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Browsing: Legal Papers of John Adams, Volume 1


{ 316 }

Docno: ADMS-05-01-02-0008-0004-0006

Author: UNKNOWN
Date: 1769-07-27

Writ of Certiorari1

Suffolk Superior Court, Boston, July 1769

[seal] Province of the Massachusetts Bay Suffolk Ss George the third by the grace of God of Great Britain France and Ireland, King Defender of the Faith &c.
To our trusty and well beloved Samuel Welles Esqr. first Justice of our Court of General Sessions of the peace for the said county, Greeting.
Willing for certain causes to be certified of the Record of the process Order and Sentence of a Court of general Sessions of the peace held at Boston in and for said county by adjournment on the seventh day of November last, upon a petition of the selectmen of Brooklyn in said county, then and there heard and adjudged (as it is said) before you and your Companions Justices of the same court: We therefore command you that the said Record, with all things touching the same fully and entirely as the same remains before You, You send before Us in our Superiour court of Judicature, Court of Assize and general Goal Delivery, to be held at Boston in and for the county of Suffolk on the last tuesday of August next, under your Seal together with this writ: hereof fail not; Witness Thomas Hutchinson Esquire, at Boston the twenty seventh day of July in the ninth year of our Reign, Annoque Domini 1769.
[signed] Nat. Hatch Cler.
To the Honorable His majesty's Justices of His Superior court of Judicature &c. above mention'd I herewith send the Record within mention'd with all things touching the same.
[signed] Samuel Welles
1. SF 102089, in unknown hand. The form seems to translate literally the Latin form used in England. See, for example, 1 Gardiner, Instructor Clericalis 157. It may be a local product, since it varies in detail, though not in substance, from the translated forms found in English books. See William Bohun, The English Lawyer 221–243 (London, 1732); Michael Dalton, The Country Justice 476 (London, 1746); compare Thomas Chitty, Forms of Practical Proceedings 651 (London, 2d edn., 1835).

Docno: ADMS-05-01-02-0008-0004-0007

Author: Fitch, Samuel
Date: 1770-03

Fitch's Assignment of Errors1

Suffolk Superior Court, Boston, March 1770

In the Case of the Select-Men of the Town of Brooklyn against the Town of Roxbury heard and adjudged at the Court of General Ses• { 317 } sions of the Peace held at Boston in and for the County of Suffolk by Adjournment on Monday the Seventh Day of November A.D. 1768. The Errors assigned by the Select-Men of the Town of Roxbury, which appear by the Records and Proceedings of said Court in said Case, on the Certiorari are as follows Vizt.
First, For that it appears by the Records of said Court of Sessions in said Case, that the Matters and things set forth and alledged in the Petition of the Select-Men of the Town of Brooklyn to the said Court were only Matters of supposed Error, and enquirable into as such; and that therefore the said Court; which is not a Court for the Tryal of Errors, could not by Law take Cognizance of, or determine upon the same.
2dly. The said Select-Men in their said Petition do not alledge that the Paupers therein mentioned, were not the Poor of the said Town of Brooklyn, and properly belonging to them to Maintain, nor do they shew forth any Facts whereon that Matter could be properly Enquired into and determined, or desire that it should be: And yet they pray that the said Paupers may be removed from Brooklyn to Roxbury and that the Town of Roxbury should Repay to Brooklyn the Expences they had been at in Supporting said Paupers with their Costs and the said Court Granted the said prayer of their Petition as appears by their Records of Proceedings in said Case.
3dly. The Select-Men of the said Town of Roxbury in their Answer to the said Petition Alledged, first that the said Court ought not to take Cognizance of the Matters and things shewn forth therein by the said Select-Men of said Brooklyn; Because the same were only such Matters as were properly enquirable into as Error, and not appertaining to the Merits of the Cause: and secondly that the Matters and things offered and objected by the said Select-Men of Brooklyn, were not sufficient for said Court to Grant the Prayer of said Select-Men of Brooklyn on: And the said Court Thereupon Determined and delivered their Opinion, that there was not Matter sufficient in said Petition whereby the said Court, might proceed to an hearing of the Merits so as to determine whether the said Paupers were the proper Poor of Roxbury or Brooklyn; but yet notwithstanding, the said Court, would not dismiss the said Petition (when it was moved that it should be dismissed) but sustained the same, and Granted the Prayer thereof as aforesaid; which is absurd and Contradictory: All which appears by the Records and Proceedings of said Court in said Case.
4thly. The said Court of Sessions cou'd not with any propriety or Consistancy grant the said Prayer of said Petition without Enquiring { 318 } into the Merits of said Cause and Determining whether the said Paupers were the proper Poor of the said Town of Brooklyn, or of the said Town of Roxbury: And yet the said Court did Grant the said Prayer of said Petition as aforesaid, without Entering into, or making any such Enquiry or Determination, as appears by their Records and Proceedings in said Case.
5thly. There appears by the said Records of the said Court of Sessions to be no Adjudication that the said Paupers or any of them are or were the proper Inhabitants of the said Town of Roxbury, or that they be, or should be, or ought to be supported and maintained by said Town; or that they had been illegally or improperly removed from said Town, to the said Town of Brooklyn or that the Order for removing them be Quash'd: and yet it appears, by the same Records that the said Court ordered, that the said Paupers should be returned to the said Town of Roxbury, and that the Inhabitants of said Town should pay and Refund unto the Select-Men of the Town of Brooklyn all such Charge and Expence as had arisen to them for the support and Maintenance of said Paupers; therefore the said Order of the said Court of Sessions for the Removal of said Paupers and for Refunding said Charges, is not founded on any direct Adjudication, but at best is founded on an uncertain adjudication, by Implication only; and it is repugnant and Contradictory to and inconsistant with the other Parts of said Record as beforementioned, and is altogether illegal and Erronious in Substance.
Wherefore the said Select-Men of the Town of Roxbury pray that the Order, Sentence, Judgment and proceedings of said Court of Sessions, may be Quashed, and the said Town of Roxbury restored to what they have suffered and paid in Consequence thereof and be allowed their Costs.
[signed] Saml. Fitch for the Select Men of Roxbury
1. SF 102089, presumably in Fitch's hand. The document is dated by the reference to it in Doc. VII.