A breaviate of the Case betwene Richard Sheareman plaintiff by petition and Capt. Robert Keaine defendantt aboute the title TO A straye Sowe supposed to be broughtt from Deare Iland about (9)ber 1636

1 The plaintiff had a Sowe all white, Saue a black Spott vnder the eye of the biggnesse of a Shilling and a ragged Eare.

2 This Sowe was Carryed to deare Iland.

3 Noe profe thatt it was brought back. onelye probablie itt might be though neare 40 Swine miscaryed there thatt yeare.

4 The defendant had a straye Sowe soposed to be brought from Deare Iland that yeare.

5 This Sowe was Cryed divers tymes, and many came and sawe her, in the tyme the defendant keept her, which was betwene one and 3 yeares.

6 The defendant had before this tyme, a faire white Sowe of his owne which he keept in his yarde with the straye Sowe aboue a yeare.

7 The defendant killed one of these Sowes about (8ber) 1637.

8 The plaintiffs wife soone after, charged the defendant to haue killed her Sowe.

9 The defendant shewing the plaintiffs wife the Sowe which remained aliue she disclaimed itt.

10 Upon Complaint of the plaintiffs wife, the cause was brought to the Elders (as matter of offence) and vpon hearing all Allegations, and the most materiall wittnesses on booth parts, the defendant was Cleared.

11 The cause thus rested till (2)—1640 and then the plaintiffs wife brought itt to the Inferyer Courte att Boston where (vpon a full hearinge) the Jurye founde for the defendant and awarded him about 3li costs.

12 Now (about 2 yeares after) the plaintiff brings the cause (by petition) into the generall Courte declyning the Court of Assistants to which itt 350properlye belonged, and declares againe for the Sowe which was killed (8ber—37.)

pro plaintiff Two or three wittnesses that the Sowe killed (8ber 37) had sume such black spott vnder the Eye and some cutts or ragges on the eare.

pro defendant 1 This contradickted by more wittnesses (which yet may be reaconsiled by other wittnesses of thee plaintiffs (viz.) that the defendants owne Sowe had sume such spott there aboute in the skinne butt not in the haire and soe might not be easy to discerne when the haire was thick, but apparent when the heire was off.

2 proued by 6 or 7 wittnesses whoe then lived in the defendants famelye, but are all gone since (but one or two) that this Sowe was the defendants owne and bought of one Houghton.

pro plaintiff diuers wittnesses that this Sowe had such markes as the plaintiffs.

pro defendantt 11 more wittnesses (and of as good credytt) that this Sowe (which was the straye) had other markes and not such as the plaintiff Claimed itt by.

2 Itt was clearelye proued that this was the onelye straye Sowe the defendant had, that this was offered to be shewed to the plaintiffs wife before the first Sowe was killed though att another tyme denyed her, for some reasons then alledged by the defendantt and that she was shewed itt after, in thee defendants yeard and confidently disclamed itt as none of hers. And now againe, vpon her Oath in the Courtt did claime A Sowe by other markes, and not such as this Sowe had.

pro plaintiff A wittnesse or 2 that they sawe a 3d Sowe in the defendants yarde.

pro defendant 1 This can be of noe waight against soe manye wittnesses to the contrarye.

2 This 3d Sowe is not proued to have such markes as the plaintiffs.

3 This might be one of the breede of the other sowes, or some Neighbors swine taken in the defendantts garden and keept vp with his owne, till the owner fetched it awaye.

4 the plaintiffs claime and the scope of his Euidence being for the Sowe killed aboute (8)ber—37 if he faile of that, the Courte is not to seeke out a Sowe for him.

pro plaintiff The testimony considered apart amount to a probable eauidence, that the defendantt had and converted to his owne vse the plaintiffs Sowe.

Ballance The testimonyes reaching noe further, maye albe true, and yett the defendantt not guiltye, nor anye of these Sowes the plaintiffs.

pro defendantt The testimonyes (whither considered apartt or with the other) afforde Euidence of Certaintye, raised vpon certaine grownds, as occasion, oppertunitye, familiaritye, freaquencye, etc.

Ballance If this testimonye be true, Itt is not possible the defendantt should be guiltye or anye of these Sowes the plaintiffs.

Joseph wanders alone in the wildernesse his Coate is founde torne and bloudie, he is never heard off for manye yeares: vpon this probable euidence, Jacob concludes that Joseph was deuowred of a wilde beast: But when evidence of certaintye comes out of Aegipt that he was ther aliue, and Lord of Egipt the former aeuidence was invailed and the Spirit of Jacob reviued, and now he concludes he was liuing: though he knewe not how he should come thither, or how he should be soe aduansed there. Now lett anye impartiall hande hold the Scales while Religion and sounde reason give Judgment in the case.

Yett (if neede weare) this might be added, that whereas the plaintiffs wife was allowed to take her Oath for the markes of her Sowe, the defendant and his wife (being denyed the like libertye) came voluntarelye into the Court and solomelye in the preasence of god declared 1 that the Sowe which was first killed was there owne. 2. that the Sowe which remained and was shewed the plaintiffs wife and which she disclaimed was the Straye Sowe. 3. that they never had anye other straye Sowe.

This cause (after the best part of 7 dayes spent in Examination and agitation) is by the breakeing vp of the Courte dismissed, not by occasion of A negatiue voate in the Magistrats (as is misreported) but by A fundamentall and Just Lawe agreable to sounde reason as shall appeare (the Lord willinge) in due season: The Lawe was made vpon searious consideration and Aduise with all the Elders (1) 1635 to this effect.

Noe Law Sentence, etc. shall passe as an act of the Courte, without the consent of the greater part of the magistrates of the one parte and the greater number of the deaputies on the other parte.

There were present in the courte, when the voate was to be taken 9 Magistrates and 30 deaputies whoe had all heard the Cause examined and argued, soe as noe centance could be legally passed without Consent of 5 magistrates and 16 deaputies which neither plaintiff nor defendantt had, for there were but 2 magistrates and 15 deputies for the plaintiff and 7 magistrates and 8 deputies for the defendant the other 7 stood doubtfull. yett was there noe necessitye, that the cause might not haue bene brought to an issue, for eyther the Court might haue Argued the Case againe by which meanes some who were doubtfull might haue come to a reasolucion or others might haue changed there Judgments and soe haue proceeded to a new voate, or else Committyes might haue bene Chosen, to order the Cause according to Lawe.

That this is the true state of the Case for the substance of itt, as it hath bene considered and allowed, by other of my breethren and Assotiates booth Magistrats and deaputies with our proseedings therein and which we shall not be ashamed (by the Lords helpe) to avouch and maintaine, before all the world, I doe heare affirme vnder my hand: dated att Boston this 5–15–1642.