sd tob. with all other his utensells, yet the said plt obstinately maliciously and with a premeditate intent to damnifie the defdt, the said tobacco would not remove, having sufficient warning and time betwixt Christmas and the first of July following 1689 at which time the defendt had use of the sd house to secure his wheat and lastly the plt sayes he is damnified the value of 10000lb.of tobacco which is a certain Sum which cannot hold good in law, the principall being uncertain the damages is nor cannot be certain no judgment can be intered but by the whole, that the plt doth and may alleadge is the turing out of the said tobacco, which the defendt. Justifies & sayes that the plt in the sd house had no property, and ought the same tobacco to have removed after notice given to remove the Same, as also the same he ought to have secured from damage the means being in him Selfe and the defdt no wayes being obliged to Secure or keep it, for all men are bound to prevent their owne hurt and if they neglect, the law calls it damnum Sin injuria, and they remediless. The defendt likewise sayes that he could not expose his own Cropp of wheat to the hazzard of the weather for the saifty of another mans goods, the law sayes. Nomo teneter Exponere Seni fortnimys et pericut Likewise Nulle Commodum Capere potest de injuria sua pria, being so sure maxims in Law that the plts malicious intent plainly appears in the said vexatious suit Expecting to take benifit by his own wrong Contrary to the sd rules and reason & lastly the defendt sayes that there is nothing certain in the whole declaration whereupn judgmt might pass, and it behave =th that athing certain be brought into judgment Secundi axioma opertet ut res Certa doducatur in Judicium and if nothing certain a Non suit follows in Course. J. S ........ The plt Craves that the matter in question may be referred to a Jury which by the Court was granted. Which Jury was legally impannelled and duely Sworne, whose names are a followeth. Viz) John:Bozman William Robbinson John:Bowns. Alexander Thomas, Moses:ffainten Robert Polke, Ralph:Milbourne. Samuel: Shewell. John:Tarr. William:Bozman. Matthew:Scarbrough : Thomas:Oxford who having heard the total proceedings, having recd their Charge goes forth to determine the Same. - - - - - - And being returned do unanimously bring into Court this following verdict. Viz. Wee the Jurors do find for the plt Damages two thousand five hundred pounds tobaccoe with Cost given in by Jno: Bozman. 4 Evidences sworne for plt. Which Verdict the Court Ordered to enter |
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Somerset County Judicial Records, 1689-1690
| Volume 106, Page 173 View pdf image |
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