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Browsing: Legal Papers of John Adams, Volume 1


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Editorial Note

John Mein's stormy career was cut short by two actions brought against him by John Hancock under a power of attorney from Mein's London creditors. That Mein infuriated the “well-disposed” and the Sons of Liberty is certain; that they rejoiced in his difficulties, including these protracted lawsuits, is equally clear.1 It is more doubtful whether Mein was correct in attributing to Hancock the responsibility for initiating the litigation. The evidence tends somewhat the other way.
To begin with, there is no question that by late 1768, Mein had run up sizable debts to two major London suppliers, Thomas Longman, the { 200 } bookseller of Paternoster Row, and a firm of stationers, Thomas Wright & William Gill.2 Mein did swear that his credit would have remained good had not Hancock “with an intent as this deponent believes to distress him the more wrote home letters to ... Longman ... importing that the aforesaid Hancock would willingly accept of a power of Attorney from ... Longman to whom this deponent was indebted as ... Longman alledges in the sum of one thousand six hundred pounds or thereabouts in order to seize or attach the effects of this deponent in Boston.”3
But the other sources suggest that whatever zeal Hancock may ultimately have thrown into the prosecution of the case, the initial impulse came from Longman, who in a letter of 22 July 1769 invited Hancock's assistance in recovering the debt.4 It is not certain just when this letter reached Hancock, nor has his reply survived. Apparently he responded affirmatively on 24 October 1769, requesting a formal power of attorney as well as Mein's account with Longman.5
Between 22 July and 24 October, Mein's standing with the patriot { 201 } party had deteriorated even more sharply. On 21 August he had begun publishing the manifests which incriminated many of the ostensible nonimporters.6 On 5 September, John Robinson had caned James Otis in the British Coffee House, and Mein had defied a mob to stand surety for W. S. Brown, accused of aiding Robinson.7 Enraged, the patriots had on 10 September censured Mein for treating “the whole body of merchants and traders in the most haughty, imperious, and insulting manner.”8 “Mr. Mein at present is so obnoxious to the People on account of his publishing the Manifests that he's obliged to go Arm'd” a contemporary wrote, “and tis but a few Nights since that two Persons who resembled him pretty much were attack'd in a narrow Alley with Clubs, and would in all probability have lost their lives if the Mistakes had not been timely discover'd.”9
Shortly after Hancock accepted Longman's commission, the final storm broke around Mein. On 28 October, as he was walking up King Street, a threatening crowd began to surround him. Pulling out his pistol, he faced down his assailants and slowly backed his way toward the guardhouse at the head of King Street. There he gained safety, but not before Thomas Marshall had laid the sharp edge of a shovel to Mein's back, and Mein's pistol had somehow gone off. Hidden in the guardhouse, Mein managed to elude the mob, even though Samuel Adams and William Molineux obtained a warrant and personally searched the premises for him. Finally, he escaped to a ship in the harbor,10 while ashore his effigy became the hate figure of the annual Pope's Day festivities.11
It was impossible for Mein to return to Boston. When he asked Governor Hutchinson for military protection to enable him to press his civil remedies against those who had mobbed him, Hutchinson refused. “In Ireland perhaps where the people have been long used to the military upon an apprehension only of violence from the populace such a measure might have { 202 } been advisable. In the present state of the colonies I could not think so; and rather thought it advisable for him to forebear prosecuting his complaint for some time.”12 Only one thing remained for Mein to do, and he did it: return to Britain.13
Longman meanwhile, having received Hancock's undertaking to act as attorney, immediately himself executed and caused Wright & Gill to execute certified powers of attorney which, together with bookkeepers' affidavits, were promptly sent to Boston. These arrived on 1 March 1770; that very day, John Adams filled out the writs and had the deputy sheriff seize Mein's property, which included his stock of books and, most important, “Seven frames on which are sixty-five Cases with the Types &c. Two Printing Presses with all the Materials thereto,” and “One composing Stone.”14
As Mein later swore, “On the afternoon of said day it was propos'd to Mr. Hancock's Lawyer (Mr. Adams) to give undoubted security to stand the issue of the suit, he discharging the attachments. This proposal was refused and Mr. Murray (Mr. Mein's friend who made the proposal) given to understand that nothing would be satisfactory but an absolute security for the debt independent of any suit. The day following, Mr. Murray sent proposals of accomodation in writing to Mr. Hancock to which he receiv'd Mr. Hancock's answer on the 3d of March. On the 7 of March Mr. Murray sent other proposals of accomodation to Mr. Greenleaf the Sheriff which Mr. Greenleaf answer'd in a letter to Mr. Fleeming the Friday following [9 March]. On the 25th Mr. Murray again wrote to the Sheriff and receiv'd an Answer the 4th of May.”15
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The texts of Murray's original proposals to Hancock have not been found. Charles Bolton, who appears to have examined them in the early 1900's, when what are now the Hancock Papers at the Massachusetts Historical Society were still in the possession of Charles Pelham Greenough, reported that Murray wanted “to have the attachment withdrawn, allow the suit for £1600 to go on in the King's Bench and abide by the judgment of the Court, the property meanwhile to be appraised upon oath and to be delivered up to Hancock as attorney when executions came to be issued.”16 The reference to the Court of King's Bench may be inadvertent; on the other hand, perhaps Murray contemplated a discontinuance of the Massachusetts action in favor of proceedings in London, before an English jury instead of an American one. If it was the local jury which Murray feared, later events proved his doubts well-founded. And, as it turned out, Longman started a suit in the King's Bench anyway.
Despite the failure of the preliminary settlement negotiations, Murray was able, by a means still unexplained, so to manage matters “with the Sheriff as to get him to accept of a pledge for the value of Mr. Mein's Interest attached at the printing office. This set the press a going again, much to the Surprize and Disappointment of Mr. H—— and his party, with whom this was the Capital Object in this Stroke of his. A method has been since hit on to relieve the books also by a tender of other Goods.”17
It is not clear whether the method of relieving the books ever went into operation. On 18 May 1770, Hancock reported to Longman that Mein's “Effects are in the hands of the Sheriff, and as soon as it has gone thro' the Law, and the Effects turn'd into money, the neat proceeds shall be remitted you, and you will determine the settlement between you and Messrs. Wright & Gill. Tho' I fear even the Whole of his Effects will fall vastly short of the Debts, but I have got all and could get no more.” And Hancock urged Longman to “get further Security of Mr. Mein in London.”18 This Longman had already done, commencing an action in the King's Bench against Mein for the amount of the debt and having him arrested and committed to prison “in hopes of His having some Friends that would appear in His behalf.” Friends did appear, but none apparently with funds sufficient to release the attachment and free Mein.19
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Meanwhile, back in Boston, Fleeming, who had been keeping the Chronicle going, at last gave up. On 25 June 1770, he put out his final number, “shut up his printing office and fled to the castle for protection.”20 And the lawsuits droned on, having been entered at the April 1770 Suffolk Inferior Court, but continued from term to term. As Hancock explained to Longman, “by a law of the Province, when an Action is brought against a man who is out of the Province, the action must be continued in the Inferior court six months. This was the reason why the action against Mr. Mein was continued at first and when the six months were expired, Mr. Kent, the lawyer, appeared for Mr. Mein at the request of Mr. Fleeming who had a power of attorney from Mein, and moved in Court that these actions might be continued three months longer, because he said Mr. Mein had since been arrested in London for the same debt and was a prisoner in the King's Bench for them and therefore desir'd time that they might get evidence of it, in order that the suits here might be discharged. The Court granted the motion.”21
Finally, on 15 January 1771, the actions came on for trial in the Suffolk Inferior Court, with Adams representing the creditors, and Benjamin Kent defending Mein. Our account of what took place is conjectural, for Adams' trial notes have not survived; we have only a list of authorities which he used in argument. The reconstruction which follows has been based on the Hancock correspondence and the court files.
In both actions, the writ had originally sounded in ordinary indebitatus assumpsit, based on an account annexed to the writ, which set out in rudimentary double entry form the amount of Mein's purchases over the years, the sums he had paid on account, the balance due, and (in Wright & Gill's case) the interest.22 When the cases came on, according to Hancock, “an objection was made by Mr. Mein's Council to the Generality of [Longman's, and, presumably, Wright & Gill's] account, that it was not sufficiently explicit, and that the particulars should be Exhibited.” This was, Hancock assured his London correspondents, a mere delaying ruse. None• { 205 } theless, “it is best at the next Trial to be ready to answer and remove their objections.” So he forwarded “Mr. Adams's (my attorney) minutes to me in order to Transmit you, by which you will see what is necessary for you to do, and I pray you will so soon as possible after the receipt of this prepare the necessary papers and accounts and be as explicit as possible. ... You will Communicate this to Messers. Wright & Gill.” That Adams considered the accounts essential to the case may be deduced from the fact that Hancock sent his letter in duplicate by two separate vessels.23
It is not certain whether by 16 January 1771, the date of Hancock's letter, the trials had been held; the court files contain a summons in Adams' hand to “Alexander Reid Stationer, and William Miller both of Boston,” dated 17 January 1771; the return indicates that these witnesses were actually subpoenaed on 19 January.24 Possibly the court heard the preliminary objections and then continued the matters for trial later on in the term; the cases were certainly tried at this term.25 At the trial Adams apparently put into evidence the depositions of the respective bookkeepers which established the facts of the debts; he may also have called Reid and Miller for evidence on the reasonableness of the Wright & Gill prices or even to prove that Mein had actually received the goods in question.26 Whether the defense adduced any evidence is an open question.
From Adams' authorities (Document II) and Hancock's letter of 16 January, referred to above, it appears that the court, on whatever evidence the plaintiffs had brought forward, or perhaps on the basis of defendant's objections to the legal sufficiency of the accounts, had directed a finding for the defendant in one or perhaps both of the actions, and that the { 206 } respective juries had notwithstanding brought in plaintiff's verdicts. The material at the end of the Adams notes suggests that the objection reported by Hancock had been the basis for the court's charge that the accounts lacked particularity.
At any rate, the juries seem to have treated the cases individually. In the Wright & Gill action, the account annexed had listed every single shipment which made up the debt; the verdict was for the net balance, plus the claimed interest. Longman, on the other hand, had sued on an account whose first item was simply “To a Ballance due as per Account then sent ... £1453:10:0,” the other items being individual shipments.27 In reaching its verdict for Longman, the jury deducted the preexisting balance from the balance on the account, thus in a sense giving some effect to defendant's objection and the court's direction. As Adams noted: “Verdict for Longman for about £200, far short of the whole. Apld. both sides.”28
It is clear that the defendant moved for a new trial in the Inferior Court, possibly in both actions, although Adams' collection of authorities on this point bears only the title “Wright and Gill vs. Mein—The Jury.” In his quasi-brief (Document II), the simple point of commercial evidence on which the cases really turned quickly became obscured in the constitutional argument over the sacred right of jury trial, an argument which Adams expounded even more vigorously in the apparently contemporaneous fragment reprinted here from his diary as Document III.
Whether the “free speech” theme which underlay Adams' references to current English political turmoil echoed some of the bitterness of the Boston journalistic controversy, and whether Adams was attempting to inject contemporary local partisanship into an otherwise quiet legal dispute are matters well beyond the scope of the present note. Certainly in Boston, free speech and the power of the jury were related subjects. Three years before, after a series of vicious attacks on then-Governor Bernard had stimulated Chief Justice Hutchinson to a detailed charge upon the subject of criminal libels to the Grand Jury,29 the jurors refused to indict—because they were tampered with, Bernard claimed; because they were “worthy and independent,” the Sons of Liberty boasted.30 And the inter• { 207 } weaving of press and jury, as the issues had arisen in England, was brought vividly to Boston's attention at the very time of the Mein cases, for the Boston Gazette of 28 January 1771 had reprinted the “Junius” letter to Lord Mansfield which Adams quoted in his brief; and the battle between Lord Camden and Lord Mansfield was reported in the Boston Gazette of 4 February 1771.31
Of course, the Bernard libels and the Junius-Mansfield-Camden imbroglio all dealt with the power of a criminal jury to decide law as well as fact. The interesting features of the Mein litigation are that it was an ordinary civil action, and that the court agreed with Adams and allowed the verdict to stand, a point to be considered more fully later in this note.
In view of the right of appeal, why did Mein's attorneys bother to resist the outcome at the Inferior Court stage? Perhaps they felt that some tactical gain would result from a delay. It is noteworthy that Adams did not seek a new trial in the Longman case, where the jury had returned a verdict so much less than the amount sued for. The explanation for that seems to lie in the court's not having directed a larger verdict; thus the smaller verdict did not (so far as plaintiff was concerned) contravene a favorable direction.
The double appeals in the Longman case and Mein's appeal in the Wright & Gill case were entered at the February 1771 Suffolk Superior Court, whence they were continued, possibly because the additional accounts were still in London.32 By August they had arrived, full of enough bibliographical detail to support a doctoral dissertation. Hancock “immediately” delivered them to his “Attornies ... in full Expectation of the { 208 } matter being Determined at our August Term, but the Judges saw fit to Refer it to November.”33
At the November adjournment, Adams chose not to rely solely on the fortified evidence. On 26 November 1771, he filed new declarations, alleging, in addition to the promise to pay, language comprising what Massachusetts lawyers then and now would call “the common counts,” a phrase which is shorthand for stereotyped language stating the debtor creditor relationship in every conceivable way. Moreover, Adams increased the amount of the alleged debt; instead of suing merely for the net amount due, he stated as damages the total of Mein's purchases.34
It is impossible accurately to calculate the date of trial from the minute books. Hancock's letter to Wright & Gill of 30 November says: “The Jury yesterday at Superior Court gave in their Verdict in our favor in Mein's Affairs, but Mr. Mein's Council mov'd for a New Trial. How that will be Determined, I know not, but will inform you and as soon as I obtain Execution will turn the Effects into money as soon as possible. Please to inform Mr. Longman of this as I have not time now to write him.”35
The jury, which had been the same in both cases, although they had been tried separately, brought in verdicts in the amount of the outstanding balances. It is worth noting, in view of the earlier arguments concerning the right of the jury to bring in a general verdict, that the verdicts as the jury originally returned them read, in each instance, “the jury find for the appellant [in Longman —”for the appellees” in the other action] the net amount sued for.” Each verdict was then amended to conform with the pleading in assumpsit to read: “the jury find that the [original defendant] made the promise alledged in the Declaration & assess damages.”36
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There is no indication when, if ever, motions for new trials were heard. If they did come on for hearing, they were apparently denied because, on 23 December 1771, executions were issued.37 Then began the problem of trying to realize on the security. As far back as 24 April 1771, Hancock had warned Longman that despite the assurances of Mein's friends about the adequacy of Mein's effects to cover the claim, “you will find on the settlement of the matter here, it will fall vastly short of their Expectation and manifest their suggestion to be utterly groundless.”38 Now the event proved his prophecy. Longman's original attachment had covered “a large number of books, a parcell of Stationery Ware, an Iron Stove, a Wooden press, some Patent medicines, magazines, Reviews and other pamphlets, pewter plates for Engraving, forty five trunks with a variety of other articles,” which had been stored during the litigation in a house owned by Samuel Fitch, and upon which the Sheriff levied on 27 December 1771. The appraisers were three Boston bookseller-stationers, Henry Knox, the future Secretary of War (appointed by the Sheriff), Joseph Edwards (appointed by Hancock), and John Langdon (appointed by Fleeming). After ten days' contemplation, the appraisers valued the assortment at £1,038 8s. 10d. Massachusetts money. Deduction of various costs (including an appraisement fee of £32 15s. 5d.) brought the figure even lower: on 18 February 1772, all outstanding fees having been deducted, Hancock signed a receipt for “books, other goods and Effects” valued at £956 4s. 6d.39
The dividend on Wright & Gill's claim was similarly slight. On 10 November 1770, three printers—Richard Draper, John Green, and Thomas Fleet—had appraised the printing plant at £185 17s. 4d., of which half belonged to Fleeming. After Sheriff Greenleaf levied execution upon this equipment on 26 December 1771, they again appraised it at the same figure. Some bookbinding equipment being caught within the execution, Langdon and Edwards returned to appraise it, too. Once again, costs were deducted, and Hancock receipted for £94 11s. 6d. worth of bookbinder's tools and printing gear.40
Liquidating the collection was difficult. Not until the fall of 1772 was Hancock able to remit anything to England and even then he had to confess that “to this Day have not Received the Whole Money. There is now outstanding about £100 Lawful Money. However, rather than keep them any longer, I have taken it upon myself and now close the whole.”41
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Whether the underlying motive in these suits was financial or political, they did raise questions of broader significance than Mein's inability to pay his debts or even the patriots' desire to close his newspaper. The issue of a jury's right to decide the law independent of the court's direction or in violation of it (and the closely related question, whether or not counsel could argue law to the jury) claimed much attention in 18th century England and America. It was present not only in this case, but also in Cotton v. Nye, No. 3, and in Rex v. Richardson, No. 59. The problem arose also in the Massacre Trials (Nos. 63, 64) where Adams very carefully urged the jury to rely on the authorities which he was citing (and which the prosecution did not dispute), in order to enable the jury correctly to determine the law itself.42 Josiah Quincy, on the other hand, more “carried away by zeal for his client,”43 argued that the law was the court's concern, and that on the facts, the accused must be acquitted.
The extent of the jury's power and the means by which the judges may impose and maintain bounds on that power agitate the profession even today.44 At early common law, a court at Westminster, when considering the result of proceedings at nisi prius, could, if it “thought that there had been irregularity in the proceedings ... decline to proceed and leave the parties to start proceedings afresh. In other words, there was a new trial.”45 In the 17th century, “it became the practice for the judge, with the consent of the parties, to give leave to move the court to enter a verdict for the other side, if they considered that his direction to the jury had been erroneous.”46
By the beginning of the 18th century, the idea of granting a new trial for misdirection had become rooted in the supervisory functions of the Westminster courts.47 Other grounds for the granting of new trials included the judge's error in admitting evidence or excluding it,48 and a “wrong” finding by the jury. This latter phenomenon divided itself into { 211 } two classes, verdicts “contrary to the evidence” or “against the evidence” and verdicts “against the weight of the evidence.” The distinction does not always emerge clearly from the reports and the abridgments, but the difference seems certain. A verdict contrary to evidence was one in which all the evidence adduced, no matter by whom, tended toward one party and none toward the other. A verdict against the weight of the evidence was one in which, although favorable evidence had been produced for both parties, the evidence, taken as a whole, preponderated for one side or the other. The difference may be illustrated by an anonymous case of 1743. At the trial there had been six witnesses for each side, and the judge certified “that the jury found for the defendant, which was against his opinion, but that he could not take upon himself to say that this was a verdict against evidence, because there was evidence on both sides.”49
Generally, “if the Jury have found a Verdict contrary to the Evidence, the Court will grant a new Trial,”50 the theory being “that the Jury ought to ground the Verdict intirely upon the Evidence given in Court.”51 But, where the trial had seen evidence for both sides, the problem was more difficult. After all, a certification by the trial judge that the verdict was against the weight of the evidence was (and is today) nothing more than a judicial evaluation of the testimony, a difference of opinion between one man and twelve. Which estimate, or rather whose estimate, should prevail, seriously troubled the English judges: “It has been held in some Cases, that if the Jury have found a Verdict which is in the Opinion of the Judge before whom the Cause was tried contrary to the Weight of the Evidence this is a good Reason for the granting of a new Trial.... But it has been held in other Cases that the Court ought not to grant a new Trial; because the Jury have in the Opinion of the Judge before whom the Cause was tried found a Verdict contrary to the Weight of the Evidence.”52
An unreported case set out in Bacon's Abridgment sums up the state of the law on this point. On the motion in the Common Pleas for a new trial, Chief Justice Pratt, before whom the trial had been held at nisi prius, said: “If I had been upon the Jury, and had known no more of the Witnesses than I did when this Cause was tried, I should have thought that the Verdict which is for the Plaintiff ought to have been for the Defendant; but I do not chuse to declare myself dissatisfied therewith: Because wherever there is a flat Contrariety of Evidence as to the principal Matter in Issue, and the Characters of the Witnesses on both Sides stand unimpeached, the Weight of Evidence does not altogether depend upon the Number of Witnesses: for it is the Province of the Jury who may know them all to determine which Witnesses they will give Credence to; and in my Opinion no Judge has a Right to blame a Jury for exercising their Power of determining in such a Case.”
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Clive, J., said: “The granting of a new Trial in this Case would be taking away that Power which is by the Constitution vested in the Jury. It has been said that it is the Duty of the Judge to enlighten the Understanding of the Jury, but that he ought not to lead the Jury by the Nose.”
Bathurst, J.: “As there was in this Case strong Evidence for the Plaintiff a new Trial ought not to be granted, although the Weight of the Evidence was in [the trial judge's] Opinion with the Defendant.”
Gould, J.: “It is very difficult to draw a Line between the Cases in which there ought or ought not to be a new Trial; and perhaps the granting of a new Trial must in every Case depend upon the particular Circumstances of the Case. In the present Case there is no Reason to grant one.”53
And in so-called “hard” cases, that is, actions which the court felt should not in conscience have been prosecuted, new trials were denied after verdicts for the defendant, even though against evidence.54 As Bacon put it: “It has been held in divers Cases that the Court will not grant a new Trial unless the Justice of the Case requires it, although the Jury have found a Verdict contrary to the Evidence.”55
No consideration of the judge-jury problem in English law could properly omit some mention of Bushell's Case, 56 which established the principle that a jury which refused to convict, in defiance of the judge's direction, could not be fined and imprisoned.
Shortly after it was decided, the case was cited in support of the argument that the jurors need not respect the court's direction in anything pertaining to their verdict. In a chapter entitled “That Juries are not Finable, or any way to be punish'd, under Pretence of going contrary to Evidence, or against the Judges Directions,” Henry E. Care, the author of English Liberties, set out large portions of the opinion “to satisfy you that a Jury is in no way punishable for going according to their Conscience, though against seeming Evidence.”57 A close reading of Chief Justice Vaughan's holding indicates, however, that it very narrowly restricts and qualifies the jury's role. Because of the significance of the case, and because Adams apparently cited it in his argument in the instant cases,58 a reappraisal of Bushell's Case is worthwhile here.
Bushell had been one of the jurors who had disregarded the court's instructions and had refused to convict the Quakers Penn and Mead at their { 213 } trial in the Old Bailey. As a result, the judges had imprisoned the jurors and literally starved them. Finally, Bushell's lawyers obtained a writ of habeas corpus from the Court of Common Pleas, and the Sheriffs of London, bringing Bushell with them, came into Court to justify the imprisonment. The main reason was “That the Jury acquitted those indicted against the direction of the Court in matter of Law, openly given and declared to them in Court.”59 Vaughan admitted that “no Issue can be joyn'd of matter in Law, no Jury can be charg'd with the tryal of matter in Law barely, no Evidence ever was, or can be given to a Jury of what is Law, or not; nor no such Oath can be given to, or taken by, a Jury to try matter in Law.” But he denied that the judge “having heard the Evidence given in Court (for he knows no other)” could tell the jury “upon this Evidence, the Law is for the Plaintiff, or for the Defendant, and you are under the pain of Fine and Imprisonment to find accordingly.”
However, he said plainly that the judge could before verdict ask the jury whether it had found a particular fact and, depending on the answer, could “declare 'The matter of Fact being by you so found to be, the Law is for the Plaintiff, and you are to find accordingly for him.'” And a finding for the defendant “may be thought a finding in matter of Law against the direction of the Court; for in that case the Jury first declare the Fact, as it is found by themselves, to which fact the Judge declares how the Law is consequent.”
And even after verdict, the judge may “ask, 'How do you find such a Fact in particular?' And upon their answer he will say, 'then it is for the Defendant,' though they found for the Plaintiff, or e contrario, and thereupon they rectifie their Verdict.”
It was also proper, Vaughan said, to put the matter to the jury hypothetically: “If you find the Fact thus (leaving it to them what to find) then you are to find for the Plaintiff; but if you find the Fact thus, then it is for the Defendant.”
But, because the law of the case depended on the facts, and because the jury alone could find the facts, it was impossible for any judge to direct the jury. “If the Jury were to have no other Evidence for the Fact, but what is depos'd in Court, the Judge might know their Evidence, and the Fact from it, as equally as they, and so direct what the Law were in the Case.” But the jurors, the neighbors of the parties, have knowledge of their own, going either to the issues or to the credibility of the witnesses. It is, therefore, “absurd a Jury should be fined by the Judge for going against their Evidence, when he who fineth knows not what it is. ... [F]or the better and greater part of the Evidence may be wholly unknown to him; and this may happen in most Cases, and often doth.” “[T]he evidence in Court is not binding evidence to a Jury.”
Finally, Vaughan noted, although in some situations, such as demurrers to the evidence, the decision goes “upon the Judge's Opinion of { 214 } the Evidence given in Court, [and] the Plaintiff becomes Nonsuit, when if the matter had been left to the Jury, they might well have found for the Plaintiff,” in all general issues, the jury merely “find for the Plaintiff or Defendant upon the Issue to be tryed, wherein they resolve both Law and Fact complicately, and not the Fact by itself.”
Bushell's Case thus rests principally on a concept of the jurors as quasiwitnesses, an idea which remained very much alive down to Adams' time, as the quotation from Chief Justice Pratt demonstrates. To the Vaughan Pratt view, which is unanswerable once its major premise be accepted, the Massachusetts lawyers added an interpretation of Bushell's Case which had come to them through Care's book, that the jury should always decide the law as well as the fact. On 13 March 1769, the Boston Gazette ran an unsigned letter setting out a long passage from English Liberties, including this sentence: “'Tis by applying Matter of Fact and Law together, and from their due Consideration of, and right Judgment upon both, that a Jury brings forth their Verdict.”60
The author of Appendix II to Quincy's Reports thought that, until the 1800's, Massachusetts civil juries had the right to decide both law and fact, in support of which position he cited Stickney v. Atwood. 61 From Dane's digest of this unreported case, it appears that one of the purported grounds for a new trial was that the verdict was against the court's opinion. The court apparently overruled the motion, however, holding that the verdict was “not against the court's opinion, if the facts be true, of which the jury must judge.” Thus the case seems to stand only for the proposition that if court and jury disagree over the facts, the jury's mind will control.
The distinction between (1) the jury's disregarding the court's direction in a matter of law, and (2) the jury's disregarding the court's opinion of the facts was not entirely clear in 18th-century Massachusetts, although the English decisions, even the Junius cases, made the difference plain. In each of those criminal libel cases, the jury had been asked to find only the bare fact of publication, with the legal effect of publication—the guilt or innocence of the accused—to be decided then by the judge. That is, the court was asking the jury to respond to a kind of special interrogatory: “Did the defendant publish the statement in question?” Or, to put it another way, the courts were attempting to force the jury to return a special verdict (a verdict in which the jury found certain specific facts, leaving it to the court to determine which party should prevail). In a general verdict, on the other hand, the jury found “generally,” that is, for the plaintiff (with assessed damages), or for the defendant according to the plea. It was the juries' insistence on bringing in a general verdict (not guilty) which, combined with judicial attempts to regard these general verdicts as special ones, touched off the controversy. But not even Lord Mansfield himself ever directed a jury to find the simple fact of publication.
Inability to distinguish between the differences stemmed in part, as { 215 } Adams himself noted, from the practice of styling anything the court said a “direction.”62 Thus what today would be considered a judge's summing up, or perhaps his commentary on the evidence,63 might, in Adams' time, be regarded as an attempt to direct a jury's finding. Expressions like “contrary to the mind of the Court,”64 or “against the mind of three in four of us Judges,”65 could be interpreted either way.
Of course, no one took the position that all questions whatsoever were for the jury. Even Adams admitted that there were numerous classes of litigation whose intricacies “would confound a common Jury and a decision by them would be no better than a Decision by Lott.”66 But Adams' point was that the jury would recognize its own limitations and would voluntarily bring in a special verdict in such cases. He argued that it should be the jury's decision rather than the judges' whether or not a special verdict should be employed, and that the jury, if it liked, could decide to determine the law, no matter what the court thought. The opposing view found expression in a letter to The Censor, signed “A.Z.,” which insisted that the losing party receive a new trial “when a jury will pertinaciously determine matters of law directly against the opinion of the Court.”67 A middle view came from Robert Auchmuty and Chief Justice Hutchinson. Arguing against a new trial in a 1763 case, Auchmuty had said: “I confess I wish for a Power in the Court to set aside Verdicts, but not for an unlimited one. ... The Court is not to be Judge of the Law and Fact too absolutely; if it should be, it takes away all Verdicts but such as are agreeable to the Mind of the Court.” And Hutchinson asked: “Are you not agreed, that, were it evidently against Law and Evidence, there the Court may grant a new Trial, but not where there is Evidence on both sides?”68
Whatever the division of powers and function between court and jury, it is apparent that in Massachusetts anyhow, after a verdict the judges could not enter up judgment for the losing party, no matter how strong they thought his case to be. The most he could get was a new trial. Even { 216 } “A.Z.” asked for nothing more than that. It was not until the middle of the 19th century that the Massachusetts Court ruled that if a civil plaintiff's evidence was so weak that “the Court would set aside any number of verdicts rendered upon it, toties quoties, then the cause should be taken from the jury by instructing them to find a verdict for the defendant.”69
1. Note JA 's view in 1775: “There never was before, in any part of the world, a whole town insulted to their faces, as Boston was by the Boston Chronicle. Yet the printer was not molested for printing. It was his mad attack upon other printers with his clubs, and upon other gentlemen with his pistols, that was the cause, or rather the pretence, of his flight. The truth was, he became too polite to attend to his business; his shop was neglected; procurations were coming for more than two thousand pounds sterling, which he had no inclination to pay.” “Novanglus,” No. iii, 4 JA, Works 29, 30. Yet JA apparently bought books of Mein. See 1 JA, Diary and Autobiography 338. As to Mein, see also No. 5.
2. See the accounts in SF 101964. The debt to Longman was £1,643 19s. 3 1/2d.; that to Wright & Gill was £315 3s. 6d. Mein had written Longman on 28 Sept. 1768, forwarding a part payment and assuring prompt settlement of the outstanding accounts. MHi: Hancock Papers. Longman's firm was the direct ancestor of the present London publishing house of Longmans, Green & Co., Ltd. Unfortunately, a wartime bomb destroyed the firm's records for the period in question. Letter to the editors, 30 April 1963, V. L. Ripley (secretary to Mr. Longman).
3. Copy of Mein's affidavit, 22 Feb. 1770, MHi:Hancock Papers. See also Alden, “John Mein: Scourge of Patriots,” 34 Col. Soc. Mass., Pubns. 571, 590 (1942), which notes that the John Carter Brown Library copy of The Letters of Sagittarius (Boston, 1775), a book attributed to Mein, bears on its flyleaf an inscription accusing Hancock of buying up Mein's English debts and, by making “a sudden demand upon honest Mein,” bringing on his ruin.
4. Thomas Longman to John Hancock, 22 July 1769:
“Your haveing several times offered me your kind assistance induces me now earnestly to request it in the following affair.
“Mr. John Mein of Boston (Bookseller) is Indebted to me a very considerable sum of Money, the greatest part of which has been due near three Years, which upon my remonstrating to Him He has several times promised to make such Remittances as w'd be satisfactory, but this He has yet neglected to do, nor now even so much as writes to me by way of appology. I should therefore be greatly obliged to you if you could recommend a proper Person to me to whom it would be safe to send a power of Attorney and to Act for me in the most adviseable manner in this unfortunate affair. I know your time and attention is at present much taken up in Public Affairs, but as the recovery of this Debt is of great consequence to me, hope you will not deny my request but favour me with your answer by the first opportunity which will be ever gratefully acknowledged by Sr. Your much obliged Humble Servant, Thomas Longman.” MHi:Hancock Papers.
It was at Longman's instance that Wright & Gill, too, made Hancock their attorney over a year later. Longman to Hancock, 4 Dec. 1769, MHi:Hancock Papers.
5. “I received your favour of the 24th of October (per Capt. Bryant) on Wednesday last, and shall ever acknowledge my self under the greatest obligations for your readiness to undertake the settling of my Account with Mr. Mein, and for that purpose have inclosed a state of it properly Attested, with a Letter of Attorney impowering you to act for me in this unfortunate Affair.” Thomas Longman to John Hancock, London, 4 Dec. 1769, MHi:Hancock Papers.
6. Andrews, “The Boston Merchants and the Non-Importation Movement,” 19 Col. Soc. Mass., Pubns. 159, 228 note (1918). The publishing stopped temporarily on 19 Oct. 1769. Ibid.
7. Letter, Thomas Young to ——, Sept. 1769, reprinted in Edes, “A Memoir of Dr. Thomas Young,” 11 Col. Soc. Mass., Pubns. 2, 5–6 (1910); James Murray, however, indicates that Murray himself was the sole surety. N. M. Tiffany and S. I. Lesley, eds., Letters of James Murray 160 (Boston, 1901). Mein had apparently been present at the affair: the capias for Brown and Ralph Dundass lists Mein as among the witnesses. SF 89228.
8. Andrews, “Boston Merchants,” 19 Col. Soc. Mass., Pubns. 228 note.
9. George Mason to Joseph Harrison, 20 Oct. 1769, 3 Bernard Papers 53, MH.
10. Alden, “John Mein: Scourge of Patriots,” 34 Col. Soc. Mass., Pubns. 571, 587–589 (1942) vividly uses the sources to describe the near-lynching. See also Rowe, Letters and Diary 194; Tiffany and Lesley, Letters of James Murray 168; John Miller, Sam Adams, Pioneer in Propaganda 205 (Boston, 1936); George Mason to———, 28 Oct. 1769, 3 Bernard Papers 47, MH; Mein to Joseph Harrison, 5 Nov. 1769, id. at 51; Gailer v. Trevett, p. 41, note 35 19 , above.
11. Celebrated on 6 Nov., because 5 Nov. 1769 fell on a Sunday. The effigy carried an acrostic which included the homonymic line “Mean is the man; M—N is his name.” Bolton, “Circulating Libraries in Boston, 1765–1865,” 11 Col. Soc. Mass., Pubns. 196, 198 (1910).
12. Hutchinson to Hillsborough, 11 Nov. 1769, 3 Bernard Papers 53, MH.
13. See George Mason to Joseph Harrison, 11 Nov. 1769, which refers to Mein's taking “his passage home in one of His Majesty's Armed Schooners,” and is docketed “Per Mr. Mein. Reed Jany 3d.” 3 Bernard Papers 54, MH. Compare Arthur M. Schlesinger, The Colonial Merchants and the American Revolution 160 note (N.Y., 1918).
14. Longman to Hancock, 4 Dec. 1769 (docketed “Rec'd by [i.e., via] Paddock March 1st, 1770”): “By this Ship believe you will Receive Letters from Messers Wright & Gill requesting the same favour of you, and as it was by my persuasion they opened an account with Mr. Mein, I could not with Honour take any steps without acquainting them with it.” MHi:Hancock Papers. The writs and the deputy sheriff's return are in SF 89428 and 101964. The powers of attorney are also in SF 101964. Adams' Office Book for the April 1770 Suffolk Inferior Court lists both cases, and notes for each: “Copying acct, at J. Hancock Esq's. Instance,” and “7s posted to J. Hancock Esqr.” MQA.
15. Deposition of John Mein (copy), 22 Nov. 1770, MHi:Hancock Papers. The correspondence between Murray, Greenleaf, and Fleeming appears as Doc. I below. Murray, a Scot like Mein, attracted the ire of the Liberty Party as much for his ancestry as for his tory leanings. “It may not perhaps lessen your opinion of Mr. Murrays good Qualities to inform you that he is a Scotchman and has continually caball'd with his loyal Countreymen in this Town, and the other Governmental tools against the Charter and liberties of this Province.” William Palfrey to John Wilkes, ca. 23–30 Oct. 1770, in Elsey, “John Wilkes and William Palfrey,” 34 Col. Soc. Mass., Pubns. 411, 422 (1941). Anti-Jacobite feeling was apparently strong in Boston in the late 1760's and early 1770's. Adams' notes in No. 5 are headed “News Paper. Jacobite Party.” And the Boston Gazette of 5 Sept. 1768, p. 4, col. 1, ran a violent letter on the subject. It is difficult to estimate how this spirit affected the jury's attitude toward Mein's litigation, but the effect was probably not favorable.
16. Bolton, “Circulating Libraries in Boston, 1765–1865,” 11 Col. Soc. Mass., Pubns. 196, 199. Hancock denied that the proposal would have “fully secur'd” Longman; he insisted that he “waited for Security and finally could obtain none.” Hancock to Longman and Wright & Gill, 10 Jan. 1771, MHi:Hancock Papers.
17. James Murray to Elizabeth Smith, 12 Mar. 1770, in Tiffany and Lesley, Letters of James Murray 169–170. “Relieve the books” means to lift the attachment on them.
18. Hancock to Longman, 18 May 1770, MH-BA: Hancock Letter Book, in A. E. Brown, John Hancock, His Book 94 (Boston, 1898).
19. Longman to Hancock, undated. MHi:Hancock Papers.
20. Christian Barnes to Elizabeth Smith, 29 June 1770, in Tiffany and Lesley, Letters of James Murray 178. The “castle” was Castle Island in Boston Harbor where the troops were quartered.
21. Hancock to Longman, 19 Nov. 1770, MH-BA:Hancock Letter Book, in part in Brown, John Hancock, His Book 95–96. Hancock's report is confirmed by Min. Bk., Inf. Ct. Suffolk, April 1770, Nos. 178, 179; July 1770, Nos. 113, 114; Oct. 1770, Nos. 67, 68. The statute in question was “An Act to Enable Creditors to Receive Their Just Debts out of the Effects of Their Absent or Absconding Debtors.” 4 A&R 168, 169, Act of 13 Feb. 1759: “and such attorney, factor, agent or trustee, upon his desire, shall be admitted to defend the suit on behalf of his principal throughout the course of the law, and an imparlance shall be granted of course at two terms successively, that he may have an opportunity to notify his principal thereof, and at the third term, without special matter alledged and allowed in bar, abatement or further continuance, the cause shall peremptorily come to trial.” Originally, a prayer for leave to imparl meant that the defendant “wanted time to talk matters over with the plaintiff out of court. Later on all that it meant was that he wanted to have until the next term to plead.” Sutton, Personal Actions 104.
22. SF 101964.
23. Hancock to Longman and Wright & Gill, 16 Jan. 1771, MHi:Hancock Papers. The copy is docketed: “To Mr. Thos. Longman to be Communicated to Messers Wright & Gill abt Mein's affairs with Mr. Adams Minutes respectg the Objections to the Accots. Jany 1771. By Jarvis. By White.”
24. SF 101964.
25. See copy of the Inferior Court record, SF 101964. The Longman trial was on the fifth day of the term, and the Wright & Gill trial on the eighth day. Min. Bk., Inf. Ct. Suffolk, Jan. 1771, Nos. 43, 44. The court convened on Tuesday, 1 Jan., but apparently did not sit regularly thereafter, if the assumptions in the text are correct.
26. The depositions actually should have sufficed, under the provisions of “An Act for the More Easy Recovery of Debts in His Majesty's Plantations and Colonies in America,” 5 Geo. 2, c. 7 (1732):
“[I]n any action or suit ... brought in any court of law or equity in any of the said plantations, for or relating to any debt or account, wherein any person residing in Great Britain shall be a party, it shall and may be lawful to and for the plaintiff or defendant, and also to and for any witness to be examined or made use of in such action or suit, to verify or prove any matter or thing by affidavit or affidavits in writing upon oath, or ... affirmation, made before any mayor or other chief magistrate of the city, borough or town corporate in Great Britain, where or near to which the person making such affidavit or affirmation shall reside ...; and every affidavit or affirmation so made ... shall in all such actions and suits be allowed to be of the same force and effect, as if the person or persons making the same ... had appeared and sworn or affirmed the matters contained in such affidavit or affirmation viva voce in open court.”
All the depositions met the statutory requirements; the attestations specifically referred to the Act. SF 101964.
27. SF 89428.
28. See JA , Docket, Suff. Inf. Court, Jan. 1771, Adams Papers, where the entry for “Wright v. Same” is “Verdict for Ptf., Deft, appld.” Both cases were “Posted to Hancock & pd.”
29. Quincy, Reports 262–270 (Suffolk SCJ, March 1768).
30. Bernard to Shelburne, 12 March 1768, 6 Bernard Papers 278, MH:
“[A]s soon as [the Jury] came out of Court they sent for the Attorney General, and directed him to prepare a Bill against the next Morning. But in the Interval the Faction who conducts that Paper was indefatigable in tampering with the Jury; so that when the Business was resumed the next day, the Bill was opposed so effectually that it passed in the negative by a small Majority, some say of only one. Upon this occasion the Managers of the Papers were seen publickly to haunt the Grand Jury Men wherever they went; and the Arguments which were used in the Grand Jury Chamber were almost word for word the same which Otis had before used in Publick.”
The Boston Gazette, 21 March 1768, p. 3, col. 1, reported that at a celebration of the repeal of the Stamp Act, one of the toasts was: “The worthy and independent Grand Jurors.”
31. Boston Gazette, 28 Jan. 1771, p. 1, cols. 1–2, p. 2, cols. 1–2; 4 Feb. 1771, p. 2, col. 3. The arguments for and against rejecting the verdict may even have taken place on 4 Feb.; the appeal bonds in these cases all bear that date, and their execution may well have followed immediately upon the court's upholding the verdicts. See SF 101964.
32. At this stage there were three cases: Longman, appellant, v. Mein; Mein, appellant, v. Longman; and Mein, appellant, v. Wright & Gill. The Feb. 1771 term of the Suffolk Superior Court commenced on 19 Feb., according to the Minute Book, which gives the following history for Longman's appeal: “4th Day. The 1st Jury half fees. 25th Day. Continued to next Term by consent.” Min. Bk. 91, SCJ Suffolk, Feb. 1771, N–13. The other two cases were not called until the twentyfifth day, at which time they, too, were continued to the next term by consent. Min. Bk. 91, SCJ Suffolk, Feb. 1771, N–19 and N–20. A paper inserted in Min. Bk. 91 at the March 1770 term in Benjamin Kent's hand and signed by him shows that the original plaintiffs were allowed to file new declarations “paying Costs.”
The reference to half fees suggests that the jury had been empaneled, if not sworn, and then the case continued. A statute of 1739 had provided that in such cases, the party responsible was to pay half the normal jury fee. Act of 24 June 1739, 2 A&R 938, 939. This Act, which applied to all courts in the Province, had by its terms expired in 1742. The successor legislation, however, had been limited to the Inferior Courts and Courts of General Sessions of the Peace. Act of 15 Jan. 1743, 3 A&R 28, 29. No similar legislation covering the Superior Court appears to have been enacted, which suggests that the Superior Court may have been extending the statute by analogy.
33. Hancock had not received the accounts by 24 April 1771. Hancock to Longman, 24 April 1771, MH-BA:Hancock Letter Book, in Brown, John Hancock, His Book 96. Hancock to Wright & Gill, 24 April 1771, MH-BA:Hancock Letter Book. The accounts and the supporting affidavits appear in SF 101964. Longman's account is of special interest, being a listing of every title shipped to Mein from 1765 to 1769. Ibid. Hancock, who had been ill since April, did not report their arrival until 14 Nov. 1771. Hancock to Longman, Hancock Letter Book. There was no Nov. term of the Suffolk Superior Court. Hancock refers to the action of the court on 10 Sept. adjourning the Aug. term (which had commenced 27 Aug.) to 19 Nov. and again to 26 November. Presumably a long trial list coupled with the imminence of sittings in other parts of the Province provoked the adjournment.
34. The declarations, one in Adams' hand, the other not, are in the file, both docketed as being “filed in the Superior Court at Boston November 26th 1771,” the one in Adams' hand adding “by leave of the Court.” The new language alleged that Mein owed his creditors: (1) for the reasonable worth of the goods; (2) for money had and received; (3) for money laid out and spent; and (4) for goods sold and delivered. SF 101964.
35. The respective Minute Book entries are Min. Bk. 95, SCJ Suffolk, Aug. 1771, C–64 and C–66. Mein's appeal against Longman, which was docketed as C–65, was dismissed on the fourteenth day, its merits having been tested in Longman, appellant, v. Mein. See note 36 below. The Hancock letter appears in MH-BA:Hancock Letter Book.
36. The verdicts are in the file, SF 101964. On the back of each, in a hand not JA 's, is a calculation converting the sterling amount to lawful money (by raising it one third). This is why the Minute Book, Record, and executions give the figures as £2191 19s. o 2/3d. for Longman, and £420 4s. 8d. for Wright & Gill. Longman: Min. Bk. 95, SCJ Suffolk, Aug. 1771, C–64; SCJ Rec. 1771, fol. 210; SF 120432. Wright & Gill: Min. Bk. 95, SCJ Suffolk, 1771, C–66; SCJ Rec. 1771, fols. 210 211; SF 129636.
37. SF 129636.
38. Hancock to Longman, 27 April 1771, MH-BA:Hancock Letter Book, printed in part in Brown, John Hancock, His Book 96.
39. SF 120432.
40. SF 129636.
41. Hancock to Longman, 7 Nov. 1772, MH-BA:Hancock Letter Book. The letter enclosed bills and orders totaling £757 2s. 4 1/2d., but it is not clear whether this all stemmed from the Mein affair or if some was for Hancock's own account. The total net from the executions was £1050 16s., lawful money, or approximately £787 2s. sterling. This approximates the amount Hancock sent, allowing for liquidation shrinkage and attorney's fees. “I have charged no commission, as I promised,” Hancock wrote Longman. “What little service I may have rendered you, if it be acceptable will give me pleasure.” JA 's account with Hancock, receipted 21 Dec. 1771 (p. lxx above), shows for the Jan. 1772 Superior Court: “To the Sum total of the Account in the Case of Longman and Mein—£18 15s. 8d. To Ditto in Wright & Gill v. Mein—£15 5s. 8d.”
44. Statement of Black and Douglas, JJ., on the Rules of Civil Procedure and the Proposed Amendments, Amendments to the Rules of Civil Procedure for the United States District Courts 31–33 (Washington, 1963).
47. “A new trial shall be granted if the Judge of Nisi Prius misdirect the Jury, because those Trials are subject to the Inspection of the Court.” Anonymous, 2 Salk. 649, 91 Eng. Rep. 552 (Q.B. 1702), per Holt, C.J.
48. See cases collected in 2 Viner, Abridgment 485.
49. Anonymous, 1 Wils. K.B. 22, 95 Eng. Rep. 470 (1743). See Angier v. Jackson, Quincy, Reports 84–85 (Mass. SCJ, 1763), which also demonstrates the distinction.
53. Francis v. Baker, 5 Bacon, Abridgment 246 (C.P. 1763).
54. Smith v. Bramston, 2 Salk. 644, 91 Eng. Rep. 543 (K.B. 1695); see also Dunkly v. Wade, 2 Salk. 653, 91 Eng. Rep. 556 (Q.B. 1707) and Sparks v. Spicer, 2 Salk. 648, 91 Eng. Rep. 550 (K.B. 1698). Another case which appears to approve a jury finding against evidence, Deerly v. Dutchess of Mazarine, 2 Salk. 646, 91 Eng. Rep. 547 (K.B. 1696), really rests on a theory of estoppel, that a woman who is reputed to be a feme sole and lives as one may not set up her coverture as a defense to payment of her debts.
55. 5 Bacon, Abridgment 244, which cites all the cases referred to in note 54 above.
56. Vaughan 135, 124 Eng. Rep. 1006 (C.P. 1670).
57. Henry E. Care, English Liberties, or The Free-Born Subject's Inheritance 123, 124–127 (London, 1703).
58. Text at note 19 89 below.
59. Vaughan at 143, 124 Eng. Rep. at 1006. For background see 1 Holdsworth, History of English Law 345. In the quotations which follow, the original emphasis has been retained.
60. Boston Gazette, 13 March 1769, p. 3, col. 1; Care; English Liberties 121.
62. Doc. II. For an example of the use of the word “direct” in this context, which does not, however, resolve the question of the binding effect of the direction, see William Torrey v. Joseph Torrey, Min. Bk. 89, SCJ Suffolk, Aug. 1769, N–59, SCJ Rec. 1769, fol. 248, an action on an account, in which JA had obtained judgment for the defendant on a sham demurrer at the July 1769 Suffolk Inferior Court. Josiah Quincy joined JA for the defendant in the Superior Court, where he again prevailed. A note from the file in the hand of Judge Trowbridge explains why: “Nothing being offered by the plaintiff in Support of his Declaration but the account in the Case Signed by Joseph Torrey The Court Were of opinion That That was not sufficient Evidence to support the plaintiff's Declaration and Directed the Jury Accordingly.” SF 101517. See JA , Docket, SCJ Suffolk, Aug. 1769, Adams Papers.
63. In Massachusetts today, the judge is not permitted to charge the jury “with respect to matters of fact.” Mass. G.L., c. 231, §81.
64. Angier v. Jackson, Quincy, Reports 84 (Mass. SCJ, 1763).
65. “At Superiour Court at Salem, Eliza Ames and her son Eames tried for poisoning his wife. They were acquitted, tho' against the mind of three in four of us Judges.” Lynde, Diary 193 (14 Nov. 1769).
67. The Censor, 14 March 1772, p. 1, col. 2.
68. Angler v. Jackson, Quincy, Reports 84–85 (1763).
69. Denny v. Williams, 5 Allen 1 (Mass. SJC, 1862).
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