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Browsing: Legal Papers of John Adams, Volume 1


This note contained in document ADMS-05-01-02-0006-0005-0001
5. As to the Massachusetts action and some of the advantages seen in it, see Perham, American Precedents 288–290; Charles Jackson, A Treatise of the Pleadings and Practice in Real Actions 11–13 (Boston, 1828); Asahel Stearns, A Summary of the Law and Practice of Real Actions 91–94, 396–398 note (Boston, 1824). For an example of the use of the fictional form of the action in Massachusetts, see Johnson, Lessee of Stevens v. Hewes, Min. Bk. 81, SCJ Suffolk, Aug. 1765, C—33; review, sub nom. Hewes v. Johnson, id., March 1766, N–23; SF 100633, 100729. In this complicated action arising out of the Land Bank scheme, JA was of counsel for Hewes. The declaration, apparently drafted by Robert Auchmuty, gave no label to the action, but set forth a lease from Timothy Stevens to one “Samuel Johnson, scrivener,” whose name does not appear elsewhere in the file. The actual defendants were alleged to have “Entered, and him the said Samuel from his farm aforesaid ejected.” SF 100729. The form is essentially that given in Sutton, Personal Actions 53–54. The name of the real defendants was probably used either because this was the new declaration served upon them after they had been notified to defend (id. at 54), or because the formality of the completely fictional declaration had been dispensed with. After a demurrer for Hewes in the Inferior Court, Johnson won both the appeal and the review in the Superior Court. Hewes then moved for an appeal to the Privy Council, but it was denied, “there being no provision in the Royal Charter for an appeal in this Case.” (The Charter provided an appeal only “in any Personal Accion wherein the matter in difference doth exceed” £300 sterling. 1 A&R 15.) JA's minutes of the argument, or arguments, which show that the existence of the fiction was recognized, are in Adams Papers, Microfilms, Reel No. 185. For another such action, see Laughton v. Pitts, p. 80–81 above.
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/