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Browsing: Legal Papers of John Adams, Volume 1


Docno: ADMS-05-01-02-0005-0002-0004

Author: Auchmuty, Robert Jr.
Author: Fitch, Samuel
Date: 1767-07

Special Demurrer and Joinder1

Suffolk Inferior Court, Boston, July 1767

William Gardiner v. James Apthorp
And the said William says that the plea aforsaid pleaded by the said James in manner and form afore pleaded and the matter in the same contained are insufficient in Law and that he the said William to that plea in manner and form aforsaid pleaded hath no necessity nor is bound by the Law of the Land in any way to answer and this he is ready to verify wherefore for want of a sufficient plea in this behalf the said William prays Judgment and the damages by reason of the premises to be adjudged to him and costs.
And for causes of demurrer in Law in this behalf according to the { 181 } form of the Statute in such case made2 he sets down and to the Court here expresses the causes following
First
Because the said James in his plea aforsaid hath not answered one of the breaches assigned in said declaration by said William in the words following to wit “yet the said James tho requested hath not paid all the debts that were then or now due from the said company.”
secondly
Because the said James in his said plea hath pleaded “that the said William hath not been damnified by any demand made upon him by Messrs. Trecothick & Thomlinson or in any manner as the said William in, his declaration hath alledged and supposed and thereof the said James put himself on the countrey” but hath not in his said plea given any answer to the breach of covenant contained and set forth at large in the said Williams declaration against the said James for not paying all the debts that were due from the said James and William in Company
3dly.
Because the said William in his said declaration alledges that the said James covenanted with the said William “that he the said James would pay all the debts that were then or should thereafter become due from said company to any Person or Persons whomsoever for any matter cause or thing whatsoever” and the said William afterwards in his said declaration further alledges as a breach of said covenant that the said James tho requested hath not paid all the debts that were then or now (meaning at the time of making said covenant and the purchase of said writ) due from the said company and the said William further alledges in said declaration that on the twenty fifth day of January AD. 1765 there was due from said company to Messrs. Trecothick & Thomlinson the sum of six thousand nine hundred and forty nine pounds eleven shillings and seven pence sterling with interest from the said James and William in company as aforsaid yet the said James in his plea aforsaid hath not in any manner answered the said breach of covenant declared on in manner as aforsaid by the said William in his said declaration.
4thly.
Because the said James in his said plea hath not alledged that { 182 } he hath paid all the debts that were due from the said company and shewn in particular how and when as by Law he ought to have done
5thly.
Because the said William in his said declaration hath alledged that the said James tho requested hath not paid all the debts that were then or now due from the said company nor hath the said James tho requested indemnified and saved harmless him the said William of and from all debts and demands that were then to wit on the first day of January AD. 1763 and are now due from the said company for that on the twenty fifth day of January AD. 1765 there was due from said company to Messrs. Trecothick & Thomlinson the sum of six thousand nine hundred and forty nine pounds eleven shillings and seven pence sterling with interest from the said James and William in Company as aforsaid which said sum and the interest thereof then at Boston aforsaid by the said Messrs. Trecothick & Thomlinson were demanded of the said William as one of the first mentioned company and the said William is still held and obliged to pay the same and never discharged or indemnified by the said James therefrom and the said James in his said plea hath pleaded that the said William hath not been damnified by any demand made upon him by Messrs. Trecothick & Thomlinson or in any manner as the said William in his said declaration hath alledged and supposed and thereof the said James puts himself on the countrey and so the said James in his said plea hath given a negative answer only to the aforsaid breach assigned by the said William in his said declaration which is also in the negative and therefore the said James hath not tendred to the said William any proper issue to join and yet the said James hath concluded his said plea to the countrey. Which he ought not to have done but ought to have concluded his said plea with a verification of the same and prayed Judgment if the said William ought to have and maintain said Action against him the said James whereupon the said William might have replied and shewed forth other and special damnification.
6thly.
Because the plea of the said James is too general and argumentative and informal and not direct and certain for in said plea the said James alledges that the said William hath not been damnified by any demand made upon him by { 183 } Messrs. Trecothick & Thomlinson or in any manner as the said William in his declaration hath alledged and supposed which is not a direct and positive negation of a demand made upon the said William by the said Messrs. Trecothick & Thomlinson as set forth in said declaration but is an argumentation and too general an answer to the said declaration because if there was not a demand made upon the said William as aforsaid then he could not be damnified thereby and if there was then the said James in his said plea traverses the damnification resulting therefrom to the said William. And the said William further says that the plea of the said James by him recorded as aforsaid is inconsistent incertain not issuable and wants form.
[signed] Robt. Auchmuty
And the said James says that the plea aforsaid by him in manner aforsaid pleaded and the matter therein contained are good and sufficient in Law to preclude him the said William from his action aforsaid against him the said James which plea the said James is ready to Verify &c. and because the said William doth not answer to that plea nor hitherto any ways deny the same he the said James prays Judgment that the said William may be precluded from his action aforsaid against him and he be allowed his Costs.
[signed] Saml. Fitch
1. SF 101250. Subscribed: “Copy Examined. Middlecott Cooke, Cler.” Dated from the Inferior Court judgment, ibid.
2. That is, the statute, 4 Anne, c. 16, §1 (1705), which provided that on demurrer the courts would look to defects of form only when expressly stated with the demurrer.

Docno: ADMS-05-01-02-0005-0002-0005

Author: Adams, John
Date: 1768-03

Adams' Minutes of the Argument1

Suffolk Superior Court, Boston, March 1768

James Apthorp vs. Gardiner, William.
Covenant Broken. Plea.
Special Demurrer. 1. 2. 3. 4.
Joinder in Demurrer.
Auchmuty. 2 Breaches assigned in Declaration by Plaintiff. 1. 2. not indemnifying. Plea is that Plaintiff was not damnifyd by any Demand from Trecothick & Thomlinson.
The 3 first Reasons in the Special Demurrer, are to the same Point. —Tro.2
Holts Reports. Page 206. Annersley vs. Cutter. 2nd. Exception is that he did fit him to be Master of Arts. As to the first the Plea is good. { 184 } Scismaticus inveteratus. Pleas adjudgd bad because not shewn who maintained him, from the Time of Batchelor till Master. Incompleat Plea.3
1. Salk. 179. Weaks vs. Peach. Replevin for. Plea an Answer to Part and whole.4 2 Breaches in the Declaration, but one answerd in the Case at Bar. They come and defend &c. i.e. take the whole Defence upon them, and then go on, and answer but one Cause of Action. All Declarations must have compleat Answers.
4th. Objection to the Plea—that he has not in his Plea set forth that he had paid the Debts, and how and when and where &c. 3d. Inst. Cler. 522. Covenant to indemnify and save harmless, ought to shew how he saved harmless.5 Our Breaches are that he hath not paid, and hath not saved harmless. An Issue cannot be made out of two Negatives any more than out of two Affirmatives.
Infregit Conventionem. 3. Levinz. 19. Pitt vs. Russell. Breach assigned in the Negative and Plea in the Negative.6
{ 185 }
Cro. Car. 316. Non Debet. Oyer. Payment at Day. Court if issue joined aided by Statute Jeofails, 'tho upon Demurrer bad.7
Informal, argumentative, &c. Too general, not direct and certain. A Negative Pregnant. Cro. Jac. 559. Lee vs. Luther. Pleaded in the Negative that he had not, &c. Plaintiff demurred.
Negativa pregnans. 1st. Argument. 1st. Cause.8
Ours is non Payment, we in the Reason of the Case and therefore the Case must uphold us. These are the Exceptions and these the Authorities to support them. Negative answers to Negative Breaches. All the Entries, all the Precedents shew the Plea to be bad. Law abhors and detests a negative pregnant. Double Pleadings by the Statute and the Leave of the Court, may be, but no Statute allows of a Negative pregnant.
This Plea concludes to the Country too, which it ought not.9
Fitch. For Defendant Apthorp. Honors have heard Declaration, { 186 } Plea and Exceptions. We have answerd that Gardiner Plaintiff hath not been damnified by any such Demand as he has set forth in his Declaration. The whole Effect of the Covenant is, to indemnify Gardiner, from certain Debts and Demands. 2 Ways of indemnifying, are by Payment, by procuring a Discharge.
This Covenant is only a Covenant to save harmless, and the Effect is the same as a Bond with a Penalty conditioned to save harmless. Non Payment is no Breach, and would be bad upon a general Demurrer.
Saville. Page. 90. Case 167. Anonimous. Debt upon an Obligation. Ought to plead not damnified. Bound to discharge pay and save harmless from Rent. Had Defendant pleaded that Plaintiff was not damnifyed, it would have been good.10 Nothing to distinguish this Case from that of Savilles. This exempts this Case from the Force of every Authority the Gentleman has [presented?].
1. Salk. 196. Griffith vs. Harrison. In some Cases the Intention is traversable. Plaintiff did not shew a Disturbance. Counterbond cannot be sued without a Special Damnification.11
If Plaintiff can support an Action now without a special Damnification, he might have supported one Eo Instante that the Covenant was executed.
Cro. Jac. 634. Horseman vs. Obbins. Debt on obligation Conditiond for Indemnification. Demurred because not shewn quo modo indemnem &c. Being a Plea in the Affirmative, should have shewn quo modo, but if he had pleaded generally that he had not been damnified non damnificatus, it would have been good.12
Cro. Jam. [Jac.] When one pleads a discharge and that he saved { 187 } him harmless he ought to shew how, but if he had pleaded generally non damnificatus it had been good &c.13
3. Mod. 252. Mather vs. Mills. Non Damnificatus and Demurrer. Negative Parish not damnified. Good.14
2. Mod. 305. Shaxton vs. Shaxton. Condition to save harmless, &c. Defendant pleads not damnified, &c.15 Same Principle.
Negative Answer to Negative Breach. This is a wrong Representation. The Words of the Declaration. Covenant. Will save harmless from all Debts due from the Company of Gardiner & Apthorp to Trecothick & Company. They have made use of negative Words, but not to the Purpose. What is our Answer to their Declaration. That they have not been damnified, by any such Demand, which is the only Breach they have alledgd that could support their Action. Concluding in Bar, when the Matter is brought to a plain Affirmation and Negation would be ill, because it tends to protract Pleadings in Infinitum, therefore we concluded properly to the Country.
Jenkins's Centuries Page 110. Case 12. Non Damnificatus a general Issue.16
Sewall run over the same Ground.
Otis. Read Several Authorities, one from Leonard17 and several others, to shew that where there is a Covenant or Bond to save harm• { 188 } less only, there Non Damnificatus will do for a Plea. But where there is Covenant or Bond to pay Rent, to pay Debts, &c. and to save harmless from that Rent, those Debts &c., there Non Damnificatus will not do.
C. J. 18 There is no Time sett, when the Payment of the Company Debts shall be made, in the Covenant.
To pay, and shall pay all the Debts, due or that shall hereafter become due.
Difference between an Undertaking, by Covenant or Bond, to pay and save harmless, And an Undertaking to save harmless only.
The Judges of England make a strong Inference from the Silence of Precedents.
Tis a Duty as much when there is no Day fixed as when there is a Day fixed, and the Law says it shall be done in a reasonable Time.
1. In JA 's hand. Adams Papers, Microfilms, Reel No. 185.
2. A comment from the bench by Edmund Trowbridge, J.
3. Annesley v. Cutter, Holt K.B. 206, 90 Eng. Rep. 1013 (1706). An action of debt on a bond conditioned on the defendant's educating and maintaining his son “until he had passed all his degrees, and was a Master of Arts.” Plea that the defendant had maintained his son “until he had passed all the degrees that were requisite to fit him to be Master of Arts ... and postea such a Day he became Master of Arts.” Demurrer, asserting (1) uncertainty, in the failure of the plea to detail the degrees obtained prior to that of Master of Arts, and (2) the failure of the plea to state who maintained the son during the three years between his Bachelor's and his Master's degrees. Held, per curiam, that the plea was bad on the second ground asserted. The phrase “schismaticus inveteratus” appears in the report of the case as part of defendant's argument on the first point. It is drawn from a case in quare impedit in which it was held insufficient for a bishop to plead that he had rejected one presented for a benefice merely because the presentee was, literally, an inveterate schismatic. Specot's Case, 5 Co. Rep. 57a, 77 Eng. Rep. 141 (K.B. 1590). The point has some relevance to later portions of the argument in the present case, but is bare dictum in Annesley and is not at all the point for which Auchmuty is citing the case.
4. Weeks v. Peach, 1 Salk. 179, 91 Eng. Rep. 164 (K.B. 1701). Replevin for taking chattels from two different places. Avowry justifying the taking from one place only. Held, per Holt, C.J., that the avowry was demurrable if it purported to answer the entire declaration and answered only part.
5. 3 Gardiner, Instructor Clericalis 522, citing Ellis v. Box, Aleyn 72, 82 Eng. Rep. 921 (K.B. 1648). Condition that third party perform covenants and that defendant save plaintiff harmless. Plea: Performance and that he did save harmless. Demurrer. Held: Plea insufficient, because it should have set forth the covenants, some of which might have been negative, and because it should have set forth with particularity how the defendant saved the plaintiff harmless. Robert Auchmuty's copy of Instructor Clericalis is in the Harvard Law School Library, but throws no further light on this case. See JA 's reference to the work in his Autobiography as “used dayly for Precedent.” 3 JA, Diary and Autobiography 271. His own copy of Gardiner's work, 5 parts, London, 1713–1727 (pt. 2 missing), is in the Boston Public Library. See Catalogue of JA 's Library 100.
6. Pitt v. Russell, 3 Lev. 19, 83 Eng. Rep. 555 (C.P. 1681). Covenant on a lease, assigning breaches in not repairing the premises. Plea: Non infregit conventiones (he did not break the covenants). Demurrer. Held: Plea too general, first, in that several breaches were alleged; second, in that the breach is in not repairing and the plea is not breaking, thus opposing a negative to a negative, which does not make an issue.
7. Parker v. Taylor, Cro. Car. 316, 79 Eng. Rep. 876 (K.B. 1632). Debt upon a loan and upon a bond conditioned on payment at a certain day. As to the loan, the plea was non debet, the general issue; as to the bond, after oyer, the plea was payment at the day. Issue was tendered and joined on each count and the case tried to a jury which found for the plaintiff on the bond and for the defendant on the loan. On writ of error it was argued that the plaintiff should have replied, denying payment and thus properly creating an issue out of an affirmative and a negative. Held: Since issue had been joined on the case as pleaded, and the jury had found that the defendant had not paid, “it is good enough, and aided by the Statute of Jeofayles.” Id. at 317. Auchmuty's apparent conclusion that the plea would have been bad on demurrer is only implicit in the report of the case. The various Statutes of Jeofails provided that certain nonsubstantial pleading defects should not be fatal. See Sutton, Personal Actions 118–120.
8. Lea v. Luthell, Cro. Jac. 559, 79 Eng. Rep. 480 (K.B. 1618). Debt upon a bond on four conditions, one in the negative, to make no further grant of certain premises without the plaintiff's consent. Plea: As to the first three, performance; as to the last, that no grant had been made. On demurrer plaintiff objected, first, that since one of the covenants was the act of a stranger and an act of record, it should have been pleaded specially; second, that, since there were several covenants, performance of each ought to have been pleaded; third, that the plea that no grant was made is a negative pregnant. Held: Plea bad for all these causes, “wherefore it was adjudged for the plaintiff, upon the first argument, especially for the first cause.” Id. at 560. In noting this last phrase, JA may be querying the applicability of the case.
9. That is, it concludes with the form for tender of issue, upon which the plaintiff could only demur or join issue and go to the jury. Auchmuty seems to have the right of this question, since the plea in essence raised new matter that required an answer. See 1 Chitty, Pleading 536; 2 id. at 528–529; Stephen, Pleading 251, 253, 364.
10. Anonymous, Saville 90, 123 Eng. Rep. 1029 (C.P. 1588). Debt on a bond conditioned on a promise to discharge and save harmless from payment of rent, and to pay, discharge, and save harmless from any action brought for rent. Plea: No rent due. Demurrer. Held: Plea bad, because the condition was to save harmless from paying any rent. The proper plea would have been that the plaintiff had not been damnified by the payment of any rent.
11. Griffith v. Harrison, 1 Salk. 196, 91 Eng. Rep. 176 (K.B. 1693). Action on covenant to discharge or indemnify from all arrears of rent, alleging that a certain sum of rent was in arrears. Plea: Payment of part to lessor and part to plaintiff with the intention that it be applied to the lease. Demurrer. Held: Plea probably good, over objection that intention was not traversable. Judgment for defendant because special damages not pleaded. Where the condition is to save harmless from an obligation that will not fall due on a certain day in a certain way, such as “a single Bill without a Penalty, there the Counterbond cannot be sued without a special Damnification. So here, Rent remaining in arrear, and not paid, is not a Damage, unless the Plaintiff be sued or charged.” Id. at 197.
12. Horseman v. Obbins, Cro. Jac. 634, 79 Eng. Rep. 546 (K.B. 1621). The defendant had pleaded that he had indemnified the plaintiff. The court upheld the demurrer on the grounds paraphrased in the text.
13. That is, Codner v. Dalby, Cro. Jac. 363, 79 Eng. Rep. 311 (K.B. 1611), cited in margin in Horseman v. Obbins, note 29 12 above. Debt on a bond conditioned to save harmless from bail in a certain action. On demurrer to the plea the court found for the plaintiff substantially in the language reported by JA .
14. Mather v. Mills, 3 Mod. 252, 87 Eng. Rep. 166 (K.B. 1688). Debt on a bond conditioned on acquitting, discharging, and saving harmless a parish from a bastard child. Plea: Non damnificatus. Demurrer. Held: Judgment for defendant, over argument that “acquit and discharge” required a showing as to how the defendant had acquitted and discharged.
15. Shaxton v. Shaxton, 2 Mod. 305, 86 Eng. Rep. 1088 (C.P. 1678). Condition to save the plaintiff and the mortgaged premises harmless and to pay interest. Plea: Plaintiff not damnified because defendant had paid the principal and all arrears of rent due. Demurrer. Held: Plea bad. Goes only to the person of the plaintiff, not to the premises.
16. Anonymous, Jenk. Cent. 110, Case XII, 145 Eng. Rep. 77 (Exch.Ch. 1457). Condition to save harmless. Plea that defendant did save harmless. Demurrer. Held: Plea bad, because the manner of discharge not shown. Non damnificatus, the general issue, would have been a good plea.
17. The case “from Leonard” is undoubtedly Bret v. Audars, 1 Leon. 71, 74 Eng. Rep. 66 (C.P. 1587), an action of debt on an obligation conditioned “to acquit, and discharge and save harmless.” Plea: Non damnificatus. Demurrer. Held: Plea insufficient. The defendant ought to have shown the manner of discharge, since the condition was to discharge. If, however, the condition were to save harmless only, “then non damnificatus generally is good enough.” Id. at 72.
18. Thomas Hutchinson, C.J. Hutchinson's construction is borne out by later authorities, but it seems harsh where the promise to pay debts is in such general terms. See Stephen, Pleading 364–366; 2 Chitty, Pleading 528–529 notes.