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Browsing: Legal Papers of John Adams, Volume 1


Docno: ADMS-05-01-02-0006-0005-0002

Author: Adams, John
Date: 1772-08

Adams' Minutes of the Argument1

Suffolk Superior Court, Boston, August 1772

Hill vs. Whiting
In this Case the Plaintiff has alledged that her Father died seized on the Thirtyeth of the Month. But the Jury have found that he died seised on the Twenty first of the Month.
1. Inst. 293. a.2 “Also where a Man will sue a Writ of Right, it behoveth that he counteth of the Seisin of himself or of his ancestors, and also that the Seisin was in the same Kings Time, as he pleadeth in his Plea. For this is an ancient Law used, as appeareth by the Report of a Plea in the Eire3 of Nottingham.”
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Fitz. N.N.B. page. 69.4 Writ de Droit. “In this Writ he ought to count of his own Possession, or of the Possession of his Ancestor; otherwise the Writ doth not lie, and he ought to alledge Esplees” &c.5
From these Authorities it seems, that the Demandant must count of a Seisin at some certain Time as upon a certain Day, or within some certain Time as within such a Kings Reign, or within some other certain Time, and must prove accordingly.
32. H. 8. and 21 Jac. 1. Limitation of Real Actions.6 Bac. Abr. Vol. 3. 501.7
Holbeck vs. Bennett, 2. Lev. 11. 2. Saund. 317.8
Blackwell vs. Eales, 5. Mod. 286.9
Rex vs. Bishop of Chester, Skin. 660.10
Lane vs. Alexander, Cr. Ja. 202.11
Cro. Car. 360.12
2. Comyns's Rep. 12. 13.13
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3. Lev. 193. W[he]r[e] Day is made Parcell of the Issue it is ill.14 Brooke Trav. pl. 40.15
2. Mod. 145. Brown vs. Johnson.16 Time is not traverseable. Plaintiff must alledge a Time for Forms sake but Defendant ought not to make Time Parcell of the Issue.
Court unanimous that the Day is not material, and therefore the Plaintiff recover.
1. In JA 's hand. Adams Papers, Microfilms, Reel No. 185.
2. Coke, Littleton *293a. Quotation marks supplied.
3. The court of justices in Eyre, royal judicial officials who held court on circuit in medieval times. Plucknett, Concise History 144–146.
4. Fitzherbert, New Natura Brevium 69 (London, 8th edn., 1755) Quotation marks supplied. The quotation is actually from a section on writs of right of advowson, a special variety of the writ dealing with the right to present a candidate for a church or benefice. In the section dealing with writs of right generally there is a similar statement, with the qualification, perhaps dangerous to JA 's position, that “If he count the Seisin of his Ancestor, he may alledge the Seisin in the Time of King Richard the First.” Id. at 11.
5. That is, the products of the land. It was alleged here. See the declaration, p. 36, note 30 14 , above.
6. The statute, 32 Hen. 8, c. 2, §2 (1540), provides that no writ of entry may be maintained upon the seisin of an ancestor or predecessor which was not in effect within fifty years prior to the date of the writ. As to the statute of 21 Jac. 1, see text and note 7 above.
7. 3 Bacon, Abridgment 501–504, setting out the statutes cited in note 17 6 above.
8. Holbeck v. Bennett, 2 Lev. 11, 83 Eng. Rep. 429; sub nom. Bennet v. Holbech, 2 Saund. 317, 85 Eng. Rep. 1113 (K.B. 1682) (Time and place of lease pleaded in avowry in replevin held not traversable, per Hale, C.J.). This citation and the remainder of the minutes, written in a hastier hand with a heavier pen, are JA 's on-the-spot notes of Quincy's argument and the court's ruling.
9. Blackwell v. Eales, 5 Mod. 286, 87 Eng. Rep. 660 (K.B. 1696) (Time but a circumstance, where evidence of a thing done must be given; traverse taking issue thereof would be bad, and declaration alleging trespass on a day not yet come held aided by verdict).
10. Rex v. Bishop of Chester, Skin. 651, 660, 90 Eng. Rep. 291, 295 (K.B. 1696) (Failure to deny exact time of seisin in quare impedit does not admit it, because exact time immaterial; seisin generally in time of peace, &c. is enough).
11. Lane v. Alexander, Cro. Jac. 202, 79 Eng. Rep. 177 (K.B. 1607) (In ejectment, where one copyhold is pleaded as being before another, denial of exact date of earlier copyhold held bad on demurrer as immaterial where question is which came first).
12. This citation has not been identified. In all editions of Croke's Reports in the Time of Charles I (“Cro. Car.”) consulted by the editors, page 360 is blank.
13. An inadvertence for —— and Blackall v. Heal et al., 1 Com. 12, 92 Eng. Rep. 933 (K.B. 1696), another version of Blackwell v. Eales, note 9 note 20 above.
14. An inadvertence for Dring v. Respass, 1 Lev. 193, 83 Eng. Rep. 364 (K.B. 1666) (Traverse to declaration in debt on a judgment held bad on demurrer where it had effect of putting date of the judgment in issue).
15. Apparently an inadvertence for Robert Brooke, La Graunde Abridgement, tit. Traverse per sans ceo, pl. 140 (London, 1586) (Debt on condition that defendant enter peacefully before Michaelmas; plea that he entered peacefully on such a day before the feast. Replication bad that he entered forcibly on another day, because day not traversable).
16. Brown v. Johnson, 2 Mod. 145, 86 Eng. Rep. 991 (K.B. 1688) (In action of account, dates during which defendant was bailiff are matter of form, not issue).
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