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Browsing: Legal Papers of John Adams, Volume 1


Docno: ADMS-05-01-02-0006-0007-0004

Author: Wetmore, William
Date: 1771-06

Wetmore's Minutes of the Smith Trial1

Essex Superior Court, Ipswich, June 1771

June 1771
Smith and Wilkins [v.] Fuller. Bacon Trespass 212. Contin[uand]o in trespass may be waved and evidence given of any trespass before the action.2
See 2 Barn[ardisto]n 120. Trespass for disturbance in freehold; title allow'd to be given in evidence by defendant and Com[yn]s said that any possession longer than 7 or 8 years was evidence of it.3
This action is trespass for erecting a dam on plaintiffs land and flowing it from 1765. Evidence was offered of erecting dam in 1762, { 279 } but objected to it as excluded by limitation Act. Answered that it's repealed. J[udge] Trowb[ridge] seem'd to think it not repeal'd by the tempo[rary] law,4 and that on declaration for trespass done between 2 days certain, evidence was not admissible without5 those days.
1. Wetmore Notes, No. 2, Adams Papers, Microfilms, Reel No. 184. The minutes seem to refer only to Smith's case. The reporter's title, “Smith and Wilkins [v.] Fuller,” suggests, however, that he deemed the cases to be related. The relationship is borne out by the fact that the Wetmore minutes of Wilkins' case (Doc. I) appear in the MS several pages after these minutes.
2. 5 Bacon, Abridgment 212: “If the Trespass charged in this Action is laid with a Continuando for the whole Time, from a Day on which the first Trespass is charged in the Declaration until a subsequent Day therein mentioned, it is not necessary for the Plaintiff to prove a Continuance of the Trespass for this whole Time: But he must prove a Trespass within it; unless he chooses to waive the Continuando entirely, in which Case he may give Evidence of any one Trespass committed before the Action was brought.”
3. Baynes v. Reeves, 2 Barn. 120, 94 Eng. Rep. 394 (Lent Assizes 1732), tried before Baron Comyns.
4. The Act of 7 July 1740 had set limitation periods for various personal actions; that for “trespass upon lands” was five years. 2 A&R 1020. A clarifying Act of 1 Feb. 1749 established a four-year limitation period for “actions of account, or upon the case, grounded on any lending or contract.” 3 A&R 444, 445. In a series of “temporary” Acts, subsequent legislatures successively extended the deadline for existing causes of action. Act of 5 June 1752, 3 A&R 609; Act of 19 April 1754 3 A&R 727; Act of 31 Oct. 1755, 3 A&R 886; Act of 31 Aug. 1757, 4 A&R 26, 27; Act of 16 Jan. 1760, 4 A&R 280. And in 1767, the limiting date was made 1 July 1770. Act of 20 March 1767, 4 A&R 920. But the legislature did not consider the problem again until the fall of 1770, at which time it passed an Act repealing every previous limitation statute and providing that “all actions of trespass quare clausum fregit; all actions of trespass [de bonis asportatis] ...; all actions of account and upon the case, other than such accounts as concern the trade of merchandize” brought after 1 Dec. 1770 should be commenced as follows: “the said actions upon the case (other than for slander), and the said actions of account, and the said actions of trespass [d.b.a.] ... and trespass [q.c.f.], within six years from [1 Dec. 1770], or within six years next after the cause of such actions or suits, and not after.” Act of 20 Nov. 1770, 5 A&R 109–110.
The “tempo[rary] law” referred to by Trowbridge in the minute was apparently the 1770 Act. According to Lieutenant Governor Thomas Hutchinson's letter transmitting the legislation of the session just concluded to England for approval, the 1770 Act was “not a Temporary Law but placed among them [i.e. in the compilation of all laws passed at the session] through inattention which must be corrected.” Hutchinson to Lords of Trade, 21 Dec. 1770, in 5 A&R 143 note. The plaintiff seems to have argued that under the 1770 Act matters arising at any time prior to 1 Dec. 1770 were not barred until 1 Dec. 1776. Trowbridge's point was probably that the 1770 Act did not repeal the 1740 Act as to causes of action on which suit had been brought before 1 Dec. 1770. Since the 1740 limitations on trespass q.c.f. had not been among those extended by later legislation, the 1762 evidence was clearly barred when this action was brought in 1770. For JA's role in the passage of the 1770 Act, see p. lxxxvii, note 204, above.
5. That is, “before or after.” The comma following “certain” has been supplied.
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/