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This note contained in document ADMS-05-01-02-0002-0001-0002
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.
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, 2018.