LAWSUIT ABOUT LAND AT THE NEW PLANTATION
This case was tried the next summer and decided in favor of the plaintiff, costing the defendants more than £50. The following autumn, the selectmen, in behalf of the freeholders and commoners, petitioned Governor Dudley concerning the case. The facts, as set forth in the petition, dated November 13, were these: The suit was brought in consequence of the town not laying out a tract of land at the New Plantation, which at the date of the petition was in the town of Kingston. The grant in question had been made to John Marston, who had sold all his rights in Hampton, more than forty years before, to Dea. Francis Page, who had been in possession till the summer of 1708, when Weare produced a paper, purporting to be a deed of conveyance to him from John Marston, written and signed at Andover, and the same day acknowledged in New Hampshire, before Nathaniel Weare, Esq., the father of the grantee.
The validity of this deed was doubted. It had not been produced till after Marston's death, and it was represented as questionable, whether he was alive on the day of its date. It was also stated, that for several years previous to his death, he had not, by reason of age, been of a sound and disposing mind and memory; that he had not been able to attend public worship, and far less able to travel in so short a time to New Hampshire, a distance of nearly twenty-five miles, to acknowledge a deed; nor would it have been necessary, for there were several Justices nearer, and, indeed, directly on his way. The petitioners further allege, that some of Marston's near relatives heard him say that Peter Weare hand been to him, for the purpose of buying this land at the New Plantation, but that he had refused to sell it.
Under these circumstances, it would seem reasonable that the plaintiff should have been required to prove the authenticity of his deed; but he insisted that, in order for a successful defense, it devolved on the town to prove that he had never received from John Marston any such deed. This might not have been easy to prove. The selectmen, therefore, as the agents of the freeholders and commoners, asked that Nathaniel Weare, Esq., should be required to state positively, whether he had ever seen John Marston in this province, since the date of the deed, claimed to have been given to his son, Peter Weare. Being questioned on this point, he stated before the governor and council, that Marston acknowledged the deed to his son, before him, at Andover, the 13th of May, 1708; and he declared that Marston was "then in his right senses."
This testimony, if not satisfactory, was direct and decisive, whatever may be thought of the validity of an acknowledgment made before a justice, when he was out of his jurisdiction.
On the 15th of September, the freeholders and commoners appointed Lieut. John Smith, Isaac Green and Ens. Samuel Marston, a committee, to join with the selectmen in selling some of the lots that had not been disposed of, in the north and west division, to satisfy the judgment that Peter Weare had obtained against the commoners, and to pay other charges incurred in the case. If the sales of these lots should fail to furnish a sufficient sum to pay all demands against them, than an assessment should be made on all to whom shares of the commons had been granted.