2. In JA's hand. Pleadings Book, p. 3–5. Printed with some variations in Perham, American Precedents
213–214. The action was filed in the Suffolk Inferior Court, where, in Oct. 1751, Jeremiah Gridley obtained a verdict in favor of Isaac Gridley for costs. See text
below. On appeal to the Superior Court in Feb. 1752 the defendant again prevailed. The Superior Court Minute Book indicates that Edmund Trowbridge filed the appeal. SCJ Rec.
1752, fol. 31; Min. Bk. 61, SCJ
Suffolk, Feb. 1752, N–55. Perham put the form in a section containing actions on the case in tort, rather than under the heading “Assumpsit,” where Holden v. Conner, Form I, appeared. In later practice, at least, the remedies of assumpsit and case for negligence were concurrent and the differences in form between the pleadings were slight. Among the practical differences were that in assumpsit all parties to the contract had to be joined, the agreement between the parties had to be stated in express terms, and the common counts (note
below) could be joined. In tort, recovery could be had against any one of the parties, only a duty need be shown, and a count in trover could be joined. See 1 Chitty, Pleading
92, 134–135, 138; 2 id.
at 155–161, 319–321; Joseph K. Angell, A Treatise on the Law of Carriers
366–392 (Boston, 3d edn., 1857). JA probably regarded the form of action here as assumpsit. An express contract, consideration, promise, and breach are set out. Compare Angell, Carriers
380–392. Further, the final clause (text
below) in effect makes the declaration one in indebitatus assumpsit, since it alleges a sum certain owing to the plaintiff and the new defendant's presumably fictional promise to pay it. This clause does not appear in American Precedents.
Its presence in the actual form may have been owing to a doubt as to the liability of the owner on the master's contract, or for his defaults. See authorities in notes
, below. The form was probably inserted here because of its use in Langdon v. Barber, Form III. See note