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Browsing: Early Diary of John Adams, Volume 1


Docno: ADMS-02-01-02-0010-0006-0001

Author: Adams, John
Date: 1758-12

[The Case of Field v. Lambert, Continued, December 1758.] 1

For that the said Luke, on the 10th of Octr. last, <at> with force and Arms <and against> entered the said Josephs Close <there> in Braintree aforesaid, and then and there with force and Arms drove away, and rescued from the said Joseph tho the said Joseph then and there [ . . . ] 2 Two Horses which the said Joseph had taken up in his Close aforesaid Damage Feasant, and was about to drive to the public Pound in said Braintree, which Rescous [is] against our Peace and the Law of this Province, made in the Tenth Year of [the Reign of] William the 3d.
[Am?] I sensible of the Importance of the Hazard, I run? I risque my Chara[cter] and of Consequence my Business, on the fate of this Writt. [I am?] in doubt about the sufficiency of it. I am in doubt whether Tresp[ass will] lie upon that Act. Whether the Damages done by the Horses to Fields fences and Grass should not have been more Specially sett forth? Whether it is right to declare, for the forfeiture to the Poor ad damnum of Field. It was desi[rable?] that somebody should sue for that forfeiture, and who so proper as the Party injured. How could Debt have been laid for his Damages, when it is disputable how much they amounted to? The Act says just Damages, but the Act has not [asserted?] how much is just Damage in this Case. But may not Debt lie, [where trespass lies?] Can Damages be given and [assessed?] by a Jury in Debt.
{ 95 }
If one declares in an Action of Trespass for the taking away of his Cattle, or one particular Thing, he ought to say, that he took away his Cattle or other Thing Praetii so much. [I] have not declared for taking away the Horses pretii so much, but I have declared that Field sustained so much damage by the Rescous and by the Trespass of the Horses. But if he declares for taking away Things without Life, he ought to say ad Valentiam so much.
Damages are frequently given to the Party and a fine to the King in Trespass. W[hy] then may not damages be recovered to Field and the forfeiture to the Poor in Trespass? In all Trespass there must be a voluntary Act and also a Damage, otherwise Trespass [will?] not lie. Lamberts Entry and driving his Horses were voluntary Acts, and the Damage to Field was the Breach of his fence and destroy[ing] his Grass and [ . . . ] his [ . . . ].
{Folio: 24, right side up} [I declared?] ad Dampnum of Field. How could I have expressed ad dampnum of him and the Poor too.
{Folio: 25} Q[uery]. Whether Debt is not a more proper Action than Trespass?
Should not the Damages the Horses did to the Fences, Grass &c. have been Specially shewn, als.3 how can Defendant make his Defence.
Does not this Declaration shift from Trespass into Debt?
Can Defendant know without a Special Shewing of the Damage done by the Horses to the Fences, Grass &c., how to combat the Plaintiff, what Evidence to produce.
That heterogeneous Mixture of Debt and Trespass, still perplexes me.
Trespass, Entry, Rescous, <forfeiture.> Can a Forfeiture be demanded by Plaintiff in Right of another, in an Action for Trespass.
Trespass for Damages, and Debt for forfeiture to the Poor.
Upon the Commission of that Offence, the forfeiture becomes compleatly due to the Poor.—Should not something have been said of his suing in Behalf of the Poor, for the forfeiture.
What have I been doing. Only drawing a Writt.
When a particular Act of the Province is declared on should that Passage of it which is particularly to the Purpose be shewn in haec Verba.
{ 96 }
1. The first paragraph of this entry is evidently a redraft of a part of the declaration begun in the entry next but one above. See Editorial Note on Field v. Lambert, p. 82–89, above. Being on the crease of the MS , the text is badly worn.
2. Seven or eight words illegible.
3. Alias, i.e. otherwise.