Page:The Granite Monthly Volume 5.djvu/116

 96 THE GRANITE MONTHLY.

"The diposition of John Busse of fu]l agge teftifieth and faith that fome tyme in May Last hee heard Capt : Timothy Gerrifh fay that hee neuer did intend to fett A mill ther and ther should neuer bee one fett their and thif is the uery fpott of Ground w'^'^ is now in Contreuerfy. John : Buffe Jun'' Testifieth to bee the truth of aboue euidence hee being then prefent [and that the Damm in Contreuerfy is between six & seven milles, above Capt. Gerrifhs' uper mill as the River Runs, Further sayeth not

Sworne In Court] T Atkinson cler "

Depositions of a similar purport were made by William Hill, aged about forty years, and by John Field. There is no record in these papers of the defendant's testimony.

The finding of the jury is as follows : —

" Att an Inferiour court of comon please holden at porfsmo : y" 3'^ of y^ 'f^ mo: 1 719 Capt Timothy & paull Gerrishs plaintiffes againft Ely Demerrit deffend : wee of ye Jury find for y'^ plaintifes coft of court fine shill damage In ye behalfe ye Jury

Jn° Tuck form an "

The defendant prayed an appeal to the " Honorable the justices of his Majestie's Superior Court Judicature to be holden at Portsmo the ninth day of Feby i7i9[2o] in and for the said Province." The appeal was allowed. On the 25th January, 1720, he filed his grounds of appeal, five in number. The last ground reads thus : —

" The aforesd grant to Maj Waldron is only a Liberty of setting mill or mills on ye ffreshett Called Bellamids ffreshett & not in ye Branches y'of w''as the place in contreversie is y*" Last Run of any Branch in Bellamids ffreshet nor is there indeed any run of water at all when ye water is Low in Bellamids ffreshet, so that these reasons Being Considered with what may be further offered on Tryall yo appelP'"' humbly hopes your honours and y" gentlemen of ye jury will se abund' cause to reverse the former Judgment and Giue yo'r appell" cost."

But the appellate justices were not disposed to disturb the judgment of the court below. The right of the Gerrishes being thus established at law, it was only left to the projectors of the new enterprise to give up their under- taking, or to make a truce with their adversaries. They chose the latter course. The Gerrishes, by indenture of May 30, 1722, granted to Ely Demeritt, Ely Demeritt, Junior, Samuel Chesley and Derry Pitman (Richard Rookes and Jonathan Gushing witnessing the signatures) " four parts in six" of the privilege of Bellamie Bank, a little above the mouth of Mallego Brook, for two years, at three pounds per annum, " except when the water is low." The opening clause of the instrument sets forth, with a stateliness readily pardoned, the fact with which the reader has just become acquainted, namely, that the rights of the grantors had been confirmed by the judgments of two of His Majesty's Courts of Judicature.

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