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Browsing: Legal Papers of John Adams, Volume 1


Docno: ADMS-05-01-02-0002-0001-0002

Author: Adams, John
DateRange: 1771 - 1773

The Pleadings Book

1771–1773

[I]
Case on a Bill of Lading vs. Master for not delivering the Plaintiff's Goods freighted on Board the Defendant's Vessell.
Asa Holden vs. Charles Conner1
For that the said Charles on &c.—received on board his said Ship called the X X and whereof the said Charles was Master (H[ogshea]ds, Casks &c.) containing the Goods in the schedule annexed—And on the &c.—at —— signed a certain Note in Writing called a Bill of Lading and undertook (the Dangers of the sea excepted) to deliver the said —— to the Plaintiff he paying the customary Freight and afterwards, vizt. on —— the said Charles arrived in said ship at said ——. Yet he has not delivered said Goods &c. tho the Plaintiff hath often requested it, and has been always ready to pay the Freight aforesaid, but refuses so to do.
[II]
Case. By Freighter vs. owner for the Embezzlement of the Master upon a Bill of Lading.
Waldo vs. Gridley2
John Waldo of Boston &c.3 vs. Isaac Gridley. In a Plea of Trespass on the Case, for that the said John on &c.—at Boston aforesaid, shipped { 32 } on Board the said Isaac's Snow, Mermaid, then bound on a Voyage in the said Isaac's service, to Jamaica, a Quantity of Gold and silver vizt 8 Guineas, 1 Pistole, and 23 Dollars all of the Value of £19 lawfull Money with Reuben Hussey the said Isaac's servant, and Commander of said Vessell for said Voyage and for whose Conduct in said Service, the said Isaac is answerable, to be transported in said Vessell on the Plantiffs Account and Risque, to Jamaica, the Danger of the Seas only excepted, and there to be delivered to the Plantiff, his order, or assigns, he or they paying Freight therefor two Pr.Cent with Primage and Average accustomed:4 And the said Reuben then and there in said { 33 } Capacity, signed a Bill of Lading, according to the Custom of Merchants,5 thereby engaging for the Delivery of said Gold and Silver in manner aforesaid; and upon the Conditions aforesaid, whereby the said Isaac, according to the Custom of Merchants then and there became obliged that said Gold and Silver should be (the Danger of the seas only excepted) safely kept, transported and delivered as aforesaid, and then and there, promised the Plantiff accordingly. And the Plantiff in Fact saith, that the said Isaac's Master of said Vessell, in said Vessell and in said Isaac's Service, arrived safe at said Jamaica with said Gold and Silver, that the said Gold and Silver was not safely kept, but by the said Isaac's Master aforesaid and the Crew of the said Isaac's Vessell, for whom in such Respects he is answerable, was there on board said Vessell converted to their own Use, and imbezzled and was never delivered to the Plantiff, nor to his order nor assigns, though often requested thereto, and though the Plantiff was always ready to pay the Freight, and Primage and average aforesaid; by means whereof, the said Isaac, according to the Custom of Merchants became obliged to pay the Plantiff his Damage occasioned thereby (which the Plantiff avers, amounts to —— L.M.) on demand, and accordingly on —— &c. —— at Boston aforesaid, promised the said John to pay him the same on Demand, Yet the said Isaac, tho requested has never paid the same but neglects and refuses to do it. To the Damage &c.6
Octr. Court 1751 NB. This Declaration was drawn by Mr. Pratt, Mr. Gridley pleaded in Abatement, but the Plea was overruled by the Court. Issue was joined, and after a full Hearing the Case was committed to the Jury, who found for the Defendant Costs.7
{ 34 }
[III]
[ Case on a bill of lading against the owner.]
[Langdon v. Barber] 8
3. Bac. 591. Bottom.9 3. Mod. 321. Boson vs. Sandford.10 1. Reading Clerk's Instructor 371. For a Precedent of a Declaration vs. Master.11
Summon Wm. Barber of Charlstown &c.—to answer Edward Langdon of Boston &c.—in a Plea of Trespass upon the Case for that the { 35 } said Wm. at a Place called Patuxent River, in our Province of Maryland vizt. at Boston aforesaid,12 on the 8th day of last December was owner and Proprietor, of a Vessell, being the good Brigantine called the Fair Lady, whereof was then Master under God for the then present intended Voyage, Abiel Lucas, and then riding at Anchor in Patuxent River aforesaid, in which Brigantine the said William was used and accustomed to carry Goods, Wares, and Merchandises, for a reasonable Hire, from Port to Port: And the said Edward, there afterwards, on the same day, put, shipped and loaded, in good order and well conditioned in and upon the said Brigantine, then, by Gods Grace, bound for Boston in New England, 500 Bushells of good merchantable Wheat, of the Value of £133 6s. 8d. L.M. to be delivered in like good order and well conditioned, at said Port of Boston, the dangers of the Seas only excepted, unto the said Edward, or to his assigns, he or they paying Freight for said goods with Primage and Average accustomed, and the said William, then and there promised the said Edward to deliver the said Wheat accordingly. Now the said Edward in fact says, that the said Brigantine afterwards sailed from said Patuxent River, with the said Wheat on board in good order and well conditioned, and arrived safe at said Port of Boston with said Wheat in like good order and well conditioned on the 17. day of December last; yet the said William, tho often requested neither by himself nor by any other Person for or under him, ever delivered the said Wheat to him the said Edward, or to his assigns, tho the said Edward was always there ready to receive the same, and to pay Freight therefor, with Primage and Average accustomed, but the said Abiel Lucas the said Master and Commander of said Brigantine, and in the service of the said William, and for whose Embezzlements and Conduct in such Respects the said William is answerable, there afterwards on the same 17th day of December last, embezzled the said 500 Bushells of Wheat and converted it to his own Use. By means whereof the said William by Law and by the Custom and Usage of Merchants, became obliged to pay the Plantiff his Damages occasioned thereby (which the Plantiff avers, amount to £133 6s. 8d. L.M.[)] on demand and promised the said Edward accordingly at said Boston on the day of December last, to pay him the same on demand; Yet the said Wm. tho requested has never paid the same but neglects to do it. To the Damage &c.
{ 36 }
[IV]
Ejectment. By a posthumous Daughter, on the seizin of her Father.
Hill vs. Whiting13
Summon J. Whiting, to answer to Abiel Hill, &c. in a Plea of Ejectment, wherein the Plantiff demands against the said John the Possession of a certain Tract of Land containing &c. and bounded &c.
Whereupon the Plantiff saith, that Ebenezer Hill late of said Wrentham, Husbandman deceased Intestate, Father of the Plantiff, in a Time of Peace, vizt. on the 30th day of October Anno Domini 1732 was seized of the Demanded Premisses in his Demesne as of Fee taking the Esplees14 thereof to the Yearly Value of four Pounds and on the same day, afterwards at said Wrentham, the said Ebenezer died so seized thereof and Intestate, leaving Susanna his Widow pregnant with the Plantiff, who was born afterwards at said Wrentham on the sixteenth day of February Anno Domini 1733, and after the Death of the said Ebenezer Hill, Father of the Plantiff, and the Birth of the Plantiff as aforesaid, the demanded Premisses, and the Right and Property thereof, descended by Law to the Plantiff, Child and Heir of the same Ebenezer deceased, and she ought accordingly to be in { 37 } quiet Possession thereof, but the said John, since the Death of the same Ebenezer, hath unjustly entered into the demanded Premisses, and still unjustly, deforces and holds the Plantiff out. To the Damage &c.
[V]
Case.
[Haynes v. Shaw] 15
Indeb. Ass. on an Account annexed. Summon F.S. &c. to answer S.H. &c. in a Plea of Trespass on the Case, for that the said F.S. at Boston aforesaid on the 14th. day of April instant being indebted to the said { 38 } Ind. Ass. for Money, laid out, and expended for Defendant. S.H. in the sum of £155 19s. 9d., as by the account to the Writ annexed appears, did then and there promise the said S.H. to pay him that sum on demand. And for that the said F.S.Ind. Ass. for money had and received afterwards, that is to say, on the same day at Boston aforesaid, was indebted to the said S.H. in another sum of £150 19s. 9d. for the like sum of Money, before that Time, at the special Instance and Request of the said Francis, and to the Use of the said Francis, paid, laid out and expended, and being so indebted, he, the said F.S. in Consideration thereof, afterwards, that is to say, the same day, at Boston aforesaid, promised the said S.H. to pay him the same on demand. And, whereas the said F.S. afterwards, that is to say, on the same day, at Boston aforesaid was indebted to the said Samuel H. in one other sum of one hundred and fifty two Pounds, Nineteen Shillings and Nine Pence for the like Sum of Money, by him the said F.S. before that Time had and received, to the Use of the said S.H., and being so indebted he the said Francis, in Consideration thereof, that is to say, on the same day, at Boston aforesaid, promised the said S.H. to pay him the said last mentioned sum on demand; yet the said F.S. tho requested hath not paid the said S.H. said sums.
Insim. Comp. And for that the said F.S. and S.H. at said Boston, on the [] day of [] accounted together concerning diverse sums of Money, before that Time due and owing from the said F.S. to the said S.H. and then in Arrear and unpaid, and on the Account so stated, the said F.S. was then and there found in Arrear, on the whole to the said S.H. the further sum of £200 16s. 8d. sterling, which the Plantiff avers to be equall to [] Lawfull Money, and the said F.S. at said Boston, on the said last mentioned day, in Consideration thereof, promised the said S.H. to pay him that sum also, on demand: And for that the saidQuant. Valebat. S.H. at said Boston, afterwards vizt. &c. had sold and delivered to the said F.S. at his special Instance and request, 13 Barrells of Flour, and other Goods, Wares and Merchandises, other than those contained in the Schedule, or Account annexed but of the same Quantity and Quality, { 39 } and the said F.S. then and there in Consideration thereof, promised the said S.H. to pay him there for all such Sums of Money, as the said Flour, and other Goods, Wares and Merchandises in this Count mentioned were reasonably worth, whenever he should be thereto requested; Now the said S.H. in Fact saith that the said 13 Barrells of Flour last mentioned, were well worth, £22 5s. 6d. L.M., and the other Goods, Wares and Merchandises last mentioned, were well worth the several sums set against the like Articles in the annexed schedule or account amounting in the whole to [] L.M. of all which the said F.S. there afterwards on the same day had due Notice from the said S.H. and thereby became obliged to pay him the same sum on demand and then and there promised so to do.
Quant. Mer. And for that the said S.H. at said Boston on the [] day of [] had16
[VI]
Trespass. Assault, Battery, Wounding, Imprisonment, Tarring and Feathering.
Richards vs. Doble17
Attach &c. Joseph Doble of Boston &c. Mariner, to answer unto Owen Richards of said Boston Yeoman, in a Plea of Trespass, for that { 40 } the said Joseph, on the Eighteenth day of May last [1770] at Boston aforesaid, with Force and Arms an Assault on the Body of him the said Owen made and him did then and there violently beat, wound, bruise, and evil entreat, so that his Life was thereby put in great Danger, and He the said Joseph did then and there take and imprison him the said Owen, and him in Prison for a long Time, vizt. for the space of six hours, detained against Law, and the Custom of our Realm, and he the said Joseph then and there, did also grievously abuse the said Owen; forcibly took and placed him in a Cart, and stripped him naked to his Skin, and with Force as aforesaid, did tear off, from his Body, and take from him, his Hatt, Wigg, Coat, Waistcoat, and Shirt, and also a gold Sleeve Button, two Handkerchiefs, his Pocket Book, with sundrie Papers therein of the Value of [] vizt. an original Note of Hand, for seven Pounds, Ten Shillings, and Sundrie, original Receipts for Moneys paid, and other Papers of Value, also one Piece of Gold Money, called a Johannes,18 and two Spanish milled Dollars in Silver, being all of the Value of Thirty Pounds lawfull Money, none of which Things so taken from him the said Owen, have ever been returned to him again and He the said Joseph did then and there also cover and besmear the said Owen, Head, Face, and naked Body, with Tar and cover him over with Feathers, upon said Tar, and cruelly and inhumanly set fire to said Feathers; and then and there dragged said Owen in said Cart, through diverse Streets of said Town of Boston, and from one End of said Town to the other, for the Space of Six Hours, as aforesaid, and fixed a Label to his the said Owens Breast, with Writing thereon importing that he the said Owen was a common Informer, and in that Condition exposed him the said Owen { 41 } to the Contempt and Resentment of our liege Subjects, and as a public Spectacle, thro said Town, and other Outrages and Enormities, on him the said Owen, He the said Joseph then and there committed, against our Peace, To the Damage &c. £1000.
[VII]
Trespass, Assault, Battery, Wounding, Imprisonment tarring and feathering.
Gailer vs. Trevett.19
Attach &c. Eleazar Trevett Junior and Benjamin Trevett, Merchants, Daniel Vaun Mariner, all of Newport in the County of Newport and Colony of Rhode Island and Providence Plantation, and David Bradley, Pool Spear, Taylors, and David Provence Infant and Edward Mathews Mariner all of Boston in our County of Suffolk. To answer unto George Gailer of Boston aforesaid Mariner, in a Plea of Trespass, for that the said Eleazar Trevett Jnr., Benjamin Trevet, Daniel Vaun, David Bradley, Pool Spear, David Provence, and Edward Mathews, at said Boston in the Evening of the twenty Eighth Day of October last, together with diverse other Persons to the said George Gailer unknown, with Force and Arms, an assault, on the Body of the said George Gailer did make, and then and there with Force as aforesaid did strip the said George Gailer naked, tar and feather his Skin, and carry the said George Gailer naked, tarred and feathered, as aforesaid in a Cart about said Boston for the space of Three Hours, and with Clubbs, Staves, and a hand saw did then and there strike him the said George Gailer, sundry heavy and grievous Blows, upon the said George Gailers naked Body, and greatly bruise, and wound him and hit him the said George Gailer diverse grievous Blows, with Stones: By Reason of all which the said George Gailers Life was put into great Hazard and Danger, and greatly despaired of, { 42 } and many other Enormities, and Cruelties, the said Eleazer Trevett Jnr., Benja. Trevett, Daniel Vaun, David Bradley, Pool Spear, David Provence, and Edward Mathews, with others unknown to the said George Gailer did then and there commit, on the said George Galer, against the Peace of our Lord the King and to the Damage &c. £2000.
[VIII]
Debt for Taxes, by Collector vs. an Inhabitant.
Ruggles vs. Doane.20
Summon Elisha Doane of Welfleet Esqr., to answer unto Samuel Ruggles of said Boston, Housewright, in a Plea of Debt, for that the said Elisha in the Year of our Lord Christ 1765 and 1766, was an Inhabitant of said Town of Boston and rateable to the Province, County and Town Taxes and was by the Assessors of said Town duely rated to Province, County, and Town Taxes, the several sums following, to wit for the Year 1765 the sum of Nine Pounds, Six Shillings and Three Pence, and for the Year 1766 the sum of £6 11s. od. which sums together make the sum of £15 17s. 3d. for his Proportion of Province, County, and Town Taxes in said Year, and the said Samuel was the same Year, duly chosen and sworn a Collector of Province, County and Town Taxes, in the same Town, and had the Rates aforesaid, made on the said Elisha, given him to collect; and the Time of Payment to the respective Treasurers is long since elapsed, and the said Samuel hath paid to the respective Treasurers all the sums given him to collect for those Years, and of all this the said Elisha hath had Notice from the said Samuel, whereby and by Force of an Act of this our Province, made in the fourth Year of our Reign intituled an Act to enable the Collectors of Taxes in the Town of Boston to sue for and recover the Rates and Taxes, given them to collect in certain Cases,21 the said Elisha became indebted to the said { 43 } Samuel in the said sum of £15 17s. 3d., and an action accrues to the said Samuel to recover and have the same sum, yet the said Elisha, tho often requested, hath never paid the same sum, but detains it. To the Damage &c.
Plea Nil Debet. And the said Elisha comes and defends &c. and saith, he owes nothing to the said Samuel in manner and Form as within declared and thereof puts himself on the Country.22
[IX]
Account vs. Bailiff of Goods, and Receiver of Monies.
[Green v. Green] 23
1. Mallory's Mod. Ent. 48. Tit. account.24
Summon George Green &c. to answer to Joshua Green, &c. Administrator of all and singular, the Goods and Chattells, Rights and Credits { 44 } which were of Anna Green late of said Boston, Widow deceased intestate in a Plea of Account for that the said George at said Boston, on the first day of July Anno Domini 1765, the said Anna being then living, and from the said first day of July to the Thirty first day of December Anno Domini 1768 was the Bailiff and25 Receiver of Monies of the said Anna, she being all that Time living, during which Time the said George received of the Monies of the said Anna at said Boston, one hundred Pounds, by the Hands of Samuel Cotton, Thirty Pounds by the Hands of Thaddeus Wyman &c. [] in the whole { 45 } amounting to Two Thousand, Three hundred and seventy Pounds Thirteen shillings and Ten Pence of lawful Money to render a reasonable Account thereof to the said Anna whenever he should be thereto requested; nevertheless the said George, tho often requested, never rendered such reasonable Account to the said Anna in her Lifetime, nor to the said Joshua Administrator as aforesaid since his Intestates decease, tho requested, but still neglects to do it: And for that the said George at said Boston on the first day of July Anno Domini 1765 and from the said first day of July to the Thirty first day of December Anno Domini 1768, the said Anna being all that Time living, was the said Anna's Bailiff, and during all that Time had the Care and Management of all the Goods, Chattells, Wares, and Merchandise and Cash contained in the Schedule hereto annexed, amounting in the whole to the further sum of 2677 Pounds 11s. id. of lawfull Money more to merchandise and make Profit thereof for and to render a reasonable Account thereof to the said Anna when he should be thereto requested; yet the said George (although requested) never rendered such reasonable Account to the said Anna in her Lifetime nor to the said Joshua Administrator as aforesaid, though requested since his Intestate's decease, but still neglects and refuses to do it. To the Damage.
[X]
Case for a malicious Prosecution.
Needham vs. Kingsbury.26
2. Ins. Cler. 53. 4. 5. 6. 7.27 1 Mod. Ent. 160.28
Attach Seth Kingsbury of Walpole, &c. to answer Ezekiel Needham of Wrentham, &c. in a Plea of Trespass upon the Case, for that the { 46 } said Ezekiel, now is a good, honest, true and faithfull subject of Us, and hath all his Lifetime hitherto, carried and behaved himself among all his Neighbours, and other our faithfull subjects, and those of our Predecessors, so as to be esteemed by them of a good Name, Fame, Credit, honest and faithfull Conversation,29 and good Behaviour; and all his Lifetime hitherto hath lived, remained, and continued, without { 47 } any Blott, or having committed any Falshood, Perjury, or other Crime or Misdemeanor whatever, and hath30
[XI]
Case. For inticing and seducing an Apprentice from his Master whereby he lost his Service.
Paul Revere vs. James Lowrie31
Attach the Goods or Estate of James Lowrie now residing in Boston32 in our same County Mariner, to answer Paul Revere of said Boston, Gentleman, in a Plea of Trespass on the Case, for that one { 48 } David Mosely of said Boston an Infant was by Indentures made by and between himself, by Consent of his Uncle on the one part, and the Plaintiff on the other part, on the 17th of March AD 1770, lawfully bound an Apprentice to the Plaintiff to serve him faithfully for and during the Term of four Years from the same Date, and the Plaintiff in said Indenture did covenant to teach and instruct the said Apprentice or cause him to be instructed in his the said Paul Revere's Trade [or?] Art of Goldsmith and Engraver and also to find and provide for the said Apprentice sufficient Meat, Drink, Washing, Lodging and Cloathing during the said Term; which said Indenture duly executed by &c. on the part of the said Apprentice in Court shall be produced; of all which the said James Lowrie was well knowing, yet he maliciously contriving and intending to deprive the Plaintiff of the benefits of said Apprentice, and to render it impossible for the Plaintiff wholly to perform his Covenant aforesaid did at Boston aforesaid on 27th of Septr. AD 1771 (the said Lowrie being then Master of an outward bound Vessel) seduce the said David Mosely to leave the Plaintiff's service, and did carry him away and has ever since detained and concealed the said David so that the Plaintiff cannot find, and take him, and the said James Lowrie hath oftentimes since (tho requested) refused to deliver said Apprentice to the Plaintiff and still unjustly detains and conceals the said Apprentice whereby the Plaintiff hath lost the benefit of his said Apprentice and is unable to perform his Covenant aforesaid and hath suffered much Pain and Anxiety of Mind, all which is to the Damage of the said Paul Revere, as he saith, the sum of £[150?].
[XII]
Debt.
Ruddock vs. Aylwin33
2 Mod. Ent. 1. Covenant on a Charter Party.34 2 Mod. Ent. 211. Debt on Ditto.35
{ 49 }
Attach Thos. Aylwin &c. and John Scollay, &c. to answer Abiel Ruddock &c. in a Plea of Debt, for that the said Thomas and John, by their Indenture of Charter Party of affreightment made at Boston aforesaid, on the fourth Day of May Anno Domini 1770, executed between the Plaintiff, by the Name of Abiel Ruddock, &c. owner of the Schooner, Two Friends on the one Part and the Defendants by the Names of the several Persons whose Names are subscribed and their Seals fixed to the said Charter Party of the other Part, which Part sealed with the seals of the said Thomas and John, and to which their Names are subscribed, the said Abiel brings into Court,36 the date being the same Day and Year, he the said Abiel granted and demised { 50 } the said schooner, to freightment to the said Thomas and John, by the Names of them subscribed thereto, and that they in like manner hired the same from the said Master for a Trading Voyage, to be made by the Grace of God, to Chalure Bay, Gaspee &c. and from thence to be delivered at Boston,37 as follows—vizt. the said Abiel for himself, his Executors and Administrators covenanted, promised and agreed to and with the said Merchants, subscribing said Charter Party, that the said schooner is tight and stanch and strong.38 And is and shall be during said Voyage with all that is necessary that it shall be lawful for the Defendants or their Correspondents to load and unload and reload the schooner with such Goods Wares and Merchandizes as they shall think proper during said Voyage, and they the said Merchants subscribing the said Charter party for themselves their Executors and Administrators aforesaid, covenanted and agreed with the said Abiel his Executors, Administrators, and Assigns: will not only load unload and reload as aforesaid but that they will in case she is seized in a counterband Trade and condemned pay to the said Abiel his Executors or Administrators the full and just sum of £340, that they will also pay the Port charges and the charges for victualling and manning this said schooner during said Voyage: and that they will well and truly pay or cause to be paid unto the said Abiel his Executors, Administrators, or assigns the sum of £15 per month and so in proportion for a greater or less time and the said Ab[i]el firmly by said Charter party obliged and bound himself his Executors, Administrators, and Assigns, and his said Vessel together with all the furniture and freights to the said Men: subscribing said Charter Party, their Administrators, Executors, and Assigns in the penal Sum { 51 } of one hundred pounds and to the true performance of everything in said Charter Party, on the part of the said Merchants subscribing said Charter Party to be performed, they the said Merchants by their Charter Party firmly obliged themselves their Executors, Administrators, and Assigns and the Goods as39 aforesaid intended to be loaded to the said Abel his Executors, Administrators and assigns in the like penal sum of £100 as by the said Charter Party doth and may more fully appear. Now the said Abiel in fact says that he the said Abiel on his part hath well and truly performed his part of said Charter Party that the said Schooner was tight staunch and strong, and was so during said Voyage and before the voyage was ended as aforesaid four months and more were elapsed, the said Abiel further avers that the said Thomas and John have not nor ether of them paid or caused to be paid to the said Abiel the £15 aforesaid agreed to be paid whereby an action has accrued to the said Abiel to require and have from the said Thomas and John the said £100 nevertheless the said Thomas and John tho requested have never paid the same but neglect &c.
[XIII]
Ejectment on a Covenant.
Wendell vs. Williams40
Summon Nathaniel Henshaw and Jona. Williams &c., to answer unto Oliver Wendell of Boston Merchant, in a Plea, wherein he demands vs. the said Nathaniel and Jonathan, one undivided third { 52 } Part of all that Farm or Tract of Land, commonly called and known by the Name of Hog Island, both the greater and the lesser, lying within the Bounds and Limitts of the Town of Boston aforesaid containing by Estimation, 530 Acres and bounded on all Sides by the Salt Water,41 together with one undivided Third Part of all the Buildings thereon standing, and of all the Appurtenances thereto belonging; whereupon the said Oliver complains and says that on the Nineteenth Day of September A. 1769 one Samuel Sewall Esqr. was seized and possessed of the whole Farm or Tract of Land aforesaid, with the Appurtenances, in his Demesne as of Fee, and being so seized and possessed thereof, the said Samuel by a certain Indenture of Bargain and Sale of that Date, made and duely executed by and between the said Samuel, on the one Part, and the said Oliver and one Jonathan Jackson on the other Part, then, at Boston aforesaid, granted, sold and conveyed the same Farm or Tract of Land with the Appurtenances to the said Oliver Wendell and Jonathan Jackson, to hold the one Third Part thereof to him the said Oliver and his Heirs forever, and the other two Third Parts thereof to him the said Jonathan Jackson and his Heirs forever, one Part of which said Indenture, under the Hand and seal of the said Samuel, duely executed, acknowledged and recorded, is in Court to be produced;42 by Force whereof the said Oliver Wendell and Jonathan Jackson, then and there entered into and became seized, as Tenants in Common, of the said Farm or Tract of Land with the appurtenances, to wit, the said Oliver of one { 53 } undivided Third Part thereof, in Fee Simple, and the said Jonathan Jackson, of the other undivided two Third Parts thereof in Fee Simple, and the said Oliver ought still to be in quiet Possession of his said undivided Third Part thereof; nevertheless, the said Nathl. Henshaw and Jona. Williams have since unjustly and without Judgment of Law entered into the whole of the Premisses, and disseised the Plaintiff of his said undivided Third Part thereof, and still unjustly deforce him thereof, and altogether hold him out of the same. To the Damage &c. £1000.
[XIV]
Plea of Tender. Ind[ebitatus] Ass[umpsit] and Quantum Mer[uit]. 2 Counts.
Jno. Coburn vs. Rob. White.43
2 Mall. Mod. Ent. Vid. of pleading a Tender under Tit. Pleadings in the Table.44
3 Inst. Cler. 134. 136.45 Bac. Abr. Tit. Tender.46 2 Mod. Ent. 310.47 5 Bac. Abr. 1.48
{ 54 }
Plea
Suffolk Ss.49 Common Pleas April 1771.
Coburn plt. vs.White Deft. } Defendant's plea of Tender &c.
And the said Robert White comes and defends &c. and as to seven pounds six shillings and Eight Pence, parcell of said sum of Nine Pounds, 14s. 8d. in the first Count in said Declaration mentioned, saith the said John ought not to recover against him the said Robert any further Damages than the said £7 6s. 8d. because he says that the said Robert from the Time of making his said Promise for Payment of said Sum of £7 6s. 8d. (which promise he made for Cash or Money lent him by the said John and for Eight Weeks board, as severally charged in the Account annexed to the Writ) was always ready and now is ready to pay the same to the said John; and he the said Robert before the day of suing forth the said Johns said Writ, vizt. on the Fifth day of January last, at said Boston, offered to pay and tendered the said sum of £7 6s. 8d., then and there to the said John, and the said John then and there refused to accept the same sum; and the said Robert hath ever since been ready to pay the same sum to the said John, and now brings the same into Court ready to pay the same to the said John if he will accept it: And all this the said Robert is ready to verify:50 Wherefore the said Robert prays Judgment, if the said John, shall have and recover of him on this suit any further Damages than the said sum of £7 6s. 8d. as aforesaid; and for his Costs.
[signed] S[amuel] Q[uincy] for Defendant
And as to the sum of Two Pounds Eight Shillings, Residue of the said £9 14s. 8d. in said first Count in said Declaration mentioned the said Robert says he never promised the said John in manner and Form as he declares against him and thereof puts &c.
[signed] S.Q.
And the said John likewise.
And the said Robert White comes and defends &c. and as to the { 55 } said £7 4s. in said second Count in said Declaration mentioned saith the said John ought not to have and recover any further Damages against him than the said £7 4s. Because he says, that from the Time of making his said Promise for Payment of said sum of seven Pounds, four Shillings (which said Promise he made for Eight Weeks Board in the said John's House) he was always ready and still is ready to pay the same to the said John; and he the said Robert before the Purchase of the said Johns Writ, viz. on the Fifth day of January last, at said Boston, offered to pay, and then and there tendered to the said John said sum of £7 4s., and the said John then and there utterly refused to accept the same; and the said Robert hath ever since been ready to pay the same Sum to the said John, and now brings the same into Court ready to be paid to the said John, if he will receive it; and all this the said Robert is ready to verify; wherefore, the said Robert prays Judgment if the said John shall have and recover against him on this suit any further Damages than the said sum of Seven Pounds four Shillings as aforesaid, and for his Costs.
[signed] S.Q. pro Defendente
And as to the sum of £2 8s. in said second Count in said Declaration mentioned, the said Robert White saith he never promised the said John in manner and form as he declared against him and thereof puts &c.51
[signed] S.Q.
And the said John likewise.52
[XV]
Writ of Intrusion
Brayton vs. Robinson53
Attach Eliza. Robinson &c. to answer unto Israel Brayton of Swansey &c., in a Plea of Ejectment, wherein he demands against the { 56 } said Eliza, a Messuage54 and Twelve Acres of Land in Swansey bounded &c. [] and is bounded all round by Land now in the Possession of the said Israel, and its appurtenances, which demanded Premisses were formerly in the Possession of one John Brayton of said Swansey, and which the said Israel Claims as his Right and Inheritance and into which, the said Elizabeth Robinson had no { 57 } Entry, but by Intrusion which she made upon the same after the Death of Ruth Brayton who was the Wife of the said John Brayton and which Messuage and Lands were assigned to the said Ruth as her Dower of certain Lands which formerly belonged to the said John Brayton by Preserved Brayton to whom the Reversion of the demanded Premisses belonged, and who devised them to the Demandant his Son and his Heirs,55 Whereupon the said Israel saith, that the said Preserved Brayton in a Time of Peace in the Reign of our late Royal Grandfather56 was seized of the demanded Premisses in his Demesne as of Fee, taking the Profits thereof to the Yearly Value of Ten Pounds by the Year and being so seized afterwards vizt. on the Eighth Day of December Anno Domini 1753 by his Deed of that Date in Court to be produced, assigned and sett off, to the said Ruth Brayton the demanded Premisses as her Dower in a certain Messuage of about 100 Acres of Land in said Swansey of which the demanded Premisses, is part, and of which same Messuage and Land before that time, and since the Intermarriage of the said John and Ruth, the said John Brayton who was deceased before the date of the same deed, was seized in his Demesne as of Fee, and delivered Seisin thereof to the said Ruth and thereupon the said Ruth, then and there, vizt. at said Swansey in the said Eighth Day of December, A.D. 1753, accepted of said demanded and assigned Premisses in full satisfaction of her said Right of Dower and entered into the same, and held them as Tenant in Dower of her said Husband, John Brayton, on the said assignment of the said Preserved Brayton as aforesaid and was seized thereof in her Demesne as of Freehold57 in a Time of Peace in the Reign of our late Royal Grandfather, taking the Profits thereof, to the amount of Forty shilling by the Year, and afterwards vizt. on the 7. day of Decr. A.D. 1759. the said Preserved Brayton to whom the Reversion in Fee of the demanded Premisses belonged, and of which he was then seized at Swansey aforesaid made his last Will and Testament in Writing and therein devised his said Reversion to the demanded Premisses, to the Demandant and his Heirs, and afterwards, vizt. on the 21. day of May A.D. 1761 the said Preserved at said Swansey died seized of the said Reversion to the demanded Premisses, by Force of which Devise the said Israel became seized of said Reversion in Fee simple, and afterwards vizt. on the 26. day of July A.D. { 58 } 1770 the said Ruth Brayton at said Swansey died seized of said Estate in Dower, and into which demanded Premisses the said Elizabeth had no Entry, but by an Intrusion therein made by her as aforesaid, after the death of the said Ruth Brayton who held as aforesaid, and after the Death of the said Ruth Brayton, the said Israel Brayton ought to be in quiet and peaceable Possession and Seisin of the demanded Premisses; yet the said Eliza. having intruded therein unjustly holds the Demandant out of the Possession of the demanded Premisses, To the Damage &c.
Quaere of this Writ?58
[XVI]
Trespass. Assault, arrest and Imprisonment.
Palmes vs. Greenleaf59
Summon Stephen Greenleaf &c. to answer to Richard Palmes of Boston &c. in a Plea of Trespass, for that the said Stephen at said Boston in the 1st. day of August last with Force and Arms, and without any lawfull Cause did assault, arrest, and imprison the said Richard, and without any lawfull Cause or Warrant did there hold and keep the said Richard in Prison and in his Custody, till to obtain his the said Richards Discharge he was by the said Stephen obliged to enter into a certain Recognizance in the sum of a hundred Pounds to appear at the then next Superior Court of Judicature, Court of Assize and General Goal Delivery to be holden at Boston in and for said County of Suffolk, and other Enormities the said Stephen then and there did to the said Richard contrary to Law and against our Peace and to the Damages &c.
{ 59 }
[XVII]
Case vs. Master for not transporting Goods according to Bill of Lading.
McLean vs. McEwen.60
Attach James McEwen &c. to answer unto Donald McClean of our City of N. York &c., Physician, in a Plea of Trespass on the Case, for that the said James on the 15th. day of Feb. A.D. 1766 at N. York aforesaid had received in and upon the Snow61 called the Peggy, whereof the said James was then Master, bound on a Voyage from New York aforesaid to Leith in that Part of our Kingdom of Great Britain called Scotland, in good order and well conditioned, diverse Goods of him the said Donald, vizt. one Tierce containing 255 Pounds Weight of Snake Root of the Value of £43 Lawfull Money &c.—to be transported by him the said James in the said Snow from New York aforesaid to Leith aforesaid and there to be delivered to Hector McClean, or his assigns for a certain Hire, by the said Hector to the said James to be paid, thereupon, vizt. one Pound Twelve Shillings Sterling, in Consideration whereof the said James afterwards vizt. on the same 15. day of Feb. aforesaid at said Boston, promised the said Donald that he the said James would carry and transport for the said Donald the said Goods from N. York aforesaid to Leith aforesaid and the same Goods to the said Hector McClean or his assigns at Leith aforesaid would safely and securely deliver (the Dangers of the Seas only excepted): And the said Donald avers that the said { 60 } James after making the Promise aforesaid vizt. on the first day of April Anno Domini 1766 safely arrived in the Snow aforesaid at Grenoch in that Part of our said Kingdom of Great Britain call'd Scotland, from N. York aforesaid with the said Tierce and Barrell safe on board the said snow: And altho the said Hector McClean from the Time of making the Promise aforesaid by the said James, was always ready and still is ready to pay the said James the said Hire agreed to be paid him as aforesaid, for transporting the said Goods as aforesaid: yet the said James did not carry the Goods aforesaid to Leith aforesaid, nor hath he ever delivered the same or any Part of them to the said Hector McClean, or to his assigns according to his Promise aforesaid or in any manner performed his said Promise, tho often thereto requested, but hitherto hath wholly refused and still doth refuse to deliver the said Goods as aforesaid or to perform his said Promise.
To the Damage &c.
[XVIII]
Debt. For a Legacy.
Loring vs. Loring.62
Summon Mary Loring &c. as she is Executrix of the last Will and Testament of [Policarpus Loring] to answer Thomas Loring of &c. as he is Administrator of all and singular the Goods and Chattells, { 61 } Rights and Credits which were of Lydia Loring late of said Plimton Widow deceased intestate, in a plea of Debt, for that one Caleb Loring, of said Plimton, on the 22d day of January A.D. 1731, at said Plimton, made and duely executed his last Will and Testament in Writing, which Will was afterwards duely proved and approved, which Will and the Probate thereof in Court shall be produced, and in and by said last Will, the said Caleb among other things gave to the said Lydia, who was then living and the said Caleb's wife £40 a year, yearly to be paid her, by his two Sons Ignatius and Policarpus (the said Mary's aforesaid Testator) so long as the Furnace in Plimton should be improved and She the said Lydia remain his the said Caleb's Widow, in Consideration that he did in that his Will aforesaid, give his two Sons aforesaid his eighth part of said Furnace. And the said Caleb in and by his said Will gave and bequeathed unto his two Sons aforesaid (who were then in full Life) their Heirs and Assigns his eighth part of the Furnace in Plimton aforesaid, with the priviledges thereto belonging; and thereby ordered them to pay to his aforesaid Wife, the sum of £40 yearly and every year, so long as the Furnace should be improved, and his said Wife should remain his Widow: And afterwards at said Plimton, viz. on the 22d day of December A.D. 1732 the said Caleb died, living [leaving?] his said Wife and two Sons; and afterwards there the said Ignatius and Policarpus by virtue of the Devise aforesaid in said last Will to them made, entered into and became possessed of the said eighth part of said furnace, as Jointenants in Fee simple, and thereupon became jointly chargeable to pay the said Annuity or Legacy of £40 a year to the said Lydia as aforesaid. And the said Ignatius and Policarpus continued during their joint lives jointly to improve the said Eighth part of said Furnace: And there afterwards on the 9th day of April A.D. 1742 the said Ignatius died, living his Mother aforesaid the said Lydia and his aforesaid Brother Policarpus, whereupon both the Right to the Eighth part of the Furnace aforesaid and the obligation to pay the Legacy { 62 } or Annuity aforesaid, survived to the said Policarpus, who became bound to pay the same to the said Lydia according to the Will aforesaid.
Now the Plaintiff in fact says that the furnace aforesaid in Plimton has been improved from the day of the date of said Caleb's aforesaid Will, untill this day, and the said Lydia lived and remained unmarried, the Widow of the said Caleb, from his death until the 28th day of March A.D. 1771. Nevertheless the said Ignatius and Policarpus never paid the Legacy aforesaid, or any part thereof, to the said Lydia, during the Life time of the said Ignatius and Policarpus, nor did the said Policarpus in his Life time ever pay the said Legacy or any part thereof to the said Lydia, during his Lifetime, nor has the said Mary Loring Executrix as aforesaid since her Testator's decease ever paid the said Legacy or any part thereof, to the said Lydia in her Life time, or to the said Thomas Loring Administrator as aforesaid since his Intestate's decease, but detains it.
To the damage of the said Thomas in his said Capacity as he saith £2000.
[signed] Adams
[XIX]
[ Case. Assumpsit against an executor for a legacy.]
[Gore et ux. v. Gould] 63
Summon J[oseph] G[ould] of &c. Sole Executor &c. to answer J. Gore. and A. his Wife, in a Plea of Trespass on the Case, for that the said J[ohn] G[ould] Testator, at &c. on &c.—made and duely executed his last Will and Testament in Writing and therein among other Things, bequeathed to his daughter the said Abigail the Sum of £13 6s. 8d. lawfull Money, to be paid her in three Years after his decease, vizt. £4 8s. 10d. thereof to be allowed and paid her by the said Testators Son John, £4 8s. 11d. thereof by his son Samuel, and £4 8s. 1 id. thereof by his said son Joseph, whom he therein appointed sole Executor, of his said Will: And after making and executing his said Will the said John Gould the father at said &c. on &c.—died seized and possessed of a real and personal Estate sufficient to pay all his funeral Expenses and Debts and to pay and satisfy all his Bequests and Legacies in his said Will and afterwards to wit on &c.—at &c.— { 62 } { 62 } { 63 } the said last Will, was by the said J[oseph] Executor as aforesaid, presented to the then Judge of the Probate of Wills &c. for said County, to whom the Probate thereof appertained, and the same last Will was by the same Judge, then and there duely proved and approved an authenticated Copy of which Will and the Probate thereof in Court shall be produced and the said Joseph then and there accepted the said Trust, and undertook the Administration, of the said Testators Estate, according to the Tenor and Intent of said Will, and received all the said Estate into his Hands for that Purpose and thereby became obliged to pay the Legacy aforesaid to the Plaintiff according to the Will and Intent of said Testator and in Consideration thereof, promised at &c.—on &c., but hath not paid it tho [requested?] often and at &c.—on &c.
To the Damage &c.
[XX]
Debt. For not exhibiting a true Inventory of the Testator's Effects.
Woodward vs. Fisher64
Attach &c. D[aniel] Fisher [i.e. as executor of Jeremiah Fisher] to answer Richard Woodward and D[eborah] his wife in a plea of Debt, for that the said J. on the 5th Day of Apl. made his last Will and Testament, and therein appointed his Son in Law N. Ames and his Son D. Fisher joint Executors of that his last Will &c. and thereby { 64 } gave and bequeathed to the said D[eborah] among other things an uncertain residuary Legacy and on [] died, leaving a considerable Estate there and elsewhere, both real and personal, and among many other things leaving a Bond under the Hand and Seal of S. Laucher,65 &c. bearing Date, wherein and whereby the said S. Laucher bound himself to the said J.F. who was then living in the Sum of £80, conditiond per the payment to the said J. (his Executors &c.) of the Sum of £40 13 4 of L[awful] m[one]y with law[ful] Interest therefor on &c.; which Bond was the property of the said J.F. at his Death and thin [i.e. then] due and wholly unpaid. And the said Daniel undertook to execute the said Will (the said N. the other Executor in said Will having died before the Testator at said Dedham) and on &c. presented the said Will to the Honble. T. Hutchinson Esqr. Judge and Probate of Wills for the County66 &c., who on [] comitted the Administration of the said J's Estate, accordingly to his Son in Law N. Ames, and his Son D. Fisher Executors in the same Will named, well and faithfully to execute the said Will and to administer the Estate of said Deceased according thereunto, and to make a true and perfect Inventory of all and singular the Goods, Chattles &c. of said Deceased and to exhibit the same into the Registry of the Court of Probate for the County &c. at or before the Day—And also to rendir a plain and true Account of said Administration upon Oath, and the foremention'd Bond then came to the said D[aniel]'s Hands and Knowledge—Yet the said D. did not give Bond pursuant to the Law in that Case provided to pay the Debts and Legacies of the said J. and tho the Judge of Probate &c. did not enlarge the time for the said D's rendering into his Register's Office a full and true Inventory of the said J's whole Estate upon Oath beyound the said Day of &c. and notwithstanding the Honble. T.H. Esqr. on Judge on —— caused the said D to be cited to appear at the Probate Office &c. to exhibit more particularly a full and true Inventory of the Estate of the said J. yet the said D. has not exhibited into the said Office an Inventory of the said Bond, or any Sum of Money due to said Estate for or upon it altho' the said D. before &c. had { 65 } demanded and received the principal and Interest due upon said Bond of the said S. Laucher, whereby and by Force of the Acts of this Province in that case provided67 the said D has forfeited to the Plaintiff the sum of £3200 for thirty two Months Neglect therein from &c. to —— which he has not paid but unjustly detains to the damage ——.
[signed] Adams
[XXI]
Case. For a false Return.
Pierpont vs. Phipps.68
Summon David Phips of Cambridge in our County of Middlesex Esqr. and Sheriff of said County of Middlesex to answer Robert Pierpont of Boston in said County of Suffolk Gentleman in a plea of Tres• { 66 } pass upon the Case, for that the said Robert by the Consideration of our Justices of our Superior Court of Judicature Court of Assize and general Goal Delivery holden at Boston within our County of Suffolk, and for our County of Suffolk, on the lastt Tuesday of August in the eleventh Year of our Reign, recoverd Judgment against William Barber in our County of Middlesex Merchant for the sum of £227 16s. 2d. L[awful] M[one]y of <Massachusetts> Great Britain, Damage and for the sum of three Pounds, Seven Shillings and two Pence Lawfull Money of the Province of Massachusetts Bay, Cost of Suit, as to us appears of Record, and thereupon afterwards vizt. on the eleventh Day of September in the eleventh Year of our Reign, took out of the Clerks office of our said Court our Writ of Execution in Form as by the Law of this Province is prescribed69 directed to the Sheriff of our said County of Middlesex, his under Sheriff or Deputy, returnable to our said Superior Court of Judicature Court of Assize and General Goal delivery holden at Boston within our said County of Suffolk, upon the third Tuesday of February there next and at Boston aforesaid, on the same eleventh day of September, in the said eleventh Year of our Reign, delivered the same to one Joseph Butler, then being and untill the return thereof and ever since continuing to be one of the said David's Deputy Sheriffs, for whose default and misconduct in this said Office the said David is answerable70 which was by the said Joseph accordingly returned to the same Court in the following words and Figures vizt. “February 18 1772 Received Fifty two pounds Fourteen shillings on this Execution and order the officer to return this Execution so far satisfyed Robert Pierpont.
“Middlesex Feby. 18th 1772 I return this Execution but in part satisfyed as above by order of the Creditor Jos[ep]h Butler, Deputy Sheriff,” as to us appears of Record.
{ 67 }
Whereupon the said Robert Pierpont, afterwards vizt. on the twenty Third day of March in the twelfth Year of our Reign took out of the Clerks Office of the same Court our Alias Writ of Execution for one Hundred eighty eight pounds five shillings and ten pence Lawfull Money of Great Britain, and said sum of three Pounds seven shillings and two pence Lawfull Money of the Province aforesaid Costs of suit in form as by the Law of this Province is in such Cases prescribed71 directed to the Sheriff of our said County of Middlesex, his under-sherriff or Deputy returnable to our superior Court of Judicature, and general Goal Delivery holden at Boston within our said County of Suffolk upon the last Tuesday of August then next and the said Robert afterwards at said Boston, on the same twenty third day of March in the twelvth Year of our Reign delivered our same alias Writ of Execution to the said Joseph Butler being then and ever since one of the said Davids Deputy Sheriffs for said County of Middlesex to be by him executed served and returned to our same Court according to our Command therein given: And the said Joseph might and could have executed served and returned the same accordingly, Yet the said Joseph Butler in no wise regarding his said office but contriving and fraudulently intending, him the said Robert in this behalf to injure, and deceive and him to hinder and wholly deprive of the Obtaining his Debt and Damages aforesaid, afterwards viz. on the twenty fifth day of August Anno Domini 1772 falsely and fraudulently made return of the same Execution to our same Court in the Words and figures following vizt. “Middlesex Ss. April [ . . . ] Received £100 L[awful] M[one]y in part of the within Execution equal to seventy Five Pounds Sterling.” Robert Pierpont. [“]Middlesex Ss. August 25, 1772 Received one Hundred Pounds of Lawfull Money in Part Satisfaction of this Execution and paid the same over to the Creditor and took his Receipt as above therefor, the Creditor declining to levy this Execution on the real Estate of the Debtor72 and having directed me not to take the Debtor's Body and I not being able to find any Goods or Chattels of the Debtor for the further Satisfaction of this Execution, do return it satisfied in Part as above mentioned. Joseph Butler Deputy Sherriff[”]
{ 68 }
And the said Robert avers that the said last mentioned Return is false and fraudulent, and that in Truth, the said Robert the Creditor aforesaid never did direct him the said Joseph Butler not to take the said William Barber the aforesaid Debtor's Body and the said Robert also further avers that after the delivery of the said last mentioned Execution to the said Joseph Butler and before the Return day thereof the said Joseph was able to find and well and easily might and could have found Goods and Chattels of the said Barbers the aforesaid Debtor within his the said Butlers Precinct in the further and full Satisfaction of that Execution by which false and fraudulent return the same Robert is not only deprived of his Remedy for the obtaining of the Damages aforesaid and Costs aforesaid against the said Barber, who always after the return last aforesaid in a place unknown to the said Robert hath been hiding and skulking and hath wholly concealed Person Goods and estate so that they cannot be come at but also the same Robert his Damages yet unpaid being £113 55. 10d. of L[awful] M[one]y73 of the Province aforesaid and the further sum of Three Shillings and nine Pence like Money of said Province for the two Executions aforesaid so as aforesaid recoverd both wholly Lost. To the Damage of the said Robert as he saith two Hundred Pounds.
[XXII]
[ Case for diminution of water in a stream.]
Clark vs. McCarney.74
Attach Michael McCarney, &c. to answer Richard Clark, &c. in a Plea of Trespass on the Case, for that one James Boies of said Milton { 69 } Gentleman on the Twenty ninth day of June A.D. 1765, was seized in Fee, and possess'd of a certain Paper Mill in said Milton,75 with its appurtenances, erected and standing upon or near to Neponsit River, and also of the Right and Priviledge of, in, and unto the whole of the Stream of said River, and of the Head or Pond of Water therein, upon which Pond, or near to the same, the said Paper Mill stands, and from which Pond, or Head of Water the same Paper Mill was, and is supplied with Water to carry and work the same: and being then so seized and possessed of the said Paper Mill and its appurtenances, and of the said stream, Pond, and Head of Water, He the said James Boies, on the same 29. June A.D. 1765. at said Milton, by his Deed of that Date under his Hand and Seal, duely executed, acknowledged and recorded, and in Court to be produced, for a valuable Consideration in said Deed mentioned, among other Things, granted and conveyed to the said Richard Clark, and to his Heirs and Assigns forever in Fee simple, the one Moiety or half Part in Common and undivided of the said Paper Mill, and the Appurtenances thereto belonging, together with the one Moiety or half Part of all the said James's Right and Interest in the Stream of Water aforesaid, the said Paper Mill to have the commanding Part of said Stream, from the first of May to the first day { 70 } of October following Yearly,76 and the equal half of said stream the remaining Part of the Year forever. To Hold the said granted Premisses to him the said Richard, his Heirs and Assigns forever. By virtue of which said Grant, the said Richard then entered into, and became possessed, of the said granted Premisses, and hath ever since held the same. That since the making the Grant aforesaid to the said Richard, another Paper Mill hath been erected upon the same Stream and is supplied with Water from the same Pond or Head of Water aforesaid: That on the Thirtyeth Day of July last, at said Milton, the Water in said Neponsit River was so low, that it was not sufficient to supply both said Mills, and keep them both going in a proper Manner, at the same Time: Whereupon the said Richard, who was then and there improving his said Mill in making Paper, finding that the Water failed and that there was not sufficient to keep his said Mill going and at Work in a proper Manner, unless the other said Mill last built as aforesaid, which was then going, and the Water drawn off to supply it, was stopped, then and there went to the said Michael, who was then actually in the occupation and Improvement of the said other Mill, and keeping the same going, and drawing off the said Water, to supply the said other Mill, and acquainted him the said Michael with the Premisses, and that there was not sufficient Water to supply both the said Mills at that Time, and that his the said Richards Mill must stop, for Want of sufficient Water to keep it going unless he the said Michael would shutt his Water Gate and stop his Mill in order to give him the said Richard the whole Use and Command of the said Stream for that Time according to the Grant made to him as aforesaid: and he the said Richard then and there requested the said Michael to shut his the said Michaels Water Gate and to stop his said Mill accordingly, for that Time, and for the Purpose aforesaid: that the said Michael then and there absolutely refused to shut his said Water Gate and to stop his said Mill, tho thereto requested as aforesaid; but continued his said Water Gate open and to draw off the Water of said Stream from said Pond, and Head of Water therein and to keep his said Mill going: By means whereof the said Richard had not sufficient Water left to him to keep his said Mill going, and at Work in a proper manner, but was greatly hindered and retarded in the Use of his said Mill and in his Business, and his said Mill was Stopped for want of sufficient Water, { 71 } and he could not proceed in his Business of making Paper for the space of 30 days. To the Damage &c. £150.
Plea in Abatement77
Suffolk Ss. Court of Common Pleas Octr. A.D. 1772.
Richard Clark Plaintiff
vs.
Michael McCarney
And the said McCarney, by Josiah Quincy Jnr. his attorney comes and defends &c. When78 &c and prays oyer of the said Deed of the { 72 } said James Boyes, to the said Richard Clarke, mentioned in the Plaintiff's said Writ and Declaration, and hath it, and the same is read to him the said McCarney in the Words and Tenor thereof, which appear by the said Deed filed in the Case; which said Deed being read and heard, the said McCarney saith that the Plaintiff's said Writ and Declaration are bad and ought to abate.
1. Because by the Plaintiff's own shewing in his said Writ and Declaration, that one James Boies is tenant in Common with the Plaintiff in the said Paper Mill, and in the said Right Priviledge and Interest, of and in the said Stream of Water, mentioned in the Plaintiff's said Writ and Declaration, which said James ought by Law to have joined in the said Action, brought against the said McCarney.79
2ly. Because by the said Deed of the said Boies to the said Clark in the Case, it appears, that the said Boies and Clark are Jointenants of the said Paper-Mill and the same Right, Priviledge and Interest in the said Stream of Water, which said Boies ought by Law, to have joined in the said Action, brought against the said McCarney.
3. Because by the Plaintiff's own shewing in his said Writ and Declaration he made a Demand upon the said McCarney for the whole Use and Command of the said Stream for that Time mentioned in the Plaintiff's Writ and Declaration: Whereas the said pretended Grant therein mentioned was only of the Commanding Part thereof; and for this supposed Denial, of this unwarrantable Demand of the said Clark, he hath brought his said Action.
4. Because the said Clark in his said Writ and Declaration, hath not anywhere suggested, or properly set forth, that the said McCarney had any Right or Authority to shut down said Water Gate, or stop said last erected Mill, whereof one Hugh McLean, and the said James Boies were at the Time of the supposed Denial and ever since Tenants in Common in Fee simple, and thereof then and ever since in actual and full Seisin and Possession.
5. Because the said McCarney would have been a Trespasser and Wrong Doer had he complied with and obeyed said Demand of the said Clark, for a Non Compliance of which, he hath brought his said Action. All which the said McCarney is ready to verify: wherefore he prays Judgment of the Writ and Declaration aforesaid; that the same may abate and for his Costs.
{ 73 }
[XXIII]
Debt upon a Bond.
Metcalf vs. Hall80
For Pleadings in a similar Case vid. 3 Ld. Ray. 275 &c.
Defendant pleads as follows.
Suffolk Ss. Common Pleas. July A.D. 1772
Hannah Metcalf Plaintiff vs. Jeremiah Hall Defendant.
{ 74 }
And the said Hall comes and defends &c. and craves oyer of the said obligation and it is read to him &c. He likewise craves oyer of the Condition of the same obligation, and it is read to him in these Words, Ss.
“The condition of this obligation is such, that if the above bounden Jeremiah Hall, his Heirs, Executors, Administrators or Either of them, shall and do, for his, or their Part, in all manner and every Thing, or Things, well and truly observe, perform, fulfill, accomplish, all and singular the Covenants and Agreements whatsoever, which on his or their Part are or ought to be observed, as menshened in a sarting Articals and Agreements indented and baring Evin Date with theis Presents made between Jeremiah Hall, on the one Part and Hannah Metcalf and Debory Met[calf] on the other Parte, whose Names are abovementioned, and that in and by all Things, According to the said Articals, with ought Covent,81 then this present obligation to be void and of none Effect, or else to remain in full Force and vartor [virtue] during there Lives.”
Which being read and heard, the said Jeremiah Hall saith that the said Hannah and Deborah Metcalf, their Action aforesaid thereof, against him ought not to have or maintain, because he saith, that he the said Jeremiah Hall, for his Part, in all Manner and in every Thing and Things well and truly hath observed, performed, fullfilled, accomplished, all and singular, the Covenants and Agreements, whatsoever which on his Part, are, or ought to be observed, as menshened in a Sarting Articals and Agreements indented and baring even Date with the said Bond, made between Jeremiah Hall, on the one Part and Hannah Metcalf and Debory Metcalf on the other Parte, whose Names are mentioned in the same Bond, and in and by all Things, according to the said Articals, with ought Covent.82 And this the said Jeremiah { 75 } Hall is ready to verify: Wherefore he prayeth Judgment, if the said Hannah and Deborah their Action aforesaid thereof against him, ought to have or maintain.
[signed] J[osiah] Q[uincy]
[XXIV]
Replevin. Of a Sloop hypothecated.
Rob. Mercer and Jno. Ramsay vs. Edward Moffat.83
[seal] Suffolk Ss. George the third by the Grace of God of Great Britain, France and Ireland, King, Defender of the Faith &c.
{ 76 }
To the Sherriff or Marshall of the said County of Suffolk, his Undersherriff or Deputy, or Constable of Boston within the said County or to any or Either of them, Greeting.
In his Majestys Name you are required, to replevie the sloop or Vessell called the Industry of the Burden of about Twenty five Tons, with her Tackle and Apparel belonging to Robert Mercer and John Ramsay of our City of New York in our County and Province of New York, Merchants, now distrained kept or impounded by Edward Moffat, now residing in Boston in our said County of Suffolk Mariner, and deliver the said sloop or Vessell with her Tackle and Apparell unto the said Robert Mercer and John Ramsay: And summons the said Edward Moffat to appear before our Justices of our Inferior Court of Common Pleas, next to be holden at Boston, within and for our County of Suffolk aforesaid, on the first Tuesday of January next, then and there in our said Court to answer to the said Robert Mercer and John Ramsay, in a Plea of Replevin: For that the said Sloop or Vessell, on the first day of January Anno Domini 1771 was at New York, a Place so called vizt. in Boston aforesaid upon a Voyage from New Providence one of our Bahama Islands, and back again, and was greatly out of Repair, and in Want of many Necessaries, as well to repair and refit the said Vessell as to furnish her with stores and other Things necessary to enable her to prosecute pursue, and finish the said Voyage, and one John Petty Mariner was then and there legal Master of said Sloop or Vessell and had the Care and command of her, for and during the said Voyage, and was thereunto duely authorized and { 77 } appointed, and was necessitated to take upon the Adventure of said Sloop or Vessell the sum of two hundred and Eighty four Pounds Twelve shillings and five Pence current Money of our said Province of New York, for making Repairs, and discharging the Repairs made upon said Vessell,84 and furnishing her with Necessaries to set forth on, and pursue her said Voyage, and without which She could not have proceeded on said Voyage: which said sum the said Robert Mercer and John Ramsay, supplied and paid to the said John Petty, for the Purpose aforesaid, at his Request, at the Rate of Eight Pounds Per Cent for said sum, for and during the said Voyage: And the said John Petty, then and there, vizt. on the said first day of January Anno Domini 1771 at said Place called New York viz. in Boston aforesaid, by a certain Bill, or Instrument in Writing of Bottomree, and Hypothecation85 of that Date under his Hand and Seal, duely executed and in Court to be produced, in Consideration of the said Sum, supplied and paid him as aforesaid, did covenant grant, promise and agree to and with the said Robert Mercer and John Ramsay that the said Sloop or Vessell should depart from the Port of the said City of New York on her said Voyage to Providence on or before the tenth day of January aforesaid and as Wind and Weather would permit, should proceed on her said Voyage without Delay: And the said John Petty further, by the same Instrument, or Bill of Bottomree and Hypothecation, for the Consideration aforesaid, did then and there, vizt. on the said first day of January aforesaid at said Place called New York vizt. in Boston aforesaid, grant, bind, hypothecate and pledge the said sloop or Vessell, with the Freight, Tackle and Apparel of the same, to the said Robert Mercer and John Ramsay their Executors, Administrators and Assigns to pay them the full sum of £307 currant Money of our said Province of New York in 10 days next after the said Sloop or Vessell Arrived at Providence aforesaid; and the said John Petty did then and there by the same Instrument or Bill, further covenant with the said Robert Mercer and John Ramsay, that the said Sloop or Vessell, with her freight, Tackle, and Apparell, should at all Times after the said Voyage be lyable and chargeable to and with the Payment of the said sum of £307 currant Money aforesaid, to them the said Robert Mercer { 78 } and John Ramsay; and by the same Instrument or Bill it was then and there further provided, declared and agreed by and between the said Parties to the same, that in Case the said Sloop or Vessell should be lost, miscarry, or be cast away before her Arrival at Providence aforesaid, that then the Payment of the said sum of £307 current Money aforesaid should not be demanded or be recovered by the said Robert Mercer and John Ramsay; and that the loss thereby should be wholly born and sustained by them; and that every Act, matter and Thing in said Instrument or Bill contained, on the Part and Behalf of the said John Petty, should be void: And the said Robert Mercer and John Ramsay aver, that the said Sloop or Vessell did depart from the said Port of the City of New York as aforesaid, and within the Time limited for her departure as aforesaid: and did proceed on her said Voyage, and arrived safely at Providence aforesaid on the 10th, day of Feby. Anno Domini 1771, and was not lost nor did she miscarry, nor was she cast away: And that the said sum of £307 (which is equal in Value to £230 5s. Lawfull Money of our Province of the Massachusetts Bay) hath never been paid to them the said Robert Mercer and John Ramsay or any Part thereof; whereby the said Sloop or Vessell with her Tackle and Apparel hath become forfeited, and belongs to them, and that they ought to be in Possession of the same. And that the said Edward Moffat, on the 16 day of October last at Boston aforesaid took the said Sloop or Vessell with her Tackle and Apparell belonging to the said Robert Mercer and John Ramsay the present Plantiffs: and the said sloop or Vessell, with her said Tackle and Apparell carried away and kept at a Place called the Long Wharf in Boston aforesaid, and there unjustly detained against Pledges and Sureties till this day; which is to the Damage of the said Robert Mercer and John Ramsay as they say the sum of £300 lawfull Money aforesaid, as shall then and there appear, with other due Damages: Provided the said Robert Mercer and John Ramsay give Bond to the Value of £300 lawfull Money aforesaid, with sufficient surety or sureties to prosecute their said Replevin, at the said next inferiour Court of common Pleas, and so from Court to Court untill the Cause be ended, and to pay such Costs and Damages as the said Edward Moffat shall recover against them. Hereof fail not and make due return of this Writ with your Doings therein unto the said Court. Witness Eliakim Hutchinson Esqr. &c.
{ 79 }
[XXV]
Debt on judgment.
[Palmer v. Noyes] 86
Attach &c. to answer unto Joseph Palmer of &c. in our said County of Suffolk Merchant in a Plea of Debt for that the said Joseph by the Consideration of our Justices of our Inferior Court of Common Pleas { 80 } holden at Boston within and for our County of Suffolk aforesaid on the first Tuesday of October Anno Domini 1771 recovered Judgment by the Names and Additions of Joseph Palmer &c. both in our said County, against the said Joseph Noyes for the sum of 36 pounds 14/ and 4 pence of Law[ful] M[one]y Damage and two pounds 17/ and 6d. Costs of Suit, as by the record thereof in our said Court remaining appears which Judgment remains in its full force and Unsatisfied whereby an Action hath arisen to the Plaintiff to recover those sums against the said Joseph Noyes yet he hath not either of them, tho often requested but detains them.
[XXVI]
Ejectment by Lease, Entry and Ouster.
Laughton vs. Pitts et als.87
Summon James Pitts Esq. Charles Dabney and James Sumner &c. to answer to William Laughton, of Boston &c. Tayler, in a Plea why they the said James Pitts, Charles Dabney and James Sumner, with Force and Arms a Part of a Messuage, Part of a shop and other Buildings, with two certain strips or Parcells of Land, under and adjoining thereto, situate in said Boston and bounded as follows vizt. &c. [one line blank in MS ] 88 with the Appurtenances, which William Warden of said Boston Peruke maker and Sarah his Wife, demised to the said William Laughton for a Term which is not yet past, entered and { 81 } him from his farm89 aforesaid ejected, and committed other outrages upon him to the great Damage of the said William Laughton, and against our Peace,
And whereupon the same William Laughton complains and saith that the said William Warden and Sarah his Wife on the Sixteenth day of this present June, in the 13 Year of our Reign at Boston aforesaid in the County aforesaid demised to the same William Laughton the Tenements aforesaid with the appurtenances to have and to hold to the same aforesaid William Laughton and his assigns, the same Tenements aforesaid, with the appurtenances, from the said sixteenth day of June aforesaid for and during the full Term of three Years, from thence next ensuing to be compleat and ended, by Virtue of which demise, the same William Laughton into the Tenements aforesaid with the Appurtenances entered and was thereof possessed; and he the said William Laughton being so thereof possessed, the said James Pitts, Charles Dabney and James Sumner, afterwards, to wit, the same 16 day of June aforesaid with Force and arms &c. into the Tenements aforesaid with the Appurtenances which the said William Warden and Sarah his wife, to the said William Laughton demised in form aforesaid for the Term aforesaid which is not yet passed, entered, and him the said William Laughton from his farm aforesaid ejected, and other outrages they the said James Pitts, Charles Dabney, and James Sumner, then and there did against our peace and to the Damage &c.
[XXVII]
Case for diverting Water from a Trench, Mill and Land.
Boies vs. Gillespie.90
Attach A. Gillespie &c. to answer to J. Boies &c. in a Plea of Trespass on the Case, for that whereas the said J. Boies was on &c. to &c. seized in his Demesne as of fee of a certain Water Mill comonly called { 82 } the Slitting-Mill91 and of a parcel of Land cont[ainin]g by Estimation 13 Acres or thereabouts near adjoining to said Mill with the Appurtenances situate on or near a Trench in a place between the upper and the lower dam so called in Milton aforesaid; and the said J. Boies and all those whose Estate he hath, in the Mill and parcel of Land aforesaid have and ought to have, and from time immemorial have been accustomed and ought to have the Benefit of a certain Water or Water-Course92 commonly called Neponset River, running from a Spring in { 83 } said Milton commonly called Charles River from thence to the said place there in said Milton commonly call'd the upper Dam and increases a certain Water-Course River, or Stream of Water, which runs from and by the said upper Dam thro' a certain place there call'd the Trench to the said Mill of the Plaintiff there situate between the said upper and lower Dam as aforesaid; And the said A. Gillespie well knowing the premises but maliciously contriving, and fraudulently intending him the said J. Boies of the profits and Commodity of his said Mill and parcell of Land altogether to deprive, on the Day of the purchase of this Writ and on divers other days and times between the said first day of J[anuar]y and the day of the purchase of this Writ in Dorchester aforesaid the Bank of Inclosure of the Water Course aforesaid which runs from the spring aforesaid and increases the Watercourse River or Stream of Water aforesaid which runs as aforesaid from and by the said upper Dam thro' the Trench aforesaid to the Mill of the Plaintiff so much broke, cut, dug, carried away and threw down or caused to be cut, broke, dug, carried away and thrown down, and the Water aforesaid so much diverted or caused to be diverted that by means of the breaking, cutting, digging, carrying away, throwing down and diversion aforesaid, the said Mill of the Plaintiff call'd the Slitting Mill for want of sufficient Water running in the ancient Course thereof, could not slit or work so well or commodiously; and the said parcel of Land was greatly damnified, whereby the said J. Boies lost great part of the profits of the said Mill and parcel of Land aforesaid for a long time viz. on the day of the purchase of the Writ and divers other days and times between the said first day of January and the said Day of the purchase of this Writ, and more especially the Plaintiff lost the Benefit, profit and Advantage of cutting and slitting two Tons of Iron at said Milton on the same day which lay there ready at said Mill to be cut and slit, and the plaintiff avers that every thing was then and there ready for the purpose of slitting and cutting the said Two Tons of Iron excepting water sufficient for commodiously working the said slitting Mill, which water was then and there diverted and turned away out of it's said antient Course by the said A. Gillespie in Manner as aforesaid.
And also for that wheras the said J. Boies on &c. and for three years last past was and now is seized in fee and possessed of, and in an antient Messuage, and a certain other Tract of Land cont[ainin]g by Estimation 13 Acres or thereabouts with the Appurtenances in Milton in the County aforesaid which same Tract lieth contiguous and adjoining on the North Side, to a certain antient Water Course called { 84 } Neponset River, which runs and time out of mind hath run and used and of right ought to run from a certain Spring head called Charles River in Milton aforesaid to, in, and by the said last mentioned Tract of Land of the plaintiff and his Messuage aforesaid thro' a certain other Trench there by the same Tract of Land quite up to, by, and beyond the lower Dam there so called adjoining a certain other Tract there being and belonging to the plaintiff, notwithstanding which, the said A. Gillespie (not ignorant of the premises, but contriving and maliciously intending to frustrate and hinder the said J. Boies from the use and Benefit of the same Water Course) on the day of the purchase of this Writ and on divers other days and times between the said 1st Jany. and the said Day of the purchase of this Writ in Dorchester aforesaid dug, broke up, and cut away a certain bank or Inclosure of the said Water-Course and thereby diverted the same Water Course from the Water Course of the said J. Boies; by which the said J. Boies was greatly injured and deprived of and lost a very great part of the use profit Benefit and Advantage of the said Water Course for a long time viz. on the day of the purchase of this Writ and also from the said 1 Jany. to the said day of the purchase of this Writ: Ad damnum £300.
[XXVIII]
Trespass.
Ditson vs. Small.93
Attach &c. John Small &c. to answer John Ditson &c. in a Plea of Trespass for that the said John Small, at Dunstable &c. on the first { 85 } day of January Anno Domini 1771 with Force and Arms, broke and entered the Plantiffs Close in Dunstable aforesaid, containing &c. bounded &c. and being so entered with Force as aforesaid cut down and carried away one hundred Trees the Property of the said John Ditson to the Value of 2s. each, erected a Fence on the said Land of the Plantiffs, dug up the Soil and the Grass of him the said John Ditson in the Close aforesaid then growing with certain Cattle and Teams, oxen and Carts did eat up, tread down and destroy, the Trespass aforesaid as to the cutting down and carrying away the Trees as aforesaid and as to the Eating up, treading down and destroying the Grass aforesaid with the Cattle aforesaid from the aforesaid first day of January Anno Domini 1771 to the Day of the Purchase of this Writ, at Sundry days and Times continuing, and many other Enormities the said John Small did to the said John Ditson against our Peace and to the Damage &c.
[XXIX]
Borrowing.
Stone et al. v. Littlefield.94
Attach &c. to answer in a plea of the case for that upon the 4 Octr. &c. at &c. the said J. borrowed and received of the Plaintiffs 11 Gall. { 86 } of Barbadoes Spirit, worth [£] 2–13–4 and in consideration thereof the said J. then and there promised the plaintiffs to repay them 11 Gall, of the same sort of Spirit when he should be requested so to do; Now the said &c. say that afterwards viz. on &c. at &c. they requested the said J. to return and redeliver to them 11 Gall, of the said Spirit, but the said J. then refused and still refuses to deliver to the Plaintiffs 11 Gall, of said Spirit and so has broken his promise aforesaid.
[signed] Kent
1. In JA 's hand. Pleadings Book, p. 2. Printed with some variations in Perham, American Precedents 135. The records and files have not been found. Perham appended the following note: “As the Dft. was to do the first act, viz. deliver the goods, it was not necessary for the Plf. to aver an offer or tender of the freight; but query, if not a time when the goods were to be delivered, and that that time was past? In order to apply the evidence, the Plf., if he cannot prove a precise time agreed on, may allege the reasonable time the law implies.” The editor of the second edition of American Precedents revised this note to state that the plaintiff should have averred a tender, “for defendant has a lien upon the goods for the freight, and payment thereof is by the contract a condition precedent. See 3 Burr. 1499. 4 Burr. 2218. Doug. 104.” He also suggested that a special request for delivery or the passage of a reasonable time might have been alleged as alternatives to a specific time of delivery. American Precedents 185 (New York, 2d edn., 1810). This declaration in assumpsit is one of four declarations against masters or owners of vessels on bills of lading in the Pleadings Book. See Waldo v. Gridley, Form II; Langdon v. Barber, Form III; McLean v. McEwen, Form XVII. The declaration in the last-mentioned case is a form more in accord with later practice than that printed here. See note 76 60 below.
2. In JA 's hand. Pleadings Book, p. 3–5. Printed with some variations in Perham, American Precedents 213–214. The action was filed in the Suffolk Inferior Court, where, in Oct. 1751, Jeremiah Gridley obtained a verdict in favor of Isaac Gridley for costs. See text at note 23 7 below. On appeal to the Superior Court in Feb. 1752 the defendant again prevailed. The Superior Court Minute Book indicates that Edmund Trowbridge filed the appeal. SCJ Rec. 1752, fol. 31; Min. Bk. 61, SCJ Suffolk, Feb. 1752, N–55. Perham put the form in a section containing actions on the case in tort, rather than under the heading “Assumpsit,” where Holden v. Conner, Form I, appeared. In later practice, at least, the remedies of assumpsit and case for negligence were concurrent and the differences in form between the pleadings were slight. Among the practical differences were that in assumpsit all parties to the contract had to be joined, the agreement between the parties had to be stated in express terms, and the common counts (note 31 15 below) could be joined. In tort, recovery could be had against any one of the parties, only a duty need be shown, and a count in trover could be joined. See 1 Chitty, Pleading 92, 134–135, 138; 2 id. at 155–161, 319–321; Joseph K. Angell, A Treatise on the Law of Carriers 366–392 (Boston, 3d edn., 1857). JA probably regarded the form of action here as assumpsit. An express contract, consideration, promise, and breach are set out. Compare Angell, Carriers 380–392. Further, the final clause (text preceding note 22 6 below) in effect makes the declaration one in indebitatus assumpsit, since it alleges a sum certain owing to the plaintiff and the new defendant's presumably fictional promise to pay it. This clause does not appear in American Precedents. Its presence in the actual form may have been owing to a doubt as to the liability of the owner on the master's contract, or for his defaults. See authorities in notes 25 9 , 26 10 , below. The form was probably inserted here because of its use in Langdon v. Barber, Form III. See note 24 8 below.
3. Here and elsewhere in the Pleadings Book, JA has omitted the description of the parties, known as the “addition,” which in this instance was “of Boston in the County of Suffolk, merchant.” SCJ Rec. 1752, fol. 31. By the English Statute of Additions, 1 Hen. 5, c. 5 (1413), in original writs and certain other processes, “in the names of defendants ... additions shall be made of their estate or degree, or mystery [i.e occupation], and of the towns, or hamlets, or places and counties, of which they were, or be, or in which they be or were conversant,” or else the writ could be abated. See 1 Chitty, Pleading 246–247. In Massachusetts the act prescribing forms of writs provided that the plaintiff's addition should appear also. Act of 3 June 1701, c. 2, §1, 1 A&R 460. Compare Perham, American Precedents 90 note. The consequences of omitting the description of the plaintiff are not known, but a mistake or omission in the addition of the defendant was grounds for abatement of the writ. See Ballard v. McLean, Quincy, Reports 106 (SCJ Suffolk, Aug. 1764); Bromfield v. Lovejoy, Quincy, Reports 237 (SCJ Suffolk, March 1767).
4. Sums paid the master by the shipper over and above the freight for his care of the goods, and to cover expenses for lights, pilotage, and wharfage. See René de Kerchove, International Maritime Dictionary (Princeton, 1948).
5. By this time the custom of merchants was a fictional allegation which need not be proved. See 5 Holdsworth, History of English Law 144–145.
6. Here and in most of the forms in the Pleadings Book JA has abbreviated the formula known as the ad damnum, “To the Damage of the said John as he saith the sum of twenty five pounds.” SCJ Rec. 1752, fol. 31. Where damages were sought such a statement had to be included, and in actions other than debt the damages claimed were the limit of the plaintiff's recovery. In debt nominal damages could be claimed, because it was the sum sued for itself, rather than damages, which was the object of the action, 1 Chitty, Pleading 397–400. The usual declaration in English practice concluded with the further phrase, “and therefore he brings his suit, etc.” (the “etc.” standing for “and good proof”). “Suit” (Latin, sectam) here meant followers or witnesses rather than action. Sutton, Personal Actions 81–82. This conclusion was not part of the form used in Massachusetts, where by statute the last phrase was “which shall then and there be made to appear with other due damages.” See Act of 3 June 1701, c. 2, §1, 1 A&R 460.
7. The proceedings in the Inferior Court. See note 18 2 above.
8. In JA 's hand. Pleadings Book, p. 4–5. This writ, dated 29 March 1771, was probably drawn by JA , since he was of counsel for Langdon, both in the April 1771 Suffolk Inferior Court, where Barber prevailed on a demurrer to the plea, and in the Aug. 1771 Superior Court, where the jury found a verdict for Barber. Josiah Quincy Jr. was of counsel for the latter. Min. Bk., Inf. Ct. Suffolk, April 1771, No. 205; SCJ Rec. 1771, fol. 214; Min. Bk. 95, SCJ Suffolk, Aug. 1771, N–3. SF 101888. The action, like Waldo v. Gridley, Form II, was against the owner of a vessel for goods shipped on a bill of lading. This declaration does not recite the giving of a bill of lading, but sets out the contract in the language of the bill. Compare McLean v. McEwen, Form XVII; see 2 Chitty, Pleading 159–161. The file copy of the writ contains a second count, virtually identical to that in Waldo, which does recite the bill. SF 101888. Like the declaration in Waldo, the count here sounds in indebitatus assumpsit by virtue of the last clause.
9. In the MS this and the following two citations appear in the margin. See 3 Bacon, Abridgment 591: “And as the master himself is answerable . . . so likewise hath it been held, that the owners are liable to the freighters, in respect of the freight, for the embezilments, &c. of the master and mariners.” The next sentence, at p. 592, adds the qualification that “this proving a great discouragement to trade,” the statute, 7 Geo. 2, c. 15 (1734), provided that the liability of the owners for the embezzlements and other defaults of master and crew done without the owners' privity should be limited to the value of the vessel and her pending freight. This Act was the ancestor of the present-day American statute limiting vessel owners' liability. Grant Gilmore and Charles L. Black Jr., The Law of Admiralty 664 note (Brooklyn, 1957).
10. Boson v. Sandford, 3 Mod. 321, 323, 87 Eng. Rep. 212, 213 (K.B. 1690), holding that where goods were damaged through the neglect of the master of a vessel owned jointly by eight proprietors, all eight must be joined, and adding a dictum that the master need not, he being “no more than a Servant to the owners, [who] has no property either general or special, but the power he has is given by the civil law.” The report then set out “many cases where the act of the servant shall charge the master,” concluding, “Therefore though the neglect in this case was in the servant, the action may be brought against all the owners, for it is grounded quasi ex contractu, though there was no actual agreement between the plaintiff and them.”
11. Daniel Reading, The English Clerk's Instructor in the Practice of the Court of King's Bench, and Common Pleas, 1:341 (London, 1733), a declaration in assumpsit against the master of a vessel for not delivering goods loaded aboard his ship. JA 's citation “371” is evidently an error, since there was only one edition of Reading's work, 1 Sweet and Maxwell, Legal Bibliography 277.
12. A fictitious but nontraversable allegation intended to justify venue in Boston. See 1 Chitty, Pleading . 273; Fifoot, History and Sources 162; 5 Holdsworth, History of English Law 140–142. Compare No. 4, text at note 2.
13. In JA 's hand. Pleadings Book, p. 6. Printed with slight variations in Perham, American Precedents 301–302. JA was Whiting's counsel. For his minutes and the proceedings in the case, see No. 17. The declaration, dated 5 Dec. 1770, was probably drawn by Josiah Quincy Jr., who represented Abiel Hill. Min. Bk., Inf. Ct. Suffolk, Jan. 1771, No. 160. Although labeled “Ejectment,” the action is actually one in the nature of a writ of entry, one of the ancient real actions. See note 30 14 below; No. 17, text at notes 3–7. Asahel Stearns, citing its appearance in American Precedents 362 (Brookfield, Mass., 3d edn., 1821), called this declaration a unique form developed in Massachusetts in lieu of the English action of ejectment, which supposedly was not used in the Province. Asahel Stearns, A Summary of the Law and Practice of Real Actions 178–179, 396–398 note (Boston, 1824). Ejectment was used on occasion, however. See No. 17, note 5; Laughton v. Pitts, Form XXVI.
14. The products or profits of the land. This was a formal but necessary allegation in both a writ of right and a writ of entry, intended to show the substantial nature of the seisin under which the land was claimed. See Stearns, Real Actions 155, 364–366. The allegation “in a time of peace” was also a purely formal part of both writs, denoting activity under law at a time when the courts were open. Id. at 155–156. The form here differs from that usually found in a writ of entry in that it does not contain an allegation in the first paragraph detailing the particulars of the wrongful entry. In adopting JA 's form, Stearns grafted such allegations on to it. Id. at 442–443. Although the form is not exactly a writ of entry, it is even less a writ of right. It lacks much of the latter's distinctive language, such as an allegation at the end of the land description that the lands were claimed “By writ of our lord the king of right”; a statement that the seisin “in his demesne as of fee” was also “as of right”; and the concluding clause, “and that such is his right he offers, &c.” In place of the latter, this form concludes with a clause such as was ordinarily used in the writ of entry. Id. at 362–364. Compare Stephen, Pleading 37.
15. In JA 's hand. Pleadings Book, p. 7–9. This writ in the case of Samuel Haynes v. Francis Shaw is dated 1 April 1768, returnable to the April 1768 Suffolk Inferior Court. It was probably drafted by Robert Auchmuty, who entered the action and was Haynes' counsel at the Jan. 1769 Inferior Court, where Shaw won on a demurrer to the plea. Since only the first three counts printed here appear in the copy of the declaration in the file of the case, and there is no indication that the pleading was amended, JA may have added the others himself. Haynes' appeal was entered at the March 1769 Superior Court and continued until Feb. 1771. Then, with JA now of counsel for Haynes, the matter was submitted to referees who brought in a report awarding Shaw his costs. Min. Bk., Inf. Ct. Suffolk, April 1768, No. 198; SCJ Rec. 1771, fol. 3; Min. Bk. 89, SCJ Suffolk, March 1769, N–27; id., Feb. 1771, C–14; SF 101813.
The declaration printed here is one in general assumpsit on the so-called “common counts,” statements of the same underlying indebtedness made in alternative forms in order to prevent a fatal variance between pleading and proof. The counts set out and labeled in the margin by JA include four of the “indebitatus” counts, and two of the “quantum” or “value” counts, one of which JA left incomplete. The indebitatus counts alleged very generally an indebtedness in a sum certain and a fictitious promise by the defendant to pay the debt. They were: the count on an account annexed, an “immemorial practice” in Massachusetts (see Quincy, Reports 252 note; 1 Dane, Abridgment 174) which apparently replaced the counts for goods furnished or work performed used in England; counts for money paid by the plaintiff for the defendant and for money had and received by the defendant to the plaintiff's use; and the count in “insimul computassent,” or on an account stated between the parties (sometimes treated as a separate variety of general assumpsit). The quantum counts were “quantum valebant” and “quantum meruit” in which the plaintiff alleged the specific goods furnished or work done and the defendant's promise to pay what the goods or services were reasonably worth. The point of this variation was that there was no need to plead and prove the precise sum involved, but as JA has set it out, the quantum valebant count concludes with a second promise to pay a sum certain, not found in the usual English forms, which seems to defeat the ostensible purpose of the pleading. The reason for this variant and its effect have not been determined. If the clause was standard form in Massachusetts, it apparently was not taken literally. Three other JA cases show that quantum meruit rather than indebitatus assumpsit was held to be the proper form where an express price was not to be pleaded and proved. Tyler v. Richards, Quincy, Reports 195 (SCJ Suffolk, Aug. 1765); Pynchon v. Brewster, id. at 224 (SCJ Suffolk, Aug. 1766); Glover v. Le Testue, id. at 225 note, Adams Papers, Microfilms, Reel No. 185 (SCJ Suffolk, Aug. 1770). As to the common counts generally, see Fifoot, History and Sources 358–371, 378–379, 391–394; Shipman, Common-law Pleading 152–167, 259–263; Perham, American Precedents 95–108. See also No. 12, text at notes 22–28, 32–36, 122–126.
16. The MS breaks off here.
17. In JA 's hand. Pleadings Book, p. 10–11. Printed, with slight variations, in Perham, American Precedents 329–330. The writ, dated 7 Jan. 1771, and filed in April 1771 at the Suffolk Inferior Court, was presumably prepared by Samuel Fitch, who entered the action. Samuel Quincy appeared for Richards at the Jan. 1772 Inferior Court, where Doble, represented by JA , obtained a jury verdict. On appeal to the Superior Court, with Fitch now alone and JA still of counsel for Doble, Richards discontinued in Aug. 1773. Min. Bk., Inf. Ct. Suffolk, April 1771, No. 309; Jan. 1772, No. 40; SCJ Rec. 1773, fol. 104; Min. Bk. 98, SCJ Suffolk, Aug. 1773, C–33; SF 102288. See JA 's minutes of the Inferior Court trial, Adams Papers, Microfilms, Reel No. 185. See also Boston Gazette, 24 Dec. 1770, p. 3, col. 2.
This action of trespass for assault arose out of the tarring and feathering on 18 May 1770 of Owen Richards, a minor customs official, who had been involved in the case of John Hancock's Lydia in 1768. See No. 46, note 2. Richards also sued at least two other assailants, whom JA represented. Benjamin Jones won a verdict against him at the July 1771 Inferior Court, the appeal being dropped in Aug. 1777. Richards v. Jones, Min. Bk. 103, SCJ Suffolk, Aug. 1777, C–19; SF 102532; see JA 's minutes of the Inferior Court trial, Adams Papers, Microfilms, Reel No. 185. Against Joseph Heakley, Richards had better luck, winning a verdict at the Aug. 1772 Superior Court after losing before a jury at the Inferior Court in April 1772. Richards v. Heakley, Min. Bk. 95, SCJ Suffolk, Aug. 1772, N–27; SF 102127. JA 's Office Book, April 1771 Suffolk Inferior Court, MQA, shows a fee of 24s. in Doble's case and fees of 12s. and 48s. in the case of Richards v. “Joseph Aikley” [Heakley]. With the latter entry JA noted: “at Elizabeth Winship's Instance.” Richards had incurred the wrath of the mob (still inflamed by the aftermath of the Boston Massacre, Nos. 63, 64), when, according to Quincy's argument for him in Jones , he had seized “A Vessell from Connecticutt, at noon day in the open Breach of the Acts of Trade. He was informed of it, and went to see her, and there by his own View and his oath he was obliged to seize her. In the afternoon, he was going down to the Vessell and was surrounded by a Multitude and tarred, feathered, and carted, and lost his Cloaths, Money, and Papers to the Amount of near £20 st. And in order to satiate their abandoned Brutality, they set fire to the Feathers as they stuck in the Tar, upon his naked back.” JA 's minutes, Richards v. Jones, cited above. See also Boston Gazette, 21 May 1770, p. 3, col. 1; Rowe, Letters and Diary 202; Esther Forbes, Paul Revere and the World He Lived In 208–213 (Boston, 1942); Account of the Mobbing by Richards and Others, 4 New England Papers 1–2, MH. For criminal proceedings arising from the riot, see Rex v. George Hamblin, Min. Bk. 91, SCJ Suffolk, Feb. 1771; SF 89791. ( JA billed John Hancock £2 8s. 6d. for services in the latter case. See JA 's account with Hancock, receipted 21 Dec. 1771, an John Hancock's Account with John Adams facing page 63illustration in this volume.)
18. A Portuguese gold coin, worth about 36s. OED .
19. In JA 's hand. Pleadings Book, p. 12–13. Probably drafted by Robert Auchmuty, who entered the action at the Jan. 1770 Suffolk Inferior Court. No files for this case have been found. The tarring and feathering which it recounts took place on 28 Oct. 1769 at the hands of a mob which formed in the aftermath of John Mein's escape from Boston. See Rowe, Letters and Diary 194; No. 12, note 10. The case was decided in the defendants' favor on demurrer at the Jan. 1770 court. An appeal under the names of “Geo. Galer Apt. vs. Eleazr. Trivett” was entered by Robert Auchmuty at the Suffolk Superior Court in March 1770. The action was dropped at the Aug. 1771 term when neither party appeared. JA 's Office Book, MQA, shows that he received a fee of 19s. 4d. from Bradley, one of the defendants, for services at the Inferior Court. See Min. Bk., Inf. Ct. Suffolk, Jan. 1770, No. 125; SCJ Rec. 1771, fol. 209; Min. Bk. 91, SCJ Suffolk, March 1770, N–33; Min. Bk. 95, SCJ Suffolk, Aug. 1771, C–38.
20. In JA 's hand. Pleadings Book, p. 14. The writ, dated 15 March 1768, may have been drafted by James Otis, who represented Ruggles in the Suffolk Inferior Court at the April 1768 term, where Doane, with Samuel Swift as counsel, prevailed on demurrer. On appeal to the Superior Court Blowers and JA appeared for Ruggles, and Auchmuty for Doane. At the Aug. 1771 term Ruggles discontinued, paying costs of £14 8s. 4d. A deposition that Doane had paid his taxes, given by a Wellfleet constable, may have been the cause. See Min. Bk., Inf. Ct. Suffolk, April 1768, No. 228; SCJ Rec. 1771, fol. 207; Min. Bk. 86, SCJ Suffolk, Aug. 1768, N–6; Min. Bk. 95, SCJ Suffolk, Aug. 1771, C–7, SF 101890.
21. Act of 28 Jan. 1764, c. 18, 4 A&R 669, extended to 1 July 1770 by Act of 21 Feb. 1766, c. 33, 4 A&R 859. The first section of the 1764 Act gave the collectors and constables of Boston a remedy against the agents, factors and trustees of an “absconding person” like that which “other creditors have for recovery of their debts.” Under §2, “where any person duly rated in the said town hath removed, or shall remove, out of it, into some other town in this province, ... before payment of such rates, and where, the time for payment to the respective treasurers [i.e. province, county, and town] being elapsed, the collectors or constables in the said town shall have paid the whole sums given them to collect in each year; in all such cases it shall and may be lawful for the collectors or constables of the said town ... to sue for such rates and taxes; and they shall have all the like remedies for recovery thereof, as other creditors have for recovering their proper debts.” This act was presumably passed in response to the dictum of the Superior Court in Ruddock v. Gordon, Quincy, Reports 58, 59 (SCJ Suffolk, Feb. 1763), that no action of assumpsit lay for the recovery of taxes by a collector when the only statutory remedy was distress. See Act of 3 Oct. 1730, c. 1, §§12–17, 2 A&R 552–554. An action of debt was the usual remedy in a right of action given by statute. See Shipman, Common-law Pleading 137–138. Although it is not made explicit in the pleading, it seems probable that Doane was being sued under the second section of this act as one who had “removed.” Later one of JA 's clients, he was an extremely wealthy man, owning property in Boston as well as in Wellfleet and elsewhere. See No. 58, note 12 and Doc. I. The tax acts in question were the Act of 21 June 1765, c. 18, 4 A&R 818, and the Act of 27 June 1766, c. 6, 4 A&R 883.
22. The plea, nil debet (literally, “he owes nothing”), was the general issue in debt, putting in issue, “nearly everything that negatived the existence of the debt at the time of the commencement of the action.” Sutton, Personal Actions 164. See Shipman, Common-law Pleading 327–328. The phrase in the plea abbreviated at the “&c.” is, in full, the commonly omitted formula called the “defense”: “comes and defends the wrong and injury when and where it so behoves him, and the damages, and whatsoever else he ought to defend.” “Defends” in this context means “denies.” See note 94 78 below. The concluding phrase, “puts himself on the Country,” is the formal conclusion of a traverse, a pleading tendering an issue triable by jury which the other party had to accept if properly pleaded. See Sutton, Personal Actions 81–83. The formal acceptance of the issue, known as the similiter, is omitted here. See note 68 52 below.
23. In JA 's hand. Pleadings Book, p. 15. The writ was dated 5 March 1771, returnable to the April 1771 Suffolk Inferior Court. It was probably drawn by JA , who received a fee of 18s. from Joshua Green at the April 1771 court. Office Book, MQA. At the July 1771 Inferior Court Joshua won a jury verdict, with Samuel Quincy appearing for him. On appeal in Feb. 1772, with JA and Quincy both as his counsel, the jury affirmed the prior verdict. See Min. Bk., Inf. Ct. Suffolk, April 1771, No. 200; SCJ Rec. 1772, fol. 17; Min. Bk. 95, SCJ Suffolk, Aug. 1771, N–5; Feb. 1772, C–56; SF 102081. According to JA 's undated minutes, a reference was “declined.” Adams Papers, Microfilms, Reel No. 185. The case arose out of the winding up of the affairs of Joseph Green, deceased, who had run a business which his son, the defendant, had apparently managed after Joseph's death. The plaintiff, as administrator of Joseph's widow, sought to question the son's management.
The action of account, to require one who holds money or goods of another to render the balance due, was rarely used in England at this time, its functions having been largely superseded by the less cumbersome device of proceedings in equity. Fifoot, History and Sources 275–276. See JA 's minutes, cited above. Since there was no court of equity in Massachusetts, resort either to account or to the simpler indebitatus assumpsit for money had and received (note 20 above) was necessary. Although in later English practice assumpsit seems to have been available in all cases where account would lie, in the 18th century there was authority to the effect that it was not proper in the case of an actual account current between the parties, because of the complexity of the computation involved. See cases cited in James Barr Ames, Lectures in Legal History 117–119 (Cambridge, Mass., 1913). See also Lincoln v. Parr, 2 Keble 781, 84 Eng. Rep. 494 (K.B. 1671); Gilbert, Evidence 192; 2 Duncombe, Tryals per Pais 494 (London, 8th edn., 1766); 1 Dane, Abridgment 165. This authority may explain the use of the action of account here. At common law the question whether the defendant was liable to account at all was for the jury, but determination of the sums actually due was submitted by the court to auditors. Fifoot, History and Sources 273–274. In this suit, at the Inferior Court the defendant pleaded in bar that he was “never bailiff” as to part of the declaration and that he had “fully accounted” as to the rest. On amendment in the Superior Court he pleaded that he was “never receiver” as to the first count of the declaration and “never bailiff” as to the second. SF 102081. Compare the forms in John Mallory, Modern Entries in English, 1:42–43, 51 (London, 1734); see also 1 Comyns, Digest 99–100; 1 Chitty, Pleading 483–484. Since these pleas presented issues for the jury which in both suits were resolved in the defendant's favor, the question whether auditors should be appointed was never reached. Auditors were later expressly provided by statute in Massachusetts. Act of 17 Feb. 1786, [1784–1785] Acts and Resolves 521–522; Act of 20 Feb. 1818, [1818] Mass. 550–551 (Jan. Sess. 1818); see 1 Dane, Abridgment 166.
24. In 1 Mallory, Modern Entries 48–49, appear two forms on which the two counts of this declaration seem to have been based.
25. The words “Bailiff and” are lined out in the file copy of the writ. SF 102081.
26. In JA 's hand. Pleadings Book, p. 16. The writ, dated 21 March 1771, returnable at the April Suffolk Inferior Court, was apparently drafted by JA , who entered the action. JA also was Needham's counsel at the July 1771 court, where judgment was given for Kingsbury on a demurrer to the plea, Needham having agreed that the trial of any appeal would be final. In the Superior Court, the case was continued term by term until Feb. 1779, when the suit was dropped. See Min. Bk., Inf. Ct. Suffolk, April 1771, No. 204; July 1771, No. 73; SCJ Rec. 1779, fol. 52; Min. Bk. 95, SCJ Suffolk, Aug. 1771, N–7; Min. Bk. 103, SCJ Suffolk, Feb. 1779, C–1; SF 102598. This suit for malicious prosecution arose out of an action brought by John Needham, Ezekiel's son, against Kingsbury at the July 1768 Suffolk Inferior Court for services performed and for a sawmill saw which Needham claimed that Kingsbury had agreed to buy, or at any rate had used and returned in damaged condition. Needham won a jury verdict for three pounds in the Inferior Court, which was reversed by a Superior Court jury at the Aug. 1768 term, and then on review in March 1769 was restored by a third verdict which included costs in the staggering amount of £79 3s. 7d. JA was Needham's counsel at both Superior Court trials. See Min. Bk. 86, SCJ Suffolk, Aug. 1768, N–26; Min. Bk. 89, SCJ Suffolk, March 1769, N–24; SF 101254, 101352.
At the Nov. adjournment of the Aug. 1769 Superior Court term, on Kingsbury's complaint, Ezekiel Needham was indicted on two separate indictments for perjury in his testimony at the Inferior Court trial and at the Superior Court trial in review. His wife, Dorothy Needham, was also indicted for perjury in the Inferior Court. In each indictment the charge was the same, that the witness had testified “that three or four Teeth were broken out of the Saw” in dispute, “and that the same Saw was bent and twisted and entirely spoiled.” See SF 102598, 101798, 101799, 101773. According to minutes taken by JA , probably at the trial in review, Ezekiel had testified that Kingsbury “brought the saw to my house and said it did not prove so well as he expected. The Saw was damnified, the Teeth were broke and the Saw was bent.” Adams Papers, Microfilms, Reel No. 185. At the March 1770 term two indictments were also brought against John Needham—one for forging the signatures of his witnesses to the accounts of their travel to the Superior Court, and one for subornation of perjury, charging that he had procured Samuel Frost to testify falsely as to the condition of the saw at the trial in review. See SF 101796, 101797. After several continuances, during which Ezekiel was free on bail, he was tried under the indictment covering his Inferior Court testimony at the Feb 1771 Superior Court. (On his other indictment no plea appears and the words “not compleated” are written. SF 101799.) JA 's minutes of the trial show that various witnesses testified that the saw was not damaged when Kingsbury returned it, but the saw itself was introduced in evidence and apparently had at least two or three broken teeth. Although some witnesses stated that these were broken before Kingsbury got possession, he testified himself that “This is the Saw that I carryd home to Needhams Mill. Just as it was then. I cant so well tell that the Saw was exactly so at the Time I took it. When I carryd it home, I told him that it was something rusty. There was 2 or 3. Same as it is now.” Adams Papers, Microfilms, Reel No. 185. This testimony was apparently conclusive. The jury found Ezekiel not guilty and he was discharged. At the same term Dorothy and John Needham were likewise acquitted. Min. Bk. 89, SCJ Suffolk, Feb. 1771. This prosecution was the basis of Ezekiel's present suit.
At the Aug. 1773 term, Ezekiel was once again cited for perjury as a result of his testimony for John in a suit against the latter by Jeremiah Hall, in which Hall had finally prevailed on review. JA was again counsel for Needham in the civil suit. Min. Bk. 98, SCJ Suffolk, Feb. 1773, C–49; Aug. 1773, N–16; SF 102275, 102 2520. Needham gave his recognizance for prosecution at the next term, but no further record has been found. See note 29 46 below. See also Ezekiel Needham v. Jeremiah Hall, Min. Bk., Inf. Ct. Suffolk, April 1772, No. 243, a default judgment for Needham with JA of counsel.
27. In 2 Gardiner, Instructor Clericalis 53–57 (London, 1724), appears a discussion of malicious prosecution, followed by “A Declaration in Case for malitiously preferring an Indictment of Felony, which the Jury return'd ignoramus.”
28. 1 Mallory, Modern Entries 160, where there appears the form of a declaration in an action on the case for wrongful prosecution for larceny. JA has followed this form almost exactly.
29. “Manner of conducting oneself in the world or in society; behaviour, mode or course of life.” OED .
30. The MS breaks off here. The declaration as found in the Superior Court files continued as follows:
“always been untouched, unsuspected, and free from the suspicion and imputation of any such execrable and horrible crime, by reason of which good Name, fame, Credit, and honest Conversation, he the said Ezekiel had not only gained to himself the love and favour of all his Neighbours, but hath also reap'd and enjoyed great Advantages arising therfrom. Nevertheless the said Seth, being in no wise ignorant of the premises, but contriving and maliciously intending unjustly to grieve the said Ezekl. and not only to injure and detract him the said Ezekiel in his good name, fame, Credit and Reputation, but also to subject and bring him into danger of the pains and Penalties of Perjury, on the twenty first day of November [1769], at Boston aforesaid falsly and maliciously laid a charge of perjury against the said Ezekiel, and afterwards there on the same day, he the said Seth, out of his further malice which he had against the said Ezekiel, falsly and maliciously and without any true or lawful or probable Cause at our Superior Court of Judicature, Court of Assize, and General Goal Delivery, held at Boston within and for the County of Suffolk, on Tuesday, the Twenty first day of November [1769], by Adjournment duly made from the last Tuesday of August [1769], being the time by law appointed for holding the same Court, exhibited a Bill of Indictment against the said Ezekiel to the Jury of the Grand Inquest.” The declaration then went on to recite the substance of the indictment actually returned by the grand jury, which set out the details of John Needham's declaration against Seth Kingsbury at the July 1768 Suffolk Inferior Court and the proceedings there, including Ezekiel Needham's allegedly perjured testimony. Ezekiel's declaration then gave the proceedings on the indictment leading to his acquittal, concluding, “by reason of which premises the said Ezekiel was obliged to expend and lay out divers great sums of money to obtain his Enlargement from his said Imprisonment, and for the said Ezekiel to acquit himself from the said Crime as above charged upon him. To the damage of the said Ezekiel Needham (as he saith) the sum of five hundred pounds, which shall then and there he made to appear with other due Damages.” SF 102598. See forms in Perham, American Precedents 205–209.
31. Caption in JA 's hand. Title of the case and remainder of the declaration possibly in the hand of William Tudor, JA 's clerk. Pleadings Book, p. 18. The records of this case have not been found. The original of the writ, endorsed Paul Revere, dated 23 Oct. 1772, and returnable to the Jan. 1773 Suffolk Inferior Court, appears in SF 91313. According to JA 's Office Book, Jan. 1773 Suffolk Inferior Court, MQA, JA represented Lowrie. At the entry he noted “finished,” and wrote the figures £1 6s. 8d., which presumably was his fee. This is an action per quod servitum amisit (whereby he lost his services), properly brought in case, although if the servant were injured through force, trespass would also be proper. See 1 Chitty, Pleading 137–138. For forms, see 2 id. at 317–319; Perham, American Precedents 209–210. The case and its aftermath are described in Forbes, Paul Revere 396; Revere “had only got David Mosely [his apprentice] back by suing the shipmaster who had seduced him away from his goldsmith shop (and considering that Mosely then turned around, married his master's sister, Betsey, although she was much older than himself, drank too much, and was a spendthrift and a thorn in Revere's side forever after, he may have wished he had let the boy go).” For Revere's difficulties in later years as Mosely's guardian, see SJC Rec. 1798–1799, fol. 38; SF 107814.
32. A note in JA 's Office Book, Jan. 1773 Suffolk Inferior Court, MQA, indicates that Lowrie was a mariner from Glasgow.
33. In JA 's hand to text at note 38 54 below. Remainder probably in hand of Jonathan Williams, JA 's clerk. Pleadings Book, p. 25–26, 30. JA presumably drew the writ, dated 18 Dec. 1770, since he appeared for Ruddock in the Jan. 1771 Suffolk Inferior Court, where a jury awarded JA 's client £200. JA also represented Ruddock on appeal, but in the Superior Court the case was referred. At the Feb. 1771 term a report was entered reducing his recovery to £49 14s. 4½d. Min. Bk., Inf. Ct. Suffolk, Jan. 1771, No. 235; SCJ Rec. 1771, fol. 20; Min. Bk. 91, SCJ Suffolk, Feb. 1771, N–29; SF 101820. The suit was on a charter party, a contract for the hire of a vessel. As the authorities cited in notes 50 34 and 51 35 below indicate, debt and covenant were alternative remedies in such a case where the agreement was under seal. The difference was that in covenant recovery would be limited to actual damages, while in debt the penal sum actually stated in the contract to be due in the event of breach could be sued for. See 1 Chitty, Pleading 112–114. The difference was of slight practical effect, since by Act of 10 Dec. 1698, c. 22, §1, 1 A&R 356, the court was permitted to “chancer” a jury verdict in such a penal sum to the “just debt and damages.” Compare No. 13, note 3. Here a similar result was apparently reached by the referees. Admiralty has always claimed jurisdiction of charter parties. Today this claim is conceded because of the maritime subject matter involved, although under the “saving clause,” 28 U.S.C. §1333, there is concurrent jurisdiction at common law. In the 18th century the common-law courts held that their jurisdiction was exclusive over virtually all contracts not actually made at sea to be performed at sea and used the writ of prohibition to limit the Admiralty courts accordingly. As a consequence, cases such as this seem to have been tried far more frequently before the courts of law than in Admiralty, at least in Massachusetts. See Wroth, “The Massachusetts Vice Admiralty Court and the Federal Admiralty Jurisdiction,” 6 Amer. Jour. Legal Hist. 351, 360–364 (1962); Gilmore and Black, The Law of Admiralty 21, 170. Compare note 99 83 below.
34. 2 Mallory, Modern Entries 1–6, contains the form of “A Declaration for Breach of Covenants in an Indenture of Charterparty, in not paying for Demurrage, Primage, the Dover Duty, and for Freight,” as well as later pleadings.
35. 2 Mallory, Modern Entries 211–215, setting out a declaration in “Debt for £800 upon a Charterparty of Affreightment.”
36. The foregoing language literally describes the historic form of the charter party, a term derived from the Latin charta partita, “divided paper.” Although the practice had long been abandoned, originally many kinds of legal documents were written in duplicate on a single piece of paper, which was then cut in half on an irregular line running through a word. The two halves could be fitted together to prove the genuineness of the document. Another survival of this practice is the familiar opening phrase of the deed of realty, “This indenture witnesseth.” See Charles Abbott (Lord Tenterden), A Treatise of the Law Relative to Merchant Ships and Seamen 121–122 (Phila., 1st Amer. edn., 1802); Plucknett, Concise History 612–613.
37. Despite the use of the word “demised” this does not appear to be what is today called a demise or bareboat charter, in which the owner furnishes a crewless, victual-less vessel, and the charterer becomes owner pro hac vice. See Gilmore and Black, Law of Admiralty 170–172, 215–219. The charter here is described as one of “freightment,” and it is for a single voyage. Ruddock, the owner, is also described as “Master,” suggesting that he was to retain control of the vessel for the voyage in question. Even today these elements would indicate that the owners were exercising that degree of control which would make this a voyage charter (or “charter party of affreightment,” as it is sometimes called). This would be so despite the fact that the charterers here undertook to pay “the charges for victualling and manning” the vessel (text below). See Gustavus H. Robinson, Handbook of the Law of Admiralty in the United States 594–598 (St. Paul, Minn., 1939). In the 18th century the term charter party seems to have been limited to a contract with these and other attributes of the modern voyage charter. The transaction that would now be classed as a demise charter was considered an altogether different type of contract. See Abbott, Merchant Shipping 76, 121. See also Charles Molloy, De Jure Maritimo et Navali 255–258 (London, 8th edn., 1744).
38. The remainder of the declaration is probably in the hand of Jonathan Williams.
39. The remainder of the declaration appears on p. 30 in the MS .
40. In JA 's hand. Pleadings Book, p. 27. In this case JA was of counsel for the defendants, Nathaniel Henshaw and Jonathan Williams, both at the April 1771 Suffolk Inferior Court, where a verdict was entered against them, and at the Aug. 1771 term of the Superior Court, where they lost a second time. The writ, dated 11 March 1771, was probably drawn by Josiah Quincy Jr., who entered the action. See Wendell v. Williams, Min, Bk., Inf. Ct. Suffolk, April 1771, No. 145; Henshaw v. Wendell, SCJ Rec. 1771, fol. 213; Min. Bk. 95, SCJ Suffolk, Aug. 1771, N–2; SF 101887. Both Oliver Wendell, plaintiff here, and his cotenant, Jonathan Jackson, were ancestors of United States Supreme Court Justice Oliver Wendell Holmes. Wendell was Holmes' paternal great-grandfather; Jackson (1743–1810), father of Charles Jackson who sat on the Supreme Judicial Court from 1813 to 1824 and who wrote an important treatise on real actions, was his maternal great-grandfather. See Mark DeWolfe Howe, Justice Oliver Wendell Holmes: The Shaping Years, 1841–1870 177–180 (Cambridge, Mass., 1957). The deed under which Wendell claimed was a mortgage deed, the defendants being second mortgagees who had probably entered under their mortgage. Wendell was seeking to foreclose the mortgage as to them; he obtained a judgment for the sum actually owed him, or possession, if the sum was not paid within two months. See No. 13, note 3. Jackson, the cotenant, brought an identical suit against these defendants. See Jackson v. Williams, Min. Bk., Inf. Ct. Suffolk, April 1771, No. 124; Henshaw v. Jackson, Min. Bk. 95, SCJ Suffolk, Aug. 1771, N–1; SF 101886. JA 's minutes are in Adams Papers, Microfilms, Reel No. 185.
The action here, labeled “ejectment” in accordance with usual Massachusetts practice, was in the nature of a writ of entry, in which the plaintiff declared upon the mortgage deed (or “covenant” as JA has here called it), rather than upon his seisin as mortgagee. This practice was said to be proper where the mortgage condition was part of the deed; the pleader was required to make “profert” of the deed (tender it in court), so that the condition would sufficiently appear. Stearns, citing similar forms printed in American Precedents 354–355 (Brookfield, Mass., 3d edn., 1821), criticized the procedure for its length and complexity, adding, “In its structure indeed, it is more like an action of covenant, or on the case, than a writ of Entry,” Stearns, Real Actions 253–254, 451–452. See note 29 13 above. See also No. 17, notes 3–7.
41. Hog Island in Boston harbor, now the district known as Orient Heights in East Boston. Boston Streets, &c., 1910 245, 352.
42. The “profert” of the deed, note 56 40 above. When profert was made, the defendant could demand “oyer.” In ancient practice this literally meant a reading of the deed in court. With written pleadings, however, it merely signified that the plaintiff had to set out in the record the deed or other instrument sued upon. See Sutton, Personal Actions 102–104. Compare Metcalf v. Hall, Form XXIII.
43. In JA 's hand. Pleadings Book, p. 28–30. The files of this case have not been located. JA was of counsel for Coburn, and Samuel Quincy for White. At the April 1771 Suffolk Inferior Court, “Tender was admitted by the plaintiff” and the jury awarded him the sum tendered (£7 6s. 8d.), but allowed the defendant costs. Min. Bk, Inf. Ct. Suffolk, April 1771, No. 186. See JA 's Office Book, April 1771, MQA. In a companion action, with tender also admitted, the plaintiff recovered £7 12s. 8d. and costs, more than the tender. Min. Bk., Inf. Ct. Suffolk, April 1771, No. 187. The pleas here were drawn by Samuel Quincy, counsel for the defendant. The plea of tender is one in which the defendant admits all or part of the liability, but asserts that he has offered to pay that part and been refused. See 1 Chitty, Pleading 473–474; 2 id. at 479–482. See also Sutton, Personal Actions 160–162. Note that here the declaration apparently alleged two of the common counts ( note 15 note 31 above), and that a virtually identical plea was offered to both. By way of replication, the plaintiff could deny that tender was made, or offer a variety of technical defenses to the plea. With the tender here admitted, trial must have been only on the matters which the defendant had denied. See 1 Chitty, Pleading 552–553; 2 id. at 645–650.
44. 2 Mallory, Modern Entries, under the heading referred to by JA contains a reference to p. 310–312, where numerous cases on the subject are digested.
45. 3 Gardiner, Instructor Clericalis 134, 136 (London, 4th edn., 1724), two pleas of tender in the original Latin.
46. 5 Bacon, Abridgment 1, tit. Tender and bringing Money into Court upon the common Rule. The rule, “by which the Money brought into Court is ordered to be struck out of a Declaration, is, from its being more frequently granted than that by which it is ordered that the Proceedings shall be stayed, called the common rule.” Of particular application to this case are id. at 14–19, 27.
47. See note 60 44 above.
48. See note 62 46 above.
49. “Ss,” commonly used in the statement of venue in pleadings and other forms, is said to be a contraction of scilicet, meaning “to wit.” Black, Law Dictionary .
50. The “common verification,” a requirement in pleadings (other than the declaration) which introduced new matter instead of offering an issue. Sutton, Personal Actions 86. The prayer for judgment following the verification is in the form proper for a plea of tender in assumpsit. 1 Chitty, Pleading 539–540.
51. This portion of the pleading is in effect a plea of non assumpsit (the general issue) to that part of the plaintiff's claim as to which no tender was alleged. See 2 Chitty, Pleading 480 note.
52. The “similiter,” the formal acceptance or joinder of issue required when a plea concluded “to the country.” 1 Chitty, Pleading 549, 570.
53. In JA 's hand. Pleadings Book, p. 31–[32]. The writ, dated 6 Feb. 1771, was probably drawn by Robert Treat Paine, who appeared for Brayton at the March 1771 Taunton Inferior Court, where the jury returned a verdict in Brayton's favor for possession and costs. On the appeal JA joined Paine as counsel for Brayton. At the Superior Court's Oct. 1773 term, again at Taunton, the prior judgment was affirmed. See Robinson v. Brayton, SCJ Rec. 1773, fol. 152; Min. Bk. 100, SCJ Bristol, Oct. 1773; SF 145772. The “writ of intrusion” is a form of writ of entry proper when the plaintiff (or “demandant” as he was technically known) was a remainderman or reversioner after a life estate, who had been ousted by an “intrusion” (an entry by a stranger after the life estate had terminated and before the remainderman had entered). See Stearns, Real Actions 49, 143, 179–180. For another form, see id. at 443–444. As to the requisites of pleadings in writs of entry generally, see id. at 149–161. Compare notes 29 13 , 30 14 , above, and No. 17, notes 3–7. Israel Brayton, plaintiff here, had received a reversionary interest in the lands in suit by devise from his grandfather, Preserved Brayton, who had died in 1761. Preserved in 1753 had assigned a life interest in the lands to his daughter-in-law, Ruth Brayton (Israel's mother), in lieu of her dower interest in certain lands once owned by her husband John Brayton, which she had not released. Previously, in 1736 Preserved had sold or given these lands, which included those in suit, to John under a duly recorded conveyance. John sold them back to Preserved in 1743, but seemingly destroyed the deed before it could be recorded. John then sold the property to William Sherman, but in 1744 Preserved was able to obtain possession in an action of ejectment against Sherman at the Superior Court, in which he was allowed to prove the making of his deed from John and that Sherman had had actual notice of it. In 1770 Ruth Brayton died, leaving her daughter Elizabeth Brayton Robinson in possession of the premises for which Israel sued. See documentation in SF 145772 and a summary of the title in Paine's hand in MHi:Photostats (1768). In opposition to Israel's suit Elizabeth apparently claimed that the 1743 conveyance from John to Preserved was ineffective and that she was entitled to a share in the property under her father's estate. JA 's minutes of the argument on this question show that he urged authorities to the effect that Preserved's 1744 judgment could be admitted as evidence of his title, and that, in the alternative, depositions and oral testimony as to the fate of the deed and its contents were admissible. Adams Papers, Microfilms, Reel No. 185. A note with JA 's Oct. 1772 Docket records that the “Court determined unanimously that Evidence should be admitted of the Deed from Jno. Brayton to his father and of the Destruction of it,” an apparent straightforward application of the so-called best evidence rule. Although this note indicates that the question was decided in Oct. 1772, the Paine Law Notes date the argument in Oct. 1773.
54. A dwelling house, perhaps including its outbuildings and immediate surroundings. Black, Law Dictionary . The restraint of the Massachusetts draftsmen in employing technical terminology is admirable. Compare Mrs. Shandy's marriage settlement in Laurence Sterne, The Life and Opinions of Tristram Shandy, Gentleman 41 (N.Y., Modern Library edn., undated): “All that the manor and lordship of Shandy, in the county of ——, with all the rights, members, and appurtenances thereof; and all and every the messuages, houses, buildings, barns, stables, orchards, gardens, backsides, tofts, crofts, garths, cottages, lands, meadows, feedings, pastures, marshes, commons, woods, underwoods, drains, fisheries, waters, and water courses;—together with all rents, reversions, services, annuities, fee farms, knights' fees, views of frankpledge, escheats, reliefs, mines, quarries, goods and chattels of felons and fugitives, felons of themselves, and put in exigent deodands, free warrens, and all other royalties and seignories, rights and jurisdictions, privileges and hereditaments whatsoever.”
55. That is, the devise was to Israel (Preserved's son) and to Israel's heirs.
56. George II (1727–1760). As to these and the following phrases descriptive of Preserved Brayton's seisin, see note 30 14 above.
57. Ruth Brayton was seised “as of freehold,” rather than “as of fee,” because her interest was a life estate, rather than a fee simple. See Stearns, Real Actions 153–154.
58. The basis of JA 's query has not been determined. It may have been the fact that Israel Brayton was devisee of the reversion, rather than the actual reversioner or his heir. At least in later practice the writ presumably lay in such a case, however. See Stearns, Real Actions 2, 143, 179–180, 194. Whatever the problem, it was never resolved; the action went to the jury in both courts without a question of law being formally raised. See note 69 53 above.
59. In JA 's hand. Pleadings Book, p. [33]. The original, dated 15 June 1771, was drafted by James Otis, who was Palmes' counsel at the July 1771 Suffolk Inferior Court where he lost on a demurrer to the plea. Samuel Quincy represented Greenleaf. Min. Bk., Inf. Ct. Suffolk, July 1771, No. 245. The writ, in Otis' hand, is in the Inferior Court files. At the following Superior Court, with JA and Josiah Quincy now representing Palmes, the case went to the jury, which found for the defendant. SCJ Rec. 1771, fol. 215; Min. Bk. 95, SCJ Suffolk, Aug. 1771, N–10; SF 101891. The case arose from Palmes' status as a material witness in the Boston Massacre trials. See editorial note to Nos. 63 and 64, note 63. Greenleaf was sheriff of Suffolk County. Whitmore, Mass. Civil List 79.
60. In JA 's hand. Pleadings Book, p. [34–35]. The writ, dated 31 Aug. 1770 and returnable to the Oct. 1770 Suffolk Inferior Court, was probably drafted by Samuel Fitch, who entered the action there. The Inferior Court Minute Book indicates that “Ad[ams]” represented the defendant in Jan. 1772, when £80 damages were awarded to the plaintiff on a demurrer to the plea. According to copies of the proceedings below in the Superior Court files, however, JA appeared for the plaintiff, and the defendant was represented by Josiah Quincy Jr. It is probable that the Minute Book entry is a clerical error. On appeal to the Superior Court the matter was referred, and in Feb. 1773 the defendant was awarded costs of £7 8s. 2d. Min. Bk., Inf. Ct. Suffolk, Oct. 1770, No. 280; Jan. 1772, No. 21; SCJ Rec. 1773, fol. 3; Min. Bk. 95, SCJ Suffolk, Feb. 1772, N–10; Min. Bk. 98, SCJ Suffolk, Feb. 1773, C–40; SF 102250b. Papers in the file indicate that the goods in suit were in storage at Greenoch, Scotland, where they had been unloaded at the desire of the majority of the cargo owners when the vessel had been seized in an action against her owner. The declaration is one in special assumpsit that that does not set out a bill of lading in express terms, but in reciting the contract uses the standard language of the bill. For similar forms, see 2 Chitty, Pleading 159–161; Perham, American Precedents 141–142. For a similar but much simpler form, see Holden v. Conner, Form I.
61. “A small sailing vessel resembling a brig, carrying a main and foremast and a supplementary trysail mast close behind the mainmast.” OED .
62. In an unidentified hand, presumably that of one of JA 's clerks. Pleadings Book, p. [36–37]. The writ, dated 29 Aug. 1772, was probably drawn by JA , who was of counsel for Thomas Loring at the Plymouth Inferior Court, Oct. 1772, where judgment was entered for Mary Loring on a demurrer to the plea. At Plymouth Superior Court in May 1773, with JA still appearing for Thomas, the case was referred. At the Taunton term in Oct. 1773 the report was read, the referees awarding Thomas his debt of £240 and costs. Robert Treat Paine represented Mary in both courts. Min. Bk. 94, SCJ Plymouth, May 1773, N–5; SF 142520. (No record reference has been located.) As to the iron industry in Massachusetts, see Nos. 18–19, notes 4, 5. The size of the recovery was probably a result of the six-year statute of limitations on “all actions of debt grounded upon any lending or contract, without specialty.” Act of 20 Nov. 1770, c. 9, §2, 5 A&R 110.
The action of debt for a legacy stems from a quasi-contractual feature of the action which permitted recovery where one party was under a noncontractual duty to pay money to the other. See Fifoot, History and Sources 222–223; 1 Chitty, Pleading 91, 102; Shipman, Common-law Pleading 134. In England a pecuniary legacy was ordinarily sued for either in chancery or in the ecclesiastical courts. Lord Mansfield's decisions that indebitatus assumpsit lay, because a promise could be implied from the duty to pay imposed upon the executor who had received assets, were rejected toward the end of the 18th century, on the ground that the courts of law could not adequately enforce the wishes of the testator. See Atkins v. Hill, 1 Cowp. 284, 98 Eng. Rep. 1088 (K.B. 1775); Hawkes v. Saunders, 1 Cowp. 289, 98 Eng. Rep. 1091 (K.B. 1782); Deeks v. Strutt, 5 T.R. 690, 101 Eng. Rep. 384 (K.B. 1794). See also Alison Reppy and Leslie J. Tompkins, Historical and Statutory Background of the Law of Wills 145–150 (Chicago, 1928); Fifoot, History and Sources 408–410, 435 note. In Massachusetts, where there were neither chancery nor ecclesiastical courts, a statute provided that all “certain” legacies might be sued for at common law. Act of 14 July 1693, c. 8, §2, 1 A&R 122. The actions of debt and assumpsit were thus at least partially concurrent remedies of the legatee. Assumpsit seems to have been more commonly used because of the doctrine that debt lay only for a sum certain, which had to be proved exactly. Debt was a proper remedy, however, where, as in this case, the legacy was in the form of an annuity and only arrears were sought, the right to the annuity having ceased at the legatee's death. See 2 Dane, Abridgement 239; 5 id. at 103–104, 119–124, 238–239; 1 Chitty, Pleading 107–108; Perham, American Precedents 274–277.
63. In JA 's hand. Pleadings Book, p. [37]. The records and files of this case have not been found. The suit is one in assumpsit against an executor for a legacy based on his implied promise to pay it. See Perham, American Precedents 140, 180–181. See generally note 78 62 above.
64. In the hand of one of JA 's clerks, perhaps Jonathan Williams. Pleadings Book, p. [38–39], The original writ in JA 's hand is in Suffolk Inferior Court Files, Jan. 1773, No. 71. At the end of the declaration JA wrote out a plea of the general issue (nil debet), which the defendant, Daniel Fisher, signed. JA added a joinder of issue, but the plea was apparently withdrawn in favor of a demurrer to a sham plea filed for Fisher by Josiah Quincy Jr. There is no record of the result, but it must have favored Fisher, because the Woodwards' appeal was entered at the Feb. 1773 Superior Court. The case was settled before trial. In JA 's Docket for this term, MQA, appears the notation “Ag[ree]d. 10d. Rec'd. £2 2s. 8d. in full.” See SCJ Rec. 1773–1774, fol. 6; Min. Bk. 98, SCJ Suffolk, Feb. 1773, N–3. This suit by a residuary legatee against a surviving executor is based on the executor's statutory duties. See note 83 76 below; see also note 37 21 above. Dr. Nathaniel Ames, the deceased executor, was the father of Fisher Ames and Dr. Nathaniel Ames Jr., whose political differences epitomized the split between Massachusetts Federalists and Jeffersonians in the forty years after the Revolution. Deborah Woodward, one of the plaintiffs, was Deborah Fisher Ames, daughter of the testator (who had died in 1766) and widow of Nathaniel Ames Sr. She married Richard Woodward on 23 Feb. 1772. Suffolk Files, Births, Marriages, Deaths, 1637–1774, No. 398. See Samuel Eliot Morison, By Land and by Sea 200–207 (N.Y., 1953); Charles Warren, Jacobin and Junto 4–5, 25 (Cambridge, Mass., 1931). For an earlier JA case between Deborah Ames and Daniel Fisher over Jeremiah Fisher's will, see Fisher v. Ames, Min. Bk. 91, SCJ Suffolk, March 1770, C–60; Feb. 1771, C–84; SF 101627, 101882; Adams Papers, Microfilms, Reel No. 185.
65. “Samuel Louchlen” in the file copy of the writ. Suffolk Inferior Court Files, Jan. 1773, No. 71.
66. Thomas Hutchinson was judge of probate for Suffolk County from 1752 to 1769. In August of the latter year, he was succeeded by his brother, Foster. See Whitmore, Mass. Civil List 80; 8 Sibley-Shipton, Harvard Graduates 163. The copyist here has omitted Hutchinson's full title, a statement that he “proved and approved” the will, and a repetition of his name. ( JA in the original had inadvertently called him “Foster” as well as “Thomas.”) Suffolk Inferior Court Files, Jan. 1773, No. 71.
67. The suit here is based upon the Act of 26 Jan. 1739, c. 23, 2 A&R 977, which provided an “action of debt” for “any uncertain or residuary legatee” against an executor taking up his charge, who “against the tenor of the law in that case provided” should neglect “to give in a full and true inventory of the whole estate of the deceased, so far as is then come to his hands or knowledge, being duly served with a citation from the judge of probate to that purpose.” The executor was to forfeit £100 per month for every month's neglect, “over and above the penalty already provided.” The earlier statute referred to is the Act of 22 Nov. 1703, c. 12, §1, 1 A&R 536, providing that an executor who submitted a will to probate must within three months thereafter “(or at such further and longer time as the judge of probate shall see meet to allow, the circumstances of any estate requiring the same)” exhibit his inventory, or else give bond to pay the testator's debts and legacies. The penalty was forfeiture of £5 a month for each month's neglect to be recovered in accordance with a still earlier Act that established penalties for not presenting a will. That measure, the Act of 1 Nov. 1692, c. 14, §2, 1 A&R 45, provided for the recovery of forfeitures “by action or information, in the inferiour court of pleas in the same county, and to be disposed of, one moiety thereof to the use of the poor of the town where the deceased person last dwelt, and the other moiety to him or them that shall inform or sue for the same.”
68. In the hand of one of JA 's clerks, probably Jonathan Williams. Pleadings Book, p. [40–42]. The records of this case have not been found. According to JA 's Office Book, Suffolk Inferior Court, Oct. 1772, MQA, he received a fee of 12s., but the writ was “Not served.” The original of the writ, first prepared for the Oct. court but redated 21 Oct. 1772 and altered to the Jan. 1773 court, appears in SF 91338. On its verso are the words, “This action is satisfied, per Robt. Pierpont.” Pierpont's original action against William Barber was a suit on a note for £223 0s. 4d. sterling. His recovery at the April 1771 Suffolk Inferior Court was affirmed with costs in both courts on his complaint at the Aug. 1771 Superior Court when Barber did not prosecute his appeal. SCJ Rec. 1771, fol. 226; Min. Bk. 95, SCJ Suffolk, Aug. 1771, N–69; SF 101969. No copy of the execution has been found. According to the Minute Book, it was dated 9 Sept. 1771 and was “del[ivered to the] Creditor.” For another JA case involving Pierpont, see Pierpont v. Cutler, discussed in 2 JA, Diary and Autobiography 8–9. Trespass on the case was the common remedy against the sheriff for his neglect, or that of his deputy, in serving process, levying execution, and the like. See 3 Dane, Abridgment 75; 1 Chitty, Pleading 69, 73, 140–141; 4 Bacon, Abridgment 442. See also Quincy, Reports 295–296. For forms, see Perham, American Precedents 222–231; 2 Chitty, Pleading 352–355.
69. The form of the writ of execution in personal actions is prescribed in the Act of 3 June 1701, c. 2, §1, 1 A&R 460, and discussed at length in the dissenting opinion of Trowbridge, J., in Richmond v. Davis, Quincy, Reports 279–297 (SCJ Suffolk, March 1768). It called upon the sheriff or his deputy to render to the judgment creditor the cash value of his judgment in “the goods, chattels or lands” of the debtor, if they were acceptable to the creditor; otherwise the body of the debtor was to be taken and held until the debt was satisfied or discharged. This writ combined the features of the English elegit and capias ad satisfaciendum, but did not contain the provisions of the writs of fieri facias and levari facias, under which the sheriff could sell the debtor's land or effects and pay the creditor the proceeds. See 2 Bacon, Abridgment 348–352. This situation was partially remedied by the Act of 14 July 1772, c. 12, 5 A&R 207, by virtue of which the sheriff was empowered to sell the debtor's chattels, apparently confirming a settled practice. See Quincy, Reports 297 note.
70. The clause beginning “for whose default” is omitted in the file copy of the writ. SF 91338.
71. The Act of 9 April 1742, c. 22, 2 A&R 1095, provided that, if an execution was returned unsatisfied or partially satisfied, the clerk of court might “ex officio, renew or make out an alias or pluries execution for the whole or the remainder, as the case may be, till the judgment be fully satisfied.”
72. Under the Act of 21 Nov. 1719, c. 9, §1, 2 A&R 150, when a creditor could not be satisfied out of the debtor's personal estate, if he “doth therefore think fit to levy upon the real estate” of the debtor, the sheriff was to proceed to have the lands appraised and an appropriate portion of them set off to the creditor.
73. The copyist has omitted the words “Of Great Britain and £3 2s. ad. Lawful Money,” which appear in the original writ. SF 91338.
74. In JA 's hand. Pleadings Book, p. [45–47]. The writ was presumably drawn by Samuel Fitch, who entered the action at the Oct. 1772 Suffolk Inferior Court. After Josiah Quincy Jr., representing McCarney, prayed oyer (note 58 42 above) and filed a plea in abatement (note 93 77 below), the case was continued for the plaintiff to file a replication. The records do not indicate who won in the Inferior Court, but it was Clark who appealed to the Aug. 1773 Superior Court. There, with Blowers and Fitch representing Clark, and JA and Quincy appearing for McCarney, the plea in abatement was overruled and the case was continued for trial. After numerous additional continuances, the action was finally “dismist the appellant being” dead, in Aug. 1777. Min. Bk., Inf. Ct. Suffolk, Oct. 1772, No. 91; SCJ Rec. 1775–1778, fol. 140; Min. Bk. 98, SCJ Suffolk, Aug. 1773, N–26; Min. Bk. 103, SCJ Suffolk, Aug. 1777, C–47.
This case, a dispute between the owners of two paper mills, illustrates the problem which arises when a stream's water level drops so much that it cannot supply all the riparian users. The plaintiff claimed that his was the earlier mill, and that the defendant consequently was bound to shut down in a time of shortage. Thus the plaintiff relied on what has since become known as the rule of prior appropriation: “first in time is first in right.” This principle is the law in the arid West today, but it is not now followed in Massachusetts, and was not the rule at common law in England. See Maass and Zobel, “Anglo-American Water Law: Who Appropriated the Riparian Doctrine?” 10 Public Policy 109–156 (1960). The common law followed the so-called riparian principle: every bona fide riparian proprietor has an equal right to the use of the stream, and must consequently suffer a proportionate diminution of that right when the stream falls. This point was not raised by the pleadings and was never passed upon in the Superior Court, due to the action's being dismissed. The fact that Clark seemed to rely on a prior appropriation theory suggests two possibilities: (1) he may have sought to assert a right by prescription, which would have had the same effect on the defendant as an application of the prior appropriation rule; (2) the Massachusetts lawyers may have, in substance, if not in form, followed the principle of priority. See note 108 92 below for a further discussion of this point. For other water cases, see Nos. 14, 18– 21 19 ,||20–21||.
75. Hutchinson to Lords Commissioners for Trade and Plantations, Sept. 1769, 25 Mass. Arch. 330: “I must acquaint your Lordships that a paper mill which had been erected in the Town of Milton within this Province having gone to ruin, one James Boies, who had sometimes improved this mill, about three or four years ago erected a new mill upon the same stream, about two miles distance from the former where more paper has been manufactured than had been at the former mill in the course of thirty years, and the undertaker meets with such encouragement that he is preparing to erect another paper mill near to the first mentioned and the owner of the first mill is also rebuilding that.” This mill had apparently been the source of paper for John Mein's Chronicle (see Nos. 5 and 12). Arthur M. Schlesinger, The Colonial Merchants and the American Revolution 164 (N.Y., 1918). See Boies and Clark v. Russell, SF 91619 (Suffolk Inferior Court, 1771), for an action to collect an account for “fine Crown” paper and “foolscap.”
76. Boston Gazette, 22 Feb. 1773, p. 4, col. 1: “To be Sold. The real Estate of Richard Clark, of Milton, near the Slit-Mill, Consisting of ... upwards of Eight Acres of Land, with Half Part of the Paper Mill, and Utensils thereto belonging, with Half Part of the Negro Caesar and Half Benefit of three Apprentices. The Paper-Mill having the Command of the Water in the Summer Months.”
77. The plea in abatement was a dilatory plea going to the sufficiency of a particular writ, rather than to the merits. Because of the distaste with which the courts affected to view such pleas, it was necessary under the strict common-law rules that the different causes for abatement be pleaded in proper order or else be waived. The order was: (1) the jurisdiction of the court; (2) the capacity of the plaintiff; (3) the capacity of the defendant; (4) the count or declaration; and (5) the writ, 1 Comyns, Digest 1–2. The first two matters pleaded here go to the capacity of the plaintiff. Id. at 11–14. The third item in the plea asserted a repugnancy or inconsistency in the declaration. Id. at 38–39. The fourth and fifth items seem to raise the defense of nontenure, a lack of capacity in the defendant. Id. at 27–28. Joseph Story's comments on similar pleas are a good example of the way in which such indigenous forms were later modified to conform to English practice: “It was the common practice in this Commonwealth, till within a few years, to take all objections to the writ and declaration, by a plea in abatement. The mode of assignment was to pray judgment of the writ; and then state the various objections, however numerous or different in nature, in regular display, (as causes are assigned on special demurrer) and then conclude the whole, united in a single plea, praying judgment of the writ, that it might be quashed. In this way misnomer, coverture, infancy, misjoinder, and defects of the count were united, and judgment given according to the prayer of the plea. So that in fact all defects in the declaration, which are now stated as causes of special demurrer, were tried by pleas in abatement. It is apprehended that this practice was irregular, when compared by English rules in many respects.” Joseph Story, A Selection of Pleadings in Civil Actions 59–60 (Salem, Mass., 1805). The plea here obviously violates the common law principles of order. Moreover, it is faulty in two of the “many respects” which Story went on to enumerate: (1) It was improper to plead more than one matter in the same class. See Zuill v. Bradley, Quincy, Reports 6, 7 (SCJ Suffolk, Aug. 1762), apparently permitting such duplicity. (2) Despite older precedents, the 18th-century English view seems to have been that defects in the declaration should be raised on demurrer. See 1 Comyns, Digest 70; 5 Dane, Abridgment 708; see also 1 Chitty, Pleading 438, 442.
78. The “defense” presented special problems in the plea in abatement. The “full defense,” quoted in note 22 note 38 above, was in earlier practice considered improper for a plea in abatement, since it admitted most objections to jurisdiction and capacity. The correct usage was the “half defense”: “comes and defends the force and injury and says.” In the abbreviated form used here the addition of “when” was at first supposed to indicate a full defense, but later cases said that it could stand for either full or half. After three pages of learned discussion, Story concluded, “Indeed, since the common contraction of them is the same, and the Court will intend the abbreviation, either, according to the case in which they occur, ... there seems no objection to use the common form, 'comes and defends the force and injury, when, &c.' in all cases whatsoever.” Story, Pleadings 3–4.
79. See No. 18.
80. In JA 's hand. Pleadings Book, p. [49–50]. JA , representing plaintiffs Hannah and Deborah Metcalf, filed a special demurrer to the plea printed here, which was decided in the plaintiffs' favor at the Jan. 1773 Suffolk Inferior Court. At the Superior Court in Feb. 1773 the demurrer was argued again and the previous decision on it upheld. The case was continued for “chancery” (determination of the actual damages). At the next term, one Hannah Messenger, who had related claims against defendant Jeremiah Hall, was admitted an additional plaintiff and the case was referred, the parties agreeing not to “employ any sworn Attorney to appear for them before said Refferees.” The referees awarded the plaintiffs £105 damages and costs of £27 12s. 3d. SCJ Rec. 1773–1774, fol. 105; Min. Bk. 98, SCJ Suffolk, Feb. 1773, N–2; Aug. 1773, C–49; SF 102308. The suit was brought on a bond for £213 6s. 8d. given to Hannah and Deborah Metcalf by Hall to secure his performance of an agreement of the same date (the “sarting Articals” of the plea) under which he took control of all their real and personal estate, agreeing to pay certain debts for them and to provide for them until the funds were exhausted. According to Hall's statement in the file, the suit was instigated by Ezekiel Needham, with whose son Hall was currently in litigation. See note 42 26 above. Needham, seeking to ruin Hall, had first persuaded the ladies to leave the latter's house and had personally removed their household goods, making it impossible for Hall to perform his obligations. The statement continued, “and if this ant a most wicked abusive transaction done to me who have almost put my life in my hand in their troubles and all because I ask them for my Just Right which is as justly due to me Now as ever a Copper was due to any Man on Earth.” Hall's account is borne out by the fact that Needham endorsed the Metcalfs' writ, but there was also testimony in the file that Hall had not been taking proper care of his charges. SF 102308.
The plea printed here was presumably drawn by Josiah Quincy Jr., who represented Hall in the Inferior Court. Oyer of the bond and condition (note 58 42 above) was followed by an affirmative plea of performance. JA 's demurrer (SF 102308) began with a clause “protesting” that Hall had not performed his obligation as he had pleaded. This was a protestando, used in a plea or replication that traversed only part of a preceding pleading to avoid a conclusive admission of the part not traversed. The device was ordinarily not used in a demurrer, perhaps on the assumption that admissions on demurrer were not conclusive in any event. There was little or no authority to the latter effect in the 18th century, however, and occasional examples of the practice are found. See Shipman, Common-law Pleading 282–293, 358–359; Sutton, Personal Actions 112–113, 177–179; Story, Pleadings 322–323; 6 Dane, Abridgment 213; John Lilly, Modern Entries 231 (London, 2d edn., 1741); 5 Comyns, Digest 115–116, 126–127. See also Lee v. Boothby, 1 Keble 720, 83 Eng. Rep. 1205 (K.B. 1676). The remainder of the demurrer, in form similar to that in Apthorp v. Gardiner, No. 9, Doc. III, asserted that the plea was insufficient because Hall had not “set forth in certain what those Sarting Articals and Agreement indented, and bearing even date with the said Bond, made between Jeremiah Hall on the One part and Hannah Metcalf and Deborah Metcalf on the other part mentioned in the said Jeremiah's said Plea, were in particular, as he ought to have done.” The court's decision upholding the demurrer was in accord with English authority to the effect that when the condition of a bond was to perform the covenants in an indenture, the defendant must set out at least the substance of the indenture. See Stephen, Pleading 366–368; 2 Chitty, Pleading 530–532; Story, Pleadings 240–241; Jevens v. Harridge, 1 Saund. 8, 9, 85 Eng. Rep. 8, 12 (K.B. 1678). The citation in the next line of the text is to Chaloner v. Davis, 3 Ld. Raym. 273, 92 Eng. Rep. 684 (C.P. 1696), a declaration in covenant on a performance bond. See 1 Ld. Raym. 400, 91 Eng. Rep. 1166.
81. Thus in MS , and in the file copies of the Inferior Court record and the actual bond. The file copy of the plea reads “without covent.” SF 102308. The reading in the text here seems the correct one. The meaning is probably “with all things covenanted.”
82. In the text of the file copy of the plea (SF 102308) the passage beginning “for his Part, in all Manner ...” and ending at this point is in quotes, indicating that the pleader was reciting performance in terms of the condition of the bond. This would have been sufficient had the condition not referred to covenants in the indenture. See Stephen, Pleading 362–366.
83. In JA 's hand. Pleadings Book, p. [53–55]. The writ, drawn by Samuel Fitch, is dated 27 Nov. 1772. It and the bond are in the Suffolk Inferior Court Files, Jan. 1773, No. 268. No record of subsequent pleadings or of the outcome has been found. The action of replevin was unique amoung common-law forms, in that prior to suit the plaintiff could have redelivery of a chattel alleged to have been wrongfully taken and detained by the defendant. If judgment for the plaintiff then followed, he might be awarded damages for the taking; otherwise the court ordered a return of the goods to the defendant. Unless he had not taken the goods, the defendant ordinarily pleaded a so-called “avowry” in which he justified the taking by stating affirmatively his claim to the chattel. The plaintiff then responded with a plea, and the pleadings proceeded as in other actions, but with the roles reversed. See Sutton, Personal Actions 91–94, 166; 1 Chitty, Pleading 162. Replevin originally could be brought only by one injured through wrongful distress (the taking of chattels from a wrongdoer to satisfy his liability). Although Blackstone still considered the action as thus limited, it had in fact earlier been expanded by the courts to include other wrongful takings. In 18th-century England there was authority supporting the latter position, but the action seems to have been limited in practice to cases of distress. See James Barr Ames, Lectures on Legal History 69–70 (Cambridge, Mass., 1913); 3 Holdsworth, History of English Law 285 note; 1 Chitty, Pleading 159 note; 3 Blackstone, Commentaries “146; 4 Bacon, Abridgment 384–385; Sir Geoffrey Gilbert, The Law of Distresses and Replevins 157–165, 257–342 (London, 1757).
In Massachusetts the Act of 10 June 1698, c. 6, §2, 1 A&R 322, permitted owners of cattle taken damage-feasant to bring replevin; a later Act, prescribing a form of the writ substantially like that followed here, provided that the action could not be brought against an officer distraining goods for taxes, fines, and forfeitures. Act of 6 Dec. 1720, c. 13, §2, 2 A&R 188. After the Revolution, a Massachusetts statute extended replevin to goods taken other than by distress. Act of 24 June 1789, §4, [1788–1789] Acts and Resolves 430–436. Although this enactment might be construed to mean that the prior practice had been narrower, the fact that the Act of 19 Feb. 1787, [1786–1787] Acts and Resolves 182–187, had established the writ of de homine replegiando, earlier used without statute in a slavery case, No. 40, suggests that the 1789 measure merely codified existing law. The instant case supports this view, since it does not involve a distress.
The use of replevin here is of particular interest because of the maritime nature of the subject matter. The contract of “bottomree” (i.e. bottomry), under which the plaintiffs claimed an interest, was a common device for financing marine ventures, in which the lender was secured by a lien on the vessel, but could receive payment only if she reached port safely. The transaction here was a loan to the master of a vessel for ship's necessaries in a foreign port, for which the owners were not personally liable; the customary remedy was a libel in rem in Admiralty. This was a proceeding beyond the power of the common law, brought directly against the vessel, in which she could be seized and sold to meet demands secured by maritime liens. Although the common-law courts had severely restricted the Admiralty jurisdiction in the 18th century, this was one variety of action which, for want of another remedy, was excepted from the restriction. See Gilmore and Black, Law of Admiralty 480–519; Arthur Browne, A Compendious View of the Civil Law and of the Law of Admiralty, 2:84–85, 195–196 (London, 2d edn., 1802); Charles Molloy, De Jure Maritimo et Navali, bk. 2, c. 11, §n (London, 8th edn., 1744); 8 Holdsworth, History of English Law 261–263. This case came up at a time when the Massachusetts Vice Admiralty Court was being attacked for its role in enforcing the Acts of Trade. See vol. 2:102–104, notes 17, 22, 24. The declaration here thus may represent an ingenious attempt to avoid the necessity of proceeding in Admiralty by using the only common law form which, like a libel in rem, was concerned not with personal liability, but with rights in the res. In all probability the tactic failed. Assuming that replevin lay in a case other than distress, a wrongful taking from one with possession or the immediate right to possession was nevertheless a necessary element. See 1 Chitty, Pleading 158–160; Abbott, Shipping 101; Gilmore and Black, Law of Admiralty 480–482.
84. That is, discharging liens for repairs already made.
85. A civil-law term meaning a pledge in which the pledgor retained possession of the res. Black, Law Dictionary . In later usage the term was expressly applied to the kind of transaction here, to distinguish it from ordinary bottomry, in which a loan was made to the owner in his home port and on his personal credit, as well as on the credit of the vessel. 2 Browne, Civil Law 196–197. The principal work on maritime law in use before the Revolution did not make the distinction, however. See Molloy, De Jure Maritimo, bk. 2, c. 11, §11.
86. Possibly in the hand o£ Nathan Rice, JA 's clerk. Pleadings Book, p. [56]. The action was commenced, with Thomas Flucker, secretary of the Province, as co-plaintiff, in the April 1773 Suffolk Inferior Court; the writ, dated 10 Feb. 1773, is in JA 's hand. Suffolk Inferior Court Files, April 1773, No. 217. Noyes defaulted, and judgment of £39 13s. 10d. and costs was entered. (No explanation appears for the two-shilling discrepancy between this figure and the figures in the declaration.) At the Aug. 1773 Suffolk Superior Court, the defendant failed to prosecute his appeal, and judgment was entered for plaintiffs on an affirmation in the sum of £40 9s. 4d. and £4 11s. costs. SCJ Rec. 1773–1774, fol. 113; Min. Bk. 98, SCJ Suffolk, Aug. 1773, N–47; SF 102305. JA represented Palmer; Benjamin Kent, Noyes. The file papers indicate that the original action concerned payment for 69 hats and two pieces of “English duck.” The defendant defaulted. Min. Bk., Inf. Ct. Suffolk, Oct. 1771, No. 139.
A recent statute had created a direct “action of debt” on a judgment. Act of 6 March 1773, c. 32, 5 A&R 231, 232. Ostensibly, this statute merely remedied the problem that arose because “when judgment is rendered, if the party obtaining it dies, no execution can be sued out thereon, without a writ of scire facias being first brought and prosecuted with effect; and because, upon a writ of scire facias, neither the goods or estate of the debtor can be attached, nor his body taken, the debt may be lost.” (A scire facias had the effect of reviving the judgment, but a new execution was necessary. R. Pound and T. F. T. Plucknett, Readings on the History and System of the Common Law 449 [Rochester, N.Y., 3d edn., 1927].) But the statute is very broad, and provides that “when judgment is given in any court of record, and remaineth in force, the party obtaining it, his or their executors or administrators, may, instead of a writ of scire facias, have and maintain an action of debt upon such judgment, in the same court where the record thereof remaineth.” 5 A&R 232. This is the only Province statute on the point, but the action of debt on a judgment was used in Massachusetts before 1773. See, for example, Tirrell v. Clark, SF 85178 (Suffolk Inferior Court 1764), in which JA drew a writ almost identical to the one here. For later forms, see Perham, American Precedents 271–272.
The statute seems to have embodied the English rule that if a plaintiff “hath once obtained a judgment against another for a certain sum, and neglects to take out execution thereupon, he may afterwards bring an action of debt upon this judgment, and shall not be put upon the proof of the original cause of action; but upon shewing the judgment once obtained, still in full force, and yet unsatisfied, the law immediately implies, that by the original contract of society the defendant hath contracted a debt, and is bound to pay it. ... [But] actions of debt upon judgment in personal suits have been pretty much discountenanced by the courts, as being generally vexatious and oppressive, by harrassing the defendant with the costs of two actions instead of one.” 3 Blackstone, Commentaries *158–159. The common-law action was also available to an executor, 1 Dane, Abridgment 161. Debt was the sole remedy here, because indebitatus assumpsit could not be brought on a judgment. James Barr Ames, Lectures on Legal History 160 (Cambridge, Mass., 1913); 8 Holdsworth, History of English Law 89. The 1773 Act may have been deemed necessary because the whole process of levy of execution in Massachusetts was statutory. See notes 85 69 , 87 71 , 88 72 , above.
87. In the hands of JA and a clerk, possibly Jonathan Williams. Pleadings Book, p. [57]. The writ, dated 21 June 1773, was drawn by Sampson Salter Blowers, who represented Laughton in both the Inferior and Superior courts. The original writ in Blowers' hand, with pleadings signed by JA , is in Suffolk Inferior Court Files, July 1773; No. 286. JA was of counsel for the defendants throughout the litigation. In July 1773 at the Suffolk Inferior Court, Laughton was awarded possession on a demurrer to JA 's plea that the defendants “do not know the said William Laughton.” At the Superior Court in Aug. Laughton prevailed again on the defendants' confession of judgment for possession and costs. SCJ Rec. 1773–1774, fol. 108; Min. Bk. 98, SCJ Suffolk, Aug. 1773, N–15; SF 102278. This is an action of ejectment in the form commonly employed in the English courts. The declaration alleges a lease, collusive or fictitious, from the party claiming the premises to a straw or nonexistent person, in whose name the proceeding is actually brought. Compare note 18 2 above; see also No. 17, note 5. Although these proceedings might reflect an arms' length transaction between the parties, that they do not here is indicated by a bill of costs in the file drawn by Blowers as attorney for “Laughton on the Case of Warden et ux. appellees vs. Pitts et al. appellants.” SF 102278. Further, on the Inferior Court writ, cited above, the name Warden has been crossed out and that of Laughton written in.
88. The premises were between Marlboro (now Washington) Street and Bishop's Alley (now Hawley Street). SF 102278.
89. Not a reference to agricultural activity, but a literal translation of the original Latin form, meaning the leasehold itself. See 2 Chitty, Pleading 442 note.
90. Possibly in the hand of Jonathan Williams, JA 's clerk. Pleadings Book, p. [58–59]. The litigation dragged on for over 20 years. The original writ, bearing Josiah Quincy's name, dates from 21 Sept. 1773. SF 91749. Documentation has not been found for the proceedings at the Oct. 1773 Suffolk Inferior Court (although there is a suggestion that Samuel Fitch represented Gillespie), but Boies apparently prevailed, because the Superior Court and Supreme Judicial Court Records and Minute Books carry the case as “Gillespie v. Boies.” Originally entered in Feb. 1774, Gillespie's appeal was continued to Aug. 1777, when it was dismissed for an unspecified “irregularity of the proceedings in the lower Court.” SCJ Rec. 1775–1778, fol. 141; Min. Bk. 103, SCJ Suffolk, Aug. 1777, C–74. Boies recommenced his action, which came to trial for the first time in the spring 1779 Suffolk Inferior Court. Gillespie again appealed, and filed a prayer “that a Jury may go uppon the Spot, in order that real Justis may be done, & the Matter Finish'd this Term.” SF 1026791). After assorted continuances, the matter was apparently settled, for in SJC Rec. 1784, fol. 1, is the final notation: “Neither party appears.” See also Min. Bk. 2, SJC Suffolk, Feb. 1784, C–1. For another suit between the same parties, see Boies v. Gillespie, Suffolk Inferior Court Files, April 1774, No. 202.
91. Boston Gazette, 5 Nov. 1770, p. 3, col. 2: “The old Slitting Mills at Milton is now in good Repair: At which Place good NAIL RODS may be had at 30s. per Hundred.”
92. A consequence of the riparian system of water rights (note 90 74 above) is that the right to use of the water inheres in the very ownership of bankside realty. Unlike the prior appropriation system, where the right to water does not exist unless and until the water is actually used, the riparian system confers on the proprietor a perpetual right to the flow of water. A riparian landowner can lose his water right in only two ways: he can grant it to another proprietor; or he can suffer another proprietor to take the right away by prescription (open and long-continued usurpation). To say that a right to water may be lost by prescription is not the same thing as saying that this right may be acquired only by prescription. The first thought is entirely compatible with the riparian system; the second is wholly foreign to it, being in fact another way of expressing the doctrine of prior appropriation. In the debate which has simmered for the past half-century on the issue whether the common law was appropriative or riparian, a focus of inquiry has been the old pleadings, particularly the declarations. Compare Wiel, “Waters: American Law and French Authority,” 33 Harv. L. Rev. 133 (1919), with Maass and Zobel, “Anglo-American Water Law: Who Appropriated the Riparian Doctrine?” 10 Public Policy 109 (1960). It was argued that because so many of the old declarations used language importing prescription, the water rights involved must have depended on prescription; in other words, prior appropriation was the key to those rights. The counter-argument was that no matter how the pleadings read, the facts of the cases and the language of the judges indicated that water rights followed riparian ownership.
In the absence of reported judicial opinions, it is difficult to determine the 18th-century Massachusetts rule. The point was raised in neither the declaration nor the plea in Clark v. McCarney, Form XXII. Language in the present declaration (“from time immemorial have been accustomed and ought to have the Benefit of a certain Water or Water-Course”) sounds in prescription; another “water” case in the Wetmore Notes, Symonds v. Traske (Essex Inferior Court? ca. 1771), likewise alleges “that a spring of Water ran thro' [plaintiff's land] for time immemorial ... and still ought to run.” Adams Papers, Microfilms, Reel No. 184. And all the relevant forms in Perham, American Precedents 196, 199–200, use similar language. But the Wetmore Notes show that counsel in Symonds v. Traske, at least, knew of English forms noting that the ancientness of the watercourse need not be alleged. See, for example, 1 Mallory, Modern Entries 482–483.
93. In JA 's hand. Pleadings Book, p. [61]. The records and files of this case have not been found. The action was one in trespass quare clausum fregit — “wherefore he broke the close.” (“Close” was a term of art referring to any interest in the soil, whether enclosed or not.) This was the remedy of one in actual possession of land for an injury to the land through or during a wrongful entry. For the remedies of one out of possession, see notes 29 13 , 103 87 , above. The judgment awarded money damages, but the action could be used to determine the right to possession. See 8 Holdsworth, History of English Law 467; 1 Chitty, Pleading . 173–183; Shipman, Common-law Pleading 66–82; Perham, American Precedents 333–339; 5 Dane, Abridgment 567; Act of 20 Nov. 1770, c. 9, §4, 5 A&R 110. That determination of rights rather than recovery of damages was the object of this suit is suggested by the fact that the plaintiff could have obtained damages for injuries to his trees, soil, and grass, through a statutory action in which the defendant bore the burden. Act of 21 June 1726, c. 3, §§1–3, 2 A&R 383–384; Act of 10 June 1698, c. 7, §4, 1 A&R 324. See Perham, American Precedents 334. Note that the declaration alleges that the trespass was from its beginning “to the Day of the Purchase of this Writ, at Sundry days and Times continuing.” Such an allegation, called a “continuando,” was proper when the trespass complained of was a continuing act, rather than a series of independent actions. Some authorities at least might have considered the cutting of trees to be in the latter class. See id. at 51–52, 338–339; Sutton, Personal Actions 159.
94. Probably in the hand of Edward Hill, JA 's clerk. Pleadings Book, p. [62]. Documentation of this case is fragmentary. The original writ in the hand of Benjamin Kent is dated 6 Jan. 1773, returnable to the April 1773 Suffolk Inferior Court. SF 91649. JA 's Office Book, April 1773, MQA, shows that he was retained by Littlefield and carries the notations “Fini[shed]” and “to be abated,” which may mean either that the writ was abated, or that JA intended to plead in abatement. No other indication of the result has been found. For a related action in trover for an anchor between the same parties, in which JA was also of counsel for Little-field, see SF 91671; Office Book, April 1773, MQA.
The problem in the present case was that the transaction was an exchange rather than a sale of goods. By his contract the plaintiff was entitled to eleven gallons of rum, but none of the remedies available to him could provide this recovery. He could not rescind the contract and get back the rum which he had originally given to the defendant, because, in the absence of fraud, title passed to the defendant on delivery. A right to possession was necessary to maintain detinue or replevin, the usual actions for the recovery in specie of wrongfully detained goods. See 2 Blackstone, Commentaries *447–448; 2 Kent, Commentaries *496, *514; Shipman, Common-law Pleading 117–118, 125–128. Detinue and replevin were similarly unavailable for the rum which the defendant had agreed to furnish, because they lay only for specific chattels, and no particular eleven gallons seem to have been intended here. In addition, replevin was not available where, as here, the plaintiff had consented to the original taking. Id. at 114–131; note 99 83 above.
Some legal historians say that debt or indebitatus assumpsit lay to recover unascertained chattels due by contract, but 19th-century authorities made clear that in such a case a showing of the value of the chattels would be required and that the recovery would be in money. Ames, Lectures on Legal History 89; Fifoot, History and Sources 24–28, 243; see 5 Dane, Abridgment 308; Mayor of Reading v. Clarke, 4 Barn. & Aid. 268, 106 Eng. Rep. 936 (K.B. 1821); 2 Chitty, Pleading 38 (Springfield, Mass., 13th Amer. edn., 1859). Even if recovery in specie might have been allowed under these forms, the action of debt for chattels had fallen into disuse by JA 's time. He and his contemporaries could well have concluded that Blackstone meant to exclude the recovery of goods when he said, “The legal acceptation of debt, is a sum of money due by certain and express agreement.” 3 Blackstone, Commentaries *153. Since it was commonly (although erroneously) considered that indebitatus assumpsit lay only where debt lay, it would have been logical for the 18th-century lawyers to assume that neither remedy existed in this case. See Fifoot, History and Sources 365. For cases following this logic, see Watson v. M'Nairy, 1 Bibb (Ky.) 356 (1809); Spratt v. M'Kinney, id. at 590, 595 (1809).
If the plaintiff could not obtain the rum in specie, he would have to be satisfied with money damages. Trover, the common remedy in damages for the wrongful appropriation or detention of a chattel, would not lie either for the rum originally given by the plaintiff or that owed him by the defendant, on the same reasoning that barred recovery in detinue or replevin. Shipman, Common-law Pleading 101–107. The remedy in debt or indebitatus assumpsit on the contract might have sufficed, but there is good reason to think that it would have been held unavailable. Both indebitatus assumpsit on the common count for goods sold and delivered and quantum valebant (note 31 15 above) were based on a fictitious undertaking of the defendant to pay for goods either their price or their reasonable value, measured at the time of making the contract. Although there was some disagreement, a substantial body of later authority held that these actions were inappropriate where the defendant was to pay in chattels, because the plaintiff had bargained to receive the value of the goods at the time of his demand, which might be higher or lower than the value at the time of sale. According to this authority, the proper form of action was special assumpsit, in which the measure of damages was the loss occurring to the plaintiff through the breach — in this case the value of the rum at the time of the demand. See Mitchell v. Gile, 12 N.H. 390, 395–396 (1841); Harris v. Fowle (N.P. 1787), cited in Barbe v. Parker, 1 H. Bl. 287, 126 Eng. Rep. 168 (C.P. 1789); Shipman, Common-law Pleading 156, 253; but see 2 Chitty, Pleading 273–275 note (Springfield, 1859); John Wentworth, A Complete System of Pleading, 2:121–122, 191–192, 200, 220 (London, 1797). In any event, if the defendant's default had been occasioned by a rise in the price of rum, special assumpsit would be tactically preferable.
For whatever reason, special assumpsit was the form used here.
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