cuted in the Law; and the Appellees pretended possession hath been always Interrupted by the Appell & those from whom he derives his Right, by continuall claim made for the same, & more especially by a Judgmt obtained by Capt. Robert Mason, dec'd, Proprietor of sd Province against Richard Waldron, Esq, dec'd, father to the Appellee, whereby he Recovered the possession of the same lands now demanded, in the year 1683, as by the writt, Judgmt & Execution on file in the caus (to which the Appell Refers) does plainly appeare.

5th For that the Jurrors ought to have found a speciall verdict in the caus, which was very much pressed and argued for by the Pls Councill before the Jury went from the Barr, and insisted on, not only from the Law cours and practice in England in like Cases, but was alsoe enforced from her most Gracious Majty order in Council, giving directions for that purpose.

6. The verdict being positive, the Appelt has great Reason to Appeall unto, and pray this Honorble Court, That they would charge and direct ye Jury to Reverse the former Judgmt and find ye matters specially upon their appeal, that so the matters of Law arising there from may be debated & determined & Judgment entred up thereupon according to Law.

All which matters and things, wth what may be further offered in Court, being duly Considered by the Honble Court & Gent. of the Jury, the Appellt doubts not, but he shall obtain a Reversion of the former Judgment & have Judgment for him, for the possession of the Lands demanded, and costs.

Portsmo, 18th July, 1707.

JA. MENZIES,

JNO. VALENTINE,

substitute or attorneys of Mdm Allen, who is the Appells Attorney.†

The above reasons of Appeal wear then given in to the office of the Clerk of the Inferior Court of Common Pleas.

No. IV.

Answer to Reasons of Appeal.

Province of New Hampshire.

To the Honble her Majesties' Justices of the Superior Court of Judicature, to be holden at Portsmouth, within and for the said Province of New Hampshire, the second Tuesday in August,

1707.

The Answers of Richard Waldron, Esq. Appellee, to the Reasons of Appeale of Thomas Allen, Esq. Appellant.

1. To the first Reason of Appeale the Defend Answers, That the Verdict and Judgment of the Inferior Court were, as they ought to be; for that it was impossible that the plaintiffe either in Law or equity could Receive Judgmt for the Lands in controversie. 2. To the second Reason of Appeale, the Defend Answers as follows:

Imprimis-as to the Deed or Grant from the Council of Plymouth to John Mason, Esq. in 1629, dec'd. from or under which the Appellant pretends to derive his Title to the Lands in controversie, it never was signed by the President nor any of the Law Council of Plymouth; nor indeed so much as by any Secretary or Clerk of the said Council, as all other their Grants of the like nature were. Secondly, There never was any Commission of Survey or Livery or Seizin made of the said Lands, which were alsoe usual with the said Council of Plymouth in and upon all their Grants of Land, and is alsoe of absolute necessitye in the Law, to make a Title to lands conveyed in that nature. And, Thirdly, the pretended Deed or Grant aforesaid never was Inrolled, as the Statute of England in such cases directs, and makes necessary. But, fourthly, that which Renders the pretended Grant to John Mason, Esq. the yeare 1629, very suspitious, and indeed of noe worth and value in the Law, is, that a great part of the lands mentioned to be conveyed in the said Grant to the said Mason, were granted but the yeare before in 1628, by the said Council of Plymouth, to the Governor and Company of the Massachusetts, by a very firme and good Grant, well and truly signed and executed according to Law and the form and method of the Grants of the said Council of Plymouth. And then, afterwards, viz. in the yeare 1635, the said Mason procures, as he pretends, a second Deed or Grant from the Council of Plymouth, of the Province of New Hampshire, and all the Lands therein contained;-a demonstration that the said Mr. Mason himselfe thought he had noe Grant in the yeare 1629, that he could rely upon. And it is alsoe

a thing in itselfe not to be supposed or believed that the Council of Plymouth should be soe Imposed on as to grant Mr. Mason in 1629, what they had before granted to the Massachusetts in 1628, or yet, a second time, to wit, in 1635, grant that to Mr. Mason, which they had before well granted in 1629, as the Appellant pretends: soe that in truth there never was nor could be any such Grant from the Council of Plymouth as that in 1629, but that the same is a pretended Grant, and noe more.

Secondly, as to the possession of the said John Mason, soe much pretended to and relyed upon by the Appellant, the Defendant answers as follows:

Imprimis-The said John Mason himselfe never was in this country, but dyed in England, in the yeare 1635. Secondly, whatever possession or Improvements the said Mason's Agents or successors might have or had in these parts of New England, it really was noe other than the settlement of a Factory and Trade with the Natives; And principally, for a Discovery of a place they called Laconia; and that alsoe in company with several other Merchant Adventurers in England, who for the support and security of their factors and Servants, and Especially from the Salvages, did Erect a Garrison or Fort as they call it, but never Amounted to a possession in Law, soe as any ways to make or confirme a Title to the Land of this Province; And therfor after a few years stay in these parts, they absolutely quitted their factoreys and little settlements, as finding the Trade of the Country would not answer their Expectations: And yet this is the mighty possession the Appellant Relyes upon.

3. To the third reason of Appeal the defendant answereth as followeth: First, That his father Richard Waldron, Esq. dec'd, was actually seized and possessed of the lands in controversie above three score years agoe, in his own demesne as of fee, and soe continued seized and possessed thereof unto the time of his death; after whose decease the lands in controversie desended to the Appellee himselfe, as his sonn and heire, who accordingly ever since the death of his father, hath constantly Injoyed and lived upon the same as his owne Right; and Possession, such a one as the Def is, is noe such Right or Title-matter as Appell' would pretend: for that first possession of itselfe in many cases makes a Title: And never with more Reason than in this case of the Defts, forasmuch as his said father when he first obtained the possession of the Land in controversie, found it not only Vaccum Domicilium, but alsoe an howling Wildernesse, scituated among the Barbarous Salvages with whome, tho' he endeavoured to main

2

tain a friendly correspondence, yett was forced in several successive Warrs to defend himselfe and his possession with a very great expence of a Great deale of mony, and at length his life itselfe. Secondly, The said Deft possession was grounded on a very good Deed well executed in the Law, from the Indian Sachems & natives proprietors of these parts of America, bearing date the 17th May 1629 (1), and quiett and peaceable possession delivered thereof by the said Sachems; And that in the Presence of the Governor & factors for the Company of Laconia, of which Mr. Mason was one, soe that Mr. Mason's agents or factors never looked on themselves to possess or live in this country as the propriety of Mr. Mason; but only as factors to manage a Trade as before sett forth.

Thirdly-And all this was transacted and done with the tolleration at least of the Council of Plymouth: And most certainly pursuant to the great end and designe of the Grant to the said Council, which was to Christianize the Heathen and to people and improve these parts of America for the honour, advantage and interests of the Crown and Trade of England. All which ends have been pursued and actually attained by the Appellee and his Ancestors, who therfor justly possess the same. And tho' the Defendant doth not pretend to any express Grant from the Council of Plymouth, yett that noe way affects the Appellant; nor can the Defendants want of such a Grant mend the Title of the Appellant, who must recover by force and virtue of his own Title.

Fourthly,-As to the Grant of the Council of Plymouth to the said John Mason in 1635, the Defendant answers as follows: First, That the Grant in 1635, had nothing but a Seale affixed to it, never inrolled, nor livery or seizin attending it, and in all things defective as the Grant before mentioned: viz. the Grant in 1629: but then secondly, the Defendant insists upon it, that the Appellant must relinquish one or the other of those Grants, and not rely on them both; it being contrary to the reason and usage of the Law to rely on two several Titles.

As to the writt of Judgment and Execution pretended by the Appellant against the defendants father,-the deft answers:

1st. That the writt was for the possession of certaine lands and tenements in Cochecho, Dover, and other places in the said Province, without mentioning or ascertaining the quantity, place or Bound of the said Lands; than which nothing would be more necessary, & without which no Jury could ever legally finde a

(1) Italics by the Editor.

verdict, or Court give a Judgment. Secondly as to the Judgment, the copy made use of doth not come attested from any Book of Records; for indeed, there is noe such book to be found. Thirdly, as to the Execution, there never was any levied, nor was the said Richard Waldron ever interrupted in or amoved from his possession of the lands in controversie, by virtue of the said Judgment or Execution.

To the Fourth reason of Appeale the Defendant answers,-That true it is, that a special Verdict may be found by a Jury as the case may be; And alsoe that the Court cannot refuse a special Verdict if it be pertinent to the matter in issue, and containe the certainty and verity thereof; but then on the other hand, noe Jury is oblidged to give a special Verdict, or finde the matter at large, if they have noe doubt of the Law or fact in the case before them, for that the grounds and Reason of a special verdict are, when a Jury is under some doubt or difficultye of the evidence of the fact or the Law arising from the fact in the case before them; nor can a Jury ever be compelled, by any Court whatsoever, to finde a special verdict, when all matters are full and clear to their satisfaction.

As to the fifth Reason of Appeale, the Defendant hath no answer to make, for that it wholly concerns the Judges of this Honorable Court, who noe doubt will take care, in this as in all other cases, to do what to Law and Justice appertains. Besides which answers to the Appellants Reasons of Appeale, the Defendant humbly offers to the consideration of this Honorable Court and Jury:

1st. That by the Statute of the 21st of James 1st, Chap: 16th, noe Action of Ejectment cann be maintained, except the Plaintiffe in such Action or those under whom he claims, have been in possession of such Lands some time within twenty years of the bringing of such action: And if they have been out of possession sixty years, as the case now is, then by the statute of the 324 of Hen: 8th Chap. 2a, not only an Ejectment but a writt of Wright and all other Real Actions are Barred in respect of a subject; and alsoe in such cases, the Title of the Crown is Barred, by the statute of the 21st of James, 2d. And 2d by the statute of the 324. Hen: 8th, Chap. 9th against buying of Titles, &c; It is enacted that noe person whatsoever presume to purchase any Mannors, Lands, Tenements, &c. of any person whatsoever except such persons soe selling or their ancestors, or they by whome he or they claime, have been in possession of the same or the Reversion or Remainder thereof, or takes the Rents or profitts thereof by the