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Browsing: Early Diary of John Adams, Volume 1


Docno: ADMS-02-01-02-0010-0007-0004

Author: Adams, John
DateRange: 1758-12 - 1759-01
{Folio: 27, right side up}

[Further Notes on Civil Law, December 1758–January 1759.]1

Judicial [stipulations] are those which proceed from the mere Office of a Judge, as Surety vs. fraud [ . . . ] pursuing a servant, who is in flight. Surety concerning fraud is required, when the Danger is, lest an Adversary commit a fraud [upon things of?] ours. Surety concerning pursuing a servant, is that [when?] an Heir promises the Legatary, that he will pursue at his own Expense a servant [which?] is [given?] as a Legacy, who is running away, and restore either servant or his Value. Praetorial Cautions are those which proceed from the mere Office of the Praetor, as a surety of Damage, that is [ . . . ] and of Legacies. Damage is all Diminution of our [Pa]trimony. A Damage not done, is that which is not yet done but which we fear will be done. [A] surety of a Damage, not done, is that by which, the owner of decayed Buildings engages to his Neighbor [that] he will repay thereafter what ever Loss or Damage shall [happen?] by the fault of his buildings. [A] surety of Legacies is that by which the Heir, having given Bondsmen, engages to a Legatary to whom a Legacy [is] bequeathed on Condition, or at a certain day, that he on the fulfilment of the Condition, or [ . . . ] of the day, will pay the Legacy [ . . . ].2 But if the owner will not give the said sureties to the Neighbor, nor the Heir to the Legatary, the Neighbour is put into possession of the decayed House by the Praetor and the Legatary into [possession?] of the hereditary Things. It is peculiar to the Pretors Cau[tions] to [need Bondsmen?]. Convent[ion]al Cautions are those which are conceived by the Agreement [of] either Party. There are as many Kinds of these as there are of things to be contracted. Common are those which proceed as well, from the Office of Praetor, as of that [of] Judge, as that the Estate of a Pupill shall be safe, which is given by Tutors; and a Surety, by which, he who manages the Business of another when he doubts of a Command, he engageing that the Master shall have [ . . . ]3 due. Of useless Stipulations. An useless stipulation is one that has no Effect in Law. Stipulations are useless, either by Reason of the Thing, or of { 101 } the fact included in the Stipulation, or by Reason of the Contractor, or by Reason of the form or manner of the Contract. A stipulation is useless by Reason of the Thing, if any one stipulate a Thing, which neither is, nor can be, in the nature of Things; allso a Thing which is not in Commerce, as a Thing sacred, holy, religious, public, a free man, or at least beyond the Commerce of the stipulator. Also if any one stipulate a property purely, or [even?] the Thing plainly incertain. If any one shall promise the <fact> Act of another, without any Penalty annexed, also [anything that?] is impossible, either in nature or Morals. By Reason of the Contract, if they are unqualified, as dumb, deaf, mad, infant; also, as made between a father and a son or servant and Master; also if any one shall stipulate to Another than himself unless it shall [be] to him to whom it is [ . . . ], or a Penalty [is annexed?].
Let me get a clear Knowledge of the Proceedings in the Courts of Probate.4 Ex[ecuto]r, who accepts the Trust is accountable to the Judge of Probate. [A Jud]ge of Probate, by Warrant under his Hand and seal, directed to sherriff &c. to cause such suspected Person to be apprehended, and brought before such Judge to be [examined?] and proceeded with. A Person suspected of convaying or imbezzling Part any Part of the Estate of any Person deceased, shall have been cited, pursuant to Law [sentence unfinished]
1. This entry is a continuation, without break, of JA’s notes on Van Muyden’s Tractatio on Justinian’s Institutes, entered physically at a much earlier point in the Diary Fragment; see p. 55–59, above, and editorial notes there. The present jottings are based on Van Muyden, p. 121–124, continuing the Institutes, bk. 3, title 19, and covering part of title 20.
2. Three or four words illegible.
3. Three words illegible.
4. Although there is no indication of a break in the MS, JA has here obviously dropped Van Muyden. The following three sentences are partly quoted and partly paraphrased from An Act for Further Regulating the Proceedings of the Courts of Probate within this Province, passed by the General Court on 5 Jan. 1753 (Mass., Province Laws, 3:639–640).
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2014.
http://www.masshist.org/apde2/