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Browsing: Early Diary of John Adams, Volume 1


Docno: ADMS-02-01-02-0010-0004-0001

Author: Adams, John
Date: 1758-12
{Folio: 24, upside down}

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

2 Horses—10th. of Octr. 1758. One Pound L.M.
To answer J[oseph] F[ield] &c. in a Plea of Trespass, for that the said Luke [Lambert], at Braintree aforesaid, on the 10th of last Octr. with Force and Arms entered the said Joseph’s Close there, and there and then with force and Arms drove away and rescued from the said Joseph 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 the Law of the Province, made in the Tenth Year of the Reign of William the 3rd, intituled an Act for Providing of Pounds and to prevent Rescous and Pound Breach, whereby amongst other Things it is enacted, That if any Person shall rescue any Horses, taken up damage-feasant, out of [the] Hands of a Person being about to drive them to the Pound; whereby the Party injured may be liable to lose his Damages and the Law be eluded; the Party so offending shall for such Rescous forfeit and [pay] the sum of 40s. to the Use of the Poor of the Town or Precinct where the offence is committed; besides all just Damages unto the Party injured;2 and an Action hath arisen to the said Joseph to recover the said 40s. aforesaid forfeiture to the Poor, and the Damages which he the said Joseph hath sustained by the said Rescous which he says is equal to Twenty shillings more of the said Luke, which sums so forfeited and due, the said <George> Luke, tho often requested, hath not paid nor either of them, but unjustly refuses to do it, to the Damage of the said Joseph as he saith Three Pounds.
1. This entry is a partial draft of the declaration in the case of Field v. Lambert; see the Editorial Note on this case, p. 82–89, and references there.
In the MS , page {24} was at one time folded over or placed on the outside of the Diary Fragment when the document was folded laterally and stored. Two results were serious fading of the text at the creases and tears along the edges. The lateral folding exposed a small interval of blank space below the draft of the declaration and its revision (second entry below), and it is in this space that the two notes about the authorship were written in the 19th century, the first attributing the Diary Fragment to Royall Tyler, and the second disclaiming his authorship. These docketing notes are quoted in the Introduction, p. 7.
2. Act of 10 June 1698, c. 6, §4, 1 Mass., Province Laws 323: “[I]f any person or persons shall rescue any swine, neat cattle, horses or sheep taken up as aforesaid [i.e. “found damagefeasant in any corn-field or other inclosure” (same, §2)], out of the hands of the haward or other person being about to drive them to the pound, whereby the party injured may be liable to loose his damages, and the law be eluded, the party so offending shall for such rescous forfeit and pay the sum of forty shillings to the use of the poor of the town or precinct where the offense is { 94 } committed, besides all just damages unto the party injured; to be recovered by action, bill, plaint or information in any of his majesty’s courts of record.”

Docno: ADMS-02-01-02-0010-0005-0001

Author: Adams, John
Date: 1758-12

[On Indigence at Home, December 1758.]

haud facile emergunt quorum Virtutibus obstat

res angusta domi.

They will hardly emerge from Obscurity, whose Virtues are obstruct[ed] by Indigence at home. To whose Virtues, a narrow Thing at home opposes.1
1. This brief entry is written in a very fine hand just above the middle of {24} and is largely obscured by the two more or less continuous parts of JA ’s draft declaration, which so crowd it from above and below as nearly to efface it. Placed as it is at the center of his struggle over his very first case as a professional lawyer, this tag from Juvenal (Satire III, lines 164–165) had an obvious appeal for JA and may be considered a cry from the heart.

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.