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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.

Docno: ADMS-02-01-02-0010-0007-0001

Author: Adams, John
DateRange: 1758-10 - 1758-12
{Folio: 26, upside down}

[A List of Pleadings, October–December 1758.] 1

Bond to give Deed.
† Trespass on the Case vs. Sherriff for the Default of his Deputy.
† Case by Baron and feme vs. Executor, on a Promise made to the feme while [sole?] [ . . . ] [later?].
† Ind[ebitatus] Ass[umpsit] for service done at a customary Price.
Plea, in abatement, that the service was insufficient.
Ind. Ass. for keeping a Horse to Hay. 3.
Sci[re] fa[cias] vs. Bail. 4.
If it was a [ . . . ] Writ, I’d lay a Quant[um] Mer[uit] as much as he deserved. Can Book be sworn to on Q.M.
Ind. Ass. on a Note of Hand.
†Debt to the Clerk of the Company. On Province Law.
<Trespass on the Case, by an Infant>
Quantum Valebant for Cyder sold by Infant, suing by his father, his guardian [or] next friend.
Trespass for breaking a C[ows leg?]. 6.
†Trespass upon the Case for refusing Marriage after Promise. 7.
[Trespass upon the Case] on a protested Order vs. Drawer.
[Trespass upon the Case] for not Building a good Barn according to Order.
Covenant broken, for not warranting Land, according to Cov.
Trespass. Quare Clausum fregit. 9.
Trover and Conversion of a Kettle belonging to Executor.
Partition. 10.
Trespass Q.C.F. & D.f.2 10.
[Wr]it, for declaring at a Bargain unruly Oxen to be orderly. 10.
[Qua]nt. Mer. and Ind. Ass. 2 Counts, for Work and service. 11.
Debt [ . . . ] by Farmer of Excise qui tam for selling Rum without Licence.
Trespass on the Case by 2d. Indorser vs. 1st Indorser for the original Drawer his [ . . . ] Absence from the Province and 2d. Indorser unable to pay the Debt. 13.
Trespass on the Case for Breach of Promise of Marriage. 14.
Ejectment vs. Disseisor.
Joindre of Ind. Ass. and Insimul Comp[utassent].
{ 97 }
Case by Guardian to non Compos for Labour done by non Compos.
<Money lent sued for by Administrator.> 16.
Case for Money received to Plaintiff by a [demand?] for Money lent. 16.
Case on a Note for 24 Gallons of Rum. 16.
Ejectment of a Mortgagor by Mortgagee.
Account by Administrator de bonis non vs. Administrator of the Administrator of him to whom the 1st Administration was committed.
Case on an Order accepted and payed by Plaintiff at Defendants Request 18.
[Case] on a Bill protested or refused to be accepted. 18.
Case vs. a Carrier for suffering Goods to be spoiled. 18.
Warrantia Chartae vs. Heir at law. 19.
Debt vs. Executor for not exhibiting a ful Inventory. 19.
Town Treasurer vs. a Person for entertaining a Tenant without giving Notice to select men, whereby Charge arose to the Town. 20.
<Town Treasurer vs.>
Case <vs. Town Treasurer> by Town Treasurer vs. Constable 20.
Case for Bail vs. Principal for Security. 21.
[Case] on an order accepted by Defendant.
Debt for Rent. 21.
{Folio: 25, upside down} [Trespa]ss on the Case, for not rendring an Account of Oxen received to kill and [sell?].
Warrant to Constable to convey a Pauper to next Town.
[Presen]tment <vs. . . . Officer?> 22.
[Pres]entment for a Riot. 23.
Presentment, for Administering an Oath without Authority.
Complaint, by Farmer of Excise, vs. one for not giving an Account of distilled Liquors and Lemons taken in and sold.
Case, for Mony had and received to Plaintiffs Use. 24
Case by surviving Creditor. 24.
Debt on a Judgment of Court. 25.
Presentment for selling fat, instead of Butter. 25.
Debt, by Town Treasurer vs. a Person for receiving and entertaining a Pauper. 26.
Complaint to a Justice, vs. one for writing scandalous Words, and Warrant thereon 27.
Action for scandalous Words. 28.
Case vs. Defendant for taking away his Son from Plaintiff with whom he lived to learn his Trade, before the Time agreed on was out. 28.
{ 98 }
Trover of a Pice of Timber.
[Equity?] of Redemption in a Mortgage Deed. 29.
Debt vs. one for not maintaining his half of a Partition fence, between him and Plaintiff, on 10th of Wm. 3. Chapt. 18.
Case, for not maintaining &c. on the same Law. 29.
Trespass and Ejectment, by Plaintiff [Heir?] to Devisor after Estate T[ail?] ended. 29.
Ejectment. 30.
Trespass on the Case for drowning Plaintiffs Meadow by a Mill dam. 30.
Ejectment. Declaration on Plaintiffs own seizin &c. 30.
Complaint to Justice, vs. Dear Killer. 31.
[ . . . ], Caption of a Petition to Gen. Court. 31.
Imparlance, Prayer for one. 32. in Ejectment.
Warrant of Town Treasurer vs. Collector. 32.
1. This entry, begun on {26} upside down and continued on {25} upside down, apparently comprises a list of pleadings which JA may have copied from another lawyer’s pleadings book or book of forms, such as JA himself later compiled, with his law clerks participating. See JA, Legal Papers , 1:26–86. The daggers prefixed to certain items may possibly indicate pleadings that JA copied or intended to copy in full.
There is nothing to indicate when the list was compiled. This and the following entry, on Probate Law, are the only ones in the Diary Fragment for which an argument might be made that they belong to JA ’s period of law study in Worcester, Aug. 1756–Sept. 1758. On the other hand, nothing else in the entire MS suggests that he even had it in his possession in Worcester, and the manner in which these two entries are fitted in among the materials known to date from late 1758 is against their having been written at any other time.
2. That is, “Quare Clausum Fregit et Damnum fecit” (or “and Damage feasant”?).